<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 20, 1994.
REGISTRATION NO. 33-
POST-EFFECTIVE AMENDMENT NO. 1 TO REGISTRATION NO. 33-50407
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------
FORM S-3
REGISTRATION STATEMENT
AND
POST-EFFECTIVE AMENDMENT NO. 1
TO REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------
LORAL CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
NEW YORK 13-1718360
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
------------
600 THIRD AVENUE
NEW YORK, NEW YORK 10016
(212) 697-1105
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------
MICHAEL B. TARGOFF, ESQ.
SENIOR VICE PRESIDENT AND SECRETARY
LORAL CORPORATION
600 THIRD AVENUE
NEW YORK, NEW YORK 10016
(212) 697-1105
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPIES TO:
BRUCE R. KRAUS, ESQ. ROBERT ROSENMAN, Esq.
WILLKIE FARR & GALLAGHER CRAVATH, SWAINE & MOORE
One Citicorp Center Worldwide Plaza
153 East 53rd Street 825 Eighth Avenue
New York, New York 10022 New York, New York 10019
(212) 821-8000 (212) 474-1000
(Counsel for the Registrant) (Counsel for the Underwriters)
------------
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement.
------------
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, check the following
box: [ ]
If any of the securities being registered on this form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities
Act of 1933, as amended (the "Securities Act"), other than securities offered
only in connection with dividend or interest reinvestment plans, check the
following box: [X]
<PAGE>
------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=================================================================================================================
PROPOSED MAXIMUM
PROPOSED MAXIMUM AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE OFFERING PRICE REGISTRATION FEE
REGISTERED REGISTERED (1) PER UNIT (2) (1)(2) (3)
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities...........................
- -----------------------------------------------------------------------------------------------------------------
Preferred Stock (4).......................
- -----------------------------------------------------------------------------------------------------------------
Common Stock (4)(5).......................
- -----------------------------------------------------------------------------------------------------------------
Depositary Shares (4).....................
- -----------------------------------------------------------------------------------------------------------------
Warrants to Purchase Debt Securities .....
- -----------------------------------------------------------------------------------------------------------------
Warrants to Purchase Equity Securities (5)
- -----------------------------------------------------------------------------------------------------------------
Total .................................. $500,000,000 100% $500,000,000 $172,415
=================================================================================================================
</TABLE>
(1)In no event will the aggregate initial offering price of the Debt
Securities, Preferred Stock, Common Stock, Depositary Shares, Warrants
to Purchase Debt Securities and Warrants to Purchase Equity Securities
issued under these Registration Statements exceed $800,000,000, or, if
any securities are issued in any foreign currency units, the U.S.
dollar equivalent of $800,000,000, and if any securities are issued at
original issue discount, such greater amount as shall result in an
aggregate offering price not to exceed $800,000,000.
(2)Estimated solely for purposes of computing the registration fee. The
proposed maximum offering price per unit will be determined from time
to time by the Registrant in connection with the issuance by the
Registrant of the securities registered hereunder.
(3)Calculated pursuant to Rule 457 of the Securities Act on the basis of
the $500,000,000 of securities being registered hereunder in addition
to the $300,000,000 of securities registered pursuant to Registration
Statement No. 33-50407, as to which a fee of $93,750 has been paid.
(4)In addition to any Preferred Stock, Common Stock or Depositary Shares
that may be issued directly under these Registration Statements, there
are being registered hereunder an indeterminate number of shares of
Preferred Stock, Common Stock or Depositary Shares as may be issued
upon conversion or exchange of Debt Securities, Preferred Stock or
Depositary Shares, as the case may be. No separate consideration will
be received for any shares of Preferred Stock, Common Stock or
Depositary Shares so issued upon such conversion or exchange.
(5)The aggregate amount of Common Stock registered hereunder is limited to
that which is permissible under Rule 415(a)(4) of the Securities Act.
===============================================================================
<PAGE>
<PAGE>
PURSUANT TO RULE 429 OF THE GENERAL RULES AND REGULATIONS UNDER THE
SECURITIES ACT THE PROSPECTUS INCLUDED IN THIS REGISTRATION STATEMENT IS A
COMBINED PROSPECTUS WHICH ALSO RELATES TO REGISTRATION STATEMENT NO.
33-50407, PREVIOUSLY FILED BY THE REGISTRANT ON FORM S-3. THIS REGISTRATION
STATEMENT ALSO CONSTITUTES POST-EFFECTIVE AMENDMENT NO. 1 WITH RESPECT TO
SUCH REGISTRATION STATEMENT, AND SUCH POST-EFFECTIVE AMENDMENT SHALL
HEREAFTER BECOME EFFECTIVE CONCURRENTLY WITH EFFECTIVENESS OF THIS
REGISTRATION STATEMENT IN ACCORDANCE WITH SECTION 8(C) OF THE SECURITIES ACT.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OR UNTIL THE REGISTRATION STATEMENT SHALL
BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
<PAGE>
<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement
becomes effective. This prospectus shall not constitute an offer to sell or
the solicitation of an offer to buy nor shall there be any sale of these
securities in any State in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities laws of
any such State.
SUBJECT TO COMPLETION MAY 20, 1994
PROSPECTUS
$800,000,000
LORAL CORPORATION
[LOGO]
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
DEPOSITARY SHARES
WARRANTS TO PURCHASE DEBT SECURITIES
WARRANTS TO PURCHASE EQUITY SECURITIES
Loral Corporation (the "Company") may offer and issue from time to time,
together or separately, (1) its unsecured debt securities ("Debt
Securities"), which may be either senior ("Senior Securities") or
subordinated ("Subordinated Securities"), (2) its preferred stock, par value
$1.00 per share ("Preferred Stock"), (3) its common stock, par value $0.25
per share ("Common Stock"), (4) depositary shares ("Depositary Shares")
representing entitlement to all rights and preferences of a fraction of a
share of Preferred Stock of a specified series, (5) warrants to purchase Debt
Securities ("Debt Warrants") and (6) warrants to purchase its Common Stock or
Preferred Stock ("Equity Warrants"), all on terms to be determined at the
time of the offering. The Debt Warrants and the Equity Warrants are sometimes
collectively referred to herein as the "Warrants," and the Debt Securities,
Warrants, Preferred Stock, Depositary Shares and Common Stock are sometimes
collectively referred to herein as the "Securities." Securities with an
aggregate issue price of up to $800,000,000 (or the equivalent in foreign
denominated currency or units based on or relating to foreign currencies,
including European Currency Units) may be issued, in one or more series,
under this Prospectus and a separate Prospectus Supplement.
The Senior Securities will be unsecured and will rank equally with all
other unsecured and unsubordinated indebtedness of the Company. The
Subordinated Securities will be unsecured and will be subordinated in right
of payment to the prior payment in full of the Senior Indebtedness of the
Company.
The accompanying Prospectus Supplement sets forth, with respect to each
series or issue of Securities for which this Prospectus and the Prospectus
Supplement are being delivered ("Offered Securities"): (1) the terms of any
Debt Securities offered (and, if Debt Warrants are being offered, similar
information with respect to the Debt Securities that may be purchased upon
exercise of each Debt Warrant) including, where applicable, their title,
ranking, aggregate principal amount, purchase price, maturity, rate of any
interest (or manner of calculation and time of payment thereof), any
redemption or repayment terms, the currency or currencies, currency unit or
units or composite currency or currencies in which such Debt Securities will
be denominated or payable, any index, formula or other method pursuant to
which principal, premium or interest may be determined, terms of
subordination of Subordinated Securities, any terms for the conversion or
exchange thereof and the form of such Debt Securities (which may be in
registered, bearer or global form); (2) the terms of any Debt Warrants or
Equity Warrants offered, including the exercise price, detachability,
expiration date and other terms; (3) the terms of any Preferred Stock or
Depositary Shares offered, including the specific designations and dividend,
redemption, voting and other rights not described in this Prospectus, and any
terms for the conversion or exchange thereof; and (4) any initial public
offering price, the purchase price and net proceeds to the Company, the
listing (if any) on a securities exchange, the name of and compensation to
each dealer, underwriter or agent (if any) involved in the sale of the
Offered Securities and the other specific terms of such offering. The
managing underwriters with respect to each series sold to or through
underwriters will be named in the accompanying Prospectus Supplement.
------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------
<PAGE>
Offered Securities may be offered through dealers, underwriters or agents
designated from time to time, as set forth in the accompanying Prospectus
Supplement. Net proceeds to the Company will be the purchase price in the
case of a dealer, the public offering price less discount in the case of an
underwriter or the purchase price less commission in the case of an agent--in
each case, less other expenses attributable to the issuance and distribution
of the Offered Securities. The Company may also sell Offered Securities
directly to investors on its own behalf. In the case of sales made directly
by the Company, no commission will be payable. See "Plan of Distribution" for
possible indemnification arrangements for dealers, underwriters and agents.
May 20, 1994
<PAGE>
<PAGE>
AVAILABLE INFORMATION
Loral Corporation ("Loral" or the "Company") is subject to the
informational requirements of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and in accordance therewith files reports, proxy
statements and other information with the Securities and Exchange Commission
(the "SEC"). Such reports, proxy statements and other information filed by
the Company with the SEC can be inspected and copied at public reference
facilities maintained by the SEC at 450 Fifth Street, N.W., Washington, D.C.
20549; 7 World Trade Center, New York, New York 10048; and Northwestern
Atrium Center, 500 West Madison Street, Chicago, Illinois 60661. Copies of
such material can be obtained from the Public Reference Section of the SEC at
450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed rates. The
Company's Common Stock and certain of its Debt Securities are listed on the
New York Stock Exchange. Reports, proxy statements and other information
concerning the Company can be inspected and copied at the Library of the New
York Stock Exchange at 20 Broad Street, New York, New York 10005.
This Prospectus constitutes a part of two registration statements on Form
S-3 (herein, together with all exhibits thereto, referred to as the
"Registration Statements") filed by the Company with the SEC under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to
the Securities offered hereby. This Prospectus does not contain all of the
information set forth in the Registration Statements, certain parts of which
are omitted in accordance with the rules and regulations of the SEC.
Reference is hereby made to the Registration Statements and related exhibits
for further information with respect to the Company and the Securities
offered hereby. Statements contained herein concerning the provisions of
documents are necessarily summaries of such documents, and each statement is
qualified in its entirety by reference to the copy of the applicable document
filed with the SEC.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents, each of which was previously filed by the Company
with the SEC, are incorporated herein by reference: (a) the Company's Annual
Report on Form 10-K for the fiscal year ended March 31, 1994; (b) the
Company's Proxy Statement for its 1993 Annual Meeting of Stockholders; and
(c) the Company's Form 8-K/A, dated May 12, 1994.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering of any series of Securities shall be
deemed to be incorporated by reference herein and to be a part hereof from
the date of the filing of such reports and documents. Any statement contained
in a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Prospectus
to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such statement so modified
or superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a
Prospectus is delivered upon written or oral request of such person, a copy
of any documents incorporated herein by reference (other than exhibits to
such documents unless such exhibits are specifically incorporated by
reference into the documents that this Prospectus incorporates). Requests for
such copies should be directed to Loral Corporation, Attention: Secretary,
600 Third Avenue, New York, New York 10016 (telephone: (212) 697-1105).
2
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<PAGE>
THE COMPANY
Loral is a leading supplier of defense electronics systems, components and
services to U.S. and allied defense departments. The Company's principal
business areas are: electronic combat; training and simulation; command,
control, communications and intelligence ("C(3)I")/reconnaissance; tactical
weapons; systems integration; and space systems. The Company has achieved an
incumbent position on a wide range of existing programs through internal
growth and development and a series of acquisitions focused on its core
technologies. Loral's business strategy is to emphasize upgrades of existing
weapons systems, concentrate on further developing its core of advanced
technologies, generate an increasing proportion of its sales from foreign
customers and selectively extend the Company's proprietary technologies into
non-military applications, such as systems integration, satellite-based
telecommunications, medical diagnostic imaging systems, network management,
data archiving, and information systems and services.
Loral was incorporated in the State of New York in 1948. Its principal
executive offices are located at 600 Third Avenue, New York, New York 10016,
and its telephone number is (212) 697-1105. Unless the context otherwise
indicates, the terms "Company" and "Loral" refer to Loral and its
subsidiaries.
USE OF PROCEEDS
Except as otherwise described in the applicable Prospectus Supplement, the
Company intends to use the net proceeds from the sale of the Securities for
general corporate purposes.
RATIO OF EARNINGS TO FIXED CHARGES
In computing the ratio of earnings to fixed charges, earnings consist of:
income from continuing operations before income taxes, minority interest and
equity in net income (loss) of affiliate; fixed charges excluding capitalized
interest; and amortization of capitalized interest. Fixed charges consist of:
interest expense; capitalized interest; amortization of debt expense and that
portion of rent expense (30%) deemed representative of the interest factor.
<TABLE>
<CAPTION>
FOR THE FISCAL YEARS ENDED MARCH 31,
--------------------------------------
1994 1993 1992 1991 1990
------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C>
Ratio of earnings to
fixed charges
(unaudited)............. 6.42x 4.74x 4.22x 3.30x 3.49x
</TABLE>
DESCRIPTION OF SECURITIES
DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms and provisions
of the Debt Securities to which any Prospectus Supplement may relate. The
particular terms of the Debt Securities offered by any Prospectus Supplement
and the extent to which such general provisions may apply will be described
in a Prospectus Supplement relating to such Debt Securities. The Senior
Securities will be issued under an Indenture dated as of September 1, 1993
(the "Senior Indenture"), between the Company and Continental Bank, National
Association, as trustee (the "Senior Trustee"). The Subordinated Securities
will be issued under an Indenture dated as of May 1, 1994 (the "Subordinated
Indenture"), between the Company and The Bank of New York, as trustee (the
"Subordinated Trustee"). The term "Trustee" as used herein refers to either
the Senior Trustee or the Subordinated Trustee, as appropriate. The forms of
the Senior Indenture and the Subordinated Indenture (sometimes referred to
herein collectively as the "Indentures" and individually as an "Indenture")
have been filed as exhibits to the Registration Statements of which this
Prospectus is a part. The following summaries of certain provisions of the
Indentures and the Debt Securities do not purport to be complete and such
summaries are subject to the detailed provisions of the Indentures to which
reference is hereby made for a full description of such provisions, including
the definition of certain terms used herein, and for other information
regarding the Debt Securities. Numerical references in parentheses below are
to sections in the Indentures. Wherever particular sections or defined terms
of the Indentures are referred to, such sections or defined terms are
3
<PAGE>
<PAGE>
incorporated herein by reference as part of the statement made, and the
statement is qualified in its entirety by such reference. The Debt Securities
offered by this Prospectus and the accompanying Prospectus Supplement are
referred to herein as the "Offered Debt Securities."
PROVISIONS APPLICABLE TO BOTH INDENTURES
General. The Indentures provide that Debt Securities may be issued from
time to time in one or more series and may be denominated and payable in
foreign currencies or units based on or relating to foreign currencies,
including European Currency Units ("ECUs"). Special United States federal
income tax considerations applicable to any Debt Securities so denominated
are described in the relevant Prospectus Supplement.
Reference is made to the Prospectus Supplements for the following terms of
and information relating to the Offered Debt Securities (to the extent such
terms are applicable to such Debt Securities): (i) the specific designation
of such Debt Securities and whether such Debt Securities will be Senior
Securities or Subordinated Securities, aggregate principal amount, purchase
price and denomination; (ii) the currency in which such Offered Debt
Securities are denominated and/or in which principal (and premium, if any)
and/or any interest will or may be payable; (iii) the date or dates of
maturity; (iv) the interest rate or rates or the method by which such rate
will be determined, if any; (v) the dates on which any such interest, if any,
will be payable; (vi) the place or places where the principal of, premium, if
any, and interest, if any, on the Offered Debt Securities will be payable;
(vii) any redemption, repayment or sinking fund provisions; (viii) whether
the Offered Debt Securities will be issuable in registered form or bearer
form ("Bearer Debt Securities") or both and, if Bearer Debt Securities are
issuable, any restrictions applicable to the exchange of one form for another
and to the offer, sale and delivery of Bearer Debt Securities; (ix) in the
case of Subordinated Securities, any provisions in modification of, in
addition to or in lieu of the provisions concerning subordination contained
in Article Thirteen of the Subordinated Indenture that will be applicable to
such Debt Securities; (x) whether such Debt Securities will be convertible
into or exchangeable for shares of Common Stock or other Securities and, if
so, the terms and conditions upon which such Debt Securities will be so
convertible or exchangeable, including the conversion price or exchange
ratio, the conversion or exchange period (or the method of determining the
same) and the provisions for adjustment of the conversion price or the
exchange ratio; (xi) any applicable United States federal income tax
consequences, including whether and under what circumstances the Company will
pay additional amounts on Offered Debt Securities held by a person (as
defined in the Indentures) who is not a citizen of, or organized under the
laws of, the United States 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 Offered Debt Securities rather than pay such additional
amounts; and (xii) any other specific terms of the Offered Debt Securities,
including any additional events of default or covenants provided for with
respect to such Offered Debt Securities, and any terms which may be required
by or advisable under applicable laws or regulations.
The Debt Securities will be unsecured obligations of the Company. The
Senior Securities will be unsubordinated and will rank pari passu with all
other unsecured and unsubordinated indebtedness of the Company. The
Subordinated Securities will be subordinated in right of payment to the prior
payment in full of the Senior Indebtedness of the Company, as described under
"Subordinated Indenture Provisions--Subordination."
Debt Securities may be presented for exchange and registered Debt
Securities may be presented for transfer in the manner, at the places and
subject to the restrictions set forth in the Debt Securities, the applicable
Indenture and the Prospectus Supplement. Such services will be provided
without charge, other than any tax or other governmental charge payable in
connection therewith, but subject to the limitations provided in the
applicable Indenture. Bearer Debt Securities and the coupons, if any,
appertaining thereto will be transferable by delivery.
Debt Securities may bear interest at a fixed rate or a floating rate. Debt
Securities bearing no interest or interest at a rate that at the time of
issuance is below the prevailing market rate will be sold at a
4
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<PAGE>
discount below their stated principal amount. Special United States federal
income tax considerations applicable to any such discounted Debt Securities,
or to certain Debt Securities issued at par which are treated as having been
issued at a discount for United States federal income tax purposes, are
described in the relevant Prospectus Supplement.
Debt Securities may be issued, from time to time, with the principal
amount payable on any principal payment date, or the amount of interest
payable on any interest payment date, to be determined by reference to one or
more currency exchange rates, commodity prices, equity indices or other
factors. Holders of such Debt Securities may receive a principal amount on
any principal payment date, or a payment of interest on any interest payment
date, that is greater than or less than the amount of principal or interest
otherwise payable on such dates, depending upon the value on such dates of
the applicable currency, commodity, equity index or other factor. Information
as to the methods for determining the amount of principal or interest payable
on any date, the currencies, commodities, equity indices or other factors to
which the amount payable on such date is linked and certain additional tax
considerations is set forth in the Prospectus Supplement.
The provisions of the Indentures do not limit the ability of the Company
to incur additional indebtedness and do not afford holders of the Debt
Securities protection in the event of a highly leveraged or other transaction
involving the Company that may adversely affect holders of the Debt
Securities.
Global Securities. The registered Debt Securities of a series may be
issued in the form of one or more fully registered global securities (a
"Registered Global Security") that will be deposited with a depositary (a
"Depositary") or with a nominee for a Depositary identified in the Prospectus
Supplement relating to such series and registered in the name of the
Depositary or a nominee thereof. In such case, one or more Registered Global
Securities will be issued in a denomination or aggregate denominations equal
to the portion of the aggregate principal amount of registered Debt
Securities of the series to be represented by such Registered Global Security
or Securities. Unless and until it is exchanged in whole for Debt Securities
in definitive registered form, a Registered Global Security may not be
transferred except as a whole by the Depositary for such Registered Global
Security 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 of such Depositary or a nominee
of such successor.
The specific terms of the depositary arrangement with respect to any
portion of a series of Debt Securities to be represented by a Registered
Global Security will be described in the Prospectus Supplement relating to
such series. The Company anticipates that the following provisions will apply
to all depositary arrangements.
Ownership of beneficial interests in a Registered Global Security will be
limited to persons that have accounts with the Depositary for such Registered
Global Security ("participants") or persons that may hold interests through
participants. Upon the issuance of a beneficial interest in a Registered
Global Security, the Depositary for such Registered Global Security will
credit, on its book-entry registration and transfer system, the participants'
accounts with the respective principal amounts of the Debt Securities
represented by such Registered Global Security beneficially owned by such
participants. The accounts to be credited shall be designated by any dealers,
underwriters or agents participating in the distribution of such Debt
Securities. Ownership of beneficial interests in such Registered Global
Security will be shown on, and the transfer of such ownership interests will
be effected only through, records maintained by the Depositary for such
Registered Global Security (with respect to interests of participants) and on
the records of participants (with respect to interests of persons holding
through participants). The laws of some states may require that certain
purchasers of securities take physical delivery of such securities in
definitive form. Such laws may impair the ability to own, transfer or pledge
beneficial interests in Registered Global Securities.
So long as the Depositary for a Registered Global Security, or its
nominee, is the registered owner of such Registered Global Security, such
Depositary or such nominee, as the case may be, will be considered the sole
owner or holder of the Debt Securities represented by such Registered Global
Security for all purposes under the applicable Indenture. Except as set forth
below, owners of beneficial interests in a Registered Global Security will
not be entitled to have their beneficial interests in such
5
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<PAGE>
Registered Global Security registered in their names, will not receive or be
entitled to receive physical delivery of such beneficial interests in
definitive form and will not be considered the owners or holders of Debt
Securities under the applicable Indenture. Accordingly, each person owning a
beneficial interest in a Registered Global Security must rely on the
procedures of the Depositary for such Registered Global Security and, if such
person is not a participant, on the procedures of the participant through
which such person owns its interest, to exercise any rights of a holder under
the applicable Indenture. The Company understands that under existing
industry practices, if the Company requests any action of holders or if an
owner of a beneficial interest in a Registered Global Security desires to
give or to take any action which a holder is entitled to give or to take
under the applicable Indenture, the Depositary for such Registered Global
Security would authorize the participants holding the relevant beneficial
interests to give or to take such action, and such participants would
authorize beneficial owners owning through such participants to give or to
take such action or would otherwise act upon the instructions of beneficial
owners holding through them.
Principal, premium, if any, and interest payments on Debt Securities
represented by a Registered Global Security registered in the name of a
Depositary or its nominee will be made to such Depositary or its nominee, as
the case may be, as the registered owner of such Registered Global Security.
None of the Company, the Trustee or any other agent of the Company or agent
of the Trustee will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests in such Registered Global Security or for maintaining, supervising
or reviewing any record relating to such beneficial ownership interests.
The Company expects that the Depositary for any Debt Securities
represented by a Registered Global Security, upon receipt of any payment of
principal, premium or interest in respect of such Registered Global Security,
will immediately credit participants' accounts with payments in amounts
proportionate to their respective beneficial interests in such Registered
Global Security as shown on the records of such Depositary. The Company also
expects that payments by participants to owners of beneficial interests in
such Registered Global Security held through such participants will be
governed by standing customer instructions and customary practices, as is now
the case with the securities held for the accounts of customers in bearer
form or registered in "street name," and will be the responsibility of such
participants.
If the Depositary for any Debt Securities represented by a Registered
Global Security is at any time unwilling or unable to continue as Depositary
or ceases to be a clearing agency registered under the Exchange Act, and a
successor Depositary registered as a clearing agency under the Exchange Act
is not appointed by the Company within 90 days, the Company will issue such
Debt Securities in definitive form in exchange for such Registered Global
Security. In addition, the Company may at any time and in its sole discretion
determine not to have any of the Debt Securities of a series represented by
one or more Registered Global Securities and, in such event, will issue Debt
Securities of such series in definitive form in exchange for all of the
Registered Global Security or Securities representing such Debt Securities.
Any Debt Securities issued in definitive form in exchange for a Registered
Global Security will be registered in such name or names as the Depositary
shall instruct the Trustee. It is expected that such instructions will be
based upon directions received by the Depositary from participants with
respect to ownership of beneficial interests in such Registered Global
Security.
The Debt Securities of a series may also be issued in the form of one or
more bearer global debt securities (a "Bearer Global Security") that will be
deposited with a common depositary for Euro-clear and CEDEL, or with a
nominee for such depositary identified in the Prospectus Supplement relating
to such series. The specific terms and procedures, including the specific
terms of the depositary arrangement, with respect to any portion of a series
of Debt Securities to be represented by a Bearer Global Security will be
described in the Prospectus Supplement relating to such series.
Ranking. There are no limitations in either Indenture on the amount of
indebtedness which may rank pari passu with the Debt Securities or on the
amount of indebtedness that may be incurred, or capital stock that may be
issued, by any of the Company's Subsidiaries; provided, that the incurrence
of secured indebtedness by the Company and its Subsidiaries is subject to the
limitations set forth in the "Limitations on Liens" covenant of the Senior
Indenture. (Section 3.6 of the Senior Indenture)
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Merger and Consolidation. The Company may not consolidate with, merge
into, or transfer or lease all or substantially all of its assets to, any
person unless (i) that person is a corporation organized and existing under
the laws of the United States, any state thereof or the District of Columbia,
(ii) the person, if a transferee or lessee, assumes by supplemental indenture
all the Company's obligations under the Debt Securities and the applicable
Indenture, (iii) immediately after the transaction, no Event of Default
exists under the applicable Indenture and no circumstance exists which, after
notice or lapse of time (other than any time period applicable to limitations
on liens and limitations on sales and leasebacks) or both, would become an
Event of Default under the applicable Indenture; and (iv) the Company has
delivered to the Trustee an Opinion of Counsel stating that such
consolidation, merger, transfer or lease complies with the applicable
Indenture. (Section 9.1 of the Senior and Subordinated Indentures)
Events of Default. Each Indenture provides that an Event of Default, with
respect to the Debt Securities of any series outstanding under such
Indenture, shall have occurred and be continuing in the event of: (a) default
in the payment of any installment of interest upon any of such series of Debt
Securities as and when the same shall become due and payable, and continuance
of such default for a period of 30 days; (b) default in the payment of all or
any part of the principal on any of such series of Debt Securities as and
when the same shall become due and payable either at maturity, upon any
redemption, by declaration or otherwise; (c) failure on the part of the
Company to observe or perform any other covenant or agreement relating to
such series of Debt Securities (other than a covenant or warranty in respect
of such Debt Securities, a default in the performance or breach of which is
specifically dealt with elsewhere in the applicable Indenture) for a period
of 90 days after the date on which the Company received written notice
specifying such failure from the Trustee or the holders of at least 25% of
the aggregate principal amount of Outstanding Debt Securities of all series
affected thereby; (d) certain events of bankruptcy, insolvency or
reorganization; or (e) any other Event of Default provided in the
supplemental indenture under which such series of Debt Securities is issued
or in the form of Debt Security for such series.
Each Indenture provides that (i) if an Event of Default described in the
foregoing clauses (a), (b), (c) or (e) (if the Event of Default under clause
(c) or (e) is with respect to less than all series of Debt Securities then
Outstanding) shall have occurred and be continuing, either the applicable
Trustee or the holders of not less than 25% in principal amount of the Debt
Securities of all affected series (treated as one class) then Outstanding may
then declare the principal of all Debt Securities of all such affected series
and interest accrued thereon to be due and payable immediately; and (ii) if
an Event of Default described in the foregoing clauses (c), (d) or (e) (if
the Event of Default under clause (c) or (e) is with respect to all series of
Debt Securities then Outstanding) shall have occurred and be continuing,
either the applicable Trustee or the holders of not less than 25% in
principal amount of all Debt Securities then outstanding (treated as one
class) may declare the principal of all Debt Securities and interest accrued
thereon to be due and payable immediately. (Section 5.1 of the Senior and
Subordinated Indentures)
Upon certain conditions the foregoing declarations may be annulled and
past defaults may be waived (except a continuing default in payment of
principal of, or interest on, such Debt Securities) by the holders of a
majority in principal amount of the Debt Securities of all such affected
series then outstanding. (Section 5.1 of the Senior and Subordinated
Indentures)
Subject to certain limitations, the holders of a majority in principal
amount of the Outstanding Debt Securities (treated as one class) may direct
the time, method and place of conducting any proceeding for any remedy
available to the applicable Trustee, or exercising any trust or power
conferred on the applicable Trustee. (Section 5.9 of the Senior and
Subordinated Indentures)
Each Indenture provides that no holder of Debt Securities may institute
any action under the applicable Indenture (except actions for payment of
overdue principal or interest) unless such holder previously shall have given
to the applicable Trustee written notice of default and continuance thereof
and unless the holders of not less than 25% in principal amount of the Debt
Securities of each affected series (treated as one class) then Outstanding
shall have requested the applicable Trustee to institute such action and
shall have offered the applicable Trustee reasonable indemnity, the
applicable Trustee shall not have
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instituted such action within 60 days of such request and the applicable
Trustee shall not have received direction inconsistent with such written
request by the holders of a majority in principal amount of the Debt
Securities of each affected series (treated as one class). (Section 5.6 of
the Senior and Subordinated Indentures)
Each Indenture contains a covenant that the Company will file annually
with the applicable Trustee a certificate of no default or a certificate
describing any default that exists. (Section 3.5 of the Senior and
Subordinated Indentures)
Defeasance. Each Indenture provides for the defeasance of the Debt
Securities and of the covenants applicable thereto under certain prescribed
conditions.
Modification of the Indenture. Each Indenture provides that the Company
and the Trustee may enter into supplemental indentures without the consent of
the holders of Debt Securities to: (a) in the case of Senior Securities,
secure any Senior Securities, (b) evidence the assumption by a successor
corporation of the obligations of the Company, (c) add covenants for the
protection of the holders of Debt Securities, (d) cure any ambiguity or
correct any inconsistency in the Indenture, (e) establish the forms or terms
of Debt Securities of any series and (f) evidence the acceptance of
appointment by a successor trustee. (Section 8.1 of the Senior and
Subordinated Indentures)
Each Indenture also contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
principal amount of Debt Securities of all series (voting as one class) then
Outstanding and affected, to add any provisions to, or change in any manner,
or eliminate any of the provisions of the applicable Indenture or modify in
any manner the rights of the holders of the Debt Securities of each series so
affected; provided that the Company and the Trustee may not, without the
consent of the holder of each Outstanding Debt Security affected thereby, (a)
extend the final maturity of the prinicipal of any Debt Security or reduce
the principal amount thereof or reduce the rate or extend the time of payment
of interest thereon or reduce any amount payable on the redemption thereof or
change the currency in which the principal thereof (including any amount in
respect of original issue discount) or interest thereon is payable or reduce
the amount of any original issue discount security payable upon acceleration
or provable in bankruptcy or alter certain provisions of the applicable
Indenture relating to Debt Securities not denominated in U.S. dollars or
impair the right to institute suit for the enforcement of any payment on any
Debt Security when due, (b) reduce the aforesaid percentage in principal
amount of Debt Securities of any series, the consent of the holders of which
is required for any such modification, (c) in the case of Subordinated
Securities, modify any of the provisions of the Subordinated Indenture
relating to the subordination of the Debt Securities issued thereunder in a
manner adverse to the holders thereof or (d) modify any of the foregoing
provisions except to increase the aforesaid percentage or to provide that
other provisions of the applicable Indenture may not be amended or waived
without the consent of the holder of each Debt Security affected thereby.
(Section 8.2 of the Senior and Subordinated Indentures)
In addition, unless otherwise specified in the applicable Prospectus
Supplement, no supplement to the Subordinated Indenture may amend, modify or
otherwise change the terms of any outstanding Subordinated Securities in a
manner that adversely affects the rights of any holder of Senior Indebtedness
under Article Thirteen of the Subordinated Indenture (described below under
the caption "Subordinated Indenture Provisions--Subordination"), without the
consent of such holder of Senior Indebtedness. (Section 8.2 of the
Subordinated Indenture)
The Trustees. Continental Bank, National Association is the Senior
Trustee under the Senior Indenture and The Bank of New York is the
Subordinated Trustee under the Subordinated Indenture. Each Trustee may from
time to time provide commercial banking services to the Company in the
ordinary course of its business.
SENIOR INDENTURE PROVISIONS
The following restrictions apply to the Senior Securities unless the terms
of the Offered Senior Securities provide otherwise. Capitalized terms used
herein but not otherwise defined herein shall have the respective meanings
ascribed to such terms in the Senior Indenture.
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Certain Definitions. The terms set forth below are defined in Section 1.1
of the Senior Indenture as follows:
"Attributable Debt" means the present value (discounted at the Composite
Rate) of the obligation of the lessee in a Sale and Leaseback Transaction for
rental payments (excluding from such rental payments, however, amounts
payable with respect to income and property taxes, insurance, maintenance,
and other similar charges and contingent rents, such as those based on sales)
during the remaining term of the lease (including any period for which such
lease has been extended).
"Composite Rate" means, at any time, the rate of interest, per annum,
compounded semiannually, equal to the sum of the products obtained by
multiplying (a) the respective rates of interest borne by each of the Debt
Securities Outstanding under the applicable Indenture by (b) the percentage
of the aggregate principal amount of all the Debt Securities then Outstanding
under the applicable Indenture represented by such Debt Security. Such rates
of interest shall be the rate specified on the face of each of the Debt
Securities, provided that, in the case of the Debt Securities with variable
rates of interest, the interest rate to be used in calculating the Composite
Rate shall be the interest rate applicable to such Debt Securities at the
beginning of the year in which the Composite Rate is being determined and,
provided, further, that, in the case of Debt Securities which do not bear
interest, the interest rate to be used in calculating the Composite Rate
shall be a rate equal to the yield to maturity on such Debt Securities,
calculated at the time of issuance of such Debt Securities. For the purposes
of this calculation, the aggregate principal amounts of Outstanding Debt
Securities that are denominated in a Foreign Currency or ECU shall be
calculated in accordance with the terms of the applicable Indenture.
"Consolidated Net Tangible Assets" means the total of all the assets
appearing on the consolidated balance sheet of the Company and its
Subsidiaries, less the following: (a) liabilities, (b) intangible assets,
including, but without limitation, such items as goodwill, trademarks, trade
names, patents and unamortized debt discount and expense carried as an asset
on said balance sheet, and (c) appropriate adjustment on account of minority
interests of other persons holding stock in any Subsidiary. Consolidated Net
Tangible Assets shall be determined in accordance with generally accepted
accounting principles applied on a consistent basis and shall be determined
by reference to the most recent publicly available quarterly or annual, as
the case may be, consolidated balance sheet of the Company.
"Mortgage" means any mortgage, pledge, lien, encumbrance, charge or
security interest of any kind.
"Principal Property" means any manufacturing plant or facility or any
research facility or corporate offices owned or leased by the Company or any
Subsidiary, or any interest of the Company or any Subsidiary in such property
(in each case including the real estate related thereto) located within the
United States of America, except any such property or interest which, in the
opinion of the Company's Board of Directors, is not a principal property or
interest in relation to the activities of the Company and its Subsidiaries as
a whole.
"Restricted Subsidiary" means a corporation which is a Subsidiary and
which owns or leases a Principal Property.
"Subsidiary" means any corporation more than 50% of the outstanding Voting
Securities of which shall at the time be owned, directly or indirectly, by
the Company that the Company actually consolidates for financial reporting
purposes.
Limitation on Liens. The Senior Securities are unsecured general
obligations of the Company. The Senior Indenture, however, imposes certain
restrictions on the Company's ability to secure its or another's Debt by
giving Mortgages on certain types of property owned by (or leased by) the
Company or any Subsidiary. Except as generally described below, neither the
Company nor any Subsidiary may create, assume, incur or suffer to exist any
Mortgage upon (a) any capital stock of any Restricted Subsidiary which is
owned by the Company or any other Subsidiary, (b) any indebtedness of any
Restricted Subsidiary owing to the Company or any other Subsidiary or (c) any
Principal Property, without securing the Senior Securities equally and
ratably with, or prior to, such secured Debt.
The restrictions referred to in (a) and (b) above do not apply to any
Mortgage (or certain extensions, renewals or replacements thereof) upon
capital stock or indebtedness: (i) of any corporation, if such
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Mortgage existed at the time of acquisition of such stock or indebtedness;
(ii) of or owned by any corporation, if such Mortgage existed at the time
such corporation became a Restricted Subsidiary; (iii) of a Restricted
Subsidiary to secure the payment of all or part of the purchase price thereof
or to secure any Debt incurred at any time through the 180th day after the
acquisition thereof for the purpose of financing all or part of the purchase
price thereof or to secure any indebtedness incurred for the purpose of
financing all or part of the purchase price or the cost of construction or
improvement of any property to be purchased, constructed or improved in whole
or in part by or for the Company, the Restricted Subsidiary or any other
Subsidiary; (iv) of a Restricted Subsidiary in favor of the United States of
America or any State thereof, or any other country, or any instrumentality of
any of them, arising in connection with contracts or subcontracts with any
such entity, or contracts with any person relating to a prime contract or
subcontract of such person with any such entity, including Mortgages to
secure partial, progress, advance or other like payments pursuant to any
contract on statute; (v) of a Restricted Subsidiary securing Debt of a
Subsidiary owing to the Company or to one or more other Subsidiaries; (vi) of
a Restricted Subsidiary existing at the date of the Senior Indenture; or
(vii) of any corporation assumed in connection with a consolidation or merger
with, or an acquisition of all or substantially all of the capital stock or
indebtedness of, a corporation, if any such Mortgage existed before such
consolidation, merger or acquisition and did not apply to any capital stock
or indebtedness owned by the Company immediately prior to such consolidation,
merger or acquisition. The restriction referred to in (c) above does not
apply to any Mortgage (or certain extensions, renewals or replacements
thereof): (i) upon property owned or leased by any corporation, if such
Mortgage existed at the time such corporation becomes a Restricted
Subsidiary; (ii) upon property existing at the time of acquisition thereof or
to secure the payment of all or part of the purchase price or the cost of
construction or improvement thereof or to secure any Debt incurred at any
time through the 180th day after the acquisition of such property for the
purpose of financing all or part of the purchase price or the cost of
construction or improvement thereof; (iii) on property of the Company or any
Subsidiary in favor of the United States of America or any State thereof, or
any other country, or any instrumentality of any of them, arising in
connection with contracts or subcontracts with any such entity, or contracts
with any person relating to a prime contract or subcontract of such person
with any such entity, including Mortgages to secure partial, progress,
advance or other like payments pursuant to any contract or statute; (iv)
securing Debt of a Subsidiary owing to the Company or to one or more other
Subsidiaries; (v) existing at the date of the Senior Indenture; or (vi)
assumed in connection with a consolidation or merger with, or an acquisition
of all or substantially all the properties of, a corporation, if any such
Mortgage existed before such consolidation, merger or acquisition and did not
apply to any property owned by the Company immediately before such
consolidation, merger or acquisition. Notwithstanding the foregoing
restrictions, the Company and any Subsidiary may, without securing the Senior
Securities, create, assume or incur Mortgages that would otherwise be subject
to the restrictions, provided that, after giving effect thereto, the
aggregate amount of all Debt secured by such Mortgages ("Excess Secured
Debt") plus all Attributable Debt of the Company and its Subsidiaries in
respect of Sale and Leaseback Transactions (other than Sale and Leaseback
Transactions in connection with which an amount has been or is to be applied
to the retirement of Funded Debt as described under "Restrictions on Sale and
Leaseback" below) would not exceed the greater of $300,000,000 or 10% of
Consolidated Net Tangible Assets, and may suffer the same to exist. (Section
3.6 of the Senior Indenture)
Restrictions on Sale and Leaseback. The Senior Indenture provides that
neither the Company nor any Subsidiary may sell and lease back any Principal
Property owned by the Company or any Subsidiary unless an amount equal to the
Attributable Debt in respect of such transaction is applied within 120 days
to the retirement of Funded Debt which is not subordinated in right of
payment to the Senior Securities, provided that the amount of such required
retirement shall be reduced by the principal amount of any instruments
evidencing Funded Debt (which may include the Senior Securities) delivered
within 120 days after such sale to the applicable trustee for retirement and
cancellation, other than instruments retired by payment on maturity or
pursuant to mandatory sinking fund or prepayment provisions. Notwithstanding
the foregoing limitations, the Company and any Subsidiary may, without
applying any funds to the retirement of Funded Debt, enter into a Sale and
Leaseback Transaction, provided that, after giving effect thereto, the
aggregate amount of all Attributable Debt of the Company and its Subsidiaries
in respect of
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Sale and Leaseback Transactions (other than Sale and Leaseback Transactions
in connection with which an amount has been or is to be applied to the
retirement of Funded Debt) plus Excess Secured Debt would not exceed the
greater of $300,000,000 or 10% of Consolidated Net Tangible Assets. (Section
3.7 of the Senior Indenture)
SUBORDINATED INDENTURE PROVISIONS
Subordination. The Subordinated Securities will be subordinate and junior
in right of payment to the prior payment in full of all Senior Indebtedness
of the Company. "Senior Indebtedness" means the principal of (and premium, if
any) and interest (including, without limitation, any post-petition interest)
on any indebtedness, whether outstanding at the date of the Subordinated
Indenture or thereafter created or incurred, which is for (a) money borrowed
by the Company, including, without limitation, the Company's (i) five year
$1.2 billion revolving credit facility, (ii) 364-day $500 million revolving
credit facility, (iii) 9 1/8 % Senior Debentures due 2022, (iv) 8 3/8 %
Senior Debentures due 2023, (v) 7% Senior Debentures due 2023 and (vi)
commercial paper borrowings, (b) obligations of the Company evidencing the
purchase price for acquisitions by the Company or a subsidiary other than in
the ordinary course of business, (c) money borrowed by others and assumed or
guaranteed by the Company, (d) capitalized lease obligations of the Company,
(e) obligations under performance guarantees, support agreements and other
agreements in the nature thereof and (f) renewals, extensions, refundings,
amendments and modifications of any indebtedness, of the kind described in
the foregoing clauses (a), (b), (c), (d) and (e) or of the instruments
creating or evidencing such indebtedness, unless, in each case, by the terms
of the instrument creating or evidencing such indebtedness or such renewal,
extension, refunding, amendment and modification, it is provided that such
indebtedness is not senior in right of payment to the Securities.
In the event of any distribution of assets of the Company upon its
dissolution, winding up, liquidation or reorganization, the holders of Senior
Indebtedness shall first be paid in full in respect of principal, premium (if
any) and interest before any such payments are made on account of the
Subordinated Securities. In addition, in the event that (a) the Subordinated
Securities are declared due and payable because of an Event of Default (other
than under the circumstances described in the preceding sentence) or (b) any
default by the Company has occurred and is continuing in the payment of
principal, premium (if any), sinking funds or interest on any Senior
Indebtedness, then no payment shall be made on account of such Subordinated
Securities until all such payments due in respect of such Senior Indebtedness
has been paid in full; provided, however, that if the maturity of such Senior
Indebtedness shall not have been accelerated within a period of 180 days
after the date on which the holders of such Senior Indebtedness (or such
trustee) shall have first obtained written notice of such an event of default
from the Company, and subject to the preceding sentence, any such payment in
respect of the Subordinated Securities which shall have become, or shall
become, due and payable otherwise than by reason of acceleration of the
maturity of the Subordinated Securities following an Event of Default under
the Subordinated Indenture may be made so long as the maturity of such Senior
Indebtedness shall not have been accelerated. Failure to pay principal (and
premium, if any) or interest on the Subordinated Securities pursuant to the
prohibitions of Article Thirteen of the Subordinated Indenture shall
nevertheless constitute an Event of Default thereunder if not paid within the
periods specified therein.
The Company is a party to two Revolving Credit Loan Agreements which
provide for the making of revolving credit loans to the Company of $1.2
billion and $500 million, respectively, and other agreements (relating to
Senior Indebtedness of the Company or its subsidiaries) that contain
provisions that could, indirectly, limit the payment of principal of, premium
(if any) and interest on the Subordinated Securities in the event the Company
should no longer satisfy certain financial tests set forth in such loan or
other agreements.
If this Prospectus is being delivered in connection with the offering of a
series of Subordinated Securities, the applicable Prospectus Supplement or
the information incorporated by reference therein will set forth the
approximate amount of Senior Indebtedness outstanding as of a recent date.
Conversion and Exchange. If the Subordinated Securities will be
convertible into or exchangeable for Common Stock or other Securities, the
Prospectus Supplement relating thereto will set forth the terms and
conditions of such conversion or exchange, including the conversion price or
exchange ratio (or the
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method of calculating the same), the conversion or exchange period (or the
method of determining the same), whether conversion or exchange will be
mandatory or at the option of the holder or the Company, the events requiring
an adjustment of the conversion price or the exchange ratio and provisions
affecting conversion or exchange in the event of the redemption of such
Subordinated Securities. Such terms may also include provisions under which
the number of shares of Common Stock or the number of other Securities to be
received by the holders of such Subordinated Securities upon such conversion
or exchange would be calculated according to the market price of the Common
Stock or such other Securities as of a time stated in such Prospectus
Supplement.
DESCRIPTION OF DEBT WARRANTS
The Company may issue Debt Warrants to purchase Debt Securities
("Underlying Debt Securities"). Debt Warrants may be issued, either
separately or together with other Offered Securities, and will be issued
under a warrant agreement (each a "Debt Warrant Agreement") to be entered
into between the Company and the bank or trust company specified in the
applicable Prospectus Supplement ("Debt Warrant Agent"). Each Trustee is
expected to serve as Debt Warrant Agent with respect to any Debt Warrants to
purchase Underlying Debt Securities issued under its Indenture. The form of
the Debt Warrant Agreement has been filed with the SEC as an exhibit to the
Registration Statements. The following summary of the Debt Warrant Agreement
does not purport to be complete and is subject to, and qualified in its
entirety by reference to, the Debt Warrant Agreement, including the
definitions of certain terms therein.
General. Reference is made to the Prospectus Supplement for the specific
terms of the Debt Warrants in respect of which this Prospectus and the
Prospectus Supplement are being delivered ("Offered Debt Warrants"),
including the following:
(1) The title and aggregate number of such Offered Debt Warrants;
(2) The offering price of such Offered Debt Warrants;
(3) The title, aggregate principal amount and terms of the Underlying
Debt Securities that may be purchased upon exercise of such Offered Debt
Warrants (as specified under "Description of Debt Securities");
(4) The principal amount of Underlying Debt Securities that may be
purchased upon exercise of each such Offered Debt Warrant, and the price,
or the manner of determining the price, at which such principal amount may
be purchased upon such exercise;
(5) The time or times at which, or period or periods during which,
such Offered Debt Warrants may be exercised and the expiration date of
such Offered Debt Warrants;
(6) The terms of any right of the Company to redeem such Offered Debt
Warrants;
(7) Whether such Offered Debt Warrants are to be issued with (a) any
Offered Debt Securities and, if so, the title, aggregate principal amount
and terms of such Offered Debt Securities (as specified under "Description
of Debt Securities") and the number of such Offered Debt Warrants issued
with each $1,000 principal amount of such Offered Debt Securities (or such
other principal amount as may be established) or (b) any other Offered
Securities and, if so, the number and terms thereof;
(8) The date, if any, on and after which such Offered Debt Warrants
and such Offered Debt Securities or other Offered Securities will be
separately transferable; and
(9) A discussion of the federal income tax considerations applicable
to such Offered Debt Warrants and Underlying Debt Securities.
Certificates representing Debt Warrants ("Debt Warrant Certificates") may
be issued in registered or bearer form, or both, as set forth in the
applicable Prospectus Supplement, and will be exchangeable for new Debt
Warrant Certificates of different denominations. No service charge will be
made for any permitted transfer or exchange of Debt Warrant Certificates, but
the Company may require payment of
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any tax or other governmental charge payable in connection therewith. Debt
Warrants may be exercised at the corporate trust office of the Debt Warrant
Agent or any other office indicated in the Prospectus Supplement.
Exercise of Debt Warrants. Each Offered Debt Warrant will entitle the
holder thereof to purchase such amount of Underlying Debt Securities at the
exercise price set forth in, or calculable from, the Prospectus Supplement
relating to such Offered Debt Warrants. After the close of business on the
applicable expiration date, unexercised Offered Debt Warrants will become
void.
Offered Debt Warrants may be exercised by payment to the Debt Warrant
Agent of the applicable exercise price and by delivery to the Debt Warrant
Agent of the information specified on the Debt Warrant Certificate. Offered
Debt Warrants will be deemed to have been exercised upon receipt of the
exercise price, subject to the receipt by the Debt Warrant Agent, within five
business days thereafter, of the Debt Warrant Certificate or Certificates
evidencing such Offered Debt Warrants. Upon receipt of such payment and the
properly completed Debt Warrant Certificates at the corporate trust office of
the Debt Warrant Agent or any other office indicated in the applicable
Prospectus Supplement, the Company will, as soon as practicable, deliver the
amount of Underlying Debt Securities purchased upon such exercise. If fewer
than all of the Offered Debt Warrants represented by any Debt Warrant
Certificate are exercised, a New Debt Warrant Certificate will be issued for
the unexercised Offered Debt Warrants. The holder of a Debt Warrant will be
required to pay any tax or other governmental charge that may be imposed in
connection with any transfer involved in the issuance of Underlying Debt
Securities purchased upon such exercise.
Modifications. The Debt Warrant Agreement and the terms of the Offered
Debt Warrants may be amended by the Company and the Debt Warrant Agent,
without the consent of any holder, for the purpose of curing any ambiguity,
or of curing, correcting or supplementing any defective or inconsistent
provision contained therein, or in any other manner that the Company deems
necessary or desirable and that will not materially and adversely affect the
interests of the holders of the Offered Debt Warrants.
The Company and the Debt Warrant Agent also may modify or amend the Debt
Warrant Agreement and the terms of the Offered Debt Warrants with the consent
of the holders of not less than a majority in number of the then outstanding
unexercised Debt Warrants affected thereby; provided that no such
modification or amendment that accelerates the expiration date, increases the
exercise price, reduces the number of outstanding Debt Warrants the consent
of the holders of which is required for modification or amendment of the Debt
Warrant Agreement or the terms of the Debt Warrants, or otherwise materially
and adversely affects the rights of the holders of the Debt Warrants, may be
made without the consent of each holder affected thereby.
Debt Warrant Adjustments. The terms and conditions on which the exercise
price of and/or the number of shares of Common Stock or other Securities
covered by an Offered Debt Warrant are subject to adjustment will be set
forth in the Debt Warrant Agreement and the related Prospectus Supplement.
Such terms will include provisions for adjusting the exercise price and/or
the number of shares of Common Stock or other Securities covered by such
Offered Debt Warrant; the events requiring such adjustment; the events upon
which the Company may, in lieu of making such adjustment, make proper
provision so that the holder of such Offered Debt Warrant, upon exercise
thereof, would be treated as if such holder had exercised such Offered Debt
Warrant prior to the occurrence of such events; and provisions affecting
exercise in the event of certain events affecting the Common Stock or other
Securities.
No Rights as Holders of Underlying Debt Securities. Holders of Debt
Warrants are not entitled, by virtue of being such holders, to payments of
principal of (or premium, if any, on) or interest, if any, on the related
Underlying Debt Securities or to exercise any other rights whatsoever as
holders of Underlying Debt Securities.
DESCRIPTION OF EQUITY SECURITIES
RIGHTS APPLICABLE TO PREFERRED AND COMMON STOCKHOLDERS
The following description of the capital stock of the Company is a summary
of certain provisions of the Company's Restated Certificate of Incorporation.
The authorized capital stock of the Company consists of 2,000,000 shares of
Preferred Stock, par value $1.00 per share, and 150,000,000 shares of Common
Stock, par value $0.25 per share.
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Dividend Rights; Share Purchases. New York law provides that (1) a
corporation may pay dividends on its outstanding shares in cash or property
(except when the corporation is insolvent or when such payment would render
the corporation insolvent) or in its own shares; (2) dividends payable in
cash or property may be paid to the extent of the corporation's earned
surplus or, subject to certain conditions, to the extent of its capital
surplus; and (3) a corporation may purchase its shares to the extent of
earned surplus or otherwise for specified purposes (such as eliminating
fractional share interests), except when the corporation is insolvent or when
such purchase would render the corporation insolvent. New York law does not
restrict the repurchase of shares when there is an arrearage in the payment
of dividends or sinking fund installments.
After all preferential dividend rights of any outstanding shares of
Preferred Stock have been satisfied, the holders of the Common Stock are
entitled to receive dividends, when, as and if declared by the Company's
Board of Directors.
The Company is a party to two Revolving Credit Loan Agreements which
provide for the making of revolving credit loans to the Company of $1.2
billion and $500 million, respectively, and other agreements (relating to
senior indebtedness of the Company or its subsidiaries) that contain
provisions that could, indirectly, limit the payment of dividends on the
Common Stock in the event the Company should no longer satisfy certain
financial tests set forth in such loan or other agreements.
Liquidation Rights. In the event of the liquidation, dissolution or
winding up of the Company (whether voluntary or involuntary), the holders of
any outstanding Preferred Stock will be entitled to be paid in full the
amount set forth in the Certificate of Designations therefor, plus all
accrued and unpaid dividends before any amount may be paid to the holders of
any other class of stock; and, after such payments, any remaining assets of
the Company will be distributed pro rata to the holders of the Common Stock.
Voting Rights; Approval of Certain Matters; Shareholder Action. The
Common Stock has one vote per share on all matters submitted to shareholders.
The Common Stock does not have cumulative voting rights and generally votes
together as a single class and acts by a majority of the votes cast at a
meeting of shareholders (however, see "Election and Removal of Directors;
Filling of Vacancies" below). The voting rights of each series of Preferred
Stock, if issued, will be set forth in the Certificate of Designations
relating to such series and in the related Prospectus Supplement.
The New York Business Corporation Law ("BCL") requires the affirmative
vote of at least two-thirds of the voting power of the outstanding shares
entitled to vote thereon to approve mergers or consolidations in which the
Company would be merged or consolidated or the sale of all or substantially
all the assets of the Company. New York law provides that mergers,
consolidations and amendments of the Restated Certificate of Incorporation
must also be approved by a majority of each class of outstanding shares,
voting separately as a class, if the merger, consolidation or amendment would
(1) eliminate or limit the voting rights of the class, (2) subordinate the
rights of the class or (3) change such shares or result in their conversion
or in the modification of the terms on which they may be converted, but only
if any such actions would adversely affect the holders thereof. Other
amendments of the Restated Certificate of Incorporation require the
affirmative vote of a majority of the voting power of the outstanding shares.
In addition, Section 912 of the BCL provides that no "resident domestic
corporation" (or any subsidiary) shall engage in a "business combination"
with any "interested shareholder" (generally, a beneficial owner of 20% or
more of the outstanding voting stock) unless (1) the business combination or
the purchase of stock by the interested shareholder is approved by the board
of directors prior to such shareholder's "stock acquisition date", (2) the
business combination is approved by a majority of the voting power of the
corporation's outstanding stock (excluding any stock owned by the interested
shareholder) at a meeting called no earlier than five years after the stock
acquisition date or (3) the consideration paid to shareholders in the
business combination (which may not occur until the expiration of five years
from the stock acquisition date) is at least equal to the highest of certain
specified amounts. As defined, a "resident domestic corporation" is a
corporation incorporated in New York that either has its principal executive
offices and significant business operations in New York, or that, alone or in
combination with one or more subsidiaries of which it owns 80% or more of the
voting stock, has at least
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250 employees or 25% of the total number of employees of itself and such
subsidiaries employed within New York, and that has 10% of its voting stock
beneficially owned by residents of New York; a "business combination"
includes a merger or consolidation, a sale of assets representing 10% or more
of the corporation's consolidated earning power or market value, the issuance
of stock amounting to 5% or more of the corporation's outstanding stock and a
liquidation proposal made by the interested shareholder; and the "stock
acquisition date" is the date on which a shareholder first becomes an
interested shareholder.
Pursuant to the BCL, (1) the Company's By-laws do not permit shareholders
to call special meetings unless there is a failure to hold an annual meeting
or elect directors for specified periods of time and (2) an action requiring
shareholder approval may be taken without a meeting only by the written
consent of the holders of all outstanding shares entitled to vote thereon.
Election and Removal of Directors; Filling of Vacancies. The Restated
Certificate of Incorporation provides for (1) three classes of directors,
each class consisting of approximately one-third of the total number of
directorships and serving for a term of three years, and (2) the election of
directors by a plurality vote of the shares voting at the annual meeting of
shareholders. The Restated Certificate of Incorporation provides that a
director may be removed for cause by the directors or by the affirmative vote
of at least 80% of the voting power of all of the then-outstanding shares of
stock eligible to vote, voting together as a single class.
A vacancy on the Company's Board of Directors resulting from an increase
in the size of such Board may be filled by the directors holding a majority
of the directorships prior to such increase; other vacancies may be filled by
a majority of the directors then in office, even if less than a quorum, or by
the sole remaining director. A director so elected may only serve until the
next annual meeting of shareholders, at which time he is subject to election
by the shareholders.
Preemptive Rights. Holders of Common Stock do not (and holders of
Preferred Stock, if issued, will not) have preemptive rights.
DESCRIPTION OF PREFERRED STOCK
Under its Restated Certificate of Incorporation, the Company is authorized
to issue, in one or more series, up to 2,000,000 shares of its Preferred
Stock, with such rights, preferences, privileges and restrictions, including
dividend rights and rates, conversion rights, voting rights, redemption
rights and terms and liquidation preferences, as the Company's Board of
Directors or a duly authorized committee thereof may determine, all without
action by the Company's shareholders. At the date of this Prospectus, the
Company had no outstanding shares of Preferred Stock.
The Company may issue shares of its Preferred Stock, either separately or
together with other Offered Securities. The description below sets forth
certain general terms and provisions of the Preferred Stock covered by this
Prospectus. The specific terms of the Preferred Stock in respect of which
this Prospectus and the Prospectus Supplement are being delivered ("Offered
Preferred Stock") will be described in the Prospectus Supplement relating to
such Offered Preferred Stock and may differ from the terms set forth below.
The following summary of certain provisions of the Preferred Stock does not
purport to be complete and is subject to, and qualified in its entirety by
reference to, the Restated Certificate of Incorporation and the Certificate
of Designations relating to the Offered Preferred Stock.
General. The Offered Preferred Stock will, when issued, be fully paid and
nonassessable, and the holders of Offered Preferred Stock will have no
preemptive rights. Unless otherwise specified in the Prospectus Supplement
relating to the Offered Preferred Stock, each series of Preferred Stock will
rank on a parity as to dividends, upon liquidation and in all other respects
with all other Preferred Stock and will have the dividend, liquidation,
redemption, conversion, exchange, voting and other rights and terms set forth
below.
Reference is made to the Prospectus Supplement relating to the Offered
Preferred Stock for specific terms, including:
(1) The title and number of shares of such Offered Preferred Stock;
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(2) The offering price per share of such Offered Preferred Stock;
(3) The dividend rate, periods and payment dates, or the method of
calculation thereof, applicable to such Offered Preferred Stock;
(4) The date from which dividends on such Offered Preferred Stock will
accumulate, if applicable;
(5) The liquidation preference of such Offered Preferred Stock;
(6) The voting rights of such Offered Preferred Stock;
(7) Procedures for the auction and remarketing, if any, of such
Offered Preferred Stock;
(8) Provisions for a sinking fund, if any, for such Offered Preferred
Stock;
(9) Provisions for redemption, if any, of such Offered Preferred
Stock;
(10) Whether such Offered Preferred Stock will be convertible into or
exchangeable for shares of Common Stock or other Securities and, if so,
the terms and conditions upon which such Offered Preferred Stock will be
so convertible or exchangeable, including the conversion price or exchange
ratio and the conversion or exchange period (or the method of determining
the same);
(11) Any other specific terms, preferences or rights of, or
limitations or restrictions on, such Offered Preferred Stock;
(12) Whether such Offered Preferred Stock will be listed on any
securities exchange;
(13) Whether such Offered Preferred Stock is to be issued with any
other Offered Securities and, if so, the amount and terms thereof; and
(14) A discussion of the federal income tax considerations applicable
to such Offered Preferred Stock.
Subject to the terms of the Offered Preferred Stock, the remaining authorized
shares of Preferred Stock may be issued by the Company in one or more series
at any time and from time to time.
As used herein, (1) the term "Pari Passu Preferred" means the Offered
Preferred Stock and any shares of stock issued by the Company ranking on a
parity with the Offered Preferred Stock as to payment of dividends and
distribution of assets and (2) the term "Junior Stock" means the Common Stock
and any other stock issued by the Company ranking junior to the Pari Passu
Preferred.
Dividends. Holders of the Offered Preferred Stock will be entitled to
receive cash dividends, when, as and if declared by the Board of Directors of
the Company, out of assets of the Company legally available for payment, at
such rate and on such dates as will be set forth in the applicable Prospectus
Supplement. Each dividend will be payable to holders of record as they appear
on the stock books of the Company on the record dates fixed by the Board of
Directors of the Company. Dividends, if cumulative, will be cumulative from
and after the date set forth in the applicable Prospectus Supplement.
Dividends in full may be paid (or declared and set apart) on any series of
Pari Passu Preferred for any dividend period if, but only if, (a) there are
no arrearages in dividends for any past dividend periods on any series of
Pari Passu Preferred that has cumulative dividend rights and (b) dividends in
full for the current dividend period have been paid (or declared and set
apart) on all Pari Passu Preferred. Dividends may be paid (or declared and
set apart) on any series of Pari Passu Preferred (in a case when dividends
are not paid (or declared and set apart) in full on all Pari Passu Preferred)
if, but only if, such dividends are shared ratably by the holders of all
series of Pari Passu Preferred in proportion to the respective arrearages and
undeclared and unpaid current cumulative dividends. No interest, or sum of
money in lieu of interest, will be payable in respect of any dividend payment
or payments that may be in arrears.
If, for any dividend period or periods, dividends on any Pari Passu
Preferred have not been paid (or declared and set apart), the Company may not
declare any dividends or make any distributions on Junior Stock (except a
dividend payable in Junior Stock or in options, rights or warrants to
purchase or acquire Junior Stock), or make any payment on account of the
purchase, redemption or other retirement of Junior Stock (except out of the
proceeds of the sale of Junior Stock).
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Conversion and Exchange. If the Offered Preferred Stock will be
convertible into or exchangeable for Common Stock or other Securities, the
Prospectus Supplement relating thereto will set forth the terms and
conditions of such conversion or exchange, including the conversion price or
exchange ratio (or the method of calculating the same), the conversion or
exchange period (or the method of determining the same), whether conversion
or exchange will be mandatory or at the option of the holder or the Company,
the events requiring an adjustment of the conversion price or the exchange
ratio and provisions affecting conversion or exchange in the event of the
redemption of such Offered Preferred Stock. Such terms may also include
provisions under which the number of shares of Common Stock or the number of
other Securities to be received by the holders of such Offered Preferred
Stock upon such conversion or exchange would be calculated according to the
market price of the Common Stock or such other Securities as of a time stated
in such Prospectus Supplement.
Liquidation Rights. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Company, the holders of the
Pari Passu Preferred will be entitled to receive, out of assets of the
Company available for distribution to shareholders, before any distribution
of assets is made to holders of any Junior Stock, a liquidating distribution
in the amount set forth in the applicable Prospectus Supplement plus all
accrued and unpaid dividends. If, upon any voluntary or involuntary
liquidation, dissolution or winding up of the Company, the amounts payable
with respect to the Pari Passu Preferred are not paid in full, the holders of
Pari Passu Preferred will share ratably in the distribution of any assets of
the Company, in proportion to the full respective preferential amounts and
accrued but unpaid dividends to which they are entitled. After payment of the
full amount of the liquidating distributions to which they are entitled, the
holders of the Pari Passu Preferred will not be entitled to any further
participation in any distribution of assets by the Company. A consolidation
or merger of the Company with or into any other corporation or corporations
or a sale of all or substantially all of the assets of the Company will not
be deemed for this purpose to be a liquidation, dissolution or winding up of
the Company.
Redemption. If so provided in the applicable Prospectus Supplement, the
Offered Preferred Stock will be redeemable in whole or in part at the option
of the Company, at the times and at the redemption prices set forth in the
applicable Prospectus Supplement.
If dividends on any series of Pari Passu Preferred have not been paid in
full (or declared and set apart), no shares of Pari Passu Preferred of any
series may be redeemed, in whole or in part, unless all shares of Pari Passu
Preferred of all series are simultaneously redeemed, and the Company may not
purchase or acquire any shares of Pari Passu Preferred otherwise than
pursuant to a tender or exchange offer made on the same terms to all holders
of Pari Passu Preferred, without in either case the consent of the holders of
at least two-thirds of all shares of Pari Passu Preferred of all series
voting together as a single class without regard to series; provided, that to
meet its purchase or sinking fund obligations with respect to any series of
Pari Passu Preferred, the Company may apply shares of such Pari Passu
Preferred then held as treasury stock.
Voting Rights. Except as indicated below or in the applicable Prospectus
Supplement, or except as expressly required by applicable law, the holders of
Preferred Stock will not be entitled to vote. If the equivalent of six
quarterly dividends on the Offered Preferred Stock or any series of Pari
Passu Preferred that has comparable voting rights is in default (whether or
not such dividends have been declared or such defaulted dividends are
consecutive), the number of directors of the Company will be increased by two
and the holders of all outstanding series of such Pari Passu Preferred
(whether or not dividends thereon are in default), voting as a single class
without regard to series, will be entitled to elect such additional directors
until all dividends in default have been paid (or declared and set apart).
The holders of such Pari Passu Preferred may exercise such special class
voting rights at meetings of the Company's shareholders for the election of
directors or, under certain circumstances, at special meetings for the
purpose of electing such directors, in either case so long as the holders of
not less than one-third of the aggregate number of outstanding shares of such
Pari Passu Preferred are present in person or by proxy.
The affirmative vote of the holders of at least two-thirds of the
outstanding Pari Passu Preferred, voting as a single class without regard to
series, will be required (1) for any amendment of the Restated
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Certificate of Incorporation that will adversely affect the preferences,
rights or voting powers of the Pari Passu Preferred, provided that, in any
case in which one or more, but not all, series of Pari Passu Preferred then
outstanding would be so affected as to their preferences, rights or voting
powers, only the consent of the holders of at least two-thirds of the shares
of each series that would be so affected, voting separately as a class, shall
be required or (2) to issue any series of Preferred Stock or other class of
stock that has preference as to dividends or distribution of assets over any
outstanding Pari Passu Preferred.
DESCRIPTION OF DEPOSITARY SHARES
The Company may offer Depositary Shares representing interests in shares
of its Preferred Stock of one or more series. The Depositary Shares may be
issued, either separately or together with other Offered Securities, and will
be issued under a Deposit Agreement (each a "Deposit Agreement") to be
entered into between the Company and the bank or trust company specified in
the applicable Prospectus Supplement ("Preferred Stock Depositary"). The form
of the Deposit Agreement has been filed with the SEC as an exhibit to the
Registration Statements. The following summary of certain provisions of the
Depositary Shares does not purport to be complete and is subject to, and
qualified in its entirety by reference to, the Deposit Agreement and the
Depositary Receipts referred to below, including the definitions of certain
terms therein.
The Prospectus Supplement relating to an offering of Depositary Shares
will describe the specific terms of the Depositary Shares offered thereby
("Offered Depositary Shares"), including the terms of the series of Preferred
Stock deposited by the Company under the Deposit Agreement, the number of
Offered Depositary Shares, the fraction of one share of such Preferred Stock
represented by one Offered Depositary Share, the initial offering price and a
discussion of the federal income tax considerations applicable to such
Offered Depositary Shares, as well as, if applicable, information on any
other Offered Securities with which such Offered Depositary Shares will be
sold. If so indicated in the Prospectus Supplement, the terms of the Offered
Depositary Shares may differ from the terms set forth below.
General. The Company will provide for the issuance by the Preferred Stock
Depositary to the public of receipts ("Depositary Receipts") for the
Depositary Shares, each of which will represent a fractional interest (to be
specified in the applicable Prospectus Supplement) in one share of the
related Preferred Stock, as described below.
The shares of any series of Preferred Stock represented by the Depositary
Shares will be deposited by the Company under the Deposit Agreement. The
Prospectus Supplement will set forth the name and address of the Preferred
Stock Depositary. Subject to the terms of the Deposit Agreement, each owner
of a Depositary Share will be entitled, in proportion to the applicable
fractional interest in a share of such series of Preferred Stock represented
by such Depositary Share, to all the rights and preferences of the Preferred
Stock represented by such Depositary Share (including dividend, voting and
liquidation rights and any redemption, conversion or exchange rights).
Dividends and Other Distributions. The Preferred Stock Depositary will
distribute all cash dividends and other cash distributions received in
respect of the related series of Preferred Stock to the record holders of the
Depositary Shares in proportion to the number of such Depositary Shares owned
by such holders on the relevant record date. The Preferred Stock Depositary
will distribute only such amount, however, as can be distributed without
attributing to any holder of Depositary Shares a fraction of one cent, and
any balance not so distributed shall be added to and treated as part of the
next sum, if any, received by the Preferred Stock Depositary for distribution
to record holders of Depositary Shares.
In the event of a distribution other than in cash, the Preferred Stock
Depositary will distribute property received by it to the record holders of
Depositary Shares entitled thereto, unless the Preferred Stock Depositary
determines that it is not feasible to make such distribution, in which case
the Preferred Stock Depositary may, with the approval of the Company, sell
such property and distribute the net proceeds from such sale to such holders.
In the event of the liquidation, dissolution or winding up of the affairs
of the Company, whether voluntary or involuntary, the holders of each
Depositary Share will be entitled to the fraction of the liquidation
preference accorded each share of the applicable series of Preferred Stock,
as set forth in the Prospectus Supplement.
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The Deposit Agreement will also contain provisions relating to the manner
in which any subscription or similar rights offered by the Company to holders
of the related series of Preferred Stock will be made available to holders of
Depositary Shares.
Withdrawal of Preferred Stock. Upon surrender of Depositary Receipts at
the corporate trust office of the Preferred Stock Depositary (unless the
related shares of Preferred Stock have previously been called for
redemption), the holder of the Depositary Shares evidenced thereby will be
entitled to receive at such office, to or upon such holder's order, the
number of whole shares of the related series of Preferred Stock and any money
or other property represented by such Depositary Shares. However, shares of
Preferred Stock so withdrawn may not be redeposited. If the holder requests
withdrawal of less than all the shares of Preferred Stock to which such
holder is entitled, or if such holder would otherwise be entitled to a
fractional share of Preferred Stock, the Preferred Stock Depositary will
deliver to such holder a new Depositary Receipt evidencing such balance or
fractional share.
Redemption of Depositary Shares Whenever the Company redeems Preferred
Stock held by the Preferred Stock Depositary, the Preferred Stock Depositary
will redeem as of the same redemption date the number of Depositary Shares
representing the Preferred Stock so redeemed; provided that the Company has
paid in full to the Preferred Stock Depositary the redemption price of such
Preferred Stock plus accrued and unpaid dividends thereon to the date fixed
for redemption. The redemption price per Depositary Share will be equal to
the applicable fraction of the redemption price per share and accrued and
unpaid dividends payable with respect to such Preferred Stock. If less than
all the Depositary Shares are to be redeemed, the Depositary Shares to be
redeemed will be selected by lot or pro rata or by another equitable method,
in each case as may be determined by the Company.
After the date fixed for redemption, the Depositary Shares so called for
redemption will no longer be deemed to be outstanding, and all rights of the
holders of the Depositary Shares so called for redemption will cease, except
the right to receive the moneys payable upon such redemption and any money or
other property to which the holders of such Depositary Shares were entitled
upon such redemption and surrender to the Preferred Stock Depositary of the
Depositary Receipts evidencing such Depositary Shares.
Conversion and Exchange. The Depositary Shares, as such, are not
convertible into or exchangeable for Common Stock or other Securities.
Nevertheless, if the Preferred Stock represented by the Depositary Shares is
convertible into or exchangeable for Common Stock or other Securities, the
Depositary Receipts may be surrendered by the holder thereof to the Preferred
Stock Depositary with written instructions to convert or exchange such
Preferred Stock into whole shares of Common Stock or other Securities, as
specified in the related Prospectus Supplement. The Company, upon receipt of
such instructions and any amounts payable in respect thereof, will cause the
conversion or exchange thereof and will deliver to the holder such whole
shares of Common Stock or such whole number of other Securities (and cash in
lieu of any fractional share or Security). In the case of a partial
conversion or exchange, the holder will receive a new Depositary Receipt
evidencing the unconverted or unexchanged balance.
Voting the Preferred Stock. Upon receipt of notice of any meeting at which
holders of one or more series of Preferred Stock are entitled to vote, the
Preferred Stock Depositary will mail the information contained in such notice
of meeting to the holders of the Depositary Shares relating to such Preferred
Stock. Each record holder of such Depositary Shares on the record date (which
will be the same date as the record date for such meeting) will be entitled
to instruct the Preferred Stock Depositary as to the manner in which to vote
the number of shares of Preferred Stock represented by such Depositary
Shares. The Company will agree to take all reasonable action that may be
deemed necessary by the Preferred Stock Depositary to enable the Preferred
Stock Depositary to vote in accordance with each holder's instructions. The
Preferred Stock Depositary will abstain from voting Preferred Stock to the
extent it does not receive instructions from the holders of Depositary Shares
representing such Preferred Stock.
Amendment and Termination of the Deposit Agreement. The form of Depositary
Receipt evidencing the Depositary Shares and any provision of the Deposit
Agreement may at any time be amended by agreement between the Company and the
Preferred Stock Depositary. However, no amendment that
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materially and adversely alters the rights of the holders of Depositary
Shares will be effective unless such amendment has been approved by the
holders of at least a majority of the Depositary Shares then outstanding;
provided that any amendment that prejudices any substantial right of the
holders of Depositary Shares will not become effective until the expiration
of 90 days after notice of such amendment has been given to such holders. A
holder that continues to hold one or more Depositary Receipts at the
expiration of such 90-day period will be deemed to consent to, and will be
bound by, such amendment. No amendment may impair the right of any holder to
surrender such holder's Depositary Receipt and receive the related Preferred
Stock, as discussed above under "Withdrawal of Preferred Stock".
