<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 29, 1998
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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THE LUBRIZOL CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
Ohio 34-0367600
(STATE OR OTHER JURISDICTION OF INCORPORATION OR (I.R.S. EMPLOYER IDENTIFICATION NUMBER)
ORGANIZATION)
</TABLE>
------------------------
<TABLE>
<S> <C>
Charles P. Cooley
Vice President, Chief Financial Officer and
Treasurer
29400 Lakeland Boulevard The Lubrizol Corporation
Wickliffe, Ohio 44092-2298 29400 Lakeland Boulevard
(440) 943-4200 Wickliffe, Ohio 44092-2298
(ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER, (440) 943-4200
INCLUDING (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE NUMBER,
OFFICES) INCLUDING AREA CODE, OF AGENT FOR SERVICE)
</TABLE>
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WITH A COPY TO:
Jeffrey J. Margulies, Esq.
Squire, Sanders & Dempsey L.L.P.
4900 Society Center
127 Public Square
Cleveland, Ohio 44114-1304
(216) 479-8500
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement, as determined
in light of market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering: [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: [ ]
If delivery of the Prospectus is expected to be made pursuant to Rule 434,
please check the following box: [ ]
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED(1) PER UNIT(2)(3) PRICE(2)(3) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Debt Securities................. $200,000,000 100% $200,000,000 $59,000
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</TABLE>
(1) Or, if any Debt Securities are issued at an original issue discount, such
greater amount as shall result in gross proceeds (before expenses, including
any underwriting commissions) of $200,000,000.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o) under the Securities Act of 1933. 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 Debt
Securities registered hereunder.
(3) Excluding accrued interest, if any, to the date of delivery.
------------------------
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 THAT SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
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<PAGE> 2
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 LAW OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED JULY 29, 1998
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PROSPECTUS
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$200,000,000
THE LUBRIZOL CORPORATION
DEBT SECURITIES
The Lubrizol Corporation (the "Company") may offer from time to time in one
or more series its debt securities (the "Debt Securities") in amounts, at prices
and on terms to be determined at the time of offering. The aggregate initial
offering price of the Debt Securities to be offered will be limited to
$200,000,000 (or the equivalent if Debt Securities are denominated in foreign
currency or currency units) or, if Debt Securities are issued at an original
issue discount, such greater amount as shall result in gross proceeds of
$200,000,000. The Debt Securities will be unsecured senior securities ranking
pari passu with all other unsecured senior securities of the Company. The
general terms and conditions of the Debt Securities are described under
"Description of Debt Securities" in this Prospectus.
The accompanying Prospectus Supplement sets forth the specific designation,
aggregate principal amount, designated currency (or currency unit), form,
purchase price, maturity, interest rate (or manner of calculation thereof), time
of payment of interest, terms of optional or mandatory redemption, and other
specific terms of the Debt Securities. The Debt Securities may be offered to or
through underwriters, dealers or agents designated from time to time, as set
forth in the Prospectus Supplement, and may be offered to other purchasers
directly by the Company. The Prospectus Supplement also sets forth any
compensation to each underwriter, dealer or agent involved in the offer of the
Debt Securities, the other terms and manner of the offer and distribution of the
Debt Securities and the net proceeds to the Company from such offering. See
"Plan of Distribution" for possible indemnification arrangements for
underwriters, dealers and agents.
------------------------------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
THE DATE OF THIS PROSPECTUS IS , 1998.
<PAGE> 3
No dealer, salesman or any other person has been authorized to give any
information or to make any representation other than those contained or
incorporated by reference in this Prospectus and any accompanying Prospectus
Supplement in connection with the offering described in this Prospectus and such
Prospectus Supplement, and, if given or made, such other information or
representation must not be relied upon as having been authorized by the Company
or by any underwriter, dealer or agent. Neither this Prospectus nor any
Prospectus Supplement shall constitute an offer to sell or a solicitation of an
offer to buy Debt Securities in any jurisdiction in which such offer or
solicitation is not authorized, or in which the person making such offer or
solicitation is not qualified to do so, or to any person to whom it is unlawful
to make such offer or solicitation.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and files reports, proxy
statements and other information with the Securities and Exchange Commission
(the "Commission") in accordance with the Exchange Act. Reports, proxy
statements and other information, including the documents incorporated by
reference herein, can be inspected and copied at the public reference facilities
maintained by the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549 and at the Commission's regional offices at Suite
1400, Northwestern Atrium Center, 500 West Madison Street, Chicago, Illinois
60661-2511 and 7 World Trade Center, Suite 1300, New York, New York 10048.
Copies of such material may be obtained from the Public Reference Section of the
Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549, at prescribed rates. The Commission also maintains a web site that
contains reports, proxy statements and other information filed by the Company.
The Commission's Internet address is http://www.sec.gov. Such material may be
inspected and copied at the offices of the New York Stock Exchange, 20 Broad
Street, New York, New York 10005, on which Exchange the common shares of the
Company are listed.
The Company has filed with the Commission a registration statement on Form
S-3 (together with all amendments and exhibits, the "Registration Statement")
under the Securities Act of 1933, as amended (the "Securities Act"), with
respect to the Debt Securities offered by this Prospectus. This Prospectus does
not contain all of the information set forth in the Registration Statement,
certain portions of which are omitted in accordance with the rules and
regulations of the Commission. Further information with respect to the Company
and the Debt Securities is contained in the Registration Statement and the
related exhibits. Statements contained in this Prospectus concerning any
document filed as an exhibit are not necessarily complete and in each instance
reference is made to the copy of such document filed as an exhibit to the
Registration Statement. Each such statement is qualified in its entirety by such
reference. The Registration Statement may be inspected, without charge, at the
public reference facilities of the Commission at the addresses set forth above,
and copies may also be obtained from the Commission's principal office in
Washington, DC upon the payment of prescribed fees.
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<PAGE> 4
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed by the Company (Commission File No. 1-5263)
with the Commission are incorporated by reference into this Prospectus:
(a) the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997; and
(b) the Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1998.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of the Debt Securities shall be deemed to be
incorporated by reference into this Prospectus and to be a part of this
Prospectus from the date of filing such documents. Any statement contained in
this Prospectus, or in a document all or a portion of which is incorporated or
deemed to be incorporated by reference in this Prospectus, shall be deemed to be
modified or superseded for purposes of this Prospectus to the extent that a
statement contained in this Prospectus, or in a Prospectus Supplement, or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference in this Prospectus 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 copy of
this Prospectus has been delivered, upon written or oral request of such person,
a copy of any or all of the documents incorporated by reference in this
Prospectus, other than exhibits to such documents (unless such exhibits are
specifically incorporated by reference into such documents). Requests for such
copies should be directed to: Chief Financial Officer, The Lubrizol Corporation,
29400 Lakeland Boulevard, Wickliffe, Ohio 44092, telephone (440) 943-4200.
3
<PAGE> 5
THE COMPANY
The Lubrizol Corporation is a full-service supplier of performance
chemicals and products to diverse markets worldwide. Principally, the Company
develops, produces and sells specialty additive packages used in transportation
and industrial finished lubricants such as gasoline and diesel engine
lubricating oils, automatic transmission fluids, gear oils, marine and tractor
lubricants, fuel products and industrial fluids. These specialty chemical
products are created through the application of advanced chemical and mechanical
technologies to enhance the performance, quality and value of the products in
which they are used. The Company also produces and supplies coatings additives,
refinery and oil field chemicals, specialty monomers, process chemicals,
synthetic refrigerant compressor lubricants, fluid metering devices and
particulate emission trap devices.
The Company was incorporated in Ohio in 1928. Its principal executive
offices are located at 29400 Lakeland Boulevard, Wickliffe, Ohio 44092 and its
telephone number is (440) 943-4200.
USE OF PROCEEDS
Except as otherwise set forth in the applicable Prospectus Supplement, the
Company intends to use the net proceeds from the sale of the Debt Securities for
general corporate purposes, which may include acquisitions, capital
expenditures, the repurchase by the Company of its common shares, additions to
working capital and reduction of other indebtedness of the Company. Funds not
required immediately for such purposes may be invested temporarily in short-term
marketable securities.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the consolidated ratio of earnings to fixed
charges for the Company for the periods indicated.
<TABLE>
<CAPTION>
THREE MONTHS
ENDED YEAR ENDED DECEMBER 31,
MARCH 31 ------------------------------------------
1998 1997 1996 1995 1994 1993
------------ ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed
charges.................... 12.1 18.2 18.7(1) 16.2(1) 36.8(1) 22.7(1)
</TABLE>
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(1) Included in the following years are gains on the sale of Genentech Inc.
stock held by the Company and included in earnings: 1996 - $53.3 million;
1995 - $38.5 million; 1994 - $41.2 million; and 1993 - $42.4 million. Also
included in 1995 is a $9.5 million asset impairment charge for the write-off
of an intermediate processing unit and, in 1993, an $86.3 million special
charge in connection with manufacturing rationalization and organizational
realignment initiatives. Excluding these items, the ratios would have been:
1996 - 14.9; 1995 - 14.2; 1994 - 30.8; and 1993 - 29.7.
For the purposes of computing the ratio of earnings to fixed charges,
"earnings" consist of income before income taxes and fixed charges (adjusted for
capitalized interest), and after certain adjustments relating to earnings,
losses and distributions of minority-owned affiliates. "Fixed charges" consist
of interest on all indebtedness, including both amounts expensed and amounts
capitalized. A statement setting forth the computation of the unaudited ratio of
earnings to fixed charges is filed as an exhibit to the Registration Statement
of which this Prospectus is a part.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities are to be issued under an Indenture (the "Indenture")
between the Company and The First National Bank of Chicago, as Trustee (the
"Trustee"), a form of which is filed as an exhibit to the Registration Statement
of which this Prospectus is a part. The following summaries of certain
provisions of the Indenture do not purport to be complete and are qualified in
their entirety by reference to the detailed provisions of the Indenture,
including the definitions of certain terms contained in the Indenture and
capitalized in this
4
<PAGE> 6
Prospectus. Wherever particular sections or defined terms of the Indenture are
referred to in this Prospectus, such sections or defined terms are incorporated
by reference in this Prospectus.
The following sets forth certain general terms and provisions of the Debt
Securities. The particular terms of the Debt Securities offered by any
Prospectus Supplement (the "Offered Debt Securities") will be described in the
Prospectus Supplement relating to such Offered Debt Securities (the "Applicable
Prospectus Supplement").
GENERAL
The Debt Securities to be offered will be limited to $200 million (or the
equivalent in foreign currencies or currency units) aggregate principal amount
or, if issued at an original issue discount, such greater amount as shall result
in gross proceeds of $200 million. The Indenture does not limit the amount of
Debt Securities that may be issued under the Indenture and provides that Debt
Securities may be issued under the Indenture from time to time in one or more
series as from time to time authorized by the Company. The Debt Securities will
be unsecured senior obligations of the Company and will rank pari passu with
other unsecured senior obligations of the Company. As of June 30, 1998, the
Company had approximately $240 million of debt that would rank pari passu with
the Debt Securities.
The Applicable Prospectus Supplement will describe the following terms of
the Offered Debt Securities: (1) the specific designation of the Offered Debt
Securities; (2) any limit on the aggregate principal amount of the Offered Debt
Securities; (3) the price or prices (generally expressed as a percentage of the
aggregate principal amount) at which the Offered Debt Securities will be issued;
(4) the date or dates on which the principal of the Offered Debt Securities will
be payable; (5) the rate or rates at which the Offered Debt Securities will bear
interest, if any (or the method of calculating such rate or rates), the date or
dates from which any such interest will accrue (or the method by which such date
or dates will be determined), the date or dates on which any such interest will
be payable and the related record date or dates; (6) the place or places where
the principal of and any premium and interest on the Offered Debt Securities
will be payable; (7) the period or periods within which, the price or prices at
which and the terms and conditions upon which the Offered Debt Securities may be
redeemed, in whole or in part, at the option of the Company; (8) the obligation,
if any, of the Company to redeem, purchase or repay the Offered Debt Securities
pursuant to any mandatory redemption, sinking fund or analogous provisions or at
the option of a holder and the period or periods within which, the price or
prices at which and the terms and conditions upon which the Offered Debt
Securities shall be redeemed, purchased or repaid, in whole or in part, pursuant
to such obligation; (9) the denominations in which the Offered Debt Securities
will be issuable; (10) if other than the principal amount, the portion of the
principal amount of the Offered Debt Securities which shall be payable upon
declaration of acceleration of the maturity of the Offered Debt Securities; (11)
the currency, currencies or currency units in which payment of the principal of
and any premium and interest on any Offered Debt Securities will be payable if
other than the currency of the United States of America; (12) if the principal
of or any premium or interest on any Offered Debt Securities is to be payable,
at the election of the Company or a holder thereof, in one or more currencies or
currency units other than that or those in which such securities are stated to
be payable, the currency, currencies or currency units in which payment of the
principal of and any premium and interest on the Offered Debt Securities as to
which such election is made will be payable, and the periods within which and
the terms and conditions upon which such election is to be made; (13) whether
the Offered Debt Securities will be issuable in registered form or unregistered
form or both and, if Offered Debt Securities are issuable in unregistered form,
any restrictions applicable to the exchange of one form for another and to the
offer, sale and delivery of such Debt Securities; (14) the person to whom any
interest on the Offered Debt Securities shall be payable, if other than the
person in whose name such security is registered on the applicable record date;
(15) whether the Offered Debt Securities are to be issued in the form of one or
more Registered Global Securities as described under "Registered Global
Securities" below and the identity of any Depositary with respect to such Debt
Securities; and (16) any other terms of the Offered Debt Securities. (Section
2.3 of the Indenture.)
