Registration Statement No.
_______________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
__________________
Millipore Corporation
(Exact name of Registrant as specified in its charter)
MASSACHUSETTS 04-2170233
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
80 Ashby Road
Bedford, Massachusetts 01730
(617) 275-9200
(Address including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
Geoffrey Nunes, Esq.
Senior Vice President
Millipore Corporation
80 Ashby Road
Bedford, Massachusetts 01730
(617) 533-2209
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
__________________
Approximate date of commencement of proposed sale to the public:
From time to time after the Registration Statement becomes effective as
determined by market conditions and other factors.
__________________
If the only securities being registered on this Form are offered
pursuant to dividend or interest investment 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.
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering.
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering.
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box.
__________________
CALCULATION OF REGISTRATION FEE
Title of Each Amount to be Proposed Proposed Amount of
Class of Registered (A) Maximum Maximum Registration
Securities to Offering Aggregate Fee
be Registered Price Per Offering Price
Security (B) (A) (B)
Debt $300,000,000 100% $300,000,000 $90,909
Securities
(A) The initial public offering price of any Debt Securities denominated in
any foreign currencies or currency units shall be the U.S. dollar equivalent
thereof based on the prevailing
exchange rates at the respective times such Debt Securities are
first offered. For Debt Securities issued with an original issue discount,
the amount to be registered is calculated
as the initial accreted value of such Debt Securities.
__________________
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until this Registration
Statement shall become effective on such date as the Securities and Exchange
Commission, acting pursuant to said Section 8(a), may determine.
_____________________________________________________________________
$300,000,000
Millipore Corporation
Debt Securities
Millipore Corporation (the "Company") may offer from time to time its
unsecured debt securities consisting of notes, debentures or other evidences
of indebtedness (the "Debt Securities") at an aggregate initial offering
price of not more than $300,000,000. The Debt Securities may be offered as
separate series in amounts, at prices and on terms to be determined in light
of market conditions at the time of sale and set forth in a Prospectus
Supplement or Prospectus Supplements.
The terms of each series of Debt Securities, including, where
applicable, the specific designation, aggregate principal amount, authorized
denominations, maturity, rate or rates (or method of calculation) and time or
times of payment of any interest, any terms for optional or mandatory
redemption or early payment or payment of additional amounts or any sinking
fund provisions, any initial public offering price, the proceeds to the
Company and any other specific terms in connection with the offering and sale
of such series and any listing on a securities exchange will be set forth in
a Prospectus Supplement or Prospectus Supplements. Debt Securities may be
issued with amounts payable in respect of principal of or any premium or
interest on the Debt Securities determined by reference to the value, rate or
price of one or more specified indices.
__________________
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 Debt Securities may be sold directly by the Company, through agents
designated from time to time or to or through underwriters or dealers. See
"Plan of Distribution". If any agents of the Company or any underwriters are
involved in the sale of any Debt Securities in respect of which this
Prospectus is being delivered, the names of such agents or underwriters and
any applicable commissions or discounts will be set forth in a Prospectus
Supplement.
This Prospectus may not be used to consummate sales of securities unless
accompanied by a Prospectus Supplement.
The date of this Prospectus is March __, 1997
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information
with the Securities and Exchange Commission (the "Commission"). Such
reports, proxy statements and other information may 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
following Regional Offices of the Commission: Northeast Regional Office, 7
World Trade Center, Suite 1300, New York, New York 10048; and Midwest
Regional Office, Citicorp Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661. Copies of such material can also be obtained by
mail from the Public Reference Section of the Commission, 450 Fifth Street,
N.W., Washington, D.C. 20549, at prescribed rates. The Common Stock of the
Company is listed on the New York Stock Exchange and such reports, proxy
statements, and other information can also be inspected at the offices of the
New York Stock Exchange, 20 Broad Street, New York, New York 10005. The
Registration Statement has been, and amendments thereto will be, filed with
the Commission through the Electronic Data Gathering, Analysis and Retrieval
("EDGAR") system. Registration statements, reports, proxy statements and
other information filed through the EDGAR system with respect to the Company
are publicly available through the Commission's Web site
(http://www.sec.gov).