The Deposit Agreement may be terminated by the Company at any time upon
not less than 60 days' prior written notice to the Preferred Stock
Depositary. In any such case, the Preferred Stock Depositary will deliver to
each holder of Depositary Shares, upon surrender of the related Depositary
Receipts, the number of whole shares of the related series of Preferred Stock
to which such holder is entitled, together with cash in lieu of any
fractional share. The Deposit Agreement will terminate automatically after
all the related Preferred Stock has been redeemed, withdrawn, converted or
exchanged or there has been a final distribution in respect of the Preferred
Stock represented by such Depositary Shares in connection with any
liquidation, dissolution or winding up of the Company.
Charges of Preferred Stock Depositary. Except as provided in the
Prospectus Supplement, the Company will pay the fees and expenses of the
Preferred Stock Depositary, and holders of Depositary Receipts will be
required to pay any tax or other governmental charge that may be imposed in
connection with the transfer, exercise, surrender or split-up of Depositary
Receipts.
Miscellaneous. The Preferred Stock Depositary will forward to the holders
of Depositary Shares all reports and communications from the Company that are
delivered to the Preferred Stock Depositary and that the Company is required
to furnish to the holders of the relevant series of Preferred Stock.
Neither the Preferred Stock Depositary nor the Company will be liable if
it is prevented or delayed by law or any circumstance beyond its control in
performing its obligations under the Deposit Agreement. The obligations of
the Company and the Preferred Stock Depositary under the Deposit Agreement
will be limited to performance in good faith of their respective duties
thereunder, and neither entity will be obligated to prosecute or defend any
legal proceeding in respect of any Depositary Shares or related shares of
Preferred Stock unless satisfactory indemnity is furnished.
Resignation and Removal of Preferred Stock Depositary. The Preferred Stock
Depositary may resign at any time by delivering to the Company notice of its
election to do so, and the Company may at any time remove the Preferred Stock
Depositary, any such resignation or removal to take effect upon the
appointment of a successor Preferred Stock Depositary. Such successor
Preferred Stock Depositary must be appointed within 60 days after delivery of
a notice of resignation or removal and must be a bank or trust company having
its principal office in the United States and having a combined capital and
surplus of at least $50,000,000.
DESCRIPTION OF EQUITY WARRANTS
The Company may issue Warrants to purchase Common Stock and/or Preferred
Stock. Equity Warrants may be issued, either separately or together with
other Offered Securities, and will be issued under a Warrant Agreement (each
an "Equity Warrant Agreement") to be entered into between the Company and the
bank or trust company specified in the applicable Prospectus Supplement
("Equity Warrant Agent"). The form of Equity Warrant Agreement has been filed
with the SEC as an exhibit to the Registration Statements. The following
summary of the Equity Warrant Agreement does not purport to be complete and
is subject to, and qualified in its entirety by reference to, the Equity
Warrant Agreement, including the definitions of certain terms therein.
General. Reference is made to the Prospectus Supplement for the specific
terms of the Equity Warrants in respect of which this Prospectus and the
Prospectus Supplement are being delivered ("Offered Common Warrants"),
including the following:
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(1) The title and aggregate number of such Offered Equity Warrants;
(2) The offering price of such Offered Equity Warrants;
(3) The number of shares of Common Stock and/or Preferred Stock that
may be purchased upon exercise of each such Offered Equity Warrant; the
price, or the manner of determining the price, at which such shares may be
purchased upon such exercise; if other than cash, the property and manner
in which the exercise price may be paid; and any minimum number of such
Offered Equity Warrants that are exercisable at any one time;
(4) The time or times at which, or period or periods during which,
such Offered Equity Warrants may be exercised and the expiration date of
such Offered Equity Warrants;
(5) The terms of any right of the Company to redeem such Offered
Equity Warrants;
(6) Whether such Offered Equity Warrants are to be issued with any
other Offered Securities and, if so, the amount and terms thereof;
(7) The date, if any, on and after which such Offered Equity Warrants
and such other Offered Securities will be separately transferable;
(8) The terms of any right of the Company to accelerate the exercise
of such Offered Equity Warrants upon the occurrence of certain events; and
(9) A discussion of the federal income tax considerations applicable
to such Offered Equity Warrants and Common Stock and Preferred Stock.
Certificates representing Equity Warrants ("Equity Warrant Certificates")
may be issued in registered or bearer form, or both, as set forth in the
applicable Prospectus Supplement, and will be exchangeable for new Equity
Warrant Certificates of different denominations. No service charge will be
made for any permitted transfer or exchange of Equity Warrant Certificates,
but the Company may require payment of any tax or other governmental charge
payable in connection therewith. Equity Warrants may be exercised at the
corporate trust office of the Equity Warrant Agent or any other office
indicated in the applicable Prospectus Supplement.
Exercise of Equity Warrants. Each Offered Equity Warrant will entitle the
holder thereof to purchase such number of shares of Common Stock or Preferred
Stock at the exercise price set forth in, or calculable from, the Prospectus
Supplement relating to the Offered Equity Warrants. After the close of
business on the applicable expiration date, unexercised Equity Warrants will
become void.
Offered Equity Warrants may be exercised by payment to the Equity Warrant
Agent of the applicable exercise price and by delivery to the Equity Warrant
Agent of the information specified on the Equity Warrant Certificate. Offered
Equity Warrants will be deemed to have been exercised upon receipt of the
exercise price, subject to the receipt by the Equity Warrant Agent, within
five business days thereafter, of the Equity Warrant Certificate or
Certificates evidencing such Offered Equity Warrants. Upon receipt of such
payment and the properly completed Equity Warrant Certificates at the
corporate trust office of the Equity Warrant Agent or any other office
indicated in the applicable Prospectus Supplement, the Company will, as soon
as practicable, deliver the shares of Common Stock or Preferred Stock, as
applicable, purchased upon such exercise. If fewer than all of the Offered
Equity Warrants represented by any Equity Warrant Certificate are exercised,
a new Equity Warrant Certificate will be issued for the unexercised Offered
Equity Warrants. The holder of an Equity Warrant will be required to pay any
tax or other governmental charge that may be imposed in connection with any
transfer involved in the issuance of Common Stock or Preferred Stock
purchased upon such exercise.
Modifications. The Equity Warrant Agreement and the terms of the Equity
Warrants may be amended by the Company and the Equity Warrant Agent, without
the consent of any holder, for the purpose of curing any ambiguity, or of
curing, correcting or supplementing any defective or inconsistent provision
contained therein, or in any other manner that the Company deems necessary or
desirable and that will not materially and adversely affect the interests of
the holders of the Offered Equity Warrants.
21
<PAGE>
<PAGE>
The Company and the Equity Warrant Agent also may modify or amend the
Equity Warrant Agreement and the terms of the Offered Equity Warrants with
the consent of the holders of not less than a majority in number of the then
outstanding unexercised Equity Warrants affected thereby; provided that no
such modification or amendment that accelerates the expiration date,
increases the exercise price, reduces the number of outstanding Equity
Warrants the consent of the holders of which is required for modification or
amendment of the Equity Warrant Agreement or the terms of the Equity
Warrants, or otherwise materially and adversely affects the rights of the
holders of the Equity Warrants may be made, without the consent of each
holder affected thereby.
Equity Warrant Adjustments. The terms and conditions on which the exercise
price of and/or the number of shares of Common Stock and/or Preferred Stock
covered by an Offered Equity Warrant are subject to adjustment will be set
forth in the Equity Warrant Agreement and the related Prospectus Supplement.
Such terms will include provisions for adjusting the exercise price and/or
the number of shares of Common Stock and/or Preferred Stock covered by such
Offered Equity Warrant; the events requiring such adjustment; the events upon
which the Company may, in lieu of making such adjustment, make proper
provision so that the holder of such Offered Equity Warrant, upon exercise
thereof, would be treated as if such holder had exercised such Offered Equity
Warrant prior to the occurrence of such events; and provisions affecting
exercise in the event of certain events affecting the Common Stock or
Preferred Stock.
No Rights as Shareholders. Holders of Equity Warrants are not entitled, by
virtue of being such holders, to vote, consent or receive notice as
shareholders of the Company in respect of any meeting of shareholders for the
election of directors of the Company or any other matter, or exercise any
other rights whatsoever as shareholders of the Company.
PLAN OF DISTRIBUTION
The Company may sell the Securities being offered hereby in four ways: (i)
through underwriters, (ii) through dealers, (iii) directly to purchasers and
(iv) through agents.
The distribution of Securities may be effected from time to time in one or
more transactions at a fixed price or prices, which may be changed, or at
market prices prevailing at the time of the sale, or at prices related to
such prevailing market prices or at negotiated prices. The Prospectus
Supplement will describe the method of distribution of the Offered
Securities.
If any underwriters are utilized in the sale of Securities, the Company
will enter into an underwriting agreement with such underwriters at the time
of such sale to them and the names of the underwriters and the terms of the
transaction will be set forth in the Prospectus Supplement, which will be
used by the underwriters to make resales of the Securities in respect of
which this Prospectus is delivered to the public. The underwriters may be
entitled, under the relevant underwriting agreement, to indemnification by
the Company against certain liabilities, including liabilities under the
Securities Act, and may be customers of, engage in transactions with, or
perform services for, the Company in the ordinary course of business.
If a dealer is utilized in the sale of the Securities in respect of which
this Prospectus is delivered, the Company will sell such Securities to the
dealer, as principal. The dealer may then resell such Securities to the
public at varying prices to be determined by such dealer at the time of
resale. Dealers may be entitled to indemnification by the Company against
certain liabilities, including liabilities under the Securities Act, and may
be customers of, engage in transactions with, or perform services for, the
Company in the ordinary course of business.
Offers to purchase Securities may be solicited by agents designated by the
Company from time to time. Any such agent, who may be deemed to be an
underwriter as that term is defined in the Securities Act, involved in the
offer or sale of the Securities in respect of which this Prospectus is
delivered will be named, and any commissions payable by the Company to such
agent set forth, in the Prospectus Supplement. Unless otherwise indicated in
the Prospectus Supplement, any such agent will be acting on a best efforts
basis for the period of its appointment. Agents may be entitled under
agreements which may
22
<PAGE>
<PAGE>
be entered into with the Company to indemnification by the Company against
certain liabilities, including liabilities under the Securities Act, and may
be customers of, engage in transactions with, or perform services for, the
Company in the ordinary course of business.
In connection with the sale of the Securities, underwriters or agents may
receive compensation from the Company or from purchasers of Securities for
whom they may act as agents in the form of discounts, concessions or
commissions. Underwriters, agents and dealers participating in the
distribution of the Securities may be deemed to be underwriters, and any
discounts or commissions received by them from the Company and any profit on
the resale of the Securities by them may be deemed to be underwriting
discounts and commissions under the Securities Act.
If so indicated in the Prospectus Supplement, the Company will authorize
agents and underwriters or dealers to solicit offers by certain purchasers to
purchase the relevant Offered Securities from the Company at the public
offering price set forth in the Prospectus Supplement pursuant to delayed
delivery contracts providing for payment and delivery on a specified date in
the future. Such contracts will be subject to only those conditions set forth
in the Prospectus Supplement, and the Prospectus Supplement will set forth
the commission payable for solicitation of such offers.
Lehman Brothers Inc. may participate as an underwriter in one or more
offerings of the Securities. Merchant banking partnerships affiliated with
Lehman Brothers Holdings Inc. (the "Lehman Partnerships") own 6,314,960
shares of the Company's Common Stock, representing approximately 7.6% of the
Company's Common Stock outstanding as of May 1, 1994. The Lehman Partnerships
also own 731.85 shares of Series S Preferred Stock of Loral Aerospace
Holdings, Inc. ("LAH"), the Company's wholly-owned subsidiary, which
represent an indirect 18.3% beneficial interest in the equity of Space
Systems/Loral, Inc. ("SS/L"), LAH's 51%-owned affiliate. If the Lehman
Partnerships continue to hold Series S Preferred Stock after January 1, 1998,
or after a change in control of Loral, they will have the right to request
that the Company purchase their Series S Preferred Stock at an appraised fair
market value ("Appraised Value"). In such event, the Company may elect to
purchase such Series S Preferred Stock at Appraised Value or, if the Company
elects not to purchase the stock, the Lehman Partnerships may require the
combined interests of the Company and the Lehman Partnerships in SS/L to be
sold to a third party. The Lehman Partnerships also have an aggregate equity
interest of approximately 62% in K&F Industries, Inc., a corporation of which
Bernard L. Schwartz, Chairman of the Board of Directors and Chief Executive
Officer of the Company, is a 35% stockholder, which acquired the Company's
Aircraft Braking Systems and Engineered Fabrics divisions in April 1989.
LEGAL OPINIONS
The validity of the Securities offered hereby will be passed upon for the
Company by Willkie Farr & Gallagher, New York, New York, counsel to the
Company. Certain legal matters will be passed upon for the underwriters by
Cravath, Swaine & Moore, New York, New York. Mr. Robert B. Hodes, a Director
and member of the Company's Executive, Audit and Government Compliance and
Compensation and Stock Option Committees, is a partner in the law firm of
Willkie Farr & Gallagher. As of May 1, 1994, Mr. Hodes beneficially owned in
the aggregate 4,2000 shares of Common Stock and options to purchase 10,000
shares of Common Stock.
23
<PAGE>
<PAGE>
EXPERTS
The consolidated balance sheets of the Company as of March 31, 1994 and
1993 and related consolidated statements of operations, shareholders' equity
and cash flows for each of the three years in the period ended March 31, 1994
are incorporated by reference herein in reliance on the report, which
includes an explanatory paragraph regarding the Company's changes in methods
of accounting for income taxes and post retirement benefits other than
pensions, as discussed in Notes 6 and 9 of the consolidated financial
statements of Loral and its subsidiaries, of Coopers & Lybrand, independent
auditors, given on the authority of said firm as experts in accounting and
auditing.
The audited historical financial statements of Federal Systems as of
December 31, 1993 and 1992 and for each of the three years in the period
ended December 31, 1993 incorporated in this Prospectus by reference to the
Loral Corporation Report on Form 8-K/A dated May 12, 1994, have been so
incorporated in reliance on the report of Price Waterhouse, independent
accountants, given on the authority of said firm as experts in auditing and
accounting.
24
<PAGE>
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated expenses of the Company in
connection with the issuance and distribution of the securities being
registered in the Registration Statements, other than underwriting
compensation:
<TABLE>
<CAPTION>
<S> <C>
Securities and Exchange Commission registration fee ............ $266,165
Printing Registration Statement, Prospectus and related
documents...................................................... 35,000*
Accounting fees and expenses.................................... 60,000*
Legal fees and expenses......................................... 130,000*
Rating Agency fees.............................................. 60,000*
Trustee and Paying Agent fees................................... 10,000*
Blue Sky fees and expenses...................................... 25,000
Miscellaneous...................................................
----------
Total....................................................... $586,165*
==========
</TABLE>
- -----------------
* Estimated and subject to future contingencies.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 721-726 of the New York Business Corporation Law contain
non-exclusive provisions for indemnification of officers and directors of a
corporation under certain specified conditions, including, in part: (a)
indemnification against judgments, fines, amounts paid in settlement of, and
reasonable expenses incurred as a result of, an action or proceeding, whether
civil or criminal, threatened or brought against such person (other than by
one bringing an action by or in the right of the corporation, but including
an action by or in the right of any other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise which such person
served in any capacity at the request of the corporation) if such person
acted in good faith, for a purpose which he reasonably believed to be in, or,
in the case of service for any other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, not opposed to, the best
interests of the corporation, and, in criminal actions or proceedings, in
addition, had no reasonable cause to believe that his conduct was unlawful;
(b) indemnification against amounts paid in settlement and reasonable
expenses incurred by such person in connection with the defense or settlement
of an action by or in the right of the corporation if such director or
officer acted, in good faith, for a purpose which he reasonably believed to
be in, or, in the case of service of any other corporation or any
partnership, joint venture, trust, employee benefit plan or other enterprise,
not opposed to, the best interests of the corporation, except that no
indemnification shall be made in respect of (1) a threatened action, or a
pending action which is settled or otherwise disposed of, or (2) any claim,
issue or matter as to which such person shall have been adjudged to be liable
to the corporation, unless and only to the extent that the court, or if no
action was brought, a court of competent jurisdiction, determines the person
is fairly and reasonably entitled to indemnify; and (c) notwithstanding the
failure of a corporation to provide indemnification, indemnification pursuant
to court order.
Article Ninth of the Company's Restated Certificate of Incorporation
provides that any person made a party to any action, suit or proceeding by
reason of the fact that he, his testator or intestate, is or was a director,
officer or employee of the Company or of any corporation for which he served
as such at the request of the Company, shall be indemnified by the Company
against the reasonable expenses, including attorneys' fees, actually and
necessarily incurred by him in connection with the defense of such action,
suit or proceeding, or in connection with any appeal therein, except in
relation to matters as to which it shall be adjudged in such action, suit or
proceeding that such officer, director or employee is liable for negligence
or misconduct in the performance of his duties. Such right of indemnification
shall not be deemed exclusive of any other rights to which such director,
officer or employee may be entitled apart from the indemnification
provisions of said Article Ninth. Any amount payable by way of indemnity,
II-1
<PAGE>
<PAGE>
whether the action, suit or proceeding reaches final judgment, or is settled
with court approval before final judgment, shall be determined and paid in
accordance with the then applicable provisions of the statutes of the State
of New York, provided, however, that if such amount is paid other than
pursuant to court order or action by stockholders, the Company shall within
eighteen months from the date of such payment mail to its stockholders of
record at the time entitled to vote for the election of directors a statement
specifying the persons paid, the amounts of the payments and the final
disposition of the litigation.
The By-laws of the Company provide that the Company may enter into such
contracts of indemnification as may be authorized from time to time by the
Board of Directors. The Board of Directors has authorized, and the Company
has entered into, an Indemnity Agreement with each of the Company's directors
and executive officers. The Indemnity Agreements provide that the Company
will pay on behalf of the indemnitees any amount which he is or becomes
legally obligated to pay as a result of any claim or claims threatened or
made against him as a result of any act or omission or neglect or breach of
duty he commits or suffers while acting in his capacity as a director or
officer of the Company, including any damages, judgments, settlements and
costs, reasonable costs of investigation and reasonable costs of defense of
legal actions, claims or proceedings and appeals therefrom, and costs of
attachment or similar bonds.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION OF DOCUMENT
- ----------------- --------------------------------------------------------------------------------------------
<S> <C>
1.1(a) Form of Underwriting Agreement for Debt Securities and Warrants to Purchase Debt Securities.
1.1(b) Form of Underwriting Agreement for Equity Securities and Warrants to Purchase Equity
Securities.
+1.2 Form of Agency Agreement.
+4.1(a) Form of Senior Indenture.
4.1(b) First Supplemental Indenture to Senior Indenture.
4.1(c) Form of Subordinated Indenture.
+4.2 Form of Senior Floating Rate Note.
+4.3 Form of Senior Fixed Rate Note.
4.4 Form of Subordinated Floating Rate Note.
4.5 Form of Subordinated Fixed Rate Note.
4.6 Form of Warrant Agreement for Debt Securities.
4.7 Form of Warrant Agreement for Equity Securities.
4.8 Form of Deposit Agreement for Depositary Shares.
++4.9 Form of Certificate for Common Stock.
*4.10 Loral Corporation Restated Certificate of Incorporation.
**4.11 Loral Corporation By-Laws.
5 Opinion of Willkie Farr & Gallagher.
**12 Computation of Ratio of Earnings to Fixed Charges.
23.1 Consent of Coopers & Lybrand.
23.2 Consent of Price Waterhouse.
23.3 Consent of Willkie Farr & Gallagher (included in their opinion filed
as Exhibit 5 hereto).
24.1 Powers of Attorney.
+24.2 Officer's Certificate (certifying certain resolutions relating to the powers of attorney).
+25.1 Statement of Eligibility of Senior Trustee on Form T-1.
25.2 Statement of Eligibility of Subordinated Trustee on Form T-1.
</TABLE>
NOTE: Certain instruments with respect to issues of long-term debt have not
been filed as Exhibits to this statement since the authorized principal
amount of any one of such issues does not exceed 10% of the total assets of
the Company and its subsidiaries on a consolidated basis as of March 31,
1994. Such indebtedness is described in general terms in Note 5 to the
Consolidated Financial Statements
II-2
<PAGE>
<PAGE>
included in the Company's Annual Report on Form 10-K for the fiscal year
ended March 31, 1994. The Company agrees to furnish to the Commission a copy
of each instrument upon its request.
+ Incorporated by reference from the Company's Registration Statement No.
33-50407, effective on September 29, 1993.
++ Incorporated by reference from the Company's Registration Statement No.
33-40825, effective on June 14, 1991.
* Incorporated by reference from the Company's Quarterly Report on Form
10-Q for the quarter ended September 30, 1993.
** Incorporated by reference from the Company's Annual Report on Form 10-K
for the fiscal year ended March 31, 1994.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) to file during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) to include any prospectus required by section 10(a)(3) of the
Securities Act;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement; and
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that paragraphs (1)(i) and (1)(ii) above do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by such registrant
pursuant to section 13 or section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement;
(2) that, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof;
(3) to remove from registration by means of post-effective amendment any
of the securities being registered which remain unsold at the termination
of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in
the form of prospectus filed by the registrant pursuant to Rule 424(b)(1)
or (4) or 497(h) under the Securities Act shall be deemed to be part of
this registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement
II-3
<PAGE>
<PAGE>
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registration statement in reliance upon Rule 430A and contained in the form
of prospectus filed by the registrant pursuant to the provisions described
under Item 15 above, or otherwise, the registrant has been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
The undersigned registrant hereby undertakes (1) to use its best efforts
to distribute prior to the opening of bids, to prospective bidders,
underwriters and dealers, a reasonable number of copies of a prospectus which
at that time meets the requirements of section 10(a) of the Act, and relating
to the securities offered at competitive bidding, as contained in the
registration statement, together with any supplements thereto, and (2) to
file an amendment to the registration statement reflecting the results of
bidding, the terms of the reoffering and related matters to the extent
required by the applicable form, not later than the first use, authorized by
the issuer after the opening of bids, of a prospectus relating to the
securities offered at competitive bidding, unless no further public offering
of such securities by the issuer and no reoffering of such securities by the
purchasers is proposed to be made.
The undersigned registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act ("Act") in
accordance with the rules and regulations prescribed by the Commission under
Section 305(b)(2) of the Act.
II-4
<PAGE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement and this Post-Effective Amendment No. 1 to Registration Statement
to be signed on its behalf by the undersigned, thereunto duly authorized, in
The City of New York, State of New York, on the 20th day of May, 1994.
LORAL CORPORATION
By: /s/ Bernard L. Schwartz
Bernard L. Schwartz
Title: Chairman of the Board
and
Chief Executive Officer
Pursuant to the requirements of the Securities Act, this Registration
Statement and Post-Effective Amendment No. 1 to Registration Statement have
been signed below on the 20th day of May, 1994 by the following persons in
the capacities indicated.
<TABLE>
<CAPTION>
SIGNATURES TITLE
- ------------------------------- -------------------------------
<S> <C> <C>
/s/ Bernard L. Schwartz
------------------------------- Chairman of the Board, Chief
Bernard L. Schwartz Executive Officer and Director
/s/ Frank C. Lanza
------------------------------- Director, President and Chief
Frank C. Lanza Operating Officer
*
-------------------------------
Howard Gittis Director
*
-------------------------------
Robert B. Hodes Director
*
-------------------------------
Gershon Kekst Director
*
-------------------------------
Charles Lazarus Director
-------------------------------
Marvin A. Ruderman Director
-------------------------------
E. Donald Shapiro Director
*
-------------------------------
Allen M. Shinn Director
*
-------------------------------
Thomas J. Stanton, Jr. Director
*
-------------------------------
Daniel Yankelovich Director
/s/ Michael P. DeBlasio
-------------------------------
Michael P. DeBlasio Principal Financial Officer
/s/ Robert V. LaPenta
-------------------------------
Robert V. LaPenta Principal Accounting Officer
* By: /s/ Michael B. Targoff
-------------------------------
Michael B. Targoff Attorney-in-Fact
</TABLE>
II-5
<PAGE>
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION OF DOCUMENT
<S> <C>
1.1(a) Form of Underwriting Agreement for Debt Securities and
Warrants to Purchase Debt Securities.
1.1(b) Form of Underwriting Agreement for Equity Securities and
Warrants to Purchase Equity Securities.
4.1(b) First Supplemental Indenture to Senior Indenture.
4.1(c) Form of Subordinated Indenture.
4.4 Form of Subordinated Floating Rate Note.
4.5 Form of Subordinated Fixed Rate Note.
4.6 Form of Warrant Agreement for Debt Securities.
4.7 Form of Warrant Agreement for Equity Securities.
4.8 Form of Deposit Agreement for Depositary Shares.
5 Opinion of Willkie Farr & Gallagher.
23.1 Consent of Coopers & Lybrand.
23.2 Consent of Price Waterhouse.
24.1 Powers of Attorney.
25.2 Statement of Eligibility of Subordinated Trustee on Form T-1.
</TABLE>
EXHIBIT 1.1(a)
LORAL CORPORATION
Form of Underwriting Agreement
[Debt Securities and Debt Warrants]
New York, New York
To the Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Dear Sirs:
Loral Corporation, a New York corporation (the
"Company"), proposes to sell to the underwriters named in
Schedule II hereto (the "Underwriters"), for whom you (the
"Representatives") are acting as representatives, [the principal
amount of its securities identified in Schedule I hereto (the
"Securities"), to be issued under an indenture (the "Indenture")
dated as of [September 1, 1993, between the Company and
Continental Bank, National Association]1/, as trustee (the
"Trustee").]2/ If the firm or firms listed in Schedule II
_______________________________
1/ If subordinated debt securities are being offered,
replace with: "May 1, 1994, between the Company
and The Bank of New York, a national banking association".
2/ If warrants are being offered, replace with: "the
warrants (the "Securities") indicated in Schedule I hereto
to purchase the aggregate principal amount listed in
Schedule I hereto of the debt securities listed in
Schedule I hereto, to be issued pursuant to the Warrant
Agreement listed in Schedule I hereto (the "Warrant
Agreement") between the Company and the Warrant Agent listed
in Schedule I hereto.
If convertible debt securities are being offered,
insert: "The Securities are convertible as indicated in
Schedule I hereto."
* Provisions for an over-allotment option are not set forth
herein. Reference should be made to the form of equity
Underwriting Agreement filed as Exhibit 1.2 to this
Registration Statement for such provisions.
<PAGE>
hereto include only the firm or firms listed in Schedule I
hereto, then the terms "Underwriters" and "Representatives", as
used herein, shall each be deemed to refer to such firm or firms.
1. Representations and Warranties. The Company
represents and warrants to, and agrees with, each Underwriter as
set forth below in this Section 1. Certain terms used in this
Section 1 are defined in paragraph (c) hereof.
(a) The Company meets the requirements for the use of
Form S-3 under the Securities Act of 1933 (the "Act") and
has filed with the Securities and Exchange Commission (the
"Commission") a registration statement (the file number of
which is set forth in Schedule I hereto) on such Form,
including a basic prospectus, for registration under the Act
of the offering and sale of the Securities. If the offering
of the Securities is a Delayed Offering (as specified in
Schedule I hereto), paragraph (i) below is applicable and,
if the offering of the Securities is a Non-Delayed Offering
(as so specified), paragraph (ii) below is applicable.
(i) The Company may have filed with the
Commission one or more amendments to such registration
statement, and may have used a Preliminary Final
Prospectus, each of which has previously been furnished
to you. Such registration statement, as so amended,
has become effective. The offering of the Securities
is a Delayed Offering and, although the Basic
Prospectus may not include all the information with
respect to the Securities and the offering thereof
required by the Act and the rules thereunder to be
included in the Final Prospectus, the Basic Prospectus
includes all such information required by the Act and
the rules thereunder to be included therein as of the
Effective Date. The Company will hereafter file with
the Commission pursuant to Rules 415 and 424(b)(2) or
(5) a final supplement to the form of prospectus
included in such registration statement relating to the
Securities and the offering thereof. As filed, such
final prospectus supplement shall include all required
information with respect to the Securities and the
offering thereof 3/ and, except to the extent the
Representatives shall agree in writing to any
modification thereof, shall be in all substantive
respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the
Execution Time, shall be in such form with only such
specific additional information and other changes
(beyond that contained in the Basic Prospectus and any
Preliminary Final Prospectus) as the Company has
advised you, prior to the Execution Time, will be
included or made therein.
(ii) The Company may have filed with the
Commission one or more amendments to such registration
statement, including a Preliminary Final Prospectus,
each of which has previously been furnished to you.
The Company will hereafter file with the Commission
either (x) a final prospectus supplement relating to
the Securities in accordance with Rules 430A and
424(b)(1) or (4), or (y) prior to the effectiveness of
such registration statement, an amendment to such
registration statement, including the form of final
prospectus supplement. In the case of clause (x), the
Company has included in such registration statement, as
amended at the Effective Date, all information (other
than Rule 430A Information) required by the Act and the
rules thereunder to be included in the Final Prospectus
with respect to the Securities and the offering
thereof 4/ . As filed, such final prospectus supple
ment or such amendment and form of final prospectus
supplement shall contain all Rule 430A Information,
together with all other such required information, with
_______________________________
3/ If convertible securities are being offered, insert:
", and with respect to the securities identified in
Schedule I hereto issuable upon conversion of the
Securities,".
If warrants are being offered, insert: ", and with
respect to the debt securities identified in Schedule I
hereto issuable upon exercise of the Securities,".
4/ If convertible securities are being offered, insert:
", and with respect to the securities identified in
Schedule I hereto issuable upon conversion of the
Securities".
If warrants are being offered, insert: ", and with
respect to the debt securities identified in Schedule I
hereto issuable upon exercise of the Securities".
<PAGE>
respect to the Securities and the offering thereof and,
except to the extent the Representatives shall agree in
writing to any modification thereof, shall be in all
substantive respects in the form furnished to you prior
to the Execution Time or, to the extent not completed
at the Execution Time, shall be in such form with only
such specific additional information and other changes
(beyond that contained in the Basic Prospectus and any
Preliminary Final Prospectus) as the Company has
advised you, prior to the Execution Time, will be
included or made therein.
(b) On the Effective Date, the Registration Statement
did or will, and when the Final Prospectus is first filed
(if required) in accordance with Rule 424(b) and on the
Closing Date, the Final Prospectus (as supplemented and
amended in the case of the Closing Date) will, comply in all
material respects with the applicable requirements of the
Act, the Securities Exchange Act of 1934 (the "Exchange
Act") and the Trust Indenture Act of 1939 (the "Trust
Indenture Act") and the respective rules thereunder; on the
Effective Date, the Registration Statement did not or will
not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or
necessary in order to make the statements therein not
misleading; on the Effective Date and on the Closing Date
the Indenture 5/ did or will comply in all material
respects with the requirements of the Trust Indenture Act
and the rules thereunder; and, on the Effective Date, the
Final Prospectus, if not filed pursuant to Rule 424(b), did
not or will not, and on the date of any filing pursuant to
Rule 424(b) and on the Closing Date, the Final Prospectus
(as supplemented and amended in the case of the Closing
Date) will not, include any untrue statement of a material
fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations
or warranties as to (i) that part of the Registration
Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee or (ii) the information
contained in or omitted from the Registration Statement or
the Final Prospectus (or any supplement thereto) in reliance
upon and in conformity with information furnished in writing
_______________________________
5/ If warrants are being offered, insert: "identified
in Schedule I hereto (the "Indenture")".
<PAGE>
to the Company by or on behalf of any Underwriter through
the Representatives specifically for inclusion in the
Registration Statement or the Final Prospectus (or any
supplement or amendment thereto).
(c) The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Basic Prospectus" shall mean the prospectus
referred to in paragraph (a) above contained in the
Registration Statement at the Effective Date including,
in the case of a Non-Delayed Offering, any Preliminary
Final Prospectus.
"Delayed Offering" shall mean an offering of
securities pursuant to Rule 415 which does not commence
promptly after the effective date of a registration
statement, with the result that only information
required pursuant to Rule 415 need be included in such
registration statement at the effective date thereof
with respect to the securities so offered.
"Effective Date" shall mean each date that the
Registration Statement and any post-effective amendment
or amendments thereto became or become effective and
each date after the date hereof on which a document
incorporated by reference in the Registration Statement
is filed.
"Execution Time" shall mean the date and time that
this Agreement is executed and delivered by the parties
hereto.
"Final Prospectus" shall mean the prospectus
supplement relating to the Securities that is first
filed pursuant to Rule 424(b) after the Execution Time,
together with the Basic Prospectus or, if, in the case
of a Non-Delayed Offering, no filing pursuant to
Rule 424(b) is required, shall mean the form of final
prospectus relating to the Securities, including the
Basic Prospectus, included in the Registration
Statement at the Effective Date.
"Non-Delayed Offering" shall mean an offering of
securities which is intended to commence promptly after
the effective date of a registration statement, with
the result that, pursuant to Rules 415 and 430A, all
information (other than Rule 430A Information) with
respect to the securities so offered must be included
<PAGE>
in such registration statement at the effective date
thereof.
"Preliminary Final Prospectus" shall mean any
preliminary prospectus supplement to the Basic
Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the
Final Prospectus.
"Registration Statement" shall mean the
registration statement referred to in paragraph (a)
above, including incorporated documents, exhibits and
financial statements, as amended at the Execution Time
(or, if not effective at the Execution Time, in the
form in which it shall become effective) and, in the
event any post-effective amendment thereto becomes
effective prior to the Closing Date (as hereinafter de
fined), shall also mean such registration statement as
so amended. Such term shall include any Rule 430A
Information deemed to be included therein at the
Effective Date as provided by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and
"Regulation S-K" refer to such rules or regulation
under the Act.
"Rule 430A Information" means information with
respect to the Securities and the offering thereof
permitted to be omitted from the Registration Statement
when it becomes effective pursuant to Rule 430A.
Any reference herein to the Registration Statement, the
Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were filed under the Exchange Act
on or before the Effective Date of the Registration
Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the
case may be; and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer
to and include the filing of any document under the Exchange
Act after the Effective Date of the Registration Statement
or the issue date of the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, as the case may
be, deemed to be incorporated therein by reference.
<PAGE>
(d) The Company and each of its subsidiaries (as
defined in Rule 405 under the Act) have been duly incorpo
rated and are validly existing as corporations in good
standing under the laws of their respective jurisdictions of
incorporation, are duly qualified to do business and are in
good standing as foreign corporations in each jurisdiction
in which their respective ownership or lease of property or
the conduct of their respective businesses requires such
qualification, and have all power and authority necessary to
own or hold their respective properties and to conduct the
businesses in which they are engaged; and none of the
subsidiaries of the Company (other than the subsidiaries of
the Company listed in Schedule I hereto or in Exhibit 22.1
of the Annual Report on Form 10-K of the Company filed with
the Commission under Section 13 of the Exchange Act for the
fiscal year of the Company most recently ended) is a
"significant subsidiary" as such term is defined in Rule 405
under the Act.
(e) [The] 6/ Indenture has been duly authorized,
executed and delivered by the Company and constitutes a
valid and binding agreement of the Company enforceable
against the Company in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating
to or affecting creditors' rights generally, by general
equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at
law) or by any implied covenant of good faith and fair
_______________________________
6/ If warrants are being offered, replace with: "The
Warrant Agreement has been duly authorized, executed and
delivered, and constitutes a legal, valid and binding
instrument enforceable against the Company in accordance
with its terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights
generally from time to time in effect); and the Securities
have been duly authorized and, when executed and
authenticated in accordance with the provisions of the
Warrant Agreement and delivered to and paid for by the
Underwriters pursuant to this Agreement, will constitute
legal, valid and binding obligations of the Company entitled
to the benefits of the Warrant Agreement; and the".
<PAGE>
dealing; and the [Securities] 7/ have been duly authorized,
and, when duly executed, authenticated, issued and delivered
as provided in the Indenture, 8/ will be duly and validly
issued and outstanding, and will constitute valid and
binding obligations of the Company entitled to the benefits
of the Indenture and enforceable in accordance with their
terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights
generally, by general equitable principles (regardless of
whether such enforceability is considered in a proceeding in
equity or at law) or by any implied covenant of good faith
and fair dealing; and the Securities 9/ , when issued and
delivered, will conform to the description thereof contained
in the Final Prospectus. 10/
(f) The execution, delivery and performance of this
Agreement by 11/ the Company and the consummation of the
_______________________________
7/ If warrants are being offered, replace with:
"securities identified in Schedule I hereto issuable upon
exercise of the Securities".
8/ If warrants are being offered, insert: "and the
Warrant Agreement".
9/ If convertible securities are being offered,
insert: "and the securities identified in Schedule I hereto
issuable upon conversion of the Securities".
If warrants are being offered, insert: "and the
securities identified in Schedule I hereto issuable upon
exercise of the Securities".
10/ If convertible debt securities are being offered,
insert: "and the holders of the outstanding shares of
capital stock of the Company are not entitled to any
preemptive or other rights to subscribe for the Securities
or the securities issuable upon the conversion thereof; and
the securities initially issuable upon conversion of the
Securities have been duly and validly authorized and
reserved for issuance upon such conversion and, when issued
upon conversion, will be validly issued, fully paid and
nonassessable;".
11/ If subordinated debt securities are being offered,
insert: "and the Indenture."
<PAGE>
transactions contemplated hereby and thereby will not
conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under,
or result in the imposition of any lien or security interest
on any property or assets of the Company or any of its
subsidiaries pursuant to, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries is bound or
to which any of the property or assets of the Company or any
of its subsidiaries is subject, nor will such actions result
in any violation of the provisions of the charter or by-laws
of the Company or any of its subsidiaries or any statute or
any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any
of its subsidiaries or any of their properties or assets;
and except for the registration of the Securities under the
Act and such consents, approvals, authorizations, registra
tions or qualifications as may be required under the Ex
change Act and applicable state securities laws in connec
tion with the purchase and distribution of the Securities by
the Underwriters, and except for filings or registrations
relating to the Securities required to be made with the
United States Department of Defense, no consent, approval,
authorization or order of, or filing or registration with,
any such court or governmental agency or body is required
for the execution, delivery and performance of this
Agreement or the Indenture by the Company and the consumma
tion of the transactions contemplated hereby and thereby.
(g) Neither the Company nor any of its subsidiaries
has sustained, since the date of the latest audited
financial statements included or incorporated by reference
in the Final Prospectus, any material loss or interference
with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the
Final Prospectus; and, since such date, there has not been
any change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any material adverse
change, or any development involving a prospective material
adverse change, in or affecting the general affairs, manage
ment, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a
-----------------------------
If warrants are being offered, insert: "and the
Warrant Agreement".
<PAGE>
whole, otherwise than as set forth or contemplated in the
Final Prospectus.
(h) The financial statements (including the related
notes and supporting schedules) included or incorporated by
reference in the Registration Statement or the Final
Prospectus present fairly the financial condition and
results of operations of the entities purported to be shown
thereby, at the dates and for the periods indicated, and
have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis
throughout the periods involved, except as otherwise stated
therein.
(i) Coopers & Lybrand, who have certified certain
financial statements of the Company, and whose report
appears in the Final Prospectus or is incorporated by
reference therein, are independent public accountants as
required by the Act and the rules and regulations thereun
der.
2. Purchase and Sale. Subject to the terms and
conditions and in reliance upon the representations and
warranties herein set forth, the Company agrees to sell to each
Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, at the purchase price set
forth in Schedule I hereto the amount of the Securities set forth
opposite such Underwriter's name in Schedule II hereto, except
that, if Schedule I hereto provides for the sale of Securities
pursuant to delayed delivery arrangements, the respective
principal amounts of Securities to be purchased by the
Underwriters shall be as set forth in Schedule II hereto less the
respective amounts of Contract Securities determined as provided
below. Securities to be purchased by the Underwriters are herein
sometimes called the "Underwriters' Securities" and Securities to
be purchased pursuant to Delayed Delivery Contracts as
hereinafter provided are herein called "Contract Securities".
If so provided in Schedule I hereto, the Underwriters
are authorized to solicit offers to purchase Securities from the
Company pursuant to delayed delivery contracts ("Delayed Delivery
Contracts") substantially in the form of Schedule III hereto but
with such changes therein as the Company may authorize or
approve. The Underwriters will endeavor to make such
arrangements and, as compensation therefor, the Company will pay
to the Representatives, for the account of the Underwriters, on
the Closing Date, the percentage set forth in Schedule I hereto
of the principal amount of the Securities for which Delayed
Delivery Contracts are made. Delayed Delivery Contracts are to
<PAGE>
be entered into with institutional investors, including commer
cial and savings banks, insurance companies, pension funds,
investment companies and educational and charitable institutions.
The Company will enter into Delayed Delivery Contracts in all
cases where sales of Contract Securities arranged by the
Underwriters have been approved by the Company, but, except as
the Company may otherwise agree, each such Delayed Delivery
Contract must be for not less than the minimum principal amount
set forth in Schedule I hereto and the aggregate principal amount
of Contract Securities may not exceed the maximum aggregate
principal amount set forth in Schedule I hereto. The
Underwriters will not have any responsibility in respect of the
validity or performance of Delayed Delivery Contracts. The
principal amount of Securities to be purchased by each
Underwriter as set forth in Schedule II hereto shall be reduced
by an amount which shall bear the same proportion to the total
principal amount of Contract Securities as the principal amount
of Securities set forth opposite the name of such Underwriter
bears to the aggregate principal amount of the Securities set
forth in Schedule II hereto, except to the extent that you
determine that such reduction shall be otherwise than in such
proportion and so advise the Company in writing; provided,
however, that the total principal amount of Securities to be
purchased by all Underwriters shall be the aggregate principal
amount set forth in Schedule II hereto less the aggregate
principal amount of Contract Securities.
3. Delivery and Payment. Delivery of and payment for
the Underwriters' Securities shall be made on the date and at the
time specified in Schedule I hereto (or such later date not later
than five business days after such specified date as the
Representatives shall designate), which date and time may be
postponed by agreement between the Representatives and the
Company or as provided in Section 8 hereof (such date and time of
delivery and payment for the Underwriters' Securities being
herein called the "Closing Date"). Delivery of the Underwriters'
Securities shall be made to the Representatives for the
respective accounts of the several Underwriters against payment
by the several Underwriters through the Representatives of the
purchase price thereof to or upon the order of the Company by
certified or official bank check or checks drawn on or by a New
York Clearing House bank and payable in next day funds. Delivery
of the Securities shall be made at such location as the
Representatives shall reasonably designate at least one business
day in advance of the Closing Date and payment for the Securities
shall be made at the office specified in Schedule I hereto.
Certificates for the Underwriters' Securities shall be registered
in such names and in such denominations as the Representatives
<PAGE>
may request not less than three full business days in advance of
the Closing Date.
The Company agrees to have the Underwriters' Securities
available for inspection, checking and packaging by the
Representatives in New York, New York, not later than 1:00 PM on
the business day prior to the Closing Date.
4. Agreements. The Company agrees with the several
Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution
Time, and any amendment thereto, to become effective as soon
as reasonably practicable thereafter. Prior to the
termination of the offering of the Securities, the Company
will not file any amendment of the Registration Statement or
amendments or supplement (including the Final Prospectus or
any Preliminary Final Prospectus) to the Basic Prospectus
unless the Company has furnished you a copy for your review
prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object.
Subject to the foregoing sentence, the Company will cause
the Final Prospectus, properly completed, and any supplement
thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Company will
promptly advise the Representatives (i) when the
Registration Statement, if not effective at the Execution
Time, and any amendment thereto, shall have become
effective, (ii) when the Final Prospectus, and any
supplement thereto, shall have been filed with the
Commission pursuant to Rule 424(b), (iii) when, prior to
termination of the offering of the Securities, any amendment
to the Registration Statement shall have been filed or
become effective, (iv) of any request by the Commission for
any amendment of the Registration Statement or supplement to
the Final Prospectus or for any additional information, (v)
of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement
or the institution or threatening of any proceeding for that
purpose and (vi) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction
or the initiation or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent
the issuance of any such stop order or the suspension of any
<PAGE>
such qualification and, if issued or suspended, to obtain as
soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any
event occurs as a result of which the Final Prospectus as
then supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary
to make the statements therein in the light of the
circumstances under which they were made not misleading, or
if it shall be necessary to amend the Registration Statement
or supplement the Final Prospectus to comply with the Act or
the Exchange Act or the respective rules thereunder, the
Company promptly will (i) prepare and file with the
Commission, subject to the second sentence of paragraph (a)
of this Section 4, an amendment or supplement which will
correct such statement or omission or effect such compliance
and (ii) supply any supplemented Final Prospectus to you in
such quantities as you may reasonably request.
(c) As soon as practicable, the Company will make
generally available to its security holders and to the
Representatives an earnings statement or statements of the
Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under
the Act.
(d) The Company will furnish promptly to the
Representatives and counsel for the Underwriters, without
charge, copies of the Registration Statement (including
exhibits thereto) and, so long as delivery of a prospectus
by an Underwriter or dealer may be required by the Act, as
many copies of any Preliminary Final Prospectus and the
Final Prospectus and any supplement thereto as the
Representatives may reasonably request. The Company will
pay the expenses of printing or other production of all
documents relating to the offering of Securities pursuant to
this Agreement.
(e) The Company will arrange for the qualification of
the Securities for sale under the laws of such jurisdictions
as the Representatives may designate and will maintain such
qualifications in effect so long as required for the
distribution of the Securities, except that the Company will
not be obligated to qualify the Securities in any such
jurisdiction in which such qualification would require the
Company to qualify to do business as a foreign corporation
or file a general consent to service of process; and will
<PAGE>
arrange for the determination of the legality of the
Securities for purchase by institutional investors.
(f) Until the date set forth on Schedule I hereto, the
Company will not, without the consent of the
Representatives, offer, sell or contract to sell, or
otherwise dispose of, directly or indirectly, or announce
the offering of, [any debt securities issued or guaranteed
by the Company 12/ (other than the Securities).] 13/
(g) The Company confirms as of the date hereof that it
is in compliance with all provisions of Section 1 of Laws of
Florida, Chapter 92-198, An Act Relating to Disclosure of
Doing Business with Cuba, and the Company further agrees
that if it commences engaging in business with the
government of Cuba or with any person or affiliate located
in Cuba after the date hereof, or if the information
reported in the Final Prospectus, if any, concerning the
Company's business with Cuba or with any person or affiliate
located in Cuba changes in any material way, the Company
will provide the Florida Department of Banking and Finance
(the "Department") notice of such business or change, as
appropriate, in a form acceptable to the Department.
5. Conditions to the Obligations of the Underwriters.
The obligations of the Underwriters to purchase the Underwriters'
Securities shall be subject to the accuracy of the
representations and warranties on the part of the Company
contained herein as of the Execution Time and the Closing Date,
to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the
_______________________________
12/ If warrants are being offered, insert: "or any
securities convertible into, or exchangeable for, debt
securities issued or guaranteed by the Company".
13/ If convertible debt securities are being offered,
replace with: "any equity securities of the Company or any
securities convertible into, or exchangeable for, equity
securities of the Company (other than the Securities);
provided, however, that the Company may issue and sell
equity securities of the Company pursuant to any employee
stock option plan, stock ownership plan or dividend
reinvestment plan of the Company in effect at the Execution
Time and the Company may issue equity securities issuable
upon the conversion of securities or the exercise of
warrants outstanding at the Execution Time."
<PAGE>
performance by the Company of its obligations hereunder and to
the following additional conditions:
(a) If the Registration Statement has not become
effective prior to the Execution Time, unless the
Representatives agree in writing to a later time, the
Registration Statement will become effective not later than
(i) 6:00 PM New York City time, on the date of determination
of the public offering price, if such determination occurred
at or prior to 3:00 PM New York City time on such date or
(ii) 12:00 Noon on the business day following the day on
which the public offering price was determined, if such
determination occurred after 3:00 PM New York City time on
such date; if filing of the Final Prospectus, or any supple
ment thereto, is required pursuant to Rule 424(b), the Final
Prospectus, and any such supplement, shall have been filed
in the manner and within the time period required by
Rule 424(b); and no stop order suspending the effectiveness
of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or
threatened.
(b)(1) The Company shall have furnished to the
Representatives the opinion of Michael B. Targoff, Esq.,
Senior Vice President and Secretary of the Company, dated
the Closing Date, to the effect that:
(i) the Company and each of its material subsidi
aries listed on Schedule I hereto (A) have been duly
incorporated and are validly existing as corporations
in good standing under the laws of their respective
jurisdictions of incorporation, (B) to the best of such
counsel's knowledge and information, are duly qualified
to do business and are in good standing as foreign
corporations in each jurisdiction in which their
respective ownership or lease of property or the
conduct of their respective businesses requires such
qualification (other than those jurisdictions in which
the failure to so qualify would not have a material
adverse effect on the Company or the Company and its
material subsidiaries listed on Schedule I hereto taken
as a whole), and (C) have all power and authority
necessary to own or hold their respective properties
and conduct the businesses in which they are engaged;
(ii) all the outstanding shares of capital stock
of each of the Company's material subsidiaries listed
on Schedule I hereto have been duly and validly
authorized and issued and are fully paid and
<PAGE>
nonassessable, and, except as otherwise set forth in
the Final Prospectus, all outstanding shares of capital
stock of the material subsidiaries listed on Schedule I
hereto are owned by the Company either directly or
through wholly owned subsidiaries free and clear of any
security interests, claims, liens or encumbrances;
(iii) the Company's authorized equity capital
ization is as set forth in the Final Prospectus; the
capital stock of the Company, and the Securities,
conform to the descriptions thereof contained in the
Final Prospectus; 14/ and, if the Final Prospectus
states that the Securities 15/ are to be listed on any
securities exchange, authorization therefor has been
given, subject to official notice of issuance and evi
dence of satisfactory distribution, or the Company has
filed a preliminary listing application and all
required supporting documents with respect to the
Securities 16/ with such securities exchange and such
_______________________________
14/ If convertible debt securities are being offered,
insert: "and the holders of the outstanding shares of
capital stock of the Company are not entitled to any
preemptive or other rights to subscribe for the Securities
or the securities issuable upon the conversion thereof; and
the securities initially issuable upon conversion of the
Securities have been duly and validly authorized and
reserved for issuance upon such conversion and, when issued
upon conversion, will be validly issued, fully paid and
nonassessable;".
15/ If convertible debt securities are being offered,
insert: "or the securities identified in Schedule I hereto
issuable upon conversion of the Securities".
If warrants are being offered, insert: "or the
securities identified is Schedule I hereto issuable upon
exercise of the Securities".
16/ If convertible debt securities are being offered,
insert: "and the securities issuable upon conversion of the
Securities".
If warrants are being offered, insert: "and the
securities issuable upon exercise of the Securities".
<PAGE>
counsel has no reason to believe that the
Securities 17/ will not be authorized for listing,
subject to official notice of issuance and evidence of
satisfactory distribution;
(iv) 18/ the Indenture conforms to the
requirements of the Trust Indenture Act and the
applicable rules and regulations thereunder, and has
been duly authorized, executed and delivered by the
Company and duly qualified under the Trust Indenture
Act and, assuming due authorization, execution and
delivery by the Trustee, constitutes a valid and
binding agreement of the Company enforceable against
the Company in accordance with its terms, except as
enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights
generally, by general equitable principles (regardless
of whether such enforceability is considered in a
proceeding in equity or at law) or by any implied
covenant of good faith and fair dealing; the
_______________________________
17/ If convertible debt securities are being offered,
insert: "or the securities issuable upon conversion of the
Securities, as the case may be,".
If warrants are being offered, insert "or the
securities issuable upon exercise of the Securities, as the
case may be,".
18/ If warrants are being offered, insert: "the Warrant
Agreement has been duly authorized, executed and delivered,
and constitutes a legal, valid and binding instrument
enforceable against the Company in accordance with its
terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights
generally from time to time in effect); and the Securities
have been duly authorized and, when executed and
authenticated in accordance with the provisions of the
Warrant Agreement and delivered to and paid for by the
Underwriters pursuant to this Agreement, will constitute
legal, valid and binding obligations of the Company
entitled to the benefits of the Warrant Agreement; and".
<PAGE>
[Securities] 19/ have been duly authorized by the
Company, and, when duly executed, authenticated, issued
and delivered as provided in the Indenture and
delivered to and paid for by the Underwriters pursuant
to [this Agreement, in the case of the Underwriters'
Securities, or by the purchasers thereof pursuant to
Delayed Delivery Contracts, in the case of any Contract
Securities] 20/ , will be duly and validly issued and
outstanding, and will constitute valid and binding
obligations of the Company entitled to the benefits of
the Indenture and enforceable in accordance with their
terms, except as enforceability may be limited by bank
ruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditors'
rights generally, by general equitable principles
(regardless of whether such enforceability is
considered in a proceeding in equity or at law) or by
any implied covenant of good faith and fair dealing;
(v) to the best of such counsel's knowledge and
information and other than as set forth in the Final
Prospectus, there are no legal or governmental proceed
ings pending to which the Company or any of its
subsidiaries is a party or of which any property or
assets of the Company or any of its subsidiaries is the
subject which, if determined adversely to the Company
or any of its subsidiaries, might have a material
adverse effect on the consolidated financial position,
stockholders' equity, results of operations, business
or prospects of the Company and its subsidiaries; and,
to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by
governmental authorities or threatened by others and
there is no franchise, contract or other document of a
character required to be described in the Registration
Statement or Final Prospectus, or to be filed as an
exhibit, which is not described or filed as required;
and the statements included or incorporated in the
Final Prospectus describing any legal proceedings or
material contracts or agreements relating to the
Company fairly summarize such matters; and, to the best
_______________________________
19/ If warrants are being offered, replace with:
"securities identified in Schedule I hereto issuable upon
exercise of the Securities".
20/ If warrants are being offered, replace with: "the
Warrant Agreement".
<PAGE>
of such counsel's knowledge and information, no default
exists in the due performance or observance of any
material obligation, agreement, covenant or condition
contained in any franchise, contract or other document
so described or filed;
(vi) the Registration Statement has become
effective under the Act; any required filing of the
Basic Prospectus, any Preliminary Final Prospectus and
the Final Prospectus, and any supplements thereto,
pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b); to the
best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration
Statement has been issued, no proceedings for that
purpose have been instituted or threatened, and the
Registration Statement and the Final Prospectus (other
than the financial statements and notes thereto and
supporting schedules and other financial and
statistical information contained therein as to which
such counsel need express no opinion) comply as to form
in all material respects with the applicable
requirements of the Act, the Exchange Act and the Trust
Indenture Act and the respective rules thereunder;
(vii) this Agreement and any Delayed Delivery
Contracts have been duly authorized, executed and
delivered by the Company;
(viii) no consent, approval, authorization or
order of any court or governmental agency or body is
required for the consummation of the transactions
contemplated herein or in any Delayed Delivery
Contracts or for the performance by the Company of its
obligations under the Securities, except such as have
been obtained under the Act and such as may be required
under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the
Securities by the Underwriters and such other approvals
(specified in such opinion) as have been obtained; and
(ix) neither the execution and delivery of the
Indenture, 21/ the issue and sale of, and performance
by the Company of its obligations under, the
Securities, nor the consummation of any other of the
_______________________________
21/ If warrants are being offered, insert: "and the
Warrant Agreement".
<PAGE>
transactions herein contemplated nor the fulfillment of
the terms hereof or of any Delayed Delivery Contracts
will conflict with, result in a breach or violation of,
or constitute a default under, or result in the
creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company
or any of its subsidiaries pursuant to, (A) any law or
the charter or by-laws of the Company, (B) the terms of
any indenture or other agreement or instrument known to
such counsel and to which the Company or any of its
material subsidiaries listed on Schedule I hereto is a
party or bound, or (C) any judgment, order or decree
known to such counsel to be applicable to the Company
or any of its subsidiaries of any court, regulatory
body, administrative agency, governmental body or
arbitrator having jurisdiction over the Company or any
of its subsidiaries; 22/
Such counsel shall also state that on the basis of
his involvement in the preparation of the Registration
Statement and although he has not verified the accuracy
or completeness of the statements contained therein or
in any amendment thereto, nothing has come to his
attention that causes him to believe that at the
Effective Date the Registration Statement contained any
untrue statement of a material fact or omitted to state
any material fact (other than the financial statements
and notes thereto and supporting schedules and other
financial and statistical data derived therefrom
included or incorporated by reference therein) required
to be stated therein or necessary to make the state
ments therein not misleading or that the Final Prospec
tus (other than the financial statements and notes
thereto and supporting schedules and other financial
and statistical data derived therefrom included or
incorporated by reference therein) includes any untrue
statement of a material fact or omits to state a
material fact necessary to make the statements therein,
in the light of the circumstances under which they were
made, not misleading;
(2) The Company also shall have furnished to the
Representatives the opinion of Willkie Farr & Gallagher,
_______________________________
22/ If convertible securities are being offered,
insert: "(x) no holders of securities of the Company have
rights to the registration of such securities under the
Registration Statement;".
<PAGE>
counsel for the Company, dated the Closing Date, to the same
effect as that described in the preceding paragraph (b)(1)
of this Section 5, except for subparagraphs (i)(B), (ii),
(v) and (ix)(C) thereof.
In rendering such opinions, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction
other than the State of New York or the United States, to the
extent deemed proper and specified in such opinion, upon the
opinion of other counsel of good standing believed to be reliable
and who are satisfactory to counsel for the Underwriters and (B)
as to matters of fact, to the extent deemed proper, on
certificates of responsible officers of the Company and public
officials. References to the Final Prospectus in this
paragraph (b) include any supplements thereto at the Closing
Date.
(c) The Representatives shall have received from
Cravath, Swaine & Moore, counsel for the Underwriters, such
opinion or opinions, dated the Closing Date, with respect to
the issuance and sale of the Securities, the Indenture, any
Delayed Delivery Contracts, the Registration Statement, the
Final Prospectus (together with any supplement thereto) and
other related matters as the Representatives may reasonably
require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(d) The Company shall have furnished to the Repre
sentatives a certificate of the Company, signed by the
Chairman of the Board, President, Chief Executive Officer or
Senior Vice President, and by the principal financial or
accounting officer, of the Company, dated the Closing Date,
to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Final
Prospectus, any supplement to the Final Prospectus and this
Agreement and that:
(i) the representations and warranties of the
Company in this Agreement are true and correct in all
material respects on and as of the Closing Date with
the same effect as if made on the Closing Date and the
Company has complied with all the agreements and
satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no
<PAGE>
proceedings for that purpose have been instituted or,
to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus (exclusive
of any supplement thereto), there has been no material
adverse change or any development involving a
prospective material adverse change in the condition
(financial or other), earnings, business or properties
of the Company and its subsidiaries, whether or not
arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the
Final Prospectus (exclusive of any supplement thereto).
(e) At the Closing Date, Coopers & Lybrand shall have
furnished to the Representatives a letter or letters (which
may refer to letters previously delivered to the
Representatives), dated as of the Closing Date, in form and
substance satisfactory to the Representatives, confirming
that they are independent accountants within the meaning of
the Act and the Exchange Act and the respective applicable
published rules and regulations thereunder and stating to
the effect set forth in Exhibit A to Schedule I hereto.
References to the Final Prospectus in this
paragraph (e) include any supplement thereto at the date of
the letter.
In addition, if so provided in Schedule I hereto, at
the Execution Time, Coopers & Lybrand shall have furnished
to the Representatives a letter or letters, dated as of the
Execution Time, in form and substance satisfactory to the
Representatives, to the effect set forth above (including
Exhibit A to Schedule I hereto).
(f) Subsequent to the Execution Time or, if earlier,
the dates as of which information is given in the
Registration Statement (exclusive of any amendment thereof)
and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or
decrease specified in the letter or letters referred to in
paragraph (e) of this Section 5 or (ii) any change, or any
development involving a prospective change, in or affecting
the business or properties of the Company and its
subsidiaries the effect of which, in any case referred to in
clause (i) or (ii) above, is, in the judgment of the
Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the
<PAGE>
Registration Statement (exclusive of any amendment thereof)
and the Final Prospectus (exclusive of any supplement
thereto).
(g) Subsequent to the Execution Time, there shall not
have been any decrease in the rating of any of the Company's
debt securities or preferred stock by any "nationally
recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given
of any intended or potential decrease in any such rating or
of a possible change in any such rating that does not
indicate the direction of the possible change.
(h) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information,
certificates and documents as the Representatives may
reasonably request.
(i) The Company shall have accepted Delayed Delivery
Contracts in any case where sales of Contract Securities
arranged by the Underwriters have been approved by the
Company.
If any of the conditions specified in this Section 5
shall not have been fulfilled in all material respects when and
as provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall
not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time prior
to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Company in writing or by
telephone or telegraph confirmed in writing.
6. Reimbursement of Underwriters' Expenses. If the
sale of the Securities provided for herein is not consummated
because any condition to the obligations of the Underwriters set
forth in Section 5 hereof is not satisfied, because of any
termination pursuant to Section 9 hereof or because of any
refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof
other than by reason of a default by any of the Underwriters, the
Company will reimburse the Underwriters severally upon demand for
all reasonable out-of-pocket expenses (including reasonable fees
and disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of the
Securities.
<PAGE>
7. Indemnification and Contribution. (a) The Company
shall indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning
of the Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage,
liability or action relating to purchases and sales of
Securities), to which that Underwriter or controlling person may
become subject, under the Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based
upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in the Basic Prospectus, any Preliminary
Final Prospectus, the Registration Statement or the Final
Prospectus or in any amendment or supplement thereto or (ii) the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and shall reimburse each Underwriter and
each such controlling person promptly upon demand for any legal
or other expenses incurred by that Underwriter or controlling
person in connection with investigating or defending or preparing
to defend against any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the
Company shall not be liable in any such case to the extent that
any such loss, claim, damage, liability or action arises out of,
or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in the Basic
Prospectus, any Preliminary Final Prospectus, the Registration
Statement or the Final Prospectus or in any such amendment or
supplement in reliance upon and in conformity with written infor
mation furnished to the Company through the Representatives by or
on behalf of any Underwriter specifically for inclusion therein;
and provided further, however, that as to any Preliminary Final
Prospectus, the foregoing indemnity agreement shall not inure to
the benefit of any Underwriter or any person controlling that
Underwriter on account of any loss, claim, damage, liability or
action arising from the sale of Securities to any person by that
Underwriter if that Underwriter failed to send or give a copy of
the Final Prospectus, as the same may be amended or supplemented,
to that person within the time required by the Act, and the
untrue statement or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact in such
Preliminary Final Prospectus was corrected in the Final
Prospectus, unless such failure resulted from noncompliance by
the Company with Section 4(d). For purposes of the last proviso
to the immediately preceding sentence, the term "Final
Prospectus" shall not be deemed to include the documents
incorporated therein by reference, and no Underwriter shall be
obligated to send or give any supplement or amendment to any
document incorporated by reference in any the Preliminary Final
<PAGE>
Prospectus or the Final Prospectus to any person other than a
person to whom such Underwriter had delivered such incorporated
document or documents in response to a written request therefor.
The foregoing indemnity agreement is in addition to any liability
which the Company may otherwise have to any Underwriter or to any
controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall
indemnify and hold harmless the Company, each of its directors
(including any person who, with his or her consent, is named in
the Registration Statement as about to become a director of the
Company), each of its officers who signed the Registration
Statement and each person, if any, who controls the Company
within the meaning of the Act, from and against any loss, claim,
damage or liability, joint or several, or any action in respect
thereof, to which the Company or any such director, officer or
controlling person may become subject, under the Act or
otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement
or alleged untrue statement of a material fact contained in any
Preliminary Final Prospectus, the Registration Statement or the
Final Prospectus or in any amendment or supplement thereto or
(ii) the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, but in each case only to the
extent that the untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company
through the Representatives by or on behalf of that Underwriter
specifically for inclusion therein, and shall reimburse the
Company and any such director, officer or controlling person for
any legal or other expenses reasonably incurred by the Company or
any such director, officer or controlling person in connection
with investigating or defending or preparing to defend against
any such loss, claim, damage, liability or action as such
expenses are incurred. The foregoing indemnity agreement is in
addition to any liability which any Underwriter may otherwise
have to the Company or any such director, officer or controlling
person.
(c) Promptly after receipt by an indemnified party
under this Section 7 of notice of any claim or the commencement
of any action, the indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the claim
or the commencement of that action; provided, however, that the
failure to notify the indemnifying party shall not relieve it
from any liability which it may have under this Section 7 except
to the extent it has been materially prejudiced by such failure
<PAGE>
and, provided further, that the failure to notify the indemnify
ing party shall not relieve it from any liability which it may
have to an indemnified party otherwise than under this Section 7.
If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party
thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense
thereof with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such
claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 7 for any legal or other
expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs
of investigation; provided, however, that any indemnified party
shall have the right to employ separate counsel in any such
action and to participate in the defense thereof but the fees and
expenses of such counsel shall be at the expense of such
indemnified party unless (i) the employment thereof has been
specifically authorized by the indemnifying party in writing,
(ii) such indemnified party shall have been advised by such
counsel that there may be one or more legal defenses available to
it which are different from or additional to those available to
the indemnifying party and in the reasonable judgment of such
counsel it is advisable for such indemnified party to employ
separate counsel or (iii) the indemnifying party has failed to
assume the defense of such action and employ counsel reasonably
satisfactory to the indemnified party, in which case, if such
indemnified party notifies the indemnifying party in writing that
it elects to employ separate counsel at the expense of the
indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such
indemnified party, it being understood, however, that the
indemnifying party shall not, in connection with any one such
action or separate but substantially similar or related actions
in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys at any
time for all such indemnified parties, which firm shall be
designated in writing by the Representatives, if the indemnified
parties under this Section 7 consist of any Underwriter or any of
their respective controlling persons, or by the Company, if the
indemnified parties under this Section 7 consist of the Company
or any of the Company's directors, officers or controlling
persons. Each indemnified party, as a condition of the indemnity
agreements contained in Sections 7(a) and 7(b), shall use its
best efforts to cooperate with the indemnifying party in the
defense of any such action of claim. No indemnifying party shall
<PAGE>
be liable for any settlement of any such action effected without
its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be
a final judgment of the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by
reason of such settlement or judgment.
(d) If the indemnification provided for in this
Section 7 shall for any reason be unavailable to or insufficient
to hold harmless an indemnified party under Section 7(a) or 7(b)
in respect of any loss, claim, damage or liability, or any action
in respect thereof, referred to therein, then each indemnifying
party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be
appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other from
the offering of the Securities or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law or if the
indemnified party failed to give the notice required under Sec
tion 7(c) and as a result is not entitled to indemnification
thereunder, 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 with respect to the statements or
omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other
relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on
the other with respect to such offering shall be deemed to be in
the same proportion as the total net proceeds from the offering
of the Securities purchased under this agreement (before
deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the
Underwriters with respect to the shares of the Securities
purchased under this Agreement, in each case as set forth in the
table on the cover page of the Final Prospectus. The relative
fault shall be determined by reference to whether the untrue or
alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information
supplied by the Company or the Underwriters, the intent of the
parties and their relative 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 contributions pursuant to this Section 7(d) were
to be determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other
<PAGE>
method of allocation which does not take into account the
equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim,
damage or liability, or action in respect thereof, referred to
above in this Section 7(d) shall be deemed to include, for
purposes of this Section 7(d), any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7(d), no
Underwriter shall 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 which such Under
writer has otherwise paid or become liable to pay by reason of
any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations
to contribute as provided in this Section 7(d) are several in
proportion to their respective underwriting obligations and not
joint.
(e) The Underwriters severally confirm that the
statements with respect to distribution by the Underwriters of
the Securities set forth on the cover page of, and under the
caption "Underwriting" or "Plan of Distribution" in, the Final
Prospectus are correct and constitute the only information
furnished in writing to the Company by or on behalf of the
Underwriters specifically for inclusion in the Registration
Statement and the Final Prospectus.
8. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the
Securities agreed to be purchased by such Underwriter or
Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their
obligations under this Agreement, the remaining non-defaulting
Underwriters shall be obligated severally to purchase and pay for
(in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bears to the
aggregate amount of Securities set forth opposite the names of
all the remaining Underwriters) the Securities which the
defaulting Underwriter or Underwriters agreed but failed to pur
chase; provided, however, that the remaining non-defaulting
Underwriters shall not be obligated to purchase any of the
Securities if the aggregate amount of Securities which the
defaulting Underwriter or Underwriters agreed but failed to
purchase exceeds 9.09% of the aggregate amount of Securities and
<PAGE>
any remaining non-defaulting Underwriter shall not be obligated
to purchase more than 110% of the amount of Securities set forth
opposite its name in Schedule II hereto. If the foregoing
maximums are exceeded, the remaining non-defaulting Underwriters,
or those other underwriters satisfactory to the Representatives
who so agree, shall have the right, but shall not be obligated,
to purchase, in such proportion as may be agreed upon among them,
all the Securities to be purchased by the defaulting Underwriter
or Underwriters. If the remaining Underwriters or other
underwriters satisfactory to the Representatives do not elect to
purchase Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase, this Agreement shall
terminate without liability on the part of any non-defaulting
Underwriter or the Company except that the Company will continue
to be liable for the payment of expenses to the extent set forth
in Sections 4 and 6. As used in this Agreement, the term
"Underwriter" includes, for all purposes of this Agreement unless
the context requires otherwise, any party not listed in
Schedule II hereto who, pursuant to this Section 8, purchases
Securities which a defaulting Underwriter agreed but failed to
purchase.
Nothing contained herein shall relieve a defaulting
Underwriter of any liability it may have to the Company for
damages caused by its default. If other underwriters are
obligated or agree to purchase the Securities of a defaulting or
withdrawing Underwriter, either the Representatives or the
Company may postpone the Closing Date for up to seven full
business days in order to effect any changes that in the opinion
of counsel for the Company or counsel for the Underwriters may be
necessary in the Registration Statement, the Final Prospectus or
in any other document or arrangement.
9. Termination. This Agreement shall be subject to
termination at the option of the Representatives, by notice given
to the Company prior to delivery of and payment for the
Securities, if prior to such time (i) trading in securities
generally or in the Company's Common Stock on the New York Stock
Exchange, the American Stock Exchange or the over-the-counter
market shall have been suspended or limited or minimum prices
shall have been established on either of such exchanges or such
market by the Commission or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking
moratorium shall have been declared by Federal or state
authorities, (iii) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities
involving the United States or there shall have been a
declaration of a national emergency or war by the United States
or (iv) there shall have occurred such a material adverse change
<PAGE>
in general economic, political or financial conditions (or the
effect of international conditions on the financial markets in
the United States shall be such) as to make it, in the judgment
of a majority in interest of the Underwriters, impracticable or
inadvisable to proceed with the public offering or delivery of
the Securities on the terms and in the manner contemplated by the
Final Prospectus (exclusive of any supplement thereto).
10. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities
and other statements of the Company or its officers and of the
Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in
Section 7 hereof, and will survive delivery of and payment for
the Securities. The provisions of Sections 6 and 7 hereof shall
survive the termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to the
Representatives, will be mailed, delivered or telegraphed and
confirmed to them, at the address specified in Schedule I hereto;
or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at 600 Third Avenue, New York,
N.Y. 10016, attention of Michael B. Targoff, Senior Vice
President and Secretary.
12. Successors. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their
respective successors and the officers and directors and
controlling persons referred to in Section 7 hereof, and no other
person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed
by and construed in accordance with the laws of the State of New
York, without giving effect to the choice of law or conflicts of
laws principles thereof.
<PAGE>
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to us the
enclosed duplicate hereof, whereupon this letter and your
acceptance shall represent a binding agreement among the Company
and the several Underwriters.
Very truly yours,
LORAL CORPORATION
By:
_________________________
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
By:
______________________
Name:
Title:
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
<PAGE>
SCHEDULE I
[Debt Securities]
Underwriting Agreement dated ___________ __, 199_
Registration Statement No. _________
Representatives:
Title, Purchase Price and Description of Securities:
Title:
Principal amount:
Purchase price (include accrued interest or amortization, if
any):
Conversion provisions:
Subordination provisions:
Sinking fund provisions:
Redemption provisions:
Closing Date, Time and Location:
Delayed Delivery Arrangements:
Date referred to in Section 4(f) before which the Company may not
offer or sell [debt securities issued or guaranteed by the
Company] 23/ without the consent of the Representatives:
Whether letter from Coopers & Lybrand is required to be delivered
pursuant to Section 5(e) at the Execution Time:
List any additional "significant subsidiaries" of the Company, as
referred to in Section 1(d):
List of "material subsidiaries" of the Company, as referred to in
Section 5(b)(1):
- ----------------------
23/ If convertible debt securities are being offered, replace with: "any equity
securities of the Company or any securities convertible into, or exchangeable
for, equity securities of the Company".
<PAGE>
SCHEDULE I
[Warrants]
Underwriting Agreement Dated:
Registration Statement No.