Unless otherwise indicated in the Applicable Prospectus Supplement, the
Debt Securities will be issued only in fully registered form without coupons in
denominations of $1,000 or integral multiples of $1,000.
5
<PAGE> 7
The Debt Securities may be issued as Original Issue Discount Securities to
be offered and sold at a substantial discount below their stated principal
amount. Original Issue Discount Securities provide for an amount less than the
principal amount to be due and payable upon the declaration of acceleration of
the maturity pursuant to the terms of the Indenture. Federal income tax
consequences and other special considerations applicable to any such Original
Issue Discount Securities will be described in the Applicable Prospectus
Supplement.
Unless otherwise provided in the Applicable Prospectus Supplement, payments
in respect of the Debt Securities will be made at the office or agency
maintained by the Company for that purpose as designated by the Company from
time to time, except that at the option of the Company, interest payments, if
any, on Debt Securities in registered form may be made by wire transfer or by
checks mailed to the holders of Debt Securities entitled thereto at their
registered addresses. (Section 3.1 of the Indenture.) Unless otherwise indicated
in an Applicable Prospectus Supplement, payment of any installment of interest
on Debt Securities in registered form will be made to the person in whose name
such Debt Security is registered at the close of business on the regular record
date for such interest payment. (Section 2.7 of the Indenture.)
Unless otherwise provided in the Applicable Prospectus Supplement, Debt
Securities in registered form will be transferable or exchangeable at the agency
maintained by the Company for such purpose as designated by the Company from
time to time. (Section 2.8 of the Indenture.) Debt Securities may be transferred
or exchanged without service charge, other than any tax or other governmental
charge imposed in connection with such transfer or exchange. (Section 2.8 of the
Indenture.)
Payment in respect of Debt Securities in unregistered form will be made in
the currency and in the manner designated in the Applicable Prospectus
Supplement, subject to any applicable laws and regulations, including at such
paying agencies outside the United States as the Company may appoint from time
to time. The paying agents outside the United States initially appointed by the
Company for a series of Debt Securities will be named in the Applicable
Prospectus Supplement. Where Debt Securities of any series are issued in
unregistered form, the special restrictions and considerations, including
special offering restrictions and special Federal income tax considerations,
applicable to any such Debt Securities and to payment on and transfer and
exchange of such Debt Securities, will be described in the Applicable Prospectus
Supplement. Unregistered Debt Securities will be transferable by delivery.
(Section 2.8 of the Indenture.)
REGISTERED GLOBAL SECURITIES
The registered Debt Securities of a series may be issued in the form of one
or more Registered Global Securities that will be deposited with and registered
in the name of a Depositary or its nominee identified in the Applicable
Prospectus Supplement. 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 outstanding registered Debt Securities of
the series to be represented by such Registered Global Security or Securities.
Unless and until it is exchanged in whole or in part 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 such a nominee to such Depositary or to
another nominee of such Depositary, or by such Depositary or any such nominee to
a successor Depositary or a nominee of such successor Depositary. (Section 2.8
of the Indenture.)
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 Applicable Prospectus Supplement. 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 holding interests through
participants. Upon the issuance of 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
6
<PAGE> 8
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 limits and 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 Indenture. Except as set forth below, owners of beneficial
interests in a Registered Global Security will not be entitled to have the Debt
Securities represented by such Registered Global Security registered in their
names, will not receive or be entitled to receive physical delivery of such Debt
Securities in definitive form and will not be considered the owners or holders
of such Debt Securities under the 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 interests, to exercise any rights of a holder under the 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 take any action which a holder is
entitled to give or take under the applicable Indenture, the Depositary for such
Registered Global Security would authorize the participants holding the relevant
beneficial interests to give or take such action, and such participants would
authorize beneficial owners owning through such participants to give or 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
records 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.
7
<PAGE> 9
CERTAIN COVENANTS OF THE COMPANY
Negative Pledge. If the Company or any Restricted Subsidiary (as defined
below) shall issue, assume, incur or guarantee any debt secured by a Mortgage on
any Principal Manufacturing Property (as defined below) of the Company or any
Restricted Subsidiary or on any shares of capital stock or debt of any
Restricted Subsidiary, the Company will secure, or cause such Restricted
Subsidiary to secure, the outstanding Debt Securities equally and ratably with
such secured debt, unless after giving effect to such actions the aggregate
amount of all such secured debt together with all Attributable Debt (as defined
below) of the Company and its Subsidiaries in respect of sale and leaseback
transactions involving Principal Manufacturing Properties would not exceed 10%
of the Consolidated Net Tangible Assets (as defined below) of the Company and
its consolidated Subsidiaries. This restriction will not apply in the case of
(a) the creation of Mortgages on any Principal Manufacturing Property acquired
by the Company or a Restricted Subsidiary after the date of the Indenture to
secure or provide for the payment of financing of all or any part of the
purchase price of or construction of fixed improvements on such Principal
Manufacturing Property (prior to, at the time of or within 120 days after the
latest of the acquisition, completion of construction or commencement of
commercial operation), or existing Mortgages upon any Principal Manufacturing
Property acquired by the Company or a Restricted Subsidiary (whether or not such
Mortgages are assumed), provided the Mortgage shall not apply to any property
previously owned by the Company or a Restricted Subsidiary, other than any
theretofore unimproved real property; (b) the assumption of any Mortgages on any
Principal Manufacturing Property of a corporation which is merged into or
consolidated with the Company or a Restricted Subsidiary or substantially all of
the assets of which are acquired by the Company or a Restricted Subsidiary; (c)
Mortgages in favor of governmental bodies of the United States or any State or
any other country or any political subdivision to secure partial, progress or
advance payments pursuant to any contract or statute, or to secure any debt
incurred or guaranteed for the purpose of financing all or any part of the cost
of acquiring, constructing or improving the property subject to such Mortgages;
(d) Mortgages on particular property (or any proceeds of the sale of such
property) to secure all or any part of the cost of exploration, drilling, mining
or development intended to obtain or materially increase the production and sale
or other disposition of oil, gas, coal, uranium, copper or other minerals from
such property, or any debt created, issued, assumed or guaranteed to provide
funds for any or all such purposes; (e) Mortgages securing debt of a Restricted
Subsidiary owing to the Company or another Restricted Subsidiary; and (f)
certain extensions, renewals or replacements of Mortgages referred to in the
foregoing clauses. (Section 3.6 of the Indenture.) The Indenture will not
restrict the incurrence of unsecured debt by the Company or its Subsidiaries.
Restrictions on Sale and Leaseback Transactions. Neither the Company nor
any Restricted Subsidiary may, after the effective date of the Indenture, enter
into any sale and leaseback transaction involving any Principal Manufacturing
Property which has been or is to be sold or transferred by the Company or any
Restricted Subsidiary, unless (a) the Company or such Restricted Subsidiary
would be entitled to create debt secured by a Mortgage on such property as
described in clauses (a)-(f) under "Negative Pledge" in an amount equal to the
Attributable Debt with respect to the sale and leaseback transaction without
equally and ratably securing the outstanding Debt Securities; (b) during the
period commencing 12 months prior to and ending 12 months after a sale and
leaseback transaction, the Company or a Restricted Subsidiary expends for
facilities comprising a Principal Manufacturing Property (or part thereof) all
or a part of the net proceeds of such sale and leaseback transaction and elects
to designate such amount as a credit against such sale and leaseback
transaction; or (c) to the extent not credited as described above, the Company
applies to the retirement of long-term indebtedness of the Company or any
Restricted Subsidiary an amount equal to the Attributable Debt with respect to
such sale and leaseback transaction. (Section 3.6 of the Indenture.) This
restriction will not apply to any sale and leaseback transaction (a) between the
Company and a Restricted Subsidiary or between Restricted Subsidiaries, (b)
involving the taking back of a lease for a period of three years or less, or (c)
if after giving effect to a sale and leaseback transaction, permitted secured
debt plus Attributable Debt of the Company and its Subsidiaries in respect of
sale and leaseback transactions involving Principal Manufacturing Properties
would not exceed 10% of the Consolidated Net Tangible Assets of the Company and
its consolidated Subsidiaries.
Except as may be described in a Prospectus Supplement applicable to a
particular series of Debt Securities, there are no covenants or other provisions
in the Indenture providing for a put or increased interest or otherwise
8
<PAGE> 10
that would afford holders of Debt Securities additional protection in the event
of a recapitalization transaction, a change of control of the Company or a
highly leveraged transaction.
"Principal Manufacturing Property" means any manufacturing plant or any
testing or research and development facility of the Company or a Subsidiary
located in the United States or Puerto Rico unless the Board of Directors of the
Company determines that such plant or facility is not of material importance to
the total business conducted by the Company and its consolidated Subsidiaries.
(Section 1.1 of the Indenture.)
"Attributable Debt" means the total net amount of rent required to be paid
during the remaining term of any lease, discounted at the weighted average rate
per annum then borne by the outstanding Debt Securities. (Section 1.1 of the
Indenture.)
"Consolidated Net Tangible Assets" means the total assets shown on the most
recent audited annual consolidated balance sheet of the Company and its
consolidated Subsidiaries, after deducting the amount of all current liabilities
and intangible assets. (Section 1.1 of the Indenture.)
"Subsidiary" means any corporation, partnership or other entity of which
more than 50% of the outstanding voting stock or interests is directly or
indirectly owned or controlled by the Company. (Section 1.1 of the Indenture.)
"Restricted Subsidiary" means any Subsidiary owning or leasing any
Principal Manufacturing Property or otherwise designated by the Board of
Directors of the Company to be a Restricted Subsidiary. (Section 1.1 of the
Indenture.)
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company may not consolidate with or merge into any other person or
transfer or lease substantially all of its assets to any person and may not
permit any person to merge into or consolidate with the Company, unless (i)
either the Company is the continuing entity or the successor or purchaser is a
corporation organized under the laws of the United States, any State thereof or
the District of Columbia and expressly assumes the Company's obligations under
the Debt Securities and the Indenture, and (ii) immediately after giving effect
to the transaction no Event of Default, and no event which, after notice or
lapse of time or both, would become an Event of Default, exists. (Section 9.1 of
the Indenture.) Upon any such consolidation, merger or sale, the successor
corporation formed by such consolidation, or into which the Company is merged or
to which such sale is made, shall succeed to, and be substituted for the Company
under the Indenture and under the Debt Securities. (Section 9.2 of the
Indenture.)
EVENTS OF DEFAULT
Any one of the following events will constitute an Event of Default under
the Indenture with respect to Debt Securities of any series: (i) failure to pay
any interest on any Debt Security of that series when due and continuance of
such default for 30 days; (ii) failure to pay principal of or any premium on any
Debt Security of that series when due, either at maturity, upon any redemption,
by declaration or otherwise; (iii) failure to observe or perform any other of
the covenants or agreements of the Company in the Indenture (other than a
covenant the default or breach of which is otherwise specifically dealt with in
the Indenture) continued for 60 days after written notice as provided in the
Indenture; (iv) certain events of bankruptcy, insolvency or reorganization of
the Company; or (v) any other Event of Default provided in a supplemental
indenture with respect to Debt Securities of that series. (Section 5.1 of the
Indenture.)
If any Event of Default with respect to the Debt Securities of any series
occurs and is continuing, either the Trustee or the holders of at least 25% in
aggregate principal amount of the outstanding Debt Securities of that series, by
written notice to the Company (and to the Trustee if given by such holders of
Debt Securities), may declare the principal amount (or, if the Debt Securities
of that series are Original Issue Discount Debt Securities, such portion of the
principal amount as may be specified in the Applicable Prospectus Supplement)
and accrued interest of all the Debt Securities of that series to be due and
payable immediately. At any time after a declaration of acceleration with
respect to Debt Securities of any series has been made, but before a judgment or
decree based on such acceleration has been obtained, the holders of a majority
in aggregate principal amount of
9
<PAGE> 11
outstanding Debt Securities of that series may, under certain circumstances,
rescind and annul such acceleration. (Section 5.01 of the Indenture.)
The Indenture provides that the Trustee will, within 90 days after the
occurrence of a default with respect to the Debt Securities of any series, give
to the holders of the Debt Securities of that series notice of all defaults
known to it unless such default shall have been cured or waived; provided that
except in the case of a default in payment on the Debt Securities of that
series, the Trustee may withhold the notice if and so long as it in good faith
determines that withholding such notice is in the interests of the holders of
the Debt Securities of that series. (Section 5.11 of the Indenture.)
The Indenture provides that the holders of a majority in aggregate
principal amount of the outstanding Debt Securities of each series affected
(with each such series voting as a class) may direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee for such
series, or exercising any trust or power conferred on such Trustee. (Section 5.9
of the Indenture.)
The holders of a majority in aggregate principal amount outstanding of any
series of Debt Securities by notice to the Trustee may waive, on behalf of the
holders of all Debt Securities of such series, any past default or Event of
Default with respect to that series and its consequences except in respect of a
covenant or provision of the Indenture which cannot under the terms of the
Indenture be amended or modified without the consent of the holder of each
outstanding Debt Security affected. (Section 5.10 of the Indenture.)
The Indenture includes a covenant that the Company will file annually with
the Trustee a certificate as to the Company's compliance with all conditions and
covenants of the Indenture. (Section 3.5 of the Indenture.)
MODIFICATION OF THE INDENTURE
The Indenture contains provisions permitting the Company and the Trustee to
enter into one or more supplemental indentures without the consent of the
holders of any of the Debt Securities in order (i) to transfer or pledge any
property to the Trustee as security for the Debt Securities of any series; (ii)
to evidence the succession of another corporation to the Company and the
assumption of the covenants of the Company by a successor to the Company; (iii)
to add to the covenants of the Company such further covenants or provisions so
as to further protect the holders of Debt Securities; (iv) to establish the form
or terms of Debt Securities; (v) to evidence and provide for successor Trustees;
or (vi) to cure any ambiguity or correct or supplement any defective provisions
or to make any other provisions as the Company deems necessary or desirable,
provided such action does not adversely affect the interests of any holder of
Debt Securities of any series. (Section 8.1 of the Indenture.)