The Company has filed with the Commission a Registration Statement on
Form S-3 (together with all amendments and exhibits thereto, called the
"Registration Statement") under the Securities Act of 1933 (the "Act") with
respect to the Debt Securities offered by this Prospectus. This Prospectus
does not contain all of the information set forth or incorporated by
reference in the Registration Statement and the exhibits and schedules
relating thereto, certain portions of which have been omitted as permitted by
the rules and regulations of the Commission. For further information with
respect to the Company and the Debt Securities offered by this Prospectus,
reference is made to the Registration Statement and the exhibits filed or
incorporated as a part thereof, which are on file at the offices of the
Commission and may be obtained upon payment of the fee prescribed by the
Commission or may be examined without charge at the offices of the
Commission. Statements contained in this Prospectus as to the contents of
any documents referred to are not necessarily complete, and, in each such
instance, are qualified in all respects by reference to the applicable
documents filed with the Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission are
hereby incorporated by reference into this Prospectus:
(a) the Company's Annual Report on Form 10-K for the year ended
December 31, 1996, dated March 7, 1997;
(b) the Company's Current Report on Form 8-K, filed January 14, 1997;
(c) the Company's Current Report on Form 8-K filed February 7, 1997.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination of the
offering of Debt Securities hereunder shall be deemed to be incorporated by
reference in this Prospectus and to be a part of this Prospectus from the
date of filing thereof. Any statement contained in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a
part of this Prospectus.
The Company hereby undertakes to provide without charge to each person
to whom a copy of this Prospectus has been delivered, at the written or oral
request of any such person, a copy of any or all of the documents referred to
above which have been or may be incorporated by reference into this
Prospectus (other than certain exhibits). Requests for such copies should be
directed to: Millipore Corporation, 80 Ashby Road, Bedford, Massachusetts
01730, Attention: Jeffrey Rudin, Esq., telephone (617)-533-2044.
THE COMPANY
The Company develops, manufactures and sells products which are used
primarily for the analysis and purification of fluids, as well as for their
control, measurement and distribution.
The Company's products are based on a variety of membrane and other
technologies that effect separations, and fluid process management,
principally through physical and chemical methods as well as a specialty
instrumentation. The Company is an integrated multinational manufacturer of
these products; during 1996 approximately 65% of the Company's sales were
made to customers outside the United States.
The Company's principal executive offices are located at 80 Ashby Road,
Bedford, Massachusetts 01730. The Company's telephone number is (617)-275-
9200. References herein to the Company shall mean Millipore Corporation and
its subsidiaries, unless the context requires otherwise.
FACTORS THAT MAY AFFECT FUTURE RESULTS
Forward-Looking Statements
This Prospectus, including any documents incorporated herein by
reference and any Prospectus Supplements, contains certain forward-looking
statements that involve substantial risks and uncertainties as more fully
described below. In addition, from time to time, management of the Company
have made or may make forward-looking statements, orally or in writing. When
used in this Prospectus or in any such documents incorporated herein by
reference or in any such statements, the words "anticipate", believe",
"estimate", expect", "may", "will", "should" or the negative thereof and
similar expressions as they relate to the Company or its management are
intended to identify such forward-looking statements. The Company's actual
results, performance or achievements could differ materially from the results
expressed in, or implied by, these forward-looking statements. Potential
risks and uncertainties that could affect the Company's future operating
results include, without limitation, foreign exchange rates; increased
regulatory concerns on the part of the biopharmaceutical industry; further
consolidation of drug manufacturers; competitive factors such as new membrane
technology, and/or a new method of chip manufacture which relies less heavily
on purified chemicals and gases; availability of component products on a
timely basis; inventory risks due to shift in market demand; change in
product mix; the inability to utilize technology in current or planned
products due to overriding rights by third parties, and any other risk
factors identified in this Prospectus, including any documents incorporated
herein by reference and any Prospectus Supplements. In addition to the
foregoing, prospective investors should carefully consider the following risk
factors in addition to the other information set forth in this Prospectus
before making any decision to invest in the securities offered hereby.
Risks from Competition
The Company faces intense competition in all of its sales to customers.
The Company believes that its principal competitors currently include Pall
Corporation, Barnstead Thermolyne Corporation, Sartorius GmbH, and MKS
Instruments, Inc. Certain of the Company's competitors are larger and have
greater financial and other resources than the Company. The Company believes
that the principal competitive factors affecting its business include price,
technical expertise, product quality and responsiveness to customer needs,
including service and technical support.