Representative(s):
Title, Purchase Price and Description of Securities Issuable Upon
Exercise of Warrants:
Title:
Indenture:
Principal amount:
Sinking fund provisions:
Redemption provisions:
Other provisions:
Description of Warrants:
Title of Warrants:
Number of Warrants:
Purchase price:
Warrant Agent:
Warrant exercise price and date:
Principal amount of securities issuable upon exercise of one
Warrant:
Date after which Warrants may be exercised:
Expiration date:
Detachable date:
Closing Date, Time and Location:
Delayed Delivery Arrangements:
<PAGE>
Date referred to in Section 4(f) before which the Company may not
offer or sell debt securities issued or guaranteed by the Company
or any securities convertible into, or exchangeable for, debt
securities issued or guaranteed by the Company without the
consent of the Representatives:
Whether letter from Coopers & Lybrand is required to be delivered
pursuant to Section 5(e) at the Execution Time:
List any additional "significant subsidiaries" of the Company, as
referred to in Section 1(d):
List of "material subsidiaries" of the Company, as referred to in
Section 5(b)(1):
<PAGE>
EXHIBIT A TO SCHEDULE I
In the letter or letters furnished to the
Representatives pursuant to Section 5(e), Coopers & Lybrand
shall, subject to such limitations and qualifications as are
required by applicable accounting rules and standards including,
without limitation, the Statement on Auditing Standards Number
72, state in effect that:
(1) in their opinion the audited financial statements
and financial statement schedules included or incorporated
in the Registration Statement and the Final Prospectus and
reported on by them comply as to form in all material
respects with the applicable accounting requirements of the
Act and the Exchange Act and the related published rules and
regulations;
(2) they have read the minutes of the meetings of the
Stockholders, the Board of Directors and the Executive and
Audit and Government Compliance Committees of the Company
and carried out certain other procedures to a period at
least five days prior to the date of this letter as follows:
(a) with respect to the unaudited financial
statements included or incorporated in the Registration
Statement and the Final Prospectus;
(i) read any unaudited financial statements
included or incorporated in the Registration
Statement and the Final Prospectus and agreed the
amounts contained therein with the Company's
accounting records for the corresponding periods;
(ii) inquired of certain officials of the
Company who have responsibility for financial and
accounting matters whether the unaudited financial
statements referred to in clause (i) above are in
conformity with generally accepted accounting
principles applied on a basis substantially
consistent with that of the audited financial
statements incorporated by reference in the
Registration Statement and the Final Prospectus,
and whether such financial statements comply as to
form in all material respects with the applicable
accounting requirements of the Exchange Act as it
applies to Form 10-Q and the related published
rules and regulations;
<PAGE>
(b) with respect to the period subsequent to the
date of the most recent financial statements (other
than any capsule information), audited or unaudited, in
or incorporated in the Registration Statement and the
Final Prospectus, inquired of certain officials of the
Company who have responsibility for financial and
accounting matters: (i) whether there was any change in
the common stock or capital surplus (other than
issuances of Common Stock upon the exercise of stock
options outstanding as of the date of the most recent
financial statements or pursuant to Company benefit
plans), increase in consolidated long-term debt,
including the current portion thereof or any
significant change in the consolidated net current
assets (for the purposes of this paragraph the term
"significant" shall mean a net change of greater than
5%) or any decrease in the shareholders' equity of the
Company as compared with the amounts shown on the most
recent consolidated balance sheet incorporated by
reference in the Registration Statement and the Final
Prospectus; or (ii) with respect to the period from the
date of the most recent financial statements
incorporated by reference in the Registration Statement
and the Final Prospectus to the specified date referred
to above, whether there were any decreases, as compared
with the corresponding period in the preceding year, in
consolidated sales or in the total or per-share amounts
of income before the cumulative effect of changes in
accounting or of net income;
(3) if unaudited pro forma financial statements are
included or incorporated in the Registration Statement and
the Final Prospectus, on the basis of a reading of the
unaudited pro forma financial statements, carrying out
certain specified procedures, inquiries of certain officials
of the Company and the acquired company who have
responsibility for financial and accounting matters, and
proving the arithmetic accuracy of the application of the
pro forma adjustments to the historical amounts in the pro
forma financial statements, nothing came to their attention
which caused them to believe that the pro forma financial
statements do not comply in form in all material respects
with the applicable accounting requirements of Rule 11-02 of
Regulation S-X or that the pro forma adjustments have not
been properly applied to the historical amounts in the
compilation of such statements; and
<PAGE>
(4) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical
nature (which is limited to accounting, financial or
statistical information derived from the general accounting
records of the Company and its subsidiaries) set forth in
the Registration Statement and the Final Prospectus,
including, without limitation, Exhibit 12 to the
Registration Statement, and in Items 1, 6 and 7 of the
Company's Annual Report on Form 10-K incorporated by
reference in the Registration Statement and the Final
Prospectus, agrees with the accounting records of the
Company and its subsidiaries, excluding any questions of
legal interpretation.
<PAGE>
SCHEDULE II
Principal Amount
of Securities to
Underwriters be Purchased
- ------------ -----------------
________________
Total . . . . . . . ================
<PAGE>
SCHEDULE III
Delayed Delivery Contract
, 19
[Insert name and address
of lead representative]
Dear Sirs:
The undersigned hereby agrees to purchase from Loral
Corporation (the "Company"), and the Company agrees to sell to
the undersigned, on , 19 , (the "Delivery Date"),
$ principal amount of the Company's
(the "Securities") offered by the Company's Prospectus dated
, 19 , receipt of a copy of which is hereby
acknowledged, at a purchase price of % of the principal amount
thereof, plus [accrued interest] [amortization of original issue
discount], if any, thereon from , 19 , to the date
of payment and delivery, and on the further terms and conditions
set forth in this contract.
Payment for the Securities to be purchased by the
undersigned shall be made on or before 11:00 AM, New York City
time, on the Delivery Date to or upon the order of the Company in
New York Clearing House (next day) funds, at your office or at
such other place as shall be agreed between the Company and the
undersigned, upon delivery to the undersigned of the Securities
in definitive fully registered form and in such authorized
denominations and registered in such names as the undersigned may
request by written or telegraphic communication addressed to the
Company not less than five full business days prior to the
Delivery Date. If no request is received, the Securities will be
registered in the name of the undersigned and issued in a
denomination equal to the aggregate principal amount of
Securities to be purchased by the undersigned on the Delivery
Date.
The obligation of the undersigned to take delivery of
and make payment for Securities on the Delivery Date, and the
obligation of the Company to sell and deliver Securities on the
Delivery Date, shall be subject to the conditions (and neither
party shall incur any liability by reason of the failure thereof)
that (1) the purchase of Securities to be made by the
<PAGE>
undersigned, which purchase the undersigned represents is not
prohibited on the date hereof, shall not on the Delivery Date be
prohibited under the laws of the jurisdiction to which the
undersigned is subject, and (2) the Company, on or before the
Delivery Date, shall have sold to certain underwriters (the
"Underwriters") such principal amount of the Securities as is to
be sold to them pursuant to the Underwriting Agreement referred
to in the Prospectus and Prospectus Supplement mentioned above.
Promptly after completion of such sale to the Underwriters, the
Company will mail or deliver to the undersigned at its address
set forth below notice to such effect, accompanied by a copy of
the opinion of counsel for the Company delivered to the
Underwriters in connection therewith. The obligation of the
undersigned to take delivery of and make payment for the
Securities, and the obligation of the Company to cause the
Securities to be sold and delivered, shall not be affected by the
failure of any purchaser to take delivery of and make payment for
the Securities pursuant to other contracts similar to this
contract.
This contract will inure to the benefit of and be
binding upon the parties hereto and their respective successors,
but will not be assignable by either party hereto without the
written consent of the other.
It is understood that acceptance of this contract and
other similar contracts is in the Company's sole discretion and,
without limiting the foregoing, need not be on a first come,
first served basis. If this contract is acceptable to the
Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts
hereof to the undersigned at its address set forth below. This
will become a binding contract between the Company and the
<PAGE>
undersigned, as of the date first above written, when such
counterpart is so mailed or delivered.
This agreement shall be governed by and construed in
accordance with the laws of the State of New York.
Very truly yours,
_________________________________
(Name of Purchaser)
By_______________________________
(Signature and Title of Officer)
_________________________________
(Address)
Accepted:
LORAL CORPORATION
By:___________________________
Title:
EXHIBIT 1.1(b)
LORAL CORPORATION
Form of Underwriting Agreement
[Common Stock, Preferred Stock
and Equity Warrants]
New York, New York
To the Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Dear Sirs:
Loral Corporation, a New York corporation (the
"Company"), proposes to sell to the underwriters named in
Schedule II hereto (the "Underwriters"), for whom you (the
"Representatives") are acting as representatives, [the number of
shares of Common Stock, $ par value, of the Company ("Common
Stock"), set forth in Schedule I hereto (the "Underwritten
Securities").] 1/ The Company also proposes to grant to the
Underwriters an option to purchase up to the amount of additional
_______________________________
1/ If preferred stock is being offered, replace
with: "the number of shares of Preferred Stock, $ par
value, of the Company ("Preferred Stock"), set forth in
Schedule I hereto (the "Underwritten Securities")."
If warrants are being offered, replace with: "the
warrants (the "Warrants") indicated in Schedule I hereto
(the "Underwritten Securities") to be issued pursuant to the
Warrant Agreement listed in Schedule I hereto (the "Warrant
Agreement") between the Company and the Warrant Agent listed
in Schedule I hereto."
<PAGE>
[shares of Common Stock] 2/ set forth in Schedule I hereto (the
"Option Securities"; the Option Securities, together with the
Underwritten Securities, being hereinafter called the
"Securities"). If the firm or firms listed in Schedule II hereto
include only the firm or firms listed in Schedule I hereto, then
the terms "Underwriters" and "Representatives", as used herein,
shall each be deemed to refer to such firm or firms.
1. Representations and Warranties. The Company
represents and warrants to, and agrees with, each Underwriter as
set forth below in this Section 1. Certain terms used in this
Section 1 are defined in paragraph (c) hereof.
(a) The Company meets the requirements for the use of
Form S-3 under the Securities Act of 1933 (the "Act") and
has filed with the Securities and Exchange Commission (the
"Commission") a registration statement (the file number of
which is set forth in Schedule I hereto) on such Form,
including a basic prospectus, for registration under the Act
of the offering and sale of the Securities. If the offering
of the Securities is a Delayed Offering (as specified in
Schedule I hereto), paragraph (i) below is applicable and,
if the offering of the Securities is a Non-Delayed Offering
(as so specified), paragraph (ii) below is applicable.
(i) The Company may have filed with the
Commission one or more amendments to such registration
statement, and may have used a Preliminary Final
Prospectus, each of which has previously been furnished
to you. Such registration statement, as so amended,
has become effective. The offering of the Securities
is a Delayed Offering and, although the Basic
Prospectus may not include all the information with
respect to the Securities and the offering thereof
required by the Act and the rules thereunder to be
included in the Final Prospectus, the Basic Prospectus
includes all such information required by the Act and
the rules thereunder to be included therein as of the
Effective Date. The Company will hereafter file with
the Commission pursuant to Rules 415 and 424(b)(2) or
(5) a final supplement to the form of prospectus
_______________________________
2/ If preferred stock is being offered, replace
with: "shares of Preferred Stock".
If warrants are being offered, replace
with: "Warrants".
<PAGE>
included in such registration statement relating to the
Securities and the offering thereof. As filed, such
final prospectus supplement shall include all required
information with respect to the Securities and the
offering thereof 3/ and, except to the extent the
Representatives shall agree in writing to any
modification thereof, shall be in all substantive
respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the
Execution Time, shall be in such form with only such
specific additional information and other changes
(beyond that contained in the Basic Prospectus and any
Preliminary Final Prospectus) as the Company has
advised you, prior to the Execution Time, will be
included or made therein.
(ii) The Company may have filed with the
Commission one or more amendments to such registration
statement, including a Preliminary Final Prospectus,
each of which has previously been furnished to you.
The Company will hereafter file with the Commission
either (x) a final prospectus supplement relating to
the Securities in accordance with Rules 430A and
424(b)(1) or (4), or (y) prior to the effectiveness of
such registration statement, an amendment to such
registration statement, including the form of final
prospectus supplement. In the case of clause (x), the
Company has included in such registration statement, as
amended at the Effective Date, all information (other
than Rule 430A Information) required by the Act and the
rules thereunder to be included in the Final Prospectus
with respect to the Securities and the offering
thereof. 4/ As filed, such final prospectus supple
ment or such amendment and form of final prospectus
supplement shall contain all Rule 430A Information,
together with all other such required information, with
respect to the Securities and the offering thereof and,
except to the extent the Representatives shall agree in
writing to any modification thereof, shall be in all
_______________________________
3/ If warrants are being offered, insert: ", and with
respect to the equity Securities identified in Schedule I
hereto issuable upon exercise of the Securities,".
4/ If warrants are being offered, insert: ", and with
respect to the equity Securities identified in Schedule I
hereto issuable upon exercise of the Securities".
<PAGE>
substantive respects in the form furnished to you prior
to the Execution Time or, to the extent not completed
at the Execution Time, shall be in such form with only
such specific additional information and other changes
(beyond that contained in the Basic Prospectus and any
Preliminary Final Prospectus) as the Company has
advised you, prior to the Execution Time, will be
included or made therein.
(b) On the Effective Date, the Registration Statement
did or will, and when the Final Prospectus is first filed
(if required) in accordance with Rule 424(b) and on the
Closing Date, the Final Prospectus (as supplemented and
amended in the case of the Closing Date) will, comply in all
material respects with the applicable requirements of the
Act and the Securities Exchange Act of 1934 (the "Exchange
Act") and the respective rules thereunder; on the Effective
Date, the Registration Statement did not or will not contain
any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and, on
the Effective Date, the Final Prospectus, if not filed
pursuant to Rule 424(b), did not or will not, and on the
date of any filing pursuant to Rule 424(b) and on the
Closing Date, the Final Prospectus (as supplemented and
amended in the case of the Closing Date) will not, include
any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the
Company makes no representations or warranties as to the
information contained in or omitted from the Registration
Statement or the Final Prospectus (or any supplement
thereto) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any
Underwriter through the Representatives specifically for
inclusion in the Registration Statement or the Final
Prospectus (or any supplement or amendment thereto).
(c) The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Basic Prospectus" shall mean the prospectus
referred to in paragraph (a) above contained in the
Registration Statement at the Effective Date including,
in the case of a Non-Delayed Offering, any Preliminary
Final Prospectus.
<PAGE>
"Delayed Offering" shall mean an offering of
securities pursuant to Rule 415 which does not commence
promptly after the effective date of a registration
statement, with the result that only information
required pursuant to Rule 415 need be included in such
registration statement at the effective date thereof
with respect to the securities so offered.
"Effective Date" shall mean each date that the
Registration Statement and any post-effective amendment
or amendments thereto became or become effective and
each date after the date hereof on which a document
incorporated by reference in the Registration Statement
is filed.
"Execution Time" shall mean the date and time that
this Agreement is executed and delivered by the parties
hereto.
"Final Prospectus" shall mean the prospectus
supplement relating to the Securities that is first
filed pursuant to Rule 424(b) after the Execution Time,
together with the Basic Prospectus or, if, in the case
of a Non-Delayed Offering, no filing pursuant to
Rule 424(b) is required, shall mean the form of final
prospectus relating to the Securities, including the
Basic Prospectus, included in the Registration
Statement at the Effective Date.
"Non-Delayed Offering" shall mean an offering of
securities which is intended to commence promptly after
the effective date of a registration statement, with
the result that, pursuant to Rules 415 and 430A, all
information (other than Rule 430A Information) with
respect to the securities so offered must be included
in such registration statement at the effective date
thereof.
"Preliminary Final Prospectus" shall mean any
preliminary prospectus supplement to the Basic
Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the
Final Prospectus.
"Registration Statement" shall mean the
registration statement referred to in paragraph (a)
above, including incorporated documents, exhibits and
financial statements, as amended at the Execution Time
<PAGE>
(or, if not effective at the Execution Time, in the
form in which it shall become effective) and, in the
event any post-effective amendment thereto becomes
effective prior to the Closing Date (as hereinafter de
fined), shall also mean such registration statement as
so amended. Such term shall include any Rule 430A
Information deemed to be included therein at the
Effective Date as provided by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and
"Regulation S-K" refer to such rules or regulation
under the Act.
"Rule 430A Information" means information with
respect to the Securities and the offering thereof
permitted to be omitted from the Registration Statement
when it becomes effective pursuant to Rule 430A.
Any reference herein to the Registration Statement, the
Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were filed under the Exchange Act
on or before the Effective Date of the Registration
Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the
case may be; and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer
to and include the filing of any document under the Exchange
Act after the Effective Date of the Registration Statement
or the issue date of the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, as the case may
be, deemed to be incorporated therein by reference.
(d) The Company and each of its subsidiaries (as
defined in Rule 405 under the Act) have been duly incorpo
rated and are validly existing as corporations in good
standing under the laws of their respective jurisdictions of
incorporation, are duly qualified to do business and are in
good standing as foreign corporations in each jurisdiction
in which their respective ownership or lease of property or
the conduct of their respective businesses requires such
qualification, and have all power and authority necessary to
own or hold their respective properties and to conduct the
businesses in which they are engaged; and none of the
subsidiaries of the Company (other than the subsidiaries of
<PAGE>
the Company listed in Schedule I hereto or in Exhibit 22.1
of the Annual Report on Form 10-K of the Company filed with
the Commission under Section 13 of the Exchange Act for the
fiscal year of the Company most recently ended) is a
"significant subsidiary" as such term is defined in Rule 405
under the Act.
(e) [Intentionally left blank.] 5/
(f) All the outstanding shares of capital stock of the
Company have been, and the [Securities] 6/ , upon issuance
and delivery and payment therefor [in the manner herein
described] 7/ , will be, duly authorized, validly issued,
fully paid and nonassessable, with no personal liability
attaching to the ownership thereof. There are no preemptive
rights or other rights to subscribe for or to purchase[, or
any restriction upon the voting or transfer of,] 8/ the
Securities 9/ pursuant to the Company's certificate of
_______________________________
5/ If warrants are being offered, replace with: "The
Warrant Agreement has been duly authorized, executed and
delivered, and constitutes a legal, valid and binding
instrument enforceable against the Company in accordance
with its terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights
generally from time to time in effect); and the Securities
have been duly authorized and, when executed and
authenticated in accordance with the provisions of the
Warrant Agreement and delivered to and paid for by the
Underwriters pursuant to this Agreement, will constitute
legal, valid and binding obligations of the Company entitled
to the benefits of the Warrant Agreement."
6/ If warrants are being offered, replace
with: "securities identified in Schedule I hereto issuable
upon execution of the Securities".
7/ If warrants are being offered, replace with: "as
provided in the Warrant Agreement".
8/ Delete if preferred stock or warrants are being
offered.
9/ If warrants exchangeable for common stock of the
Company are being offered, insert: ", or any restriction
upon the voting or transfer of the securities identified in
Schedule I hereto issuable upon exercise of the
Securities,".
<PAGE>
incorporation, by-laws or other governing documents or any
agreement or other instrument to which the Company or any of
its subsidiaries is a party or by which any of them may be
bound. Neither the filing of the Registration Statement nor
the offering or sale of the Securities as contemplated by
this Agreement gives rise to any rights, other than those
which have been waived or satisfied, for or relating to the
registration of any shares of capital stock of the Company.
The authorized, issued and outstanding capitalization of the
Company as of ____________, 199_ is as set forth in the
Final Prospectus, and the Company's capital stock and the
Securities conform to 10/ the descriptions thereof contained
in the Final Prospectus. All the outstanding shares of
capital stock of each subsidiary of the Company have been
duly authorized and validly issued, are fully paid and
nonassessable and, except to the extent set forth in the
Final Prospectus, are owned by the Company directly or
indirectly through one or more wholly owned subsidiaries,
free and clear of any claim, lien, encumbrance, security
interest, restriction upon voting or transfer or any other
claim of any third party.
(g) The execution, delivery and performance of this
Agreement 11/ by the Company and the consummation of the
transactions contemplated hereby and thereby will not
conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under,
or result in the imposition of any lien or security interest
on any property or assets of the Company or any of its
subsidiaries pursuant to, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries is bound or
to which any of the property or assets of the Company or any
of its subsidiaries is subject, nor will such actions result
in any violation of the provisions of the charter or by-laws
_______________________________
10/ If warrants are being offered, insert: ", and the
securities identified in Schedule I hereto issuable upon
exercise of the warrants, when issued and delivered pursuant
to the Warrant Agreement will conform to,".
11/ If warrants are being offered, insert: "and the
Warrant Agreement".
<PAGE>
of the Company or any of its subsidiaries or any statute or
any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any
of its subsidiaries or any of their properties or assets;
and except for the registration of the Securities under the
Act and such consents, approvals, authorizations, registra
tions or qualifications as may be required under the Ex
change Act and applicable state securities laws in connec
tion with the purchase and distribution of the Securities by
the Underwriters, and except for filings or registrations
relating to the Securities required to be made with the
United States Department of Defense, no consent, approval,
authorization or order of, or filing or registration with,
any such court or governmental agency or body is required
for the execution, delivery and performance of this
Agreement by the Company and the consummation of the
transactions contemplated hereby and thereby.
(h) Neither the Company nor any of its subsidiaries
has sustained, since the date of the latest audited
financial statements included or incorporated by reference
in the Final Prospectus, any material loss or interference
with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the
Final Prospectus; and, since such date, there has not been
any change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any material adverse
change, or any development involving a prospective material
adverse change, in or affecting the general affairs, manage
ment, 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
Final Prospectus.
(i) The financial statements (including the related
notes and supporting schedules) included or incorporated by
reference in the Registration Statement or the Final
Prospectus present fairly the financial condition and
results of operations of the entities purported to be shown
thereby, at the dates and for the periods indicated, and
have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis
throughout the periods involved, except as otherwise stated
therein.
<PAGE>
(j) Coopers & Lybrand, who have certified certain
financial statements of the Company, and whose report
appears in the Final Prospectus or is incorporated by
reference therein, are independent public accountants as
required by the Act and the rules and regulations thereun
der.
2. Purchase and Sale. (a) Subject to the terms and
conditions and in reliance upon the representations and
warranties herein set forth, the Company agrees to sell to each
Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, at the purchase price set
forth in Schedule I hereto 12/ the amount of the Underwritten
Securities set forth opposite such Underwriter's name in Schedule
II hereto.
(b) Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the
Company hereby grants an option to the several Underwriters to
purchase, severally and not jointly, up to the amount of Option
Securities set forth in Schedule I hereto at the same purchase
price as the Underwriters shall pay for the Underwritten
Securities. Said option may be exercised only to cover over-
allotments in the sale of the Underwritten Securities by the
Underwriters. Said option may be exercised in whole or in part
at any time (but not more than once) on or before the 30th day
after the date of the Prospectus upon written or telegraphic
notice by the Representatives to the Company setting forth the
amount of the Option Securities as to which the several
Underwriters are exercising the option and the settlement date.
Delivery of certificates for the Option Securities, and payment
therefor, shall be made as provided in Section 3 hereof.
The amount of the Option Securities to be purchased by each
Underwriter shall be the same percentage of the total amount of
the Option Securities to be purchased by the several Underwriters
as such Underwriter is purchasing of the Underwritten Securities,
subject to such adjustments as you in your absolute discretion
shall make to eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for
the Underwritten Securities and the Option Securities (if the
option provided for in Section 2(b) hereof shall have been
exercised on or before the third business day prior to the
Closing Date) shall be made on the date and at the time specified
_______________________________
12/ If preferred stock is being offered, insert: ",
plus accrued dividends, if any,".
<PAGE>
in Schedule I hereto (or such later date not later than five
business days after such specified date as the Representatives
shall designate), which date and time may be postponed by agree
ment between the Representatives and the Company or as provided
in Section 8 hereof (such date and time of delivery and payment
for the Securities being herein called the "Closing Date").
Delivery of the Securities shall be made to the Representatives
for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representatives
of the purchase price thereof to or upon the order of the Company
by certified or official bank check or checks drawn on or by a
New York Clearing House bank and payable in next day funds.
Delivery of the Securities shall be made at such location as the
Representatives shall reasonably designate at least one business
day in advance of the Closing Date, and payment for the
Securities shall be made at the office specified in Schedule I
hereto. Certificates for the Securities shall be registered in
such names and in such denominations as the Representatives may
request not less than three full business days in advance of the
Closing Date.
The Company agrees to have the Securities available for
inspection, checking and packaging by the Representatives in New
York, New York, not later than 1:00 PM on the business day prior
to the Closing Date.
If the option provided for in Section 2(b) hereof is
exercised after the third business day prior to the Closing Date,
the Company will deliver (at the expense of the Company) to the
Representatives on the date specified by the Representatives
(which shall be within three business days after exercise of said
option), at such location as the Representatives shall reasonably
designate at least one business day in advance of such date,
certificates for the Option Securities in such names and
denominations as the Representatives shall have requested against
payment of the purchase price thereof to or upon the order of the
Company by certified or official bank check or checks drawn on or
by a New York Clearing House bank and payable in next day funds.
If settlement for the Option Securities occurs after the Closing
Date, the Company will deliver to the Representatives on the
settlement date for the Option Securities, and the obligation of
the Underwriters to purchase the Option Securities shall be
conditioned upon receipt of, supplemental opinions, certificates
and letters confirming as of such date the opinions, certificates
and letters delivered on the Closing Date pursuant to Section 5
hereof.
<PAGE>
4. Agreements. The Company agrees with the several
Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution
Time, and any amendment thereto, to become effective as soon
as reasonably practicable thereafter. Prior to the
termination of the offering of the Securities, the Company
will not file any amendment of the Registration Statement or
amendments or supplement (including the Final Prospectus or
any Preliminary Final Prospectus) to the Basic Prospectus
unless the Company has furnished you a copy for your review
prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object.
Subject to the foregoing sentence, the Company will cause
the Final Prospectus, properly completed, and any supplement
thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Company will
promptly advise the Representatives (i) when the
Registration Statement, if not effective at the Execution
Time, and any amendment thereto, shall have become
effective, (ii) when the Final Prospectus, and any
supplement thereto, shall have been filed with the
Commission pursuant to Rule 424(b), (iii) when, prior to
termination of the offering of the Securities, any amendment
to the Registration Statement shall have been filed or
become effective, (iv) of any request by the Commission for
any amendment of the Registration Statement or supplement to
the Final Prospectus or for any additional information, (v)
of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement
or the institution or threatening of any proceeding for that
purpose and (vi) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction
or the initiation or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent
the issuance of any such stop order or the suspension of any
such qualification and, if issued or suspended, to obtain as
soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any
event occurs as a result of which the Final Prospectus as
then supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary
<PAGE>
to make the statements therein in the light of the
circumstances under which they were made not misleading, or
if it shall be necessary to amend the Registration Statement
or supplement the Final Prospectus to comply with the Act or
the Exchange Act or the respective rules thereunder, the
Company promptly will (i) prepare and file with the
Commission, subject to the second sentence of paragraph (a)
of this Section 4, an amendment or supplement which will
correct such statement or omission or effect such compliance
and (ii) supply any supplemented Final Prospectus to you in
such quantities as you may reasonably request.
(c) As soon as practicable, the Company will make
generally available to its security holders and to the
Representatives an earnings statement or statements of the
Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under
the Act.
(d) The Company will furnish promptly to the
Representatives and counsel for the Underwriters, without
charge, copies of the Registration Statement (including
exhibits thereto) and, so long as delivery of a prospectus
by an Underwriter or dealer may be required by the Act, as
many copies of any Preliminary Final Prospectus and the
Final Prospectus and any supplement thereto as the
Representatives may reasonably request. The Company will
pay the expenses of printing or other production of all
documents relating to the offering of Securities pursuant to
this Agreement.
(e) The Company will arrange for the qualification of
the Securities for sale under the laws of such jurisdictions
as the Representatives may designate and will maintain such
qualifications in effect so long as required for the
distribution of the Securities, except that the Company will
not be obligated to qualify the Securities in any such
jurisdiction in which such qualification would require the
Company to qualify to do business as a foreign corporation
or file a general consent to service of process; and will
arrange for the determination of the legality of the
Securities for purchase by institutional investors.
(f) Until the date set forth on Schedule I hereto, the
Company will not, without the consent of the
Representatives, offer, sell or contract to sell, or
otherwise dispose of, directly or indirectly, or announce
the offering of, [any other shares of Common Stock or any
<PAGE>
securities convertible into, or exchangeable for, shares of
Common Stock (other than the Securities); provided, however,
that the Company may issue and sell Common Stock pursuant to
any employee stock option plan, stock ownership plan or
dividend reinvestment plan of the Company in effect at the
Execution Time and the Company may issue Common Stock
issuable upon the conversion of securities or the exercise
of warrants outstanding at the Execution Time.] 13/
(g) The Company confirms as of the date hereof that it
is in compliance with all provisions of Section 1 of Laws of
Florida, Chapter 92-198, An Act Relating to Disclosure of
Doing Business with Cuba, and the Company further agrees
that if it commences engaging in business with the
government of Cuba or with any person or affiliate located
in Cuba after the date hereof, or if the information
reported in the Final Prospectus, if any, concerning the
Company's business with Cuba or with any person or affiliate
located in Cuba changes in any material way, the Company
will provide the Florida Department of Banking and Finance
(the "Department") notice of such business or change, as
appropriate, in a form acceptable to the Department.
5. Conditions to the Obligations of the Underwriters.
The obligations of the Underwriters to purchase the Underwritten
Securities and the Option Securities, as the case may be, shall
_______________________________
13/ If preferred stock is being offered, replace
with: "(i) any debt securities issued or guaranteed by the
Company or (ii) shares of any class of capital stock of the
Company (other than the Securities) which is preferred as to
the payment of dividends, or as to the distribution of
assets upon any liquidation or dissolution of the Company,
over shares of any other class of capital stock of the
Company."
If warrants are being offered, replace with: "any
equity securities of the Company or any securities
convertible into, or exchangeable for, equity securities of
the Company (other than the Securities); provided, however,
that the Company may issue and sell equity securities of the
Company pursuant to any employee stock option plan, stock
ownership plan or dividend reinvestment plan of the Company
in effect at the Execution Time and the Company may issue
equity securities issuable upon the conversion of securities
or the exercise of warrants outstanding at the Execution
Time."
<PAGE>
be subject to the accuracy of the representations and warranties
on the part of the Company contained herein as of the Execution
Time and the Closing Date, to the accuracy of the statements of
the Company made in any certificates pursuant to the provisions
hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become
effective prior to the Execution Time, unless the
Representatives agree in writing to a later time, the
Registration Statement will become effective not later than
(i) 6:00 PM New York City time, on the date of determination
of the public offering price, if such determination occurred
at or prior to 3:00 PM New York City time on such date or
(ii) 12:00 Noon on the business day following the day on
which the public offering price was determined, if such
determination occurred after 3:00 PM New York City time on
such date; if filing of the Final Prospectus, or any supple
ment thereto, is required pursuant to Rule 424(b), the Final
Prospectus, and any such supplement, shall have been filed
in the manner and within the time period required by
Rule 424(b); and no stop order suspending the effectiveness
of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or
threatened.
(b)(1) The Company shall have furnished to the
Representatives the opinion of Michael B. Targoff, Esq.,
Senior Vice President and Secretary of the Company, dated
the Closing Date, to the effect that:
(i) the Company and each of its material subsidi
aries listed on Schedule I hereto (A) have been duly
incorporated and are validly existing as corporations
in good standing under the laws of their respective
jurisdictions of incorporation, (B) to the best of such
counsel's knowledge and information, are duly qualified
to do business and are in good standing as foreign
corporations in each jurisdiction in which their
respective ownership or lease of property or the
conduct of their respective businesses requires such
qualification (other than those jurisdictions in which
the failure to so qualify would not have a material
adverse effect on the Company or the Company and its
material subsidiaries listed on Schedule I hereto taken
as a whole), and (C) have all power and authority
necessary to own or hold their respective properties
and conduct the businesses in which they are engaged;
<PAGE>
(ii) all the outstanding shares of capital stock
of each of the Company's material subsidiaries listed
on Schedule I hereto have been duly and validly
authorized and issued and are fully paid and
nonassessable, and, except as otherwise set forth in
the Final Prospectus, all outstanding shares of capital
stock of the material subsidiaries listed on Schedule I
hereto are owned by the Company either directly or
through wholly owned subsidiaries free and clear of any
security interests, claims, liens or encumbrances;
(iii) (A) the Company's authorized equity capital
ization is as set forth in the Final Prospectus; the
capital stock of the Company and the Securities conform
to the descriptions thereof contained in the Final
Prospectus; (B) to the best of such counsel's knowledge
and information, the outstanding shares of [Common
Stock] 14/ have been duly and validly authorized and
issued and are fully paid and nonassessable; (C) the
[Securities] 15/ have been duly and validly authorized,
and, when issued and delivered [to and paid for by the
Underwriters pursuant to this Agreement] 16/ , will be
fully paid and nonassessable; (D) the certificates for
the Securities are in valid and sufficient form;
(E) the holders of outstanding shares of capital stock
of the Company are not entitled to preemptive or other
rights to subscribe for the Securities; (F) and, if the
Final Prospectus states that the Securities 17/ are to
be listed on any securities exchange, authorization
therefor has been given, subject to official notice of
issuance and evidence of satisfactory distribution, or
the Company has filed a preliminary listing application
_______________________________
14/ If preferred stock or warrants are being offered,
replace with: "common stock, $ par value, of the
Company".
15/ If warrants are being offered, replace
with: "securities identified in Schedule I hereto issuable
upon exchange of the Securities".
16/ If warrants are being offered, replace with: "and
paid for pursuant to the Warrant Agreement".
17/ If warrants are being offered, insert: "or the
securities identified in Schedule I hereto issuable upon
exercise of the Securities".
<PAGE>
and all required supporting documents with respect to
the Securities 18/ with such securities exchange and
such counsel has no reason to believe that the
Securities 19/ will not be authorized for listing,
subject to official notice of issuance and evidence of
satisfactory distribution;
(iv) to the best of such counsel's knowledge and
information and other than as set forth in the Final
Prospectus, there are no legal or governmental proceed
ings pending to which the Company or any of its
subsidiaries is a party or of which any property or
assets of the Company or any of its subsidiaries is the
subject which, if determined adversely to the Company
or any of its subsidiaries, might have a material
adverse effect on the consolidated financial position,
stockholders' equity, results of operations, business
or prospects of the Company and its subsidiaries; and,
to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by
governmental authorities or threatened by others and
there is no franchise, contract or other document of a
character required to be described in the Registration
Statement or Final Prospectus, or to be filed as an
exhibit, which is not described or filed as required;
and the statements included or incorporated in the
Final Prospectus describing any legal proceedings or
material contracts or agreements relating to the
Company fairly summarize such matters; and, to the best
of such counsel's knowledge and information, no default
exists in the due performance or observance of any
material obligation, agreement, covenant or condition
contained in any franchise, contract or other document
so described or filed;
(v) the Registration Statement has become
effective under the Act; any required filing of the
Basic Prospectus, any Preliminary Final Prospectus and
the Final Prospectus, and any supplements thereto,
pursuant to Rule 424(b) has been made in the manner and
_______________________________
18/ If warrants are being offered, insert: "and the
securities issuable upon exercise of the Securities".
19/ If warrants are being offered, insert: "or the
securities issuable upon exercise of the Securities, as the
case may be,".
<PAGE>
within the time period required by Rule 424(b); to the
best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration
Statement has been issued, no proceedings for that
purpose have been instituted or threatened, and the
Registration Statement and the Final Prospectus (other
than the financial statements and notes thereto and
supporting schedules and other financial and
statistical information contained therein as to which
such counsel need express no opinion) comply as to form
in all material respects with the applicable
requirements of the Act and the Exchange Act and the
respective rules thereunder;
(vi) this Agreement has been duly authorized,
executed and delivered by the Company;
(vii) no consent, approval, authorization or order
of any court or governmental agency or body is required
for the consummation of the transactions contemplated
herein 20/ , except such as have been obtained under
the Act and such as may be required under the blue sky
laws of any jurisdiction in connection with the
purchase and distribution of the Securities by the
Underwriters and such other approvals (specified in
such opinion) as have been obtained; and
(viii) neither 21/ the issue and sale of 22/ the
Securities, nor the consummation of any other of the
transactions herein contemplated nor the fulfillment of
the terms hereof will conflict with, result in a breach
or violation of, or constitute a default under, or
result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of
the Company or any of its subsidiaries pursuant to,
(A) any law or the charter or by-laws of the Company,
_______________________________
20/ If preferred stock or warrants are being offered,
insert: "or for the performance by the Company of its
obligations under the Securities".
21/ If warrants are being offered, insert: "the
execution and delivery of the Warrant Agreement,".
22/ If preferred stock or warrants are being offered,
insert: ", and performance by the Company of its
obligations under,".
<PAGE>
(B) the terms of any indenture or other agreement or
instrument known to such counsel and to which the
Company or any of its material subsidiaries listed on
Schedule I hereto is a party or bound, or (C) any
judgment, order or decree known to such counsel to be
applicable to the Company or any of its subsidiaries of
any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction
over the Company or any of its subsidiaries;
(ix) no holders of securities of the Company have
rights to the registration of such securities under the
Registration Statement; 23/
Such counsel shall also state that on the basis of
his involvement in the preparation of the Registration
Statement and although he has not verified the accuracy
or completeness of the statements contained therein or
in any amendment thereto, nothing has come to his
attention that causes him to believe that at the
Effective Date the Registration Statement contained any
untrue statement of a material fact or omitted to state
any material fact (other than the financial statements
and notes thereto and supporting schedules and other
financial and statistical data derived therefrom
included or incorporated by reference therein) required
to be stated therein or necessary to make the state
ments therein not misleading or that the Final Prospec
tus (other than the financial statements and notes
thereto and supporting schedules and other financial
and statistical data derived therefrom included or
incorporated by reference therein) includes any untrue
_______________________________
23/ If warrants are being offered, insert: "(x) the
Warrant Agreement has been duly authorized, executed and
delivered, and constitutes a legal, valid and binding
instrument enforceable against the Company in accordance
with its terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights
generally from time to time in effect); and the Securities
have been duly authorized and, when executed and
authenticated in accordance with the provisions of the
Warrant Agreement and delivered to and paid for by the
Underwriters pursuant to this Agreement, will constitute
legal, valid and binding obligations of the Company
entitled to the benefits of the Warrant Agreement;".
<PAGE>
statement of a material fact or omits to state a
material fact necessary to make the statements therein,
in the light of the circumstances under which they were
made, not misleading;
(2) The Company also shall have furnished to the
Representatives the opinion of Willkie Farr & Gallagher,
counsel for the Company, dated the Closing Date, to the same
effect as that described in the preceding paragraph (b)(1)
of this Section 5, except for subparagraphs (i)(B), (ii),
(iii)(B), (iv) and (viii)(C) thereof.
In rendering such opinions, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction
other than the State of New York or the United States, to the
extent deemed proper and specified in such opinion, upon the
opinion of other counsel of good standing believed to be reliable
and who are satisfactory to counsel for the Underwriters and (B)
as to matters of fact, to the extent deemed proper, on
certificates of responsible officers of the Company and public
officials. References to the Final Prospectus in this
paragraph (b) include any supplements thereto at the Closing
Date.
(c) The Representatives shall have received from
Cravath, Swaine & Moore, counsel for the Underwriters, such
opinion or opinions, dated the Closing Date, with respect to
the issuance and sale of the Securities, the Registration
Statement, the Final Prospectus (together with any
supplement thereto) and other related matters as the
Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such
matters.
(d) The Company shall have furnished to the Repre
sentatives a certificate of the Company, signed by the
Chairman of the Board, President, Chief Executive Officer or
Senior Vice President, and by the principal financial or
accounting officer, of the Company, dated the Closing Date,
to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Final
Prospectus, any supplement to the Final Prospectus and this
Agreement and that:
(i) the representations and warranties of the
Company in this Agreement are true and correct in all
material respects on and as of the Closing Date with
<PAGE>
the same effect as if made on the Closing Date and the
Company has complied with all the agreements and
satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no
proceedings for that purpose have been instituted or,
to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus (exclusive
of any supplement thereto), there has been no material
adverse change or any development involving a
prospective material adverse change in the condition
(financial or other), earnings, business or properties
of the Company and its subsidiaries, whether or not
arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the
Final Prospectus (exclusive of any supplement thereto).
(e) At the Closing Date, Coopers & Lybrand shall have
furnished to the Representatives a letter or letters (which
may refer to letters previously delivered to the
Representatives), dated as of the Closing Date, in form and
substance satisfactory to the Representatives, confirming
that they are independent accountants within the meaning of
the Act and the Exchange Act and the respective applicable
published rules and regulations thereunder and stating to
the effect set forth in Exhibit A to Schedule I hereto.
References to the Final Prospectus in this
paragraph (e) include any supplement thereto at the date of
the letter.
In addition, if so provided in Schedule I hereto, at
the Execution Time, Coopers & Lybrand shall have furnished
to the Representatives a letter or letters, dated as of the
Execution Time, in form and substance satisfactory to the
Representatives, to the effect set forth above (including
Exhibit A to Schedule I hereto).
(f) Subsequent to the Execution Time or, if earlier,
the dates as of which information is given in the
Registration Statement (exclusive of any amendment thereof)
and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or
decrease specified in the letter or letters referred to in
<PAGE>
paragraph (e) of this Section 5 or (ii) any change, or any
development involving a prospective change, in or affecting
the business or properties of the Company and its
subsidiaries the effect of which, in any case referred to in
clause (i) or (ii) above, is, in the judgment of the
Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the
Registration Statement (exclusive of any amendment thereof)
and the Final Prospectus (exclusive of any supplement
thereto).
(g) Subsequent to the Execution Time, there shall not
have been any decrease in the rating of any of the Company's
debt securities or preferred stock by any "nationally
recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given
of any intended or potential decrease in any such rating or
of a possible change in any such rating that does not
indicate the direction of the possible change.
(h) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information,
certificates and documents as the Representatives may
reasonably request.
If any of the conditions specified in this Section 5
shall not have been fulfilled in all material respects when and
as provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall
not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time prior
to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Company in writing or by
telephone or telegraph confirmed in writing.
6. Reimbursement of Underwriters' Expenses. If the
sale of the Securities provided for herein is not consummated
because any condition to the obligations of the Underwriters set
forth in Section 5 hereof is not satisfied, because of any
termination pursuant to Section 9 hereof or because of any
refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof
other than by reason of a default by any of the Underwriters, the
Company will reimburse the Underwriters severally upon demand for
all reasonable out-of-pocket expenses (including reasonable fees
<PAGE>
and disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of the
Securities.
7. Indemnification and Contribution. (a) The Company
shall indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning
of the Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage,
liability or action relating to purchases and sales of
Securities), to which that Underwriter or controlling person may
become subject, under the Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based
upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in the Basic Prospectus, any Preliminary
Final Prospectus, the Registration Statement or the Final
Prospectus or in any amendment or supplement thereto or (ii) the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and shall reimburse each Underwriter and
each such controlling person promptly upon demand for any legal
or other expenses incurred by that Underwriter or controlling
person in connection with investigating or defending or preparing
to defend against any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the
Company shall not be liable in any such case to the extent that
any such loss, claim, damage, liability or action arises out of,
or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in the Basic
Prospectus, any Preliminary Final Prospectus, the Registration
Statement or the Final Prospectus or in any such amendment or
supplement in reliance upon and in conformity with written infor
mation furnished to the Company through the Representatives by or
on behalf of any Underwriter specifically for inclusion therein;
and provided further, however, that as to any Preliminary Final
Prospectus, the foregoing indemnity agreement shall not inure to
the benefit of any Underwriter or any person controlling that
Underwriter on account of any loss, claim, damage, liability or
action arising from the sale of Securities to any person by that
Underwriter if that Underwriter failed to send or give a copy of
the Final Prospectus, as the same may be amended or supplemented,
to that person within the time required by the Act, and the
untrue statement or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact in such
Preliminary Final Prospectus was corrected in the Final
Prospectus, unless such failure resulted from noncompliance by
the Company with Section 4(d). For purposes of the last proviso
<PAGE>
to the immediately preceding sentence, the term "Final
Prospectus" shall not be deemed to include the documents
incorporated therein by reference, and no Underwriter shall be
obligated to send or give any supplement or amendment to any
document incorporated by reference in any the Preliminary Final
Prospectus or the Final Prospectus to any person other than a
person to whom such Underwriter had delivered such incorporated
document or documents in response to a written request therefor.
The foregoing indemnity agreement is in addition to any liability
which the Company may otherwise have to any Underwriter or to any
controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall
indemnify and hold harmless the Company, each of its directors
(including any person who, with his or her consent, is named in
the Registration Statement as about to become a director of the
Company), each of its officers who signed the Registration
Statement and each person, if any, who controls the Company
within the meaning of the Act, from and against any loss, claim,
damage or liability, joint or several, or any action in respect
thereof, to which the Company or any such director, officer or
controlling person may become subject, under the Act or
otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement
or alleged untrue statement of a material fact contained in any
Preliminary Final Prospectus, the Registration Statement or the
Final Prospectus or in any amendment or supplement thereto or
(ii) the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, but in each case only to the
extent that the untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company
through the Representatives by or on behalf of that Underwriter
specifically for inclusion therein, and shall reimburse the
Company and any such director, officer or controlling person for
any legal or other expenses reasonably incurred by the Company or
any such director, officer or controlling person in connection
with investigating or defending or preparing to defend against
any such loss, claim, damage, liability or action as such
expenses are incurred. The foregoing indemnity agreement is in
addition to any liability which any Underwriter may otherwise
have to the Company or any such director, officer or controlling
person.
(c) Promptly after receipt by an indemnified party
under this Section 7 of notice of any claim or the commencement
of any action, the indemnified party shall, if a claim in respect
<PAGE>
thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the claim
or the commencement of that action; provided, however, that the
failure to notify the indemnifying party shall not relieve it
from any liability which it may have under this Section 7 except
to the extent it has been materially prejudiced by such failure
and, provided further, that the failure to notify the indemnify
ing party shall not relieve it from any liability which it may
have to an indemnified party otherwise than under this Section 7.
If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party
thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense
thereof with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such
claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 7 for any legal or other
expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs
of investigation; provided, however, that any indemnified party
shall have the right to employ separate counsel in any such
action and to participate in the defense thereof but the fees and
expenses of such counsel shall be at the expense of such
indemnified party unless (i) the employment thereof has been
specifically authorized by the indemnifying party in writing,
(ii) such indemnified party shall have been advised by such
counsel that there may be one or more legal defenses available to
it which are different from or additional to those available to
the indemnifying party and in the reasonable judgment of such
counsel it is advisable for such indemnified party to employ
separate counsel or (iii) the indemnifying party has failed to
assume the defense of such action and employ counsel reasonably
satisfactory to the indemnified party, in which case, if such
indemnified party notifies the indemnifying party in writing that
it elects to employ separate counsel at the expense of the
indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such
indemnified party, it being understood, however, that the
indemnifying party shall not, in connection with any one such
action or separate but substantially similar or related actions
in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys at any
time for all such indemnified parties, which firm shall be
designated in writing by the Representatives, if the indemnified
parties under this Section 7 consist of any Underwriter or any of
<PAGE>
their respective controlling persons, or by the Company, if the
indemnified parties under this Section 7 consist of the Company
or any of the Company's directors, officers or controlling
persons. Each indemnified party, as a condition of the indemnity
agreements contained in Sections 7(a) and 7(b), shall use its
best efforts to cooperate with the indemnifying party in the
defense of any such action of claim. No indemnifying party shall
be liable for any settlement of any such action effected without
its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be
a final judgment of the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by
reason of such settlement or judgment.
(d) If the indemnification provided for in this
Section 7 shall for any reason be unavailable to or insufficient
to hold harmless an indemnified party under Section 7(a) or 7(b)
in respect of any loss, claim, damage or liability, or any action
in respect thereof, referred to therein, then each indemnifying
party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be
appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other from
the offering of the Securities or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law or if the
indemnified party failed to give the notice required under Sec
tion 7(c) and as a result is not entitled to indemnification
thereunder, 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 with respect to the statements or
omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other
relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on
the other with respect to such offering shall be deemed to be in
the same proportion as the total net proceeds from the offering
of the Securities purchased under this agreement (before
deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the
Underwriters with respect to the shares of the Securities
purchased under this Agreement, in each case as set forth in the
table on the cover page of the Final Prospectus. The relative
fault shall be determined by reference to whether the untrue or
alleged untrue statement of a material fact or omission or
<PAGE>
alleged omission to state a material fact relates to information
supplied by the Company or the Underwriters, the intent of the
parties and their relative 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 contributions pursuant to this Section 7(d) were
to be determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other
method of allocation which does not take into account the
equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim,
damage or liability, or action in respect thereof, referred to
above in this Section 7(d) shall be deemed to include, for
purposes of this Section 7(d), any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7(d), no
Underwriter shall 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 which such Under
writer has otherwise paid or become liable to pay by reason of
any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations
to contribute as provided in this Section 7(d) are several in
proportion to their respective underwriting obligations and not
joint.
(e) The Underwriters severally confirm that the
statements with respect to distribution by the Underwriters of
the Securities set forth on the cover page of, and under the
caption "Underwriting" or "Plan of Distribution" in, the Final
Prospectus are correct and constitute the only information
furnished in writing to the Company by or on behalf of the
Underwriters specifically for inclusion in the Registration
Statement and the Final Prospectus.
8. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the
Securities agreed to be purchased by such Underwriter or
Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their
obligations under this Agreement, the remaining non-defaulting
Underwriters shall be obligated severally to purchase and pay for
(in the respective proportions which the amount of Securities set
<PAGE>
forth opposite their names in Schedule II hereto bears to the
aggregate amount of Securities set forth opposite the names of
all the remaining Underwriters) the Securities which the
defaulting Underwriter or Underwriters agreed but failed to pur
chase; provided, however, that the remaining non-defaulting
Underwriters shall not be obligated to purchase any of the
Securities if the aggregate amount of Securities which the
defaulting Underwriter or Underwriters agreed but failed to
purchase exceeds 9.09% of the aggregate amount of Securities and
any remaining non-defaulting Underwriter shall not be obligated
to purchase more than 110% of the amount of Securities set forth
opposite its name in Schedule II hereto. If the foregoing
maximums are exceeded, the remaining non-defaulting Underwriters,
or those other underwriters satisfactory to the Representatives
who so agree, shall have the right, but shall not be obligated,
to purchase, in such proportion as may be agreed upon among them,
all the Securities to be purchased by the defaulting Underwriter
or Underwriters. If the remaining Underwriters or other
underwriters satisfactory to the Representatives do not elect to
purchase Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase, this Agreement shall
terminate without liability on the part of any non-defaulting
Underwriter or the Company except that the Company will continue
to be liable for the payment of expenses to the extent set forth
in Sections 4 and 6. As used in this Agreement, the term
"Underwriter" includes, for all purposes of this Agreement unless
the context requires otherwise, any party not listed in
Schedule II hereto who, pursuant to this Section 8, purchases
Securities which a defaulting Underwriter agreed but failed to
purchase.
Nothing contained herein shall relieve a defaulting
Underwriter of any liability it may have to the Company for
damages caused by its default. If other underwriters are
obligated or agree to purchase the Securities of a defaulting or
withdrawing Underwriter, either the Representatives or the
Company may postpone the Closing Date for up to seven full
business days in order to effect any changes that in the opinion
of counsel for the Company or counsel for the Underwriters may be
necessary in the Registration Statement, the Final Prospectus or
in any other document or arrangement.
9. Termination. This Agreement shall be subject to
termination at the option of the Representatives, by notice given
to the Company prior to delivery of and payment for the
Securities, if prior to such time (i) trading in securities
generally or in the Company's Common Stock on the New York Stock
Exchange, the American Stock Exchange or the over-the-counter
<PAGE>
market shall have been suspended or limited or minimum prices
shall have been established on either of such exchanges or such
market by the Commission or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking
moratorium shall have been declared by Federal or state
authorities, (iii) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities
involving the United States or there shall have been a
declaration of a national emergency or war by the United States
or (iv) there shall have occurred such a material adverse change
in general economic, political or financial conditions (or the
effect of international conditions on the financial markets in
the United States shall be such) as to make it, in the judgment
of a majority in interest of the Underwriters, impracticable or
inadvisable to proceed with the public offering or delivery of
the Securities on the terms and in the manner contemplated by the
Final Prospectus (exclusive of any supplement thereto).
10. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities
and other statements of the Company or its officers and of the
Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in
Section 7 hereof, and will survive delivery of and payment for
the Securities. The provisions of Sections 6 and 7 hereof shall
survive the termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to the
Representatives, will be mailed, delivered or telegraphed and
confirmed to them, at the address specified in Schedule I hereto;
or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at 600 Third Avenue, New York,
N.Y. 10016, attention of Michael B. Targoff, Senior Vice
President and Secretary.
12. Successors. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their
respective successors and the officers and directors and
controlling persons referred to in Section 7 hereof, and no other
person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed
by and construed in accordance with the laws of the State of New
York, without giving effect to the choice of law or conflicts of
laws principles thereof.
<PAGE>
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to us the
enclosed duplicate hereof, whereupon this letter and your
acceptance shall represent a binding agreement among the Company
and the several Underwriters.
Very truly yours,
LORAL CORPORATION
By:
_________________________
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
By:
______________________
Name:
Title:
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
<PAGE>
SCHEDULE I
[Common Stock]
Underwriting Agreement dated ___________ __, 199_
Registration Statement No. _________
Representatives:
Amount and Purchase Price of Securities:
Number of shares not subject to an over-allotment option:
Number of shares subject to an over-allotment option:
Purchase price per share:
Closing Date, Time and Location:
Date referred to in Section 4(f) before which the Company may not
offer or sell additional Common Stock or securities convertible
into, or exchangeable for, shares of Common Stock without the
consent of the Representatives:
Whether letter from Coopers & Lybrand is required to be delivered
pursuant to Section 5(e) at the Execution Time:
List any additional "significant subsidiaries" of the Company, as
referred to in Section 1(d):
List of "material subsidiaries" of the Company, as referred to in
Section 5(b)(1):
<PAGE>
SCHEDULE I
[Preferred Stock]
Underwriting Agreement dated ___________ __, 199_
Registration Statement No. _________
Representatives:
Title, Purchase Price and Description of Securities:
Title:
Number of shares not subject to an over-allotment option:
Number of shares subject to an over-allotment option:
Purchase price per share:
Dividends:
Sinking fund provisions:
Redemption provisions:
Closing Date, Time and Location:
Date referred to in Section 4(f) before which the Company may not
offer or sell (i) any debt securities issued or guaranteed by the
Company or (ii) shares of any class of capital stock of the
Company (other than the Securities) which is preferred as to
payment of dividends, or as to the distribution of assets upon
any liquidation or dissolution of the Company, without the
consent of the Representatives:
Whether letter from Coopers & Lybrand is required to be delivered
pursuant to Section 5(e) at the Execution Time:
List any additional "significant subsidiaries" of the Company, as
referred to in Section 1(d):
List of "material subsidiaries" of the Company, as referred to in
Section 5(b)(1):
<PAGE>
SCHEDULE I
[Warrants]
Underwriting Agreement Dated:
Registration Statement No.
Representative(s):
Title, Purchase Price and Description of Securities Issuable Upon
Exercise of Warrants:
Title:
Number of shares:
Dividends:
Sinking Fund provisions:
Redemption provisions:
Other provisions:
Description of Warrants:
Title of Warrants:
Number of Warrants not subject to an over-allotment option:
Number of Warrants subject to an over-allotment option:
Purchase price:
Warrant Agent:
Warrant exercise price and date:
Amount of securities issuable upon exercise of one Warrant:
Date after which Warrants may be exercised:
Expiration date:
Detachable date:
Closing Date, Time and Location:
Date referred to in Section 4(f) before which the Company may not
offer or sell any equity securities of the Company or any
securities convertible into, or exchangeable for, equity
securities of the Company without the consent of the
Representatives:
Whether letter from Coopers & Lybrand is required to be delivered
pursuant to Section 5(e) at the Execution Time:
List any additional "significant subsidiaries" of the Company, as
referred to in Section 1(d):
List of "material subsidiaries" of the Company, as referred to in
Section 5(b)(1):
<PAGE>
EXHIBIT A TO SCHEDULE I
In the letter or letters furnished to the
Representatives pursuant to Section 5(e), Coopers & Lybrand
shall, subject to such limitations and qualifications as are
required by applicable accounting rules and standards including,
without limitation, the Statement on Auditing Standards Number
72, state in effect that:
(1) in their opinion the audited financial statements
and financial statement schedules included or incorporated
in the Registration Statement and the Final Prospectus and
reported on by them comply as to form in all material
respects with the applicable accounting requirements of the
Act and the Exchange Act and the related published rules and
regulations;
(2) they have read the minutes of the meetings of the
Stockholders, the Board of Directors and the Executive and
Audit and Government Compliance Committees of the Company
and carried out certain other procedures to a period at
least five days prior to the date of this letter as follows:
(a) with respect to the unaudited financial
statements included or incorporated in the Registration
Statement and the Final Prospectus;
(i) read any unaudited financial statements
included or incorporated in the Registration
Statement and the Final Prospectus and agreed the
amounts contained therein with the Company's
accounting records for the corresponding periods;
(ii) inquired of certain officials of the
Company who have responsibility for financial and
accounting matters whether the unaudited financial
statements referred to in clause (i) above are in
conformity with generally accepted accounting
principles applied on a basis substantially
consistent with that of the audited financial
statements incorporated by reference in the
Registration Statement and the Final Prospectus,
and whether such financial statements comply as to
form in all material respects with the applicable
accounting requirements of the Exchange Act as it
<PAGE>
applies to Form 10-Q and the related published
rules and regulations;
(b) with respect to the period subsequent to the
date of the most recent financial statements (other
than any capsule information), audited or unaudited, in
or incorporated in the Registration Statement and the
Final Prospectus, inquired of certain officials of the
Company who have responsibility for financial and
accounting matters: (i) whether there was any change in
the common stock or capital surplus (other than
issuances of Common Stock upon the exercise of stock
options outstanding as of the date of the most recent
financial statements or pursuant to Company benefit
plans), increase in consolidated long-term debt,
including the current portion thereof or any
significant change in the consolidated net current
assets (for the purposes of this paragraph the term
"significant" shall mean a net change of greater than
5%) or any decrease in the shareholders' equity of the
Company as compared with the amounts shown on the most
recent consolidated balance sheet incorporated by
reference in the Registration Statement and the Final
Prospectus; or (ii) with respect to the period from the
date of the most recent financial statements
incorporated by reference in the Registration Statement
and the Final Prospectus to the specified date referred
to above, whether there were any decreases, as compared
with the corresponding period in the preceding year, in
consolidated sales or in the total or per-share amounts
of income before the cumulative effect of changes in
accounting or of net income;
(3) if unaudited pro forma financial statements are
included or incorporated in the Registration Statement and
the Final Prospectus, on the basis of a reading of the
unaudited pro forma financial statements, carrying out
certain specified procedures, inquiries of certain officials
of the Company and the acquired company who have
responsibility for financial and accounting matters, and
proving the arithmetic accuracy of the application of the
pro forma adjustments to the historical amounts in the pro
forma financial statements, nothing came to their attention
which caused them to believe that the pro forma financial
statements do not comply in form in all material respects
with the applicable accounting requirements of Rule 11-02 of
<PAGE>
Regulation S-X or that the pro forma adjustments have not
been properly applied to the historical amounts in the
compilation of such statements; and
(4) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical
nature (which is limited to accounting, financial or
statistical information derived from the general accounting
records of the Company and its subsidiaries) set forth in
the Registration Statement and the Final Prospectus,
including, without limitation, Exhibit 12 to the
Registration Statement, and in Items 1, 6 and 7 of the
Company's Annual Report on Form 10-K incorporated by
reference in the Registration Statement and the Final
Prospectus, agrees with the accounting records of the
Company and its subsidiaries, excluding any questions of
legal interpretation.
<PAGE>
SCHEDULE II
Amount of Securities
Underwriters to be Purchased
- ------------ --------------------
________________
Total . . . . . . . ================
EXHIBIT 4.1(b)
LORAL CORPORATION
and
CONTINENTAL BANK, NATIONAL ASSOCIATION
as Trustee
______________________
FIRST SUPPLEMENTAL INDENTURE
Dated as of May 1, 1994
______________________
Supplementing the Indenture Dated as of September 1, 1993
<PAGE>
FIRST SUPPLEMENTAL INDENTURE, dated as of May 1, 1994,
between LORAL CORPORATION, a New York corporation (the
"Company"), and CONTINENTAL BANK, NATIONAL ASSOCIATION, as
trustee (the "Trustee"). All capitalized terms used herein
without definition shall have the meanings ascribed thereto in
the Indenture (as defined below).
WHEREAS, the Company and the Trustee executed and
delivered the Indenture, dated as of September 1, 1993 (the
"Indenture"), authorizing the issuance thereunder by the Company,
and the authentication and delivery by the Trustee, of the
Company's unsecured debentures, notes or other evidences of
indebtedness in one or more series (the "Securities"); and
WHEREAS, the Company has decided to amend certain
definitions and covenants set forth in the Indenture; and
WHEREAS, Section 8.1 of the Indenture authorizes the
Company to amend or supplement any provision contained in the
Indenture as the Company may deem necessary or desirable,
provided that no such provisions shall adversely affect the
interests of the Holders of the Securities or Coupons; and
WHEREAS, as of the date hereof, no Securities have been
issued or are outstanding under the Indenture.
NOW, THEREFORE, in consideration of the foregoing, 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:
1. Amendment to Section 1.1 of the Indenture.
The definition of "Consolidated Net Tangible Assets"
set forth in Section 1.1 of the Indenture is hereby amended by
deleting the word "current" from clause (a) of said definition.
2. Amendment to Section 3.6 of the Indenture.
Section 3.6 of the Indenture is hereby amended by
inserting "$300,000,000" in lieu of "$200,000,000" in clause (1)
of the last sentence of said section.
3. Amendment to Section 3.7 of the Indenture.
Section 3.7 of the Indenture is hereby amended by
inserting "$300,000,000" in lieu of "$200,000,000" in clause (A)
of the last sentence of said section.
4. Governing Law.
This First Supplemental Indenture shall be governed by
and construed in accordance with the laws of the State of New
York without regard to principles of conflict of laws.
5. Duplicate Originals.
This First Supplemental Indenture may be executed in
any number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute
one and the same agreement.
<PAGE>
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
First Supplemental Indenture to be duly executed, all as of the
date first written above.
LORAL CORPORATION
By _______________________
Name:
Title:
Attest:
___________________________
Name:
Title:
CONTINENTAL BANK,
NATIONAL ASSOCIATION, as Trustee
By _______________________
Name:
Title:
Attest:
___________________________
Name:
Title:
EXHIBIT 4.1(c)
_______________________________________________________________
LORAL CORPORATION
AND
THE BANK OF NEW YORK,
as Trustee
Indenture
Dated as of May 1, 1994
Relating to
Convertible and Non-Convertible Subordinated Securities
_______________________________________________________________
<PAGE>
CROSS REFERENCE SHEET*
Provisions of Trust Indenture Act of 1939 and Indenture to
be dated as of May 1, 1994 between LORAL CORPORATION and The Bank
of New York, as Trustee:
Section of the Act Section of Indenture
310(a)(1) and (2)................ 6.8
310(a)(3) and (4)................ Inapplicable
310(b)........................... 6.9(a), (b) and (d)
310(c)........................... Inapplicable
311(a)........................... 6.13
311(b)........................... 6.13
311(c)........................... Inapplicable
312(a)........................... 4.1
312(b)........................... 4.4
312(c)........................... 4.4
313(a)........................... 4.3
313(b)(1)........................ Inapplicable
313(b)(2)........................ 4.3
313(c)........................... 4.3
313(d)........................... 4.3
314(a)........................... 4.2
314(b)........................... Inapplicable
314(c)(1) and (2)................ 11.5
314(c)(3)........................ Inapplicable
314(d)........................... Inapplicable
314(e)........................... 11.5
314(f)........................... Inapplicable
315(a), (c) and (d).............. 6.1
315(b)........................... 5.11
315(e)........................... 5.12
316(a)(1)(A)..................... 5.9
316(a)(1)(B)..................... 5.10
316(a)(2)........................ Not required
316(a) (last sentence)........... 7.4
316(b)........................... 5.7
317(a)........................... 5.2
317(b)........................... 3.4(a) and (b)
318(a)........................... 11.7
* This Cross Reference Sheet is not part of the Indenture.
<PAGE>
TABLE OF CONTENTS
Page
PARTIES.................................................. 1
RECITALS................................................. 1
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined.. . . . . . . . . . . . . . .1
Authenticating Agent . . . . . . . . . . . . . .2
Authorized Newspaper . . . . . . . . . . . . . .2
Board of Directors . . . . . . . . . . . . . . .2
Board Resolution . . . . . . . . . . . . . . . .2
Business Day . . . . . . . . . . . . . . . . . .2
Commission . . . . . . . . . . . . . . . . . . .2
Corporate Trust Office . . . . . . . . . . . . .3
Coupon . . . . . . . . . . . . . . . . . . . . .3
covenant defeasance. . . . . . . . . . . . . . .3
Debt . . . . . . . . . . . . . . . . . . . . . .3
Depositary . . . . . . . . . . . . . . . . . . .3
Dollar . . . . . . . . . . . . . . . . . . . . .3
ECU. . . . . . . . . . . . . . . . . . . . . . .3
Event of Default . . . . . . . . . . . . . . . .3
Foreign Currency . . . . . . . . . . . . . . . .3
Holder", "Holder of Securities",
"Securityholder. . . . . . . . . . . . . . . . .3
Indebtedness . . . . . . . . . . . . . . . . . .4
Indenture. . . . . . . . . . . . . . . . . . . .4
interest . . . . . . . . . . . . . . . . . . . .4
Issuer . . . . . . . . . . . . . . . . . . . . .4
Issuer Order . . . . . . . . . . . . . . . . . .4
Judgment Currency. . . . . . . . . . . . . . . .4
Officer's Certificate. . . . . . . . . . . . . .4
Opinion of Counsel . . . . . . . . . . . . . . .4
original issue date. . . . . . . . . . . . . . .4
Original Issue Discount Security . . . . . . . .4
Outstanding. . . . . . . . . . . . . . . . . . .4
Periodic Offering. . . . . . . . . . . . . . . .5
person . . . . . . . . . . . . . . . . . . . . .5
principal. . . . . . . . . . . . . . . . . . . .5
record date. . . . . . . . . . . . . . . . . . .6
Registered Global Security . . . . . . . . . . .6
Registered Security. . . . . . . . . . . . . . .6
Required Currency. . . . . . . . . . . . . . . .6
Responsible Officer. . . . . . . . . . . . . . .6
Security" or "Securities . . . . . . . . . . . .6
Senior Indebtedness. . . . . . . . . . . . . . .6
Subsidiary . . . . . . . . . . . . . . . . . . .7
Trustee. . . . . . . . . . . . . . . . . . . . .7
Trust Indenture Act of 1939. . . . . . . . . . .7
Unregistered Security. . . . . . . . . . . . . .7
U.S. Government Obligations. . . . . . . . . . .7
Voting Securities. . . . . . . . . . . . . . . .7
Yield to Maturity. . . . . . . . . . . . . . . .7
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally. . . . . . . . . . . . . . . . .7
SECTION 2.2 Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . . . .8
SECTION 2.3 Amount Unlimited; Issuable in Series . . . . . .9
SECTION 2.4 Authentication and Delivery of Securities. . . 11
SECTION 2.5 Execution of Securities. . . . . . . . . . . . 14
SECTION 2.6 Certificate of Authentication. . . . . . . . . 15
SECTION 2.7 Denomination and Date of Securities; Payments
of Interest. . . . . . . . . . . . . . . . . . 15
SECTION 2.8 Registration, Transfer and Exchange. . . . . . 16
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . . . . 20
SECTION 2.10 Cancellation of Securities; Destruction
Thereof. . . . . . . . . . . . . . . . . . . . 21
SECTION 2.11 Temporary Securities . . . . . . . . . . . . . 22
SECTION 2.12 CUSIP Numbers. . . . . . . . . . . . . . . . . 22
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest. . . . . . . 23
SECTION 3.2 Offices for Payments, etc. . . . . . . . . . . 23
SECTION 3.3 Appointment to Fill a Vacancy in Office of
Trustee. . . . . . . . . . . . . . . . . . . . 25
SECTION 3.4 Paying Agents. . . . . . . . . . . . . . . . . 25
SECTION 3.5 Compliance Certificate . . . . . . . . . . . . 26
SECTION 3.6 Maintenance of Properties. . . . . . . . . . . 26
<PAGE>
SECTION 3.7 Payment of Taxes and Other Claims. . . . . . . 26
SECTION 3.8 Waiver of Certain Covenants. . . . . . . . . . 27
SECTION 3.9 Corporate Existence. . . . . . . . . . . . . . 27
SECTION 3.10 Luxembourg Publications. . . . . . . . . . . . 27
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Information as to
Names and Addresses of Securityholders . . . . 27
SECTION 4.2 Reports by the Issuer. . . . . . . . . . . . . 28
SECTION 4.3 Reports by the Trustee . . . . . . . . . . . . 28
SECTION 4.4 Communication by Holders with Other Holders. . 28
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration of Maturity;
Waiver of Default. . . . . . . . . . . . . . . 28
SECTION 5.2 Collection of Indebtedness by Trustee; Trustee
May Prove Debt . . . . . . . . . . . . . . . . 31
SECTION 5.3 Application of Proceeds. . . . . . . . . . . . 34
SECTION 5.4 Suits for Enforcement. . . . . . . . . . . . . 35
SECTION 5.5 Restoration of Rights on Abandonment of
Proceedings. . . . . . . . . . . . . . . . . . 35
SECTION 5.6 Limitations on Suits by Securityholders. . . . 35
SECTION 5.7 Unconditional Right of Securityholders to
Institute Certain Suits. . . . . . . . . . . . 36
SECTION 5.8 Powers and Remedies Cumulative; Delay or
Omission Not Waiver of Default . . . . . . . . 36
SECTION 5.9 Control by Holders of Securities . . . . . . . 36
SECTION 5.10 Waiver of Past Defaults. . . . . . . . . . . . 37
SECTION 5.11 Trustee to Give Notice of Default, but May
Withhold in Certain Circumstances. . . . . . . 37
SECTION 5.12 Right of Court to Require Filing of Undertaking
to Pay Costs . . . . . . . . . . . . . . . . . 38
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee;
During Default; Prior to Default . . . . . . . 39
SECTION 6.2 Certain Rights of the Trustee. . . . . . . . . 40
SECTION 6.3 Trustee Not Responsible for Recitals,
Disposition of Securities or Application of
Proceeds Thereof . . . . . . . . . . . . . . . 41
SECTION 6.4 Trustee and Agents May Hold Securities or
Coupons; Collections, etc. . . . . . . . . . . 42
SECTION 6.5 Moneys Held by Trustee . . . . . . . . . . . . 42
SECTION 6.6 Compensation and Indemnification of
Trustee and Its Prior Claim. . . . . . . . . . 42
SECTION 6.7 Right of Trustee to Rely on Officer's
Certificate, etc . . . . . . . . . . . . . . . 43
SECTION 6.8 Persons Eligible for Appointment as Trustee. . 43
SECTION 6.9 Resignation and Removal; Appointment of
Successor Trustee. . . . . . . . . . . . . . . 43
SECTION 6.10 Acceptance of Appointment by Successor
Trustee. . . . . . . . . . . . . . . . . . . . 45
SECTION 6.11 Merger, Conversion, Consolidation or Succession
to Business of Trustee . . . . . . . . . . . . 46
SECTION 6.12 Appointment of Authenticating Agent. . . . . . 47
SECTION 6.13 Preferential Collection of Claims Against
Issuer . . . . . . . . . . . . . . . . . . . . 48
SECTION 6.14 Appointment of Co-Trustees . . . . . . . . . . 48
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders. . 49
SECTION 7.2 Proof of Execution of Instruments and of Holding
of Securities. . . . . . . . . . . . . . . . . 49
SECTION 7.3 Holders to Be Treated as Owners. . . . . . . . 51
SECTION 7.4 Securities Owned by Issuer Deemed Not
Outstanding. . . . . . . . . . . . . . . . . . 51
SECTION 7.5 Right of Revocation of Action Taken. . . . . . 52
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of
Securityholders. . . . . . . . . . . . . . . . 52
SECTION 8.2 Supplemental Indentures With Consent of
Securityholders. . . . . . . . . . . . . . . . 54
SECTION 8.3 Effect of Supplemental Indenture . . . . . . . 55
SECTION 8.4 Documents to Be Given to Trustee . . . . . . . 56
SECTION 8.5 Notation on Securities in Respect of
Supplemental Indentures. . . . . . . . . . . . 56
SECTION 8.6 Compliance with Trust Indenture Act. . . . . . 56
<PAGE>
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 When Issuer May Merge, etc . . . . . . . . . . 56
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture. . . . 57
SECTION 10.2 Application by Trustee of Funds Deposited for
Payment of Securities. . . . . . . . . . . . . 61
SECTION 10.3 Repayment of Moneys Held by Paying Agent . . . 61
SECTION 10.4 Return of Moneys Held by Trustee and Paying
Agent Unclaimed for Two Years. . . . . . . . . 61
SECTION 10.5 Indemnity for U.S. Government Obligations. . . 62
SECTION 10.6 Reinstatement Provision. . . . . . . . . . . . 62
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers and
Directors of Issuer Exempt From Individual
Liability. . . . . . . . . . . . . . . . . . . 63
SECTION 11.2 Provisions of Indenture for the Sole Benefit of
Parties and Holders of Securities and Coupons. 63
SECTION 11.3 Successors and Assigns of Issuer Bound by
Indenture. . . . . . . . . . . . . . . . . . . 63
SECTION 11.4 Notices and Demands on Issuer, Trustee and
Holders of Securities and Coupons. . . . . . . 63
SECTION 11.5 Officer's Certificates and Opinions of Counsel;
Statements to Be Contained Therein . . . . . . 64
SECTION 11.6 Payments Due on Saturdays, Sundays and
Holidays . . . . . . . . . . . . . . . . . . . 65
SECTION 11.7 Conflict of Any Provision of Indenture With
Trust Indenture Act of 1939. . . . . . . . . . 65
SECTION 11.8 New York Law to Govern . . . . . . . . . . . . 66
SECTION 11.9 Counterparts . . . . . . . . . . . . . . . . . 66
SECTION 11.10 Effect of Headings . . . . . . . . . . . . . . 66
SECTION 11.11 Securities in a Foreign Currency or in ECU . . 66
SECTION 11.12 Judgment Currency. . . . . . . . . . . . . . . 67
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article . . . . . . . . . . . 67
SECTION 12.2 Notice of Redemption; Partial Redemptions. . . 68
SECTION 12.3 Payment of Securities Called for Redemption. . 69
SECTION 12.4 Exclusion of Certain Securities From
Eligibility for Selection for Redemption . . . 70
SECTION 12.5 Mandatory and Optional Sinking Funds . . . . . 70
ARTICLE THIRTEEN SUBORDINATION OF SECURITIES
SECTION 13.1. Securities Subordinated to Senior
Indebtedness . . . . . . . . . . . . . . . . . 73
SECTION 13.2. Payment Over of Proceeds Upon
Dissolution, Etc.. . . . . . . . . . . . . . . 73
SECTION 13.3. No Payment When Senior Indebtedness In Default
or Upon Acceleration of Securities . . . . . . 74
SECTION 13.4. Payments Made In Error . . . . . . . . . . . . 74
SECTION 13.5. Payment Permitted If No Default. . . . . . . . 74
SECTION 13.6. Subrogation to Rights of Holders of Senior
Indebtedness . . . . . . . . . . . . . . . . . 74
SECTION 13.7 Provisions Solely to Define Relative Rights. . 75
SECTION 13.8. Trustee to Effectuate Subordination. . . . . . 75
SECTION 13.9 No Waiver of Subordination Provisions. . . . . 75
SECTION 13.10 Notice to Trustee. . . . . . . . . . . . . . . 76
SECTION 13.11 Reliance on Judicial Order or Certificate of
Liquidating Agent. . . . . . . . . . . . . . . 77
SECTION 13.12 Rights of Trustee As a Holder of Senior
Indebtedness; Preservation of Trustee's Rights 77
SECTION 13.13 Article Applicable to Paying Agents . . . . . 77
SECTION 13.14. No Suspension of Remedies . . . . . . . . . . 77
SECTION 13.15. Trust Moneys Not Subordinated . . . . . . . . 78
TESTIMONIUM. . . . . . . . . . . . . . . . . . . . . . . . . . 81
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . 81
<PAGE>
THIS INDENTURE, dated as of May 1, 1994, between Loral
Corporation, a New York corporation (the "Issuer"), and The Bank of
New York, a national banking association, as trustee (the
"Trustee"),
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issue from time
to time of its unsecured debentures, notes or other evidences of
indebtedness to be issued in one or more series (the "Securities")
up to such principal amount or amounts as may from time to time be
authorized in accordance with the terms of this Indenture;
WHEREAS, the Issuer has duly authorized the execution and
delivery of this Indenture to provide, among other things, for the
authentication, delivery and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement according to its terms have been done.