The Indenture also contains provisions permitting the Company and the
Trustee, with the consent of the holders of a majority in aggregate principal
amount of the outstanding Debt Securities affected by such supplemental
indenture (voting as one class), to execute supplemental indentures adding any
provisions to or changing or eliminating any of the provisions of the Indenture
or any supplemental indenture or modifying the rights of the holders of Debt
Securities of such series, except that no such supplemental indenture may,
without the consent of the holder of each Debt Security so affected, (i) extend
the time for payment of principal or premium, if any, or interest on any Debt
Security; (ii) reduce the principal of, or the rate of interest on, any Debt
Security; (iii) reduce the amount of premium, if any, payable upon the
redemption of any Debt Security; (iv) reduce the amount of principal payable
upon acceleration of the maturity of any Original Issue Discount Security; (v)
change the currency or currency unit in which any Debt Security or any premium
or interest thereon is payable; (vi) impair the right to institute suit for the
enforcement of any payment on or with respect to any Debt Security; or (vii)
reduce the percentage in principal amount of the affected outstanding Debt
Securities as to which the consent of whose holders is required for modification
or amendment of the Indenture. (Section 8.2 of the Indenture.)
DEFEASANCE AND COVENANT DEFEASANCE
The Indenture provides that the Company, at its option, (a) will be
discharged from any and all obligations in respect of the Debt Securities of any
series (except for certain obligations to register the transfer or exchange of
Debt Securities of such series, replace stolen, lost or mutilated Debt
Securities of such series, maintain paying
10
<PAGE> 12
agencies and hold moneys for payment in trust) ("defeasance") or (b) need not
comply with certain covenants of the Indenture, including those described under
"Certain Covenants of the Company' and "Consolidation, Merger and Sale of
Assets," and the occurrence of an event described in clause (iii) under "Events
of Default" shall no longer be an Event of Default ("covenant defeasance"), in
each case, if the Company deposits, in trust, with the Trustee money or U.S.
Government Obligations (as defined below) which through the payment of interest
and principal in accordance with their terms will provide money, in an amount
sufficient to pay all the principal of (and premium, if any) and interest on the
Debt Securities of such series, and any mandatory sinking fund or analogous
payments, on the dates such payments are due in accordance with the terms of the
Debt Securities of such series. Such defeasance or covenant defeasance may only
be established if, among other things, (i) no Event of Default or event which
with the giving of notice or lapse of time, or both, would become an Event of
Default under the Indenture shall have occurred and be continuing on the date of
such deposit, and (ii) the Company shall have delivered an opinion of counsel to
the effect that the holders of Debt Securities will not recognize income, gain
or loss for Federal income tax purposes as a result of such deposit or
defeasance and will be subject to Federal income tax on the same amount, in the
same manner and at the same times as if such defeasance had not occurred. In the
case of defeasance as described in clause (a) above, such opinion of counsel
must be based upon a ruling of the Internal Revenue Service or a change in
applicable Federal income tax law occurring after the date of the Indenture.
"U.S. Government Obligations" means obligations issued or guaranteed as to
principal and interest by the United States or by an entity controlled or
supervised by or acting as an instrumentality of the United States Government.
(Article Ten)
THE TRUSTEE
The First National Bank of Chicago is the Trustee under the Indenture. The
Company may also maintain banking and other commercial relationships with the
Trustee in the ordinary course of business.
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities through agents, underwriters and
dealers and may sell Debt Securities to other purchasers directly. The
distribution of the Debt Securities may be effected from time to time in one or
more transactions at a fixed price or prices, which may be changed, at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices or at negotiated prices.
Offers to purchase Debt Securities may be solicited by agents designated by
the Company from time to time. Any such agent (which may be deemed to be an
underwriter, as that term is defined in the Securities Act) involved in the
offer or sale of the Debt Securities will be named, and any commissions payable
by the Company to such agent will be set forth, in the Applicable Prospectus
Supplement. Unless otherwise indicated in the Applicable Prospectus Supplement,
any such agent will be acting on a reasonable efforts basis for the period of
its appointment.
If any underwriters are utilized in the sale of the Debt Securities, the
Company will enter into an underwriting agreement with such underwriters at the
time of sale to them, and the names of the underwriters and the terms of the
transaction, including commissions, discounts or other compensation to the
underwriters, will be set forth in the Applicable Prospectus Supplement used by
the underwriters to make resales of the Debt Securities. If underwriters are
utilized in the sale of the Debt Securities, the Debt Securities will be
acquired by the underwriters for their own account and may be resold from time
to time in one or more transactions at fixed public offering prices, at varying
prices determined by the underwriter at the time of sale, or in negotiated
transactions. Unless otherwise indicated in the Applicable Prospectus
Supplement, the underwriting agreement will provide that the obligations of the
underwriters are subject to certain conditions precedent and that the
underwriters with respect to a sale of Debt Securities will be obligated to
purchase all such Debt Securities if any are purchased.
If dealers are utilized in the sale of the Debt Securities, the Company
will sell Debt Securities to such dealers as principal. The dealers may then
resell such Debt Securities to the public at varying prices to be determined by
such dealers at the time of resale. Any such dealer may be deemed to be an
underwriter, as such term is defined in
11
<PAGE> 13
the Securities Act, of the Debt Securities so offered and sold. The name of any
dealer and the terms of the transaction will be set forth in the Applicable
Prospectus Supplement.
Agents, underwriters and dealers may be entitled under relevant agreements
that may be entered into with the Company to indemnification or contribution by
the Company against certain civil liabilities, including liabilities under the
Securities Act. Such agents, underwriters and dealers (or their affiliates) may
be customers of, engage in transactions with or perform services for the Company
in the ordinary course of business.
If so indicated in the Applicable Prospectus Supplement, the Company may
authorize agents, underwriters or dealers to solicit offers by certain
institutions to purchase Debt Securities from the Company at the public offering
price set forth in the Applicable Prospectus Supplement pursuant to delayed
delivery contracts providing for payment and delivery on a specified future date
or dates. The Applicable Prospectus Supplement will set forth the commission
payable to underwriters, dealers and agents soliciting purchases of Debt
Securities pursuant to delayed delivery contracts accepted by the Company.
The Debt Securities are not proposed to be listed on a securities exchange,
and no underwriters or dealers will be obligated to make a market in the Debt
Securities. The Company cannot predict the activity or liquidity of any trading
in the Debt Securities.
LEGAL MATTERS
Certain legal matters in connection with the Debt Securities being offered,
including their validity, will be passed upon for the Company by Squire, Sanders
& Dempsey L.L.P., Cleveland, Ohio.
EXPERTS
The consolidated financial statements incorporated in this Prospectus by
reference from the Company's Annual Report on Form 10-K for the year ended
December 31, 1997 have been audited by Deloitte & Touche LLP, independent
auditors, as stated in their report, which is incorporated in this Prospectus by
reference, and have been so incorporated in reliance upon the report of such
firm given upon their authority as experts in accounting and auditing.
12
<PAGE> 14
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The Company estimates that expenses, other than underwriting compensation,
in connection with the offering described in this Registration Statement will be
as follows:
<TABLE>
<S> <C>
Registration Fee............................................ $ 59,000
Trustee's Fees.............................................. 10,000
Printing and Engraving...................................... 25,000
Legal Fees.................................................. 50,000
Accounting Fees............................................. 30,000
Rating Agency Fees.......................................... 60,000
Blue Sky Fees and Expenses.................................. 15,000
Miscellaneous............................................... 10,000
--------
Total............................................. $259,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Regulations of the Company provide that the Company shall indemnify any
present or former director or officer of the Company against expenses, including
attorneys' fees, judgments, fines and amounts paid in settlement, actually and
reasonably incurred by such director or officer by reason of the fact that said
person was such director or officer, in connection with any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative, to the full extent permitted by applicable law.
Ohio Revised Code Section 1701.13 permits indemnification of such persons
with respect to such matters, other than an action by or in the right of the
Company, if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the Company
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe such person's conduct was unlawful. In the case of an action brought
by or in the right of the Company, such Ohio Revised Code section permits
indemnification of such persons against expenses, including attorneys' fees,
actually and reasonably incurred by such person in connection with the
settlement or defense of such action if such person acted in good faith and in a
manner that such person reasonably believed to be in or not opposed to the best
interests of the Company, subject to certain exceptions, including an exception
for a matter as to which such person is adjudged to be liable for negligence or
misconduct in the performance of such person's duty to the Company, unless the
court in which such action was brought determines that such person is fairly and
reasonably entitled to indemnity for such expenses as the court shall deem
proper.
Each director and officer of the Company is a party to an indemnification
agreement with the Company, which agreement provides that the Company will
indemnify such officer or director against expenses, including, without
limitation, attorneys' fees, judgments, fines and amounts paid in settlement, in
connection with any claim against such officer or director arising out of such
person's being an officer or director of the Company, to the full extent
provided by (i) the Company's Regulations or Articles of Incorporation, as in
effect on the date of the agreement or at the time expenses are incurred, (ii)
Ohio law or the law governing the Company at the time the expenses are incurred,
or (iii) insurance maintained by the Company, at the option of such officer or
director. The Company has also agreed to maintain directors' and officers'
liability insurance so long as such insurance is available on a basis acceptable
to the Company, and to advance funds for expenses, provided the officer or
director agrees to reimburse the Company if such officer or director is
ultimately found not to be entitled to such indemnifications.
II-1
<PAGE> 15
The Company maintains insurance policies that insure the Company's
directors and officers against certain liabilities (excluding fines and
penalties imposed by law) which might be incurred by them in such capacities and
insure the Company for amounts which may be paid by it (up to the limits of such
policies) to indemnify the directors and officers covered by the policies.
ITEM 16. EXHIBITS.
<TABLE>
<C> <C> <S>
(1)* -- Form of Underwriting Agreement.
(4)(a) -- Form of Indenture between the Company and The First National
Bank of Chicago, as Trustee.
(4)(b) -- Form of Debt Security.
(5) -- Opinion of Squire, Sanders & Dempsey L.L.P.
(12) -- Computation of Ratio of Earnings to Fixed Charges.
(23)(a) -- Consent of Deloitte & Touche LLP.
(23)(b) -- Consent of Squire, Sanders & Dempsey L.L.P. (included in
Exhibit 5).
(24) -- Powers of Attorney.
(25) -- Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of The First National
Bank of Chicago.
</TABLE>
- ---------------
* To be filed by amendment.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement;
(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 (i) and (ii) 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 the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall
be
II-2
<PAGE> 16
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(5) That, for purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of prospectus
filed as part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant pursuant to the
Rule 424(b)(1) or (4) or 497(h) under the Securities Act of 1933 shall be
deemed to be part of the registration statement as of the time it was
declared effective.
(6) That, for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form
of prospectus shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
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 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 against the registrant 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 theretofore
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 such Act and will be governed by the final adjudication
of such issue.
II-3
<PAGE> 17
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE LUBRIZOL
CORPORATION CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS
ALL THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO
DULY AUTHORIZED, IN THE CITY OF WICKLIFFE, STATE OF OHIO, ON THIS 29TH DAY OF
JULY, 1998.
THE LUBRIZOL CORPORATION
By: /S/ W. G. BARES
------------------------------------
W. G. Bares, Chairman of the Board,
President and Chief Executive
Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS AMENDMENT
TO REGISTRATION STATEMENT HAS BEEN SIGNED ON THIS 29TH DAY OF JULY, 1998, BY THE
FOLLOWING PERSONS IN THE CAPACITIES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
*/S/ W. G. BARES Chairman of the Board, President and Chief
- ------------------------------------------------ Executive Officer (Principal Executive Officer)
W. G. Bares
*/S/ C. P. COOLEY Vice President, Chief Financial Officer and
- ------------------------------------------------ Treasurer (Principal Financial Officer)
Charles P. Cooley
*/S/ G. P. LIEB Controller, Accounting and Financial (Principal
- ------------------------------------------------ Accounting Officer)
G. P. Lieb
*/S/ EDWARD F. BELL Director
- ------------------------------------------------
Edward F. Bell
*/S/ L. E. COLEMAN Director
- ------------------------------------------------
L. E. Coleman
*/S/ PEGGY GORDON ELLIOTT Director
- ------------------------------------------------
Peggy Gordon Elliott
*/S/ FOREST J. FARMER, SR. Director
- ------------------------------------------------
Forest J. Farmer, Sr.
*/S/ GORDON D. HARNETT Director
- ------------------------------------------------
Gordon D. Harnett
*/S/ VICTORIA F. HAYNES Director
- ------------------------------------------------
Victoria F. Haynes
*/S/ DAVID H. HOAG Director
- ------------------------------------------------
David H. Hoag
*/S/ WILLIAM P. MADAR Director
- ------------------------------------------------
William P. Madar
*/S/ RONALD A. MITSCH Director
- ------------------------------------------------
Ronald A. Mitsch
*/S/ M. THOMAS MOORE Director
- ------------------------------------------------
M. Thomas Moore
</TABLE>
*By: /S/ C. P. COOLEY
-------------------------------------------------------
C. P. Cooley, Attorney-in-Fact
II-4
<PAGE> 18
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT
- ------- -------
<C> <C> <S>
(1)* -- Form of Underwriting Agreement.
(4)(a) -- Form of Indenture between the Company and The First National
Bank of Chicago, as Trustee.
(4)(b) -- Form of Debt Security.
(5) -- Opinion of Squire, Sanders & Dempsey L.L.P.
(12) -- Computation of Ratio of Earnings to Fixed Charges.
(23)(a) -- Consent of Deloitte & Touche LLP.
(23)(b) -- Consent of Squire, Sanders & Dempsey L.L.P. (included in
Exhibit 5).
(24) -- Powers of Attorney.
(25) -- Statement of Eligibility on Form T--1 under the Trust
Indenture Act of 1939, as amended, of The First National
Bank of Chicago.
</TABLE>
- ---------------
* To be filed by amendment.
II-5
<PAGE> 1
Exhibit 4(a)
================================================================================
THE LUBRIZOL CORPORATION
And
The First National Bank of Chicago, Trustee
Indenture
Dated as of _______________, 1998
================================================================================
<PAGE> 2
CROSS REFERENCE SHEET(1)
------------------
Between
Provisions of Trust Indenture Act of 1939 and Indenture to be dated as
of __________, 1998 between THE LUBRIZOL CORPORATION and The First National Bank
of Chicago, Trustee:
SECTION OF THE ACT SECTION OF INDENTURE
- ------------------ --------------------
310(a) (1) and (2)............................ 6.9
310(a) (3) and (4)............................ Inapplicable
310(b)........................................ 6.8 and 6.10(a), (b) and (d)
310(c)........................................ Inapplicable
311(a)........................................ 6.13(a) and (c) (1) and (2)
311(b)........................................ 6.13(b)
311(c)........................................ Inapplicable
312(a)........................................ 4.1 and 4.2(a)
312(b)........................................ 4.2(a) and (b) (i) and (ii)
312(c)........................................ 4.2(c)
313(a)........................................ 4.4(a) (i), (ii), (iii)
(iv), (v) and (vi)
313(b) (1).................................... Inapplicable
313(b) (2).................................... 4.4
313(c)........................................ 4.4
313(d)........................................ 4.4
314(a)........................................ 4.3
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).................................... 5.9
316(a) (2).................................... Not required
316(a) (last sentence)........................ 7.4
316(b)........................................ 5.7
316(c)........................................ 7.2
317(a)........................................ 5.2
317(b)........................................ 3.4(a) and (b)
318(a)........................................ 11.7
- --------
1 This Cross Reference Sheet is not part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
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PARTIES...........................................................................................................1
RECITALS
Authorization of Indenture...............................................................................1
Compliance with Legal Requirements.......................................................................1
Purpose of and Consideration for Indenture...............................................................1
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined..................................................................1
Attributable Debt......................................................................2
Authenticating Agent...................................................................2
Authorized Newspaper...................................................................2
Board of Directors.....................................................................2
Board Resolution.......................................................................2
Business Day...........................................................................2
Commission.............................................................................2
Composite Rate.........................................................................3
Consolidated Net Tangible Assets.......................................................3
Corporate Trust Office.................................................................3
Coupon.................................................................................3
Covenant Defeasance....................................................................3
Debt...................................................................................4
Depositary.............................................................................4
Dollar.................................................................................4
ECU....................................................................................4
Event of Default.......................................................................4
Exempted Debt..........................................................................4
Foreign Currency.......................................................................4
Holder, Holder of Securities, Securityholder...........................................4
Indenture..............................................................................4
Interest...............................................................................4
Issuer.................................................................................5
Issuer Order...........................................................................5
Judgment Currency......................................................................5
Mortgage...............................................................................5
Net Rental Payment.....................................................................5
</TABLE>
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<TABLE>
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Officer's Certificate..................................................................5
Opinion of Counsel.....................................................................5
Original Issue Date....................................................................5
Original Issue Discount Security.......................................................5
Outstanding............................................................................5
Periodic Offering......................................................................6
Person.................................................................................6
Principal..............................................................................6
Principal Manufacturing Property.......................................................6
Record Date............................................................................7
Registered Global Security.............................................................7
Registered Security....................................................................7
Required Currency......................................................................7
Required Officer.......................................................................7
Restricted Subsidiary..................................................................7
Security or Securities................................................................7
Subsidiary.............................................................................7
Trust Indenture Act of 1939............................................................7
Trustee................................................................................8
Unregistered Security..................................................................8
U.S. Government Obligations...........................................................8
Yield to Maturity......................................................................8
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally........................................................................8
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.........................................................14
SECTION 2.7 Denomination and Date of Securities; Payments of Interest.............................15
SECTION 2.8 Registration, Transfer and Exchange...................................................15
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities.............................18
SECTION 2.10 Cancellation of Securities; Destruction Thereof.......................................19
SECTION 2.11 Temporary Securities..................................................................20
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest.....................................................20
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SECTION 3.2 Offices for Payments, etc.............................................................21
SECTION 3.3 Appointment to Fill a Vacancy in Office of Trustee....................................22
SECTION 3.4 Paying Agents.........................................................................22
SECTION 3.5 Written Statement to Trustee..........................................................23
SECTION 3.6 Negative Pledge; Limitation on Sale and Leaseback
Transactions.........................................................................23
SECTION 3.7 Luxembourg Publications...............................................................26
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..........................................................26
SECTION 4.2 Preservation and Disclosure of Securityholders Lists..................................27
SECTION 4.3 Reports by the Issuer.................................................................27
SECTION 4.4 Reports by the Trustee................................................................27
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. ..................................................................27
SECTION 5.2 Collection of Indebtedness by Trustee; Trustee May
Prove Debt...........................................................................30
SECTION 5.3 Application of Proceeds...............................................................32
SECTION 5.4 Suits for Enforcement.................................................................32
SECTION 5.5 Restoration of Rights on Abandonment of Proceedings...................................33
SECTION 5.6 Limitations on Suits by Securityholders...............................................33
SECTION 5.7 Unconditional Right of Securityholders to Institute
Certain Suits........................................................................33
SECTION 5.8 Powers and Remedies Cumulative; Delay or Omission
Not Waiver of Default................................................................34
SECTION 5.9 Control by Holders of Securities......................................................34
SECTION 5.10 Waiver of Past Defaults...............................................................34
SECTION 5.11 Trustee to Give Notice of Default, But May Withhold
in Certain Circumstances.............................................................35
SECTION 5.12 Right of Court to Require Filing of Undertaking to Pay Costs..........................35
</TABLE>
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ARTICLE SIX
CONCERNING THE TRUSTEE
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SECTION 6.1 Duties and Responsibilities of the Trustee; During Default;
Prior to Default.....................................................................36
SECTION 6.2 Certain Rights of the Trustee.........................................................37
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition of Securities or
Application or Proceeds Thereof......................................................38
SECTION 6.4 Trustee and Agents May Hold Securities or Coupons;
Collections, etc.....................................................................38
SECTION 6.5 Moneys Held by Trustee................................................................38
SECTION 6.6 Compensation and Indemnification of Trustee and
Its Prior Claim......................................................................39
SECTION 6.7 Right of Trustee to Rely on Officer's Certificate, etc................................39
SECTION 6.8 Indentures Not Creating Potential Conflicting Interests
for the Trustee......................................................................39
SECTION 6.9 Persons Eligible for Appointment as Trustee...........................................39
SECTION 6.10 Resignation and Removal; Appointment of Successor Trustee.............................40
SECTION 6.11 Acceptance of Appointment by Successor Trustee........................................41
SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business
of Trustee...........................................................................42
SECTION 6.13 Preferential Collection of Claims Against the Issuer..................................43
SECTION 6.14 Appointment of Authenticating Agent...................................................43
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders...........................................44
SECTION 7.2 Proof of Execution of Instruments and of Holding of Securities........................44
SECTION 7.3 Holders to be Treated as Owners.......................................................45
SECTION 7.4 Securities Owned by Issuer Deemed Not Outstanding.....................................46
SECTION 7.5 Right of Revocation of Action Taken...................................................46
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of Securityholders............................47
SECTION 8.2 Supplemental Indentures With Consent of Securityholders...............................48
SECTION 8.3 Effect of Supplemental Indenture......................................................49
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SECTION 8.4 Documents to Be Given to Trustee......................................................49
SECTION 8.5 Notation on Securities in Respect of Supplemental Indentures..........................50
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Covenant Not to Merge, Consolidate, Sell or Convey
Property Except Under Certain Conditions.............................................50
SECTION 9.2 Successor Corporation Substituted.....................................................50
SECTION 9.3 Opinion of Counsel Delivered to Trustee...............................................51
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture...............................................51
SECTION 10.2 Application by Trustee of Funds Deposited for Payment
of Securities........................................................................55
SECTION 10.3 Repayment of Moneys Held by Paying Agent..............................................55
SECTION 10.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years..............................................................55
SECTION 10.5 Indemnity for U.S. Government Obligations.............................................55
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Shareholders, Officers and Directors of Issuer
Exempt from Individual Liability.....................................................56
SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties and
Holders of Securities and Coupons....................................................56
SECTION 11.3 Successors and Assigns of Issuer Bound by Indenture...................................56
SECTION 11.4 Notices and Demands on Issuer Trustee and Holders of
Securities and Coupons...............................................................56
SECTION 11.5 Officer's Certificates and Opinions of Counsel; Statements
to Be Contained Therein..............................................................57
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays.......................................58
SECTION 11.7 Conflict of Any Provision of Indenture with Trust Indenture
</TABLE>
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Act of 1939..........................................................................58
SECTION 11.8 New York Law to Govern................................................................58
SECTION 11.9 Counterparts..........................................................................58
SECTION 11.10 Effect of Headings....................................................................58
SECTION 11.11. Securities in a Foreign Currency or in ECU............................................58
SECTION 11.12 Judgment Currency.....................................................................59
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article..............................................................60
SECTION 12.3 Payment of Securities Called for Redemption...........................................61
SECTION 12.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption.............................................................62
SECTION 12.5 Mandatory and Optional Sinking Funds..................................................62
TESTIMONIUM......................................................................................................63
SIGNATURES.......................................................................................................63
</TABLE>
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<PAGE> 9
THIS INDENTURE, dated as of _____________, 1998 between THE
LUBRIZOL CORPORATION, an Ohio corporation (the "Issuer"), and The First National
Bank of Chicago, 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 purchase 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 herein, in any indenture supplemental thereto
or, as to any Security, in such Security 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 account principles, and the term "GENERALLY ACCEPTED ACCOUNTING
PRINCIPLES" means such accounting principles as are generally accepted in the
United States 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
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<PAGE> 10
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.
"ATTRIBUTABLE DEBT" means, as to any particular lease under
which any Person is at the time liable, at any date as of which the amount
thereof is to be determined, the total net amount of rent required to be paid by
such Person under such lease during the remaining term thereof, discounted from
the respective due dates thereof to such date at the Composite Rate. The net
amount of rent required to be paid under any such lease for any such period
shall be the aggregate amount of the rent payable by the lessee with respect to
such period after excluding amounts required to be paid on account of
maintenance and repairs, insurance, taxes, assessments, water rates, contingent
rents (such as those based on sales) and similar charges. In the case of any
lease which is terminable by the lessee upon the payment of a penalty, such net
amount shall also include the amount of such penalty, but no rent shall be
considered as required to be paid under such lease subsequent to the first date
upon which it may be so terminated.
"AUTHENTICATING AGENT" shall have the meaning set forth in
Section 6.14.
"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 in Luxembourg, as applicable. If it shall be
impractical in the opinion of the Trustee to make any publication of any notice
required hereby in an Authorized Newspaper, any publication or other notice in
lieu thereof which is made or given with the approval of the Trustee shall
constitute a sufficient publication of such notice.
"BOARD OF DIRECTORS" means either the Board of Directors of
the Issuer or any committee or other designees 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, and delivered to the Trustee.
"BUSINESS DAY" means, with respect to any Security, a day that
in 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, 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 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, then the body performing such duties on such date.
2
<PAGE> 11
"COMPOSITE RATE" means, at any time, the rate of interest, per
annum, compounded semiannually, equal to the sum of the rates of interest borne
by the Securities of each series (as specified on the face of the Securities of
each series, PROVIDED, that, in the case of the 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 Securities at the beginning of the
year in which the Composite Rate is being determined and, PROVIDED, further,
that, in the case of Original Issue Discount Securities, the interest rate to be
used in calculating the Composite Rate shall be a rate equal to the yield to
maturity on such Securities, calculated at the time of issuance of such
Securities) multiplied, in the case of each series of Securities, by the
percentage of the aggregate principal amount of the Securities of all series
Outstanding represented by the Outstanding Securities of such series. For the
purposes of this calculation, the aggregate principal amount of Outstanding
Securities that are denominated in a foreign currency shall be calculated in the
manner set forth in Section 11.11, and the aggregate principal amount of
Original Issue Discount Securities shall be the aggregate amount then payable
upon the declaration of acceleration of the maturity thereof pursuant to Section
5.1.
"CONSOLIDATED NET TANGIBLE ASSETS" shall mean, at any date,
the total assets appearing on the audited annual consolidated balance sheet of
the Issuer and its consolidated Subsidiaries for the Issuer's most recently
completed fiscal year, prepared in accordance with generally accepted accounting
principles less (a) all current liabilities shown on such balance sheet and (b)
Intangible Assets. "Intangible Assets" means the value (net of applicable
reserves), as shown on or reflected in such balance sheet, of: (I) all trade
names, trademarks, licenses, patents, copyrights and goodwill; (ii)
organizational or development costs; (iii) deferred charges (other than prepaid
items such as insurance, taxes, interest, commissions, rents and similar items
and tangible assets being amortized); and (iv) unamortized debt discount and
expense, less premium.
"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, which office is, at the date as of which this
Indenture is dated, located in One First National Plaza, Suite 0126, Chicago,
Illinois 60670-0126, Attention: Corporate Trust Services Division, except that
for purposes of Section 3.2, such term shall mean the office or agency of the
Trustee in the Borough of Manhattan, The City of New York, which office, at the
date as of which this Indenture is dated is located at 14 Wall Street, Eighth
Floor, 10005.