NOW, THEREFORE:
In consideration of the premises and the purchases of the
Securities by the holders thereof, the Issuer and the Trustee
mutually covenant and agree for the equal and proportionate benefit
of the respective holders from time to time of the Securities and
of the coupons, if any, appertaining thereto as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms
(except as otherwise expressly provided or unless the context
otherwise clearly 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 that are defined in the Trust Indenture Act of 1939 or
the definitions of which in the Securities Act of 1933 are referred
to in the Trust Indenture Act of 1939, including terms defined
therein by reference to the Securities Act of 1933 (except as
herein otherwise expressly provided or unless the context otherwise
requires), shall have the meanings assigned to such terms in said
Trust Indenture Act and in said Securities Act as in force at the
date of this Indenture. All accounting terms used herein and not
expressly defined shall have the meanings assigned to such terms in
accordance with generally accepted accounting principles, and the
term "generally accepted accounting principles" means such
accounting principles as are generally accepted at the time of any
computation. The words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole
and not to any particular Article, Section or other subdivision.
The terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the
singular.
"Authenticating Agent" shall have the meaning set forth in
Section 6.12.
"Authorized Newspaper" means a newspaper (which, in the case
of The City of New York, will, if practicable, be The Wall Street
Journal (Eastern Edition), in the case of the United Kingdom, will,
if practicable, be the Financial Times (London Edition) and, in the
case of Luxembourg, will, if practicable, be the Luxemburger Wort)
published in an official language of the country of publication
customarily published at least once a day for at least five days in
each calendar week and of general circulation in The City of New
York, the United Kingdom or Luxembourg, as applicable. If it shall
be impractical 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.
"Board of Directors" means either the Board of Directors of
the Issuer or any committee of such Board duly authorized to act on
its behalf.
"Board Resolution" means a copy of one or more resolutions,
certified by the secretary or an assistant secretary of the Issuer
to have been duly adopted or consented to by the Board of Directors
and to be in full force and effect.
"Business Day" means, with respect to any Security, a day
that in New York City or the city (or in any of the cities, if more
than one) in which amounts are payable, as specified in the form of
such Security, which is not a day on which banking institutions are
authorized or required by law or regulation to close.
"Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Securities
Exchange Act of 1934, or if at any time after the execution and
delivery of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture
Act of 1939, then the body performing such duties on such date.
<PAGE>
"Corporate Trust Office" means the office of the Trustee at
which the corporate trust business of the Trustee shall, at any
particular time, be principally administered.
"Coupon" means any interest coupon appertaining to a
Security.
"covenant defeasance" shall have the meaning set forth in
Section 10.1(C).
"Debt" means indebtedness for money borrowed.
"Depositary" means, with respect to the Securities of any
series issuable or issued in the form of one or more Registered
Global Securities, the person designated as Depositary by the
Issuer pursuant to Section 2.3 until a successor Depositary shall
have become such pursuant to the applicable provisions of this
Indenture, 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 Registered Global Securities of that series.
"Dollar" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment
of public and private debts.
"ECU" means the European Currency Unit as defined and
revised from time to time by the Council of European Communities.
"Event of Default" means any event or condition specified as
such in Section 5.1.
"Foreign Currency" means a currency issued by the government
of a country other than the United States.
"Holder", "Holder of Securities", "Securityholder"
or other similar terms mean (a) in the case of any Registered
Security, the person in whose name such Security is registered in
the security register kept by the Issuer for that purpose in
accordance with the terms hereof, and (b) in the case of any
Unregistered Security, the bearer of such Security, or any Coupon
appertaining thereto, as the case may be.
"Indebtedness" of any person means all Debt which is
created, assumed, incurred or guaranteed in any manner by such
person or for which such person is otherwise responsible or liable.
"Indenture" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so
amended or supplemented or both, and shall include the forms and
terms of particular series of Securities established as
contemplated hereunder.
"interest" means, when used with respect to non-interest
bearing Securities, interest payable after maturity.
"Issuer" means Loral Corporation, a New York corporation,
and, subject to Article Nine, its successors and assigns.
"Issuer Order" means a written statement, request or order
of the Issuer signed in its name by the chairman or vice chairman
of the Board of Directors, the president, any vice president or the
treasurer of the Issuer.
"Judgment Currency" shall have the meaning set forth in
Section 11.12.
"Officer's Certificate" means a certificate signed by the
chairman or vice chairman of the Board of Directors, the president
or any vice president or the treasurer of the Issuer. Each such
certificate shall comply with Section 314 of the Trust Indenture
Act of 1939 and include the statements provided for in Section
11.5.
"Opinion of Counsel" means an opinion in writing signed by
the General Counsel of the Issuer or by such other legal counsel
who may be an employee of or counsel to the Issuer. Each such
opinion shall comply with Section 314 of the Trust Indenture Act of
1939 and include the statements provided for in Section 11.5.
"original issue date" of any Security (or portion thereof)
means the earlier of (a) the date of such Security or (b) the date
of any Security (or portion thereof) for which such Security was
issued (directly or indirectly) on registration of transfer,
exchange or substitution.
"Original Issue Discount Security" means any Security that
provides for an amount less than the principal amount thereof to be
due and payable upon a declaration of acceleration of the maturity
thereof pursuant to Section 5.1.
"Outstanding," when used with reference to Securities,
shall, subject to the provisions of Section 7.4, mean, as of any
particular time, all Securities authenticated and delivered by the
<PAGE>
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 or U.S. Government Obligations (as
provided for in Section 10.1) in the necessary amount shall have
been deposited in trust with the Trustee or with any paying agent
(other than the Issuer) or shall have been set aside, segregated
and held in trust by the Issuer for the Holders of such
Securities (if the Issuer shall act as its own paying agent),
provided that if such Securities, or portions thereof, are to be
redeemed prior to the maturity thereof, notice of such redemption
shall have been given as herein provided, or provision
satisfactory to the Trustee shall have been made for giving such
notice; and
(c) Securities which shall have been paid or in
substitution for which other Securities shall have been
authenticated and delivered pursuant to the terms of Section 2.9
(except with respect to any such Security as to which proof
satisfactory to the Trustee is presented that such Security is
held by a person in whose hands such Security is a legal, valid
and binding obligation of the Issuer).
In determining whether the Holders of the requisite
principal amount of Outstanding Securities of any or all series
have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, the principal amount of an Original
Issue Discount Security that shall be deemed to be Outstanding for
such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon
a declaration of acceleration of the maturity thereof pursuant to
Section 5.1.
"Periodic Offering" means an offering of Securities of a
series from time to time, the specific terms of which Securities,
including, without limitation, the rate or rates of interest, if
any, thereon, the stated maturity or maturities thereof and the
redemption provisions, if any, with respect thereto, are to be
determined by the Issuer or its agents upon the issuance of such
Securities.
"person" means any individual, corporation, partnership,
joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or
political subdivision thereof.
"principal" whenever used with reference to the Securities
or any Security or any portion thereof, shall be deemed to include
"and premium, if any".
"record date" shall have the meaning set forth in Section
2.7.
"Registered Global Security" means a Security evidencing all
or a part of a series of Registered Securities, issued to the
Depositary for such series in accordance with Section 2.4, and
bearing the legend prescribed in Section 2.4.
"Registered Security" means any Security registered on the
Security register of the Issuer.
"Required Currency" shall have the meaning set forth in
Section 11.12.
"Responsible Officer" when used with respect to the Trustee
means the chairman of the Board of Directors, any vice chairman of
the Board of Directors, the chairman of the trust committee, the
chairman of the executive committee, any vice chairman of the
executive committee, the president, any vice president (whether or
not designated by numbers or words added before or after the title
"vice president"), the cashier, the secretary, the treasurer, any
trust officer, any assistant trust officer, any assistant vice
president, any assistant cashier, any assistant secretary, any
assistant treasurer, or any other officer or assistant officer of
the Trustee customarily performing functions similar to those
performed by the persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred
because of his knowledge of and familiarity with the particular
subject.
"Security" or "Securities" has the meaning stated in the
first recital of this Indenture, or, as the case may be, Securities
that have been authenticated and delivered under this Indenture.
"Senior Indebtedness" means the principal of (and premium,
if any) and interest (including, without limitation, any post-
petition interest) on any indebtedness, whether outstanding at the
date hereof or thereafter created or incurred, which is for (a)
money borrowed by the Issuer, including, without limitation, the
Company's (i) five-year $1.2 billion revolving credit facility,
(ii) 364-day $500 million revolving credit facility, (iii) 9-1/8%
Senior Debentures due 2022, (iv) 8-3/8% Senior Debentures due 2023,
(v) 7% Senior Debentures due 2023 and (vi) commercial paper
<PAGE>
borrowings, (b) obligations of the Issuer evidencing the purchase
price for acquisitions by the Issuer or a subsidiary other than in
the ordinary course of business, (c) money borrowed by others and
assumed or guaranteed by the Issuer, (d) capitalized lease
obligations of the Issuer, (e) obligations under performance
guarantees, support agreements and other agreements in the nature
thereof and (f) renewals, extensions, refundings, amendments and
modifications of any indebtedness, of the kind described in the
foregoing clauses (a), (b), (c), (d) and (e) or of the instruments
creating or evidencing such indebtedness, unless, in each case, by
the terms of the instrument creating or evidencing such
indebtedness or such renewal, extension, refunding, amendment and
modification, it is provided that such indebtedness is not senior
in right of payment to the Securities.
"Subsidiary" means any corporation more than 50% of the
outstanding Voting Securities of which shall at the time be owned,
directly or indirectly, by the Issuer that the Issuer actually
consolidates for financial reporting purposes.
"Trustee" means the person identified as "Trustee" in the
first paragraph hereof and, subject to the provisions of Article
Six, shall also include any successor trustee. If at any time
there is more than one such person, "Trustee" as used with respect
to the Securities of any series shall mean the trustee with respect
to the Securities of such series.
"Trust Indenture Act of 1939" means the Trust Indenture Act
of 1939 as amended and as in force at the date as of which this
Indenture was originally executed.
"Unregistered Security" means any Security other than a
Registered Security.
"U.S. Government Obligations" shall have the meaning set
forth in Section 10.1(A).
"Voting Securities" of a corporation means securities of any
class or classes (however designated) ordinarily having the right
to elect a majority of the members of the board of directors (or
other governing body) of such corporation other than securities
having such power only by reason of the happening of a contingency.
"Yield to Maturity" means, as the context may require, the
yield to maturity (i) on a series of Securities or (ii) if the
Securities of a series are issuable from time to time, on a
Security of such series, calculated at the time of issuance of such
series in the case of clause (i) or at the time of issuance of such
Security of such series in the case of clause (ii), or, if
applicable, at the most recent redetermination of interest on such
series or on such Security, and calculated in accordance with the
constant interest method or such other accepted financial practice
as is specified in the terms of such Security.
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series
and the Coupons, if any, to be attached thereto shall be
substantially in such form (not inconsistent with this Indenture)
as shall be established by or pursuant to one or more Board
Resolutions (as set forth in a Board Resolution or, to the extent
established pursuant to rather than set forth in a Board
Resolution, an Officer's Certificate detailing such establishment)
or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture and may
have imprinted or otherwise reproduced thereon such legend or
legends or endorsements, not inconsistent with the provisions of
this Indenture, as may be required to comply with any law or with
any rules or regulations pursuant thereto, or with any rules of any
securities exchange or to conform to general usage, all as may be
determined by the officer executing such Securities and Coupons, if
any, as evidenced by his execution of such Securities and Coupons.
The definitive Securities and Coupons, if any, shall be
printed, lithographed or engraved on steel engraved borders or may
be produced in any other manner, all as determined by the officers
executing such Securities and Coupons, if any, as evidenced by
their execution of such Securities and Coupons, if any.
SECTION 2.2 Form of Trustee's Certificate of
Authentication. The Trustee's certificate of authentication on all
Securities shall be in substantially the following form:
Date:
"This is one of the Securities referred to in the
within-mentioned Indenture.
The Bank of New York
--------------------
as Trustee
By
<PAGE>
------------------
Authorized Officer"
If at any time there shall be an Authenticating Agent
appointed with respect to any series of Securities, then the
Trustee's certificate of authentication to be borne by the
Securities of each such series shall be substantially as follows:
"This is one of the Securities referred to in the
within-mentioned Indenture.
-----------------------,
as Authenticating Agent
By
------------------
Authorized Officer"
SECTION 2.3 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 and each
such series shall be subordinated in right of payment to the prior
payment in full of the Senior Indebtedness of the Issuer. There
shall be established in or pursuant to one or more Board
Resolutions (and to the extent established pursuant to rather than
set forth in a Board Resolution, in an Officer's Certificate
detailing such establishment) or established in one or more
indentures supplemental hereto, prior to the initial issuance of
Securities of any series,
(1) the designation of the Securities of the series, which
shall distinguish the Securities of the series from the
Securities of all other series;
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for,
or in lieu of, other Securities of the series pursuant to Section
2.8, 2.9, 2.11, 8.5 or 12.3);
(3) if other than Dollars, the coin or currency in which
the Securities of that series are denominated (including, but not
limited to, any Foreign Currency or ECU);
(4) the date or dates on which the principal of the
Securities of the series is payable;
(5) the rate or rates at which the Securities of the series
shall bear interest, if any, the date or dates from which such
interest shall accrue, on which such interest shall be payable
and (in the case of Registered Securities) on which a record
shall be taken for the determination of Holders to whom interest
is payable and/or the method by which such rate or rates or date
or dates shall be determined;
(6) the place or places where the principal of and any
interest on Securities of the series shall be payable (if other
than as provided in Section 3.2);
(7) the right, if any, of the Issuer to redeem Securities,
in whole or in part, at its option and the period or periods
within which, the price or prices at which and any terms and
conditions upon which Securities of the series may be so
redeemed, pursuant to any sinking fund or otherwise;
(8) the obligation, if any, of the Issuer to redeem,
purchase or repay Securities of the series pursuant to any
mandatory redemption, sinking fund or analogous provisions or at
the option of a Holder thereof and the price or prices at which
and the period or periods within which and any terms and
conditions upon which Securities of the series shall be redeemed,
purchased or repaid, in whole or in part, pursuant to such
obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof in the case of Registered Securities, or $1,000
and $5,000 in the case of Unregistered Securities, the
denominations in which Securities of the series shall be
issuable;
(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;
(11) if other than the coin or currency in which the
Securities of that series are denominated, the coin or currency
in which payment of the principal of or interest on the
Securities of such series shall be payable;
(12) if the principal of or interest on the Securities of
<PAGE>
such series are to be payable, at the election of the Issuer or
a Holder thereof, in a coin or currency other than that in which
the Securities are denominated, the period or periods within
which, and the terms and conditions upon which, such election may
be made;
(13) if the amount of payments of principal of and interest
on the Securities of the series may be determined with reference
to an index based on a coin or currency other than that in which
the Securities of the series are denominated, the manner in which
such amounts shall be determined;
(14) whether the Securities of the series will be issuable
as Registered Securities (and if so, whether such Securities will
be issuable as Registered Global Securities) or Unregistered
Securities (with or without Coupons), or any combination of the
foregoing, any restrictions applicable to the offer, sale or
delivery of Unregistered Securities or the payment of interest
thereon and, if other than as provided in Section 2.8, the terms
upon which Unregistered Securities of any series may be exchanged
for Registered Securities of such series and vice versa;
(15) whether and under what circumstances the Issuer 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 Issuer will have the option to redeem such Securities rather
than pay such additional amounts;
(16) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of
a temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other
conditions, the form and terms of such certificates, documents or
conditions;
(17) any trustees (other than the Trustee named herein),
Depositaries, authenticating or paying agents, transfer agents or
registrars or any other agents with respect to the Securities of
such series;
(18) any other events of default or covenants with respect
to the Securities of such series;
(19) any provisions in modification of, in addition to or
in lieu of the provisions concerning subordination with respect
to the Securities of such series;
(20) if the Securities of the series are to be convertible
into or exchangeable for any securities of any Person (including
the Company), the terms and conditions upon which such Securities
will be so convertible or exchangeable; and
(21) any other terms of the series (which terms shall not
be inconsistent with the provisions of this Indenture).
All Securities of any one series and Coupons, if any,
appertaining thereto, shall be substantially identical, except in
the case of Registered Securities as to denomination and except as
may otherwise be provided by or pursuant to the Board Resolution or
Officer's Certificate referred to above or as set forth in any such
indenture supplemental hereto. All Securities of any one series
need not be issued at the same time and may be issued from time to
time, consistent with the terms of this Indenture, if so provided
by or pursuant to such Board Resolution, such Officer's Certificate
or in any such indenture supplemental hereto.
SECTION 2.4 Authentication and Delivery of Securities. The
Issuer may deliver Securities of any series having attached thereto
appropriate Coupons, if any, executed by the Issuer to the Trustee
for authentication together with the applicable documents referred
to below in this Section, and the Trustee shall thereupon
authenticate and deliver such Securities to or upon the order of
the Issuer (contained in the Issuer Order referred to below in this
Section) or pursuant to such procedures acceptable to the Trustee
and to such recipients as may be specified from time to time by an
Issuer Order. The maturity date, original issue date, interest
rate and any other terms of the Securities of such series and
Coupons, if any, appertaining thereto shall be determined by or
pursuant to such Issuer Order and procedures. If provided for in
such procedures, such Issuer Order may authorize authentication and
delivery pursuant to oral instructions from the Issuer or its duly
authorized agent, which instructions shall be promptly confirmed in
writing. Prior to authenticating such Securities and accepting the
additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall receive at or before the time of
the first request of the Issuer to the Trustee to authenticate
Securities of such series (unless otherwise specified below), and
subject to Section 6.1 shall be fully protected in relying upon,
unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and
setting forth delivery instructions if the Securities and
Coupons, if any, are not to be delivered to the Issuer, provided
that, with respect to Securities of a series subject to a
Periodic Offering, (a) such Issuer Order may be delivered by the
<PAGE>
Issuer to the Trustee prior to the delivery to the Trustee of
such Securities for authentication and delivery, (b) the Trustee
shall authenticate and deliver Securities of such series for
original issue from time to time, in an aggregate principal
amount not exceeding the aggregate principal amount established
for such series, pursuant to an Issuer Order or pursuant to
procedures acceptable to the Trustee as may be specified from
time to time by an Issuer Order, (c) the maturity date or dates,
original issue date or dates, interest rate or rates and any
other terms of Securities of such series shall be determined by
an Issuer Order or pursuant to such procedures and (d) if
provided for in such procedures, such Issuer Order may authorize
authentication and delivery pursuant to oral or electronic
instructions from the Issuer or its duly authorized agent or
agents, which oral instructions shall be promptly confirmed in
writing;
(2) any Board Resolution, Officer's Certificate and/or
executed supplemental indenture referred to in Sections 2.1 or
2.3 by or pursuant to which the forms and terms of the Securities
and Coupons, if any, were established;
(3) an Officer's Certificate setting forth the form or
forms and terms of the Securities and Coupons, if any, stating
that the form or forms and terms of the Securities and Coupons,
if any, have been established pursuant to Sections 2.1 and 2.3
and comply with this Indenture, and covering such other matters
as the Trustee may reasonably request; and
(4) at the option of the Issuer, either an Opinion of
Counsel, or a letter addressed to the Trustee permitting it to
rely on an Opinion of Counsel, substantially to the effect that:
(a) the forms of the Securities and Coupons, if any,
have been duly authorized and established in conformity with
the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms
of the Securities have been duly authorized and established
in conformity with the provisions of this Indenture, and, in
the case of an offering that is not underwritten, certain
terms of the Securities have been established pursuant to a
Board Resolution, an Officer's Certificate or a supplemental
indenture in accordance with this Indenture, and when such
other terms as are to be established pursuant to procedures
set forth in an Issuer Order shall have been established,
all such terms will have been duly authorized by the Issuer
and will have been established in conformity with the
provisions of this Indenture;
(c) when the Securities and Coupons, if any, have been
executed by the Issuer and authenticated by the Trustee in
accordance with the provisions of this Indenture and
delivered to and duly paid for by the purchasers thereof,
they will have been duly issued under this Indenture and
will be valid and legally binding obligations of the Issuer,
enforceable in accordance with their respective terms, and
will be entitled to the benefits of this Indenture;
(d) the execution and delivery by the Issuer of, and
the performance by the Issuer of its obligations under, the
Securities and Coupons, if any, will not contravene any
provision of applicable law or the certificate of
incorporation or by-laws of the Issuer or any agreement or
other instrument binding upon the Issuer or any of its
Subsidiaries that is material to the Issuer and its
Subsidiaries, considered as one enterprise, or any judgment,
order or decree of any governmental body, agency or court
having jurisdiction over the Issuer or any Subsidiary, and
no consent, approval or authorization of any governmental
body or agency is required for the performance by the Issuer
of its obligations under the Securities and Coupons, if any,
except such as are specified and have been obtained and such
as may be required by the securities or blue sky laws of the
various states in connection with the offer and sale of the
Securities and Coupons, if any;
(e) the Indenture has been qualified under the Trust
Indenture Act of 1939; and
(f) a registration statement relating to the
Securities has been declared effective under the Securities
Act of 1933, as amended, and, to the best of such counsel's
knowledge, no stop order relating thereto has been issued.
In rendering such opinions, such counsel may qualify any
opinions as to enforceability by stating that such enforceability
may be limited by bankruptcy, insolvency, reorganization,
liquidation, moratorium and other similar laws affecting the rights
and remedies of creditors and is subject to general principles of
equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law). Such counsel may rely, as to
all matters governed by the laws of jurisdictions other than the
State of New York and the federal law of the United States, upon
opinions of other counsel (copies of which shall be delivered to
the Trustee), who shall be counsel reasonably satisfactory to the
<PAGE>
Trustee, in which case the opinion shall state that such counsel
believes he and the Trustee are entitled so to rely. Such counsel
may also state that, insofar as such opinion involves factual
matters, he has relied, to the extent he deems proper, upon
certificates of officers of the Issuer and its Subsidiaries and
certificates of public officials.
The Trustee shall have the right to decline to authenticate
and deliver any Securities under this Section if the Trustee, being
advised by counsel, determines that such action may not lawfully be
taken by the Issuer (provided, however, that the Trustee shall be
under no obligation to ascertain whether such action may be
lawfully taken by the Issuer) or if the Trustee in good faith by
its board of directors or board of trustees, executive committee,
or a trust committee of directors or trustees or a Responsible
Officer shall determine that such action would expose the Trustee
to personal liability to existing Holders or would affect the
Trustee's own rights, duties or immunities under the Securities,
this Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that
the Securities of a series are to be issued in the form of one or
more Registered Global Securities, then the Issuer shall execute
and the Trustee shall, in accordance with this Section and the
Issuer Order with respect to such series, authenticate and deliver
one or more Registered Global Securities that (i) shall represent
and shall be denominated in an amount equal to the aggregate
principal amount of all of the Securities of such series issued and
not yet cancelled, (ii) shall be registered in the name of the
Depositary for such Registered 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:
"Unless and until it is exchanged in whole or in part for
Securities in definitive registered form, this 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."
Each Depositary designated pursuant to Section 2.3 must, at
the time of its designation and at all times while it serves as
Depositary, be a clearing agency registered under the Securities
Exchange Act of 1934 and any other applicable statute or
regulation.
SECTION 2.5 Execution of Securities. The Securities and,
if applicable, each Coupon appertaining thereto shall be signed on
behalf of the Issuer by the chairman or vice chairman of its Board
of Directors or its president or any vice president or its
treasurer, which may, but need not, be attested. Such signature(s)
may be the manual or facsimile signature(s) of the present or any
future such officer(s). The seal of the Issuer may be in the form
of a facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Securities.
In case any officer of the Issuer who shall have signed any
of the Securities or Coupons, if any, shall cease to be such
officer before the Security or Coupon so signed (or the Security to
which the Coupon so signed appertains) shall be authenticated and
delivered by the Trustee or disposed of by the Issuer, such
Security or Coupon nevertheless may be authenticated and delivered
or disposed of as though the person who signed such Security or
Coupon had not ceased to be such officer of the Issuer; and any
Security or Coupon may be signed on behalf of the Issuer by such
person(s) as, at the actual date of the execution of such Security
or Coupon, shall be the proper officer(s) of the Issuer, although
at the date of the execution and delivery of this Indenture any
such person was not such an officer.
SECTION 2.6 Certificate of Authentication. Only such
Securities as shall bear thereon a certificate of authentication
substantially in the form hereinbefore recited, executed by the
Trustee by the manual signature of one of its authorized officers,
shall be entitled to the benefits of this Indenture or be valid or
obligatory for any purpose. No Coupon shall be entitled to the
benefits of this Indenture or shall be valid and obligatory for any
purpose until the certificate of authentication on the Security to
which such Coupon appertains shall have been duly executed by the
Trustee. The execution of such certificate by the Trustee upon any
Security executed by the Issuer shall be conclusive evidence that
the Security so authenticated has been duly authenticated and
delivered hereunder and that the Holder is entitled to the benefits
of this Indenture.
SECTION 2.7 Denomination and Date of Securities; Payments
of Interest. The Securities of each series shall be issuable as
Registered Securities or Unregistered Securities in denominations
established as contemplated by Section 2.3 or, with respect to the
Registered Securities of any series, if not so established, in
denominations of $1,000 and any integral multiple thereof. If
denominations of Unregistered Securities of any series are not so
established, such Securities shall be issuable in denominations of
$1,000 and $5,000. The Securities of each series shall be
numbered, lettered or otherwise distinguished in such manner or in
<PAGE>
accordance with such plan as the officer(s) of the Issuer executing
the same may determine with the approval of the Trustee, as
evidenced by the execution and authentication thereof.
Each Registered Security shall be dated the date of its
authentication. Each Unregistered Security shall be dated as
provided in the resolution or resolutions of the Board of Directors
of the Issuer referred to in Section 2.3. The Securities of each
series shall bear interest, if any, from the date, and such
interest shall be payable on the dates, established as contemplated
by Section 2.3.
The person in whose name any Registered Security of any
series is registered at the close of business on any record date
applicable to a particular series with respect to any interest
payment date for such series shall be entitled to receive the
interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Registered
Security subsequent to the record date and prior to such interest
payment date, except if and to the extent the Issuer shall default
in the payment of the interest due on such interest payment date
for such series, in which case such defaulted interest shall be
paid to the persons in whose names Outstanding Registered
Securities for such series are registered at the close of business
on a subsequent record date (which shall be not less than five
Business Days prior to the date of payment of such defaulted
interest) established by notice given by mail by or on behalf of
the Issuer to the Holders of Registered Securities not less than 15
days preceding such subsequent record date. The term "record date"
as used with respect to any interest payment date (except a date
for payment of defaulted interest) for the Securities of any series
shall mean the date specified as such in the terms of the
Registered Securities of such series established as contemplated by
Section 2.3, or, if no such date is so established, if such
interest payment date is the first day of a calendar month, the
fifteenth day of the next preceding calendar month or, if such
interest payment date is the fifteenth day of a calendar month, the
first day of such calendar month, whether or not such record date
is a Business Day. The Issuer may make payment of any defaulted
interest in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may
be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Issuer to the Trustee of
the proposed payment pursuant to this provision, such payment shall
be deemed practicable by the Trustee.
SECTION 2.8 Registration, Transfer and Exchange. The
Issuer will keep at each office or agency to be maintained for the
purpose as provided in Section 3.2 for each series of Securities a
register or registers in which, subject to such reasonable
regulations as it may prescribe, it will provide for the
registration of Registered Securities of such series and the
registration of transfer of Registered Securities of such series.
Such register shall be in written form in the English language or
in any other form capable of being converted into such form within
a reasonable time. At all reasonable times such register or
registers shall be open for inspection by the Trustee.
Upon due presentation for registration of transfer of any
Registered Security of any series at any such office or agency to
be maintained for the purpose as provided in Section 3.2, the
Issuer shall execute and the Trustee shall authenticate and deliver
in the name of the transferee or transferees a new Registered
Security or Registered Securities of the same series, maturity
date, interest rate and original issue date in authorized
denominations for a like aggregate principal amount.
Unregistered Securities (except for any temporary global
Unregistered Securities) and Coupons (except for Coupons attached
to any temporary global Unregistered Securities) shall be
transferable by delivery.
At the option of the Holder thereof, Registered Securities
of any series (other than a Registered Global Security, except as
set forth below) may be exchanged for a Registered Security or
Registered Securities of such series having authorized
denominations and an equal aggregate principal amount, upon
surrender of such Registered Securities to be exchanged at the
office or agency of the Issuer that shall be maintained for such
purpose in accordance with Section 3.2 and upon payment, if the
Issuer shall so require, of the charges hereinafter provided. If
the Securities of any series are issued in both registered and
unregistered form, except as otherwise specified pursuant to
Section 2.3, at the option of the Holder thereof, Unregistered
Securities of any series may be exchanged for Registered Securities
of such series having authorized denominations and an equal
aggregate principal amount, upon surrender of such Unregistered
Securities to be exchanged at the office or agency of the Issuer
that shall be maintained for such purpose in accordance with
Section 3.2, with, in the case of Unregistered Securities that have
Coupons attached, all unmatured Coupons and all matured Coupons in
default thereto appertaining, and upon payment, if the Issuer shall
so require, of the charges hereinafter provided. At the option of
the Holder thereof, if Unregistered Securities of any series,
maturity date, interest rate and original issue date are issued in
more than one authorized denomination, except as otherwise
<PAGE>
specified pursuant to Section 2.3, such Unregistered Securities may
be exchanged for Unregistered Securities of such series having
authorized denominations and an equal aggregate principal amount,
upon surrender of such Unregistered Securities to be exchanged at
the office or agency of the Issuer that shall be maintained for
such purpose in accordance with Section 3.2 or as specified
pursuant to Section 2.3, with, in the case of Unregistered
Securities that have Coupons attached, all unmatured Coupons and
all matured Coupons in default thereto appertaining, and upon
payment, if the Issuer shall so require, of the charges hereinafter
provided. Unless otherwise specified pursuant to Section 2.3,
Registered Securities of any series may not be exchanged for
Unregistered Securities of such series. Whenever any Securities
are so surrendered for exchange, the Issuer shall execute, and the
Trustee shall authenticate and deliver, the Securities which the
Holder making the exchange is entitled to receive. All Securities
and Coupons surrendered upon any exchange or transfer provided for
in this Indenture shall be promptly cancelled and destroyed
pursuant to Section 2.10.
All Registered Securities presented for registration of
transfer, exchange, redemption or payment shall (if so required by
the Issuer or the Trustee) be duly endorsed by, or be accompanied
by a written instrument or instruments of transfer in form
satisfactory to the Issuer and the Trustee duly executed by, the
Holder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in
connection with any exchange or registration of transfer of
Securities. No service charge shall be made for any such
transaction.
The Issuer shall not be required to exchange or register a
transfer of (a) any Securities of any series for a period of 15
days next preceding the first mailing of notice of redemption of
Securities of such series to be redeemed or (b) any Securities
selected, called or being called for redemption, in whole or in
part, except, in the case of any Security to be redeemed in part,
the portion thereof not so to be redeemed.
Notwithstanding any other provision of this Section 2.8,
unless and until it is exchanged in whole or in part for Securities
in definitive registered form, a Registered 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 any Registered Securities
of a series represented by one or more Registered Global Securities
notifies the Issuer that it is unwilling or unable to continue as
Depositary for such Registered Securities or if at any time the
Depositary for such Registered Securities shall no longer be
eligible under Section 2.4, the Issuer shall appoint a successor
Depositary eligible under Section 2.4 with respect to such
Registered Securities. If a successor Depositary eligible under
Section 2.4 for such Registered Securities is not appointed by the
Issuer within 90 days after the Issuer receives such notice or
becomes aware of such ineligibility, the Issuer's election pursuant
to Section 2.3 that such Registered Securities be represented by
one or more Registered Global Securities shall no longer be
effective and the Issuer will execute, and the Trustee, upon
receipt of an Officer's Certificate for the authentication and
delivery of definitive Securities of such series, will 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
Registered Global Security or Securities representing such
Registered Securities in exchange for such Registered Global
Security or Securities.
The Issuer may at any time and in its sole discretion
determine that the Registered Securities of any series issued in
the form of one or more Registered Global Securities shall no
longer be represented by a Registered Global Security or
Securities. In such event the Issuer will execute, and the
Trustee, upon receipt of an Officer's Certificate for the
authentication and delivery of definitive Securities of such
series, will 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 Registered Global Security or Securities
representing such Registered Securities, in exchange for such
Registered Global Security or Securities.
If specified by the Issuer pursuant to Section 2.3 with
respect to Securities represented by a Registered Global Security,
the Depositary for such Registered Global Security may surrender
such Registered Global Security in exchange in whole or in part for
Securities of the same series in definitive registered form on such
terms as are acceptable to the Issuer and such Depositary.
Thereupon, the Issuer shall execute, and the Trustee shall
authenticate and deliver, without service charge,
<PAGE>
(i) to the person specified by such Depositary a new
Registered 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 Registered Global Security;
and
(ii) to such Depositary a new Registered Global Security in
a denomination equal to the difference, if any, between the
principal amount of the surrendered Registered Global Security
and the aggregate principal amount of Registered Securities
authenticated and delivered pursuant to clause (i) above.
Upon the exchange of a Registered Global Security for
Securities in definitive registered form without Coupons, in
authorized denominations, such Registered Global Security shall be
cancelled by the Trustee or, upon instruction from the Trustee, an
agent of the Issuer or the Trustee. Securities in definitive
registered form without Coupons issued in exchange for a Registered
Global Security pursuant to this Section 2.8 shall be registered in
such names and in such authorized denominations as the Depositary
for such Registered Global Security, pursuant to instructions from
its direct or indirect participants or otherwise, shall instruct
the Trustee or an agent of the Issuer or the Trustee. The Trustee
or such agent shall deliver such Securities to or as directed by
the persons in whose names such Securities are so registered.
All Securities issued upon any transfer or exchange of
Securities shall be valid obligations of the Issuer, evidencing the
same debt, and entitled to the same benefits under this Indenture,
as the Securities surrendered upon such transfer or exchange.
Notwithstanding anything herein or in the terms of any
series of Securities to the contrary, none of the Issuer, the
Trustee or any agent of the Issuer or the Trustee (any of which,
other than the Issuer, may rely on an Officer's 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 Issuer (such as, for
example, the inability of the Issuer to deduct from its income, as
computed for Federal income tax purposes, the interest payable on
the Unregistered Securities) under then applicable United States
Federal income tax laws.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security or any
Coupon appertaining to any Security shall become mutilated, defaced
or be destroyed, lost or stolen and, in the absence of notice to
the Issuer or the Trustee that the Coupon or Security has been
purchased by a bona fide purchaser, the Issuer in its discretion
may execute, and upon an Issuer Order, the Trustee shall
authenticate and deliver a new Security of the same series,
maturity date, interest rate and original issue date, bearing a
number or other distinguishing symbol not contemporaneously
outstanding, in exchange and substitution for the mutilated or
defaced Security, or in lieu of and in substitution for the
Security so destroyed, lost or stolen with Coupons corresponding to
the Coupons appertaining to the Securities so mutilated, defaced,
destroyed, lost or stolen, or in exchange or substitution for the
Security to which such mutilated, defaced, destroyed, lost or
stolen Coupon appertained, with Coupons appertaining thereto
corresponding to the Coupons so mutilated, defaced, destroyed, lost
or stolen. In every case the applicant for a substitute Security
or Coupon shall furnish to the Issuer and to the Trustee and any
agent of the Issuer or the Trustee such security or indemnity as
may be required by them to indemnify and defend and to save each of
them harmless and, in every case of destruction, loss or theft,
evidence to their satisfaction of the destruction, loss or theft of
such Security or Coupon and of the ownership thereof and in the
case of mutilation or defacement shall surrender the Security and
related Coupons to the Trustee or such agent.
Upon the issuance of any substitute Security or Coupon, the
Issuer may require the payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of
the Trustee) or its agent connected therewith. In case any
Security or Coupon which has matured or is about to mature or has
been called for redemption in full shall become mutilated or
defaced or be destroyed, lost or stolen, the Issuer may instead of
issuing a substitute Security, pay or authorize the payment of the
same or the relevant Coupon (without surrender thereof except in
the case of a mutilated or defaced Security or Coupon), if the
applicant for such payment shall furnish to the Issuer and to the
Trustee and any agent of the Issuer or the Trustee such security or
indemnity as any of them may require to save each of them harmless,
and, in every case of destruction, loss or theft, the applicant
shall also furnish to the Issuer and the Trustee and any agent of
the Issuer or the Trustee evidence to their satisfaction of the
destruction, loss or theft of such Security or Coupon and of the
ownership thereof.
Every substitute Security or Coupon of any series issued
pursuant to the provisions of this Section by virtue of the fact
that any such Security or Coupon is destroyed, lost or stolen shall
<PAGE>
constitute an additional contractual obligation of the Issuer,
whether or not the destroyed, lost or stolen Security or Coupon
shall be at any time enforceable by anyone and shall be entitled to
all the benefits of (but shall be subject to all the limitations of
rights set forth in) this Indenture equally and proportionately
with any and all other Securities or Coupons of such series duly
authenticated and delivered hereunder. All Securities and Coupons
shall be held and owned upon the express condition that, to the
extent permitted by law, the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated, defaced or
destroyed, lost or stolen Securities and Coupons and shall 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 2.10 Cancellation of Securities; Destruction
Thereof. All Securities and Coupons surrendered for payment,
redemption, registration of transfer or exchange, or for credit
against any payment in respect of a sinking or analogous fund, if
surrendered to the Issuer or any agent of the Issuer or the Trustee
or any agent of the Trustee, shall be delivered to the Trustee or
its agent for cancellation or, if surrendered to the Trustee, shall
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. All cancelled Securities or Coupons held by the
Trustee or its agents shall be destroyed and certification of their
destruction delivered to the Issuer unless, by an Issuer Order, the
Issuer shall direct that cancelled Securities or Coupons be
returned to it. If the Issuer or its agent shall acquire any of
the Securities or Coupons, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such
Securities or Coupons unless and until the same are delivered to
the Trustee or its agent for cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation
of definitive Securities for any series, the Issuer may execute and
upon an Issuer Order the Trustee shall authenticate and deliver
temporary Securities for such series (printed, lithographed,
typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series
shall be issuable as Registered Securities without Coupons, or as
Unregistered Securities with or without Coupons attached thereto,
of any authorized denomination, and substantially in the form of
the definitive Securities of such series but with such omissions,
insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Issuer with the
concurrence of the Trustee as evidenced by the execution and
authentication thereof. Temporary Securities may contain such
references to any provisions of this Indenture as may be
appropriate. Every temporary Security shall be executed by the
Issuer 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 unreasonable delay the Issuer shall
execute and shall furnish definitive Securities of such series and
thereupon temporary Registered Securities of such series may be
surrendered in exchange therefor without charge at each office or
agency to be maintained by the Issuer for that purpose pursuant to
Section 3.2 and, in the case of Unregistered Securities, at an
office or agency maintained by the Issuer for such purpose as
specified pursuant to Section 2.3, and the Trustee shall
authenticate and deliver in exchange for such temporary Securities
of such series an equal aggregate principal amount of definitive
Securities of the same series having authorized denominations and,
in the case of Unregistered Securities, having attached thereto any
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, unless otherwise
established pursuant to Section 2.3. The provisions of this
Section 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 2.3 (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 located outside the United
States and the procedures pursuant to which definitive or global
Unregistered Securities of such series would be issued in exchange
for such temporary global Unregistered Securities).
SECTION 2.12 CUSIP Numbers. The Issuer in issuing the
Securities may use "CUSIP" numbers (if then generally in use), and,
if so, the Trustee shall use "CUSIP" numbers in notices of
redemption as a convenience to Holders; provided that any such
notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or
as contained in any notice of a redemption and that reliance may be
placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any
defect in or omission of such numbers.
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest. The Issuer
<PAGE>
covenants and agrees for the benefit of each series of Securities
that it will duly and punctually pay or cause to be paid the
principal of, and interest on, each of the Securities of such
series (together with any additional amounts payable pursuant to
the terms of such Securities) at the place or places, at the
respective times and in the manner provided in such Securities and
in the Coupons appertaining thereto and in this Indenture. The
interest on Securities with Coupons attached (together with any
additional amounts payable pursuant to the terms of such
Securities) shall be payable only upon presentation and surrender
of the several Coupons for such interest installments as are
evidenced thereby as they severally mature. The interest on any
temporary Unregistered Securities (together with any additional
amounts payable pursuant to the terms of such Securities) shall be
paid, as to the installments of interest evidenced by Coupons
attached thereto, if any, only upon presentation and surrender
thereof, and, as to the other installments 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 payable pursuant
to the terms of such Securities) shall be payable only to or upon
the written order of the Holders thereof and at the option of the
Issuer may be paid by mailing checks for such interest payable to
or upon the written order of such Holders at their last addresses
as they appear on the registry books of the Issuer.
SECTION 3.2 Offices for Payments, etc. The Issuer will
maintain in the Borough of Manhattan, The City of New York, an
office or agency where the Registered Securities of each series may
be presented for payment, an office or agency where the Securities
of each series may be presented for exchange as is provided in this
Indenture and, if applicable, pursuant to Section 2.8 an office or
agency where the Registered Securities of each series may be
presented for registration of transfer as in this Indenture
provided. The Issuer hereby initially appoints the office of the
agency of the Trustee, 101 Barclay Street, New York, New York, as
its office or agency for each of the foregoing purposes.
The Issuer will maintain one or more offices or agencies in
a city or cities located outside the United States (including any
city in which such an office or agency is required to be maintained
under the rules of any stock exchange on which the Securities of
such series are listed) where the Unregistered Securities, if any,
of each series 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 office or agency of the Issuer 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 unless pursuant to
applicable United States laws and regulations then in effect such
payment can be made without adverse tax consequences to the Issuer.
Notwithstanding the foregoing, payments in Dollars of Unregistered
Securities of any series and Coupons appertaining thereto which are
payable in Dollars may be made at an office or agency of the Issuer
maintained in the Borough of Manhattan, The City of New York, if
such payment in Dollars at each office or agency maintained by the
Issuer outside the United States for payment on such Unregistered
Securities is illegal or effectively precluded by exchange controls
or other similar restrictions.
The Issuer will maintain in the Borough of Manhattan, The
City of New York, an office or agency where notices and demands to
or upon the Issuer in respect of the Securities of any series, the
Coupons appertaining thereto or this Indenture may be served.
The Issuer will give to the Trustee written notice of the
location of each such office or agency and of any change of
location thereof. In case the Issuer shall fail to maintain any
office or agency required by this Section to be located in the
Borough of Manhattan, The City of New York, or shall fail to give
such notice of the location or of any change in the location of any
of the above offices or agencies, presentations and demands may be
made and notices may be served at the Corporate Trust Office of the
Trustee.
The Issuer may from time to time designate one or more
additional offices or agencies where the Securities of a series and
Coupons appertaining thereto may be presented for payment, where
the Securities of that series may be presented for exchange as
provided in this Indenture and pursuant to Section 2.8 and where
the Registered Securities of that series may be presented for
registration of transfer as in this Indenture provided, and the
Issuer may from time to time rescind any such designation, as the
Issuer may deem desirable or expedient; provided, however, that no
such designation or rescission shall in any manner relieve the
Issuer of its obligation to maintain the offices or agencies
provided for in the immediately preceding paragraphs. The Issuer
will give to the Trustee prompt written notice of any such
designation or rescission thereof.
SECTION 3.3 Appointment to Fill a Vacancy in Office of
Trustee. The Issuer, whenever necessary to avoid or fill a vacancy
in the office of Trustee, will appoint, in the manner provided in
Section 6.9, a Trustee, so that there shall at all times be a
Trustee with respect to each series of Securities hereunder.
<PAGE>
SECTION 3.4 Paying Agents. Whenever the Issuer 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, that such paying agent,
(a) will hold all sums received by it as such agent for the
payment of the principal of or interest on the Securities of such
series (whether such sums have been paid to it by the Issuer or
by any other obligor on the Securities of such series) in trust
for the benefit of the holders of the Securities of such series,
or Coupons appertaining thereto, or of the Trustee, until such
sums shall be paid to such holders or otherwise disposed of as
herein provided;
(b) will give the Trustee notice of any failure by the
Issuer (or by any other obligor on the Securities of such series)
to make any payment of the principal of or interest on the
Securities of such series when the same shall be due and payable;
and
(c) at any time during the continuance of any such failure,
upon the written request of the Trustee, it will forthwith pay to
the Trustee all sums so held in trust by such paying agent.
The Issuer will, on or prior to each due date of the
principal of or interest on the Securities of such series, deposit
with the paying agent a sum sufficient to pay such principal or
interest so becoming due, and (unless such paying agent is the
Trustee) the Issuer will promptly notify the Trustee of its action
or any failure to take such action.
If the Issuer shall act as its own paying agent with respect
to the Securities of any series, it will, on or before each due
date of the principal of or interest on the Securities of such
series, set aside, segregate and hold in trust for the benefit of
the holders of the Securities of such series or the Coupons
appertaining thereto a sum sufficient to pay such principal or
interest so becoming due. The Issuer will promptly notify the
Trustee of its action or any failure to take such action.
Anything in this Section to the contrary notwithstanding,
the Issuer 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, or by Issuer Order direct any paying agent to pay
to the Trustee all sums held in trust for any such series by the
Issuer or any paying agent hereunder, as required by this Section,
such sums to be held by the Trustee upon the trusts herein
contained.
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 10.3 and 10.4.
SECTION 3.5 Compliance Certificate. The Issuer shall
deliver to the Trustee within 120 days after the end of each fiscal
year of the Issuer an Officers' Certificate signed by the principal
executive officer, principal financial officer or principal
accounting officer of the Issuer complying with Section 11.5 and
stating, as to each signer thereof, that review of the activities
of the Issuer during such year and performance under this Indenture
has been made under his supervision and that based on such review
the Issuer is not in default in the fulfillment of any of its
obligations under this Indenture and, to the best of his knowledge,
is in compliance with all conditions and covenants under Indenture,
or specifying each such default known to him and the nature and
status thereof. Such Officers' Certificate shall also evidence
compliance by the Issuer with Sections 3.6 and 3.7.
SECTION 3.6 Maintenance of Properties. The Issuer will
cause all properties used or useful in the conduct of its business
or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all
as in the judgment of the Issuer may be necessary so that the
business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that
nothing in this Section 3.6 shall prevent the Issuer from
discontinuing the operation or maintenance of any of such
properties if such discontinuance is, in the judgment of the
Issuer, desirable in the conduct of its business or the business of
any Subsidiary and not disadvantageous in any material respect to
the Holders.
SECTION 3.7 Payment of Taxes and Other Claims. The Issuer
will pay or discharge or cause to be paid or discharged, before the
same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Issuer or any
Subsidiary or upon the income, profits or property of the Issuer or
any Subsidiary, and (2) all lawful claims for labor, materials and
supplies which, if unpaid, might by law become a lien upon the
property of the Issuer or any Subsidiary; provided, however, that
the Issuer shall not be required to pay or discharge or cause to be
<PAGE>
paid or discharged any such tax, assessment, charge or claim whose
amount, applicability or validity is being contested in good faith
by appropriate proceedings and for which appropriate provision has
been made to the extent required by generally accepted accounting
principles.
SECTION 3.8 Waiver of Certain Covenants. The Issuer may
omit in respect of the Securities, in any particular instance, to
comply with any covenant or condition set forth in Sections 3.6 and
3.7, if before or after the time for such compliance the Holders of
not less than a majority in principal amount of the Securities at
the time Outstanding shall, by an instrument or instruments in
writing executed by such Securityholders, either waive such
compliance in such instance or generally waive compliance with such
covenant or condition, but no such waiver shall extend to or affect
such covenant or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the
obligations of the Issuer in respect of any such covenant or
condition shall remain in full force and effect.
SECTION 3.9 Corporate Existence. Subject to Article Nine,
the Issuer will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence.
SECTION 3.10 Luxembourg Publications. In the event of the
publication of any notice pursuant to Section 5.11, 6.9(a), 6.10,
6.12, 8.2, 10.4, 12.2 or 12.5, the party making such publication in
the Borough of Manhattan, The City of New York and London shall
also, to the extent that notice is required to be given to Holders
of Securities of any series by applicable Luxembourg law or stock
exchange regulation, as evidenced by an Officer's Certificate
delivered to such party, make a similar publication in Luxembourg.
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Information as to
Names and Addresses of Securityholders. If and so long as the
Trustee shall not be the Security registrar for the Securities of
any series, the Issuer and any other obligor on the Securities will
furnish or cause to be furnished to the Trustee a list in such form
as the Trustee may reasonably require of the names and addresses of
the Holders of the Registered Securities of such series pursuant to
Section 312 of the Trust Indenture Act of 1939 (a) semi-annually
not more than 15 days after each record date for the payment of
interest on such Registered Securities, as hereinabove specified,
as of such record date and on dates to be determined pursuant to
Section 2.3 for non-interest bearing Registered Securities in each
year, and (b) at such other times as the Trustee may request in
writing, within 30 days after receipt by the Issuer of any such
request as of a date not more than 15 days prior to the time such
information is furnished.
SECTION 4.2 Reports by the Issuer. The Issuer covenants to
file with the Trustee, within 15 days after the Issuer is required
to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports that the Issuer
may be required to file with the Commission pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 or pursuant
to Section 314 of the Trust Indenture Act of 1939.
SECTION 4.3 Reports by the Trustee. (A) Any Trustee's
report required under Section 313(a) of the Trust Indenture Act of
1939 shall be transmitted on or before July 1 in each year
beginning July 1, 1993, as provided in Section 313(c) of the Trust
Indenture Act of 1939, so long as any Securities are Outstanding
hereunder, and shall be dated as of a date convenient to the
Trustee no more than 60 days prior thereto. The Trustee also shall
comply with the applicable provisions of Section 313(b) of the
Trust Indenture Act of 1939.
(B) A copy of each report at the time of its mailing to
Securityholders shall be filed with the Commission and each stock
exchange, if any, on which the Securities are listed.
SECTION 4.4 Communication by Holders with Other Holders.
Securityholders may communicate pursuant to Section 312(b) of the
Trust Indenture Act of 1939 with other Securityholders with respect
to their rights under this Indenture or the Securities. The
Issuer, the Trustee and anyone else shall have the protection of
Section 312(c) of the Trust Indenture Act of 1939.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration of
Maturity; Waiver of Default. "Event of Default" with respect to
Securities of any series wherever used herein, means each one of
the following events which shall have occurred and be continuing
(whatever the reason for such Event of Default and whether it shall
be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any
<PAGE>
order, rule or regulation of any administrative or governmental
body):
(a) default in the payment of any installment of interest
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 30 days; or
(b) default in the payment of all or any part of the
principal on any of the Securities of such series as and when the
same shall become due and payable either at maturity, upon any
redemption, by declaration or otherwise; or
(c) failure on the part of the Issuer duly to observe or
perform any other of the covenants or agreements on the part of
the Issuer in the Securities of such series (other than a
covenant or warranty in respect of the Securities of such series
a default in the performance or breach of which is elsewhere in
this Section specifically dealt with) or in this Indenture
contained for a period of 90 days after the date on which written
notice specifying such failure, stating that such notice is a
"Notice of Default" hereunder and demanding that the Issuer
remedy the same, shall have been given by registered or certified
mail, return receipt requested, to the Issuer by the Trustee, or
to the Issuer and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Outstanding Securities of all
series affected thereby; or
(d) a court having jurisdiction in the premises shall enter
a decree or order for relief in respect of the Issuer 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 Issuer 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 90 consecutive days; or
(e) the Issuer shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consent to the entry of an order for
relief in an involuntary case under any such law, or consent to
the appointment or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official)
of the Issuer or for any substantial part of its property, or
make any general assignment for the benefit of creditors; or
(f) any other Event of Default provided in the supplemental
indenture under which such series of Securities is issued or in
the form of Security for such series.
If an Event of Default described in clauses (a), (b), (c) or
(f) (provided the Event of Default under clause (c) or (f), as the
case may be, is with respect to less than all series of Securities
then Outstanding) occurs and is continuing, then, and in each and
every such case, except for any series of Securities the principal
of which shall have already become due and payable, either the
Trustee or the Holders of not less than 25% in aggregate principal
amount of the Securities of all such affected series then
Outstanding hereunder (treated as one class) by notice in writing
to the Issuer (and to the Trustee if given by Securityholders), may
declare the entire principal (or, if the Securities of any such
affected series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of
such series) of all Securities of all such affected series, and the
interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration, the same shall become
immediately due and payable. If an Event of Default described in
clauses (c) or (f) (with respect to all series of Securities then
Outstanding), (d) or (e) occurs and is continuing, then and in each
and every such case, unless the principal of all the Securities
shall have already become due and payable, either the Trustee or
the Holders of not less than 25% in aggregate principal amount of
all the Securities then Outstanding hereunder (treated as one
class), by notice in writing to the Issuer (and to the Trustee if
given by Securityholders), may declare the entire principal (or, if
any Securities are Original Issue Discount Securities, such portion
of the principal as may be specified in the terms thereof) of all
the Securities then Outstanding, and interest accrued thereon, if
any, to be due and payable immediately, and upon any such
declaration the same shall become immediately due and payable.
The foregoing provisions, however, are subject to the
condition that if, at any time after the principal (or, if the
Securities are Original Issue Discount Securities, such portion of
the principal as may be specified in the terms thereof) of the
Securities of any series (or of all the Securities, 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 Issuer shall
pay or shall deposit with the Trustee a sum sufficient to pay all
matured installments of interest upon all the Securities of such
series (or of all the Securities, as the case may be) and the
principal of any and all Securities of each such series (or of all
the Securities, as the case may be) which shall have become due
otherwise than by acceleration (with interest upon such principal
<PAGE>
and, to the extent that payment of such interest is enforceable
under applicable law, on overdue installments of interest, at the
same rate as the rate of interest or Yield to Maturity (in the case
of Original Issue Discount Securities) specified in the Securities
of each such series (or at the respective rates of interest or
Yields to Maturity of all the Securities, 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 and each
predecessor Trustee, their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee except
as a result of negligence or bad faith, and if any and all Events
of Default under the Indenture, other than the non-payment of the
principal of Securities which shall have become due by
acceleration, shall have been cured, waived or otherwise remedied
as provided herein -- then and in every such case the Holders of a
majority in aggregate principal amount of all the Securities of
each such series, or of all the Securities, in each case voting as
a single class, then Outstanding, by written notice to the Issuer
and to the Trustee, may waive all defaults with respect to each
such series (or with respect to all the 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.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have been
accelerated and declared due and payable pursuant to the provisions
hereof, then, from and after such declaration, unless such
declaration has been rescinded and annulled, the principal amount
of such Original Issue Discount Securities shall be deemed, for all
purposes hereunder, to be such portion of the principal thereof as
shall be due and payable as a result of such acceleration, and
payment of such portion of the principal thereof as shall be due
and payable as a result of such acceleration, together with
interest, if any, thereon and all other amounts owing thereunder,
shall constitute payment in full of such Original Issue Discount
Securities.
SECTION 5.2 Collection of Indebtedness by Trustee; Trustee
May Prove Debt. The Issuer covenants that (a) in case default
shall be made in the payment of any installment of interest on any
of the Securities of any series when such interest shall have
become due and payable, and such default shall have continued for
a period of 30 days or (b) in case default shall be made in the
payment of all or any part of the principal of any of the
Securities of any series when the same shall have become due and
payable, whether upon maturity of the Securities of such series or
upon any redemption or by declaration or otherwise -- then upon
demand of the Trustee, the Issuer will pay to the Trustee for the
benefit of the Holders of the Securities of such series the whole
amount that then shall have become due and payable on all
Securities of such series for principal or interest, as the case
may be (with interest to the date of such payment upon the overdue
principal and, to the extent that payment of such interest is
enforceable under applicable law, on overdue installments of
interest at the same rate as the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities)
specified in the Securities of such series); and in addition
thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including reasonable compensation
to the Trustee and each predecessor Trustee, their respective
agents, attorneys and counsel, and any expenses and liabilities
incurred, and all disbursements and advances made, by the Trustee
and each predecessor Trustee except as a result of its negligence
or bad faith.
Until such demand is made by the Trustee, the Issuer may pay
the principal of and interest on the Securities of any series to
the registered Holders, whether or not the Securities of such
series be overdue.
In case the Issuer 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 Issuer or other obligor upon
the Securities and collect in the manner provided by law out of the
property of the Issuer or other obligor upon the Securities,
wherever situated, the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the
Issuer or any other obligor upon the Securities under Title 11 of
the United States Code or any other applicable Federal or state
bankruptcy, insolvency or other similar law, or in case a receiver,
assignee or trustee in bankruptcy or reorganization, liquidator,
sequestrator or similar official shall have been appointed for or
taken possession of the Issuer or its property or such other
obligor, or in case of any other comparable judicial proceedings
relative to the Issuer or other obligor upon the Securities, or to
the creditors or property of the Issuer or such other obligor, the
Trustee, irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by
<PAGE>
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:
(a) to file and prove a claim or claims for the whole
amount of principal and interest (or, if the Securities of any
series are Original Issue Discount Securities, such portion of
the principal amount as may be specified in the terms of such
series) owing and unpaid in respect of the Securities of any
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
and each predecessor Trustee, and their respective agents,
attorneys and counsel, and for reimbursement of all expenses and
liabilities incurred, and all disbursements and advances made, by
the Trustee and each predecessor Trustee, except as a result of
negligence or bad faith) and of the Securityholders allowed in
any judicial proceedings relative to the Issuer or other obligor
upon the Securities, or to the creditors or property of the
Issuer or such other obligor,
(b) unless prohibited by applicable law and regulations, to
vote on behalf of the holders of the Securities of any series in
any election of a trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or insolvency
proceedings or person performing similar functions in comparable
proceedings, and
(c) to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute all
amounts received with respect to the claims of the
Securityholders and of the Trustee on their behalf; and any
trustee, receiver, liquidator, custodian or other similar
official is hereby authorized by each of the Securityholders to
make payments to the Trustee, and, in the event that the Trustee
shall consent to the making of payments directly to the
Securityholders, to pay to the Trustee such amounts as shall be
sufficient to cover reasonable compensation to the Trustee, each
predecessor Trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee and
all other amounts due the Trustee under Section 6.6 in each case
except as a result of negligence or bad faith.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or vote for or accept or adopt
on behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities of
any series or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Securityholder in
any such proceeding except, as aforesaid, to vote for the election
of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this
Indenture, or under any of the Securities of any series or Coupons
appertaining to such Securities, may be enforced by the Trustee
without the possession of any of the Securities of such series or
Coupons appertaining to such Securities or the production thereof
in any trial or other proceedings relative thereto, and any such
action or proceedings instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of
judgment, subject to the payment of the expenses, disbursements,
compensation and advances of the Trustee, each predecessor Trustee
and their respective agents and attorneys, shall be for the ratable
benefit of the Holders of the Securities or Coupons appertaining to
such Securities in respect of which such action was taken.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this
Indenture to which the Trustee shall be a party) the Trustee shall
be held to represent all the Holders of the Securities or Coupons
appertaining to such Securities in respect to which such action was
taken, and it shall not be necessary to make any Holders of such
Securities or Coupons appertaining to such Securities parties to
any such proceedings.
SECTION 5.3 Application of Proceeds. Any moneys collected
by the Trustee pursuant to this Article in respect of any series
shall be applied in the following order at the date or dates fixed
by the Trustee and, in case of the distribution of such moneys on
account of principal or interest, upon presentation of the several
Securities and Coupons appertaining to such Securities in respect
of which monies have been collected and stamping (or otherwise
noting) thereon the payment, or issuing Securities of such series
in reduced principal amounts in exchange for the presented
Securities of like series if only partially paid, or upon surrender
thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to
such series in respect of which monies have been collected,
including payment of all amounts due the Trustee and each
predecessor Trustee under Section 6.6, and all advances made, by
the Trustee and each predecessor Trustee and their respective
agents and attorneys except as a result of negligence or bad
faith;
<PAGE>
SECOND: In case the principal of the Securities of such
series in respect of which moneys have been collected shall not
have become and be then due and payable, to the payment of
interest on the Securities of such series in default in the order
of the maturity of the installments of such interest, with
interest (to the extent that such interest has been collected by
the Trustee) upon the overdue installments of interest at the
same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in such
Securities, such payments to be made ratably to the persons
entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Securities of such
series in respect of which moneys have been collected shall have
become and shall be then due and payable, to the payment of the
whole amount then owing and unpaid upon all the Securities of
such series for principal and interest, with interest upon the
overdue principal, and (to the extent that such interest has been
collected by the Trustee) upon overdue installments of interest
at the same rate as the rate of interest or Yield to Maturity (in
the case of Original Issue Discount Securities) specified in the
Securities of such series; 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 interest or Yield to Maturity, without preference
or priority of principal over interest or Yield to Maturity, or
of interest or Yield to Maturity over principal, or of any
installment of interest over any other installment of interest,
or of any Security of such series over any other Security of such
series, ratably to the aggregate of such principal and accrued
and unpaid interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the
Issuer or any other person lawfully entitled thereto.
SECTION 5.4 Suits for Enforcement. In case an Event of
Default has occurred, has not been waived and is continuing, 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 5.5 Restoration of Rights on Abandonment of
Proceedings. In case the Trustee shall have proceeded to enforce
any right under this Indenture and such proceedings shall have been
discontinued or abandoned for any reason, or shall have been
determined adversely to the Trustee, then and in every such case
the Issuer and the Trustee shall be restored respectively to their
former positions and rights hereunder, and all rights, remedies and
powers of the Issuer, the Trustee and the Securityholders shall
continue as though no such proceedings had been taken.
SECTION 5.6 Limitations on Suits 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 proceeding
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
trustee, receiver, liquidator, custodian or other similar official
or for any other remedy hereunder, unless such Holder previously
shall have given to the Trustee written notice of default and of
the continuance thereof, as hereinbefore provided, and unless also
the Holders of not less than 25% in aggregate principal amount of
the Securities of each affected series then Outstanding (treated as
a single 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
60 days after its receipt of such notice, request and offer of
indemnity shall have failed to institute any such action or
proceeding and no direction inconsistent with such written request
shall have been given to the Trustee pursuant to Section 5.9; it
being understood and intended, and being expressly covenanted by
the Holder of every Security or Coupon with every other Holder and
the Trustee, that no one or more Holders of Securities of any
series or Coupons appertaining to such Securities shall have any
right in any manner whatever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the
rights of any other such 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 of the applicable series and Coupons
appertaining to such Securities. 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.
<PAGE>
SECTION 5.7 Unconditional Right of Securityholders to
Institute Certain Suits. Notwithstanding any other provision in
this Indenture and any provision of any Security, the right of any
Holder of any Security or Coupon to receive payment of the
principal of and interest 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 impaired or affected
without the consent of such Holder.
SECTION 5.8 Powers and Remedies Cumulative; Delay or
Omission Not Waiver of Default. Except as provided in Section 5.6,
no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders of Securities or Coupons is intended to be
exclusive of any other right or remedy, and every right and remedy
shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion
or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of
Securities or Coupons to exercise any right or power accruing upon
any Event of Default occurring and continuing as aforesaid shall
impair any such right or power or shall be construed to be a waiver
of any such Event of Default or an acquiescence therein; and,
subject to Section 5.6, every right, power and remedy given by this
Indenture 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.
SECTION 5.9 Control by Holders of Securities. The Holders
of a majority in aggregate principal amount of the Securities of
each series affected (with all such series voting as a single
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 with respect to the Securities of such
series by this Indenture; provided that such direction shall not be
otherwise than in accordance with law and the provisions of this
Indenture and, provided, further, that (subject to the provisions
of Section 6.1) the Trustee shall have the right to decline to
follow any such direction if the Trustee, being advised by counsel,
shall determine that the action or proceeding so directed may not
lawfully be taken or if the Trustee in good faith by its board of
directors, the executive committee, or a trust committee of
directors or a Responsible Officer of the Trustee shall determine
that the action or proceedings so directed would expose the Trustee
to personal liability or if the Trustee in good faith shall so
determine that the actions or forebearances specified in or
pursuant to such direction would be unduly prejudicial to the
interests of Holders of the Securities of all series so affected
not joining in the giving of said direction, it being understood
that (subject to Section 6.1) the Trustee shall have no duty to
ascertain whether or not such actions or forebearances are unduly
prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the
Trustee in its discretion to take any action deemed proper by the
Trustee and which is not inconsistent with such direction or
directions by Securityholders.
SECTION 5.10 Waiver of Past Defaults. Prior to the
acceleration of the maturity of any Securities as provided in
Section 5.1, the Holders of a majority in aggregate principal
amount of the Securities of all series at the time Outstanding with
respect to which an Event of Default shall have occurred and be
continuing (voting as a single class) may on behalf of the Holders
of all such Securities waive any past default or Event of Default
described in Section 5.1 and its consequences, except a default in
respect of a covenant or provision hereof which cannot be modified
or amended without the consent of the Holder of each Security
affected. In the case of any such waiver, the Issuer, the Trustee
and the Holders of all such Securities shall be restored to their
former positions and rights hereunder, respectively; but no such
waiver shall extend to any subsequent or other default or Event of
Default or impair any right consequent thereon.
Upon any such waiver, such default shall cease to exist and
be deemed to have been cured and not to have occurred, and any
Event of Default arising therefrom shall be deemed to have been
cured, and not to have occurred for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent
thereon.
SECTION 5.11 Trustee to Give Notice of Default, but May
Withhold in Certain Circumstances. If a default with respect to
the Securities of any series occurs and is continuing and if such
default is known to the Trustee, the Trustee shall, within ninety
(90) days after such knowledge, give notice of such default with
respect to that series (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
<PAGE>
Manhattan, The City of New York and at least once in an Authorized
Newspaper in London (and, if required by Section 3.10, at least
once in an Authorized Newspaper in Luxembourg) and (ii) to all
Holders of Registered Securities of such series in the manner and
to the extent provided in Section 11.4, unless in each case such
defaults shall have been cured before the mailing or publication of
such notice (the term "defaults" for the purpose of this Section
being hereby defined to mean any event or condition which is, or
with notice or lapse of time or both would become, an Event of
Default); provided that, except in the case of default in the
payment of the principal of or interest on any of the Securities of
such series, or in the payment of any sinking fund installment on
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 trustees and/or
Responsible Officers of the Trustee in good faith determines that
the withholding of such notice is in the interests of the
Securityholders of such series.
SECTION 5.12 Right of Court to Require Filing of
Undertaking to Pay Costs. The parties to this Indenture agree, and
each Holder of any Security or Coupon by his acceptance thereof
shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or
remedy under this Indenture or in any suit against the Trustee for
any action taken, suffered 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 or group of Securityholders of any series holding in
the aggregate more than 10% in aggregate principal amount of the
Securities of such series, or, in the case of any suit relating to
or arising under clause (c) or (f) of Section 5.1 (if the suit
relates to Securities of more than one but less than all series),
10% in aggregate principal amount of Securities then Outstanding
and affected thereby, or in the case of any suit relating to or
arising under clause (c) or (f) (if the suit under clause (c) or
(f) relates to all the Securities then Outstanding), (d) or (e) of
Section 5.1, 10% in aggregate principal amount of all Securities
then Outstanding, or to any suit instituted by any Securityholder
for the enforcement of the payment of the principal of or interest
on any Security on or after the due date expressed in such Security
or any date fixed for redemption.
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee;
During Default; Prior to Default. The Trustee, prior to the
occurrence of an Event of Default with respect to the Securities of
a particular series and after the curing or waiving of all Events
of Default which may have occurred with respect to such series,
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 the Securities of a series has occurred
(which has not been cured or waived) the Trustee shall exercise
with respect to such series of Securities 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 wilful misconduct, except that
(a) prior to the occurrence of an Event of Default with
respect to the Securities of any series and after the curing or
waiving of all such Events of Default with respect to such series
which may have occurred:
(i) the duties and obligations of the Trustee with
respect to the Securities of any 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
(ii) 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 statements, certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but
in the case of any such statements, certificates or opinions which
by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements
of this Indenture;
(b) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or
<PAGE>
Responsible Officers of the Trustee, 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 pursuant to Section
5.9 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.
None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers, if there
shall be reasonable ground for believing that the repayment of such
funds or adequate indemnity against such liability is not
reasonably assured to it.
The provisions of this Section 6.1 are in furtherance of and
subject to Section 315 of the Trust Indenture Act of 1939.
SECTION 6.2 Certain Rights of the Trustee. In furtherance
of and subject to the Trust Indenture Act of 1939, and subject to
Section 6.1:
(a) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, Officer's
Certificate or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, bond,
debenture, note, coupon, security 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 Issuer
mentioned herein shall be sufficiently evidenced by an Officer's
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board of
Directors may be evidenced to the Trustee by a copy thereof
certified by the secretary or an assistant secretary of the
Issuer;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel and any written
advice or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted to be taken by it hereunder in good faith and
in reliance thereon in accordance with such advice or Opinion of
Counsel;
(e) the Trustee shall be under no obligation to exercise
any of the trusts 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;
(f) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized
or within the discretion, rights or powers conferred upon it by
this Indenture;
(g) prior to the occurrence of an Event of Default
hereunder and after the curing or waiving of all Events of
Default, the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, approval, appraisal, bond, debenture, note, coupon,
security or other paper or document unless requested in writing
so to do by the Holders of not less than a majority in aggregate
principal amount of the Securities of all series affected then
Outstanding; provided that, if the payment within a reasonable
time to the Trustee of the costs, expenses, or liabilities likely
to be incurred by it in the making of such investigation is, in
the opinion of the Trustee, not reasonably assured to the Trustee
by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such
expenses or liabilities as a condition to proceeding; the
reasonable expenses of every such investigation shall be paid by
the Issuer or, if paid by the Trustee or any predecessor Trustee,
shall be repaid by the Issuer upon demand; and
(h) 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 not regularly in its employ and
the Trustee shall not be responsible for any misconduct or
negligence on the part of any such agent or attorney appointed
with due care by it hereunder.
<PAGE>
SECTION 6.3 Trustee Not Responsible for Recitals,
Disposition of Securities or Application of Proceeds Thereof. The
recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the
statements of the Issuer, and the Trustee assumes no responsibility
for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture
or of the Securities or Coupons. The Trustee shall not be
accountable for the use or application by the Issuer of any of the
Securities or of the proceeds thereof.
SECTION 6.4 Trustee and Agents May Hold Securities or
Coupons; Collections, etc. The Trustee or any agent of the Issuer
or 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 the Trustee or such agent and may
otherwise deal with the Issuer and receive, collect, hold and
retain collections from the Issuer with the same rights it would
have if it were not the Trustee or such agent.
SECTION 6.5 Moneys Held by Trustee. Subject to the
provisions of Section 10.4 hereof, all moneys received by the
Trustee shall, until used or applied as herein provided, be held in
trust for the purposes for which they were received, but need not
be segregated from other funds except to the extent required by
mandatory provisions of law. Neither the Trustee nor any agent of
the Issuer or the Trustee shall be under any liability for interest
on any moneys received by it hereunder.