"COUPON" means any interest coupon appertaining to a Security.
"COVENANT DEFEASANCE" shall have the meaning set forth in
Section 10.1(C).
"DEBT" of any Person shall mean any debt for money borrowed
which is issued, assumed, incurred or guaranteed in any manner by such Person.
"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 Depository 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
3
<PAGE> 12
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 conditions specified as
such in Section 5.1.
"EXEMPTED DEBT" shall mean the sum of (a) Debt of the Issuer
and its Subsidiaries incurred after the date as of which this Indenture is dated
and secured by liens created, assumed or permitted to exist pursuant to Section
3.6(b) and (b) Attributable Debt of the Issuer and its Subsidiaries in respect
of all sale and leaseback transactions entered into pursuant to Section 3.6(d).
"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.
"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 The Lubrizol Corporation, an Ohio 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 of the Board of Directors, the
chief executive officer, the president, the chief financial officer, the
treasurer, the controller or any other officer designated by the Board of
Directors or any of the foregoing officers of the Issuer.
"JUDGMENT CURRENCY" shall have the meaning set forth in
Section 11.12.
"MORTGAGE" shall have the meaning set forth in Section 3.6.
4
<PAGE> 13
"NET RENTAL PAYMENT" under any lease for any period shall mean
the sum of monies and other payments required to be paid by the lessee under
such lease as rent thereunder, not including, by way of example, amounts payable
by the lessee for maintenance and repairs, financing services, insurance, taxes,
assessments and similar charges and for contingent rents (such as those based on
sales).
"OFFICER'S CERTIFICATE" means a certificate signed by the
chairman of the Board of Directors, the chief executive officer, the president,
the chief financial officer, the treasurer, the controller or any other officer
designated by the Board of Directors or any of the foregoing officers of the
Issuer and delivered to the Trustee. 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 and who shall be satisfactory to the
Trustee. 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 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).
5
<PAGE> 14
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."
"PRINCIPAL MANUFACTURING PROPERTY" shall mean any
manufacturing plant or any testing or research an development facility of the
Issuer or a Subsidiary located in the United States of America (other than its
territories and possessions) or Puerto Rico unless, in the opinion of the Board
of Directors, such plant or facility is not of material importance to the total
business conducted by the Issuer and its consolidated Subsidiaries.
"RECORD DATE" shall have the meaning set forth in Section 2.7.
"REGISTERED GLOBAL SECURITY", means a Security evidencing all
or 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.
"REQUIRED 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
6
<PAGE> 15
be such officers, respectively, or to whom any corporate trust matter is
referred because of his knowledge of and familiarity with the particular
subject.
"RESTRICTED SUBSIDIARY" shall mean any subsidiary which owns
or is the lessee of any Principal Manufacturing Property or is otherwise
designated by the Board of Directors as a Restricted Subsidiary; provided,
however, that the term "Restricted Subsidiary" does not include any Subsidiary
acquired or organized for the purpose of acquiring the stock or business or
assets of any Person other than the Issuer or any Restricted Subsidiary, whether
by merger, consolidation, acquisition of stock or assets or similar transaction,
so long as such Subsidiary does not acquire all or any substantial part of the
business or assets of the Issuer or any other Restricted Subsidiary.
"SECURITY" or "SECURITIES" (except as otherwise provided in
Section 6.8) 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.
"SUBSIDIARY" means any corporation, partnership or other
entity of which at the time of determination the Issuer owns or controls
directly or indirectly more than 50% of the shares of voting stock or equivalent
interest; PROVIDED that the term Subsidiary shall not include Agrigenetics, L.P.
"TRUST INDENTURE ACT OF 1939" (except as otherwise required by
applicable law or as provided in Sections 8.1 and 8.2) means the Trust Indenture
Act of 1939 as in force at the date as of which this Indenture was originally
executed.
"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. "Trustee" shall also mean or include each Person
who is then a trustee hereunder and if at any time there is more than one such
Person, "Trustee" as used with respect to the Securities of any series shall
mean the trustee with respect tot he Securities of such series.
"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).
"YIELD TO MATURITY" means the yield to maturity on a series of
Securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with accepted financial practice.
ARTICLE TWO
SECURITIES
----------
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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 officers executing such
Securities and Coupons, if any, as evidenced by their 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:
"This is one of the Securities referred to in the within
mentioned Indenture.
,
----------------------------
as Trustee
By
-------------------------
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 rank equally and pari passu with all other unsecured and
unsubordinated debt of the Issuer. There
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<PAGE> 17
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 a 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 of
the series, 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;
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<PAGE> 18
(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 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, 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) whether the Securities of the series shall be issued in
the form of one or more Registered Global Securities and, in such case,
the Depositary for such Registered Global Security or Securities; and
(20) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
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<PAGE> 19
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. In authenticating such
Securities and accepting the additional responsibilities under this Indenture in
relation to such Securities, the Trustee shall be entitled to receive (in the
case of subparagraphs 2, 3 and 4 below only at or before the time of the first
request of the Issuer to the Trustee to authenticate Securities of such series)
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 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 and 2.3 by
or pursuant to which the forms and terms of the Securities and Coupons,
if any, were established;
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<PAGE> 20
(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 Opinions of Counsel,
or letters addressed to the Trustee permitting it to rely on Opinions
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; and
(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 articles of incorporation
or regulations 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, to the best of such
counsel's knowledge, 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.
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
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<PAGE> 21
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 counsel (copies of who shall be counsel
reasonably satisfactory to 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 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
Responsible Officers 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 to be represented by such
Registered Global Security or securities, (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 this certificate is
presented by an authorized representative of a Depositary to the Issuer or its
agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of the nominee of such Depositary or such other
name as requested by an authorized representative of such Depositary and any
payment is made to the nominee of such Depositary, ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the
registered owner hereof, the nominee, has an interest herein."
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 any two of the chairman of its Board of Directors or its chief
executive officer or its president or its chief financial officer or its
treasurer or its controller or any other officer designated by the Board of
Directors, under its corporate seal (except in the case of Coupons) which may,
but need not, be attested. Such signatures may be the manual or facsimile
signatures of the present or any future such officers. 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. Typographical and other
minor errors or defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of any Security that
has been duly authenticated and delivered by the Trustee.
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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 persons as, at the actual date of the
execution of such Security or Coupon, shall be the proper officers 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 accordance with such plan as the
officers 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.
Unless otherwise provided in the Registered securities of any
series, 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
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<PAGE> 23
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.
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 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 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 other authorized
denominations and an equal aggregate principal amount, upon surrender of such
Unregistered Securities to be exchanged at the 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
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<PAGE> 24
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 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 2.31
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 disposed by the
Trustee and the Trustee will deliver a certificate of disposition thereof to the
Issuer.
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
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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,
(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 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 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.
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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, shall 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, the Issuer in its discretion may execute, and upon the written
request of any officer of the Issuer, 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 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 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
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<PAGE> 27
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. The Trustee or
its agent shall dispose of cancelled Securities and Coupons held by it and
deliver a certificate of disposition to the Issuer. 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 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 definite Securities. Without
reasonable 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 any 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
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<PAGE> 28
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 Security).
ARTICLE THREE
COVENANTS OF THE ISSUER
-----------------------
SECTION 3.1 PAYMENT OF PRINCIPAL AND INTEREST. The Issuer
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, if any, 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. If any temporary Unregistered
Security provides that interest thereon may be paid while such Security is in
temporary form, the interest on any such temporary Unregistered Security
(together with any additional amounts payable pursuant to the terms of such
Security) 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, in each case
subject to any restrictions that may be established pursuant to section 2.3. 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 wire transfer or 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, unless otherwise provided in such Securities.
SECTION 3.2 OFFICES FOR PAYMENTS, ETC. So long as any
Registered Securities are authorized for issuance pursuant to this Indenture or
are outstanding hereunder, 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, where the Securities of each series
may be presented for exchange as is provided in this Indenture and, if
applicable, pursuant to Section 2.3 and where the Registered Securities of each
series may be presented for registration of transfer as in this Indenture
provided.
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 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 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
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<PAGE> 29
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 agency of the Issuer maintained in the Borough of
Manhattan, The City of New York if such payment in Dollars at each 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 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
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 any 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 2.3 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 agencies provided for in this Section. 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 6.10, a Trustee, so
that there shall at all times be a Trustee with respect to each series of
Securities hereunder.
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,
(a) that it 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, if any, or of the Trustee,
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<PAGE> 30
(b) that it 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) that it will pay any such sums so held in trust by it to
the Trustee upon the Trustee's written request at any time during the
continuance of the failure referred to in clause (b) above.
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
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 any failure to take such action.
Anything in this Section to the contrary notwithstanding, but
subject to Section 10.1, 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 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 WRITTEN STATEMENT TO TRUSTEE. The Issuer will
furnish to the Trustee on or before April 30 in each year (beginning with April
30, 1999) a brief certificate (which need not comply with Section 11.5) from the
principal executive, financial or accounting officer of the Issuer stating that
in the course of the performance by the signer of his duties as an officer of
the Issuer he would normally have knowledge of any default or non-compliance by
the Issuer in the performance of any covenants or conditions contained in this
Indenture, stating whether or not he has knowledge of any such default or
non-compliance and, if so, specifying each such default or non-compliance of
which the signer has knowledge and the nature thereof.
SECTION 3.6 NEGATIVE PLEDGE; LIMITATION ON SALE AND LEASEBACK
TRANSACTIONS.
(a) The Issuer will not issue, assume, incur or guarantee, and
will not permit any Restricted Subsidiary to issue, assume, incur or
guarantee, any Debt secured by any mortgage, pledge, lien or other
encumbrance (any such mortgage, pledge, lien and other encumbrance
being hereinafter called a "Mortgage"), upon any Principal
Manufacturing Property of the Issuer or any Restricted subsidiary, or
upon shares of capital stock or Debt of any Restricted Subsidiary
(whether such Principal Manufacturing Property or shares of stock are
now owned or hereafter acquired or such Debt is now existing or
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hereafter incurred or assumed) without in any such case effectively
providing, concurrently with the issuance or assumption of such Debt,
that the Securities (together with, if the Issuer shall so determine,
any other Debt of the Issuer or such Restricted Subsidiary ranking
equally with the Securities and then existing or thereafter created)
shall be secured equally and ratably with such Debt; PROVIDED, HOWEVER,
that the foregoing restrictions shall not apply to:
(i) the creation of Mortgages on any Principal
Manufacturing Property (including any improvements on an
existing property, as to which the Mortgage may include such
underlying real property as the Issuer may deem necessary for
the improvement and unnecessary for the operation of any
theretofore existing Principal Manufacturing Property on the
same or adjoining real property) hereafter acquired by the
Issuer or a Restricted Subsidiary prior to, at the time of, or
within 120 days after the latest of the acquisition,
completion of construction or commencement of commercial
operation of such property, to secure or provide for the
payment of financing of all or any part of the purchase price
thereof or construction of fixed improvements thereon, or, in
addition to assumptions in transactions contemplated by
subparagraph (ii) below, the assumption of any Mortgage upon
any Principal Manufacturing Property hereafter acquired
existing the time of such acquisitions, or the acquisition of
any Principal Manufacturing Property subject to any Mortgage
without the assumption thereof; provided that the aggregate
principal amount of Debt secured by any such Mortgage so
issued, assumed or existing shall not exceed 100% of the cost
of such Principal Manufacturing Property to the corporation
acquiring the same or of the fair value thereof (as determined
by resolution adopted by the Board of Directors) at the time
of such acquisition, whichever is less, and, provided further,
that in the case of any such acquisition, construction or
improvement the Mortgage shall not apply to any property
theretofore owned by the Issuer or a Restricted Subsidiary,
other than, in the case of any such construction or
improvement, any theretofore unimproved real property on which
the property so constructed, or the improvement, is located
(which unimproved real property may at the option of the
Issuer be segregated by legal description from other real
property of the Issuer appurtenant to such Principal
Manufacturing Property and subjected to the Mortgage related
to such construction or improvement);
(ii) the assumption of any Mortgages on any Principal
manufacturing Property of a corporation which is merged into
or consolidated with the Issuer or a Restricted Subsidiary or
substantially all of the assets of which are acquired by the
Issuer or a Restricted Subsidiary; provided that such
Mortgages were not created in contemplation of such merger,
consolidation or acquisition;
(iii) mortgages on any Principal Manufacturing
Property of the Issuer or a Restricted Subsidiary in favor of
the United States of America or any State thereof, or any
department, agency or instrumentality or political subdivision
of the United States of America or any State thereof, or in
favor of any other country, or any political subdivision
thereof, to secure partial, progress, advance or other
payments pursuant to any contract or statute or to secure any
Debt
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incurred or guaranteed for the purpose of financing all or any
part of the ' cost of acquiring, constructing or improving the
property subject to such Mortgages (including Mortgages
incurred in connection with financings of the type
contemplated by Section 103 of the Internal Revenue Code,
maritime financings under Title XI of the United States Code
or similar financings);
(iv) Mortgages on particular property (or any
proceeds of the sale thereof) to secure all or any part of the
cost of exploration, drilling, mining or development thereof
(including construction of facilities for field processing of
minerals) intended to obtain or materially increase the
production and sale or other disposition of oil, gas, coal,
uranium, copper or other minerals therefrom, or any Debt
created, issued, assumed or guaranteed to provide funds for
any or all such purposes;
(v) Mortgages securing Debt of a Restricted
Subsidiary owing to the Issuer or another Restricted
Subsidiary; and
(vi) any extension, renewal or replacement (or
successive extensions, renewals or replacements) in whole or
in part, of any Mortgage referred to in the foregoing clauses
(i) through (v); PROVIDED, HOWEVER, that the principal amount
of Debt so secured thereby shall not exceed the principal
amount of Debt so secured at the time of such extension,
renewal or replacement, and that such extension, renewal or
replacement shall be limited to all or a part of the property
which secured the Mortgage so extended, renewed or replaced
(plus improvements and construction on such property).