SECTION 6.6 Compensation and Indemnification of Trustee
and Its Prior Claim. The Issuer covenants and agrees to pay to the
Trustee from time to time, and the Trustee shall be entitled to,
reasonable compensation as shall be agreed to in writing between
the Issuer and the Trustee (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an
express trust) and the Issuer covenants and agrees to pay or
reimburse the Trustee and each predecessor Trustee upon its request
for all reasonable expenses, disbursements and advances incurred or
made by or on behalf of it in accordance with any of the provisions
of this Indenture (including the reasonable compensation and the
expenses and disbursements of its counsel and of all agents and
other persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad
faith. The Issuer also covenants to indemnify the Trustee and each
predecessor Trustee for, and to hold it harmless against, any and
all loss, liability or expense incurred without negligence or bad
faith on its part, arising out of or in connection with the
acceptance or administration of this Indenture or the trusts
hereunder and its duties hereunder, including the costs and
expenses of defending itself against or investigating any claim or
liability in connection with the exercise or performance of any of
its powers or duties hereunder. The obligations of the Issuer
under this Section to compensate and indemnify the Trustee and each
predecessor Trustee and to pay or reimburse the Trustee and each
predecessor Trustee for expenses, disbursements and advances shall
constitute additional Indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture. Such additional
Indebtedness shall be a senior claim 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 payment of principal or interest
on particular Securities or Coupons, and the Securities are hereby
subordinated to such senior claim and the Trustee shall have a lien
therefor prior to the Securities on all such property and funds.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.1(d) or
Section 5.1(e), the expenses (including the reasonable charges and
expenses of its counsel) and the compensation for the services are
intended to constitute expenses of administration under any
applicable Federal or state bankruptcy, insolvency or other similar
law.
SECTION 6.7 Right of Trustee to Rely on Officer's
Certificate, etc. Subject to Sections 6.1 and 6.2, whenever in the
administration of the trusts of this Indenture the Trustee shall
deem it necessary or desirable that a matter be proved or
established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence
or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officer's 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.
SECTION 6.8 Persons Eligible for Appointment as Trustee.
The Trustee for each series of Securities hereunder shall at all
times be a corporation organized and doing business under the laws
of the United States of America or of any State or the District of
Columbia having a combined capital and surplus of at least
$100,000,000, and which is authorized under such laws to exercise
corporate trust powers and is subject to supervision or examination
by Federal, State or District of Columbia authority. If such
corporation publishes reports of condition at least annually,
<PAGE>
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 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 6.9.
The provisions of this Section 6.8 are in furtherance of and
subject to Section 310(a) of the Trust Indenture Act of 1939.
SECTION 6.9 Resignation and Removal; Appointment of
Successor Trustee. (a) The Trustee, or any trustee or trustees
hereafter appointed, may at any time resign with respect to one or
more or all series of Securities by giving written notice of
resignation to the Issuer 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 the Borough of Manhattan, The City of
New York, and at least once in an Authorized Newspaper in London
(and, if required by Section 3.10, at least once in an Authorized
Newspaper in Luxembourg), and (ii) 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 registry books. Upon receiving such notice of
resignation, the Issuer shall promptly appoint a successor trustee
or trustees with respect to the applicable series by written
instrument in duplicate, executed by authority of the Board of
Directors, one copy of which instrument shall be delivered to the
resigning Trustee and one copy to the successor trustee or
trustees. If no successor trustee shall have been so appointed
with respect to any series and have accepted appointment within 30
days after the mailing of such notice of resignation, 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 5.12, 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:
(i) the Trustee shall fail to comply with the
provisions of Section 310(b) of the Trust Indenture Act of 1939
with respect to any series of Securities after written request
therefor by the Issuer 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
(ii) the Trustee shall cease to be eligible in
accordance with the provisions of Section 6.8 and Section 310(a) of
the Trust Indenture Act of 1939 and shall fail to resign after
written request therefor by the Issuer or by any Securityholder; or
(iii) 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 or liquidator 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 Issuer may remove the Trustee with
respect to the applicable series of Securities and appoint a
successor trustee for such series by written instrument, in
duplicate, executed by order of the Board of Directors of the
Issuer, 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 315(e) of the Trust Indenture
Act of 1939, any Securityholder who has been a bona fide Holder of
a Security of Securities of such series for at least six months may
on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the 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 each series at the time outstanding may at any
time remove the Trustee with respect to the Securities of such
series and appoint a successor trustee with respect to the
Securities of such series by delivering to the Trustee so removed,
to the successor trustee so appointed and to the Issuer the
evidence provided for in Section 7.1 of the action in that regard
taken by the Securityholders.
(d) Any resignation or removal of the Trustee with respect
to any series and any appointment of a successor trustee with
respect to such series pursuant to any of the provisions of this
Section 6.9 shall become effective upon acceptance of appointment
by the successor trustee as provided in Section 6.10.
<PAGE>
SECTION 6.10 Acceptance of Appointment by Successor
Trustee. Any successor trustee appointed as provided in Section
6.9 shall execute and deliver to the Issuer and to its predecessor
trustee an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of the predecessor trustee
with 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 rights, powers, duties and
obligations with respect to such series of its predecessor
hereunder, with like effect as if originally named as trustee for
such series hereunder; but, nevertheless, on the written request of
the Issuer or of the successor trustee, upon payment of its charges
then unpaid, the trustee ceasing to act shall, subject to Section
10.4, duly assign, transfer and deliver to the successor trustee
all moneys at the time held by it hereunder and shall execute and
deliver an instrument transferring to such successor trustee all
such rights, powers, duties and obligations. Upon request of any
such successor trustee, the Issuer shall execute any and all
instruments in writing for more fully and certainly vesting in and
confirming to such successor trustee all such rights and powers.
Any trustee ceasing to act shall, nevertheless, retain a prior
claim and 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 6.6.
If a successor trustee is appointed with respect to the
Securities of one or more (but not all) series, the Issuer, 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 under separate indentures.
No successor trustee with respect to any series of
Securities shall accept appointment as provided in this Section
6.10 unless at the time of such acceptance such successor trustee
shall be qualified under Section 310(b) of the Trust Indenture Act
of 1939 and eligible under the provisions of Section 6.8.
Upon acceptance of appointment by any successor trustee as
provided in this Section 6.10, the Issuer shall give notice thereof
(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 3.10, at least
once in an Authorized Newspaper in Luxembourg), and (b) 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 registry books. If the acceptance of
appointment is substantially contemporaneous with the resignation,
then the notice called for by the preceding sentence may be
combined with the notice called for by Section 6.9. If the Issuer
fails to give such notice within ten days after acceptance of
appointment by the successor trustee, the successor trustee shall
cause such notice to be given at the expense of the Issuer.
SECTION 6.11 Merger, Conversion, Consolidation or
Succession to Business of Trustee. 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 that such corporation shall be qualified under Section
310(b) of the Trust Indenture Act of 1939 and eligible under the
provisions of Section 6.8, 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.
In case at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture any of the
Securities of any series shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor Trustee and
deliver such Securities so authenticated; and, in case at that time
any of the Securities of any series shall not have been
authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in
the name of the successor Trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the
Securities of such series or in this Indenture provided that the
certificate of the Trustee shall have; provided that the right to
adopt the certificate of authentication of any predecessor Trustee
or to authenticate Securities of any series in the name of any
predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
<PAGE>
SECTION 6.12 Appointment of Authenticating Agent. As long
as any Securities of a series remain Outstanding, the Trustee may,
by an instrument in writing, appoint with the approval of the
Issuer an authenticating agent (the "Authenticating Agent") which
shall be authorized to act on behalf of the Trustee to authenticate
Securities, including Securities issued upon exchange, registration
of transfer, partial redemption or pursuant to Section 2.9.
Securities of each such series authenticated by such Authenticating
Agent shall be entitled to the benefits of this Indenture and shall
be valid and obligatory for all purposes as if authenticated by the
Trustee. Whenever reference is made in this Indenture to the
authentication and delivery of Securities of any series by the
Trustee or to the Trustee's certificate of authentication, such
reference shall be deemed to include authentication and delivery on
behalf of the Trustee by an Authenticating Agent for such series
and a certificate of authentication executed on behalf of the
Trustee by such Authenticating Agent. Such Authenticating Agent
shall at all times be a corporation organized and doing business
under the laws of the United States of America or of any State,
authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $5,000,000
(determined as provided in Section 6.8 with respect to the Trustee)
and subject to supervision or examination by Federal or State
authority.
Any corporation into which any Authenticating Agent may be
merged or converted, or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation
to which any Authenticating Agent shall be a party, or any
corporation succeeding to the corporate agency business of any
Authenticating Agent, shall continue to be the Authenticating Agent
with respect to all series of Securities for which it served as
Authenticating Agent without the execution or filing of any paper
or any further act on the part of the Trustee or such
Authenticating Agent. Any Authenticating Agent may at any time,
and if it shall cease to be eligible shall, resign by giving
written notice of resignation to the Trustee and to the Issuer.
Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent shall
cease to be eligible in accordance with the provisions of this
Section 6.12 with respect to one or more series of Securities, the
Trustee may, with the approval of the Issuer, appoint a successor
Authenticating Agent and the Issuer shall provide notice of such
appointment to all Holders of Securities of such series in the
manner and to the extent provided in Section 11.4. Any successor
Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all rights, powers, duties and
responsibilities of its predecessor hereunder, with like effect as
if originally named as Authenticating Agent. The Issuer agrees to
pay to the Authenticating Agent for such series from time to time
reasonable compensation. The Authenticating Agent for the
Securities of any series shall have no responsibility or liability
for any action taken by it as such at the direction of the Trustee.
Sections 6.2, 6.3, 6.4, 6.6 and 7.3 shall be applicable
to any Authenticating Agent.
SECTION 6.13 Preferential Collection of Claims Against
Issuer. The Trustee is subject to Section 311(a) of the Trust
Indenture Act of 1939, excluding any creditor relationship listed
in Section 311(b) of the Trust Indenture Act of 1939. A Trustee
who has resigned or been removed is subject to Section 311(a) of
the Trust Indenture Act of 1939 to the extent indicated.
SECTION 6.14 Appointment of Co-Trustees. It is the purpose
of this Indenture that there shall be no violation of any law of
any jurisdiction (including, without limitation, the laws of the
State of New York) denying or restricting the right of banks or
trust companies to transact business as trustees in that
jurisdiction. It is recognized that, (a) if there is litigation
under this Indenture or other instruments or documents relating to
the Securities, and in particular, in the case of enforcement
hereof or thereof upon a default or an Event of Default, or (b) if
the Trustee should deem that, by reason of any present or future
law of any jurisdiction, it may not (i) exercise any of the powers,
rights or remedies granted herein to the Trustee, (ii) hold title
to the properties, in trust, as granted herein, or (iii) take any
action which may be desirable or necessary in connection therewith,
it may be necessary that the Trustee appoint an individual or
additional institution as a co-Trustee.
In the event that the Trustee appoint an individual or
additional institution as a co-Trustee, each and every trust,
property, remedy, power, right, duty, obligation, discretion,
privilege, claim, demand, cause of action, immunity, estate, title,
interest and lien expressed or intended by this Indenture to be
exercised by, vested in or conveyed to the Trustee shall be
exercisable by, vest in and be conveyed to that co-Trustee, but
only to the extent necessary for it to be so vested and conveyed
and to enable that co-Trustee to exercise it. Every covenant,
agreement and obligation necessary to the exercise thereof by that
co-Trustee shall run to and be enforceable by it.
Should any instrument or document in writing from the Issuer
<PAGE>
reasonably be required by the co-Trustee so appointed by the
Trustee for vesting and conveying more fully and certainly in and
to that co-Trustee those trusts, properties, remedies, powers,
rights, duties, obligations, discretion, privileges, claims,
demands, causes of action, immunities, estates, titles, interest
and liens, that instrument or document shall be executed,
acknowledged and delivered, but not prepared, by the Issuer. In
case any co-Trustee or successor to it shall die, become incapable
of action, resign or be removed, all of the trusts, properties,
remedies, powers, rights, duties, obligations, discretion,
privileges, claims, demands, causes of action, immunities, estates,
titles, interest and liens of the co-Trustee shall be exercised by,
vest in and be conveyed to the Trustee, to the extent permitted by
law, until the appointment of a successor to the co-Trustee.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders.
Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or
taken by a specified percentage in principal amount of the
Securityholders of any or all series may be embodied in and
evidenced by one or more instruments of substantially similar tenor
signed by such specified percentage of Securityholders in person or
by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee. Proof of
execution of any instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Indenture and
(subject to Sections 6.1 and 6.2) conclusive in favor of the
Trustee and the Issuer, if made in the manner provided in this
Article.
SECTION 7.2 Proof of Execution of Instruments and of
Holding of Securities. Subject to Sections 6.1 and 6.2, the
execution of any instrument by a Securityholder or his agent or
proxy may be proved in the following manner:
(a) The fact and date of the execution by any Holder 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 an Unregistered
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 Unregistered Securities of one
or more series specified therein. The holding by the person
named in any such certificate of any Unregistered 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 certificate shall be produced by some other
person, or (3) the Security of such series specified in such
certificate shall have ceased to be Outstanding. Subject to
Sections 6.1 and 6.2, 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 reasonable 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.
The Issuer may set a record date for purposes of determining
the identity of Holders of Registered Securities of any series
entitled to vote or consent to any action referred to in Section
7.1, which record date may be set at any time or from time to time
by notice to the Trustee, for any date or dates (in the case of any
adjournment or reconsideration) not more than 60 days nor less than
five days prior to the proposed date of such vote or consent, and
thereafter, notwithstanding any other provisions hereof, with
respect to Registered Securities of any series, only Holders of
Registered Securities of such series of record on such record date
<PAGE>
shall be entitled to so vote or give such consent or revoke such
vote or consent.
SECTION 7.3 Holders to Be Treated as Owners. The Issuer,
the Trustee and any agent of the Issuer or the Trustee may deem and
treat the person in whose name any Security shall be registered
upon the Security register for such series as the absolute owner of
such Security (whether or not such Security shall be overdue and
notwithstanding any notation of ownership or other writing thereon)
for the purpose of receiving payment of or on account of the
principal of and, subject to the provisions of this Indenture,
interest on such Security and for all other purposes; and neither
the Issuer nor the Trustee nor any agent of the Issuer or the
Trustee shall be affected by any notice to the contrary. The
Issuer, the Trustee and any agent of the Issuer or the Trustee 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 Issuer,
the Trustee, nor any agent of the Issuer or the Trustee shall be
affected by any notice to the contrary. All such payments so made
to any such person, or upon his order, shall be valid, and, to the
extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable upon any such
Unregistered Security or Coupon.
SECTION 7.4 Securities Owned by Issuer Deemed Not
Outstanding. In determining whether the Holders of the requisite
aggregate principal amount of Outstanding Securities of any or all
series have concurred in any direction, consent or waiver under
this Indenture, Securities which are owned by the Issuer or any
other obligor on the Securities with respect to which such
determination is being made or by any person directly or indirectly
controlling or controlled by or under direct or indirect common
control with the Issuer or any other obligor on the Securities with
respect to which such determination is being made 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 so disregarded. Securities so owned
which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Issuer or any other
obligor upon the Securities or any person directly or indirectly
controlling or controlled by or under direct or indirect common
control with the Issuer or any other obligor on the Securities. In
case of a dispute as to such right, the advice of counsel shall be
full protection in respect of any decision made by the Trustee in
accordance with such advice. Upon request of the Trustee, the
Issuer shall furnish to the Trustee promptly an Officer's
Certificate listing and identifying all Securities, if any, known
by the Issuer to be owned or held by or for the account of any of
the above-described persons; and, subject to Sections 6.l and 6.2,
the Trustee shall be entitled to accept such Officer's Certificate
as conclusive evidence of the facts therein set forth and of the
fact that all Securities not listed therein are Outstanding for the
purpose of any such determination.
SECTION 7.5 Right of Revocation of Action Taken. At any
time prior to (but not after) the evidencing to the Trustee, as
provided in Section 7.1, of the taking of any action by the Holders
of the percentage in aggregate principal amount of the Securities
of any or all series, as the case may be, specified in this
Indenture in connection with such action, any Holder of a Security
the serial number of which is shown by the evidence to be included
among the serial numbers of the Securities the Holders of which
have consented to such action may, by filing written notice at the
Corporate Trust Office and upon proof of holding as provided in
this Article, 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
Securities issued in exchange or substitution therefor or on
registration of transfer thereof, irrespective of whether or not
any notation in regard thereto is made upon any such Security. Any
action taken by the Holders of the percentage in aggregate
principal amount of the Securities of any or all series, as the
case may be, specified in this Indenture in connection with such
action shall be conclusively binding upon the Issuer, the Trustee
and the Holders of all the Securities affected by such action.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of
Securityholders. The Issuer, when authorized by a resolution of
its Board of Directors (which resolution may provide general terms
or parameters for such action and may provide that the specific
terms of such action may be determined in accordance with or
pursuant to an Issuer Order), and the Trustee may from time to time
and at any time enter into an indenture or indentures supplemental
hereto for one or more of the following purposes:
<PAGE>
(a) to convey, transfer, assign, mortgage or pledge to the
Trustee as security for the Securities of one or more series any
property or assets;
(b) to evidence the succession of another corporation to
the Issuer, or successive successions, and the assumption by the
successor corporation of the covenants, agreements and
obligations of the Issuer pursuant to Article Nine;
(c) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions as the Issuer
and the Trustee shall consider to be for the protection of the
Holders of Securities or Coupons and to make the occurrence, or
the occurrence and continuance, of a default in any such
additional covenants, restrictions, conditions or provisions an
Event of Default permitting the enforcement of all or any of the
several remedies provided in this Indenture as herein set forth;
provided that in respect of any such additional covenant,
restriction, condition or provision such supplemental indenture
may provide for a particular period of grace after default (which
period may be shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate enforcement upon
such an Event of Default or may limit the remedies available to
the Trustee upon such an Event of Default or may limit the right
of the Holders of a majority in aggregate principal amount of the
Securities of such series to waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which
may be defective or inconsistent with any other provision
contained herein or in any supplemental indenture, or to make any
other provisions as the Issuer may deem necessary or desirable,
provided that no such provisions shall adversely affect the
interests of the Holders of the Securities or Coupons;
(e) to establish the forms or terms of Securities of any
series or of the Coupons appertaining to such Securities as
permitted by Sections 2.1 and 2.3; and
(f) to evidence and provide for the acceptance of
appointment hereunder by a successor trustee with respect to the
Securities of one or more series and to add to or change any of
the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by
more than one trustee, pursuant to the requirements of Section
6.10.
The Trustee is hereby authorized to join with the Issuer in
the execution of any such supplemental indenture, to make any
further appropriate agreements and stipulations which may be
therein contained and to accept the conveyance, transfer,
assignment, mortgage or pledge of any property thereunder, but the
Trustee shall not be obligated to enter into any such supplemental
indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of
this Section may be executed without the consent of the Holders of
any of the Securities at the time outstanding, notwithstanding any
of the provisions of Section 8.2.
SECTION 8.2 Supplemental Indentures With Consent of
Securityholders. With the consent (evidenced as provided in
Article Seven) of the Holders of not less than a majority in
aggregate principal amount of the Securities at the time
Outstanding of all series affected by such supplemental indenture
(voting as one class), the Issuer, when authorized by a resolution
of its Board of Directors (which resolution may provide general
terms or parameters for such action and may provide that the
specific terms of such action may be determined in accordance with
or pursuant to an Issuer Order), and the Trustee may, from time to
time and at any time, enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of modifying in any
manner the rights of the Holders of the Securities of each such
series or of the Coupons appertaining to such Securities; provided
that no such supplemental indenture shall (a) extend the final
maturity of any security, or reduce the principal amount thereof,
or reduce the rate or extend the time of payment of interest
thereon, or reduce any amount payable on redemption thereof, or
make the principal thereof (including any amount in respect of
original issue discount), or interest thereon payable in any coin
or currency other than that provided in the Securities and Coupons
or in accordance with the terms thereof, or reduce the amount of
the principal of an Original Issue Discount Security that would be
due and payable upon an acceleration of the maturity thereof
pursuant to Section 5.1 or the amount thereof provable in
bankruptcy pursuant to Section 5.2, or alter the provisions of
Section 11.11 or 11.12 or impair or affect the right of any
Securityholder to institute suit for the payment thereof or, if the
Securities provide therefor, any right of repayment at the option
of the Securityholder, in each case without the consent of the
Holder of each Security so affected, or (b) reduce the aforesaid
percentage in principal amount of Securities of any series, the
<PAGE>
consent of the Holders of which is required for any such
supplemental indenture, without the consent of the Holders of each
Security so affected, or (c) modify any of the provisions of
Article Thirteen of the Indenture in a manner adverse to the
Holders without the consent of the Holder of each Security affected
thereby or in any manner that adversely affects the rights of any
holder of Senior Indebtedness, or (d) modify any of the provisions
of this Section, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Security affected thereby.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly
been included solely for the benefit of one or more particular
series of Securities, or which modifies the rights of Holders of
Securities of such series, or of Coupons appertaining to such
Securities, with respect to such covenant or provision, shall be
deemed not to affect the rights under this Indenture of the Holders
of Securities of any other series or of the Coupons appertaining to
such Securities.
Upon the request of the Issuer, accompanied by a copy of a
Board Resolution (which resolution may provide general terms or
parameters for such action and may provide that the specific terms
of such action may be determined in accordance with or pursuant to
an Issuer Order) authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of the
consent of the Holders of the Securities as aforesaid and other
documents, if any, required by Section 7.1, the Trustee shall join
with the Issuer 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.
Promptly after the execution by the Issuer and the Trustee
of any supplemental indenture pursuant to the provisions of this
Section, the Trustee shall give notice thereof (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, and (ii) 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 3.10, 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 Issuer to give such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any
such supplemental indenture.
SECTION 8.3 Effect of Supplemental Indenture. Upon the
execution of any supplemental indenture pursuant to the provisions
hereof, 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 Issuer and the Holders of
Securities of each series affected thereby shall thereafter be
determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms
and conditions of any such supplemental indenture shall be and be
deemed to be part of the terms and conditions of this Indenture for
any and all purposes.
SECTION 8.4 Documents to Be Given to Trustee. The Trustee,
subject to the provisions of Sections 6.1 and 6.2, may receive an
Officer's Certificate and an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant to this
Article Eight complies with the applicable provisions of this
Indenture.
SECTION 8.5 Notation on Securities in Respect of
Supplemental Indentures. Securities of any series authenticated
and delivered after the execution of any supplemental indenture
pursuant to the provisions of this Article may bear a notation in
form approved by the Trustee for such series as to any matter
provided for by such supplemental indenture or as to any action
taken by Securityholders. If the Issuer or the Trustee shall so
determine, new Securities of any series so modified as to conform,
in the opinion of the Trustee and the Board of Directors, to any
modification of this Indenture contained in any such supplemental
indenture may be prepared by the Issuer, authenticated by the
Trustee and delivered in exchange for the Securities of such series
then Outstanding.
SECTION 8.6 Compliance with Trust Indenture Act. Every
amendment to this Indenture or the Securities shall be set forth in
a supplemental indenture that complies with the Trust Indenture Act
<PAGE>
of 1939 as then in effect.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 When Issuer May Merge, etc. (A) The Issuer
shall not consolidate with, or merge into, or transfer or lease all
or substantially all of its assets to, any person unless:
(a) the person is a corporation organized and existing
under the laws of the United States of America, any state
thereof or the District of Columbia;
(b) the person, if a transferee or lessee, assumes by
supplemental indenture all the obligations of the Issuer
under the Securities and this Indenture;
(c) immediately after the transaction, no Event of
Default exists and no circumstance exists which, after
notice or lapse of time or both, would become an Event of
Default; and
(d) the Issuer has delivered to the Trustee an Opinion
of Counsel stating that such consolidation, merger, transfer
or lease complies with this Article.
(B) The surviving, transferee or lessee corporation shall
be the successor Issuer, but the predecessor Issuer in the case of
a transfer or lease shall not be released from the obligation to
pay the principal of and interest on the Securities.
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture. (A)
If at any time (a) the Issuer shall have paid or caused to be paid
the principal of and interest on all the Securities of any series
Outstanding hereunder and all unmatured Coupons appertaining
thereto (other than Securities of such series and Coupons
appertaining thereto which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 2.9) as and
when the same shall have become due and payable, or (b) the Issuer
shall have delivered to the Trustee for cancellation all Securities
of any series theretofore authenticated and all unmatured Coupons
appertaining thereto (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 2.9) or (c) in the case of any series of Securities where
the exact amount (including the currency of payment) of principal
of and interest due on which can be determined at the time of
making the deposit referred to in clause (ii) below, (i) all the
Securities of such series and all unmatured Coupons appertaining
thereto 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 (ii) the Issuer shall have
irrevocably deposited or caused to be deposited with the Trustee as
trust funds the entire amount in cash (other than moneys repaid by
the Trustee or any paying agent to the Issuer in accordance with
Section 10.4) or, in the case of any series of Securities the
payments on which may only be made in Dollars, direct obligations
of the United States of America, backed by its full faith and
credit ("U.S. Government Obligations"), maturing as to principal
and interest at such times and in such amounts as will insure the
availability of cash, or a combination thereof, sufficient in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered
to the Trustee, to pay (A) the principal and interest on all
Securities of such series and Coupons appertaining thereto on each
date that such principal or interest is due and payable and (B) any
mandatory sinking fund payments on the dates on which such payments
are due and payable in accordance with the terms of the Indenture
and the Securities of such series; and if, in any such case, the
Issuer shall also pay or cause to be paid all other sums payable
hereunder by the Issuer, then this Indenture shall cease to be of
further effect with respect to the Securities of such series
(except as to (i) rights of registration of transfer and exchange
of Securities of such series and of Coupons appertaining thereto
and the Issuer's right of optional redemption, if any, (ii)
substitution of mutilated, defaced, destroyed, lost or stolen
Securities or Coupons, (iii) rights of holders of Securities and
Coupons appertaining thereto to receive payments of principal
thereof and interest thereon, upon the original stated due dates
therefor (but not upon acceleration), and remaining rights of the
Holders to receive mandatory sinking fund payments, if any, (iv)
the rights, obligations, duties and immunities of the Trustee
hereunder, (v) the rights of the Holders of Securities of such
series and Coupons appertaining thereto as beneficiaries hereof
with respect to the property so deposited with the Trustee payable
to all or any of them, and (vi) the obligations of the Issuer under
Section 3.2) and the Trustee, on demand of the Issuer accompanied
by an Officer's Certificate and an Opinion of Counsel which comply
<PAGE>
with Section 11.5 and at the cost and expense of the Issuer, shall
execute proper instruments acknowledging such satisfaction of and
discharging this Indenture with respect to the Securities of such
series; provided that the rights of Holders of the Securities and
Coupons to receive amounts in respect of principal of and interest
on the Securities and Coupons held by them shall not be delayed
longer than required by then-applicable mandatory rules or policies
of any securities exchange upon which the Securities are listed.
The Issuer agrees to reimburse the Trustee for any costs or
expenses thereafter reasonably and properly incurred and to
compensate the Trustee for any services thereafter reasonably and
properly rendered by the Trustee in connection with this Indenture
or the Securities of such series. Notwithstanding the satisfaction
and discharge of this Indenture, the obligations of the Issuer to
the Trustee under Section 6.6 and the obligations of the Trustee
under this Section 10.1 shall survive.
(B) The following provisions shall apply to the Securities
of each series unless specifically otherwise provided in a Board
Resolution, Officer's Certificate or indenture supplemental hereto
provided pursuant to Section 2.3. In addition to discharge of the
Indenture pursuant to the next preceding paragraph, in the case of
any series of Securities the exact amounts (including the currency
of payment) of principal of and interest due on which can be
determined at the time of making the deposit referred to in clause
(a) below, the Issuer shall be deemed to have paid and discharged
the entire Indebtedness on all the Securities of such series and
the Coupons appertaining thereto on the 91st day after the date of
the deposit referred to in clause (a) below, and the provisions of
this Indenture with respect to the Securities of such series and
Coupons appertaining thereto shall no longer be in effect (except
as to (i) rights of registration of transfer and exchange of
Securities of such series and of Coupons appertaining thereto and
the Issuer's right of optional redemption, if any, (ii)
substitution of mutilated, defaced, destroyed, lost or stolen
Securities or Coupons, (iii) rights of Holders of Securities and
Coupons appertaining thereto to receive payments of principal
thereof and interest thereon, upon the original stated due dates
therefor (but not upon acceleration), and remaining rights of the
Holders to receive mandatory sinking fund payments, if any, (iv)
the rights, obligations, duties and immunities of the Trustee
hereunder, (v) the rights of the Holders of Securities of such
series and Coupons appertaining thereto as beneficiaries hereof
with respect to the property so deposited with the Trustee payable
to all or any of them and (vi) the obligations of the Issuer under
Section 3.2) and the Trustee, at the expense of the Issuer, shall
at the Issuer's request, execute proper instruments acknowledging
the same, if
(a) with reference to this provision the Issuer has
irrevocably deposited or caused to be irrevocably deposited with
the Trustee as trust funds in trust, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders
of the Securities of such series and Coupons appertaining thereto
(i) cash in an amount, or (ii) in the case of any series of
Securities the payments on which may only be made in Dollars,
U.S. Government Obligations, maturing as to principal and
interest at such times and in such amounts as will insure the
availability of cash or (iii) a combination thereof, sufficient,
in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof
delivered to the Trustee, to pay (A) the principal and interest
on all Securities of such series and Coupons appertaining thereto
on each date that such principal or interest is due and payable
and (B) any mandatory sinking fund payments on the dates on which
such payments are due and payable in accordance with the terms of
the Indenture and the Securities of such series;
(b) such deposit will not result in a breach or violation
of, or constitute a default under, any agreement or instrument to
which the Issuer is a party or by which it is bound;
(c) the Issuer has delivered to the Trustee an Opinion of
Counsel based on the fact that (x) the Issuer has received from,
or there has been published by, the Internal Revenue Service a
ruling or (y) since the date hereof, there has been a change in
the applicable Federal income tax law, in either case to the
effect that, and such opinion shall confirm that, the Holders of
the Securities of such series and Coupons appertaining thereto
will not recognize income, gain or loss for Federal income tax
purposes as a result of such deposit, defeasance and discharge
and will be subject to Federal income tax on the same amount and
in the same manner and at the same times, as would have been the
case if such deposit, defeasance and discharge had not occurred;
and
(d) the Issuer has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to the defeasance
contemplated by this provision have been complied with.
(C) The Issuer shall be released from its obligations under
Section 9.1 with respect to the Securities of any Series, and any
Coupons appertaining thereto, Outstanding on and after the date the
conditions set forth below are satisfied (hereinafter, "covenant
defeasance"). For this purpose, such covenant defeasance means
<PAGE>
that, with respect to the Outstanding Securities of any Series, the
Issuer may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in such
Sections, whether directly or indirectly by reason of any reference
elsewhere herein to such Sections or by reason of any reference in
such Sections to any other provision herein or in any other
document and such omission to comply shall not constitute an Event
of Default under Section 5.1, but the remainder of this Indenture
and such Securities and Coupons shall be unaffected thereby. The
following shall be the conditions to application of this subsection
(C) of this Section 10.1:
(a) The Issuer has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for the
purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the holders
of the Securities of such series and Coupons appertaining
thereto, (i) cash in an amount, or (ii) in the case of any series
of Securities the payments on which may only be made in Dollars,
U.S. Government Obligations maturing as to principal and interest
at such times and in such amounts as will insure the availability
of cash or (iii) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof
delivered to the Trustee, to pay (A) the principal and interest
on all Securities of such series and Coupons appertaining thereto
and (B) any mandatory sinking fund payments on the day on which
such payments are due and payable in accordance with the terms of
the Indenture and the Securities of such series.
(b) No Event of Default or event which with notice or lapse
of time or both would become an Event of Default with respect to
the Securities shall have occurred and be continuing on the date
of such deposit or, insofar as subsections 5.1(d) and (e) are
concerned, at any time during the period ending on the 91st day
after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of
such period).
(c) Such covenant defeasance shall not cause the Trustee to
have a conflicting interest for purposes of the Trust Indenture
Act of 1939 with respect to any securities of the Issuer.
(d) Such covenant defeasance shall not result in a breach
or violation of, or constitute a default under, this Indenture or
any other agreement or instrument to which the Issuer is a party
or by which it is bound.
(e) Such covenant defeasance shall not cause any Securities
then listed on any registered national securities exchange under
the Securities Exchange Act of 1934, as amended, to be delisted.
(f) The Issuer shall have delivered to the Trustee an
Officer's Certificate and Opinion of Counsel to the effect that
the Holders of the Securities of such series and Coupons
appertaining thereto will not recognize income, gain or loss for
Federal income tax purposes as a result of such covenant
defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have
been the case if such covenant defeasance had not occurred.
(g) The Issuer shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating
that all conditions precedent provided for relating to the
covenant defeasance contemplated by this provision have been
complied with.
SECTION 10.2 Application by Trustee of Funds Deposited for
Payment of Securities. Subject to Section 10.4, all moneys
deposited with the Trustee pursuant to Section 10.1 shall be held
in trust and applied by it to the payment to the Holders of the
particular Securities of such series and of Coupons appertaining
thereto 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 interest; but such money need not be
segregated from other funds except to the extent required by law.
SECTION 10.3 Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture
with respect to Securities of any series, all moneys then held by
any paying agent under the provisions of this Indenture with
respect to such series of Securities shall, upon demand of the
Issuer, 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 10.4 Return of Moneys Held by Trustee and Paying
Agent Unclaimed for Two Years. Any moneys deposited with or paid
to the Trustee or any paying agent for the payment of the principal
of or interest on any Security of any series or Coupons attached
thereto and not applied but remaining unclaimed for two years after
the date upon which such principal or interest shall have become
due and payable, shall, upon the written request of the Issuer and
unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property law, be repaid to the
Issuer by the Trustee for such series or such paying agent, and the
<PAGE>
Holder of the Securities of such series and of any Coupons
appertaining thereto shall, unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property
laws, thereafter look only to the Issuer 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 (a) in respect of
Registered Securities of any series, shall at the expense of the
Issuer, mail by first-class mail to Holders of such Securities at
their addresses as they shall appear on the Security register, and
(b) in respect of Unregistered Securities of any series, shall at
the expense of the Issuer 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 3.10, 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 30 days from the date of such
mailing or publication, any unclaimed balance of such money then
remaining will be repaid to the Issuer.
SECTION 10.5 Indemnity for U.S. Government Obligations.
The Issuer shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 10.1 or the principal or
interest received in respect of such Obligations.
SECTION 10.6 Reinstatement Provision. If the Trustee or
any paying agent is unable to apply any money in accordance with
this Article 10 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Issuer's obligations under
this Indenture and the Securities shall be revived and reinstated
as though no deposit had occurred pursuant to Section 10.1 until
such time as the Trustee or such paying agent is permitted to apply
all such money in accordance with Section 10.2; provided, however,
that if the Issuer makes any payment of interest on or principal of
any Security following the reinstatement of its obligations, the
Issuer shall be subrogated to the rights of the Holders of such
Securities to receive such payment from the money held by the
Trustee or such paying agent.
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers and
Directors of Issuer Exempt From Individual Liability. No recourse
under or upon any obligation, covenant or agreement contained in
this Indenture, or in any Security, or because of any indebtedness
evidenced thereby, shall be had against any incorporator, as such,
or against any past, present or future stockholder, officer or
director, as such, of the Issuer or of any successor, either
directly or through the Issuer or any successor, 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 and the Coupons appertaining
thereto by the Holders thereof and as part of the consideration for
the issue of the Securities and the Coupons appertaining thereto.
SECTION 11.2 Provisions of Indenture for the Sole Benefit
of Parties and Holders of Securities and Coupons. Nothing in this
Indenture, in the Securities or in the Coupons appertaining
thereto, 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,
if any, 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, if any.
SECTION 11.3 Successors and Assigns of Issuer Bound by
Indenture. All the covenants, stipulations, promises and
agreements in this Indenture contained by or on behalf of the
Issuer shall bind its successors and assigns, whether so expressed
or not.
SECTION 11.4 Notices and Demands on Issuer, Trustee and
Holders of Securities and Coupons. 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 or
Coupons to or on the Issuer may be given or served by being
deposited postage prepaid, first-class mail (except as otherwise
specifically provided herein) addressed (until another address of
the Issuer is filed by the Issuer with the Trustee) to Loral
Corporation, 600 Third Avenue, New York, New York 10016, Attention:
Secretary. Any notice, direction, request or demand by the Issuer
or any Holder of Securities or Coupons to or upon the Trustee shall
be deemed to have been sufficiently given or served by being
deposited postage prepaid, first-class mail (except as otherwise
specifically provided herein) addressed (until another address of
the Trustee is filed by the Trustee with the Issuer) to The Bank of
New York, 101 Barclay Street, New York, New York 10286, Attn.
<PAGE>
Corporate Trust Administration.
Where this Indenture provides for notice to Holders of
Registered Securities, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and
mailed, first-class postage prepaid, to each Holder entitled
thereto, at his last address as it appears in the Security
register. In any case where notice to such Holders is given by
mail, neither the failure to mail such notice, nor any defect in
any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where
this Indenture provides for notice to Holders of Unregistered
Securities, such notice shall be sufficiently given if published 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 3.10, at least once in an
Authorized Newspaper in Luxembourg). Where this Indenture provides
for notice in any manner, such notice may be waived in writing by
the person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in
regular mail service, it shall be impracticable to mail notice to
the Issuer when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice
as shall be reasonably satisfactory to the Trustee shall be deemed
to be a sufficient giving of such notice.
SECTION 11.5 Officer's Certificates and Opinions of
Counsel; Statements to Be Contained Therein. Upon any application
or demand by the Issuer to the Trustee to take any action under any
of the provisions of this Indenture, the Issuer shall furnish to
the Trustee an Officer's 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
(a) a statement that the person giving such certificate or opinion
has read such covenant or condition, (b) 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, (c) 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 (d) a statement as
to whether or not, in the opinion of such person, such condition or
covenant has been complied with.
Any certificate, statement or opinion of an officer of the
Issuer may be based, insofar as it relates to legal matters, upon
a certificate or opinion of or representations by counsel, unless
such officer knows that the certificate or opinion or
representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that
the same are erroneous. Any certificate, statement or opinion of
counsel may be based, insofar as it relates to factual matters,
information with respect to which is in the possession of the
Issuer, upon the certificate, statement or opinion of or
representations by an officer or officers of the Issuer, unless
such counsel knows that the certificate, statement or opinion or
representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
Any certificate, statement or opinion of an officer of the
Issuer or of counsel may be based, insofar as it relates to
accounting matters, upon a certificate or opinion of or
representations by an accountant or firm of accountants
in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or
representations with respect to the accounting matters upon which
his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a
statement that such firm is independent.
SECTION 11.6 Payments Due on Saturdays, Sundays and
Holidays. If the date of maturity of interest on or principal of
the Securities of any series or any Coupons appertaining thereto or
the date fixed for redemption or repayment of any such Security or
<PAGE>
Coupon shall not be a Business Day, then payment of interest or
principal need not be made on such date, 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 11.7 Conflict of Any Provision of Indenture With
Trust Indenture Act of 1939. If and to the extent that any
provision of this Indenture limits, qualifies, or conflicts with
the duties imposed by, or with another provision (an "incorporated
provision") included in this Indenture by operation of, Sections
310 to 318, inclusive, of the Trust Indenture Act of 1939, such
imposed duties or incorporated provision shall control.
SECTION 11.8 New York Law to Govern. This Indenture and
each Security and Coupon shall be deemed to be a contract under the
laws of the State of New York, and for all purposes shall be
construed in accordance with the laws of such State, except as may
otherwise be required by mandatory provisions of law.
SECTION 11.9 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.
SECTION 11.10 Effect of Headings. The Article and Section
headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
SECTION 11.11 Securities in a Foreign Currency or in ECU.
Unless otherwise specified in an Officer's Certificate delivered
pursuant to Section 2.3 of this Indenture with respect to a
particular series of Securities, whenever for purposes of this
Indenture any action may be taken by the Holders of a specified
percentage in aggregate principal amount of Securities of all
series or all series affected by a particular action at the time
Outstanding and, at such time, there are Outstanding Securities of
any series which are denominated in a coin or currency other than
Dollars (including ECUs), then the principal amount of Securities
of such series which shall be deemed to be Outstanding for the
purpose of taking such action shall be that amount of Dollars that
could be obtained for such amount at the Market Exchange Rate. For
purposes of this Section 11.11, Market Exchange Rate shall mean the
noon Dollar buying rate in New York City for cable transfers of
that currency as published 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 quotations 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, rates of exchange
as the Trustee shall deem appropriate. The provisions of this
paragraph shall apply in determining the equivalent principal
amount in respect of Securities of a series denominated in a
currency other than Dollars in connection with any action taken by
Holders of Securities pursuant to the terms of this Indenture.
All decisions and determinations of the Trustee regarding
the Market Exchange Rate or any alternative determination provided
for in the preceding paragraph shall be in its sole discretion and
shall, in the absence of manifest error, be conclusive to the
extent permitted by law for all purposes and irrevocably binding on
the Issuer and all Holders.
SECTION 11.12 Judgment Currency. The Issuer agrees, to the
fullest extent that it may effectively do so under applicable law,
that (a) if for the purpose of obtaining judgment in any court it
is necessary to convert the sum due in respect of the principal of
or interest on the Securities of any series (the "Required
Currency") into a currency in which a judgment will be rendered
(the "Judgment Currency") the rate of exchange used shall be the
rate at which in accordance with normal banking procedures the
Trustee could purchase in The City of New York the Required
Currency with the Judgment Currency on the day on which final
unappealable judgment is entered, unless such day is not a New York
Banking Day, then, to the extent permitted by applicable law, the
rate of exchange used shall be the rate at which in accordance with
normal banking procedures the Trustee could purchase in The City of
New York the Required Currency with the Judgment Currency on the
New York Banking Day preceding the day on which final unappealable
judgment is entered and (b) its obligations under this Indenture to
make payments in the Required Currency (i) shall not be discharged
or satisfied by any tender, or any recovery pursuant to any
judgment (whether or not entered in accordance with subsection
(a)), in any currency other than the Required Currency, except to
the extent that such tender or recovery shall result in the actual
receipt, by the payee, of the full amount of the Required Currency
expressed to be payable in respect of such payments, (ii) shall be
<PAGE>
enforceable as an alternative or additional cause of action for the
purpose of recovering in the Required Currency the amount, if any,
by which such actual receipt shall fall short of the full amount of
the Required Currency so expressed to be payable and (iii) shall
not be affected by judgment being obtained for any other sum due
under this Indenture. For purposes of the foregoing, "New York
Banking Day" means any day except a Saturday, Sunday or a legal
holiday in The City of New York or a day on which banking
institutions in The City of New York are authorized or required by
law or executive order to close.
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article. The provisions of
this Article shall be applicable to the Securities of any series
which are redeemable before their maturity or to any sinking fund
for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 2.3 for Securities of such
series.
SECTION 12.2 Notice of Redemption; Partial Redemptions.
Notice of redemption to the Holders of Registered Securities of any
series to be redeemed as a whole or in part shall be given by
mailing notice of such redemption by first-class mail, postage
prepaid, at least 30 days and not more than 60 days prior to the
date fixed for redemption to such Holders of Securities of such
series at their last addresses as they shall appear upon the
registry books. Notice of redemption to all Holders of
Unregistered Securities 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
3.10, in an Authorized Newspaper in Luxembourg), in each case, once
in each of three successive calendar weeks, the first publication
to be not less than 30 nor more than 60 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, whether or not the Holder receives the notice. 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.
The notice of redemption to each such Holder shall specify
the principal amount of each Security of such series held by such
Holder to be redeemed, the date fixed for redemption, the
redemption price, the place or places of payment, that payment will
be made upon presentation and surrender of such Securities and, in
the case of Securities with Coupons attached thereto, of all
Coupons appertaining thereto maturing after the date fixed for
redemption, that such redemption is pursuant to the mandatory or
optional sinking fund, or both, if such be the case, that interest
accrued to the date fixed for redemption will be paid as specified
in such notice and that on and after said date, interest thereon or
on the portions thereof to be redeemed will cease to accrue. In
case any Security of a series is to be redeemed in part only the
notice of redemption shall state the portion of the principal
amount thereof to be redeemed and shall state that on and after the
date fixed for redemption, upon surrender of such Security, a new
Security or Securities of such series in principal amount equal to
the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be
redeemed shall be given by the Issuer or, at the Issuer's request,
by the Trustee in the name and at the expense of the Issuer.
On or before the redemption date specified in the notice of
redemption given as provided in this Section, the Issuer will
deposit with the Trustee or with one or more paying agents (or, if
the Issuer is acting as its own paying agent, set aside, segregate
and hold in trust as provided in Section 3.4) an amount of money
sufficient to redeem on the redemption date all the Securities of
such series so called for redemption at the appropriate redemption
price, together with accrued interest to the date fixed for
redemption. The Issuer will deliver to the Trustee at least 70
days prior to the date fixed for redemption an Officer's
Certificate stating the aggregate principal amount of Securities to
be redeemed and, in the case of an optional redemption the date of
such redemption. In case of a redemption, at the election of the
Issuer prior to the expiration of any restriction on such
redemption, the Issuer shall deliver to the Trustee, prior to the
giving of any notice of redemption to Holders pursuant to this
Section, an Officer's Certificate stating that such restriction has
been complied with.
If less than all the Securities of a series are to be
redeemed, the Trustee shall select, in such manner as it shall deem
appropriate and fair, Securities of such series to be redeemed in
whole or in part. Securities may be redeemed in part in multiples
equal to the minimum authorized denomination for Securities of such
series or any multiple thereof. The Trustee shall promptly notify
the Issuer in writing of the Securities of such series selected for
redemption and, in the case of any Securities of such series
selected for partial redemption, the principal amount thereof to be
redeemed. For all purposes of this Indenture, unless the context
<PAGE>
otherwise requires, all provisions relating to the redemption of
Securities of any series shall relate, in the case of any Security
redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security which has been or is to be
redeemed.
SECTION 12.3 Payment of Securities Called for Redemption.
If notice of redemption has been given as above provided, the
Securities or portions of Securities specified in such notice shall
become due and payable on the date and at the place stated in such
notice at the applicable redemption price, together with interest
accrued to the date fixed for redemption, and on and after said
date (unless the Issuer shall default in the payment of such
Securities at the redemption price, together with interest accrued
to said date) interest on the Securities or portions of Securities
so called for redemption shall cease to accrue, and the unmatured
Coupons, if any, appertaining thereto shall be void, and, except as
provided in Sections 6.5 and 10.4, such Securities shall cease from
and after the date fixed for redemption to be entitled to any
benefit or security under this Indenture, and the Holders thereof
shall have no right in respect of such Securities except the right
to receive the redemption price thereof and unpaid interest to the
date fixed for redemption. On presentation and surrender of such
Securities at a place of payment specified in said notice, together
with all Coupons, if any, appertaining thereto maturing after the
date fixed for redemption, said Securities or the specified
portions thereof shall be paid and redeemed by the Issuer at the
applicable redemption price, together with interest accrued thereon
to the date fixed for redemption; provided that payment of interest
becoming due on or prior to the date fixed for redemption shall be
payable in the case of Securities with Coupons attached thereto, to
the Holders of the Coupons for such interest upon surrender
thereof, and in the case of Registered Securities, to the Holders
of such Registered Securities registered as such on the relevant
record date subject to the terms and provisions of Sections 2.3 and
2.7 hereof.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal shall, until
paid or duly provided for, bear interest from the date fixed for
redemption at the rate of interest or Yield to Maturity (in the
case of an Original Issue Discount Security) borne by such
Security.
If any Security with Coupons attached thereto is surrendered
for redemption and is not 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 Issuer 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
Issuer shall execute and the Trustee shall authenticate and deliver
to or on the order of the Holder thereof, at the expense of the
Issuer, a new Security or Securities of such series, of authorized
denominations, in principal amount equal to the unredeemed portion
of the Security so presented.
SECTION 12.4 Exclusion of Certain Securities From
Eligibility for Selection for Redemption. Securities shall be
excluded from eligibility for selection for redemption if they are
identified by registration and certificate number in an Officer's
Certificate delivered to the Trustee at least 40 days prior to the
last date on which notice of redemption may be given as being owned
of record and beneficially by, and not pledged or hypothecated by
either (a) the Issuer or (b) an entity specifically identified in
such written statement as directly or indirectly controlling or
controlled by or under direct or indirect common control with the
Issuer.
SECTION 12.5 Mandatory and Optional Sinking Funds. The
minimum amount of any sinking fund payment provided for by the
terms of the Securities of any series is herein referred to as a
"mandatory sinking fund payment", and any payment in excess of such
minimum amount provided for by the terms of the Securities of any
series is herein referred to as an "optional sinking fund payment".
The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking
fund payment with respect to any series of Securities in cash, the
Issuer may at its option (a) deliver to the Trustee Securities of
such series theretofore purchased or otherwise acquired (except
upon redemption pursuant to the mandatory sinking fund) by the
Issuer or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Issuer and delivered to the Trustee
for cancellation pursuant to Section 2.10, (b) receive credit for
optional sinking fund payments (not previously so credited) made
pursuant to this Section, or (c) receive credit for Securities of
such series (not previously so credited) redeemed by the Issuer
through any optional redemption provision contained in the terms of
such series. Securities so delivered or credited shall be received
or credited by the Trustee at the sinking fund redemption price
specified in such Securities.
<PAGE>
On or before the 70th day next preceding each sinking fund
payment date for any series, the Issuer will deliver to the Trustee
an Officer's Certificate (which need not contain the statements
required by Section 11.5) (a) specifying the portion of the
mandatory sinking fund payment to be satisfied by payment of cash
and the portion to be satisfied by credit of Securities of such
series and the basis for such credit, (b) stating that none of the
Securities of such series has theretofore been so credited, (c)
stating that no defaults in the payment of interest or Events of
Default with respect to such series have occurred (which have not
been waived or cured) and are continuing and (d) stating whether or
not the Issuer intends to exercise its right to make an optional
sinking fund payment with respect to such series and, if so,
specifying the amount of such optional sinking fund payment which
the Issuer intends to pay on or before the next succeeding sinking
fund payment date. Any Securities of such series to be credited
and required to be delivered to the Trustee in order for the Issuer
to be entitled to credit therefor as aforesaid which have not
theretofore been delivered to the Trustee shall be delivered for
cancellation pursuant to Section 2.10 to the Trustee with such
Officer's Certificate (or reasonably promptly thereafter if
acceptable to the Trustee). Such Officer's Certificate shall be
irrevocable and upon its receipt by the Trustee the Issuer shall
become unconditionally obligated to make all the cash payments or
payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. Failure of the Issuer, on or
before any such 70th day, to deliver such Officer's Certificate and
Securities specified in this paragraph, if any, shall not
constitute a default but shall constitute, on and as of such date,
the irrevocable election of the Issuer (i) that the mandatory
sinking fund payment for such series due on the next succeeding
sinking fund payment date shall be paid entirely in cash without
the option to deliver or credit Securities of such series in
respect thereof and (ii) that the Issuer will make no optional
sinking fund payment with respect to such series as provided in
this Section.
If the sinking fund payment or payments (mandatory or
optional or both) to be made in cash on the next succeeding sinking
fund payment date plus any unused balance of any preceding sinking
fund payments made in cash shall exceed $50,000 (or the equivalent
thereof in any Foreign Currency or ECU) or a lesser sum in Dollars
(or the equivalent thereof in any Foreign Currency or ECU) if the
Issuer shall so request with respect to the Securities of any
particular series, such cash shall be applied on the next
succeeding sinking fund payment date to the redemption of
Securities of such series at the sinking fund redemption price
together with accrued interest to the date fixed for redemption.
If such amount shall be $50,000 (or the equivalent thereof in any
Foreign Currency or ECU) or less and the Issuer makes no such
request then it shall be carried over until a sum in excess of
$50,000 (or the equivalent thereof in any Foreign Currency or ECU)
is available. The Trustee shall select, in the manner provided in
Section 12.2, for redemption on such sinking fund payment date a
sufficient principal amount of Securities of such series to absorb
said cash, as nearly as may be, and shall (if requested in writing
by the Issuer) inform the Issuer of the serial numbers of the
Securities of such series (or portions thereof) so selected. The
amount of any sinking fund payments not so applied or allocated to
the redemption of Securities of such series shall be added to the
next cash sinking fund payment for such series and, together with
such payment, shall be applied in accordance with the provisions of
this Section. Any and all sinking fund moneys held on the stated
maturity date of the Securities of any particular series (or
earlier, if such maturity is accelerated), which are not held for
the payment or redemption of particular Securities of such series
shall be applied, together with other moneys, if necessary,
sufficient for the purpose, to the payment of the principal of, and
interest on, the Securities of such series at maturity.
On or before each sinking fund payment date, the Issuer
shall pay to the Trustee in cash or shall otherwise provide for the
payment of all interest accrued to the date fixed for redemption on
Securities to be redeemed on the next following sinking fund
payment date.
The Trustee shall not redeem or cause to be redeemed any
Securities of a series with sinking fund moneys or give any notice
of redemption of Securities for such series by operation of the
sinking fund during the continuance of a default in payment of
interest on such Securities or of any Event of Default except that,
where the giving of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be
redeemed such Securities, provided that it shall have received from
the Issuer a sum sufficient for such redemption. Except as
aforesaid, any moneys in the sinking fund for such series at the
time when any such default or Event of Default shall occur, and any
moneys thereafter paid into the sinking fund, shall, during the
continuance of such default or Event of Default, be deemed to have
been collected under Article Five and held for the payment of all
such Securities. In case such Event of Default shall have been
waived as provided in Section 5.10 or the default cured on or
before the 60th day preceding the sinking fund payment date in any
year, such moneys shall thereafter be applied on the next
succeeding sinking fund payment date in accordance with this
Section to the redemption of such Securities.
<PAGE>
ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES
SECTION 13.1. Securities Subordinated to Senior
Indebtedness. Except as otherwise specified pursuant to Section
2.3 for Securities of any series, the Issuer covenants and agrees,
and each Holder of a Security, by such Holder's acceptance thereof,
likewise covenants and agrees, for the benefit of the holders, from
time to time, of Senior Indebtedness of the Issuer that, to the
extent and in the manner hereinafter set forth in this Article, the
indebtedness represented by the Securities and the payment of the
principal of (and premium, if any, on) and interest, if any, on
each and all of the Securities are hereby expressly made
subordinate and subject in right of payment as provided in this
Article to the prior payment in full of all Senior Indebtedness of
the Issuer.
SECTION 13.2. Payment Over of Proceeds Upon Dissolution,
Etc. In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or
other similar case or proceeding in connection therewith, relative
to the Issuer or to its creditors, as such, or to its assets, or
(b) any liquidation, dissolution or other winding up of the Issuer,
whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of
creditors or any other marshalling of assets and liabilities of the
Issuer, then and in any such event, the holders of all Senior
Indebtedness shall first be entitled to receive payment in full (or
provision is made for payment in money or money's worth) of the
principal thereof (and premium, if any, thereon) and interest
thereon (including, without limitation, all interest accruing after
the commencement of any bankruptcy, insolvency, receivership or
similar proceeding), before the Holders of the indebtedness
evidenced by the Securities are entitled to receive any payment or
distribution of any kind or character on account of principal (or
premium, if any, on) or interest, if any, on such indebtedness.
The consolidation of the Issuer with, or the merger of the
Issuer into, another Person or the liquidation or dissolution of
the Issuer following the conveyance or transfer of its properties
and assets substantially as an entirety to another Person upon the
terms and conditions set forth in Article Nine shall not be deemed
a dissolution, winding up, liquidation, reorganization, assignment
for the benefit of creditors or marshalling of assets and
liabilities of the Issuer for the purposes of this Section if the
Person formed by such consolidation or into which the Issuer is
merged or the Person which acquires by conveyance or transfer such
properties and assets substantially as an entirety, as the case may
be, shall, as a part of such consolidation, merger, conveyance or
transfer, comply with the conditions set forth in Article Nine.
SECTION 13.3. No Payment When Senior Indebtedness In
Default or Upon Acceleration of Securities. In the event (a) there
shall exist (or would exist at the time of, or immediately after
giving effect to, a payment on account of the Securities) with
respect to any Senior Indebtedness of the Issuer, or any agreement
pursuant to which any Senior Indebtedness is issued, any default in
the payment of principal, premium (if any) or interest in respect
of such Senior Indebtedness or (b) any of the Securities are
declared due and payable because of an Event of Default, no
payments on account of the principal of (or premium, if any, on) or
interest, if any, on the Securities shall be made by the Issuer
until all such payments due in respect of all Senior Indebtedness
have been paid in full, provided, however, that if the maturity of
such Senior Indebtedness shall not have been accelerated within a
period of 180 days after the date on which the holders of such
Senior Indebtedness (or such trustee) shall have first obtained
written notice of such an Event of Default from the Company, and
subject to Section 13.2, any such payment in respect of the
Subordinated Securities which shall have become, or shall become,
due and payable otherwise than by reason of acceleration of the
maturity of the Subordinated Securities following an Event of
Default hereunder may be made so long as the maturity of such
Senior Indebtedness shall not have been accelerated. Failure to
pay principal (and premium, if any) or interest on the Subordinated
Securities pursuant to the prohibitions of Article Thirteen of this
Indenture shall nevertheless constitute an Event of Default
hereunder if not paid within the periods specified herein.
SECTION 13.4. Payments Made In Error. In the event that,
notwithstanding the foregoing, the Issuer shall make any payment to
the Trustee or the Holder of any Security prohibited by Section
13.2 or 13.3, then and in such event such payment shall be received
and held in trust for and shall be forthwith paid over to the
holders of the Senior Indebtedness remaining unpaid (pro rata as to
each of such holders on the basis of the respective amounts of
Senior Indebtedness held by them) until all such Senior
Indebtedness has been paid in full, after giving effect to any
concurrent payment or distribution or provision therefor to the
holders of such Senior Indebtedness.
SECTION 13.5. Payment Permitted If No Default. Nothing
contained in this Article or elsewhere in this Indenture or in any
of the Securities shall prevent the Issuer at any time, except
during the pendency of any case, proceeding, liquidation,
<PAGE>
dissolution or other winding up, assignment for the benefit of
creditors or other marshalling of assets and liabilities of the
Issuer referred to in Section 13.2 or under the conditions
described in Section 13.3, from making payments at any time of
principal of (or premium, if any, on) or interest, if any, on the
Securities.
SECTION 13.6. Subrogation to Rights of Holders of Senior
Indebtedness. Subject to the payment in full of all Senior
Indebtedness (or the making of provision therefor in money or
money's worth), the Holders of the Securities shall be subrogated
to the rights of the holders of such Senior Indebtedness to receive
payments and distributions of cash, property and securities
applicable to the Senior Indebtedness until the principal of (and
premium, if any, on) and interest, if any, on the Securities shall
be paid in full. For purposes of such subrogation, no payments or
distributions to the holders of Senior Indebtedness of any cash,
property or securities to which the Holders of the Securities or
the Trustee would be entitled, except for the provisions of this
Article, and no payments pursuant to the provisions of this Article
to the holders of Senior Indebtedness by Holders of the Securities
or the Trustee, shall, as among the Issuer its creditors (other
than holders of Senior Indebtedness), and the holders of the
Securities, be deemed to be a payment or distribution by the Issuer
to or on account of the Senior Indebtedness.
SECTION 13.7 Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders of the
Securities on the one hand and the holders of Senior Indebtedness
on the other hand. Nothing contained in this Article or elsewhere
in this Indenture or in the Securities is intended to or shall (a)
impair, as among the Issuer, its creditors (other than holders of
Senior Indebtedness) and the Holders of the Securities, the
obligation of the Issuer, which is absolute and unconditional, to
pay to the Holders of the Securities the principal of (and premium,
if any, on) and interest, if any, on the Securities as and when the
same shall become due and payable in accordance with their terms;
or (b) affect the relative rights against the Issuer of the Holders
of the Securities and creditors of the Issuer (other than the
holders of Senior Indebtedness); or (c) prevent the Trustee or the
Holder of any Security from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture,
subject to the rights, if any, under this Article of the holders of
Senior Indebtedness.
SECTION 13.8. Trustee to Effectuate Subordination. Each
Holder of a Security by such Holder's acceptance thereof authorizes
and directs the Trustee on such Holder's behalf to take such action
as may be necessary or appropriate to effectuate the subordination
provided in this Article and appoints the Trustee such Holder's
attorney-in-fact for any and all such purposes.
SECTION 13.9 No Waiver of Subordination Provisions. (a)
No right of any present or future holder of any Senior Indebtedness
to enforce subordination as herein provided (as the subordination
provisions of this Article Thirteen may be amended or supplemented
from time to time in accordance with the provisions of this
Indenture) shall at any time in any way be prejudiced or impaired
by any act or failure to act on the part of the Issuer or by any
act or failure to act, in good faith, by any such holder, or by any
non-compliance by the Issuer with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof
any such holder may have or be otherwise charged with.
(b) Without in any way limiting the generality of paragraph
(a) of this Section, the holders of Senior Indebtedness may, at any
time and from time to time, without the consent of or notice to the
Trustee or the Holders of the Securities, without incurring
responsibility to the Holders of the Securities and without
impairing or releasing the subordination provided in this Article
or the obligations hereunder of the Holders of the Securities to
the holders of Senior Indebtedness, do any one or more of the
following: (1) change the manner, place or terms of payment or
extend the time of payment of, or renew or alter, Senior
Indebtedness or any instrument evidencing the same or any agreement
under which Senior Indebtedness is outstanding; (2) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Indebtedness; (3) release any Person
liable in any manner for the collection of Senior Indebtedness; and
(4) exercise or refrain from exercising any rights against the
Issuer and any other Person.
SECTION 13.10 Notice to Trustee. (a) The Issuer shall
give prompt written notice to the Trustee of any fact known to it
which would prohibit the making of any payment to or by the Trustee
in respect of the Securities. Notwithstanding the provisions of
this Article or any other provision of this Indenture, the Trustee
shall not be charged with knowledge of the existence of any fact
that would prohibit the making of any payment to or by the Trustee
in respect of the Securities, unless and until the Trustee shall
have received written notice thereof from the Issuer or a holder of
Senior Indebtedness or from any trustee, fiduciary or agent
therefor; and, prior to the receipt of any such written notice, the
Trustee, subject to TIA Sections 315(a) through 315(d), shall be
entitled in all respects to assume that no such facts exist;
<PAGE>
provided, however, that, if the Trustee shall not have received the
notice provided for in this Section at least five Business Days
prior to the date upon which by terms hereof any money may become
payable for any purpose (including, without limitation, the payment
of the principal of (or premium, if any, on) or interest, if any,
on any Security), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purpose for which
such money was received and shall not be affected by any notice to
the contrary which may be received by it within five Business Days
prior to such date.
(b) Subject to TIA Sections 315(a) through 315(d), the
Trustee shall be entitled to rely on the delivery to it of a
written notice by a Person representing himself to be a holder of
Senior Indebtedness (or such holder's representative or a trustee
therefor) to establish that such notice has been given by a holder
of Senior Indebtedness (or such holder's representative or a
trustee therefor). In the event that the Trustee determines in
good faith that further evidence is required with respect to the
right of any Person as a holder of Senior Indebtedness to
participate in any payment or distribution pursuant to this
Article, the Trustee may request such Person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amount of
Senior Indebtedness held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution
and any other facts pertinent to the rights of such Person under
this Article and, if such evidence is not furnished, the Trustee
may defer any payment to such Person pending judicial determination
as to the right of such Person to receive such payment.
SECTION 13.11 Reliance on Judicial Order or Certificate of
Liquidating Agent. Upon any payment or distribution of assets of
the Issuer referred to in this Article, the Trustee, subject to TIA
Sections 315(a) through 315(d), and the Holders of the Securities
shall be entitled to rely upon any order or decree entered by any
court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution,
winding up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or
other Person making such payment or distribution, delivered to the
Trustee or to the Holders of Securities, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other
indebtedness of the Issuer, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article.
SECTION 13.12 Rights of Trustee As a Holder of Senior
Indebtedness; Preservation of Trustee's Rights. The Trustee in its
individual capacity shall be entitled to all the rights set forth
in this Article with respect to any Senior Indebtedness which may
at any time be held by it, to the same extent as any other holder
of Senior Indebtedness, and nothing in this Indenture shall deprive
the Trustee of any of its rights as such holder. Notwithstanding
anything to the contrary in this Indenture, nothing in this Article
shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 6.6.
SECTION 13.13 Article Applicable to Paying Agents. In case
at any time any Paying Agent other than the Trustee shall have been
appointed by the Issuer and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the
context otherwise requires) be construed as extending to and
including such Paying Agent within its meaning as fully for all
intents and purposes as if such Paying Agent were named in this
Article in addition to or in place of the Trustee; provided,
however, that Section 13.12 shall not apply to the Issuer or any of
its affiliates if it or such affiliate acts as Paying Agent.
SECTION 13.14. No Suspension of Remedies. Nothing contained
in this Article shall limit the right of the Trustee or the Holders
of Securities to take any action to accelerate the maturity of the
Securities pursuant to Article Five or to pursue any rights or
remedies hereunder or under applicable law.
SECTION 13.15. Trust Moneys Not Subordinated.
Notwithstanding anything contained herein to the contrary, payments
from cash or the proceeds of U.S. Government Obligations held in
trust under Article Ten hereof by the Trustee (or other qualifying
trustee) and which were deposited in accordance with the terms of
Article Thirteen hereof and not in violation of Section 13.3 hereof
for the payment of principal of (and premium, if any, on) and
interest, if any, on the Securities shall not be subordinated to
the prior payment of any Senior Indebtedness or subject to the
restrictions set forth in this Article Thirteen, and none of the
Holders shall be obligated to pay over any such amount to the
Issuer or any holder of Senior Indebtedness or any other creditor
of the Issuer.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of May 1, 1994.
<PAGE>
LORAL CORPORATION
By:
------------------------
Name:
Title:
[CORPORATE SEAL]
Attest:
By:
------------------------
Name:
Title:
<PAGE>
THE BANK OF NEW YORK
_______________________,
as Trustee
By:
------------------------
Name:
Title:
[CORPORATE SEAL]
Attest:
By:
------------------------
Name:
Title:
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ____ of _____________, 1994 before me personally
came , to me personally known, who, being by me
duly sworn, did depose and say that he resides at
; that he is the of Loral Corporation, one of
the corporations described in and which executed the above
instrument; that he knows the corporate 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.
------------------------
Notary Public
<PAGE>
STATE OF _________ )
) ss.:
COUNTY OF ________ )
On this ___ of ____________, 1994 before me personally came
, to me personally known, who, being by me duly
sworn, did depose and say that he resides at ;
that he is a of __________________, a national
banking association described in and which executed the above
instrument; that he knows the seal of said national association;
that the seal affixed to said instrument is such seal; that it was
so affixed by authority of the Board of Directors of said national
association, and that he signed his name thereto by like authority.
------------------------
Notary Public
EXHIBIT 4.4
[FORM OF FACE OF SECURITY]
Floating Rate Note
REGISTERED REGISTERED
No. FLR [PRINCIPAL AMOUNT]
CUSIP: *
Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street,
New York, New York) to the issuer or its agent for registration
of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust
Company (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of the
Depository Trust Company), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL in
as much as the registered owner hereof, Cede & Co., has an
interest herein.*
IF APPLICABLE, THE "TOTAL AMOUNT OF OID,"
"ORIGINAL YIELD TO MATURITY" AND "INITIAL
ACCRUAL PERIOD OID" (COMPUTED UNDER THE
APPROXIMATE METHOD) SET FORTH BELOW HAVE BEEN
COMPLETED SOLELY FOR THE PURPOSES OF APPLYING
THE FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT
("OID") RULES.
LORAL CORPORATION
SUBORDINATED NOTE, SERIES
(Floating Rate)
BASE RATE: ORIGINAL ISSUE DATE: MATURITY DATE:
INDEX MATURITY: INTEREST ACCRUAL DATE: INTEREST PAYMENT
DATE(S):
SPREAD (PLUS OR INITIAL INTEREST RATE: INTEREST PAYMENT
MINUS): PERIOD:
INITIAL INTEREST INTEREST RESET
RESET DATE: PERIOD:
ALTERNATE RATE
EVENT SPREAD: MAXIMUM INTEREST INTEREST RESET
RATE: DATES:
SPREAD MULTIPLIER:
MINIMUM INTEREST CALCULATION AGENT:
RATE:
INITIAL REDEMPTION SPECIFIED CURRENCY:
DATE:
INITIAL REDEMPTION TOTAL AMOUNT OF OID:
PERCENTAGE:
ANNUAL REDEMPTION ORIGINAL YIELD TO
PERCENTAGE MATURITY:
REDUCTION
OPTIONAL REPAYMENT INITIAL ACCRUAL
DATE(S): PERIOD OID:
* Applies only if this Note is a Registered Global Security.
<PAGE>
Loral Corporation, a New York corporation (together with
its successors and assigns, the "Issuer"), for value received,
hereby promises to pay to ,
or registered assignees, the principal sum of
on the Maturity Date specified above (except to the extent
redeemed or repaid prior to the Maturity Date) and to pay
interest thereon, from the Interest Accrual Date specified above
at a rate per annum equal to the Initial Interest Rate specified
above until the Initial Interest Reset Date specified above, and
thereafter at a rate per annum determined in accordance with the
provisions specified on the reverse hereof until the principal
hereof is paid or duly made available for payment. The Issuer
will pay interest in arrears monthly, quarterly, semiannually or
annually as specified above as the Interest Payment Period on
each Interest Payment Date (as specified above), commencing with
the first Interest Payment Date next succeeding the Interest
Accrual Date specified above, and on the Maturity Date (or any
redemption or repayment date); provided, however, that if the
Interest Accrual Date occurs between a Record Date, as defined
below, and the next succeeding Interest Payment Date, interest
payments will commence on the second Interest Payment Date
succeeding the Interest Accrual Date to the registered holder of
this Note on the Record Date with respect to such second Interest
Payment Date; and provided, further, that if an Interest Payment
Date or the Maturity Date or redemption or repayment date would
fall on a day that is not a Business Day, as defined on the
reverse hereof, such Interest Payment Date, Maturity Date or
redemption or repayment date shall be the following day that is a
Business Day, except that if the Base Rate specified above is
LIBOR and such next Business Day falls in the next calendar
month, the Interest Payment Date, Maturity Date or redemption or
repayment date shall be the immediately preceding day that is a
Business Day.
Interest on this Note will accrue from the most recent
date to which interest has been paid or duly provided for, or, if
no interest has been paid or duly provided for, from the Interest
Accrual Date, until the principal hereof has been paid or duly
made available for payment. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment
Date will, subject to certain exceptions, be paid to the person
in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on the date 15 calendar days
prior to such Interest Payment Date (whether or not a Business
Day) (each such date a "Record Date"); provided, however, that
interest payable on the Maturity Date (or any redemption or
repayment date) will be payable to the person to whom the
principal hereof shall be payable.
Payment of the principal of this Note, any premium and
the interest due at the Maturity Date (or any redemption or
repayment date) will be made in immediately available funds upon
surrender of this Note at the office or agency of the Paying
Agent, as defined on the reverse hereof, maintained for that
purpose in the Borough of Manhattan, The City of New York, or at
such other paying agency as the Issuer may determine. Payment of
the principal of and premium, if any, and interest on this Note
will be made in the Specified Currency indicated above; provided,
however, that U.S. dollar payments of interest, other than
interest due at maturity or any date of redemption or repayment,
will be made by U.S. dollar check mailed to the address of the
person entitled thereto as such address shall appear in the Note
register. A holder of U.S. $10,000,000 or more in aggregate
principal amount of Notes having the same Interest Payment Date
will be entitled to receive payments of interest, other than
interest due at maturity or any date of redemption or repayment,
by wire transfer of immediately available funds if appropriate
wire transfer instructions have been received by the Paying Agent
in writing not less than 15 calendar days prior to the applicable
Interest Payment Date. If this Note is denominated in a
Specified Currency other than U.S. dollars, payments of interest
hereon will be made by wire transfer of immediately available
funds to an account maintained by the holder hereof with a bank
located outside the United States if appropriate wire transfer
instructions have been received by the Paying Agent in writing
not less than 15 calendar days prior to the applicable Interest
Payment Date. If such wire transfer instructions are not so
received, such interest payments will be made by check payable in
such Specified Currency mailed to the address of the person
entitled thereto as such address shall appear in the Note
register.
Reference is hereby made to the further provisions of
this Note set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by
manual signature, this Note shall not be entitled to any benefit
under the Indenture, as defined on the reverse hereof, or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to
be duly executed under its corporate seal.
<PAGE>
DATED: LORAL CORPORATION
By
------------------------
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes
referred to in the within-
mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By
------------------------
Authorized Officer
<PAGE>
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of
Subordinated Notes, Series , having maturities more than nine
months from the date of issue (the "Notes") of the Issuer. The
Notes are issuable under an indenture (the "Indenture"), dated as
of May 1, 1994, between the Issuer and The Bank of New York, as
Trustee (the "Trustee," which term includes any successor trustee
under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and
immunities of the Issuer, the Trustee and holders of the Notes
and the terms upon which the Notes are, and are to be,
authenticated and delivered. The Issuer has appointed Mellon
Securities Transfer at its office in The City of New York as the
paying agent (the "Paying Agent," which term includes any
additional or successor Paying Agent appointed by the Issuer)
with respect to the Notes. The terms of individual Notes may
vary with respect to interest rates, interest rate formulas,
issue dates, maturity dates, or otherwise, all as provided in the
Indenture. To the extent not inconsistent herewith, the terms of
the Indenture are hereby incorporated by reference herein.
This Note shall be subordinated in right of payment to
all Senior Indebtedness of the Company (as defined in the
Indenture).
This Note will not be subject to any sinking fund and,
unless otherwise provided on the face hereof in accordance with
the provisions of the following two paragraphs, will not be
redeemable or subject to repayment at the option of the holder
prior to maturity.
Unless otherwise indicated on the face of this Note,
this Note may not be redeemed prior to the Maturity Date. If so
indicated on the face of this Note, this Note may be redeemed in
whole or in part at the option of the Issuer on or after the
Initial Redemption Date specified on the face hereof on the terms
set forth on the face hereof, together with interest accrued and
unpaid hereon to the date of redemption. If this Note is subject
to "Annual Redemption Percentage Reduction," the Initial
Redemption Percentage indicated on the face hereof will be
reduced on each anniversary of the Initial Redemption Date by the
Annual Redemption Percentage Reduction specified on the face
hereof until the redemption price of this Note is 100% of the
principal amount hereof, together with interest accrued and
unpaid hereon to the date of redemption. Notice of redemption
shall be mailed by first class mail, postage prepaid, to the
registered holders of the Notes designated for redemption at
their addresses as the same shall appear on the Note register not
less than 30 nor more than 60 days prior to the date fixed for
redemption, subject to all the conditions and provisions of the
Indenture. In the event of redemption of this Note in part only,
a new Note or Notes for the amount of the unredeemed portion
hereof shall be issued in the name of the holder hereof upon the
cancellation hereof.
Unless otherwise indicated on the face of this Note,
this Note shall not be subject to repayment at the option of the
holder prior to the Maturity Date. If so indicated on the face
of this Note, this Note will be subject to repayment at the
option of the holder on the Optional Repayment Date or Dates
specified on the face hereof on the terms set forth herein. On
any Optional Repayment Date, this Note will be repayable in whole
or in part in increments of $1,000 or, if this Note is
denominated in a Specified Currency other than U.S. dollars, in
increments of 1,000 units of such Specified Currency (provided
that any remaining principal amount hereof shall not be less than
the minimum authorized denomination hereof) at the option of the
holder hereof at a price equal to 100% of the principal amount to
be repaid, together with interest accrued and unpaid hereon to
the date of repayment. For this Note to be repaid at the option
of the holder hereof, the Paying Agent must receive at its office
in the Borough of Manhattan, The City of New York, at least 15
but not more than 30 days prior to the date of repayment, (i)
this Note with the form entitled "Option to Elect Repayment"
below duly completed or (ii) a telegram, facsimile transmission
or a letter from a member of a national securities exchange or
the National Association of Securities Dealers, Inc. or a
commercial bank or a trust company in the United States setting
forth the name of the holder of this Note, the principal amount
hereof, the certificate number of this Note or a description of
this Note's tenor and terms, the principal amount hereof to be
repaid, a statement that the option to elect repayment is being
exercised thereby and a guarantee that this Note, together with
the form entitled "Option to Elect Repayment" duly completed,
will be received by the Paying Agent not later than the fifth
Business Day after the date of such telegram, facsimile
transmission or letter; provided, that such telegram, facsimile
transmission or letter shall only be effective if this Note and
form duly completed are received by the Paying Agent by such
fifth Business Day. Exercise of such repayment option by the
holder hereof shall be irrevocable. In the event of repayment of
this Note in part only, a new Note or Notes for the amount of the
unpaid portion hereof shall be issued in the name of the holder
<PAGE>
hereof upon the cancellation hereof.
This Note will bear interest at the rate determined in
accordance with the applicable provisions below by reference to
the Base Rate shown on the face hereof based on the Index
Maturity, if any, shown on the face hereof (i) plus or minus the
Spread, if any, or (ii) multiplied by the Spread Multiplier, if
any, specified on the face hereof. Commencing with the Initial
Interest Reset Date specified on the face hereof, the rate at
which interest on this Note is payable shall be reset as of each
Interest Reset Date (as used herein, the term "Interest Reset
Date" shall include the Initial Interest Reset Date). The
Interest Reset Dates will be the Interest Reset Dates specified
on the face hereof; provided, however, that (i) the interest rate
in effect for the period from the Interest Accrual Date to the
Initial Interest Reset Date will be the Initial Interest Rate and
(ii) the interest rate in effect hereon for the 15 days
immediately prior to the Maturity Date hereof (or, with respect
to any principal amount to be redeemed or repaid, any redemption
or repayment date) shall be that in effect on the fifteenth
calendar day preceding the Maturity Date hereof or such date of
redemption or repayment, as the case may be. If any Interest
Reset Date would otherwise be a day that is not a Business Day,
such Interest Reset Date shall be postponed to the next
succeeding day that is a Business Day, except that if the Base
Rate specified on the face hereof is LIBOR and such Business Day
is in the next succeeding calendar month, such Interest Reset
Date shall be the next preceding Business Day. As used herein,
"Business Day" means any day, other than a Saturday or Sunday,
that is neither a legal holiday nor a day on which banking
institutions are authorized or required by law or regulation to
close in The City of New York and (i) with respect to Notes
denominated in a Specified Currency other than U.S. dollars,
European Currency Units ("ECUs") or Australian dollars, in the
capital city of the country of the Specified Currency, (ii) with
respect to Notes denominated in ECUs, in Luxembourg, (iii) with
respect to Notes denominated in Australian dollars, in Sydney and
(iv) with respect to Notes bearing interest calculated by
reference to LIBOR, in the City of London.
The Interest Determination Date pertaining to an
Interest Reset Date for Notes bearing interest calculated by
reference to the CD Rate, Commercial Paper Rate, Federal Funds
Rate and Prime Rate will be the second Business Day next
preceding such Interest Reset Date. The Interest Determination
Date pertaining to an Interest Reset Date for Notes bearing
interest calculated by reference to LIBOR shall be the second
London Banking Day preceding such Interest Reset Date. As used
herein, "London Banking Day" means any day on which dealings in
deposits in U.S. dollars are transacted in the London interbank
market. The Interest Determination Date pertaining to an
Interest Reset Date for Notes bearing interest calculated by
reference to the Treasury Rate shall be the day of the week in
which such Interest Reset Date falls on which Treasury bills
normally would be auctioned; provided, however, that if as a
result of a legal holiday an auction is held on the Friday of
the week preceding such Interest Reset Date, the related Interest
Determination Date shall be such preceding Friday; and provided,
further, that if an auction shall fall on any Interest Reset
Date, then the Interest Reset Date shall instead be the first
Business Day following the date of such auction.
The "Calculation Date" pertaining to any Interest
Determination Date will be the earlier of the tenth calendar day
after such Interest Determination Date or the next succeeding
Record Date after such Interest Determination Date or, if either
such day is not a Business Day, the next succeeding Business Day.
Determination of CD Rate. If the Base Rate specified on
the face hereof is the CD Rate, the CD Rate with respect to this
Note shall be determined on each Interest Determination Date and
shall be the rate on such date for negotiable certificates of
deposit having the Index Maturity specified on the face hereof as
published by the Board of Governors of the Federal Reserve System
in "Statistical Release H.15(519), Selected Interest Rates," or
any successor publication of the Board of Governors of the
Federal Reserve System ("H.15(519)"), under the heading "CDs
(Secondary Market)," or, if not so published by 9:00 A.M., New
York City time, on the Calculation Date pertaining to such
Interest Determination Date, the CD Rate will be the rate on such
Interest Determination Date for negotiable certificates of
deposit of the Index Maturity specified on the face hereof as
published by the Federal Reserve Bank of New York in its daily
statistical release "Composite 3:30 P.M. Quotations for U.S.
Government Securities" ("Composite Quotations") under the heading
"Certificates of Deposit." If neither of such rates is published
by 3:00 P.M., New York City time, on such Calculation Date, then
the CD Rate on such Interest Determination Date will be
calculated by the Calculation Agent referred to on the face
hereof and will be the arithmetic mean of the secondary market
offered rates as of 10:00 A.M., New York City time, on such
Interest Determination Date for certificates of deposit in the
denomination of U.S. $5,000,000 with a remaining maturity closest
to the Index Maturity specified on the face hereof of three
leading nonbank dealers in negotiable U.S. dollar certificates of
deposit in The City of New York selected by the Calculation Agent
<PAGE>
for negotiable certificates of deposit of major United States
money center banks of the highest credit standing in the market
for negotiable certificates of deposit; provided, however, that
if the dealers selected as aforesaid by the Calculation Agent are
not quoting as mentioned in this sentence, the rate of interest
in effect for the applicable period will be the same as the CD
Rate for the immediately preceding Interest Reset Period (or, if
there was no such Interest Reset Period, the rate of interest
payable hereon shall be the Initial Interest Rate).
Determination of Commercial Paper Rate. If the Base
Rate specified on the face hereof is the Commercial Paper Rate,
the Commercial Paper Rate with respect to this Note shall be
determined on each Interest Determination Date and shall be the
Money Market Yield (as defined herein) of the rate on such date
for commercial paper having the Index Maturity specified on the
face hereof, as such rate shall be published in H.15(519) under
the heading "Commercial Paper," or if not so published prior to
9:00 A.M., New York City time, on the Calculation Date pertaining
to such Interest Determination Date, the Commercial Paper Rate
shall be the Money Market Yield of the rate on such Interest
Determination Date for commercial paper of the Index Maturity
specified on the face hereof as published in Composite Quotations
under the heading "Commercial Paper." If neither of such rates
is published by 3:00 P.M., New York City time, on such
Calculation Date, then the Commercial Paper Rate shall be the
Money Market Yield of the arithmetic mean of the offered rates as
of 11:00 A.M., New York City time, on such Interest Determination
Date of three leading dealers in commercial paper in The City of
New York selected by the Calculation Agent for commercial paper
of the Index Maturity specified on the face hereof, placed for an
industrial issuer whose bond rating is " ," or the equivalent,
from a nationally recognized rating agency; provided, however,
that if the dealers selected as aforesaid by the Calculation
Agent are not quoting as mentioned in this sentence, the rate of
interest in effect for the applicable period will be the same as
the Commercial Paper Rate for the immediately preceding Interest
Reset Period (or, if there was no such Interest Reset Period, the
rate of interest payable hereon shall be the Initial Interest
Rate).
"Money Market Yield" shall be the yield calculated in
accordance with the following formula:
Money Market Yield = D x 360
------------- x 100
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial
paper quoted on a bank discount basis and expressed as a decimal
and "M" refers to the actual number of days in the Index Maturity
specified on the face hereof.
Determination of Federal Funds Rate. If the Base Rate
specified on the face hereof is the Federal Funds Rate, the
Federal Funds Rate with respect to this Note shall be determined
on each Interest Determination Date and shall be the rate on such
date for Federal Funds as published in H.15(519) under the
heading "Federal Funds (Effective)," or, if not so published by
9:00 A.M., New York City time, on the Calculation Date
pertaining to such Interest Determination Date, the Federal Funds
Rate will be the rate on such Interest Determination Date as
published in Composite Quotations under the heading "Federal
Funds/Effective Rate." If neither of such rates is published by
3:00 P.M., New York City time, on such Calculation Date, the
Federal Funds Rate for such Interest Determination Date will be
calculated by the Calculation Agent and will be the arithmetic
mean of the rates for the last transaction in overnight Federal
Funds as of 11:00 A.M., New York City time, on such Interest
Determination Date arranged by three leading brokers in Federal
Funds transactions in The City of New York selected by the
Calculation Agent; provided, however, that if the brokers
selected as aforesaid by the Calculation Agent are not quoting as
mentioned in this sentence, the rate of interest in effect for
the applicable period will be the same as the Federal Funds Rate
for the immediately preceding Interest Reset Period (or, if there
was no such Interest Reset Period, the rate of interest payable
hereon shall be the Initial Interest Rate).
Determination of LIBOR. If the Base Rate specified on
the face hereof is LIBOR, LIBOR with respect to this Note shall
be determined on each Interest Determination Date as follows:
(i) As of the Interest Determination Date, the
Calculation Agent shall determine the arithmetic mean of
the offered rates for deposits in United States dollars
for the period of the Index Maturity specified on the
face hereof which appear on the Reuters Screen LIBO Page
at approximately 11:00 A.M., London time, on such
Interest Determination Date. "Reuters Screen LIBO
Page," as used herein, means the display designated as
Page "LIBO" on the Reuters Monitor Money Rates Service
(or such other page as may replace the LIBO page on that
service for the purpose of displaying London interbank
offered rates of major banks).
<PAGE>
(ii) If fewer than two offered rates appear on the
Reuters Screen LIBO Page, the Calculation Agent will
request the principal London offices of each of four
major banks in the London interbank market, as selected
by the Calculation Agent, to provide the Calculation
Agent with its offered quotation for deposits in United
States dollars for the period of the Index Maturity,
specified on the face hereof, to prime banks in the
London interbank market at approximately 11:00 A.M.,
London time, on such Interest Determination Date and in
a principal amount of not less than U.S. $1,000,000 that
is representative for a single transaction in such
market at such time. If at least two such quotations
are provided, LIBOR will be the arithmetic mean of such
quotations. If fewer than two quotations are provided,
LIBOR in respect of such Interest Determination Date
will be the arithmetic mean of the rates quoted by three
major banks in The City of New York selected by the
Calculation Agent (after consultation with the Issuer)
at approximately 11:00 A.M., New York City time, on such
Interest Determination Date for loans in U.S. dollars to
leading European banks, for the period of the Index
Maturity and in a principal amount of not less than U.S.
$1,000,000 that is representative of a single
transaction in such market at such time; provided,
however, that if fewer than three banks selected as
aforesaid by the Calculation Agent are quoting as
mentioned in this sentence, LIBOR for such Interest
Reset Period will be the same as LIBOR for the
immediately preceding Interest Reset Period (or, if
there was no such Interest Reset Period, the rate of
interest payable hereon shall be the Initial Interest
Rate).
Determination of Prime Rate. If the Base Rate specified
on the face hereof is the Prime Rate, the Prime Rate with respect
to this Note shall be determined on each Interest Determination
Date and shall be the rate set forth in H.15(519) for such date
opposite the caption "Bank Prime Loan." If such rate is not so
published by 9:00 A.M., New York City time, on the Calculation
Date pertaining to such Interest Determination Date, the Prime
Rate for such Interest Determination Date will be the arithmetic
mean of the rates of interest publicly announced by each bank
named on the Reuters Screen NYMF Page (as defined below) as such
bank's prime rate or base lending rate as in effect for such
Interest Determination Date as quoted on the Reuters Screen NYMF
Page on such Interest Determination Date, or, if fewer than four
such rates appear on the Reuters Screen NYMF Page for such
Interest Determination Date, the rate shall be the arithmetic
mean of the prime rates quoted on the basis of the actual number
of days in the year divided by 360 as of the close of business on
such Interest Determination Date by at least two of the three
major money center banks in The City of New York selected by the
Calculation Agent from which quotations are requested. If fewer
than two quotations are provided, the Prime Rate shall be
calculated by the Calculation Agent and shall be determined as
the arithmetic mean on the basis of the prime rates in The City
of New York by the appropriate number of substitute banks or
trust companies organized and doing business under the laws of
the United States, or any State thereof, in each case having
total equity capital of at least U.S. $500 million and being
subject to supervision or examination by Federal or State
authority, selected by the Calculation Agent to quote such rate
or rates. "Reuters Screen NYMF Page" means the display
designated as Page "NYMF" on the Reuters Monitor Money Rates
Service (or such other page as may replace the NYMF Page on that
service for the purpose of displaying prime rates or base lending
rates of major United States banks).
If in any month or two consecutive months the Prime Rate
is not published in H.15(519) and the banks or trust companies
selected as aforesaid are not quoting as mentioned in the
preceding paragraph, the "Prime Rate" for such Interest Reset
Period will be the same as the Prime Rate for the immediately
preceding Interest Reset Period (or, if there was no such
Interest Reset Period, the rate of interest payable hereon shall
be the Initial Interest Rate). If this failure continues over
three or more consecutive months, the Prime Rate for each
succeeding Interest Determination Date until the maturity or
redemption or repayment of this Note or, if earlier, until this
failure ceases, shall be LIBOR determined as if the Base Rate
specified on the face hereof were LIBOR, and the Spread, if any,
shall be the number of basis points specified on the face hereof
as the "Alternate Rate Event Spread."
Determination of Treasury Rate. If the Base Rate
specified on the face hereof is the Treasury Rate, the Treasury
Rate with respect to this Note shall be determined on each
Interest Determination Date and shall be the rate for the auction
held on such date of direct obligations of the United States
("Treasury Bills") having the Index Maturity specified on the
face hereof, as published in H.15(519) under the heading
"Treasury Bills--auction average (investment)," or if not so
published by 9:00 A.M., New York City time, on the Calculation
Date pertaining to such Interest Determination Date, the auction
average rate on such Interest Determination Date (expressed as a
<PAGE>
bond equivalent, on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) as otherwise announced
by the United States Department of the Treasury. In the event
that the results of the auction of Treasury Bills having the
Index Maturity specified on the face hereof are not published or
reported as provided above by 3:00 P.M., New York City time, on
such Calculation Date or if no such auction is held on such
Interest Determination Date, then the Treasury Rate shall be
calculated by the Calculation Agent and shall be a yield to
maturity (expressed as a bond equivalent, on the basis of a year
of 365 or 366 days, as applicable, and applied on a daily basis)
calculated using the arithmetic mean of the secondary market bid
rates, as of approximately 3:30 P.M., New York City time, on such
Interest Determination Date, of three leading primary United
States government securities dealers selected by the Calculation
Agent for the issue of Treasury Bills with a remaining maturity
closest to the Index Maturity specified on the face hereof;
provided, however, that if the dealers selected as aforesaid by
the Calculation Agent are not quoting as mentioned in this
sentence, the Treasury Rate for such Interest Reset Date will be
the same as the Treasury Rate for the immediately preceding
Interest Reset Period (or, if there was no such Interest Reset
Period, the rate of interest payable hereon shall be the Initial
Interest Rate).
Notwithstanding the foregoing, the interest rate hereon
shall not be greater than the Maximum Interest Rate, if any, or
less than the Minimum Interest Rate, if any, specified on the
face hereof. The Calculation Agent shall calculate the interest
rate hereon in accordance with the foregoing on or before each
Calculation Date. The interest rate on this Note will in no
event be higher than the maximum rate permitted by New York law,
as the same may be modified by United States Federal law of
general application.
At the request of the holder hereof, the Calculation
Agent will provide to the holder hereof the interest rate hereon
then in effect and, if determined, the interest rate that will
become effective as of the next Interest Reset Date.
Interest payments on this Note will include interest
accrued to but excluding the Interest Payment Dates or the
Maturity Date (or any earlier redemption or repayment date), as
the case may be; provided, however, that if the Interest Reset
Period with respect to this Note is daily or weekly, interest
payable on any Interest Payment Date, other than interest payable
on any date on which principal hereof is payable, will include
interest accrued through and including the Record Date next
preceding the applicable Interest Payment Date. Accrued interest
hereon shall be an amount calculated by multiplying the face
amount hereof by an accrued interest factor. Such accrued
interest factor shall be computed by adding the interest factor
calculated for each day in the period for which interest is being
paid. The interest factor for each such date shall be computed
by dividing the interest rate applicable to such day by 360 if
the Base Rate is CD Rate, Commercial Paper Rate, Federal Funds
Rate, Prime Rate or LIBOR, as specified on the face hereof, or by
the actual number of days in the year if the Base Rate is the
Treasury Rate, as specified on the face hereof. All percentages
resulting from any calculation of the rate of interest on this
Note will be rounded, if necessary, to the nearest one
hundred-thousandth of a percentage point (.0000001), with five
one-millionths of a percentage point rounded upward, and all
dollar amounts used in or resulting from such calculation on this
Note will be rounded to the nearest cent (with one-half cent
rounded upward). The interest rate in effect on any Interest
Reset Date will be the applicable rate as reset on such date.
The interest rate applicable to any other day is the interest
rate from the immediately preceding Interest Reset Date (or, if
none, the Initial Interest Rate).
This Note and all the obligations of the Issuer
hereunder are direct, unsecured obligations of the Issuer and
rank without preference or priority among themselves and pari
passu with all other existing and future unsecured and
unsubordinated indebtedness of the Issuer, subject to certain
statutory exceptions in the event of liquidation upon insolvency.
This Note, and any Note or Notes issued upon transfer or
exchange hereof, is issuable only in fully registered form,
without coupons, and, if denominated in U.S. dollars, is issuable
only in denominations of U.S. $[ ] and any integral
multiple of U.S. $1,000 in excess thereof. If this Note is
denominated in a Specified Currency other than U.S. dollars,
then, unless a higher minimum denomination is required by
applicable law, it is issuable only in denominations of the
equivalent of U.S. $[ ] (rounded down to an integral
multiple of 1,000 units of such Specified Currency), or any
amount in excess thereof which is an integral multiple of 1,000
units of such Specified Currency, as determined by reference to
the noon dollar buying rate in New York City for cable transfers
of such Specified Currency published by the Federal Reserve Bank
of New York (the "Market Exchange Rate") on the Business Day
immediately preceding the date of issuance; provided, however, in
the case of ECUs, the Market Exchange Rate shall be the rate of
exchange determined by the Commission of the European Communities
<PAGE>
(or any successor thereto) as published in the Official Journal
of the European Communities, or any successor publication, on the
Business Day immediately preceding the date of issuance.
The Trustee has been appointed registrar for the Notes,
and the Trustee will maintain at its office in The City of New
York a register for the registration and transfer of Notes. This
Note may be transferred at the aforesaid office of the Trustee by
surrendering this Note for cancellation, accompanied by a written
instrument of transfer in form satisfactory to the Trustee and
duly executed by the registered holder hereof in person or by
the holder's attorney duly authorized in writing, and thereupon
the Trustee shall issue in the name of the transferee or
transferees, in exchange herefor, a new Note or Notes having
identical terms and provisions and having a like aggregate
principal amount in authorized denominations, subject to the
terms and conditions set forth herein; provided, however, that
the Trustee will not be required (i) to register the transfer of
or exchange any Note that has been called for redemption in whole
or in part, except the unredeemed portion of Notes being redeemed
in part, (ii) to register the transfer of or exchange any Note if
the holder thereof has exercised his right, if any, to require
the Issuer to repurchase such Note in whole or in part, except
the portion of such Note not required to be repurchased, or (iii)
to register the transfer of or exchange Notes to the extent and
during the period so provided in the Indenture with respect to
the redemption of Notes. Notes are exchangeable at said office
for other Notes of other authorized denominations of equal
aggregate principal amount having identical terms and provisions.
All such exchanges and transfers of Notes will be free of charge,
but the Issuer may require payment of a sum sufficient to cover
any tax or other governmental charge in connection therewith.
All Notes surrendered for exchange shall be accompanied by a
written instrument of transfer in form satisfactory to the
Trustee and executed by the registered holder in person or by the
holder's attorney duly authorized in writing. The date of
registration of any Note delivered upon any exchange or transfer
of Notes shall be such that no gain or loss of interest results
from such exchange or transfer.
In case any Note shall at any time become mutilated,
defaced or be destroyed, lost or stolen and such Note or evidence
of the loss, theft or destruction thereof (together with the
indemnity hereinafter referred to and such other documents or
proof as may be required in the premises) shall be delivered to
the Trustee, a new Note of like tenor will be issued by the
Issuer in exchange for the Note so mutilated or defaced, or in
lieu of the Note so destroyed or lost or stolen, but, in the case
of any destroyed or lost or stolen Note, only upon receipt of
evidence satisfactory to the Trustee and the Issuer that such
Note was destroyed or lost or stolen and, if required, upon
receipt also of indemnity satisfactory to each of them. All
expenses and reasonable charges associated with procuring such
indemnity and with the preparation, authentication and delivery
of a new Note shall be borne by the owner of the Note mutilated,
defaced, destroyed, lost or stolen.
The Indenture provides that, (a) if an Event of Default
(as defined in the Indenture) due to the default in payment of
principal of, or interest on, any series of debt securities
issued under the Indenture, including the series of Senior Notes
of which this Note forms a part, or due to the default in the
performance or breach of any other covenant or warranty of the
Issuer applicable to the debt securities of such series but not
applicable to all outstanding debt securities issued under the
Indenture shall have occurred and be continuing, either the
Trustee or the holders of not less than 25% in aggregate
principal amount of all affected debt securities issued under the
Indenture then outstanding (treated as one class) may then
declare the principal of all debt securities of all such series
and interest accrued thereon to be due and payable immediately
and (b) if an Event of Default due to a default in the
performance of any other of the covenants or agreements in the
Indenture applicable to all outstanding debt securities issued
thereunder, including this Note, or due to certain events of
bankruptcy, insolvency and reorganization of the Issuer, shall
have occurred and be continuing, either the Trustee or the
holders of not less than 25% in aggregate principal amount of all
debt securities issued under the Indenture then outstanding
(treated as one class) may declare the principal of all such debt
securities and interest accrued thereon to be due and payable
immediately, but upon certain conditions such declarations may be
annulled and past defaults may be waived (except a continuing
default in payment of principal of, or interest on, such debt
securities) by the holders of a majority in principal amount of
the debt securities of all affected series then outstanding.
The Indenture permits the Issuer and the Trustee, with
the consent of the holders of not less than a majority in
aggregate principal amount of the debt securities of all series
issued under the Indenture then outstanding and affected (voting
as one class), to execute supplemental indentures adding any
provisions to or changing in any manner the rights of the holders
of each series so affected; provided that the Issuer and the
Trustee may not, without the consent of the holder of each
outstanding debt security affected thereby, (a) extend the final
<PAGE>
maturity of any such debt security, or reduce the principal
amount thereof, or reduce the rate or extend the time of payment
of interest thereon, or reduce any amount payable on redemption
or repayment thereof, or change the currency of payment thereof,
or impair or affect the right of any holder to institute suit for
the payment thereof; or (b) reduce the aforesaid percentage in
principal amount of debt securities the consent of the holders of
which is required for any such supplemental indenture; or (c)
modify any of the foregoing provisions except to increase any
such percentage or to provide that other provisions cannot be
modified or waived without the consent of each affected holder.
Except as set forth below, if the principal of, premium,
if any, or interest on, this Note is payable in a Specified
Currency other than U.S. dollars and such Specified Currency is
not available to the Issuer for making payments hereon due to the
imposition of exchange controls or other circumstances beyond the
control of the Issuer or is no longer used by the government of
the country issuing such currency or for the settlement of
transactions by public institutions within the international
banking community, then the Issuer will be entitled to satisfy
its obligations to the holder of this Note by making such
payments in U.S. dollars on the basis of the Market Exchange Rate
on the date of such payment or, if the Market Exchange Rate is
not available on such date, as of the most recent practicable
date. Any payment made under such circumstances in U.S. dollars
where the required payment is in a Specified Currency other than
U.S. dollars will not constitute an Event of Default.
If payment in respect of this Note is required to be
made in ECUs and ECUs are unavailable due to the imposition of
exchange controls or other circumstances beyond the Issuer's
control or are no longer used in the European Monetary System,
then all payments in respect of this Note shall be made in U.S.
dollars until ECUs are again available or so used. The amount of
each payment in U.S. dollars shall be computed on the basis of
the equivalent of the ECU in U.S. dollars, determined as
described below, as of the second Business Day prior to the date
on which such payment is due.
The equivalent of the ECU in U.S. dollars as of any date
shall be determined by the Issuer or its agent on the following
basis. The component currencies of the ECU for this purpose (the
"Components") shall be the currency amounts that were components
of the ECU as of the last date on which the ECU was used in the
European Monetary System. The equivalent of the ECU in U.S.
dollars shall be calculated by aggregating the U.S. dollar
equivalents of the Components. The U.S. dollar equivalent of
each of the Components shall be determined by the Issuer or such
agent on the basis of the most recently available Market Exchange
Rates for such Components.
If the official unit of any Component is altered by way
of combination or subdivision, the number of units of that
currency as a Component shall be divided or multiplied in the
same proportion. If two or more Components are consolidated into
a single currency, the amounts of those currencies as Components
shall be replaced by an amount in such single currency equal to
the sum of the appropriate amounts of the consolidated component
currencies expressed in such single currency. If any Component
is divided into two or more currencies, the amount of the
original component currency shall be replaced by the appropriate
amounts of such two or more currencies, the sum of which shall be
equal to the amount of the original component currency.
All determinations referred to above made by the Issuer
or its agent shall be at its sole discretion and shall, in the
absence of manifest error, be conclusive to the extent permitted
by law for all purposes and binding on the holder of this Note.
So long as this Note shall be outstanding, the Issuer
will cause to be maintained an office or agency for the payment
of the principal of and premium, if any, and interest on this
Note as herein provided in the Borough of Manhattan, The City of
New York, and an office or agency in said Borough of Manhattan
for the registration, transfer and exchange as aforesaid of the
Notes. The Issuer may designate other agencies for the payment
of said principal, premium and interest at such place or places
(subject to applicable laws and regulations) as the Issuer may
decide. So long as there shall be such an agency, the Issuer
shall keep the Trustee advised of the names and locations of such
agencies, if any are so designated.
With respect to moneys paid by the Issuer and held by
the Trustee or any Paying Agent for payment of the principal of
or interest or premium, if any, on any Notes that remain
unclaimed at the end of two years after such principal, interest
or premium shall have become due and payable (whether at maturity
or upon call for redemption or otherwise), (i) the Trustee or
such Paying Agent shall notify the holders of such Notes that
such moneys shall be repaid to the Issuer and any person claiming
such moneys shall thereafter look only to the Issuer for payment
thereof and (ii) such moneys shall be so repaid to the Issuer.
Upon such repayment all liability of the Trustee or such Paying
Agent with respect to such moneys shall thereupon cease, without,
however, limiting in any way any obligation that the Issuer may
<PAGE>
have to pay the principal of or interest or premium, if any, on
this Note as the same shall become due.
No provision of this Note or of the Indenture shall
alter or impair the obligation of the Issuer, which is absolute
and unconditional, to pay the principal of, premium, if any, and
interest on this Note at the time, place and rate, and in the
coin or currency, herein prescribed unless otherwise agreed
between the Issuer and the registered holder of this Note.
Prior to due presentment of this Note for registration
of transfer, the Issuer, the Trustee and any agent of the Issuer
or the Trustee may treat the holder in whose name this Note is
registered as the owner hereof for all purposes, whether or not
this Note be overdue, and none of the Issuer, the Trustee or any
such agent shall be affected by notice to the contrary.
No recourse under or upon any obligation, covenant or
agreement contained in the Indenture, or in this Note, or because
of the indebtedness evidenced hereby, shall be had against any
incorporator, as such, or against any past, present or future
stockholder, officer or director, as such, of the Issuer or of
any successor, either directly or through the Issuer or any
successor, 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,
by the acceptance hereof and as part of the consideration for the
issuance hereof, expressly waived and released.
This Note shall for all purposes be governed by, and
construed in accordance with, the laws of the State of New York.
All terms used in this Note which are defined in the
Indenture and not otherwise defined herein shall have the
meanings assigned to them in the Indenture.
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the
inscription on the face of this instrument, shall be construed as
though they were written out in full according to applicable laws
or regulations:
TEN COM-as tenants in common
TEN ENT-as tenants by the entireties
JT TEN-as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT-...........Custodian...............
(Cust.) (Minor)
Under Uniform Gifts to Minors Act....................
(State)
Additional abbreviations may also be used though not in
the above list.
------------------------
<PAGE>
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 TYPE NAME AND ADDRESS, INCLUDING ZIP CODE OF
ASSIGNEE]
- -------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably
- -------------------------------------------------------------
constituting and appointing such person attorney to transfer
- -------------------------------------------------------------
such Note on the books of the Issuer, 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 Note in
every particular without alteration or enlargement or
any change whatsoever.
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and
instructs the Issuer to repay the within Note (or portion thereof
specified below) pursuant to its terms at a price equal to the
principal amount thereof, together with interest to the Optional
Repayment Date, to the undersigned at
- -------------------------------------------------------------
- -------------------------------------------------------------
- -------------------------------------------------------------
(Please print or typewrite
name and address of the undersigned)
If less than the entire principal amount of the within
Note is to be repaid, specify the portion thereof which the
holder elects to have repaid:___________________________; and
specify the denomination or denominations (which shall not be
less than the minimum authorized denomination) of the Notes to be
issued to the holder for the portion of the within Note not being
repaid (in the absence of any such specification, one such Note
will be issued for the portion not being repaid):________________
_________________________.
Dated: ____________________ _______________________________
NOTICE: The signature on this
Option to Elect Repayment must
correspond with the name as written
upon the face of the within
instrument in every particular
without alteration or enlargement.
EXHIBIT 4.5
[FORM OF FACE OF SECURITY]
Fixed Rate Note
REGISTERED REGISTERED
No. FXR [PRINCIPAL AMOUNT]
CUSIP: *
Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street,
New York, New York) to the issuer or its agent for registration of
transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust
Company (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of the
Depository Trust Company), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL in as much
as the registered owner hereof, Cede & Co., has an interest
herein.*
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "ORIGINAL YIELD TO
MATURITY" AND "INITIAL ACCRUAL PERIOD OID" (COMPUTED UNDER THE
APPROXIMATE METHOD) SET FORTH BELOW HAVE BEEN COMPLETED SOLELY
FOR THE PURPOSES OF APPLYING THE FEDERAL INCOME TAX ORIGINAL
ISSUE DISCOUNT ("OID") RULES.
LORAL CORPORATION
SUBORDINATED NOTE, SERIES
(Fixed Rate)
ORIGINAL INITIAL REDEMPTION INTEREST RATE: ORIGINAL
ISSUE DATE: DATE: MATURITY
APPLICABILITY OF DATE:
INTEREST INITIAL REDEMPTION MODIFIED PAYMENT
ACCRUAL DATE: PERCENTAGE: UPON ACCELERATION: OPTIONAL
REPAYMENT
TOTAL AMOUNT ANNUAL REDEMPTION If yes, state DATE(S):
OF OID: PERCENTAGE Issue Price:
REDUCTION:
ORIGINAL YIELD SINKING SPECIFIED APPLICA-
TO MATURITY: FUND: CURRENCY: BILITY OF
ANNUAL
INITIAL ACCRUAL INTEREST
PERIOD OID: PAYMENTS:
* Applies only if this Note is a Registered Global Security.
<PAGE>
APPLICABILITY
OF ISSUER'S
OPTION TO
EXTEND ORIGINAL
MATURITY DATE:
If yes, state
Final Maturity
Date:
<PAGE>
Loral Corporation, a New York corporation (together with its
successors and assigns, the "Issuer"), for value received, hereby
promises to pay to , or registered assignees, the
principal sum of , on the Original Maturity Date
specified above or, if the maturity hereof is extended in
accordance with the procedures set forth below to an Extended
Maturity Date, as defined below, on such Extended Maturity Date
(except to the extent previously redeemed or repaid) and to pay
interest thereon at the Interest Rate per annum specified above or,
if the interest rate hereon is reset or re-established in
connection with an extension of maturity in accordance with the
procedures specified on the reverse hereof, at the interest rate
per annum determined pursuant to such procedures, from the Interest
Accrual Date specified above until the principal hereof is paid or
duly made available for payment (except as provided below),
semiannually in arrears on the first day of and in
each year (each such date an "Interest Payment Date") commencing on
the Interest Payment Date next succeeding the Interest Accrual Date
specified above, and at maturity (or on any redemption or repayment
date); provided, however, that if the Interest Accrual Date occurs
between a Record Date, as defined below, and the next succeeding
Interest Payment Date, interest payments will commence on the
second Interest Payment Date succeeding the Interest Accrual Date
to the registered holder of this Note on the Record Date with
respect to such second Interest Payment Date; and provided,
further, that if this Note is subject to "Annual Interest
Payments," interest payments shall be made annually in arrears and
the term "Interest Payment Date" shall be deemed to mean the first
day of in each year.
Interest on this Note will accrue from the most recent
Interest Payment Date to which interest has been paid or duly
provided for, or, if no interest has been paid or duly provided
for, from the Interest Accrual Date, until the principal hereof has
been paid or duly made available for payment (except as provided
below). The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, subject to certain
exceptions, be paid to the person in whose name this Note (or one
or more predecessor Notes) is registered at the close of business
on the date 15 calendar days prior to such Interest Payment Date
(whether or not a Business Day) (each such date a "Record Date");
provided, however, that interest payable at maturity (or on any
redemption or repayment date) will be payable to the person to whom
the principal hereof shall be payable. As used herein, "Business
Day" means any day, other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which banking institutions are
authorized or required by law or regulation to close in The City
of New York and (i) with respect to Notes denominated in a
Specified Currency other than U.S. dollars, Australian dollars or
European Currency Units ("ECUs"), in the capital city of the
country of the Specified Currency, (ii) with respect to Notes
denominated in Australian dollars, in Sydney and (iii) with respect
to Notes denominated in ECUs, in Luxembourg and that is not a
non-ECU clearing day, as determined by the ECU Banking Association
in Paris.
Payment of the principal of this Note, any premium and the
interest due at maturity (or on any redemption or repayment date)
will be made in immediately available funds upon surrender of this
Note at the office or agency of the Paying Agent, as defined on the
reverse hereof, maintained for that purpose in the Borough of
Manhattan, The City of New York, or at such other paying agency as
the Issuer may determine. Payment of the principal of and premium,
if any, and interest on this Note will be made in the Specified
Currency indicated above; provided, however, that U.S. dollar
payments of interest, other than interest due at maturity or on any
date of redemption of repayment, will be made by U.S. dollar check
mailed to the address of the person entitled thereto as such
address shall appear in the Note register. A holder of U.S.
$10,000,000 or more in aggregate principal amount of Notes having
the same Interest Payment Date will be entitled to receive payments
of interest, other than interest due at maturity or on any date of
redemption or repayment, by wire transfer of immediately available
funds if appropriate wire transfer instructions have been received
by the Paying Agent in writing not less than 15 calendar days prior
to the applicable Interest Payment Date. If this Note is
denominated in a Specified Currency other than U.S. dollars,
payments of interest hereon will be made by wire transfer of
immediately available funds to an account maintained by the holder
hereof with a bank located outside the United States if appropriate
wire transfer instructions have been received by the Paying Agent
in writing not less than 15 calendar days prior to the applicable
Interest Payment Date. If such wire transfer instructions are not
so received, such interest payments will be made by check payable
in such Specified Currency mailed to the address of the person
entitled thereto as such address shall appear in the Note register.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this
place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual
signature, this Note shall not be entitled to any benefit under the
<PAGE>
Indenture, as defined on the reverse hereof, or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed under its corporate seal.
DATED: LORAL CORPORATION
By
------------------------
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK
as Trustee
By
------------------------
Authorized Officer
<PAGE>
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Subordinated
Notes, Series , having maturities more than nine months from the
date of issue (the "Notes") of the Issuer. The Notes are issuable
under an indenture (the "Indenture"), dated as of May 1, 1994,
between the Issuer and The Bank of New York, as "Trustee," which
term includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights, limitations
of rights, duties and immunities of the Issuer, the Trustee and
holders of the Notes and the terms upon which the Notes are, and
are to be, authenticated and delivered. The Issuer has appointed
Mellon Securities Transfer at its office in The City of New York as
the paying agent (the "Paying Agent," which term includes any
additional or successor Paying Agent appointed by the Issuer) with
respect to the Notes. The terms of individual Notes may vary with
respect to interest rates, interest rate formulas, issue dates,
maturity dates or otherwise, all as provided in the Indenture. To
the extent not inconsistent herewith, the terms of the Indenture
are hereby incorporated by reference herein.
This Note shall be subordinated in right of payment to all
Senior Indebtedness of the Company (as defined in the Indenture).
Unless otherwise provided on the face hereof, this Note will
not be subject to any sinking fund. If so indicated on the face of
this Note, this Note will be subject to a sinking fund in
accordance with the following terms: [insert terms]. Unless
otherwise provided on the face hereof in accordance with the
provisions of the following two paragraphs, this Note will not be
redeemable or subject to repayment at the option of the holder
prior to maturity.
If so indicated on the face of this Note, this Note may be
redeemed in whole or in part at the option of the Issuer on or
after the Initial Redemption Date specified on the face hereof on
the terms set forth on the face hereof, together with interest
accrued and unpaid hereon to the date of redemption (except as
provided below). If this Note is subject to "Annual Redemption
Percentage Reduction," the Initial Redemption Percentage indicated
on the face hereof will be reduced on each anniversary of the
Initial Redemption Date by the Annual Redemption Percentage
Reduction specified on the face hereof until the redemption price
of this Note is 100% of the principal amount hereof, together with
interest accrued and unpaid hereon to the date of redemption
(except as provided below). Notice of redemption shall be mailed
by first class mail, postage prepaid, to the registered holders of
the Notes designated for redemption at their addresses as the same
shall appear on the Note register not less than 30 nor more than 60
days prior to the date fixed for redemption, subject to all the
conditions and provisions of the Indenture. In the event of
redemption of this Note in part only, a new Note or Notes for the
amount of the unredeemed portion hereof shall be issued in the name
of the holder hereof upon the cancellation hereof.
Notwithstanding the foregoing, this Note may be redeemed in
accordance with the terms of any Extension Notice, as defined
below, sent to the holder hereof as described below.
If so indicated on the face of this Note, this Note will be
subject to repayment at the option of the holder on the Optional
Repayment Date or Dates specified on the face hereof on the terms
set forth herein. On any Optional Repayment Date, this Note will
be repayable in whole or in part in increments of $1,000 or, if
this Note is denominated in a Specified Currency other than U.S.
dollars, in increments of 1,000 units of such Specified Currency
(provided that any remaining principal amount hereof shall not be
less than the minimum authorized denomination hereof) at the option
of the holder hereof at a price equal to 100% of the principal
amount to be repaid, together with interest accrued and unpaid
hereon to the date of repayment (except as provided below). For
this Note to be repaid at the option of the holder hereof, the
Paying Agent must receive at its office in the Borough of
Manhattan, The City of New York, at least 15 but not more than 30
days prior to the date of repayment, (i) this Note with the form
entitled "Option to Elect Repayment" below duly completed or (ii)
a telegram, facsimile transmission or a letter from a member of a
national securities exchange or the National Association of
Securities Dealers, Inc. or a commercial bank or a trust company in
the United States setting forth the name of the holder of this
Note, the principal amount hereof, the certificate number of this
Note or a description of this Note's tenor and terms, the principal
amount hereof to be repaid, a statement that the option to elect
repayment is being exercised thereby and a guarantee that this
Note, together with the form entitled "Option to Elect Repayment"
duly completed, will be received by the Paying Agent not later than
the fifth Business Day after the date of such telegram, facsimile
transmission or letter; provided, that such telegram, facsimile
transmission or letter shall only be effective if this Note and
form duly completed are received by the Paying Agent by such fifth
Business Day. Exercise of such repayment option by the holder
hereof shall be irrevocable. In the event of repayment of this
Note in part only, a new Note or Notes for the amount of the unpaid
<PAGE>
portion hereof shall be issued in the name of the holder hereof
upon the cancellation hereof.
If so indicated on the face of this Note, the Issuer has the
option to extend the Original Maturity Date hereof for one or more
periods of one or more whole years (each an "Extension Period") up
to but not beyond the Final Maturity Date specified on the face
hereof and in connection therewith to establish a new interest rate
and new redemption provisions for the Extension Period.
The Issuer may exercise such option by notifying the Paying
Agent of such exercise at least 45 but not more than 60 days prior
to the Original Maturity Date or, if the maturity hereof has
already been extended, prior to the maturity date then in effect
(an "Extended Maturity Date"), such notice to be accompanied by the
form of the Extension Notice referred to below. No later than 30
days prior to the Original Maturity Date or an Extended Maturity
Date, as the case may be (each, a "Maturity Date"), the Paying
Agent will mail to the holder hereof a notice (the "Extension
Notice") relating to such Extension Period, by first class mail,
postage prepaid, setting forth (a) the election of the Issuer to
extend the maturity of this Note; (b) the new Extended Maturity
Date; (c) the interest rate applicable to the Extension Period; and
(d) the provisions, if any, for redemption during the Extension
Period, including the date or dates on which, the period or periods
during which and the price or prices at which such redemption may
occur during the Extension Period. Upon the mailing by the Paying
Agent of an Extension Notice to the holder of this Note, the
maturity hereof shall be extended automatically, and, except as
modified by the Extension Notice and as described in the next
paragraph, this Note will have the same terms it had prior to the
mailing of such Extension Notice.
Notwithstanding the foregoing, not later than 10:00 A.M., New
York City time, on the twentieth calendar day prior to the Maturity
Date in effect immediately preceding the mailing of the applicable
Extension Notice (or if such day is not a Business Day, not later
than 10:00 A.M., New York City time, on the immediately succeeding
Business Day), the Issuer may, at its option, revoke the interest
rate provided for in such Extension Notice and establish a higher
interest rate for the Extension Period by causing the Paying Agent
to send notice of such higher interest rate to the holder of this
Note by first class mail, postage prepaid, or by such other means
as shall be agreed between the Issuer and the Paying Agent. Such
notice shall be irrevocable. All Notes with respect to which the
Maturity Date is extended in accordance with an Extension Notice
will bear such higher interest rate for the Extension Period,
whether or not tendered for repayment.
If the Issuer elects to extend the maturity hereof, the holder
of this Note will have the option to require the Issuer to repay
this Note on the Maturity Date in effect immediately preceding the
mailing of the applicable Extension Notice at a price equal to the
principal amount hereof plus any accrued and unpaid interest to
such date. In order for this Note to be so repaid on such Maturity
Date, the holder hereof must follow the procedures set forth above
for optional repayment, except that the period for delivery of this
Note or notification to the Paying Agent shall be at least 25 but
not more than 35 days prior to the Maturity Date in effect
immediately preceding the mailing of the applicable Extension
Notice and except that if the holder hereof has tendered this Note
for repayment pursuant to this paragraph he may, by written notice
to the Paying Agent, revoke any such tender for repayment until
3:00 P.M., New York City time, on the twentieth calendar day prior
to the Maturity Date then in effect (or, if such day is not a
Business Day, until 3:00 P.M., New York City time, on the
immediately succeeding Business Day).
Interest payments on this Note will include interest accrued
to but excluding the Interest Payment Dates or the Maturity Date
(or any earlier redemption or repayment date), as the case may be.
Interest payments for this Note will be computed and paid on the
basis of a 360-day year of twelve 30-day months.
In the case where the Interest Payment Date or the Maturity
Date (or any redemption or repayment date) does not fall on a
Business Day, payment of interest, premium, if any, or principal
otherwise payable on such date need not be made on such date, but
may be made on the next succeeding Business Day with the same force
and effect as if made on the Interest Payment Date or on the
Maturity Date (or any redemption or repayment date), and no
interest on such payment shall accrue for the period from and after
the Interest Payment Date or the Maturity Date (or any redemption
or repayment date) to such next succeeding Business Day.
This Note and all the obligations of the Issuer hereunder are
direct, unsecured obligations of the Issuer and rank without
preference or priority among themselves and pari passu with all
other existing and future unsecured and unsubordinated indebtedness
of the Issuer, subject to certain statutory exceptions in the event
of liquidation upon insolvency.
This Note, and any Note or Notes issued upon transfer or
exchange hereof, is issuable only in fully registered form, without
coupons, and, if denominated in U.S. dollars, is issuable only in
denominations of U.S. $[ ] and any integral multiple of U.S.
<PAGE>
$1,000 in excess thereof. If this Note is denominated in a
Specified Currency other than U.S. dollars, then, unless a higher
minimum denomination is required by applicable law, it is issuable
only in denominations of the equivalent of U.S. $[ ] (rounded
down to an integral multiple of 1,000 units of such Specified
Currency), or any amount in excess thereof which is an integral
multiple of 1,000 units of such Specified Currency, as determined
by reference to the noon dollar buying rate in New York City for
cable transfers of such Specified Currency published by the Federal
Reserve Bank of New York (the "Market Exchange Rate") on the
Business Day immediately preceding the date of issuance; provided,
however, in the case of ECUs, the Market Exchange Rate shall be
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, or any successor publication,
on the Business Day immediately preceding the date of issuance.
The Trustee has been appointed registrar for the Notes, and
the Trustee will maintain at its office in The City of New York a
register for the registration and transfer of Notes. This Note may
be transferred at the aforesaid office of the Trustee by
surrendering this Note for cancellation, accompanied by a written
instrument of transfer in form satisfactory to the Trustee and duly
executed by the registered holder hereof in person or by the
holder's attorney duly authorized in writing, and thereupon the
Trustee shall issue in the name of the transferee or transferees,
in exchange herefor, a new Note or Notes having identical terms and
provisions and having a like aggregate principal amount in
authorized denominations, subject to the terms and conditions set
forth herein; provided, however, that the Trustee will not be
required (i) to register the transfer of or exchange any Note that
has been called for redemption in whole or in part, except the
unredeemed portion of Notes being redeemed in part, (ii) to
register the transfer of or exchange any Note if the holder thereof
has exercised his right, if any, to require the Issuer to
repurchase such Note in whole or in part, except the portion of
such Note not required to be repurchased, or (iii) to register the
transfer of or exchange Notes to the extent and during the period
so provided in the Indenture with respect to the redemption of
Notes. Notes are exchangeable at said office for other Notes of
other authorized denominations of equal aggregate principal amount
having identical terms and provisions. All such exchanges and
transfers of Notes will be free of charge, but the Issuer may
require payment of a sum sufficient to cover any tax or other
governmental charge in connection therewith. All Notes surrendered
for exchange shall be accompanied by a written instrument of
transfer in form satisfactory to the Trustee and executed by the
registered holder in person or by the holder's attorney duly
authorized in writing. The date of registration of any Note
delivered upon any exchange or transfer of Notes shall be such that
no gain or loss of interest results from such exchange or transfer.
In case any Note shall at any time become mutilated, defaced
or be destroyed, lost or stolen and such Note or evidence of the
loss, theft or destruction thereof (together with the indemnity
hereinafter referred to and such other documents or proof as may be
required in the premises) shall be delivered to the Trustee, a new
Note of like tenor will be issued by the Issuer in exchange for the
Note so mutilated or defaced, or in lieu of the Note so destroyed
or lost or stolen, but, in the case of any destroyed or lost or
stolen Note, only upon receipt of evidence satisfactory to the
Trustee and the Issuer that such Note was destroyed or lost or
stolen and, if required, upon receipt also of indemnity
satisfactory to each of them. All expenses and reasonable charges
associated with procuring such indemnity and with the preparation,
authentication and delivery of a new Note shall be borne by the
owner of the Note mutilated, defaced, destroyed, lost or stolen.
The Indenture provides that, (a) if an Event of Default (as
defined in the Indenture) due to the default in payment of
principal of, or interest on, any series of debt securities issued
under the Indenture, including the series of Senior Notes of which
this Note forms a part, or due to the default in the performance or
breach of any other covenant or warranty of the Issuer applicable
to the debt securities of such series but not applicable to all
outstanding debt securities issued under the Indenture shall have
occurred and be continuing, either the Trustee or the holders of
not less than 25% in aggregate principal amount of all affected
debt securities issued under the Indenture then outstanding
(treated as one class) may then declare the principal of all debt
securities of all such series and interest accrued thereon to be
due and payable immediately and (b) if an Event of Default due to
a default in the performance of any other of the covenants or
agreements in the Indenture applicable to all outstanding debt
securities issued thereunder, including this Note, or due to
certain events of bankruptcy, insolvency and reorganization of the
Issuer, shall have occurred and be continuing, either the Trustee
or the holders of not less than 25% in aggregate principal amount
of all debt securities issued under the Indenture then outstanding
(treated as one class) may declare the principal of all such debt
securities and interest accrued thereon to be due and payable
immediately, but upon certain conditions such declarations may be
annulled and past defaults may be waived (except a continuing
default in payment of principal of, or interest on, such debt
securities) by the holders of a majority in principal amount of the
debt securities of all affected series then outstanding.
<PAGE>
If the face hereof indicates that this Note is subject to
"Modified Payment upon Acceleration," then (i) if the principal
hereof is declared to be due and payable as described in the
preceding paragraph, the amount of principal due and payable with
respect to this Note shall be limited to the aggregate principal
amount hereof multiplied by the sum of the Issue Price specified on
the face hereof (expressed as a percentage of the aggregate
principal amount) plus the original issue discount amortized from
the Interest Accrual Date to the date of declaration, which
amortization shall be calculated using the "interest method"
(computed in accordance with generally accepted accounting
principles in effect on the date of declaration), (ii) for the
purpose of any vote of securityholders taken pursuant to the
Indenture prior to the acceleration of payment of this Note, the
principal amount hereof shall equal the amount that would be due
and payable hereon, calculated as set forth in clause (i) above, if
this Note were declared to be due and payable on the date of any
such vote and (iii) for the purpose of any vote of securityholders
taken pursuant to the Indenture following the acceleration of
payment of this Note, the principal amount hereof shall equal the
amount of principal due and payable with respect to this Note,
calculated as set forth in clause (i) above.
The Indenture permits the Issuer and the Trustee, with the
consent of the holders of not less than a majority in aggregate
principal amount of the debt securities of all series issued under
the Indenture then outstanding and affected (voting as one class),
to execute supplemental indentures adding any provisions to or
changing in any manner the rights of the holders of each series so
affected; provided that the Issuer and the Trustee may not, without
the consent of the holder of each outstanding debt security
affected thereby, (a) extend the final maturity of any such debt
security, or reduce the principal amount thereof, or reduce the
rate or extend the time of payment of interest thereon, or reduce
any amount payable on redemption or repayment thereof, or change
the currency of payment thereof, or impair or affect the right of
any holder to institute suit for the payment thereof; or (b) reduce
the aforesaid percentage in principal amount of debt securities the
consent of the holders of which is required for any such
supplemental indenture; or (c) modify any of the foregoing
provisions except to increase any such percentage or to provide
that other provisions cannot be modified or waived without the
consent of each affected holder.
Except as set forth below, if the principal of, premium, if
any, or interest on, this Note is payable in a Specified Currency
other than U.S. dollars and such Specified Currency is not
available to the Issuer for making payments hereon due to the
imposition of exchange controls or other circumstances beyond the
control of the issuer or is no longer used by the government of the
country issuing such currency or for the settlement of transactions
by public institutions within the international banking community,
then the Issuer will be entitled to satisfy its obligations to the
holder of this Note by making such payments in U.S. dollars on the
basis of the Market Exchange Rate on the date of such payment or,
if the Market Exchange Rate is not available on such date, as of
the most recent practicable date. Any payment made under such
circumstances in U.S. dollars where the required payment is in a
Specified Currency other than U.S. dollars will not constitute an
Event of Default.
If payment in respect of this Note is required to be made in
ECUs and ECUs are unavailable due to the imposition of exchange
controls or other circumstances beyond the Issuer's control or are
no longer used in the European Monetary System, then all payments
in respect of this Note shall be made in U.S. dollars until ECUs
are again available or so used. The amount of each payment in U.S.
dollars shall be computed on the basis of the equivalent of the ECU
in U.S. dollars, determined as described below, as of the second
Business Day prior to the date on which such payment is due.
The equivalent of the ECU in U.S. dollars as of any date shall
be determined by the Issuer or its agent on the following basis.
The component currencies of the ECU for this purpose (the
"Components") shall be the currency amounts that were components of
the ECU as of the last date on which the ECU was used in the
European Monetary System. The equivalent of the ECU in U.S.
dollars shall be calculated by aggregating the U.S. dollar
equivalents of the Components. The U.S. dollar equivalent of each
of the Components shall be determined by the Issuer or such agent
on the basis of the most recently available Market Exchange Rates
for such Components.
If the official unit of any Component is altered by way of
combination or subdivision, the number of units of that currency as
a Component shall be divided or multiplied in the same proportion.
If two or more Components are consolidated into a single currency,
the amounts of those currencies as Components shall be replaced by
an amount in such single currency equal to the sum of the
appropriate amounts of the consolidated component currencies
expressed in such single currency. If any Component is divided
into two or more currencies, the amount of the original component
currency shall be replaced by the appropriate amounts of such two
or more currencies, the sum of which shall be equal to the amount
of the original component currency.
<PAGE>
All determinations referred to above made by the Issuer or its
agent shall be at its sole discretion and shall, in the absence of
manifest error, be conclusive to the extent permitted by law for
all purposes and binding on the holder of this Note.
So long as this Note shall be outstanding, the Issuer will
cause to be maintained an office or agency for the payment of the
principal of and premium, if any, and interest on this Note as
herein provided in the Borough of Manhattan, The City of New York,
and an office or agency in said Borough of Manhattan for the
registration, transfer and exchange as aforesaid of the Notes. The
Issuer may designate other agencies for the payment of said
principal, premium and interest at such place or places (subject to
applicable laws and regulations) as the Issuer may decide. So long
as there shall be such an agency, the Issuer shall keep the Trustee
advised of the names and locations of such agencies, if any are so
designated.
With respect to moneys paid by the Issuer and held by the
Trustee or any Paying Agent for payment of the principal of or
interest or premium, if any, on any Notes that remain unclaimed at
the end of two years after such principal, interest or premium
shall have become due and payable (whether at maturity or upon call
for redemption or otherwise), (i) the Trustee or such Paying Agent
shall notify the holders of such Notes that such moneys shall be
repaid to the Issuer and any person claiming such moneys shall
thereafter look only to the Issuer for payment thereof and (ii)
such moneys shall be so repaid to the Issuer. Upon such repayment
all liability of the Trustee or such Paying Agent with respect to
such moneys shall thereupon cease, without, however, limiting in
any way any obligation that the Issuer may have to pay the
principal of or interest or premium, if any, on this Note as the
same shall become due.
No provision of this Note or of the Indenture shall alter or
impair the obligation of the Issuer, which is absolute and
unconditional, to pay the principal of, premium, if any, and
interest on this Note at the time, place and rate, and in the coin
and currency, herein prescribed unless otherwise agreed between the
Issuer and the registered holder of this Note.
Prior to due presentment of this Note for registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or
the Trustee may treat the holder in whose name this Note is
registered as the owner hereof for all purposes, whether or not
this Note be overdue, and none of the Issuer, the Trustee or any
such agent shall be affected by notice to the contrary.
No recourse under or upon any obligation, covenant or
agreement contained in the Indenture, or in this Note, or because
of the indebtedness evidenced hereby, shall be had against any
incorporator, as such, or against any past, present or future
stockholder, officer or director, as such, of the Issuer or of any
successor, either directly or through the Issuer or any successor,
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, by the
acceptance hereof and as part of the consideration for the issuance
hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed
in accordance with, the laws of the State of New York.
All terms used in this Note which are defined in the Indenture
and not otherwise defined herein shall have the meanings assigned
to them in the Indenture.
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were
written out in full according to applicable laws or regulations:
TEN COM-as tenants in common
TEN ENT-as tenants by the entireties
JT TEN-as joint tenants with right of survivorship
and not as tenants in common
UNIF GIF MIN ACT-.............Custodian...............
(Cust) (Minor)
Under Uniform Gifts to Minors Act.....................
(State)
Additional abbreviations may also be used though not in
the above list.
------------------------
<PAGE>
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 TYPE NAME AND ADDRESS, INCLUDING ZIP CODE OF
ASSIGNEE]
- -------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably
- -------------------------------------------------------------
constituting and appointing such person attorney to transfer
- -------------------------------------------------------------
such Note on the books of the Issuer, 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 Note in every
particular without alteration or enlargement or any
change whatsoever.
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs
the Issuer to repay the within Note (or portion thereof specified
below) pursuant to its terms at a price equal to the principal
amount thereof, together with interest to the Optional Repayment
Date, to the undersigned at
- ------------------------------------------------------------------
- ------------------------------------------------------------------
- ------------------------------------------------------------------
(Please print or typewrite
name and address of the undersigned)
If less than the entire principal amount of the within
Note is to be repaid, specify the portion thereof which the holder
elects to have repaid:_________________________; and specify the
denomination or denominations (which shall not be less than the
minimum authorized denomination) of the Notes to be issued to the
holder for the portion of the within Note not being repaid (in the
absence of any such specification, one such Note will be issued for
the portion not being repaid):_________________________.
Dated:________________________ ______________________________
NOTICE: The signature on this
Option to Elect Repayment must
correspond with the name as
written upon the face of the
within instrument in every
particular without alteration or
enlargement.
EXHIBIT 4.6
OPTIONS REPRESENTED BY BRACKETED OR BLANK SECTIONS
HEREIN SHALL BE DETERMINED IN CONFORMITY WITH THE
APPLICABLE PROSPECTUS SUPPLEMENT OR SUPPLEMENTS
LORAL CORPORATION
and
____________________________
Debt Warrant Agent
DEBT WARRANT AGREEMENT
Dated as of _________________
<PAGE>
TABLE OF CONTENTS*
Page
PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
ARTICLE I
ISSUANCE OF DEBT WARRANTS AND EXECUTION AND DELIVERY
OF DEBT WARRANT CERTIFICATES
1.01. Issuance of Debt Warrants.. . . . . . . . . . . .1
1.02. Form and Execution of Debt Warrant
Certificates. . . . . . . . . . . . . . . . . .2
1.03. Issuance and Delivery of Debt Warrant
Certificates. . . . . . . . . . . . . . . . . .3
1.05. Payment of Taxes. . . . . . . . . . . . . . . . .4
1.06. "Holder". . . . . . . . . . . . . . . . . . . . .4
ARTICLE II
DURATION AND EXERCISE OF DEBT WARRANTS
2.01. Duration of Debt Warrants . . . . . . . . . . . .5
2.02. Exercise of Debt Warrants . . . . . . . . . . . .5
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
OF DEBT WARRANTS
3.01. No Rights as Holder of Underlying Debt Security
Conferred by Debt Warrants or Debt Warrant
Certificates. . . . . . . . . . . . . . . . . .7
3.02. Lost, Stolen, Destroyed or Mutilated Debt
Warrant Certificates. . . . . . . . . . . . . .7
3.03. Holder of Debt Warrants May Enforce Rights. . . .7
__________________________
* The Table of Contents is not part of the Debt Warrant
Agreement.
<PAGE>
ARTICLE IV
EXCHANGE AND TRANSFER OF DEBT WARRANTS
4.01. [Debt Warrant Register;] Exchange and Transfer
of Debt Warrants. . . . . . . . . . . . . . . .8
4.02. Treatment of Holders of Debt Warrants . . . . . .9
4.03. Cancellation of Debt Warrant Certificates . . . .9
ARTICLE V
CONCERNING THE DEBT WARRANT AGENT
5.01. Debt Warrant Agent. . . . . . . . . . . . . . . 10
5.02. Conditions of Debt Warrant Agent's
Obligations . . . . . . . . . . . . . . . . . 10
5.03. Resignation and Removal; Appointment
of Successor. . . . . . . . . . . . . . . . . 12
5.04. Office. . . . . . . . . . . . . . . . . . . . . 14
ARTICLE VI
MISCELLANEOUS
6.01. Consolidation or Merger of the Company and
Conveyance or Transfer Permitted Subject
to Certain Conditions. . . . . . . . . . . . . . 15
6.02. Rights and Duties of Successor Corporation . . . . 15
6.03. Supplements and Amendments . . . . . . . . . . . . 15
6.04. Notices and Demands to the Company and
Debt Warrant Agent . . . . . . . . . . . . . . . 16
6.05. Addresses. . . . . . . . . . . . . . . . . . . . . 16
6.06. Applicable Law . . . . . . . . . . . . . . . . . . 16
6.07. Delivery of Prospectus . . . . . . . . . . . . . . 16
6.08. Obtaining Governmental Approvals . . . . . . . . . 16
6.09. Persons Having Rights under Debt Warrant
Agreement. . . . . . . . . . . . . . . . . . . . 17
6.10. Headings . . . . . . . . . . . . . . . . . . . . . 17
6.11. Counterparts . . . . . . . . . . . . . . . . . . . 17
6.12. Inspection of Agreement. . . . . . . . . . . . . . 17
<PAGE>
THIS DEBT WARRANT AGREEMENT, dated as of ____________,
between Loral Corporation, a New York corporation (the
"Company"), and _______________, a __________ organized and
existing under the laws of _____________, warrant agent (the
"Debt Warrant Agent").
WHEREAS, the Company has entered into an Indenture
dated as of ____________________, 19__ (the "Indenture") with
[Continental Bank, N.A.] [The Bank of New York], trustee (the
"Trustee"), providing for the issuance by the Company from time
to time, in one or more series, of debt securities evidencing its
unsecured, [senior] [subordinated] indebtedness (such debt
securities being referred to as the "Debt Securities"); and
WHEREAS, the Company proposes to issue warrants (the
"Debt Warrants") representing the right to purchase Debt
Securities of one or more series (the "Underlying Debt
Securities"); and
WHEREAS, the Company has duly authorized the execution
and delivery of this Debt Warrant Agreement to provide for the
issuance of Debt Warrants to be exercisable at such times and for
such prices, and to have such other provisions, as shall be fixed
as hereinafter provided.
NOW, THEREFORE, in consideration of the premises and
the mutual agreements herein contained, the parties hereto agree
as follows:
ARTICLE I
ISSUANCE OF DEBT WARRANTS AND EXECUTION AND DELIVERY
OF DEBT WARRANT CERTIFICATES
1.01. Issuance of Debt Warrants. Debt Warrants may be
issued from time to time, together with or separately from any
Securities (the "Offered Debt Securities"). Prior to the
issuance of any Debt Warrants, there shall be established by or
pursuant to a resolution or resolutions duly adopted by the
Company's Board of Directors or by any committee thereof duly
authorized to act with respect thereto (a "Board Resolution"):
(a) the title and aggregate number of such Debt
Warrants;
(b) whether such Debt Warrants are to be issued with
any Offered Debt Securities and, if so, the title, aggregate
principal amount and terms of any such Offered Debt
Securities; the number of Debt Warrants to be issued with
each $1,000 principal amount of such Offered Debt Securities
(or such other principal amount of such Offered Debt
Securities as is provided for in the Board Resolution); and
the date, if any, on and after which such Debt Warrants and
such Offered Debt Securities will be separately transferable
(the "Detachable Date");
(c) the title, aggregate principal amount, ranking and
terms [(including the subordination and conversion
provisions)] of the Underlying Debt Securities that may be
purchased upon exercise of such Debt Warrants;
(d) the time or times at which, or period or periods
during which, such Debt Warrants may be exercised and the
final date on which such Debt Warrants may be exercised (the
"Expiration Date");
(e) the principal amount of Underlying Debt Securities
that may be purchased upon exercise of each Debt Warrant and
the price, or the manner of determining the price (the "Debt
Warrant Price"), at which such principal amount may be
purchased upon such exercise;
(f) the terms of any right to redeem such Debt
Warrants; and
(g) any other terms of such Debt Warrants not
inconsistent with the provisions of this Agreement.
1.02. Form and Execution of Debt Warrant Certificates.
(a) The Debt Warrants shall be evidenced by warrant certificates
(the "Debt Warrant Certificates"), which may be in registered or
bearer form and otherwise shall be substantially in such form or
forms as shall be established by or pursuant to a Board
Resolution. Each Debt Warrant Certificate, whenever issued,
shall be dated the date it is countersigned by the Debt Warrant
Agent and may have such letters, numbers or other identifying
marks and such legends or endorsements printed, lithographed or
engraved thereon as are not inconsistent with the provisions of
this Agreement, or as may be required to comply with any
applicable law, rule or regulation or with any rule or regulation
of any securities exchange on which the Debt Warrants may be
listed, or to conform to usage, as the officer of the Company
executing the same may approve (such officer's execution thereof
to be conclusive evidence of such approval). Each Debt Warrant
<PAGE>
Certificate shall evidence one or more Debt Warrants.
(b) The Debt Warrant Certificates shall be signed in
the name and on behalf of the Company by its Chairman, its
President or a Vice President (any reference to a Vice President
of the Company herein shall be deemed to include any Vice
President of the Company whether or not designated by a number or
a word or words added before or after the title "Vice President")
under its corporate seal, and attested by its Secretary or an
Assistant Secretary. Such signatures may be manual or facsimile
signatures of the present or any future holder of any such office
and may be imprinted or otherwise reproduced on the Debt Warrant
Certificates. 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 Debt Warrant Certificates.
(c) No Debt Warrant Certificate shall be valid for any
purpose, and no Debt Warrant evidenced thereby shall be deemed
issued or exercisable, until such Debt Warrant Certificate has
been countersigned by the manual or facsimile signature of the
Debt Warrant Agent. Such signature by the Debt Warrant Agent
upon any Debt Warrant Certificate executed by the Company shall
be conclusive evidence that the Debt Warrant Certificate so
countersigned has been duly issued hereunder.
(d) In case any officer of the Company who shall have
signed any Debt Warrant Certificate either manually or by
facsimile signature shall cease to be such officer before the
Debt Warrant Certificate so signed shall have been countersigned
and delivered by the Debt Warrant Agent, such Debt Warrant
Certificate nevertheless may be countersigned and delivered as
though the person who signed such Debt Warrant Certificate had
not ceased to be such officer of the Company; and any Debt
Warrant Certificate may be signed on behalf of the Company by
such person as, at the actual date of the execution of such Debt
Warrant Certificate, shall be the proper officer of the Company,
although at the date of the execution of this Agreement such
person was not such an officer.
1.03. Issuance and Delivery of Debt Warrant
Certificates. At any time and from time to time after the
execution and delivery of this Agreement, the Company may deliver
Debt Warrant Certificates executed by the Company to the Debt
Warrant Agent for countersignature. Except as provided in the
following sentence, the Debt Warrant Agent shall thereupon
countersign and deliver such Debt Warrant Certificates to or upon
the written request of the Company. Subsequent to the original
issuance of a Debt Warrant Certificate evidencing Debt Warrants,
the Debt Warrant Agent shall countersign a new Debt Warrant
Certificate evidencing such Debt Warrants only if such Debt
Warrant Certificate is issued in exchange or substitution for one
or more previously countersigned Debt Warrant Certificates
evidencing such Debt Warrants or in connection with their
transfer, as hereinafter provided.
1.04. Temporary Debt Warrant Certificates. Pending
the preparation of definitive Debt Warrant Certificates, the
Company may execute, and upon the order of the Company the Debt
Warrant Agent shall countersign and deliver, temporary Debt
Warrant Certificates that are printed, lithographed, typewritten,
mimeographed or otherwise produced, substantially of the tenor of
the definitive Debt Warrant Certificates in lieu of which they
are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officer executing such
Debt Warrant Certificates may determine, as evidenced by such
officer's execution of such Debt Warrant Certificates.
If temporary Debt Warrant Certificates are issued, the
Company will cause definitive Debt Warrant Certificates to be
prepared without unreasonable delay. After the preparation of
definitive Debt Warrant Certificates, the temporary Debt Warrant
Certificates shall be exchangeable for definitive Debt Warrant
Certificates upon surrender of the temporary Debt Warrant
Certificates at the corporate trust office of the Debt Warrant
Agent [or ______], without charge to the Holder, as defined in
Section 1.06 hereof. Upon surrender for cancellation of any one
or more temporary Debt Warrant Certificates, the Company shall
execute, and the Debt Warrant Agent shall countersign and deliver
in exchange therefor, definitive Debt Warrant Certificates
representing the same aggregate number of Debt Warrants. Until
so exchanged, the temporary Debt Warrant Certificates shall in
all respects be entitled to the same benefits under this
Agreement as definitive Debt Warrant Certificates.
1.05. Payment of Taxes. The Company will pay all
stamp and other duties, if any, to which this Agreement or the
original issuance of the Debt Warrants or Debt Warrant
Certificates may be subject under the laws of the United States
of America or any state or locality.
1.06. "Holder". The term "Holder" or "Holders", as
used herein with reference to a Debt Warrant Certificate, shall
mean [if registered Debt Warrants -- the person or persons in
whose name such Debt Warrant Certificate shall then be registered
as set forth in the Debt Warrant Register to be maintained by the
Debt Warrant Agent pursuant to Section 4.01 for that purpose] [if
<PAGE>
bearer Debt Warrants -- the bearer of such Debt Warrant
Certificate] or, in the case of Debt Warrants that are issued
with Offered Debt Securities and cannot then be transferred
separately therefrom, [if registered Offered Debt Securities and
Debt Warrants that are not then detachable -- the person or
persons in whose name the related Offered Debt Securities shall
be registered as set forth in the security register to be
maintained by the Trustee for such Offered Debt Securities
pursuant to the Indenture] [if bearer Offered Debt Securities and
Debt Warrants that are not then detachable -- the bearer of the
related Offered Debt Security], prior to the Detachable Date.
[If registered Offered Debt Securities and Debt Warrants that are
not then detachable -- The Company will, or will cause the
security registrar of any such Offered Debt Securities to, make
available to the Debt Warrant Agent at all times (including on
and after the Detachable Date, in the case of Debt Warrants
originally issued with Offered Debt Securities and not
subsequently transferred separately therefrom) such information
as to holders of Offered Debt Securities with Debt Warrants as
may be necessary to keep the Warrant Register up to date.]
ARTICLE II
DURATION AND EXERCISE OF DEBT WARRANTS
2.01. Duration of Debt Warrants. Each Debt Warrant
may be exercised at the time or times, or during the period or
periods, provided by or pursuant to the Board Resolution relating
thereto and specified in the Debt Warrant Certificate evidencing
such Debt Warrant. Each Debt Warrant not exercised at or before
5:00 P.M., New York City time, on its Expiration Date shall
become void, and all rights of the Holder of such Debt Warrant
thereunder and under this Agreement shall cease.
2.02. Exercise of Debt Warrants. (a) The Holder of a
Debt Warrant shall have the right, at its option, to exercise
such Debt Warrant and, subject to subsection (f) of this Section
2.02, purchase the principal amount of Underlying Debt Securities
provided for therein at the time or times or during the period or
periods referred to in Section 2.01 and specified in the Debt
Warrant Certificate evidencing such Debt Warrant. Except as may
be provided in a Debt Warrant Certificate, a Debt Warrant may be
exercised by completing the form of election to purchase set
forth on the reverse side of the Debt Warrant Certificate, by
duly executing and delivering the same, together with payment in
full of the Debt Warrant Price in lawful money of the United
States of America, in cash or by certified or official bank check
or by bank wire transfer, to the Debt Warrant Agent. Except as
may be provided in a Debt Warrant Certificate, the date on which
such Debt Warrant Certificate and payment are received by the
Debt Warrant Agent as aforesaid shall be deemed to be the date on
which the Debt Warrant is exercised and the Underlying Debt
Securities issued.