(b) Notwithstanding the provisions of subsection (a) of this
Section, the Issuer or any one or more Restricted Subsidiaries may
issue or assume Debt secured by a Mortgage on a Principal Manufacturing
Property in addition to those permitted by subsection (a) of this
Section and renew, extend or replace such Mortgages; PROVIDED that at
the time of such creation, assumption, renewal, extension or
replacement, and after giving effect thereto, Exempted Debt does not
exceed 10% of Consolidated Net Tangible Assets.
(c) The Issuer will not, nor will it permit any Restricted
Subsidiary to, enter into any arrangement with any Person providing for
the leasing by the Issuer or any Restricted Subsidiary of any Principal
Manufacturing Property, whether such Principal Manufacturing Property
is now owned or hereafter acquired (except for temporary leases for a
term, including renewals at the option of the lessee, of not more than
three years and except for leases between the Issuer and a Restricted
Subsidiary or between Restricted Subsidiaries), which property has been
or is to be sold or transferred by the Issuer or such Restricted
Subsidiary to such Person with the intention of taking back a lease on
such property (a "sale and leaseback transaction") unless the net
proceeds of such sale or transfer shall be at least equal to the fair
value of such property as determined by resolution adopted by the Board
of Directors and either:
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<PAGE> 33
(i) the Issuer or such Restricted Subsidiary would be
entitled, pursuant to the provisions of subsection (a) of this
Section, to issue or assume Debt secured by a Mortgage on such
property at least equal in amount to the Attributable Debt in
respect of such sale and leaseback transaction without equally
and ratable securing the Securities; or
(ii) since the date hereof and within a period
commencing twelve months prior to the consummation of such
sale and leaseback transaction and ending twelve months after
the consummation of such sale and leaseback transaction the
Issuer or such Restricted Subsidiary, as the case may be, has
expended or will expend, or a combination of both, for
facilities comprising all or a part of a Principal
Manufacturing Property an amount equal to (A) the net proceeds
of such sale and leaseback transaction and the Issuer elect9
to designate such amount as a credit against such sale and
leaseback transaction or (B) a part of the net proceeds of
such sale and leaseback transaction and the Issuer elects to
designate such amount as a credit against such sale and
leaseback transaction and applies an amount equal to the
remainder of the net proceeds as provided in clause (iii)
hereof; or
(iii) such sale and leaseback transactions does not
come within the exceptions provided in clause (i) hereof and
the Issuer does not make the election permitted by clause (ii)
hereof or makes such election only as to part of such net
proceeds, in either which event the Issuer will, within 120
days after such sale and leaseback transaction, apply an
amount equal to the Attributable Debt in respect of such sale
and leaseback transaction (less an amount equal to the amount,
if any, elected under clause (ii) hereof) to the retirement
(other than any mandatory retirement or by way of payment at
maturity) of Debt with a maturity of greater than one year of
the Issuer or any Restricted Subsidiary (other than Debt of
the Issuer to any Restricted Subsidiary or of any Restricted
Subsidiary to the Issuer or another Restricted Subsidiary).
(d) Notwithstanding the provisions of paragraph (c) of this
Section, the Issuer and any Restricted Subsidiary may enter into sale
and leaseback transactions in addition to those permitted by paragraph
(c) of this Section and without any obligation to make expenditures for
facilities comprising a part or all of a Principal Manufacturing
Property or to retire any Debt, provided that at the time of entering
into such sale and leaseback transaction and after giving effect
thereto, Exempted Debt does not exceed 10% of Consolidated Net Tangible
Assets.
SECTION 3.7 LUXEMBOURG PUBLICATIONS. In the event of the
publication of any notice pursuant to Section 5.11, 6.8, 6.10(a), 6.11, 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.
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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 thirty 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 PRESERVATION AND DISCLOSURE OF SECURITYHOLDERS
LISTS.
This Section intentionally left blank.
SECTION 4.3 REPORTS BY THE ISSUER. The Issuer covenants to
file with the Trustee, within 30 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 4.4 REPORTS BY THE TRUSTEE. Any Trustee's report
required under Section 313(a) of the Trust Indenture Act of 1939 shall be
transmitted on or before January 15 in each year beginning January 15, 1999, 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.
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 order, rule or regulation of any administrative or governmental body):
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<PAGE> 35
(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
of 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
60 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 60 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) (if 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 each such affected series then outstanding hereunder
(voting as a single 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
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<PAGE> 36
payable immediately, and upon any such declaration the same shall become
immediately due and payable. If an Event of Default described in clause (c) or
(f) (if the Event of Default under clause (c) or (f), as the case may be, is
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 amount 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 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, its 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, as the case may be, 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 an 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
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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,
and such coupons, 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 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 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:
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(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 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, or
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 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 on any trial or other proceedings relative thereto, and
any such action or proceedings instituted by the Trustee shall be brought in its
own name as trustee of an express trust, and any recovery of judgment, subject
to the payment of the expenses, disbursements and compensation 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
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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
reasonable compensation to the Trustee and each predecessor Trustee and
their respective agents and attorneys and of all expenses and
liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee except as a result of negligence or bad faith;
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.
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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 taker and Holder of every
Security or Coupon with every other taker and 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.
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
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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 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 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 Responsible Officers
of the Trustee shall determine that the action or proceedings so directed would
involve the Trustee in personal liability or if the Trustee in good faith shall
so determine that the actions or forbearances 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 forbearances 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
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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 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. The Trustee shall, within ninety days after
the occurrence of a default with respect to the Securities of any series, give
notice of all defaults with respect to that series known to the Trustee (i) if
any Unregistered Securities of that series are then Outstanding, to the Holders
thereof, by publication at least once in an Authorized Newspaper in the Borough
of Manhattan, The City of New York and at least once in an Authorized Newspaper
in London (and, if required by Section 3.7, at least once in an Authorized
Newspaper in Luxembourg) and (ii) to all Holders of Securities of such series in
the manner and to the extent provided in Section 4.4(c), 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. All 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
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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. With respect to the Holders of any series of
Securities issued hereunder, 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 willful 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 Responsible Officers of
the Trustee, unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts; and
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(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 Section5.9 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) 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;
(d) 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;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this
Indenture;
(f) 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
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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 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
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys 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.
SECTION 6.3 TRUSTEE NOT RESPONSIBLE FOR RECITALS, DISPOSITION
OF SECURITIES OR APPLICATION OR 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 of 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 (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
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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. Any such payments and reimbursements not
made in a timely fashion shall be made with interest at the Trustee's corporate
base rate. The Issuer also covenants to indemnify the Trustee and each
predecessor Trustee for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration of this Indenture or the
trusts hereunder and its duties hereunder, including the costs and expenses of
defending itself against or investigating any claim of liability in the
premises. 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 benefit of
the Holders of particular Securities or Coupons, and the Securities are hereby
subordinated to such senior claim.
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 INDENTURES NOT CREATING POTENTIAL CONFLICTING INTERESTS FOR
THE TRUSTEE.
This Section intentionally left blank
SECTION 6.9 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 $5,000,000, 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, 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 6.10.
The provisions of this Section 6.9 are in furtherance of and
subject to Section 310(a) of the Trust Indenture Act of 1939.
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SECTION 6.10 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
3.7, at least once in an Authorized Newspaper in Luxembourg), (ii) if any
Unregistered Securities of a series affected are then Outstanding, by mailing
notice of such resignation to the Holders thereof who have filed their names and
addresses with the Trustee pursuant to Section 4.4(c)(ii) at such addresses as
were so furnished to the Trustee and (iii) by mailing notice of such resignation
to the Holders of then Outstanding Registered Securities of each series affected
at their addresses as they shall appear on the 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 Security holder 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 6.9 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,
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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 316(3) of the Trustee Indenture Act of 1939, any
Securityholder who has been a bona fide Holder of a Security or
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 item
remove the Trustee with respect to 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 6.10 shall become effective upon acceptance of appointment by
the successor trustee as provided in Section 6.11.
SECTION 6.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE.
Any successor trustee appointed as provided in Section 6.10 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,
pay over 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 Issue 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 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
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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 6.11 unless at the time of
such acceptance such successor trustee shall be qualified under Section 3109b)
of the Trustee Indenture Act of 1939 and eligible under the provisions of
Section 6.9.
Upon acceptance of appointment by any successor trustee as
provided in this Section 5.11, 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 3.7, at least
once in an Authorized Newspaper in London (and, if required by Section 3.7, at
least once in an Authorized Newspaper in Luxembourg), (b) if any Unregistered
Securities of a series affected are then Outstanding, to the Holders thereof who
have filed their names and addresses with the Trustee pursuant to Section
4.4(c)(ii) by mailing such notice to such Holders at such addressees as were so
furnished to the Trustee (and the trustee shall make such information available
to the Issuer for such purpose) and (c) to the Holders of Registered Securities
of each series affected, by mailing such notice to such Holders at their
addresses as they shall appear on the 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 6.10. If the Issuer fails to give such a 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 Issuers.
SECTION 6.12 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 trustee 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 Trustee Indenture Act
of 1939 and eligible under the provisions of Section 6.9, 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
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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.
SECTION 6.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE
ISSUER.
This Section intentionally left blank.
SECTION 6.14 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
6.9 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 6.14 with respect to
one or more series of Securities, the Trustee shall upon receipt of an Issuer
Order 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.
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Sections 6.2, 6.3, 6.4, 6.6, 6.9 and 7.3 shall be applicable
to any Authenticating Agent.
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
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execution of any such instrument and the amount and numbers of
Securities of any series held by the person so executing such
instrument and the amount and numbers of any Security or securities for
such series may also be proven in accordance with such reasonable rules
and regulations as may be prescribed by the Trustee for such series or
in any other manner which the Trustee for such series may deem
sufficient.
(b) In the case of Registered Securities, the ownership of
such Securities shall be proved by the security register or by a
certificate of the Security registrar.
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 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
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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 6.1 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:
(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;
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(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 I 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
action 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 6.11.
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 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
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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 of Securities of
any series, the consent of the Holders of which is required for any such
supplemental indenture, without the consent of the Holders of each Security so
affected.
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
resolution of the 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)
certified by the secretary or an assistant secretary of the Issuer 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, (ii) if any unregistered Securities of a series
affected thereby are then outstanding, to the Holders thereof who have filed
their names and addresses with the Trustee
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pursuant to Section 4.4(c)(ii), by mailing a notice thereof by first-class mail
to such Holders at such addresses as were so furnished to the Trustee and (iii)
if any Unregistered Securities of a series affected thereby are then
Outstanding, to all Holders thereof, by publication of a notice thereof at least
once in an Authorized Newspaper in the Borough of Manhattan, The City of New
York and at least once in an Authorized Newspaper in London (and, if required by
Section 3.7, 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 8 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.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
-----------------------------------------
SECTION 9.1 COVENANT NOT TO MERGE, CONSOLIDATE, SELL OR CONVEY
PROPERTY EXCEPT UNDER CERTAIN CONDITIONS. The Issuer covenants that it will not
merge or consolidate with any other Person or sell, lease or convey all or
substantially all of its assets to any other Person, unless (i) either the
Issuer shall be the continuing corporation, or the successor corporation or the
Person which acquires by sale, lease or conveyance substantially all the assets
of the Issuer (if other than the Issuer) shall be a corporation organized under
the laws of the United States of America or any State thereof or the District of
Columbia and shall expressly assume the due and punctual payment of the
principal of and interest on all the Securities and coupons, if any, according
to their tenor, and the due and punctual performance and observance of all of
the
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covenants and conditions of this Indenture to be performed or observed by the
Issuer, by supplemental indenture satisfactory to the Trustee, executed and
delivered to the Trustee by such corporation, and (ii) the Issuer, such Person
or such successor corporation, as the case may be, shall not, immediately after
such merger or consolidation, or such sale, lease or conveyance, be in default
in the performance of any such covenant or condition.
SECTION 9.2 SUCCESSOR CORPORATION SUBSTITUTED. In case of any
such consolidation, merger, sale, lease or conveyance, and following such an
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Issuer, with the same effect as if it had
been named herein. Such successor corporation may cause to be signed, and may
issue either in its own name or in the name of the Issuer prior to such
succession any or all of the Securities issuable hereunder which together with
any Coupons appertaining thereto theretofore shall not have been signed by the
Issuer and delivered to the Trustee; and, upon the order of such successor
corporation, instead of the Issuer, and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities together with any Coupons appertaining thereto
which previously shall have been signed and delivered by the officers of the
Issuer to the Trustee for authentication, and any Securities which such
successor corporation thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All of the Securities so issued together with any
Coupons appertaining thereto shall in all respects have the same legal rank and
benefit under this Indenture as the Securities theretofore or thereafter issued
in accordance with the terms of this Indenture as though all of such Securities
had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or
conveyance such changes in phrasing and form (but not in substance) may be made
in the Securities and Coupons thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a
conveyance by way of lease) the Issuer or any successor corporation which shall
theretofore have become such in the manner described in this Article shall be
discharged from all obligations and covenants under this Indenture and the
Securities and may be liquidated and dissolved.
SECTION 9.3 OPINION OF COUNSEL DELIVERED TO TRUSTEE. The
Trustee, subject to the provisions of Sections 6.1 and 6.2, may receive an
opinion of counsel as conclusive evidence that any such consolidation, merger,
sale, lease or conveyance, and any such assumption, and any such liquidation or
dissolution, complies with the applicable provisions of this Indenture.
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
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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, obligations issued or guaranteed
as to principal and interest by the United States or by a Person controlled or
supervised by and acting as an instrumentality of the government of the United
States pursuant to authority granted by the Congress of the United States ("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 (except as to (i) rights of registration of transfer and exchange
of Securities of such Series and of Coupons appertaining thereto and the Issuers
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 and at the cost and expense of the Issuer, shall execute proper
instruments acknowledging such satisfaction of and discharging this Indenture;
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.
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(B) The following provision's 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 a series and the Coupons appertaining
thereto on the 91st day after the date of the deposit referred to in
subparagraph (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
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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
Sections 3.6 and 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 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
Section, whether directly or indirectly by reason of any reference elsewhere
herein to such Section or by reason of any reference in such Section 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 as defined in Section 6.8 and 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.
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(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 (or other trustee) pursuant to Section 10.1 shall be held in trust and
applied by it to the payment, either directly or through any paying agent
(including the Issuer acting as its own paying agent), 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 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
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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 3.7, once in an
Authorized Newspaper in Luxembourg), notice, that such moneys remain and that,
after a date specified therein, which shall not be less than thirty days from
the date of such 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.
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
------------------------
SECTION 11.1 INCORPORATORS, SHAREHOLDERS, 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 shareholder,
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 in 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 THE LUBRIZOL
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CORPORATION, 29400 Lakeland Boulevard, Wickliffe, Ohio 44092, Attention: Chief
Financial Officer. 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 One First National Plaza, Suite 0126, Chicago, Illinois 60670-0216,
Attention: Corporate Trust Services Division.
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 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
making 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
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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 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.
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<PAGE> 65
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 ECU, 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 upon 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
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<PAGE> 66
Currency expressed to be payable in respect of such payments, (ii) shall be
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 at the option of the Issuer 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 the Holders of
Unregistered Securities to be redeemed as a whole or in part, who have filed
their names and addresses with the Trustee pursuant to Section 4.4(c)(ii), shall
be given by mailing notice of such redemption, by first class mail, postage
prepaid, at least 30 days and not more than 60 prior to the date fixed for
redemption, to such Holders at such addresses as were so furnished to the
Trustee (and, in the case of any such notice given by the Issuer, the Trustee
shall make such information available to the Issuer for such purpose). Notice of
redemption to all other 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 3.7, 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,
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<PAGE> 67
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 at the option of the Issuer 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. 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 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
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<PAGE> 68
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
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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.
On or before the 60th 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 60th 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. Securities shall be excluded from eligibility
for redemption under this Section if they are identified by registration and
certificate number in an Officers Certificate delivered to the Trustee at least
60 days prior to the sinking fund payment date as being owned of
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record and beneficially by, and not pledged or hypothecated by either (a) the
Issuer or (b) an entity specifically identified in such Officer's Certificate as
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Issuer. The Trustee, in the name and at the expense of
the Issuer (or the Issuer, if it shall so request the Trustee in writing) shall
cause notice of redemption of the Securities of such series to be given in
substantially the manner provided in Section 12.2 (and with the effect provided
in Section 12.3) for the redemption of Securities of such series in part at the
option of the Issuer. 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 sixtieth 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.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed all as of _________________, 1998.
THE LUBRIZOL CORPORATION
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK
OF CHICAGO, TRUSTEE
By
------------------------------------
Name:
Title:
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STATE OF OHIO )
) ss:
COUNTY OF LAKE )
Before me, a notary public, in and for said county, personally
appeared ________________ and _______________ known to me to be the persons who,
as _________________and __________________, respectively, of The Lubrizol
Corporation, the corporation which executed the foregoing instrument, signed the
same, and acknowledged to me that they did so sign said instrument in the name
and on behalf of said corporation, as such officers, respectively; that the same
is their free act and deed as such officers, respectively, and the free and
corporate act and deed of said corporation; and that they were duly authorized
thereunto by its board of directors.
In testimony whereof, I have hereunto subscribed my name, and
affixed my official seal, at __________________Ohio, this _________ day of
___________, 1998.
-----------------------------------------
Notary Public
[Notarial Seal]
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STATE OF ILLINOIS )
) ss.:
COUNTY OF COOK )
On this ____________ of __________________, 1998 before me
personally came _______________________, to me personally known, who, being by
me duly sworn, did depose and say that she/he resides at ___________________;
that she/he is a ____________________of The First National Bank of Chicago, one
of the corporations described in and which executed the above instrument; and
that she/he signed her/his name thereto by authority of the Board of Directors
of said corporation.
-----------------------------------------
Notary Public
[Notarial Seal]
<PAGE> 1
Exhibit 4(b)
REGISTERED REGISTERED
No. R-1 U.S. $200,000,000
CUSIP ___________
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to the Issuer (as defined below) 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 is requested by an authorized representative of
DTC (and any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest herein.
Unless and until it is exchanged in whole or in part for
Securities in definitive registered form, this certificate may not be
transferred except as a whole by DTC to a nominee of DTC or by a nominee of DTC
to DTC or another nominee of DTC or by DTC or any such nominee to a successor
Depositary or a nominee of such successor Depositary.
THE LUBRIZOL CORPORATION
The Lubrizol Corporation, an Ohio corporation (together with its
successors and assigns, the "Issuer"), for value received, hereby promises to
pay to Cede & Co., or registered assigns, the principal sum of Two Hundred
Million United States Dollars (U.S. $200,000,000), on ______________, (the
"Maturity Date") and to pay interest thereon at the rate of _______% per annum
from _____________ until the principal hereof is paid or duly made available for
payment, semiannually in arrears on the ______ day of ___________ and
___________in each year (each such date an "Interest Payment Date") commencing
on ______________, 199__, and on the Maturity Date.
-----------------------------------------------------------
Reference is hereby made to the further provisions of this
certificate set forth on the succeeding pages hereof, which
further provisions shall for all purposes have the same effect as
if set forth at this place.
-----------------------------------------------------------
IN WITNESS WHEREOF, The Lubrizol Corporation has caused this
Registered Global Security to be duly executed under its corporate seal.
Dated: ___________, 1998 THE LUBRIZOL CORPORATION
[SEAL] By
---------------------------------
Title:
-----------------------------
By
---------------------------------
Title:
-----------------------------
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to
in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO, as Trustee
By
------------------------------------------
Authorized Officer
<PAGE> 2
This Registered Global Security is one of the duly authorized
debt securities of the Issuer (the "Securities" and, individually, a "Security")
issued or to be issued under and pursuant to an Indenture dated as of _________,
1998, (the "Indenture"), between the Issuer and The First National Bank of
Chicago, 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
Securities and the terms upon which the Securities are, and are to be,
authenticated and delivered. The terms of the Indenture are hereby incorporated
by reference herein. The Securities may be issued in one or more series, which
different series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest (if any) at different rates, may be
subject to different redemption or repayment provisions (if any), may be subject
to different sinking, purchase or analogous funds (if any) and may otherwise
vary as provided in the Indenture. This security is a Registered Global Security
of a series of Securities designated as the _______% Debentures due ______ of
the Issuer (the "Debentures"), limited in aggregate principal amount to U.S.
$200,000,000.
Interest on this Registered Global Security (as described below)
will accrue from ________, 199__, until the principal hereof has been paid or
duly made available for payment. The interest so payable on any Interest Payment
Date will be paid to the person in whose name this Registered Global Security
(or one or more predecessor Registered Global Securities) is registered at the
close of business on any record date applicable with respect to any Interest
Payment Date, whether or not a Business Day.
Payment of the principal of this Registered Global Security and
the interest due on the Maturity Date will be made upon surrender of this
Registered Global Security at the office or agency of the Issuer 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
interest on this Registered Global Security will be made in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
The Trustee will maintain at its office in the Borough of
Manhattan, The City of New York, a register for the registration and transfer of
Debentures. Subject to the limitations, terms and conditions set forth herein
and in the Indenture, this Registered Global Security may be transferred at the
aforesaid office of the Trustee by surrendering this Registered Global Security
for cancellation and thereupon the Issuer shall execute and the Trustee shall
authenticate and deliver in the name of the transferee or transferees, in
exchange herefor, a new Registered Global Security or Registered Global
Securities having identical terms and provisions and having a like aggregate
principal amount in authorized denomination. Upon the occurrence of certain
events specified in Section 2.8 of the Indenture, this Registered Global
Security is exchangeable at the office of the Trustee for definitive registered
Debentures without coupons of authorized denominations in an equal aggregate
principal amount and having identical terms and provisions as the surrendered
Registered Global Security.
All Registered Global Securities presented for registration of
transfer or exchange shall be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Issuer and the
Trustee and executed by, the registered Holder or by the Holder's 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 such exchange or registration of transfer.
In case an Event of Default with respect to the Debentures shall
have occurred and be continuing, the principal hereof may be declared, and upon
such declaration shall become, due and payable, in the manner, with the effect
and subject to the conditions provided in the Indenture. The Indenture provides
that, prior to any such declaration of acceleration, the Holders of a majority
in aggregate principal amount outstanding of all series of Securities as to
which an Event of Default has occurred and is continuing (voting as a single
class) may on behalf of the
-2-
<PAGE> 3
Holders of all such Securities waive any past default or Event of Default and
its consequences, except for a default in the payment of the principal of or
interest on any of the Securities.
The Indenture contains provisions permitting the Issuer and the
Trustee, with the consent of the Holders of a majority in aggregate principal
amount of the Securities of all series issued under such Indenture then
outstanding and affected, voting as one class, to add any provisions to, or
change in any manner or eliminate any of the provisions of, such Indenture or
modify in any manner the rights of the Holders of the Securities of each series
so affected; PROVIDED that the Issuer and the Trustee may not, without the
consent of the Holder of each outstanding Security affected thereby, (i) extend
the stated maturity of the principal 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 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 impair the right to institute suit for the enforcement of any
payment on any Security when due or (ii) reduce the aforesaid percentage in
principal amount of Securities of any series issued under such Indenture, the
consent of the Holders of which is required for any such modification.
No provision of this Registered Global Security 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 Registered Global Security 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 Registered Global Security.
The Issuer, the Trustee and any authorized agent of the Issuer or
the Trustee may deem and treat the registered Holder hereof as the absolute
owner of this Registered Global Security (whether or not this Registered Global
Security shall be overdue and notwithstanding any notation of ownership or other
writing hereon) for the purpose of receiving payment of, or on account of, the
principal hereof and, subject to the provisions on the face hereof, interest
hereon, and for all other purposes, and none of the Issuer, the Trustee or any
agent of the Issuer or the Trustee shall be affected by any notice to the
contrary.
No recourse under or upon any obligation, covenant or agreement
of the Issuer in the Indenture or in any Security, or because of the creation of
any indebtedness represented thereby, shall be had against any incorporator,
shareholder, 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 hereof and as part of the
consideration for the issue hereof.
This Registered Global Security 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 Registered Global Security, which are
defined in the Indenture and not otherwise defined herein, shall have the
meanings assigned to them in the Indenture.
Unless the certificate of authentication hereon has been executed
by the Trustee by manual signature, this Registered Global Security shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
-3-
<PAGE> 4
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers 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 Registered Global Security, and all rights thereunder, hereby
irrevocably constituting and appointing
- ------------------------------------------------------------------------------
attorney to transfer such security on the books of the Issuer, with full power
of substitution in the premises.
Dated: Signature:
--------------- -----------------------------------
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Registered Global Security in every
particular without alteration or enlargement or any change whatsoever.
-4-
<PAGE> 1
Exhibit 5
SQUIRE, SANDERS & DEMPSEY L.L.P.
4900 KEY TOWER
127 PUBLIC SQUARE
CLEVELAND, OHIO 44114-1304
July 29, 1998
The Lubrizol Corporation
29400 Lakeland Boulevard
Wickliffe, Ohio 44092
Ladies and Gentlemen:
Reference is made to the Registration Statement on Form S-3 (the
"Registration Statement") to be filed by The Lubrizol Corporation (the
"Company") with respect to $200,000,000 in aggregate principal amount of debt
securities (the "Debt Securities") to be issuable under an indenture between the
Company and The First National Bank of Chicago, as Trustee (the "Indenture"). We
have examined the forms of the Indenture and the Debt Securities being filed as
exhibits to the Registration Statement and such other documents and matters of
law as we have deemed necessary for purposes of this opinion.
Based upon the foregoing, we are of the opinion that the Debt
Securities, when executed by the Company and authenticated by the Trustee in
accordance with the provisions of the Indenture, and when issued and sold by the
Company as contemplated in the Registration Statement, will constitute valid and
binding obligations of the Company and will be entitled to the benefits of the
Indenture, subject to applicable bankruptcy, insolvency, moratorium,
reorganization, fraudulent transfer or similar laws affecting the enforcement of
creditors' rights generally and subject to general principles of equity (whether
considered in a proceeding at law or in equity).
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption "Legal
Matters" in the prospectus contained therein.
Respectfully submitted,
/s/ Squire, Sanders & Dempsey L.L.P.