(b) Upon the exercise of a Debt Warrant, the Company
shall issue, pursuant to the Indenture, in authorized
denominations to or upon the order of the Holder of such Debt
Warrant, the Underlying Debt Securities to which such Holder is
entitled, in the form required under such Indenture, registered,
in the case of Underlying Debt Securities in registered form, in
such name or names as may be directed by such Holder.
(c) If fewer than all of the Debt Warrants evidenced
by a Debt Warrant Certificate are exercised, the Company shall
execute, and an authorized officer of the Debt Warrant Agent
shall countersign and deliver, a new Debt Warrant Certificate
evidencing the number of Debt Warrants remaining unexercised.
(d) The Debt Warrant Agent shall deposit all funds
received by it in payment of the Debt Warrant Price in the
account of the Company maintained with it for such purpose and
shall advise the Company by telephone by 5:00 P.M., New York City
time, of each day on which a payment of the Debt Warrant Price
for Debt Warrants is received of the amount so deposited in its
account. The Debt Warrant Agent shall promptly confirm such
telephone advice in writing to the Company.
(e) The Debt Warrant Agent shall, from time to time,
as promptly as practicable, advise the Company and the Trustee of
(i) the number of Debt Warrants of each title exercised as
provided herein, (ii) the instructions of each Holder with
respect to delivery of the Underlying Debt Securities to which
such Holder is entitled upon such exercise, (iii) the delivery of
Debt Warrant Certificates evidencing the balance, if any, of the
Debt Warrants remaining unexercised after such exercise, and (iv)
such other information as the Company or the Trustee shall
reasonably require. Such notice may be given by telephone, to be
promptly confirmed in writing.
(f) The Holder, and not the Company, shall be required
to pay any stamp or other tax or other governmental charge that
may be imposed in connection with any transfer involved in the
issuance of the Underlying Debt Securities; and in the event that
any such transfer is involved, the Company shall not be required
to issue any Underlying Debt Securities (and the Holder's
<PAGE>
purchase of the Underlying Debt Securities upon the exercise of
such Holder's Debt Warrant shall not be deemed to have been
consummated) until such tax or other charge shall have been paid
or it has been established to the Company's satisfaction that no
such tax or other charge is due.
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
OF DEBT WARRANTS
3.01. No Rights as Holder of Underlying Debt Security
Conferred by Debt Warrants or Debt Warrant Certificates. No Debt
Warrant or Debt Warrant Certificate shall entitle the Holder to
any of the rights of a holder of Underlying Debt Securities,
including, without limitation, the right to receive the payment
of principal of (or premium, if any, on) or interest, if any, on
Underlying Debt Securities or to enforce any of the covenants in
the Indenture.
3.02. Lost, Stolen, Destroyed or Mutilated Debt
Warrant Certificates. Upon receipt by the Company and the Debt
Warrant Agent of evidence reasonably satisfactory to them of the
ownership of and the loss, theft, destruction or mutilation of
any Debt Warrant Certificate and of indemnity (other than in
connection with any mutilated Debt Warrant Certificates
surrendered to the Debt Warrant Agent for cancellation)
reasonably satisfactory to them, the Company shall execute, and
the Debt Warrant Agent shall countersign and deliver, in exchange
for or in lieu of each lost, stolen, destroyed or mutilated Debt
Warrant Certificate, a new Debt Warrant Certificate evidencing a
like number of Debt Warrants of the same title. Upon the
issuance of a new Debt Warrant Certificate under this Section,
the Company may require the payment of a sum sufficient to cover
any stamp or other tax or other governmental charge that may be
imposed in connection therewith and any other expenses (including
the fees and expenses of the Debt Warrant Agent) in connection
therewith. Every substitute Debt Warrant Certificate executed
and delivered pursuant to this Section in lieu of any lost,
stolen or destroyed Debt Warrant Certificate shall represent a
contractual obligation of the Company, whether or not such lost,
stolen or destroyed Debt Warrant Certificate shall be at any time
enforceable by anyone, and shall be entitled to the benefits of
this Agreement equally and proportionately with any and all other
Debt Warrant Certificates, duly executed and delivered hereunder,
evidencing Debt Warrants of the same title. The provisions of
this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the
replacement of lost, stolen, destroyed or mutilated Debt Warrant
Certificates.
3.03. Holder of Debt Warrants May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, a
Holder, without the consent of the Debt Warrant Agent, the
Trustee, the holder of any Underlying Debt Securities or the
Holder of any other Debt Warrant, may, on its own behalf and for
its own benefit, enforce, and may institute and maintain any
suit, action or proceeding against the Company to enforce, or
otherwise in respect of, its right to exercise its Debt Warrant
or Debt Warrants in the manner provided in this Agreement and its
Debt Warrant Certificate.
ARTICLE IV
EXCHANGE AND TRANSFER OF DEBT WARRANTS
4.01. [Debt Warrant Register;] Exchange and Transfer
of Debt Warrants. [If registered Debt Warrants -- The Debt
Warrant Agent shall maintain, at its corporate trust office [or
at ____________________], a register (the "Debt Warrant
Register") in which, upon the issuance of Debt Warrants, or on
and after the Detachable Date in the case of Debt Warrants not
separately transferable prior thereto, and, subject to such
reasonable regulations as the Debt Warrant Agent may prescribe,
it shall register Debt Warrant Certificates and exchanges and
transfers thereof. The Debt Warrant Register shall be in written
form or in any other form capable of being converted into written
form within a reasonable time.]
Except as provided in the following sentence, upon
surrender at the corporate trust office of the Debt Warrant Agent
[or at _______________], Debt Warrant Certificates may be
exchanged for one or more other Debt Warrant Certificates
evidencing the same aggregate number of Debt Warrants of the same
title, or may be transferred in whole or in part. A Debt Warrant
Certificate evidencing Debt Warrants that are not then
transferable separately from the Offered Debt Security with which
they were issued may be exchanged or transferred prior to its
Detachable Date only together with such Offered Debt Security and
only for the purpose of effecting, or in conjunction with, an
exchange or transfer of such Offered Debt Security; and on or
prior to the Detachable Date, [if registered Offered Debt
Securities and Debt Warrants -- each exchange or transfer of such
Offered Debt Security on the security register of the Offered
<PAGE>
Debt Securities shall operate also to exchange or transfer the
related Debt Warrants] [if bearer Offered Debt Securities and
Debt Warrants -- an exchange or transfer of possession of the
related Offered Debt Security shall operate also to exchange or
transfer the related Debt Warrants]. [If registered Debt
Warrants -- A transfer shall be registered upon surrender of a
Debt Warrant Certificate to the Debt Warrant Agent at its
corporate trust office [or at ________________] for transfer,
properly endorsed or accompanied by appropriate instruments of
transfer and written instructions for transfer, all in form
satisfactory to the Company and the Debt Warrant Agent.]
Whenever a Debt Warrant Certificate is surrendered for exchange
or transfer, the Debt Warrant Agent shall countersign and deliver
to the person or persons entitled thereto one or more Debt
Warrant Certificates duly executed by the Company, as so
requested. The Debt Warrant Agent shall not be required to
effect any exchange or transfer which will result in the issuance
of a Debt Warrant Certificate evidencing a fraction of a Debt
Warrant. All Debt Warrant Certificates issued upon any exchange
or transfer of a Debt Warrant Certificate shall be the valid
obligations of the Company, evidencing the same obligations, and
entitled to the same benefits under this Agreement, as the Debt
Warrant Certificate surrendered for such exchange or transfer.
No service charge shall be made for any exchange or
transfer of Debt Warrants, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any such exchange or
transfer, in accordance with Section 2.02(f) hereof.
4.02. Treatment of Holders of Debt Warrants. Every
Holder of a Debt Warrant, by accepting the Debt Warrant
Certificate evidencing the same, consents and agrees with the
Company, the Debt Warrant Agent and with every other Holder of
Debt Warrants of the same title that the Company and the Debt
Warrant Agent may treat the Holder of a Debt Warrant Certificate
(or, if the Debt Warrant Certificate is not then detachable, the
Holder of the related Offered Debt Security) as the absolute
owner of such Debt Warrant for all purposes and as the person
entitled to exercise the rights represented by such Debt Warrant,
any notice to the contrary notwithstanding.
4.03. Cancellation of Debt Warrant Certificates. In
the event that the Company shall purchase, redeem or otherwise
acquire any Debt Warrants after the issuance thereof, the Debt
Warrant Certificate or Certificates evidencing such Debt Warrants
shall thereupon be delivered to the Debt Warrant Agent and be
cancelled by it. The Debt Warrant Agent shall also cancel any
Debt Warrant Certificate (including any mutilated Debt Warrant
Certificate) delivered to it for exercise, in whole or in part,
or for exchange [or transfer] [if Debt Warrant Certificates are
issued in bearer form -- , except that Debt Warrant Certificates
delivered to the Debt Warrant Agent in exchange for Debt Warrant
Certificates of other denominations may be retained by the Debt
Warrant Agent for reissue]. Debt Warrant Certificates so
cancelled shall be delivered by the Debt Warrant Agent to the
Company from time to time, or disposed of in accordance with the
instructions of the Company.
ARTICLE V
CONCERNING THE DEBT WARRANT AGENT
5.01. Debt Warrant Agent. The Company hereby appoints
__________________________________ as Debt Warrant Agent of the
Company in respect of the Debt Warrants and the Debt Warrant
Certificates upon the terms and subject to the conditions set
forth herein; and _____________________ hereby accepts such
appointment. The Debt Warrant Agent shall have the powers and
authority granted to and conferred upon it hereby and such
further powers and authority to act on behalf of the Company as
the Company may hereafter grant to or confer upon it. All of the
terms and provisions with respect to such powers and authority
contained in any Debt Warrant Certificate are subject to and
governed by the terms and provisions hereof.
5.02. Conditions of Debt Warrant Agent's Obligations.
The Debt Warrant Agent accepts its obligations set forth herein
upon the terms and conditions hereof, including the following, to
all of which the Company agrees and to all of which the rights
hereunder of the Holders shall be subject:
(a) Compensation and Indemnification. The Company
agrees to promptly pay the Debt Warrant Agent the
compensation to be set forth as an exhibit hereto and to
reimburse the Debt Warrant Agent for reasonable out-of-
pocket expenses (including counsel fees) incurred by the
Debt Warrant Agent in connection with the services rendered
hereunder by the Debt Warrant Agent. The Company also
agrees to indemnify the Debt Warrant Agent for, and to hold
it harmless against, any loss, liability or expense
(including the reasonable costs and expenses of defending
against any claim of liability) incurred without negligence
or bad faith on the part of the Debt Warrant Agent arising
out of or in connection with its appointment as Debt Warrant
<PAGE>
Agent hereunder.
(b) Agent for the Company. In acting under this
Agreement and in connection with any Debt Warrant
Certificate, the Debt Warrant Agent is acting solely as
agent of the Company and does not assume any obligation or
relationship of agency or trust for or with any Holder.
(c) Counsel. The Debt Warrant Agent may consult with
counsel satisfactory to it, and the advice of such counsel
shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with the advice of
such counsel.
(d) Documents. The Debt Warrant Agent shall be
protected and shall incur no liability for or in respect of
any action taken, suffered or omitted by it in reliance upon
any notice, direction, consent, certificate, affidavit,
statement or other paper or document reasonably believed by
it to be genuine and to have been presented or signed by the
proper parties.
(e) Officer's Certificate. Whenever in the
performance of its duties hereunder the Debt Warrant Agent
shall reasonably deem it necessary that any fact or matter
be proved or established by the Company prior to taking,
suffering or omitting any action hereunder, the Debt Warrant
Agent may (unless other evidence in respect thereof be
herein specifically prescribed), in the absence of bad faith
on its part, rely upon a certificate signed by the Chairman,
the President, a Vice President, the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the
Company (an "Officer's Certificate") delivered by the
Company to the Debt Warrant Agent.
(f) Actions Through Agents. The Debt Warrant Agent
may execute and exercise any of the rights or powers hereby
vested in it or perform any duty hereunder either itself or
by or through its attorneys or agents, and the Debt Warrant
Agent shall not be answerable or accountable for any act,
default, neglect or misconduct of any such attorney or agent
or for any loss to the Company resulting from such neglect
or misconduct; provided, however, that reasonable care shall
have been exercised in the selection and continued
employment of such attorneys and agents.
(g) Certain Transactions. The Debt Warrant Agent, and
any officer, director or employee thereof, may become the
owner of, or acquire any interest in, any Debt Warrant, with
the same rights that he, she or it would have if it were not
the Debt Warrant Agent, and, to the extent permitted by
applicable law, he, she or it may engage or be interested in
any financial or other transaction with the Company and may
serve on, or as depositary, trustee or agent for, any
committee or body of holders of Underlying Debt Securities
or other obligations of the Company as if it were not the
Debt Warrant Agent. Nothing in this Agreement shall be
deemed to prevent the Debt Warrant Agent from acting as
Trustee under the Indenture.
(h) No Liability for Interest. The Debt Warrant Agent
shall not be liable for interest on any monies at any time
received by it pursuant to any of the provisions of this
Agreement or of the Debt Warrant Certificates, except as
otherwise agreed with the Company.
(i) No Liability for Invalidity. The Debt Warrant
Agent shall incur no liability with respect to the validity
of this Agreement (except as to the due execution hereof by
the Debt Warrant Agent) or any Debt Warrant Certificate
(except as to the countersignature thereof by the Debt
Warrant Agent).
(j) No Responsibility for Company Representations.
The Debt Warrant Agent shall not be responsible for any of
the recitals or representations contained herein (except as
to such statements or recitals as describe the Debt Warrant
Agent or action taken or to be taken by it) or in any Debt
Warrant Certificate (except as to the Debt Warrant Agent's
countersignature on such Debt Warrant Certificate), all of
which recitals and representations are made solely by the
Company.
(k) No Implied Obligations. The Debt Warrant Agent
shall be obligated to perform only such duties as are
specifically set forth herein, and no other duties or
obligations shall be implied. The Debt Warrant Agent shall
not be under any obligation to take any action hereunder
that may subject it to any expense or liability, the payment
of which within a reasonable time is not, in its reasonable
opinion, assured to it. The Debt Warrant Agent shall not be
accountable or under any duty or responsibility for the use
by the Company of any Debt Warrant Certificate countersigned
by the Debt Warrant Agent and delivered by it to the Company
pursuant to this Agreement or for the application by the
<PAGE>
Company of the proceeds of the issuance or exercise of Debt
Warrants. The Debt Warrant Agent shall have no duty or
responsibility in case of any default by the Company in the
performance of its covenants or agreements contained herein
or in any Debt Warrant Certificate or in case of the receipt
of any written demand from a Holder with respect to such
default, including, without limiting the generality of the
foregoing, any duty or responsibility to initiate or attempt
to initiate any proceedings at law or otherwise or, except
as provided in Section 6.04 hereof, to make any demand upon
the Company.
5.03. Resignation and Removal; Appointment of
Successor. (a) The Debt Warrant Agent may at any time resign as
such by giving written notice to the Company, specifying the date
on which such resignation shall become effective; provided that
such date shall not be less than 90 days after the date on which
such notice is given, unless the Company agrees to accept a
shorter notice. The Debt Warrant Agent may be removed at any
time by the filing with it of an instrument in writing signed on
behalf of the Company and specifying such removal and the date
when it shall become effective. Notwithstanding the two
preceding sentences, such resignation or removal shall take
effect only upon the appointment by the Company, as hereinafter
provided, of a successor Debt Warrant Agent (which shall be a
bank or trust company organized and doing business under the laws
of the United States of America, any state thereof or the
District of Columbia, authorized under the laws of such
jurisdiction to exercise corporate trust powers and having at the
time of its appointment as Debt Warrant Agent a combined capital
and surplus (as set forth in its most recent published report of
condition) of at least $50,000,000) and the acceptance of such
appointment by such successor Debt Warrant Agent.
(b) In case at any time the Debt Warrant Agent shall
resign, or shall be removed, or shall become incapable of acting,
or shall be adjudged a bankrupt or insolvent, or shall file a
petition seeking relief under Title 11 of the United States Code,
as now constituted or hereafter amended, or under any other
applicable federal or state bankruptcy law or similar law, or
make an assignment for the benefit of its creditors, or consent
to the appointment of a receiver or custodian for all or any
substantial part of its property, or shall admit in writing its
inability to pay or meet its debts as they mature, or if a
receiver or custodian for it or for all or any substantial part
of its property shall be appointed, or if an order of any court
shall be entered for relief against it under the provisions of
Title 11 of the United States Code, as now constituted or
hereafter amended, or under any other applicable federal or state
bankruptcy or similar law, or if any public officer shall have
taken charge or control of the Debt Warrant Agent or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation, a successor Debt Warrant Agent,
qualified as aforesaid, shall be appointed by the Company by an
instrument in writing, filed with the successor Debt Warrant
Agent. Upon the appointment as aforesaid of a successor Debt
Warrant Agent and acceptance by the successor Debt Warrant Agent
of such appointment, the Debt Warrant Agent so superseded shall
cease to be Debt Warrant Agent hereunder.
(c) Any successor Debt Warrant Agent appointed
hereunder shall execute, acknowledge and deliver to its
predecessor and to the Company an instrument accepting such
appointment hereunder, and thereupon such successor Debt Warrant
Agent, without any further act, deed or conveyance, shall become
vested with all the authority, rights, powers, trusts,
immunities, duties and obligations of such predecessor with like
effect as if originally named as Debt Warrant Agent hereunder,
and such predecessor, upon payment of its charges and
disbursements then unpaid, shall thereupon become obligated to
transfer, deliver and pay over, and such successor Debt Warrant
Agent shall be entitled to receive, [the Debt Warrant Register
and] all monies, securities and other property on deposit with or
held by such predecessor (together with any books and records
relating thereto), as Debt Warrant Agent hereunder.
(d) The Company shall cause notice of the appointment
of any successor Debt Warrant Agent to be [if registered Debt
Warrants -- mailed by first-class mail, postage prepaid, to each
Holder at its address appearing on the Debt Warrant Register or,
in the case of Debt Warrants that are issued with Offered Debt
Securities and cannot then be transferred separately therefrom,
on the security register for the Offered Securities] [if bearer
Debt Warrants -- published in an Authorized Newspaper (as defined
in the Indenture) in The City of New York [and in such other city
or cities as may be specified by the Company] at least twice
within any seven-day period]. Such notice shall set forth the
name and address of the successor Debt Warrant Agent. Failure to
give any notice provided for in this Section 5.03(d), or any
defect therein, shall not, however, affect the legality or
validity of the appointment of the successor Debt Warrant Agent.
(e) Any corporation into which the Debt Warrant Agent
may be merged or converted, or any corporation with which the
Debt Warrant Agent may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which
<PAGE>
the Debt Warrant Agent shall be a party, or any corporation to
which the Debt Warrant Agent shall sell or otherwise transfer all
or substantially all of its assets and business, shall be the
successor Debt Warrant Agent under this Agreement without the
execution or filing of any paper, the giving of any notice to
Holders or any further act on the part of the parties hereto,
provided that such corporation be qualified as aforesaid.
5.04. Office. The Company will maintain an office or
agency where Debt Warrant Certificates may be presented for
exchange[, transfer] or exercise. The office initially
designated for this purpose shall be the corporate trust office
of the Debt Warrant Agent at .
ARTICLE VI
MISCELLANEOUS
6.01. Consolidation or Merger of the Company and
Conveyance or Transfer Permitted Subject to Certain Conditions.
To the extent permitted in the Indenture, the Company may
consolidate with or merge into another corporation or other
entity, or convey or transfer all or substantially all of its
properties and assets to any other corporation or other entity.
6.02. Rights and Duties of Successor Corporation. In
case of any such consolidation, merger, conveyance or transfer
and upon any assumption of the duties and obligations of the
Company 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, and the Company shall
be relieved of any further obligation under this Agreement and
the Debt Warrants. Such successor corporation thereupon may
cause to be signed, and may issue either in its own name or in
the name of the Company, any or all of the Underlying Debt
Securities issuable pursuant to the terms hereof. All the
Underlying Debt Securities so issued shall in all respects have
the same legal rank and benefit under the Indenture as the
Underlying Debt Securities theretofore or thereafter issued in
accordance with the terms of this Agreement and the Indenture.
In case of any such consolidation, merger, conveyance
or transfer, such changes in phraseology and form (but not in
substance) may be made in the Underlying Debt Securities
thereafter to be issued as may be appropriate.
6.03. Supplements and Amendments. (a) The Company
and the Debt Warrant Agent from time to time may supplement or
amend this Agreement without the approval of any Holder in order
to cure any ambiguity, to correct or supplement any provision
contained herein that may be defective or inconsistent with any
other provision herein, or to make any other provision in regard
to matters or questions arising hereunder that the Company and
the Debt Warrant Agent may deem necessary or desirable and that
shall not adversely affect the interests of the Holders. Every
Holder of Debt Warrants, whether issued before or after any such
supplement or amendment, shall be bound thereby. Promptly after
the effectiveness of any supplement or amendment that affects the
interests of the Holders, the Company shall give notice thereof,
as provided in Section 5.03(d) hereof, to the Holders affected
thereby, setting forth in general terms the substance of such
supplement or amendment.
(b) The Company and the Debt Warrant Agent may modify
or amend this Agreement and the Debt Warrant Certificates with
the consent of the Holders of not fewer than a majority in number
of the then outstanding unexercised Debt Warrants affected by
such modification or amendment, for any purpose; provided,
however, that no such modification or amendment that shortens the
period of time during which the Debt Warrants may be exercised,
or otherwise materially and adversely affects the exercise rights
of the Holders or reduces the percentage of Holders of
outstanding Debt Warrants the consent of which is required for
modification or amendment of this Agreement or the Debt Warrants,
may be made without the consent of each Holder affected thereby.
6.04. Notices and Demands to the Company and Debt
Warrant Agent. If the Debt Warrant Agent shall receive any
notice or demand addressed to the Company by a Holder pursuant to
the provisions of this Agreement or a Debt Warrant Certificate
(other than notices relating to the exchange[, transfer] or
exercise of Debt Warrants), the Debt Warrant Agent shall promptly
forward such notice or demand to the Company.
6.05. Addresses. Any communications from the Company
to the Debt Warrant Agent with respect to this Agreement shall be
directed to , Attention: , and
any communications from the Debt Warrant Agent to the Company
with respect to this Agreement shall be directed to Loral
Corporation, 600 Third Avenue, New York, New York 10016
Attention: Treasurer, with a copy to the Secretary (or such
other address as shall be specified in writing by the Debt
Warrant Agent or by the Company).
6.06. Applicable Law. This Agreement and the Debt
<PAGE>
Warrants shall be governed by and construed in accordance with
the laws of the State of New York applicable to contracts made
and to be performed entirely within such state.
6.07. Delivery of Prospectus. The Company will
furnish to the Debt Warrant Agent sufficient copies of a
prospectus or prospectuses relating to the Underlying Debt
Securities deliverable upon exercise of any outstanding Debt
Warrants (each a "Prospectus"), and the Debt Warrant Agent agrees
to deliver to the Holder of a Debt Warrant, prior to or
concurrently with the delivery of the Underlying Debt Securities
issued upon the exercise thereof, a copy of the Prospectus
relating to such Underlying Debt Securities.
6.08. Obtaining Governmental Approvals. The Company
will take such action as may be necessary to obtain and keep
effective any and all permits, consents and approvals of
governmental agencies and authorities, and will make all filings
under federal and state securities laws (including, without
limitation, the maintenance of the effectiveness of a
registration statement in respect of the Underlying Debt
Securities under the Securities Act of 1933), as may be or become
requisite in connection with the issuance, sale, transfer and
delivery of Debt Warrants and Debt Warrant Certificates, the
exercise of Debt Warrants and the issuance, sale and delivery of
Underlying Debt Securities issued upon exercise of Debt Warrants.
6.09. Persons Having Rights under Debt Warrant
Agreement. Nothing in this Agreement, expressed or implied, and
nothing that may be inferred from any of the provisions hereof is
intended or shall be construed to confer upon or give to any
person or corporation other than the Company, the Debt Warrant
Agent and the Holders any right, remedy or claim under or by
reason of this Agreement or any covenant, condition, stipulation,
promise or agreement herein; and all covenants, conditions,
stipulations, promises and agreements herein shall be for the
sole and exclusive benefit of the Company, the Debt Warrant Agent
and their respective successors and the Holders.
6.10. Headings. The descriptive headings of the
several Articles and Sections of this Agreement are inserted for
convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
6.11. Counterparts. This Agreement may be executed in
one or more counterparts and, when a counterpart has been
executed by each party hereto, all such counterparts taken
together shall constitute one and the same agreement.
6.12. Inspection of Agreement. A copy of this
Agreement shall be available during business hours at the office
of the Debt Warrant Agent for inspection by any Holder. The Debt
Warrant Agent may require such Holder to submit its Debt Warrant
Certificate for inspection prior to making such copy available.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, all as of the day and year first
above written.
LORAL CORPORATION
Attest:
By
------------------------
Name:
Title:
Name:
------------------------
Title:
[Debt Warrant Agent]
Attest:
By
------------------------
Name:
Title:
Name:
------------------------
Title:
EXHIBIT 4.7
OPTIONS REPRESENTED BY BRACKETED OR BLANK SECTIONS HEREIN
SHALL BE DETERMINED IN CONFORMITY WITH THE APPLICABLE
PROSPECTUS SUPPLEMENT OR SUPPLEMENTS.
EQUITY WARRANT AGREEMENT
dated as of ______, 19__
FOR
WARRANTS TO PURCHASE
[UP TO ______ SHARES OF COMMON STOCK AND/OR PREFERRED STOCK]
EXPIRING ______, 19__
between
LORAL CORPORATION
and
(NAME OF EQUITY WARRANT AGENT), as
Equity Warrant Agent
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
ISSUANCE OF EQUITY WARRANTS AND EXECUTION AND
DELIVERY OF EQUITY WARRANT CERTIFICATES
1.01. Issuance of Equity Warrants . . . . . . . . . . 1
1.02. Form and Execution of Equity Warrant
Certificates. . . . . . . . . . . . . . . . . . 2
1.03. Issuance and Delivery of Equity Warrant
Certificates. . . . . . . . . . . . . . . . . . 3
1.04. Temporary Equity Warrant Certificates . . . . . 4
1.05. Payment of Taxes. . . . . . . . . . . . . . . . 4
1.06. "Holder". . . . . . . . . . . . . . . . . . . . 4
ARTICLE II
DURATION AND EXERCISE OF EQUITY WARRANTS
2.01 Duration of Equity Warrants . . . . . . . . . . 5
2.02. Exercise of Equity Warrants . . . . . . . . . . 5
2.03. Equity Warrant Adjustments. . . . . . . . . . . 7
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
OF EQUITY WARRANTS
3.01. Holders of Equity Warrants May Enforce
Rights. . . . . . . . . . . . . . . . . . . . . 7
3.02. Merger, Consolidation, Sale, Transfer or
Conveyance. . . . . . . . . . . . . . . . . . . 7
3.03. Treatment of Holders of Equity Warrant
Certificates. . . . . . . . . . . . . . . . . . 8
ARTICLE IV
EXCHANGE AND TRANSFER OF EQUITY WARRANTS
4.01. Equity Warrant Register; Exchange and
Transfer of Equity Warrants . . . . . . . . . . 9
4.02. Treatment of Holders of Equity Warrants . . . . 10
4.03. Cancellation of Equity Warrant Certificates . . 11
ARTICLE V
CONCERNING THE EQUITY WARRANT AGENT
5.01. Equity Warrant Agent. . . . . . . . . . . . . . 11
5.02. Conditions of Equity Warrant Agent's
Obligations . . . . . . . . . . . . . . . . . . 11
5.03. Compliance with Applicable Laws . . . . . . . . 14
5.04. Resignation and Appointment of Successor. . . . 14
ARTICLE VI
MISCELLANEOUS
6.01. Amendment . . . . . . . . . . . . . . . . . . . 16
6.02. Notices and Demands to the Corporation and
Equity Warrant Agent. . . . . . . . . . . . . . 16
6.03. Addresses For Notices . . . . . . . . . . . . . 17
6.04. Governing Law . . . . . . . . . . . . . . . . . 17
6.05. Governmental Approvals. . . . . . . . . . . . . 17
6.06. Persons Having Rights Under Equity Warrant
Agreement . . . . . . . . . . . . . . . . . . . 17
6.07. Delivery of Prospectus. . . . . . . . . . . . . 17
6.08. Headings. . . . . . . . . . . . . . . . . . . . 18
6.09. Counterparts. . . . . . . . . . . . . . . . . . 18
6.10. Inspection of Agreement . . . . . . . . . . . . 18
<PAGE>
This EQUITY WARRANT AGREEMENT, dated as of ,
between Loral Corporation, a New York corporation (the
"Company"), and , a organized and
existing under the laws of , as warrant agent (the "Equity
Warrant Agent").
WHEREAS, the Company proposes to sell [title of
preferred stock, common stock or other securities being offered
(the "Offered Securities") with] certificates evidencing one or
more warrants (the "Equity Warrants" or, individually, an "Equity
Warrant") representing the right to purchase shares of the common
stock, par value $0.25 per share, of the Company (the "Common
Stock") and/or preferred stock, par value $1.00 per share, of the
Company (the "Preferred Stock"), such warrant certificates and
other warrant certificates issued pursuant to this Agreement
being herein called the "Equity Warrant Certificates"; the Common
Stock and the Preferred Stock being referred to herein,
individually or together, as the "Equity Securities", and
WHEREAS, the Company has duly authorized the execution
and delivery of this Equity Warrant Agreement to provide for the
issuance of Equity Warrants to be exercisable at such times and
for such prices, and to have such other provisions, as shall be
fixed as herein after provided.
NOW, THEREFORE, in consideration of the premises and of
the mutual agreements herein contained, the parties hereto agree
as follows:
ARTICLE I
ISSUANCE OF EQUITY WARRANTS AND EXECUTION AND
DELIVERY OF EQUITY WARRANT CERTIFICATES
1.01. Issuance of Equity Warrants. Equity Warrants
may be issued from time to time, together with or separately from
Offered Securities. Prior to the issuance of any Equity Warrants,
there shall be established by or pursuant to a resolution or
resolutions duly adopted by the Company's Board of Directors or
by any committee thereof duly authorized to act with respect
thereto (a "Board Resolution"):
(1) The title and aggregate number of such Equity
Warrants.
(2) The offering price of such Equity Warrant.
(3) The number of shares of Equity Securities that may
be purchased upon exercise of such Equity Warrants; the
price, or the manner of determining the price (the "Equity
Warrant Price") at which such shares of Equity Securities
may be purchased upon exercise of the Equity Warrants; and
any minimum number of such Equity Warrants that are
exercisable at any one time.
(4) The time or times at which, or period or periods
during which, such Equity Warrants may be exercised and the
final date on which such Equity Warrants may be exercised
(the "Expiration Date").
(5) The terms of any right to redeem such Equity
Warrants.
(6) Whether such Equity Warrants are to be issued with
any Offered Securities and, if so, the number and terms of
any such Offered Securities and the number of Equity
Warrants to be issued with each Offered Security.
(7) The date, if any, on and after which the Equity
Warrants and the Offered Securities will be separately
transferable (the "Detachable Date").
(8) The terms of any right of the Company to
accelerate the Equity Warrants upon the occurrence of
certain events.
(9) Any other terms of such Equity Warrants not
inconsistent with the provisions of this Agreement.
1.02. Form and Execution of Equity Warrant
Certificates. (a) The Equity Warrants shall be evidenced by
warrant certificates (the "Equity Warrant Certificates"), which
shall be in registered form and substantially in such form or
forms as shall be established by or pursuant to a Board
Resolution. Each Equity Warrant Certificate, whenever issued,
shall be dated the date it is countersigned by the Equity Warrant
Agent and may have such letters, numbers or other marks of
identification and such legends or endorsements printed,
lithographed or engraved thereon as are not inconsistent with the
provisions of this Agreement, 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 securities exchange on
which the Equity Warrants may be listed, or to conform to usage,
as the officer of the Company executing the same may approve (his
execution thereof to be conclusive evidence or such approval).
<PAGE>
Each Equity Warrant Certificate shall evidence one or more Equity
Warrants.
(b) The Equity Warrant Certificates shall be signed in
the name and on behalf of the Company by its Chairman, its
President or a Vice President (any reference to a Vice President
of the Company herein shall be deemed to include any Vice
President of the Company whether or not designated by a number or
a word or words added before or after the title "Vice President")
under its corporate seal, and attested by its Secretary or an
Assistant Secretary. Such signatures may be manual or facsimile
signatures of the present or any future holder of any such office
and may be imprinted or otherwise reproduced on the Equity
Warrant Certificates. 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 Equity Warrant Certificates.
(c) No Equity Warrant Certificate shall be valid for
any purpose, and no Equity Warrant evidenced thereby shall be
deemed issued or exercisable, until such Equity Warrant
Certificate has been countersigned by the manual or facsimile
signature of the Equity Warrant Agent. Such signature by the
Equity Warrant Agent upon any Equity Warrant Certificate executed
by the Company shall be conclusive evidence that the Equity
Warrant Certificate so countersigned has been duly issued
hereunder.
(d) In case any officer of the Company who shall have
signed any Equity Warrant Certificate either manually or by
facsimile signature shall cease to be such officer before the
Equity Warrant Certificate so signed shall have been
countersigned and delivered by the Equity Warrant Agent, such
Equity Warrant Certificate nevertheless may be countersigned and
delivered as though the person who signed such Equity Warrant
Certificate had not ceased to be such officer of the Company; and
any Equity Warrant Certificate may be signed on behalf of the
Company by such person as, at the actual date of the execution of
such Equity Warrant Certificate, shall be the proper officer of
the Company, although at the date of the execution of this
Agreement such person was not such an officer.
1.03. Issuance and Delivery of Equity Warrant
Certificates. At any time and from time to time after the
execution and delivery of this Agreement, the Company may deliver
Equity Warrant Certificates executed by the Company to the Equity
Warrant Agent for countersignature. Except as provided in the
following sentence, the Equity Warrant Agent shall thereupon
countersign and deliver such Equity Warrant Certificates to or
upon the written request of the Company. Subsequent to the
original issuance of an Equity Warrant Certificate evidencing
Equity Warrants, the Equity Warrant Agent shall countersign a new
Equity Warrant Certificate evidencing such Equity Warrants only
if such Equity Warrant Certificate is issued in exchange or
substitution for one or more previously countersigned Equity
Warrant Certificates evidencing such Equity Warrants or in
connection with their transfer, as hereinafter provided.
1.04. Temporary Equity Warrant Certificates. Pending
the preparation of definitive Equity Warrant Certificates, the
Company may execute, and upon the order of the Company the Equity
Warrant Agent shall countersign and deliver, temporary Equity
Warrant Certificates that are printed, lithographed, typewritten,
mimeographed or otherwise produced, substantially of the tenor of
the definitive Equity Warrant Certificates in lieu of which they
are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officer executing such
Equity Warrant Certificates may determine, as evidenced by his
execution of such Equity Warrant Certificates.
If temporary Equity Warrant Certificates are issued,
the Company will cause definitive Equity Warrant Certificates to
be prepared without unreasonable delay. After the preparation of
definitive Equity Warrant Certificates, the temporary Equity
Warrant Certificates shall be exchangeable for definitive Equity
Warrant Certificates upon surrender of the temporary Equity
Warrant Certificates at the corporate trust office of the Equity
Warrant Agent [or ], without charge to the Holder, as
defined in Section 1.06 hereof. Upon surrender for cancellation
of any one or more temporary Equity Warrant Certificates, the
Company shall execute and the Equity Warrant Agent shall
countersign and deliver in exchange therefor definitive Equity
Warrant Certificates representing the same aggregate number of
Equity Warrants. Until so exchanged, the temporary Equity
Warrant Certificates shall in all respects be entitled to the
same benefits under this Agreement as definitive Equity Warrant
Certificates.
1.05. Payment of Taxes. The Company will pay all
stamp and other duties, if any, to which this Agreement or the
original issuance of the Equity Warrants or Equity Warrant
Certificates may be subject under the laws of the United States
of America or any state or locality.
1.06. "Holder". The term "Holder" or "Holders" as
used herein with reference to an Equity Warrant certificate shall
mean the person or persons in whose name such Equity Warrant
<PAGE>
Certificate shall then be registered as set forth in the Equity
Warrant Register to be maintained by the Equity Warrant Agent
pursuant to Section 4.01 for that purpose or, in the case of
Equity Warrants that are issued with Offered Securities and
cannot then be transferred separately therefrom, [IF REGISTERED
OFFERED SECURITIES AND EQUITY WARRANTS THAT ARE NOT THEN
DETACHABLE -- the person or persons in whose name the related
Offered Securities shall be registered as set forth in the
security register for such Offered Securities, prior to the
Detachable Date.] [IF REGISTERED OFFERED SECURITIES AND EQUITY
WARRANTS THAT ARE NOT THEN DETACHABLE -- The Company will, or
will cause the security registrar of any such Offered Securities
to, make available to the Equity Warrant Agent at all times
(including on and after the Detachable Date, in the case of
Equity Warrants originally issued with Offered Securities and not
subsequently transferred separately therefrom) such information
as to holders of Offered Securities with Equity Warrants as may
be necessary to keep the Warrant Register up to date.]
ARTICLE II
DURATION AND EXERCISE OF EQUITY WARRANTS
2.01. Duration of Equity Warrants. Each Equity
Warrant may be exercised at the time or times, or during the
period or periods, provided by or pursuant to the Board
Resolution relating thereto and specified in the Equity Warrant
Certificate evidencing such Equity Warrant. Each Equity Warrant
not exercised at or before 5:00 P.M., New York City time, on its
Expiration Date shall become void, and all rights of the Holder
of such Equity Warrant thereunder and under this Agreement shall
cease, provided that the Company reserves the right to, and may,
in its sole discretion, at any time and from time to time, at
such time or times as the Company so determines, extend the
expiration date of the Equity Warrants for such periods of time
as it chooses; further provided that in no case may the
expiration date of the Equity Warrants (as extended) be extended
beyond five years from the expiration date set forth above.
Whenever the expiration date of the Equity Warrants is so
extended, the Company shall at least 20 days prior to the then
expiration date cause to be mailed to the Equity Warrant Agent
and the registered Holders of the Equity Warrants in accordance
with the provisions of Section 5.03 hereof a notice stating that
the expiration date has been extended and setting forth the new
expiration date. No adjustment shall be made for any dividends
on any Equity Securities issuable upon exercise of any Equity
Warrant.
2.02. Exercise of Equity Warrants. (a) The Holder of
an Equity Warrant shall have the right, at its option, to
exercise such Equity Warrant and, subject to subsection (e) of
this Section 2.02, purchase the number of shares of Equity
Securities provided for therein at the time or times or during
the period or periods referred to in Section 2.01 and specified
in the Equity Warrant Certificate evidencing such Equity Warrant.
No fewer than the minimum number of Equity Warrants as set forth
in the Equity Warrant Certificate may be exercised by or on
behalf of any one Holder at any one time. Except as may be
provided in an Equity Warrant Certificate, an Equity Warrant may
be exercised by completing the form of election to purchase set
forth on the reverse side of the Equity Warrant Certificate, by
duly executing the same, and by delivering the same, together
with payment in full of the Equity Warrant Price, in lawful money
of the United States of America, in cash or by certified or
official bank check or by bank wire transfer, to the Equity
Warrant Agent. Except as may be provided in an Equity Warrant
Certificate, the date on which such Equity Warrant Certificate
and payment are received by the Equity Warrant Agent as aforesaid
shall be deemed to be the date on which the Equity Warrant is
exercised and the relevant shares of Equity Securities are
issued.
(b) Upon the exercise of an Equity Warrant, the
Company shall issue, to or upon the order of the Holder of such
Equity Warrant, the shares of Equity Securities to which such
Holder is entitled, registered, in the case of shares of Equity
Securities in registered form, in such name or names as may be
directed by such Holder.
(c) The Equity Warrant Agent shall deposit all funds
received by it in payment of the Equity Warrant Price for Equity
Warrants in the account of the Company maintained with it for
such purpose and shall advise the Company be telephone by 5:00
P.M., New York City time, of each day on which a payment of the
Equity Warrant Price for Equity Warrants is received of the
amount so deposited in its account. The Equity Warrant Agent
shall promptly confirm such telephone advice in writing to the
Company.
(d) The Equity Warrant Agent shall, from time to
time, as promptly as practicable, advise the Company of (i) the
number of Equity Warrants of each title exercised as provided
herein, (ii) the instructions of each Holder of such Equity
Warrants with respect to delivery of the Equity Securities issued
upon exercise of such Equity Warrants to which such Holder is
entitled upon such exercise, and (iii) such other information as
<PAGE>
the Company or such Trustee shall reasonably require. Such
notice may be given by telephone to be promptly confirmed in
writing.
(e) The Company will pay all documentary stamp taxes
attributable to the initial issuance of Equity Warrants;
provided, however, that the holder, and not the Company, shall be
required to pay any stamp or other tax or other governmental
charge that may be imposed in connection with any transfer
involved in the issuance of the Equity Securities; and in the
event that any such transfer is involved, the Company shall not
be required to issue any Equity Securities (and the holder's
purchase of the shares of Equity Securities issued upon the
exercise of such holder's Equity Warrant shall not be deemed to
have been consummated) until such tax or other charge shall have
been paid or it has been established to the Company's
satisfaction that no such tax or other charge is due.
2.03. Equity Warrant Adjustments. The terms and
conditions, if any, on which the exercise price of and/or the
number of shares of Equity Securities covered by an Equity
Warrant are subject to adjustments will be set forth in the
Prospectus Supplement relating thereto. Such terms will include
the adjustment mechanism for the exercise price of, and the
number of shares of Equity Securities covered by, an Equity
Warrant, the events requiring such adjustments, the events upon
which the Company may, in lieu of making such adjustments, make
proper provisions so that the Holder, upon exercise of such
Holder's Equity Warrant, would be treated as if such Holder had
been a holder of the Equity Securities received upon such
exercise, prior to the occurrence of such events, and provisions
affecting exercise of the Equity Warrants in the event of certain
events affecting the Equity Securities.
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
OF EQUITY WARRANTS
3.01. Holders of Equity Warrants May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, any
Holder may, without the consent of the Equity Warrant Agent,
enforce and may institute and maintain any suit, action or
proceeding against the Company suitable to enforce, or otherwise
in respect of, his right to exercise his Equity Warrants as
provided in the Equity Warrants and in this Agreement.
3.02. Merger, Consolidation, Sale, Transfer or
Conveyance. (a) In case any of the following shall occur while
any Equity Warrants are outstanding: (i) any reclassification or
change of the outstanding shares of Equity Securities; or (ii)
any consolidation or merger to which the Company is party (other
than a consolidation or a merger in which the Company is the
continuing corporation and which does not result in any
reclassification of, or change in, the outstanding shares of
Equity Securities issuable upon exercise of the Equity Warrants);
or (iii) any sale, conveyance or lease to another corporation of
the property of the Company as an entirety or substantially as an
entirety; then the Company, or such successor or purchasing
corporation, as the case may be, shall make appropriate provision
by amendment of this Agreement or otherwise so that the Holders
of the Equity Warrants then outstanding shall have the right at
any time thereafter, upon exercise of such Equity Warrants, to
purchase the kind and amount of shares of stock and other
securities and property receivable upon such a reclassification,
change, consolidation, merger, sale, conveyance or lease as would
be received by a holder of the number of shares of Equity
Securities issuable upon exercise of such Equity Warrant
immediately prior to such reclassification, change,
consolidation, merger, sale, conveyance or lease, and, in the
case of a consolidation, merger, sale, conveyance or lease, the
Company shall thereupon be relieved of any further obligation
hereunder or under the Equity Warrants, and the Company as the
predecessor corporation may thereupon or at any time thereafter
be dissolved, wound up or liquidated. Such successor or assuming
corporation thereupon may cause to be signed, and may issue
either in its own name or in the name of the Company, any or all
of the Equity Warrants issuable hereunder which theretofore shall
not have been signed by the Company, and may execute and deliver
Equity Securities in its own name, in fulfillment of its
obligations to deliver Equity Securities upon exercise of the
Equity Warrants. All the Equity Warrants so issued shall in all
respects have the same legal rank and benefit under this
Agreement as the Equity Warrants theretofore or thereafter issued
in accordance with the terms of this Agreement as though all of
such Equity Warrants had been issued at the date of the execution
hereof. In any case of any such reclassification, change,
consolidation, merger, conveyance, transfer or lease, such
changes in phraseology and form (but not in substance) may be
made in the Equity Warrants thereafter to be issued as may be
appropriate.
(b) The Equity Warrant Agent may receive a written
opinion of legal counsel as conclusive evidence that any such
merger, consolidation, sale, transfer, conveyance or other
disposition of substantially all of the assets of the Company
<PAGE>
complies with the provisions of this Section 3.02.
3.03. Treatment of Holders of Equity Warrant
Certificates. (a) In the event that the Equity Warrants are
offered together with, and, prior to the Detachable Date, are not
detachable to, Offered Securities, the Company, the Equity
Warrant Agent and all other persons may, prior to such Detachable
Date, treat the holder of the Offered Security as the Holder of
the Equity Warrant Certificates initially attached thereto for
any purpose and as the person entitled to exercise the rights
represented by the Equity Warrants evidenced by such Equity
Warrant Certificates, any notice to the contrary notwithstanding.
After the Detachable Date and prior to due presentment of an
Equity Warrant Certificate for registration of transfer, the
Company and the Equity Warrant Agent may treat the registered
Holder of an Equity Warrant Certificate as the absolute Holder
thereof for any purpose and as the person entitled to exercise
the rights represented by the Equity Warrants evidenced thereby,
any notice to the contrary notwithstanding.
(b) In all other cases, the Company and the Equity
Warrant Agent may treat the registered Holder of an Equity
Warrant Certificate as the absolute Holder thereof for any
purpose and as the person entitled to exercise the rights
represented by the Equity Warrants evidenced thereby, any notice
to the contrary notwithstanding.
ARTICLE IV
EXCHANGE AND TRANSFER OF EQUITY WARRANTS
4.01. Equity Warrant Register; Exchange and Transfer
of Equity Warrants. The Equity Warrant Agent shall maintain, at
its corporate trust office [or at __________________], a register
(the "Equity Warrant Register") in which, upon the issuance of
Equity Warrants, or on and after the Detachable Date in the case
of Equity Warrants not separately transferable prior thereto,
and, subject to such reasonable regulations as the Equity Warrant
Agent may prescribe, it shall register Equity Warrant
Certificates and exchanges and transfers thereof. The Equity
Warrant Register shall be in written form or in any other form
capable of being converted into written form within a reasonable
time.
Except as provided in the following sentence, upon
surrender at the corporate trust office of the Equity Warrant
Agent [or at _____________________], Equity Warrant Certificates
may be exchanged for one or more other Equity Warrant
Certificates evidencing the same aggregate number of Equity
Warrants of the same title, or may be transferred in whole or in
part. An Equity Warrant Certificate evidencing Equity Warrants
that are not then transferable separately from the Offered
Security with which they were issued may be exchanged or
transferred prior to its Detachable Date only together with such
Offered Security and only for the purpose of effecting, or in
conjunction with, an exchange or transfer of such Offered
Security; and on or prior to the Detachable Date, each exchange
or transfer of such Offered Security on the Security Register of
the Offered Securities shall operate also to exchange or transfer
the related Equity Warrants. A transfer shall be registered upon
surrender of an Equity Warrant Certificate to the Equity Warrant
Agent at its corporate trust office [or at __________________]
for transfer, properly endorsed or accompanied by appropriate
instruments of transfer and written instructions for transfer,
all in form satisfactory to the Company and the Equity Warrant
Agent. Whenever an Equity Warrant Certificate is surrendered for
exchange or transfer, the Equity Warrant Agent shall countersign
and deliver to the person or persons entitled thereto one or more
Equity Warrant Certificates duly executed by the Company, as so
requested. The Equity Warrant Agent shall not be required to
effect any exchange or transfer which will result in the issuance
of an Equity Warrant Certificate evidencing a fraction of an
Equity Warrant. All Equity Warrant Certificates issued upon any
exchange or transfer of an Equity Warrant Certificate shall be
the valid obligations of the Company, evidencing the same
obligations, and entitled to the same benefits under this
Agreement, as the Equity Warrant Certificate surrendered for such
exchange or transfer.
No service charge shall be made for any exchange or
transfer of Equity Warrants, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any such exchange or
transfer, in accordance with Section 2.02(f) hereof.
4.02. Treatment of Holders of Equity Warrants. Every
Holder of an Equity Warrant, by accepting the Equity Warrant
Certificate evidencing the same, consents and agrees with the
Company, the Equity Warrant Agent and with every other Holder of
Equity Warrants of the same title that the Company and the Equity
Warrant Agent may treat the Holder of an Equity Warrant
Certificate (or if the Equity Warrant Certificate is not then
detachable, the Holder of the related Offered Security) as the
absolute owner of such Equity Warrant for all purposes and as the
person entitled to exercise the rights represented by such Equity
Warrant, any notice to the contrary notwithstanding.
<PAGE>
4.03. Cancellation of Equity Warrant Certificates. In
the event that the Company shall purchase, redeem or otherwise
acquire any Equity Warrants after the issuance thereof, the
Equity Warrant Certificate or Certificates evidencing such Equity
Warrants shall thereupon be delivered to the Equity Warrant Agent
and be cancelled by it. The Equity Warrant Agent shall also
cancel any Equity Warrant Certificate (including any mutilated
Equity Warrant Certificate) delivered to it for exercise, in
whole or in part, or for exchange or transfer. Equity Warrant
Certificates so cancelled shall be delivered by the Equity
Warrant Agent to the Company from time to time, or disposed of in
accordance with the instructions of the Company.
ARTICLE V
CONCERNING THE EQUITY WARRANT AGENT
5.01. Equity Warrant Agent. The Company hereby
appoints _________________________________ as Equity Warrant
Agent of the Company in respect of the Equity Warrants upon the
terms and subject to the conditions set forth herein; and
________________________________ hereby accepts such appointment.
The Equity Warrant Agent shall have the powers and authority
granted to and conferred upon it in the Equity Warrant
Certificates and hereby and such further powers and authority
acceptable to it to act on behalf of the Company as the Company
may hereafter grant to or confer upon it. All of the terms and
provisions with respect to such powers and authority contained in
the Equity Warrant Certificates are subject to and governed by
the terms and provisions hereof.
5.02. Conditions of Equity Warrant Agent's
Obligations. The Equity Warrant Agent accepts its obligations
set forth herein upon the terms and conditions hereof, including
the following, to all of which the Company agrees and to all of
which the rights hereunder of the Holders shall be subject:
(a) Compensation and Indemnification. The Company
agrees to promptly pay the Equity Warrant Agent the
compensation to be set forth in an exhibit hereto and to
reimburse the Equity Warrant Agent for reasonable out-of-
pocket expenses (including counsel fees) incurred by the
Equity Warrant Agent in connection with the services
rendered hereunder by the Equity Warrant Agent. The Company
also agrees to indemnify the Equity Warrant Agent for, and
to hold it harmless against, any loss, liability or expense
(including the reasonable costs and expenses of defending
against any claim of liability) incurred without negligence
or bad faith on the part of the Equity Warrant Agent arising
out of or in connection with its appointment as Equity
Warrant Agent hereunder.
(b) Agent For The Company. In acting under this
Agreement and in connection with any Equity Warrant
Certificate, the Equity Warrant Agent is acting solely as
agent of the Company and does not assume any obligation or
relationship of agency or trust for or with any Holder.
(c) Counsel. The Equity Warrant Agent may consult
with counsel satisfactory to it, and the advice of such
counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in accordance with
the advice of such counsel.
(d) Documents. The Equity Warrant Agent shall be
protected and shall incur no liability for or in respect of
any action taken, suffered or omitted by it in reliance upon
any notice, direction, consent, certificate, affidavit,
statement or other paper or document reasonably believed by
it to be genuine and to have been presented or signed by the
proper parties.
(e) Officer's Certificate. Whenever in the
performance of its duties hereunder the Equity Warrant Agent
shall reasonably deem it necessary that any fact or matter
be proved or established by the Company prior to taking,
suffering or omitting any action hereunder, the Equity
Warrant Agent may (unless other evidence in respect thereof
be herein specifically prescribed), in the absence of bad
faith on its part, rely upon a certificate signed by the
Chairman, the President, a Vice President, the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary
of the Company (an "Officer's Certificate") delivered by the
Company to the Equity Warrant Agent.
(f) Actions Through Agents. The Equity Warrant
Agent may execute and exercise any of the rights or powers
hereby vested in it or perform any duty hereunder either
itself or by or through its attorneys or agents, and the
Equity Warrant Agent shall not be answerable or accountable
for any act, default, neglect or misconduct of any such
attorney or agent or for any loss to the Company resulting
from such neglect or misconduct; provided, however, that
reasonable care shall have been exercised in the selection
<PAGE>
and continued employment of such attorneys and agents.
(g) Certain Transactions. The Equity Warrant Agent,
and any officer, director or employee thereof, may become
the owner of, or acquire any interest in, any Equity
Warrant, with the same rights that he, she or it would have
if it were not the Equity Warrant Agent, and, to the extent
permitted by applicable law, he, she or it may engage or be
interested in any financial or other transaction with the
Company and may serve on, or as depositary, trustee or agent
for, any committee or body of holders of Debt Securities or
other obligations of the Company as if it were not the
Equity Warrant Agent.
(h) No Liability For Interest. The Equity Warrant
Agent shall not be liable for interest on any monies at any
time received by it pursuant to any of the provisions of
this Agreement or of the Equity Warrant Certificates, except
as otherwise agreed with the Company.
(i) No Liability For Invalidity. The Equity Warrant
Agent shall incur no liability with respect to the validity
of this Agreement (except as to the due execution hereof by
the Equity Warrant Agent) or any Equity Warrant Certificate
(except as to the countersignature thereof by the Equity
Warrant Agent).
(j) No Responsibility For Company Representations.
The Equity Warrant Agent shall not be responsible for any of
the recitals or representations contained herein (except as
to such statements or recitals as describe the Equity
Warrant Agent or action taken or to be taken by it) or in
any Equity Warrant Certificate (except as to the Equity
Warrant Agent's countersignature on such Equity Warrant
Certificate), all of which recitals and representations are
made solely by the Company.
(k) No Implied Obligations. The Equity Warrant
Agent shall be obligated to perform only such duties as are
specifically set forth herein, and no other duties or
obligations shall be implied. The Equity Warrant Agent
shall not be under any obligation to take any action
hereunder that may subject it to any expense or liability,
the payment of which within a reasonable time is not, in its
reasonable opinion, assured to it. The Equity Warrant Agent
shall not be accountable or under any duty or responsibility
for the use by the Company of any Equity Warrant Certificate
countersigned by the Equity Warrant Agent and delivered by
it to the Company pursuant to this Agreement or for the
application by the Company of the proceeds of the issuance
or exercise of Equity Warrants. The Equity Warrant Agent
shall have no duty or responsibility in case of any default
by the Company in the performance of its covenants or
agreements contained herein or in any Equity Warrant
Certificate or in case of the receipt of any written demand
from a Holder with respect to such default, including,
without limiting the generality of the foregoing, any duty
or responsibility to initiate or attempt to initiate any
proceedings at law or otherwise or, except as provided in
Section 6.02 hereof, to make any demand upon the Company.
5.03. Compliance With Applicable Laws. The Equity
Warrant Agent agrees to comply with all applicable federal and
state laws imposing obligations on it in respect of the services
rendered by it under this Equity Warrant Agreement and in
connection with the Equity Warrants, including (but not limited
to) the provisions of United States federal income tax laws
regarding information reporting and backup withholding. The
Equity Warrant Agent expressly assumes all liability for its
failure to comply with any such laws imposing obligations on it,
including (but not limited to) any liability for failure to
comply with any applicable provisions of United States federal
income tax laws regarding information reporting and backup
withholding.
5.04. Resignation and Appointment of Successor. (a)
The Company agrees, for the benefit of the Holders of the Equity
Warrants, that there shall at all times be an Equity Warrant
Agent hereunder until all the Equity Warrants are no longer
exercisable.
(b) The Equity Warrant Agent may at any time resign
as such agent by giving written notice to the Company of such
intention on its part, specifying the date on which its desired
resignation shall become effective, subject to the appointment of
a successor Equity Warrant Agent and acceptance of such
appointment by such successor Equity Warrant Agent, as
hereinafter provided. The Equity Warrant Agent hereunder may be
removed at any time by the filing with it of an instrument in
writing signed by or on behalf of the Company and specifying such
removal and the date when it shall become effective. Such
resignation or removal shall take effect upon the appointment by
the Company, as hereinafter provided, of a successor Equity
Warrant Agent (which shall be a banking institution organized
under the laws of the United States of America, or one of the
states thereof and having an office or an agent's office in the
<PAGE>
Borough of Manhattan, The City of New York) and the acceptance of
such appointment by such successor Equity Warrant Agent. In the
event a successor Equity Warrant Agent has not been appointed and
has not accepted its duties within 90 days of the Equity Warrant
Agent's notice of resignation, the Equity Warrant Agent may apply
to any court of competent jurisdiction for the designation of a
successor Equity Warrant Agent. The obligation of the Company
under Section 5.02(a) shall continue to the extent set forth
therein notwithstanding the resignation or removal of the Equity
Warrant Agent.
(c) In case at any time the Equity Warrant Agent
shall resign, or shall be removed, or shall become incapable of
acting, or shall be adjudged bankrupt or insolvent, or make an
assignment for the benefit of its creditors or consent to the
appointment of a receiver or custodian of all or any substantial
part of its property, or shall admit in writing its inability to
pay or meet its debts as they mature, or if a receiver or
custodian of it or all or any substantial part of its property
shall be appointed, or if any public officer shall have taken
charge or control of the Equity Warrant Agent or of its property
or affairs, for the purpose of rehabilitation, conservation or
liquidation, a successor Equity Warrant Agent, qualified as
aforesaid, shall be appointed by the Company by an instrument in
writing, filed with the successor Equity Warrant Agent. Upon the
appointment as aforesaid of a successor Equity Warrant Agent and
acceptance by the latter of such appointment, the Equity Warrant
Agent so superseded shall cease to be the Equity Warrant Agent
hereunder.
(d) Any successor Equity Warrant Agent appointed
hereunder shall execute, acknowledge and deliver to its
predecessor and to the Company an instrument accepting such
appointment hereunder, and thereupon such successor Equity
Warrant Agent, without any further act, deed or conveyance, shall
become vested with all the authority, rights, powers, trusts,
immunities, duties and obligations of such predecessor with like
effect as if originally named as Equity Warrant Agent hereunder,
and such predecessor, upon payment of its charges and
disbursements then unpaid, shall thereupon become obligated to
transfer, deliver and pay over, and such successor Equity Warrant
Agent shall be entitled to receive all moneys, securities and
other property on deposit with or held by such predecessor, as
Equity Warrant Agent hereunder.
(e) Any corporation into which the Equity Warrant
Agent hereunder may be merged or converted or any corporation
with which the Equity Warrant Agent may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Equity Warrant Agent shall be a party,
or any corporation to which the Equity Warrant Agent shall sell
or otherwise transfer all or substantially all of the assets and
business of the Equity Warrant Agent, provided that it shall be
qualified as aforesaid, shall be the successor Equity Warrant
Agent under this Agreement without the execution or filing of any
paper or any further act on the part of any of the parties
hereto.
ARTICLE VI
MISCELLANEOUS
6.01. Amendment. (a) This Agreement and the Equity
Warrants may be amended by the Company and the Equity Warrant
Agent, without the consent of the Holders of Equity Warrants, for
the purpose of curing any ambiguity, or of curing, correcting or
supplementing any defective or inconsistent provision contained
herein or therein or in any other manner which the Company may
deem to be necessary or desirable and which will not materially
and adversely affect the interests of the Holders of the Equity
Warrants.
(b) The Company and the Equity Warrant Agent may
modify or amend this Agreement and the Equity Warrant
Certificates with the consent of the Holders of not fewer than a
majority in number of the then outstanding unexercised Equity
Warrants affected by such modification or amendment, for any
purpose; provided, however, that no such modification or
amendment that shortens the period of time during which the
Equity Warrants may be exercised, or otherwise materially and
adversely affects the exercise rights of the holders or reduces
the percentage of holders of outstanding Equity Warrants the
consent of which is required for modification or amendment of
this agreement or the Equity Warrants, may be made without the
consent of each holder affected thereby.
6.02. Notices and Demands to the Corporation and
Equity Warrant Agent. If the Equity Warrant Agent shall receive
any notice or demand addressed to the Company by any Holder
pursuant to the provisions of the Equity Warrant Certificates,
the Equity Warrant Agent shall promptly forward such notice or
demand to the Company.
6.03. Addresses For Notices. Any communications from
the Company to the Equity Warrant Agent with respect to this
Agreement shall be addressed to [name of Equity Warrant Agent], [
<PAGE>
, New York, New York ], Attention:
[Corporate Trust Department]; any communications from the Equity
Warrant Agent to the Company with respect to this Agreement shall
be addressed to Loral Corporation, 600 Third Avenue, New York,
New York 10016, Attention: Treasurer (with a copy to the
Secretary); or such other addresses as shall be specified in
writing by the Equity Warrant Agent or by the Company.
6.04. Governing Law. This Agreement and the Equity
Warrants shall be governed by the laws of the State of New York
applicable to contracts made and to be performed entirely within
such state.
6.05. Governmental Approvals. The Company will from
time to time use all reasonable efforts to obtain and keep
effective any and all permits, consents and approvals of
governmental agencies and authorities and the national securities
exchange on which the Equity Warrants may be listed or authorized
for trading from time to time and filings under the United States
federal and state laws, which may be or become requisite in
connection with the issuance, sale, trading, transfer or delivery
of the Equity Warrants, and the exercise of the Equity Warrants.
6.06. Persons Having Rights Under Equity Warrant
Agreement. Nothing in this Agreement expressed or implied and
nothing that may be inferred from any of the provisions hereof is
intended, or shall be construed, to confer upon, or give to, any
person or corporation other than the Company, the Equity Warrant
Agent and the Holders any right, remedy or claim under or by
reason of this Agreement or of any covenant, condition,
stipulation, promise or agreement hereof; and all covenants,
conditions, stipulations, promises and agreements in this
Agreement contained shall be for the sole and exclusive benefit
of the Company and the Equity Warrant Agent and their successors
and of the Holders of Equity Warrant Certificates.
6.07. Delivery of Prospectus. The Company will
furnish to the Equity Warrant Agent sufficient copies of a
prospectus or prospectuses relating to the Equity Securities
deliverable upon exercise of any outstanding Equity Warrants
(each a "Prospectus"), and the Equity Warrant Agent agrees to
deliver to the Holder of the Equity Warrant, prior to or
concurrently with the delivery of the Equity Securities issued
upon the exercise thereof, a copy of the Prospectus relating to
such Equity Securities.
6.08. Headings. The descriptive headings of the
several Articles and Sections and the Table of Contents of this
Agreement are for convenience only and shall not control or
affect the meaning or construction of any of the provisions
hereof.
6.09. Counterparts. This Agreement may be executed by
the parties hereto in any number of counterparts, each of which
when so executed and delivered shall be deemed to be an original;
but all such counterparts shall together constitute but one and
the same instrument.
6.10. Inspection of Agreement. A copy of this
Agreement shall be available at all reasonable times at the
principal corporate trust office of the Equity Warrant Agent, for
inspection by the Holders of Equity Warrants.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, all as of the day and year first
above written.
LORAL CORPORATION
By
------------------------
Name:
Title:
Attest:
Name:
------------------------
Title:
------------------------
[Name of Equity Warrant
Agent]
Attest:
By
Name: Name:
------------------------ ------------------------
Title: Title:
<PAGE>
Exhibit 4.8
_________________________________________________________________
______________________
DEPOSIT AGREEMENT
______________________
Dated as of ________, 19__
among
LORAL CORPORATION
and
[NAME OF DEPOSITARY], as Depositary
and
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
_________________________________________________________________
<PAGE>
TABLE OF CONTENTS
Page
Article I - Definitions. . . . . . . . . . . . . . . . . 1
Section 1.01. "Agent". . . . . . . . . . . . . . . . . . . 1
Section 1.02. "Certificate of Designations". . . . . . . . 1
Section 1.03. "Certificate of Incorporation" . . . . . . . 1
Section 1.04. "Common Stock" . . . . . . . . . . . . . . . 2
Section 1.05. "Company". . . . . . . . . . . . . . . . . . 2
Section 1.06. "Corporate Office" . . . . . . . . . . . . . 2
Section 1.07. "Deposit Agreement". . . . . . . . . . . . . 2
Section 1.08. "Depositary" . . . . . . . . . . . . . . . . 2
Section 1.09. "Depositary Share" . . . . . . . . . . . . . 2
Section 1.10. "Holder" . . . . . . . . . . . . . . . . . . 2
Section 1.11. "Preferred Stock". . . . . . . . . . . . . . 2
Section 1.12. "Receipt". . . . . . . . . . . . . . . . . . 2
Section 1.13. "Registrar". . . . . . . . . . . . . . . . . 3
Section 1.14. "Securities Act" . . . . . . . . . . . . . . 3
Article II - Form of Receipts, Deposit of Preferred
Stock, Execution and Delivery, Transfer,
Surrender and Redemption of Receipts . . . . 3
Section 2.01. Form and Transferability of Receipts . . . . 3
Section 2.02. Deposit of Preferred Stock; Execution and
Delivery of Receipts in Respect Thereof. . . 4
Section 2.03. Optional Redemption of Preferred Stock . . . 6
Section 2.04. Transfers of Receipts. . . . . . . . . . . . 7
Section 2.05. Combinations and Split-ups of Receipts . . . 8
Section 2.06. Surrender of Receipts and Withdrawal of
Preferred Stock. . . . . . . . . . . . . . . 8
Section 2.07. Limitations on Execution and Delivery,
Transfer, Split-up, Combination, Surrender
and Exchange of Receipts . . . . . . . . . . 9
Section 2.08. Lost Receipts, Etc.. . . . . . . . . . . . . 10
Section 2.09. Cancellation and Destruction of Surrendered
Receipts . . . . . . . . . . . . . . . . . . 10
Section 2.10. Conversion or Exchange of Preferred Stock
into Common Stock or Other Securities. . . . 11
Article III - Certain Obligations of Holders of Receipts
and the Company. . . . . . . . . . . . . . . 14
Section 3.01. Filing Proofs, Certificates and Other
Information. . . . . . . . . . . . . . . . . 14
Section 3.02. Payment of Fees and Expenses . . . . . . . . 15
Section 3.03. Representations and Warranties as to
Preferred Stock. . . . . . . . . . . . . . . 15
Section 3.04. Representation and Warranty as to Receipts . 15
Section 3.05. Covenants and Representation and Warranty as
to Common Stock. . . . . . . . . . . . . . . 16
Article IV - the Preferred Stock; Notices . . . . . . . . 16
Section 4.01. Cash Distributions . . . . . . . . . . . . . 16
Section 4.02. Distributions Other than Cash. . . . . . . . 16
Section 4.03. Subscription Rights, Preferences or
Privileges . . . . . . . . . . . . . . . . . 17
Section 4.04. Notice of Dividends; Fixing of Record Date
for Holders of Receipts. . . . . . . . . . . 18
Section 4.05. Voting Rights. . . . . . . . . . . . . . . . 19
Section 4.06. Changes Affecting Preferred Stock and
Reclassifications, Recapitalizations, Etc. . 19
Section 4.07. Inspection of Reports. . . . . . . . . . . . 20
Section 4.08. Lists of Receipt Holders . . . . . . . . . . 20
Section 4.09. Tax and Regulatory Compliance. . . . . . . . 20
Section 4.10. Withholding. . . . . . . . . . . . . . . . . 21
Article V - the Depositary and the Company . . . . . . . 21
Section 5.01. Maintenance of offices, Agencies and
Transfer Books by the Depositary and the
Registrar. . . . . . . . . . . . . . . . . . 21
Section 5.02. Prevention or Delay in Performance by the
Depositary, any Agent, the Registrar or the
Company. . . . . . . . . . . . . . . . . . . 22
Section 5.03. Obligations of the Depositary, any Agent,
the Registrar and the Company. . . . . . . . 22
Section 5.04. Registration and Removal of the Depositary;
Appointment of Successor Depositary. . . . . 24
Section 5.05. Corporate Notices and Reports. . . . . . . . 25
Section 5.06. Indemnification by the Company . . . . . . . 25
Section 5.07. Fees, Charges and Expenses . . . . . . . . . 25
Article VI - Amendment and Termination. . . . . . . . . . 26
Section 6.01. Amendment. . . . . . . . . . . . . . . . . . 26
Section 6.02. Termination. . . . . . . . . . . . . . . . . 27
Article VII - Miscellaneous. . . . . . . . . . . . . . . . 28
Section 7.01. Counterparts . . . . . . . . . . . . . . . . 28
Section 7.02. Exclusive Benefits of Parties. . . . . . . . 28
Section 7.03. Invalidity of Provisions . . . . . . . . . . 29
<PAGE>
Section 7.04. Notices. . . . . . . . . . . . . . . . . . . 29
Section 7.05. Holders of Receipts Are Parties. . . . . . . 29
Section 7.06. Governing Law. . . . . . . . . . . . . . . . 30
Section 7.07. Inspection of Deposit Agreement and
Certificate of Designations. . . . . . . . . 30
Section 7.08. Headings . . . . . . . . . . . . . . . . . . 30
Exhibit A - Form Of Receipt
<PAGE>
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of ______, 19__, among
LORAL CORPORATION, a New York corporation, [NAME OF BANK],
[_______________], as Depositary, and all Holders from time to
time of the Receipts issued hereunder (as hereinafter defined).
WITNESSETH:
WHEREAS, it is desired to provide, as hereinafter set
forth in this Deposit Agreement, for the deposit by the Company
of shares of the Company's Preferred Stock (as hereinafter
defined) with the Depositary for the purposes set forth in this
Deposit Agreement and for the issuance hereunder of the Receipts
evidencing Depositary Shares representing an interest in the
Preferred Stock deposited; and
WHEREAS, the Receipts are to be substantially in the
form of Exhibit A annexed to this Deposit Agreement, with
appropriate insertions, modifications and omissions, as
hereinafter provided in this Deposit Agreement.
NOW, THEREFORE, in consideration of the premises
contained herein, it is agreed by and among the parties hereto as
follows:
ARTICLE I
DEFINITIONS
The following definitions shall apply to the respective
terms (in the singular and plural forms of such terms) used in
this Deposit Agreement and the Receipts:
SECTION 1.01. "Agent" shall mean any agent of the
Depositary appointed by the Depositary from time to time to act
in any respect for the Depositary for purposes of this Deposit
Agreement and the appointment of which may be modified or
terminated by the Depositary. The Depositary will notify the
Company of any such action.
SECTION 1.02. "Certificate of Designations" shall mean
the Certificate of Designations filed with the Secretary of State
of the State of New York establishing the Preferred Stock as a
series of Preferred Stock.
SECTION 1.03. "Certificate of Incorporation" shall
mean the Restated Certificate of Incorporation, as amended and/or
restated from time to time, of the Company.
SECTION 1.04. "Common Stock" shall mean shares of the
Company's common stock, $0.25 par value per share.
SECTION 1.05. "Company" shall mean Loral Corporation,
a New York corporation, and its successors.
SECTION 1.06. "Corporate Office" shall mean the
corporate office of the Depositary in the Borough of Manhattan,
The City of New York, at which at any particular time its
business in respect of matters governed by this Deposit Agreement
shall be administered, which at the date of this Deposit
Agreement is located at ________, New York, New York _________.
SECTION 1.07. "Deposit Agreement" shall mean this
agreement, as the same may be amended, modified or supplemented
from time to time.
SECTION 1.08. "Depositary" shall mean [NAME OF BANK],
a company having its principal office in the United States and
having a combined capital and surplus of at least $50,000,000,
and any successor as depositary hereunder.
SECTION 1.09. "Depositary Share" shall mean an
interest in one _______ of a share of Preferred Stock deposited
by the Company with the Depositary hereunder and the same
proportionate interest in any and all other property received by
the Depositary in respect of such share of Preferred Stock and
held under this Deposit Agreement, all as evidenced by the
Receipts issued hereunder. Subject to the terms of this Deposit
Agreement, each owner of a Depositary Share is entitled,
proportionately, to all the rights, preferences and privileges of
the Preferred Stock represented by such Depositary Share,
including any and all dividend, voting, redemption, conversion,
exchange and liquidation rights provided for in the Certificate
of Designations.
SECTION 1.10. "Holder", as applied to a Receipt, shall
mean the person in whose name an outstanding Receipt is
registered on the books maintained by the Depositary for such
purpose, and such person's successors.
SECTION 1.11. "Preferred Stock" shall mean shares of
the Company's Preferred Stock [Series __], as specified in the
<PAGE>
Certificate of Designations, $1.00 par value per share.
SECTION 1.12. "Receipt" shall mean a depositary
receipt issued hereunder to evidence one or more Depositary
Shares, whether in definitive or temporary form, substantially in
the form set forth as Exhibit A hereto.
SECTION 1.13. "Registrar" shall mean any bank or trust
company appointed to register ownership and transfers of Receipts
as herein provided.
SECTION 1.14. "Securities Act" shall mean the
Securities Act of 1933, as amended.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF PREFERRED STOCK,
EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.01. Form and Transferability of Receipts.
Definitive Receipts shall be engraved, printed or lithographed,
with steel-engraved borders and underlying tint, and shall be
substantially in the form set forth in Exhibit A annexed to this
Deposit Agreement, with appropriate insertions, modifications and
omissions, as hereinafter provided. Pending the preparation of
definitive Receipts, the Depositary, upon the written order of
the Company, delivered in compliance with Section 2.02, shall
execute and deliver temporary Receipts, which may be printed,
lithographed, typewritten, reproduced or otherwise, substantially
of the tenor of the definitive Receipts in lieu of which they are
issued and with such appropriate insertions, omissions,
substitutions and other variations as the persons executing such
Receipts may determine, as evidenced by their execution of such
Receipts. If temporary Receipts are issued, the Company and the
Depositary will cause definitive Receipts to be prepared without
unreasonable delay. After the preparation of definitive
Receipts, the temporary Receipts shall be exchangeable for
definitive Receipts upon surrender of the temporary Receipts at
the Corporate Office or such other office or offices, if any, as
the Depositary may designate, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Receipts,
the Depositary shall execute and deliver in exchange therefor
definitive Receipts representing the same number of Depositary
Shares represented by the surrendered temporary Receipt or
Receipts. Such exchange shall be made at the Company's expense
and without any charge therefor. Until so exchanged, the
temporary Receipts shall in all respects be entitled to the same
benefits under this Agreement, and with respect to the Preferred
Stock, as definitive Receipts.
Receipts shall be executed by the Depositary by the
manual signature of a duly authorized signatory of the
Depositary, provided that such signature may be a facsimile if a
Registrar (other than the Depositary) shall have countersigned
the Receipts by manual signature of a duly authorized signatory
of the Registrar. No Receipt shall be entitled to any benefits
under this Deposit Agreement or be valid or obligatory for any
purpose unless it shall have been executed as provided in the
preceding sentence. The Depositary shall record on its books
each Receipt executed as provided above and delivered as
hereinafter provided.
Except as the Depositary may otherwise determine,
Receipts shall be in denominations of any number of whole
Depositary Shares. All Receipts shall be dated the date of their
issuance.
Receipts may be endorsed with or have incorporated in
the text thereof such legends or recitals or changes not
inconsistent with the provisions of this Deposit Agreement as may
be required by the Depositary or required to comply with any
applicable law or regulation or with the rules and regulations of
any securities exchange upon which the Preferred Stock, the
Depositary Shares or the Receipts may be listed or to conform
with any usage with respect thereto, or to indicate any special
limitations or restrictions to which any particular Receipts are
subject.
Title to any Receipt (and to the Depositary Shares
evidenced by such Receipt) that is properly endorsed or
accompanied by a properly executed instrument of transfer or
endorsement shall be transferable by delivery with the same
effect as in the case of a negotiable instrument; provided,
however, that until a Receipt shall be transferred on the books
of the Depositary as provided in Section 2.04, the Depositary
may, notwithstanding any notice to the contrary, treat the Holder
thereof at such time as the absolute owner thereof for the
purpose of determining the person entitled to receive dividends
and other distributions and notices provided for in this Deposit
Agreement and for all other purposes.
SECTION 2.02. Deposit of Preferred Stock; Execution
and Delivery of Receipts in Respect Thereof. Subject to the
terms and conditions of this Deposit Agreement, the Company may
<PAGE>
from time to time deposit Preferred Stock under this Deposit
Agreement by delivery to the Depositary of a certificate or
certificates for the Preferred Stock to be deposited, properly
endorsed or accompanied, if required by the Depositary, by a duly
executed instrument of transfer or endorsement, in form
satisfactory to the Depositary, together with (i) all such
certifications as may be required by the Depositary in accordance
with the provisions of this Deposit Agreement and (ii) a written
order of the Company directing the Depositary to execute and
deliver to or upon the written order of the person or persons
stated in such order a Receipt or Receipts for the number of
Depositary Shares representing such deposited Preferred Stock.
Upon receipt by the Depositary of a certificate or
certificates for Preferred Stock to be deposited hereunder,
together with the other documents specified above, the Depositary
shall, as soon as transfer and registration can be accomplished,
present such certificate or certificates to the registrar and
transfer agent of the Preferred Stock for transfer and
registration in the name of the Depositary or its nominee of the
Preferred Stock being deposited. Deposited Preferred Stock shall
be held by the Depositary in an account to be established by the
Depositary at the Corporate Office or at such other office as the
Depositary shall determine.
Upon receipt by the Depositary of a certificate or
certificates for Preferred Stock to be deposited hereunder,
together with the other documents specified above, and upon
registration of the Preferred Stock on the books of the Company
in the name of the Depositary or its nominee, the Depositary,
subject to the terms and conditions of this Deposit Agreement,
shall execute and deliver to or upon the order of the person or
persons named in the written order delivered to the Depositary
referred to in the first paragraph of this Section 2.02, a
Receipt or Receipts for the number of whole Depositary Shares
representing the Preferred Stock so deposited, registered in such
name or names as may be requested by such person or persons. The
Depositary shall execute and deliver such Receipt or Receipts at
the Corporate Office, except that, at the request, risk and
expense of any person requesting such delivery, such delivery may
be made at such other place as may be designated by such person.
In each case, delivery will be made only upon payment to the
Depositary of all taxes and other governmental charges and any
fees payable in connection with such deposit and the transfer of
the deposited Preferred Stock.
Other than in the case of splits, combinations or other
reclassifications affecting the Preferred Stock, or in the case
of dividends or other distributions of Preferred Stock, if any,
there shall be deposited hereunder not more than the number of
shares constituting the Preferred Stock as set forth in the
Certificate of Designations, as it may be amended.
The Company shall deliver to the Depositary from time
to time such quantities of Receipts as the Depositary may request
to enable the Depositary to perform its obligations under this
Deposit Agreement.
SECTION 2.03. Optional Redemption of Preferred Stock.
If the Certificate of Designations provides for redemption of the
Preferred Stock at the option of the Company, the Company (unless
otherwise agreed in writing with the Depositary), whenever it
elects to redeem shares of Preferred Stock, shall give the
Depositary not less than 45 days' prior written notice of the
date of such proposed redemption and of the number of shares of
Preferred Stock held by the Depositary to be redeemed and the
applicable redemption price, as set forth in the Certificate of
Designations, including the amount, if any, of accrued and unpaid
dividends to the date of such redemption. Provided that the
Company shall have paid such redemption price in full to the
Depositary on or prior to the date of such redemption, the
Depositary shall redeem (using the proceeds of such redemption)
the number of Depositary Shares representing such Preferred Stock
so redeemed by the Company. The Depositary shall mail, first-
class postage prepaid, notice of the redemption of Preferred
Stock and the proposed simultaneous redemption of the Depositary
Shares representing the Preferred Stock to be redeemed, not less
than 30 nor more than 60 days prior to the date fixed for
redemption of such Preferred Stock and Depositary Shares (the
"redemption date"), to the Holders on the record date fixed for
such redemption, pursuant to Section 4.04 hereof, of the Receipts
evidencing the Depositary Shares to be so redeemed, at the
addresses of such Holders as the same appear on the records of
the Depositary; but neither failure to mail any such notice to
one or more such Holders nor any defect in any notice shall
affect the sufficiency of the redemption as to other Holders.
The Company shall provide the Depositary with such notice, and
each such notice shall state: (i) the record date for the
purposes of such redemption; (ii) the redemption date; (iii) the
number of Depositary Shares to be redeemed; (iv) if fewer than
all the Depositary Shares held by any Holder are to be redeemed,
the number of such Depositary Shares held by such Holder to be so
redeemed; (v) the redemption price; (vi) the place or places
where Receipts evidencing Depositary Shares to be redeemed are to
be surrendered for payment of the redemption price; (vii) that,
from and after the redemption date, dividends in respect of the
<PAGE>
Preferred Stock represented by the Depositary Shares to be
redeemed will cease to accrue and all other rights with respect
to such Depositary Shares will cease and terminate; and (viii) in
the event that the Depositary Shares evidence Preferred Stock
convertible into or exchangeable for Common Stock or other
securities of the Company, that all conversion and exchange
rights, as the case may be, in respect of such Preferred Stock
will terminate at the close of business on the last business day
preceding such redemption date. If fewer than all the
outstanding Depositary Shares are to be redeemed, the Depositary
Shares to be redeemed shall be selected by lot or pro rata (as
nearly as may be) or in any other equitable manner, in each case
as may be determined by the Company.
From and after the redemption date (unless the Company
shall have failed to redeem the shares of Preferred Stock to be
redeemed by it as set forth in the Company's notice mailed by the
Depositary in accordance with the preceding paragraph), (i) all
dividends in respect of the shares of Preferred Stock called for
redemption shall cease to accrue; (ii) in the event that the
Depositary Shares evidence Preferred Stock convertible into or
exchangeable for Common Stock or other securities of the Company,
the conversion and exchange rights, as the case may be, in
respect of such Preferred Stock shall terminate; (iii) the
Depositary Shares called for redemption shall be deemed no longer
to be outstanding; and (iv) all rights of the Holders of Receipts
evidencing such Depositary Shares (except the right to receive
the redemption price) shall cease and terminate. Upon surrender
in accordance with said notice of the Receipts evidencing such
Depositary Shares (properly endorsed or assigned for transfer, if
the Depositary shall so require), such Depositary Shares shall be
redeemed at a redemption price per Depositary Share equal to
[specify fraction] of the redemption price per share paid in
respect of the shares of Preferred Stock pursuant to the
Certificate of Designations plus any other money and other
property represented by each such Depositary Share. The
foregoing shall be further subject to the terms and conditions of
the Certificate of Designations.
If fewer than all of the Depositary Shares evidenced by
a Receipt are called for redemption, the Depositary will deliver
to the Holder of such Receipt upon its surrender to the
Depositary, together with payment of the redemption price for the
Depositary Shares called for redemption, a new Receipt evidencing
the Depositary Shares evidenced by such prior Receipt and not
called for redemption.
The Depositary shall not be required (a) to issue,
transfer or exchange any Receipts for a period beginning at the
opening of business 15 days next preceding any selection of
Depositary Shares and Preferred Stock to be redeemed and ending
at the close of business on the day of the mailing of notice of
redemption of Depositary Shares or (b) to transfer or exchange
for another Receipt any Receipt evidencing Depositary Shares
called or being called for redemption in whole or in part, except
as provided in the preceding paragraph of this Section 2.03.
SECTION 2.04. Transfers of Receipts. Subject to the
terms and conditions of this Deposit Agreement, the Depositary
shall register on its books transfers of Receipts upon any
surrender thereof by the Holder in person or by a duly authorized
attorney, properly endorsed or accompanied by a properly executed
instrument of transfer or endorsement, together with evidence of
the payment of any transfer taxes and other governmental charges
as may be required by law. Upon such surrender, the Depositary
shall execute a new Receipt or Receipts and deliver the same to
or upon the order of the person entitled thereto evidencing the
same aggregate number of Depositary Shares evidenced by the
Receipt or Receipts surrendered.
SECTION 2.05. Combinations and Split-ups of Receipts.
Upon surrender by a Holder of a Receipt or Receipts at the
Corporate Office or such other office as the Depositary may
designate for the purpose of effecting a split-up or combination
of Receipts, subject to the terms and conditions of this Deposit
Agreement, the Depositary shall execute and deliver a new Receipt
or Receipts in the authorized denominations requested evidencing
the same aggregate number of Depositary Shares evidenced by the
Receipt or Receipts surrendered; provided, however, that the
Depositary shall not issue any Receipt evidencing a fractional
Depositary Share.
SECTION 2.06. Surrender of Receipts and Withdrawal of
Preferred Stock. Any Holder of a Receipt or Receipts may
withdraw any or all of the Preferred Stock represented by the
Depositary Shares evidenced by such Receipts and all money and
other property, if any, represented by such Depositary Shares by
surrendering such Receipt or Receipts at the Corporate Office or
at such other office as the Depositary may designate for such
withdrawals; provided that a Holder may not withdraw Preferred
Stock (or money and other property, if any, represented thereby)
which has previously been called for redemption. Thereafter,
without unreasonable delay, the Depositary shall deliver to such
Holder, or to the person or persons designated by such Holder as
hereinafter provided, the number of whole shares of Preferred
Stock and all such money and other property, if any, represented
<PAGE>
by the Depositary Shares evidenced by the Receipt or Receipts so
surrendered for withdrawal, but holders of such whole shares of
Preferred Stock will not be entitled to deposit such Preferred
Stock hereunder or to receive Depositary Shares therefor. If the
Receipt or Receipts delivered by the Holder to the Depositary in
connection with such withdrawal shall evidence a number of
Depositary Shares in excess of the number of whole Depositary
Shares representing the number of whole shares of Preferred Stock
to be withdrawn, the Depositary shall at the same time, in
addition to such number of whole shares of Preferred Stock and
such money and other property, if any, to be withdrawn, deliver
to such Holder, or (subject to Sections 2.04 and 2.05) upon his
order, a new Receipt or Receipts evidencing such excess number of
whole Depositary Shares. In no event will fractional shares of
Preferred Stock or Receipts evidencing fractional Depositary
Shares be distributed or issued by the Depositary. Delivery of
the Preferred Stock and such money and other property being
withdrawn may be made by the delivery of such certificates,
documents of title and other instruments as the Depositary may
deem appropriate, which, if required by the Depositary, shall be
properly endorsed or accompanied by proper instruments of
transfer.
If the Preferred Stock and the money and other property
being withdrawn are to be delivered to a person or persons other
than the Holder of the Receipt or Receipts being surrendered for
withdrawal of Preferred Stock, such Holder shall execute and
deliver to the Depositary a written order so directing the
Depositary, and the Depositary may require that the Receipt or
Receipts surrendered by such Holder for withdrawal of such shares
of Preferred Stock be properly endorsed in blank or accompanied
by a properly executed instrument of transfer or endorsement in
blank; provided that the Holder of such Receipt shall pay the
amount of any tax or other governmental charge due.
The Depositary shall deliver the Preferred Stock and
the money and other property, if any, represented by the
Depositary Shares evidenced by Receipts surrendered for
withdrawal at the Corporate Office, except that, at the request,
risk and expense of the Holder surrendering such Receipt or
Receipts and for the account of the Holder thereof, such delivery
may be made at such other place as may be designated by such
Holder.
SECTION 2.07. Limitations on Execution and Delivery,
Transfer, Split-up, Combination, Surrender and Exchange of
Receipts. As a condition precedent to the execution and
delivery, transfer, split-up, combination, surrender or exchange
of any Receipt or, in the event that the Depositary Shares
evidence Preferred Stock convertible into or exchangeable for
Common Stock or other securities of the Company, to the exercise
of any conversion or exchange right referred to in Section 2.10,
the Depositary, any Agent or the Company may require any or all
of the following: (i) payment to it of a sum sufficient for the
payment (or, in the event that the Depositary or the Company
shall have made such payment, the reimbursement) of any tax or
other governmental charge with respect thereto (including any
such tax or charge with respect to the Preferred Stock being
deposited or withdrawn, provided that, in the event that the
Depositary Shares evidence Preferred Stock convertible into or
exchangeable for Common Stock or other securities of the Company,
the Company shall pay any documentary, stamp or similar issue or
transfer tax or other governmental charge due on the issuance of
Common Stock or other securities upon such conversion or
exchange, as the case may be; and provided further that the
Holder of such Receipt shall pay the amount of any tax or other
governmental charge due if such shares of Common Stock or such
other securities are to be issued in a name other than that of
such Holder); (ii) the production of proof satisfactory to it as
to the identity and genuineness of any signature (or the
authority of any signature); and (iii) compliance with such
regulations, if any, as the Depositary or the Company may
establish consistent with the provisions of this Deposit
Agreement.
The delivery of Receipts against Preferred Stock may be
suspended, the transfer of Receipts may be refused, the transfer,
split-up, combination, surrender or exchange of outstanding
Receipts may be suspended and, in the event that the Depositary
Shares evidence Preferred Stock convertible into or exchangeable
for Common Stock or other securities of the Company, the exercise
of any conversion or exchange right referred to in Section 2.10
may be suspended (i) during any period when the register of
holders of the Preferred Stock is closed or (ii) if any such
action is deemed necessary or advisable by the Depositary or any
Agent at any time or from time to time because of any requirement
of law or of any government or governmental body or commission,
or under any provision of this Deposit Agreement. Without
limitation of the foregoing, the Depositary shall not knowingly
accept for deposit under this Deposit Agreement any shares of
Preferred Stock that are required to be registered under the
Securities Act and the Company shall deliver to the Depositary
written notice that, at the time of deposit, a registration
statement under the Securities Act is in effect as to such shares
of Preferred Stock.
<PAGE>
SECTION 2.08. Lost Receipts, etc. In case any Receipt
shall be mutilated or destroyed or lost or stolen, the Depositary
in its discretion may execute and deliver a Receipt of like form
and tenor in exchange and substitution for such mutilated Receipt
or in lieu of and in substitution for such destroyed, lost or
stolen Receipt, provided that the Holder thereof provides the
Depositary with (i) evidence satisfactory to the Depositary of
such destruction, loss or theft of such Receipt, of the
authenticity and of his ownership thereof and (ii) reasonable
indemnification satisfactory to the Depositary and the Company.
SECTION 2.09. Cancellation and Destruction of
Surrendered Receipts. All Receipts surrendered to the Depositary
or any Depositary's Agent shall be cancelled by the Depositary.
Except as prohibited by applicable law or regulation, the
Depositary is authorized to destroy such cancelled Receipts.
SECTION 2.10. Conversion or Exchange of Preferred
Stock into Common Stock or Other Securities. It is understood
and agreed that the Depositary Shares are not convertible into or
exchangeable for Common Stock of the Company or any other
securities or property of the Company. Nevertheless, as a matter
of convenience, in the event that the Depositary Shares evidence
Preferred Stock convertible into or exchangeable for Common Stock
or other securities of the Company, the Company hereby agrees to
cause the Depositary to accept (or to cause its conversion agent
or exchange agent, as the case may be, to accept) the delivery of
Receipts for the purpose of effecting conversions or exchanges of
Preferred Stock certificates to effect such conversions or
exchanges in accordance with the terms and conditions of the
Certificate of Designations; provided, however, that only whole
Depositary Shares may be so submitted for conversion or exchange.
Receipts may be surrendered with written instructions
to the Depositary to instruct the Company to cause the conversion
or exchange of any specified number of whole or fractional shares
of Preferred Stock, convertible into or exchangeable for Common
Stock or other securities of the Company, that is represented by
the Depositary Shares evidenced by such Receipts into the number
of whole shares of Common Stock or whole number of other
securities of the Company obtained by dividing the aggregate
[liquidation preference] of such Depositary Shares by the
Conversion Price (as such term is defined in the Certificate of
Designations) or exchange ratio, as the case may be, then in
effect, as such Conversion Price or exchange ratio may be
adjusted by the Company from time to time as provided in the
Certificate of Designations. Subject to the terms and conditions
of this Deposit Agreement and the Certificate of Designations, a
Holder of a Receipt or Receipts evidencing Depositary Shares
representing whole or fractional shares of Preferred Stock may
surrender such Receipt or Receipts to the Depositary at the
Corporate Office or to such office or to such Depositary's Agents
as the Depositary may designate for such purpose, together with
(i) a notice of conversion or exchange thereof, as the case may
be, duly completed and executed (a "Notice of Conversion/
Exchange"), and (ii) any payment in respect of dividends required
by the fifth paragraph of this Section 2.10, thereby directing
the Depositary to instruct the Company to cause the conversion or
exchange, as the case may be, of the number of shares or
fractions thereof of underlying Preferred Stock specified in such
Notice of Conversion/Exchange into whole shares of Common Stock
or a whole number of other securities of the Company. In the
event that a Holder delivers to the Depositary for conversion or
exchange a Receipt or Receipts which in the aggregate are
convertible into or exchangeable for less than (i) one whole
share of Common Stock or any number of whole shares of Common
Stock plus an excess constituting less than one whole share of
Common Stock or (ii) one of securities or any whole number of
such securities plus an excess constituting less than one
security, the Holder shall receive payment in lieu of such
fractional shares of Common Stock or fractional number of such
securities otherwise issuable in accordance with the last
paragraph of this Section 2.10. If more than one Receipt shall
be delivered for conversion or exchange, as the case may be, at
one time by the same Holder, the number of whole shares of Common
Stock or the whole number of such securities issuable upon
conversion or exchange, as the case may be, thereof shall be
computed on the basis of the aggregate number of Receipts so
delivered.
Upon receipt by the Depositary of one or more Receipts,
together with a duly completed and executed Notice of Conversion/
Exchange, the Depositary shall, on the date of receipt of such
Notice of Conversion/Exchange, instruct the Company (i) to cause
the conversion or exchange, as the case may be, of the Depositary
Shares evidenced by the Receipts so surrendered for conversion or
exchange as specified in the Notice of Conversion/Exchange and
(ii) to cause the delivery to the Holder or Holders of such
Receipts of a certificate or certificates evidencing the number
of whole shares of Common Stock or the whole number of such
securities and the amount of money, if any, to be delivered to
the Holders of Receipts surrendered for conversion or exchange in
payment of any fractional shares of Common Stock or of any
fractional number of such securities otherwise issuable, as the
case may be. The Company shall, as promptly as practicable after
receipt thereof, cause the delivery to such Holder or Holders of
<PAGE>
(i) a certificate or certificates evidencing the number of whole
shares of Common Stock or the whole number of such securities
into or for which the Preferred Stock represented by the
Depositary Shares evidenced by such Receipt or Receipts has been
converted or exchanged, as the case may be, and (ii) any money or
other property to which the Holder or Holders are entitled. The
person or persons in whose name or names any certificate or
certificates for conversion or exchange, as the case may be,
shall be deemed to have become the holder or holders of record of
the shares or securities represented thereby at the close of
business on the date such Receipt or Receipts shall have been
surrendered to and a Notice of Conversion/Exchange received by
the Depositary, unless the stock transfer books of the Company
shall be closed on that date, in which event such person or
persons shall be deemed to have become such holder or holders of
record on the next succeeding day on which such stock transfer
books are open. Upon such conversion or exchange, the Depositary
(i) shall deliver to the Holder a Receipt evidencing the number
of Depositary Shares, if any, which such Holder has elected not
to convert or exchange in excess of the number of Depositary
Shares representing Preferred Stock which has been so converted
or exchanged, as the case may be, (ii) shall cancel the
Depositary Shares evidenced by Receipts surrendered for
conversion or exchange, as the case may be, and (iii) shall
deliver for cancellation to the transfer agent for the Preferred
Stock the shares of Preferred Stock represented by the Depositary
Shares evidenced by the Receipts so surrendered and so converted
or exchanged, as the case may be.
If any Preferred Stock convertible into or exchangeable
for Common Stock or other securities of the Company shall be
called by the Company for redemption, the Depositary Shares
representing such Preferred Stock may be converted or exchanged
into Common Stock or such securities as provided in this Deposit
Agreement until and including, but not after, the close of
business on the redemption date (as defined in Section 2.03)
unless the Company shall default in making payment of the
redemption price. Upon receipt by the Depositary of a Receipt or
Receipts representing any Preferred Stock called for redemption,
together with a properly completed and executed Notice of
Conversion/Exchange, the shares of Preferred Stock held by the
Depositary represented by such Depositary Shares as to which
conversion or exchange, as the case may be, is requested shall be
deemed to have been received by the Company for conversion or
exchange.
Upon any conversion or exchange, as the case may be, of
the Preferred Stock underlying the Depositary Shares, no
allowance, adjustment or payment shall be made with respect to
accrued dividends upon such Preferred Stock, except that if any
Holder of a Receipt surrenders such Receipt with instructions to
the Depositary for conversion or exchange of the underlying
Preferred Stock evidenced thereby during the period between the
opening of business on any dividend record date and the close of
business on the corresponding dividend payment date (except
shares called for redemption on a redemption date during such
period), such Receipt must be accompanied by a payment equal to
the dividend thereon, if any, which the Holder of such Receipt is
entitled to receive on such dividend payment date in respect of
the underlying Preferred Stock to be converted or exchanged.
Upon the conversion or exchange, as the case may be, of
any shares of Preferred Stock for which a duly completed and
executed Notice of Conversion/Exchange has been received by the
Depositary, all dividends in respect of such Depositary Shares
shall cease to accrue, such Depositary Shares shall be deemed no
longer outstanding, all rights of the Holder of the Receipt with
respect to such Depositary Shares (except the right to receive
the Common Stock or other securities of the Company, any cash
payable with respect to any fractional shares of Common Stock or
fractional number of such securities, as the case may be, as
provided herein and any cash payable on account of accrued
dividends in respect of the Preferred Stock so converted or
exchanged and any Receipts evidencing Depositary Shares not so
converted or exchanged) shall terminate, and the Receipt
evidencing such Depositary Shares shall be cancelled in
accordance with Section 2.09 hereof.
No fractional shares of Common Stock or fractional
number of such securities shall be issuable upon conversion or
exchange of Preferred Stock underlying the Depositary Shares.
If, except for the provisions of this Section 2.10 and the
Certificate of Designations, any Holder of Receipts surrendered
to the Depositary for conversion or exchange of the underlying
Preferred Stock would be entitled to a fractional share of Common
Stock or a fractional security upon such conversion or exchange,
the Company shall cause to be delivered to such Holder an amount
in cash for such fractional share or security determined in
accordance with the Certificate of Designations.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF
RECEIPTS AND THE COMPANY
<PAGE>
SECTION 3.01. Filing Proofs, Certificates and Other
Information. Any Holder may be required from time to time to
file such proof of residence or other information, to execute
such certificates and to make such representations and warranties
as the Depositary or the Company may reasonably deem necessary or
proper. The Depositary or the Company may withhold or delay the
delivery, transfer, redemption or exchange of any Receipt, the
withdrawal of the Preferred Stock represented by the Depositary
Shares evidenced by any Receipt, the distribution of any dividend
or other distribution, the sale of any rights or of the proceeds
thereof, the exercise of any conversion or exchange right
referred to in Section 2.10 or the delivery of any Common Stock
or other securities of the Company upon such conversion or
exchange until such proof or other information is filed, such
certificates are executed or such representations and warranties
are made.
SECTION 3.02. Payment of Fees and Expenses. Holders
of Receipts shall be obligated to make payments to the Depositary
of certain fees and expenses, as provided in Section 5.07, or
provide evidence reasonably satisfactory to the Depositary that
such fees and expenses have been paid. Until such payment is
made, transfer of any Receipt or any withdrawal of the Preferred
Stock or money or other property, if any, represented by the
Depositary Shares evidenced by such Receipt may be refused, any
dividend or other distribution may be withheld, any conversion or
exchange right may be refused and any part or all of the
Preferred Stock or other property represented by the Depositary
Shares evidenced by such Receipt may be sold for the account of
the Holder thereof (after attempting by reasonable means to
obtain such payment prior to such sale), provided that notice of
such sale shall be sent by the Depositary to such Holder. Any
dividend or other distribution so withheld and the proceeds of
any such sale may be applied to any payment of such fees or
expenses, the Holder of such Receipt remaining liable for any
deficiency. In the event the Depositary is required to pay any
such amounts, the Company shall reimburse the Depositary for
payment thereof upon the request of the Depositary and the
Depositary shall, upon the Company's request and as instructed by
the Company, pursue its rights against such Holder at the
Company's expense.
SECTION 3.03. Representations and Warranties as to
Preferred Stock. The Company hereby represents and warrants that
(i) the shares of Preferred Stock deposited hereunder have been
duly authorized and, when issued and deposited hereunder, will be
validly issued, fully paid and nonassessable, (ii) the Depositary
Shares have been duly authorized and, when the Receipts are
executed, countersigned, issued and delivered in the manner
provided for herein, such Depositary Shares will represent legal
and valid interests in the Preferred Stock deposited hereunder,
and (iii) all corporate action required to be taken for the
authorization, issuance and delivery of such Preferred Stock and
Depositary Shares has been validly taken. Such representations
and warranties shall survive the deposit of the Preferred Stock
and the issuance of Receipts.
SECTION 3.04. Representation and Warranty as to
Receipts. The Company hereby represents and warrants that the
Depositary Shares, when the Receipts evidenced thereby are duly
executed by the Depositary or duly countersigned by an authorized
signatory of the Registrar and issued, will represent legal and
valid interests in the Preferred Stock. Such representation and
warranty shall survive the deposit of the Preferred Stock and the
issuance of Receipts.
SECTION 3.05. Covenants and Representation and
Warranty as to Common Stock. In the event that the Depositary
Shares evidence Preferred Stock convertible into or exchangeable
for Common Stock, the Company covenants that it will give written
notice to the Depositary of any adjustments in the conversion
price or exchange ratio made pursuant to the Certificate of
Designations. The Company hereby represents and warrants that
the Common Stock issuable upon conversion or exchange of the
Preferred Stock, when issued, will be duly authorized, validly
issued, fully paid and nonassessable. Such representation and
warranty shall survive the conversion of the Preferred Stock into
such Common Stock. [to be modified if convertible into or
exchangeable for other securities of the Company]
ARTICLE IV
THE PREFERRED STOCK; NOTICES
SECTION 4.01. Cash Distributions. Whenever the
Depositary shall receive any cash dividend or other cash
distribution on the Preferred Stock, including any cash received
upon redemption of any shares of Preferred Stock pursuant to
Section 2.03, the Depositary shall, subject to Section 3.02,
distribute to Holders of Receipts on the record date fixed
pursuant to Section 4.04 such amounts of such sum as are, as
nearly as practicable, in proportion to the respective numbers of
Depositary Shares evidenced by the Receipts held by such Holders;
provided, however, that in case the Company or the Depositary
shall withhold from any cash dividend or other cash distribution
<PAGE>
in respect of the Preferred Stock represented by the Receipts
held by any Holder an amount on account of taxes or as otherwise
required by law, regulation or court order, the amount made
available for distribution or distributed in respect of
Depositary Shares represented by such Receipts subject to such
withholding shall be reduced accordingly. The Depositary shall
distribute or make available for distribution, as the case may
be, only such amount, however, as can be distributed without
attributing to any Holder of Depositary Shares a fraction of one
cent, and any balance not so distributable shall be held by the
Depositary (without liability for interest thereon) and shall be
added to and be treated as part of the next sum received by the
Depositary for distribution to Holders of Receipts then
outstanding.
SECTION 4.02. Distributions other than Cash. Whenever
the Depositary shall receive any distribution other than cash on
the Preferred Stock, the Depositary shall, subject to Section
3.02, distribute to Holders of Receipts on the record date fixed
pursuant to Section 4.04 such amounts of the securities or
property received by it as are, as nearly as practicable, in
proportion to the respective numbers of Depositary Shares
evidenced by the Receipts held by such Holders, in any manner
that the Depositary and the Company may deem equitable and
practicable for accomplishing such distribution. If, in the
opinion of the Depositary after consultation with the Company,
such distribution cannot be made proportionately among such
Holders, or if for any other reason (including any requirement
that the Company or the Depositary withhold an amount on account
of taxes or as otherwise required by law, regulation or court
order), the Depositary deems, after consultation with the
Company, such distribution not to be feasible, the Depositary
may, with the approval of the Company, adopt such method as it
deems equitable and practicable for the purpose of effecting such
distribution, including the public or private sale of the
securities or property thus received, or any part thereof, at
such place or places and upon such terms as it may deem proper.
The net proceeds of any such sale shall, subject to Section 3.02,
be distributed or made available for distribution, as the case
may be, by the Depositary to Holders of Receipts as provided by
Section 4.01 in the case of a distribution received in cash. The
Company shall not make any distribution of such securities or
property to the Holders of Receipts unless the Company shall have
provided to the Depositary an opinion of counsel stating that
such securities or property have been registered under the
Securities Act or do not need to be registered.
SECTION 4.03. Subscription Rights, Preferences of
Privileges. If the Company shall at any time offer or cause to
be offered to the persons in whose names Preferred Stock is
registered on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any
rights, preferences or privileges of any other nature, such
rights, preferences or privileges shall, if the Company so
directs, in each such instance be made available by the
Depositary to the Holders in such manner as the Company shall
instruct (including by the issue to such Holders of warrants
representing such rights, preferences or privileges); provided,
however, that (a) if at the time of the issuance or offering of
any such rights, preferences or privileges the Company determines
that it is not lawful or feasible to make such rights,
preferences or privileges available to some or all Holders of
Receipts (by the issue of warrants or otherwise) or (b) if and to
the extent instructed by Holders who do not desire to exercise
such rights, preferences or privileges, the Depositary shall, if
so instructed by the Company, and if applicable laws or the terms
of such rights, preferences or privileges so permit, sell such
rights, preferences or privileges of such holders at public or
private sale, at such place or places and upon such terms as it
may deem proper. The net proceeds of any such sale shall,
subject to Section 3.02, be distributed by the Depositary to the
Holders of Receipts entitled thereto as provided by Section 4.01
in the case of a distribution received in cash. The Company
shall not make any distribution of such rights, preferences or
privileges, unless the Company shall have provided to the
Depositary an opinion of counsel stating that such rights,
preferences or privileges have been registered under the
Securities Act or do not need to be registered.
If registration under the Securities Act of any
securities to which any rights, preferences or privileges relate
is required in order for Holders to be offered or sold the
securities to which such rights, preferences or privileges
relate, the Company agrees that it will promptly file a
registration statement pursuant to the Securities Act with
respect to such rights, preferences or privileges and securities
and use all reasonable efforts to cause such registration
statement to become effective sufficiently in advance of the
expiration of such rights, preferences or privileges to enable
such Holders to exercise such rights, preferences or privileges.
In no event shall the Depositary make available to the Holders of
Receipts any right, preference or privilege to subscribe for or
to purchase any securities unless and until such a registration
statement shall have become effective or unless the offering and
sale of such securities to such Holders under the Securities Act
and the Company shall have provided to the Depositary an opinion
<PAGE>
of counsel to such effect.
If any other action under the law of any jurisdiction
or any governmental or administrative authorization, consent or
permit is required in order for such rights, preferences or
privileges to be made available to Holders, the Company agrees to
use all reasonable efforts to take such action or obtain such
authorization, consent or permit sufficiently in advance of the
expiration of such rights, preferences or privileges to enable
such Holders to exercise such rights, preferences or privileges.
SECTION 4.04. Notice of Dividends; Fixing of Record
Date for Holders of Receipts. Whenever any cash dividend or
other cash distribution shall become payable, any distribution
other than cash shall be made, or any rights, preferences or
privileges shall at any time be offered, with respect to the
Preferred Stock, or whenever the Depositary shall receive notice
of (i) any meeting at which holders of Preferred Stock are
entitled to vote or of which they are entitled to notice or (ii)
any election on the part of the Company to redeem any shares of
Preferred Stock, the Depositary shall in each such instance fix a
record date (which shall be the same date as the record date
fixed by the Company with respect to the Preferred Stock) for the
determination of the Holders who shall be entitled to receive
such dividend, distribution, rights, preferences or privileges or
the net proceeds of the sale thereof, to give instructions for
the exercise of voting rights at any such meeting or to receive
notice of such meeting or whose Depositary Shares are to be so
redeemed.
SECTION 4.05. Voting Rights. Upon receipt of notice
of any meeting at which the holders of Preferred Stock are
entitled to vote, the Depositary shall, as soon as practicable
thereafter, mail to the Holders of Receipts a notice, which shall
be provided by the Company and which shall contain (i) such
information as is contained in such notice of meeting, (ii) a
statement that the Holders of Receipts at the close of business
on a specified record date fixed pursuant to Section 4.04 will be
entitled, subject to any applicable provision of law, the
Certificate of Incorporation or the Certificate of Designations,
to instruct the Depositary as to the exercise of the voting
rights pertaining to the amount of Preferred Stock represented by
their respective Depositary Shares and (iii) a brief statement as
to the manner in which such instructions may be given. Upon the
written request of a Holder of a Receipt on such record date, the
Depositary shall, to the extent practicable, vote or cause to be
voted the amount of Preferred Stock represented by the Depositary
Shares evidenced by such Receipt in accordance with the
instructions set forth in such request. The Company hereby
agrees to take all reasonable action that may be deemed necessary
by the Depositary in order to enable the Depositary to vote such
Preferred Stock or cause such Preferred Stock to be voted. In
the absence of specific instructions from the Holder of a
Receipt, the Depositary will abstain from voting to the extent of
the Preferred Stock represented by the Depositary Shares
evidenced by such Receipt. The Depositary shall not be required
to exercise discretion in voting any Preferred Stock represented
by the Depositary Shares evidenced by such Receipt.
SECTION 4.06. Changes Affecting Preferred Stock and
Reclassifications, Recapitalizations, etc. Upon any change in
the par value, or upon any split-up, combination or any other
reclassification, of the Preferred Stock, or upon any
recapitalization, reorganization, merger, amalgamation or
consolidation affecting the Company or to which it is a party or
the sale of all or substantially all of the Company's assets, the
Depositary shall, upon the instructions of the Company, treat any
shares of stock or other securities or property (including cash)
that shall be received by the Depositary in exchange for or upon
conversion of or in respect of the Preferred Stock as new
deposited property under this Deposit Agreement, and Receipts
then outstanding shall thenceforth represent the proportionate
interests of Holders thereof in the new deposited property so
received in exchange for or upon conversion of or in respect of
such Preferred Stock. In any such case the Depositary may, in
its discretion, with the approval of the Company, execute and
deliver additional Receipts, or may call for the surrender of all
outstanding Receipts to be exchanged for new Receipts
specifically describing such new deposited property. Anything to
the contrary herein notwithstanding, Holders of Receipts shall
have the right from and after the effective date of any such
change in par value, or upon any such split-up, combination or
other reclassification, of the Preferred Stock or any such
recapitalization, reorganization, merger, amalgamation or
consolidation affecting the Company, or sale of all or
substantially all of the Company's assets to surrender such
Receipts to the Depositary with instructions to convert, exchange
or surrender the Preferred Stock represented thereby only into
or for, as the case may be, the kind and amount of shares of
stock and other securities and property and cash into which the
Preferred Stock represented by such Receipts might have been
converted or for which such Preferred Stock might have been
exchanged or surrendered immediately prior to the effective date
of such transaction.
SECTION 4.07. Inspection of Reports. The Depositary
<PAGE>
shall furnish to Holders of Receipts any reports and
communications received from the Company that are received by the
Depositary as the holder of Preferred Stock and that the Company
is required to furnish to Holders of the Preferred Stock.
SECTION 4.08. Lists of Receipt Holders. Promptly upon
request from time to time by the Company, the Depositary shall
furnish to the Company a list, as of a recent date specified by
the Company, of the names, addresses and holdings of Depositary
Shares of all persons in whose names Receipts are registered on
the books of the Depositary.
SECTION 4.09. Tax and Regulatory Compliance. The
Depositary shall be responsible for (i) preparation and mailing
of form 1099s (or successor forms) for all open and closed
accounts, (ii) foreign tax withholding, (iii) withholding of tax
on dividends payable to eligible Holders of Receipts, (iv)
mailing W-9 forms (or successor forms) to new Holders of Receipts
without a certified taxpayer identification number, (v)
processing certified W-9 forms (or successor forms), (vi)
preparation and filing of state information returns and (vii)
escheatment services.
SECTION 4.10. Withholding. Notwithstanding any other
provision of this Deposit Agreement, in the event that the
Depositary determines that any distribution in property is
subject to any tax that the Depositary is obligated to withhold,
the Depositary may dispose of all or a portion of such property
in such amounts and in such manner as the Depositary deems
necessary and practicable to pay such taxes, by public or private
sale at such place or places and upon such terms as it shall deem
proper after consultation with the Company, and the Depositary
shall distribute the net proceeds of any such sale or the balance
of any such property after deduction of such taxes to the Holders
of Receipts entitled thereto in proportion to the number of
Depositary Shares held by them respectively.
ARTICLE V
THE DEPOSITARY AND THE COMPANY
SECTION 5.01. Maintenance of Offices, Agencies and
Transfer Books by the Depositary and the Registrar. Upon
execution of this Deposit Agreement in accordance with its terms,
the Depositary shall maintain at the Corporate Office facilities
for the execution and delivery, transfer, surrender and exchange,
split-up, combination and redemption of Receipts and deposit and
withdrawal of Preferred Stock and at the offices of any Agent,
facilities for the delivery, transfer, surrender and exchange,
split-up, combination and redemption of Receipts and deposit and
withdrawal of Preferred Stock, all in accordance with the
provisions of this Deposit Agreement.
The Depositary shall keep books at the Corporate Office
for the registration and transfer of Receipts, which books shall
be open at all reasonable times for inspection by the Holders of
Receipts, as provided by applicable law. The Depositary shall
consult with the Company upon receipt of any request for
inspection. The Depositary may close such books, at any time or
from time to time, when deemed expedient by it in connection with
the performance of its duties hereunder.
If the Receipts or the Depositary Shares evidenced
thereby or the Preferred Stock represented by such Depositary
Shares shall be listed on any stock exchange, and if required by
any such stock exchange, the Depositary shall appoint, at the
expense of the Company, a Registrar (acceptable to the Company)
for registry of Receipts or Depositary Shares in accordance with
the requirements of such exchange. Such Registrar (which may be
the Depositary if so permitted by such exchange) may be removed,
and a substitute registrar appointed, by the Depositary upon the
request or with the approval of the Company.
The Company hereby also appoints the Depositary as
Registrar and Transfer Agent in respect of the Receipts, and the
Depositary hereby accepts such appointments.
SECTION 5.02. Prevention or Delay in Performance by
the Depositary, any Agent, the Registrar or the Company. Neither
the Depositary, any Agent, any Registrar nor the Company shall
incur any liability to any Holder of any Receipt, if by reason of
any provision of any present or future law or regulation
thereunder of the United States of America or of any other
governmental authority, or by reason of any present or future
provision of the Certificate of Incorporation or the Certificate
of Designations, or by reason of any act of God or war or other
circumstance beyond the control of the relevant party, the
Depositary, any Agent, the Registrar or the Company shall be
prevented or forbidden from doing or performing any act or thing
that the terms of this Deposit Agreement provide shall be done or
performed; nor shall the Depositary, any Agent, any Registrar or
the Company incur any liability to any Holder of a Receipt by
reason of any nonperformance or delay, caused as aforesaid, in
the performance of any act or thing that the terms of this
Deposit Agreement provide shall or may be done or performed, or
<PAGE>
by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement.
SECTION 5.03. Obligations of the Depositary, any
Agent, the Registrar and the Company. Neither the Depositary,
any Agent, any Registrar nor the Company assumes any obligation
or shall be subject to any liability under this Deposit Agreement
or any Receipt to Holders of Receipts so long as each of them
acts in good faith in the performance of such duties as are
specifically set forth in this Deposit Agreement.
Neither the Depositary, any Agent, any Registrar nor
the Company shall be under any obligation to appear in, prosecute
or defend any action, suit or other proceeding with respect to
Preferred Stock, Depositary Shares or Receipts that in its
opinion may subject it to expense or liability, unless indemnity
satisfactory to it against all such expense and liability be
furnished.
Neither the Depositary, any Agent, any Registrar nor
the Company shall be liable for any action taken or any failure
to act in reliance upon the advice of legal counsel, or the
advice of or information provided by any accountant, any Holder
of a Receipt or any other person believed by it in good faith to
be competent to give such advice or information. The Depositary,
any Agent, any Registrar and the Company may each rely and shall
each be protected in acting upon any written notice, request,
direction or other document believed by it to be genuine and to
have been signed or presented by the proper party or parties.
In the event the Depositary shall receive conflicting
claims, requests or instructions from any Holders of Receipts, on
the one hand, and the Company, on the other hand, the Depositary
shall be entitled to act on such claims, requests or instructions
received from the Company, and shall be entitled to the full
indemnification set forth in Section 5.06 hereof in connection
with any action so taken.
The Depositary shall not be responsible for any failure
to carry out any instruction to vote any of the Preferred Stock
or for the manner or effect of any such vote, as long as any such
action or non-action is in good faith and does not result from
negligence or willful misconduct of the Depositary. The
Depositary undertakes, and any Registrar shall be required to
undertake, to perform such duties and only such duties as are
specifically set forth in this Deposit Agreement, and no
covenants or obligations shall be implied against the Depositary
or any Registrar. The Depositary, its parents, affiliates, or
subsidiaries, any Depositary's Agent, and any Registrar may own,
buy, sell or deal in any class of securities of the Company and
its affiliates and in Receipts or Depositary Shares or become
pecuniarily interested in any transaction in which the Company or
its affiliates may be interested or contract with or lend money
to or otherwise act as fully or as freely as if it were not the
Depositary, any Agent or the Registrar hereunder. The Depositary
may also act as transfer agent or registrar of any of the
securities of the Company and its affiliates or act in any other
capacity for the Company or its affiliates.
It is intended that neither the Depositary nor any
Agent shall be deemed to be an "issuer" of the securities under
the federal securities laws or applicable state securities laws,
it being expressly understood and agreed that the Depositary and
any Agent are acting only in a ministerial capacity as Depositary
for the Preferred Stock; provided, however, that the Depositary
agrees to comply with all information reporting and withholding
requirements applicable to it under law or this Deposit Agreement
in its capacity as Depositary.
Neither the Depositary (or its officers, directors,
employees or agents) nor any Depositary's Agent makes any
representation or has any responsibility as to the validity of
any registration statement pursuant to which the Depositary
Shares are registered under the Securities Act, the Preferred
Stock, the Depositary Shares, the Receipts (except as to the
authenticity of its countersignature thereon) or any instruments
referred to therein or herein, or as to the correctness of any
statement made therein or herein; provided, however, that the
Depositary is responsible for its representations in this Deposit
Agreement.
SECTION 5.04. Registration and Removal of the
Depositary; Appointment of Successor Depositary. The Depositary
may at any time resign as Depositary hereunder by notice of its
election to do so delivered to the Company, such resignation to
take effect upon the appointment of a successor depositary and
the acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the
Company by notice of such removal delivered to the Depositary,
such removal to take effect upon the appointment of a successor
depositary and the acceptance of such appointment as hereinafter
provided.
In case at any time the Depositary acting hereunder
shall resign or be removed, the Company shall, within 60 days
<PAGE>
after the delivery of the notice of resignation or removal, as
the case may be, appoint a successor depositary, which shall be a
bank or trust company having its principal office in the United
States of America and having a combined capital and surplus of at
least $50,000,000. If a successor depositary shall not have been
appointed in 60 days, the resigning or removed Depositary may
petition a court of competent jurisdiction to appoint a successor
depositary. Every successor depositary shall execute and deliver
to its predecessor and to the Company an instrument in writing
accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully
vested with all the rights, powers, duties and obligations of its
predecessor and for all purposes shall be the Depositary under
this Deposit Agreement, and such predecessor, upon payment of all
sums due it and on the written request of the Company, shall
promptly execute and deliver an instrument transferring to such
successor all rights and powers of such predecessor hereunder,
shall duly assign, transfer and deliver all right, title and
interest in the Preferred Stock and any moneys or property held
hereunder to such successor and shall deliver to such successor a
list of the Holders of all outstanding Receipts and all records,
books and other information relating thereto. Any successor
depositary shall promptly mail notice of its appointment to the
Holders of Receipts.
Any corporation into or with which the Depositary may
be merged, consolidated or converted shall be the successor
Depositary without the execution or filing of any document or any
further act. Such successor depositary may execute the Receipts
either in the name of the predecessor depositary or in the name
of the successor depositary.
SECTION 5.05. Corporate Notices and Reports. The
Company agrees that it will deliver to the Depositary, and the
Depositary will, promptly after receipt thereof, transmit to the
Holders of Receipts, in each case at the address recorded in the
Depositary's books, copies of all notices and reports (including
financial statements) required by law, by the rules of any
national securities exchange upon which the Preferred Stock, the
Depositary Shares or the Receipts may be listed or by the
Certificate of Incorporation and the Certificate of Designations
to be furnished by the Company to holders of Preferred Stock.
Such transmission will be at the Company's expense, and the
Company will provide the Depositary with such number of copies of
such documents as the Depositary may reasonably request. In
addition, the Depositary will transmit to the Holders of Receipts
at the Company's expense such other documents as may be requested
by the Company.
SECTION 5.06. Indemnification by the Company. The
Company agrees to indemnify the Depositary, any Agent and any
Registrar against, and hold each of them harmless from, any
liability, costs and expenses (including reasonable attorneys'
fees) that may arise out of, or in connection with, its acting as
Depositary, Agent or Registrar, respectively, under this Deposit
Agreement and the Receipts, except for any liability arising out
of negligence or bad faith on the part of any such entity. The
obligations of the Company set forth in this Section 5.06 shall
survive any succession of any Depositary, Registrar or Agent or
termination of this Deposit Agreement.
SECTION 5.07. Fees, Charges and Expenses. The Company
shall pay all transfer and other taxes and governmental charges
arising solely from the existence of the depositary arrangements.
The Company shall pay all fees of the Depositary in connection
with the initial deposit of the Preferred Stock and the initial
issuance of the Depositary Shares evidenced by the Receipts, any
redemption of the Preferred Stock at the option of the Company
and all withdrawals of Preferred Stock by Holders of Depositary
Shares. Other than payment of any tax or other governmental
charge due upon the issuance of shares of Common Stock or other
securities of the Company issuable upon conversion or exchange of
the Preferred Stock or upon delivery of Preferred Stock and the
money and/or other property being withdrawn pursuant to Section
2.06 to a person other than the Holder as specified in the
conversion/exchange notice relating thereto or in the written
order delivered to the Depositary by the Holder, the Company will
pay any and all issue and other taxes (other than taxes based on
income) that may be payable in respect of any issue or delivery
of shares of Common Stock or other securities of the Company on
conversion or exchange of the Preferred Stock. All other
transfer and other taxes and governmental charges shall be at the
expense of Holders of Depositary Shares. If a Holder of Receipts
requests the Depositary to perform duties not required under this
Deposit Agreement, the Depositary shall notify the Holder of the
cost of such performance of such duties before performing such
duties, and such Holder will be liable for the charges and
expenses related to such performance. Except as otherwise
provided herein, all other reasonable fees and expenses of the
Depositary and any Depositary's Agent hereunder and of any
Registrar (including in each case, reasonable fees and expenses
of counsel) incident to the performance of their respective
obligations hereunder will be paid upon consultation and
agreement between the Depositary and the Company as to the amount
and nature of such fees and expenses. The Depositary shall
present its statement for fees and expenses to the Company once
<PAGE>
every three months or at such other intervals as the Company and
the Depositary may agree.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment. The form of the Receipts and
any provision of this Deposit Agreement may at any time and from
time to time be amended by agreement between the Company and the
Depositary in any respect that they may deem necessary or
desirable; provided, however, that no such amendment which (i)
shall materially and adversely alter the rights of the Holders of
Receipts (provided that any change in the fees of any Depositary,
Registrar or transfer agent shall not be deemed to materially and
adversely alter the rights of such Holders) or (ii) would be
materially and adversely inconsistent with the rights granted to
the holders of the Preferred Stock pursuant to the Certificate of
Designations shall be effective unless such amendment shall have
been approved by the Holders of at least a majority of the
Depositary Shares then outstanding. Any amendment that shall
impose any fees, taxes or charges (other than fees and charges
provided for herein or in the Receipts), or that shall otherwise
prejudice any substantial existing right of Holders of Receipts,
shall not become effective as to Receipts until the expiration of
90 days after notice of such amendment shall have been given to
the Holders. Every Holder of a Receipt at the time any such
amendment becomes effective shall be deemed, by continuing to
hold such Receipt, to consent and agree to such amendment and to
be bound by this Deposit Agreement as amended thereby. In no
event shall any amendment impair the right of the Holder of any
Receipt to surrender such Receipt and receive the Preferred Stock
therefor, subject to the terms hereof.
SECTION 6.02. Termination. This Deposit Agreement may
be terminated by the Company at any time upon not less than 60
days' prior written notice to the Depositary, in which case, upon
a date that is not later than 30 days after the date of such
notice, the Depositary shall deliver or make available for
delivery to each Holder, upon surrender of such Holder's Receipt
or Receipts, such number of whole shares of Preferred Stock
represented by such Receipt or Receipts. In the event that such
Receipt or Receipts should represent a fractional number of
shares of Preferred Stock, the Depositary shall aggregate all
such interests in fractional shares of Preferred Stock and, with
the approval of the Company, adopt such method as it deems
equitable and practicable for the purpose of effecting the
distribution of such interests, including the public or private
sale of the whole number of shares of Preferred Stock so
aggregated, or any part thereof, at such place or places and upon
such terms as it may deem proper. The net proceeds of any such
sale shall be distributed or made available for distribution, as
the case may be, by the Depositary to Holders of such Receipts
evidencing an interest in fractional shares of Preferred Stock.
If a Holder shall not have so surrendered such Holder's Receipt
or Receipts in exchange for whole shares of Preferred Stock on or
prior to the effective date of termination of this Deposit
Agreement, such Holder shall for all purposes, including the
payment of dividends, be deemed to be a Holder of the appropriate
number of Depositary Shares previously represented by such
Receipt or Receipts and shall thereafter surrender to the Company
such Receipt or Receipts in exchange for whole shares of
Preferred Stock. In the event that such Receipt or Receipts
should represent an interest in fractional shares of Preferred
Stock, the Company shall aggregate all such interests in
fractional shares of Preferred Stock and adopt such method as it
deems equitable and practicable for the purpose of effecting the
distribution of such interest, including the public or private
sale of the whole number of shares of Preferred Stock so
aggregated, or any part thereof, at such place or places and upon
such terms as it may deem proper. The net proceeds of any such
sale shall be distributed by the Company to Holders of such
Receipts evidencing an interest in fractional shares of Preferred
Stock. Upon termination of this Deposit Agreement, the
Depositary shall surrender to the Company any shares of Preferred
Stock held by the Depositary and the Company shall hold such
Preferred Stock for the benefit of the Holder of Receipts which
previously represented such Preferred Stock.
This Agreement shall automatically terminate after (i)
all outstanding Depositary Shares shall have been redeemed
pursuant to Section 2.03 or withdrawn pursuant to Section 2.06,
(ii) in the event that the Depositary Shares represent Preferred
Stock convertible into or exchangeable for Common Stock or other
securities of the Company, each share of Preferred Stock shall
have been converted into or exchanged for shares of Common Stock
or other securities of the Company pursuant to Section 2.10, as
the case may be, or (iii) there shall have been made a final
distribution in respect of the Preferred Stock in connection with
any liquidation, dissolution or winding up of the Company and
such distribution shall have been distributed to the Holders of
Receipts pursuant to Section 4.01 or 4.02, as applicable.
Upon the termination of this Deposit Agreement, the
Company shall be discharged from all obligations under this
<PAGE>
Deposit Agreement except for its obligations to the Depositary,
any Depositary's Agent and any Registrar under Sections 5.06 and
5.07.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts. This Deposit Agreement
may be executed in any number of counterparts, and by each of the
parties hereto on separate counterparts, each of which
counterparts, when so executed and delivered, shall be deemed an
original, but all such counterparts taken together shall
constitute one and the same instrument. Delivery of an executed
counterpart of a signature page of this Deposit Agreement by
telecopier shall be effective as delivery of a manually executed
counterpart of this Deposit Agreement.
Copies of this Deposit Agreement shall be filed with the
Depositary and the Depositary's Agents and shall be open to
inspection during business hours at the Corporate Office and the
respective offices of the Depositary's Agents, if any, by any
Holder of a Receipt.
SECTION 7.02. Exclusive Benefits of Parties. This
Deposit Agreement is for the exclusive benefit of the parties
hereto, including Holders of the Receipts, and their respective
successors hereunder, and shall not be deemed to give any legal
or equitable right, remedy or claim to any other person
whatsoever.
SECTION 7.03. Invalidity of Provisions. In case any
one or more of the provisions contained in this Deposit Agreement
or in the Receipts should be or become invalid, illegal or
unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or
therein shall in no way be affected, prejudiced or disturbed
thereby.
SECTION 7.04. Notices. Any and all notices to be
given to the Company hereunder or under the Receipts shall be in
writing and shall be deemed to have been duly given if personally
delivered or sent by mail, or by telegram, facsimile transmission
or other electronic means of communication confirmed by letter,
addressed to the Company at:
LORAL CORPORATION
600 Third Avenue
New York, New York 10016
Attention: Treasurer (with a copy to Secretary)
Telephone No.: (212) 697-1105
Facsimile No.: (212) 661-8988
or at any other address of which the Company shall have notified
the Depositary in writing.
Any notices to be given to the Depositary hereunder or
under the Receipts shall be in writing and shall be deemed to
have been duly given if personally delivered or sent by mail, or
by telegram, facsimile transmission or other electronic means of
communication confirmed by letter, addressed to the Depositary at
the Corporate Office.
Any notices given to any Holder of a Receipt hereunder
or under the Receipts shall be in writing and shall be deemed to
have been duly given if personally delivered or sent by mail, or
by telegram, facsimile transmission or other electronic means of
communication, addressed to such Holder at the address of such
Holder as it appears on the books of the Depositary or, if such
Holder shall have filed with the Depositary in a timely manner a
written request that notices intended for such Holder be mailed
to some other address, at the address designated in such request.
SECTION 7.05. Holders of Receipts are Parties. The
Holders of Receipts from time to time shall be deemed to be
parties to this Deposit Agreement and shall be bound by all of
the terms and conditions hereof and of the Receipts by acceptance
of delivery thereof.
SECTION 7.06. Governing Law. This Deposit Agreement
and the Receipts and all rights hereunder and thereunder and
provisions hereof and thereof shall be governed by, and construed
in accordance with, the law of the State of New York applicable
to contracts made and to be performed entirely within such State.
SECTION 7.07. Inspection of Deposit Agreement and
Certificate of Designations. Copies of this Deposit Agreement
and the Certificate of Designations shall be filed with the
Depositary and any Agent and shall be open to inspection by any
Holder of a Receipt during business hours at the Corporate Office
and the respective offices of any Agent.
SECTION 7.08. Headings. The headings of articles and
sections in this Deposit Agreement and in the form of the Receipt
set forth in Exhibit A hereto have been inserted for convenience
<PAGE>
only and are not to be regarded as a part of this Deposit
Agreement or to have any bearing upon the meaning or
interpretation of any provision contained herein or in the
Receipts.
IN WITNESS WHEREOF, LORAL CORPORATION and [NAME OF
BANK] have duly executed this Deposit Agreement as of the day and
year first above set forth, and all Holders of Receipts shall
become parties hereto by and upon acceptance by them of delivery
of Receipts issued in accordance with the terms hereof.
LORAL CORPORATION
By: _______________________________
Attest: Authorized Officer
[NAME OF BANK]
By: _______________________________
Attest: Authorized Signatory
<PAGE>
Exhibit A
[FORM OF FACE OF RECEIPT]
NUMBER DEPOSITARY SHARES
CERTIFICATE FOR NOT MORE THAN __________ DEPOSITARY SHARES
CLASS C
TDR
RECEIPT FOR DEPOSITARY SHARES,
EACH REPRESENTING ___ [specify fraction] PREFERRED STOCK
[, SERIES ______] OF LORAL CORPORATION
CUSIP __________
SEE REVERSE FOR CERTAIN DEFINITIONS
___________________________, as Depositary (the "Depositary"),
hereby certifies that ___________________________________________
is the registered owner of ______________________________________
DEPOSITARY SHARES ("Depositary Shares"), each Depositary Share
representing [specify fraction] of one share of ________
Preferred Stock, $1 par value (the "Stock"), of LORAL
CORPORATION, a corporation duly organized and existing under the
laws of the State of New York (the "Company"), on deposit with
the Depositary, subject to the terms and entitled to the benefits
of the Deposit Agreement dated as of ________________, 199_ (the
"Deposit Agreement"), among the Company, the Depositary and the
Holders from time to time of Receipts for Depositary Shares. By
accepting this Receipt the Holder hereof becomes a party to and
agrees to be bound by all the terms and conditions of the Deposit
Agreement. This Receipt shall not be valid or obligatory for any
purpose or entitled to any benefits under the Deposit Agreement
unless it shall have been executed by the Depositary by the
manual signature of a duly authorized officer or, if executed in
facsimile by the Depositary, countersigned by a Registrar in
respect of the Receipts by the manual signature of a duly
authorized officer thereof.
Dated: Countersigned:
By____________________________ By____________________________
Depositary Registrar
<PAGE>
[FORM OF REVERSE OF RECEIPT]
LORAL CORPORATION
LORAL CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH
REGISTERED HOLDER OF RECEIPTS WHO SO REQUESTS A COPY OF THE
DEPOSIT AGREEMENT AND A COPY OF THE CERTIFICATE OF DESIGNATIONS
WITH RESPECT TO THE PREFERRED STOCK [SERIES ______] OF LORAL
CORPORATION ANY SUCH REQUEST IS TO BE ADDRESSED TO THE DEPOSITARY
NAMED ON THE FACE OF THIS RECEIPT.
___________________________
The following abbreviations when used in the
instructions on the face of this receipt shall be construed as
though they were written out in full according to applicable laws
or regulations.
TEN COM - as tenant in
common
UNIF GIFT MIN ACT - ________ Custodian _________
(Cust) (Minor)
TEN ENT -as tenants by
the entireties
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.
<PAGE>
ASSIGNMENT
For value received, ___________________________________
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
_________________________________________________________________
________________________________________________Depositary Shares
represented by the within Receipt, and do hereby irrevocably
constitute and appoint ______________________ Attorney to
transfer the said Depositary Shares on the books of the within
named Depositary with full power of substitution in the premises.
Dated _________________
________________________________________
NOTICE: The signature to the assignment
must correspond with the name
as written upon the face of
this Receipt in every
particular, without alteration
or enlargement or any change
whatever.
EXHIBIT 5
Willkie Farr & Gallagher
May 20, 1994
Loral Corporation
600 Third Avenue
New York, New York 10016
Re: Loral Corporation
Registration Statements on Form S-3
Ladies and Gentlemen:
We have acted as counsel for Loral Corporation, a New York
corporation (the "Company"), in connection with the registration
under the Securities Act of 1933, as amended (the "Act"), of
$800,000,000 aggregate principal amount of the Company's senior
and subordinated debt securities (collectively, the "Debt
Securities"); warrants ("Debt Warrants") to purchase Debt
Securities; preferred stock, par value $1.00 per share
("Preferred Stock"), and related depositary shares representing
fractional interests in the Preferred Stock ("Depositary
Shares"); common stock, par value $0.25 per share ("Common
Stock"); and warrants to purchase shares of Common Stock,
Preferred Stock or other securities ("Equity Warrants"). The
Debt Securities, Debt Warrants, Preferred Stock, Depositary
Shares, Common Stock and Equity Warrants are herein referred to
collectively as the "Securities." The Securities may be issued
from time to time by the Company after the registration
statements to which this opinion is an exhibit (the "Registration
Statements") becomes effective. The terms used herein, unless
otherwise defined, have the meanings assigned to them in the
Registration Statements.
We have examined such documents as we have considered
necessary for purposes of this opinion, including (i) the
Indenture, dated as of September 1, 1993 (the "Senior
Indenture"), between the Company and Continental Bank, National
Association, as trustee, (ii) the form of indenture (the
"Subordinated Indenture") between the Company and The Bank of New
York, as trustee, (iii) the Restated Certificate of Incorporation
and By-Laws of the Company, (iv) the forms of debt warrant
agreement and equity warrant agreement (the "Warrant
Agreements"), each between the Company and one or more warrant
agents (each, a "Warrant Agent") relating to the Debt Warrants or
the Equity Warrants, as the case may be, and (v) the form of
deposit agreement (the "Deposit Agreement") between the Company
and a depositary ("Depositary") relating to the Depositary
<PAGE>
Shares; and such other documents and matters of law as we have
deemed necessary in connection with the opinions hereinafter
expressed. In such examination, we have assumed the genuineness
of all signatures, the authenticity of all documents submitted to
us as originals and the conformity to authentic originals of all
documents submitted to us as certified copies or photocopies. In
rendering the opinions expressed below, we have relied on factual
representations by Company officials and statements of fact
contained in the documents we have examined.
On the basis of the foregoing and having regard for legal
considerations we deem relevant, we are of the opinion that:
(1) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State
of New York.
(2) Upon the taking of appropriate corporate action by the
Company; the effectiveness of the Registration Statements under
the Act; the qualification of the Senior Indenture or the
Subordinated Indenture, as the case may be, under the Trust
Indenture Act of 1939; the compliance with the "blue sky" laws of
certain states; the due execution and delivery by the parties
thereto of (a) the Subordinated Indenture, and each amendment of
or supplement to the Senior Indenture or the Subordinated
Indenture, as the case may be (each such Indenture, as so amended
or supplemented, being referred to as an "Indenture," and the
Trustee under any Indenture being referred to as a "Trustee") and
(b) a Warrant Agreement relating to Debt Warrants, and each
amendment of or supplement thereto (each such Warrant Agreement,
as so amended or supplemented, being referred to as a "Debt
Warrant Agreement"), assuming that the relevant Indenture and
Debt Warrant Agreement are consistent with the forms thereof
filed as exhibits to the Registration Statement; and the due
execution of the Debt Securities and the Debt Warrants on behalf
of the Company, the Debt Securities and the Debt Warrants will be
duly and validly authorized and, when the Debt Securities are
duly authenticated by the relevant Trustee and the Debt Warrants
are duly authenticated by the relevant Warrant Agent and sold and
delivered at the price and in accordance with the terms set forth
in the Registration Statements and the supplement or supplements
to the relevant Prospectus included therein, the Debt Securities
and the Debt Warrants will be valid and binding obligations of
the Company, entitled to the benefits of the relevant Indenture
and Debt Warrant Agreement, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights generally and
subject to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at
law).
(3) Upon the taking of appropriate corporate action by the
Company and its shareholders, including the approval of the terms
of any class or series of Securities; the effectiveness of the
<PAGE>
Registration Statements under the Act; the due execution and
delivery by the parties thereto of (a) a Warrant Agreement
relating to Equity Warrants, and each amendment thereof or
supplement thereto (each such Warrant Agreement, as so amended or
supplemented, being referred to an "Equity Warrant Agreement")
and (b) a Deposit Agreement relating to Depositary Shares, and
each amendment thereof or supplement thereto (each such Deposit
Agreement, as so amended or supplemented, being referred to as a
"Deposit Agreement"), assuming that the relevant Equity Warrant
Agreement and Deposit Agreement are consistent with the forms
thereof filed as exhibits to the Registrations Statements; and
the due execution of the Equity Warrants on behalf of the Company
and of the depositary receipts evidencing interests in the
Depositary Shares on behalf of the Company, the Equity Warrants
and the Depositary Shares will be duly and validly authorized
and, when the Equity Warrants are duly authenticated by the
relevant Warrant Agent and the depositary receipts evidencing
rights in the Depositary Shares are duly authenticated by the
relevant Depositary, and the Equity Warrants and Depositary
Shares are sold and delivered at the price and in accordance with
the terms set forth in the Registration Statements and the
supplement or supplements to the relevant Prospectus included
therein, the Common Stock and the Preferred Stock will be validly
issued, fully paid and nonassessable, the Depositary Shares will
be validly issued and will entitle the holders thereof to the
rights specified in the Deposit Agreement and the depositary
receipts evidencing rights therein, and the Equity Warrants will
be valid and binding obligations of the Company, entitled to the
benefits of the Equity Warrant Agreement and the Deposit
Agreement, as the case may be, except as such enforceability may
be limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting creditors' rights generally and
subject to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at
law).
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statements and to the reference to
our firm under the caption "Legal Opinions" in the Prospectus.
In giving such consent, we do not thereby admit that we come
within the category of persons whose consent is required under
Section 7 of the Act.
Very truly yours,
Willkie Farr & Gallagher
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in these registration statements
on Form S-3 of our report dated May 12, 1994, which includes an explanatory
paragraph regarding the Company's changes in methods of accounting for income
taxes and postretirement benefits other than pensions as discussed in Notes 6
and 9 to the consolidated financial statements, on our audits of the
consolidated financial statements and financial statement schedules of Loral
Corporation and Subsidiaries as of March 31, 1994 and 1993, and for each of
the three years in the period ended March 31, 1994, which report is
incorporated by reference in these registration statements on Form S-3. We
also consent to the reference to our firm under the caption "Experts".
COOPERS & LYBRAND
1301 Avenue of the Americas
New York, New York 10019
May 20, 1994
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of the Registration Statement on Form S-3 of Loral
Corporation of our report dated January 31, 1994, except as to the asset
purchase agreement described in Note 14 which is as of March 1, 1994,
appearing on page 2 of Loral Corporation's Report on Form 8-K/A dated May 12,
1994, relating to the combined financial statements of Federal Systems. We
also consent to the reference to us under the heading "Experts" in such
Prospectus.
PRICE WATERHOUSE
Washington, D.C.
May 20, 1994
EXHIBIT 24.1
POWER OF ATTORNEY
The undersigned, individually and in the capacity relative to Loral
Corporation, a New York corporation, stated below, hereby appoints Michael P.
DeBlasio, Robert V. LaPenta, Michael B. Targoff and Eric J. Zahler, and each of
them acting individually, to be his Attorney-in-Fact with full power of
substitution to act in his name and on his behalf to sign and to file with the
Securities and Exchange Commission one or more Registration Statements on Form
S-3 in connection with the public offering of $800,000,000 of Loral Corporation
Debt and/or Equity Securities, including but not limited to debt, convertible
debt, common stock, preferred stock, preferred stock convertible or
exchangeable into common stock or debt or warrants to purchase any such
securities, including one or more amendments, including post-effective
amendments, to such Registration Statements, which amendments may make such
changes as such person deems appropriate, and to execute and deliver any
agreements, instruments, certificates or other documents which such person
shall deem necessary or proper in connection with the filing of such
Registration Statements and generally to act for and in the name of the
undersigned with respect to such filing as fully as could the undersigned if
then personally present and acting.
IN WITNESS WHEREOF, the undersigned has executed this Power-of-Attorney on
the date set opposite his respective name.
/s/ Howard Gittis May 19, 1994
Howard Gittis Director
/s/Robert B. Hodes May 16, 1994
Robert B. Hodes Director
/s/Gershon Kekst May 17, 1994
Gershon Kekst Director
/s/Charles Lazarus May 17, 1994
Charles Lazarus Director
/s/Allen M. Shinn May 17, 1994
Allen Shinn Director
/s/Thomas J. Stanton, Jr. May 17, 1994
Thomas J. Stanton, Jr.Director
/s/Daniel Yankelovich May 17, 1994
Daniel Yankelovich Director
==============================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
LORAL CORPORATION
(Exact name of obligor as specified in its charter)
New York 13-1718360
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
600 Third Avenue
New York, New York 10016
(Address of principal executive offices) (Zip code)
______________________
Debt Securities
(Title of the indenture securities)
===============================================================================
<PAGE>
1. General information. Furnish the following information as to the
Trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany,
N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 3.)
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as an exhibit hereto, pursuant to
Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act") and Rule
24 of the Commission's Rules of Practice.
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains
the authority to commence business and a grant of powers to
exercise corporate trust powers. (Exhibit 1 to Amendment No. 1
to Form T-1 filed with Registration Statement No. 33-6215,
Exhibits 1a and 1b to Form T-1 filed with Registration Statement
No. 33-21672 and Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
-2-
<PAGE>
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the answer
to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
- 3 -
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of
New York, a corporation organized and existing under the laws of the State of
New York, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in The City of New
York, and State of New York, on the 19th day of May, 1994.
THE BANK OF NEW YORK
By: WALTER N. GITLIN
Name: Walter N. Gitlin
Title: Vice President
-4-
<PAGE>
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business
December 31, 1993, published in accordance with a call made by the
Federal Reserve Bank of this District pursuant to the provisions
of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depository
institutions:
Noninterest-bearing balances and
currency and coin .................. $ 4,393,393
Interest-bearing balances .......... 652,315
Securities ........................... 3,809,834
Federal funds sold in domestic offices
of the bank ........................ 331,075
Loans and lease financing receivables:
Loans and leases, net of unearned
income .................23,708,678
LESS: Allowance for loan and lease
losses .....................773,597
LESS: Allocated transfer risk
reserve .....................28,427
Loans and leases, net of unearned
income, allowance and reserve .... 22,906,654
Assets held in trading accounts ...... 851,615
Premises and fixed assets (including
capitalized leases) ................ 657,247
Other real estate owned .............. 60,806
Investments in unconsolidated subsi-
diaries and associated companies ... 170,378
Customers liability to this bank on
acceptances outstanding ............ 885,751
Intangible assets .................... 42,689
Other assets 1,326,362
Total assets $36,088,119
LIABILITIES
Deposits:
In domestic offices ................ $19,486,153
Noninterest-bearing .......7,388,636
Interest-bearing .........12,097,517
In foreign offices, Edge and Agree-
ment Subsidiaries, and IBFs ........ 8,230,444
Noninterest-bearing ..........53,571
Interest-bearing ..........8,176,873
<PAGE>
Federal funds purchased and securities
sold under agreements to repurchase
in domestic offices of the bank and
of its Edge and Agreement subsi-
diaries, and in IBFs:
Federal funds purchased ............ 1,207,881
Securities sold under agreements to
repurchase ....................... 350,492
Demand notes issued to the U.S.
Treasury ........................... 300,000
Other borrowed money ................. 530,559
Bank's liability on acceptances exe-
cuted and outstanding .............. 897,899
Subordinated notes and debentures .... 1,064,780
Other liabilities .................... 1,139,025
Total liabilities .................... 33,207,233
EQUITY CAPITAL
Perpetual preferred stock and related
surplus ........................... 75,000
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 1,342,860
Cumulative foreign Currency transla-
tion adjustments .................. ( 4,924)
Total equity capital ................ 2,880,886
Total liabilities, limited-life pre-
ferred stock, and equity capital .. $36,088,119
I, Robert E. Keilman, Senior Vice President and Comptroller of
the above-named bank do hereby declare that this Report of
Condition has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and
is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us and
to the best of our knowledge and belief has been prepared in
conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true and correct.
+
J. Carter Bacot |
Alan R. Griffith | Directors
Samuel F. Chevalier |
+