<PAGE> 1
EXHIBIT 12
THE LUBRIZOL CORPORATION AND SUBSIDIARIES
Computation of Ratio of Earnings to Fixed Charges
(all amounts except ratios are shown in thousands)
<TABLE>
<CAPTION>
Three Months
Ended
March 31
1998 1997 1996 1995 1994 1993
--------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
Pretax income $ 45,294 $ 231,147 $ 250,608 $ 225,574 $ 251,459 $ 119,651
Deduct earnings of less
than 50% owned affiliates
(net of distributed
earnings) included in
pretax income (818) (3,018) (48) (1,384) (871) (2,355)
Add losses of less than 50%
owned affiliates included
in pretax income 144 66 56 1,808 490 21,063
Add fixed charges net of
capitalized interest 3,073 10,803 10,955 10,376 3,149 4,154
Add previously capitalized
interest amortized during
period 288 1,118 968 1,096 452 272
--------- --------- --------- --------- --------- ---------
"Earnings" $ 47,981 $ 240,116 $ 262,539 $ 237,470 $ 254,679 $ 142,785
========= ========= ========= ========= ========= =========
Gross interest expense
including capitalized
interest ("Fixed Charges") $ 3,968 $ 13,194 $ 14,010 $ 14,693 $ 6,922 $ 6,292
Ratio of earnings to
fixed charges 12.1 18.2 18.7 16.2 36.8 22.7
Special adjustments:
- --------------------
"Earnings" 47,981 $ 240,116 $ 262,539 $ 237,470 $ 254,679 $ 142,785
Plus asset impairment
and special charges 9,489 86,303
Less gains on investments (53,280) (38,459) (41,235) (42,443)
--------- --------- --------- --------- --------- ---------
Adjusted "Earnings" $ 47,981 $ 240,116 $ 209,259 $ 208,500 $ 213,444 $ 186,645
========= ========= ========= ========= ========= =========
Ratio of adjusted earnings
to fixed charges 12.1 18.2 14.9 14.2 30.8 29.7
</TABLE>
<PAGE> 1
Exhibit 23(a)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
The Lubrizol Corporation on Form S-3 of our report dated February 5, 1998,
incorporated by reference in the Annual Report on Form 10-K of The Lubrizol
Corporation for the year ended December 31, 1997 and to the reference to us
under the heading "Experts" in the Prospectus, which is part of this
Registration Statement.
DELOITTE & TOUCHE LLP
Cleveland, Ohio
July 29, 1998
<PAGE> 1
Exhibit 24
THE LUBRIZOL CORPORATION
Power of Attorney of Directors and Officers
in connection with
Registration Statement for Debt Securities
------------------------------------------
The undersigned, a director and/or an officer of The Lubrizol
Corporation, an Ohio corporation (the "Company"), which anticipates filing with
the Securities and Exchange Commission (the "Commission") under the provisions
of the Securities Act of 1933, as amended, a Registration Statement on Form S-3
(together with any and all amendments, including post-effective amendments, the
"Registration Statement") for the purpose of registering debt securities of the
Company, does hereby constitute and appoint W. G. Bares, C. P. Cooley and K. H.
Hopping, and each of them, with full power of substitution and resubstitution,
as his/her attorney-in-fact to execute and file on behalf of the undersigned, in
his/her capacity as a director and/or an officer of the Company, the
Registration Statement and any and all applications or other documents to be
filed with the Commission pertaining to the Registration Statement or
registration contemplated thereby, with full power and authority to do and
perform any and all acts and things whatsoever necessary or desirable to be done
in the premises, as fully as to all intents and purposes as he/she could do in
person, hereby ratifying and approving the acts of said attorneys-in-fact and
any of them and any such substitution.
Executed at Wickliffe, Ohio, this 27th day of July, 1998.
/s/ W. G. Bares /s/ C. P. Cooley
- --------------------------------- ----------------------------------
W. G. Bares C. P. Cooley
/s/ G. P. Lieb /s/ Edward F. Bell
- --------------------------------- ----------------------------------
G. P. Lieb Edward F. Bell
/s/ L.E. Coleman /s/ Peggy G. Elliott
- --------------------------------- ----------------------------------
L. E. Coleman Peggy G. Elliott
/s/ Forest J. Farmer, Sr. /s/ Gordon D. Harnett
- --------------------------------- ----------------------------------
Forest J. Farmer, Sr. Gordon D. Harnett
- --------------------------------- ----------------------------------
Victoria F. Haynes David H. Hoag
/s/ William P. Madar /s/ Ronald A. Mitsch
- --------------------------------- ----------------------------------
William P. Madar Ronald A. Mitsch
/s/ M. Thomas Moore
- ---------------------------------
M. Thomas Moore
<PAGE> 2
THE LUBRIZOL CORPORATION
Power of Attorney of Directors and Officers
in connection with
Registration Statement for Debt Securities
------------------------------------------
The undersigned, a director and/or an officer of The Lubrizol
Corporation, an Ohio corporation (the "Company"), which anticipates filing with
the Securities and Exchange Commission (the "Commission") under the provisions
of the Securities Act of 1933, as amended, a Registration Statement on Form S-3
(together with any and all amendments, including post-effective amendments, the
"Registration Statement") for the purpose of registering debt securities of the
Company, does hereby constitute and appoint W. G. Bares, C. P. Cooley and K. H.
Hopping, and each of them, with full power of substitution and resubstitution,
as his/her attorney-in-fact to execute and file on behalf of the undersigned, in
his/her capacity as a director and/or an officer of the Company, the
Registration Statement and any and all applications or other documents to be
filed with the Commission pertaining to the Registration Statement or
registration contemplated thereby, with full power and authority to do and
perform any and all acts and things whatsoever necessary or desirable to be done
in the premises, as fully as to all intents and purposes as he/she could do in
person, hereby ratifying and approving the acts of said attorneys-in-fact and
any of them and any such substitution.
Executed at Brecksville, Ohio, this 27th day of July, 1998.
- -------------------------------- ------------------------------------
W. G. Bares C. P. Cooley
- -------------------------------- ------------------------------------
G. P. Lieb Edward F. Bell
- -------------------------------- ------------------------------------
L. E. Coleman Peggy G. Elliott
- -------------------------------- ------------------------------------
Forest J. Farmer, Sr. Gordon D. Harnett
/s/ Victoria F. Haynes
- -------------------------------- ------------------------------------
Victoria F. Haynes David H. Hoag
- -------------------------------- ------------------------------------
William P. Madar Ronald A. Mitsch
- --------------------------------
M. Thomas Moore
<PAGE> 3
THE LUBRIZOL CORPORATION
Power of Attorney of Directors and Officers
in connection with
Registration Statement for Debt Securities
------------------------------------------
The undersigned, a director and/or an officer of The Lubrizol
Corporation, an Ohio corporation (the "Company"), which anticipates filing with
the Securities and Exchange Commission (the "Commission") under the provisions
of the Securities Act of 1933, as amended, a Registration Statement on Form S-3
(together with any and all amendments, including post-effective amendments, the
"Registration Statement") for the purpose of registering debt securities of the
Company, does hereby constitute and appoint W. G. Bares, C. P. Cooley and K. H.
Hopping, and each of them, with full power of substitution and resubstitution,
as his/her attorney-in-fact to execute and file on behalf of the undersigned, in
his/her capacity as a director and/or an officer of the Company, the
Registration Statement and any and all applications or other documents to be
filed with the Commission pertaining to the Registration Statement or
registration contemplated thereby, with full power and authority to do and
perform any and all acts and things whatsoever necessary or desirable to be done
in the premises, as fully as to all intents and purposes as he/she could do in
person, hereby ratifying and approving the acts of said attorneys-in-fact and
any of them and any such substitution.
Executed at Cleveland, Ohio, this 27th day of July, 1998.
- ------------------------------------ -------------------------------------
W. G. Bares C. P. Cooley
- ------------------------------------ -------------------------------------
G. P. Lieb Edward F. Bell
- ------------------------------------ -------------------------------------
L. E. Coleman Peggy G. Elliott
- ------------------------------------ -------------------------------------
Forest J. Farmer, Sr. Gordon D. Harnett
/s/ David H. Hoag
- ------------------------------------ -------------------------------------
Victoria F. Haynes David H. Hoag
- ------------------------------------ -------------------------------------
William P. Madar Ronald A. Mitsch
- ------------------------------------
M. Thomas Moore
<PAGE> 1
Exhibit 25
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
--------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
----------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
----------------------------
The Lubrizol Corporation
(Exact name of obligors as specified in their trust agreements)
Ohio 34-0367600
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
29400 Lakeland Boulevard
Wickliffe, Ohio 44092-2298
(Address of principal executive offices) (Zip Code)
Debt Securities
(Title of Indenture Securities)
<PAGE> 2
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.;
Federal Deposit Insurance Corporation,
Washington, D.C.; The Board of Governors of
the Federal Reserve System, Washington D.C..
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST
POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART
OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the trustee to
commence business.*
3. A copy of the authorization of the trustee to exercise
corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of
the Act.
2
<PAGE> 3
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the
trustee, The First National Bank of Chicago, a national banking association
organized and existing under the laws of the United States of America, has duly
caused this Statement of Eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Chicago and State of
Illinois, on the 21st day of July, 1998.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
BY /S/ STEVEN M. WAGNER
-----------------------------------
STEVEN M. WAGNER
FIRST VICE PRESIDENT
* EXHIBIT 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS BEARING
IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF THE FIRST NATIONAL BANK OF
CHICAGO, FILED AS EXHIBIT 25 TO THE REGISTRATION STATEMENT ON FORM S-3 OF U S
WEST CAPITAL FUNDING, INC., FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON
MAY 6, 1998 (REGISTRATION NO.
333-51907-01).
3
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
July 21, 1998
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between The Lubrizol
Corporation and The First National Bank of Chicago, as Trustee, the undersigned,
in accordance with Section 321(b) of the Trust Indenture Act of 1939, as
amended, hereby consents that the reports of examinations of the undersigned,
made by Federal or State authorities authorized to make such examinations, may
be furnished by such authorities to the Securities and Exchange Commission upon
its request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
BY /S/ STEVEN M. WAGNER
-------------------------------------
STEVEN M. WAGNER
FIRST VICE PRESIDENT
4
<PAGE> 5
EXHIBIT 7
<TABLE>
<CAPTION>
<S> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 03/31/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR MARCH 31, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
DOLLAR AMOUNTS IN THOUSANDS C400
---------
<S> <C> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCFD
----
a. Noninterest-bearing balances and currency and coin(1) ...... 0081 4,141,168 1.a
b. Interest-bearing balances(2) ............................... 0071 5,142,787 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) .. 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D) 1773 7,819,811 2.b
3. Federal funds sold and securities purchased under agreements to
resell ........................................................ 1350 5,619,157 3.
4. Loans and lease financing receivables: RCFD
a. Loans and leases, net of unearned income (from Schedule ----
RC-C) ......................................................... 2122 26,140,376 4.a
b. LESS: Allowance for loan and lease losses .................. 3123 417,371 4.b
c. LESS: Allocated transfer risk reserve ...................... 3128 0 RCFD 4.c
d. Loans and leases, net of unearned income, allowance, and ... ----
reserve (item 4.a minus 4.b and 4.c) ....................... 2125 25,723,005 4.d
5. Trading assets (from Schedule RD-D) ........................... 3545 5,795,159 5.
6. Premises and fixed assets (including capitalized leases) ...... 2145 757,033 6.
7. Other real estate owned (from Schedule RC-M) .................. 2150 6,547 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) ................................ 2130 135,327 8.
9. Customers' liability to this bank on acceptances outstanding .. 2155 512,763 9.
10. Intangible assets (from Schedule RC-M) ........................ 2143 261,456 10.
11. Other assets (from Schedule RC-F) ............................. 2160 2,223,495 11.
12. Total assets (sum of items 1 through 11) ...................... 2170 58,137,708 12.
</TABLE>
- -----------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
5
<PAGE> 6
<TABLE>
<CAPTION>
<S> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 03/31/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
SCHEDULE RC-CONTINUED
DOLLAR AMOUNTS IN
THOUSANDS
-----------------
<S> <C> <C> <C>
LIABILITIES
13. Deposits: RCON
a. In domestic offices (sum of totals of columns A and C ----
from Schedule RC-E, part 1) ............................... 2200 21,551,932 13.a
(1) Noninterest-bearing(1) ................................ 6631 9,361,049 13.a1
(2) Interest-bearing ...................................... 6636 12,190,883 13.a2
RCFN
b. In foreign offices, Edge and Agreement subsidiaries, and ----
IBFs (from Schedule RC-E, part II) ........................ 2200 14,511,110 13.b
(1) Noninterest bearing ................................... 6631 604,859 13.b1
(2) Interest-bearing ...................................... 6636 13,906,251 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase: ............................................... RCFD 2800 3.887,022 14
15. a. Demand notes issued to the U.S. Treasury .................. RCON 2840 63,092 15.a
b. Trading Liabilities(from Sechedule RC-D) .................. RCFD 3548 5,918,194 15.b
RCFD
16. Other borrowed money: ----
a. With original maturity of one year or less ................ 2332 3,134,696 16.a
b. With original maturity of more than one year ............. A547 381,681 16.b
c. With original maturity of more than three years .......... A548 326,551 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding ...... 2920 512,763 18.
19. Subordinated notes and debentures ............................ 3200 2,000,000 19.
20. Other liabilities (from Schedule RC-G) ....................... 2930 1,163,747 20.
21. Total liabilities (sum of items 13 through 20) ............... 2948 53,450,788 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus ................ 3838 0 23.
24. Common stock ................................................. 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock) ..... 3839 3,107,585 25.
26. a. Undivided profits and capital reserves .................... 3632 1,359,598 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities ................................................ 8434 18,975 26.b
27. Cumulative foreign currency translation adjustments .......... 3284 (96) 27.
28. Total equity capital (sum of items 23 through 27) ............ 3210 4,686,920 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28) ........................ 3300 58,137,708 29.
Memorandum
To be reported only with the March Report of Condition. --------------
1. Indicate in the box at the right the number of the statement below that best describes the most 2
comprehensive level of auditing work performed for the bank by independent external -------------- Number
auditors as of any date during 1996......................................................RFCD 6724...... M.1.
<S> <C>
1 = Independent audit of the bank conducted in accordance 4.= Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
</TABLE>
- ----------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
6