Currency Risks from Overseas Operations
Approximately 65% of the Company's sales derive from sales to customers
outside of United States. Consequently, the Company's results of operations
could be negatively affected by a material strengthening of the dollar over a
short period of time. Exchange rate fluctuations are beyond the Company's
control, and there can be no assurance that the U.S. dollar will not
appreciate against the Japanese Yen or other currencies in which the Company
earns a significant portion of its revenues.
Risks from Environmental Claims
The Company's operations are subject to federal, state and local
environmental and health and safety laws and regulations that impose
workplace standards and limitations on the discharge of pollutants into the
environment and establish standards for the handling, generation, emission,
release, discharge, treatment, storage and disposal of certain materials,
substances and wastes. The Company is a potentially responsible party at
twelve hazardous waste sites. To date the Company has paid approximately $14
million to settle its liabilities at seven of these sites. The Company does
not believe that its estimated remaining share of liability for the cleanup
of these sites will have a material adverse effect on the Company's business
or financial position. However, future events, such as changes in existing
laws and regulations or enforcement policies or the discovery of
contamination on sites operated by the Company, may give rise to additional
compliance costs which could have a material adverse effect on the Company's
financial condition.
Risks from Integration of Operations
The Company has recently acquired two businesses that must be integrated
and combined efficiently. The integration process will present significant
challenges, particularly as one of the two acquired companies made an
acquisition of its own in the summer of 1996 which it had not integrated
prior to itself being acquired by Millipore in January of 1997. The process
of integrating acquired businesses may involve unforeseen difficulties, and
there can be no assurance that the potential benefits of such integration
will be realized to the extent or on the schedule expected by the Company.
Moreover, such integration may require a disproportionate amount of the time
and attention of the Company's management and the Company's financial and
other resources. Any delays or unexpected costs in connection with such
integration could have a material adverse effect on the Company's financial
condition and results of operations.
Risks of Cyclicality of Microelectronics Industry
A substantial portion of the Company's business depends upon the future
worldwide growth of the microelectronics industry, particularly the
semiconductor portion, which is beyond Millipore's control. The
microelectronics industry is highly cyclical and historically has experienced
periods of oversupply, resulting in significantly reduced demand for capital
equipment, including the products manufactured by the Company. As a result
of this cyclicality, Millipore has experienced, and in the future could
experience, reduced revenues. The Company's exposure to the microelectronics
industry will increase as a result of its acquisition in the first quarter of
1997 of a company whose customers are primarily manufacturers of
semiconductor wafer processing equipment.
RATIOS OF EARNINGS TO FIXED CHARGES
The Company's coverage ratios for the past five years are as set forth
in the following table:
Year Ended December 31
1992 1993 1994 1995 1996
Ratio of Earnings to Fixed Charges(a)..... 4.72 5.90 10.77 9.06 5.17
(a) The ratio of earnings to fixed charges has been computed by dividing
earnings available from continuing
operations before fixed charges and income taxes by the fixed charges.
Fixed charges consist of
interest and debt expense and the portion of rental expense that is
representative of the interest factor (deemed
by the Company to be one-third).
USE OF PROCEEDS
Unless otherwise indicated in the applicable Prospectus Supplement, the
Company intends to use the net proceeds from the sale of the Debt Securities
primarily for the repayment of outstanding debt and for general corporate
purposes.
The Company expects that it will, on recurring basis, engage in
additional financings in character and amount to be determined as the need
arises.
DESCRIPTION OF THE DEBT SECURITIES
The Debt Securities are to be issued under an Indenture (the
"Indenture") to be entered into between the Company and State Street Bank and
Trust Company, as Trustee (the "Trustee"), the form of which is filed as an
exhibit to the Registration Statement of which this Prospectus is a part.
The Debt Securities may be issued from time to time in one or more series.
The particular terms of each series, or of Debt Securities forming a part of
a series, which are offered by a Prospectus Supplement will be described in
such Prospectus Supplement. The following statements are subject to the
detailed provisions of the Indenture; whenever particular provisions of the
Indenture are referred to, such provisions are incorporated by reference as a
part of the statement made, and the statement is qualified in its entirety by
such reference. Whenever a defined term is referred to and not defined under
"Description of the Debt Securities", the definition thereof is contained in
the Indenture.
General
The Indenture provides for the issuance from time to time of Debt
Securities in an unlimited aggregate principal amount and an unlimited number
of series.
The Debt Securities are unsecured and will rank pari passu with all
other unsecured and nonsubordinated debt of the Company.
Reference is made to the applicable Prospectus Supplement for the
following terms of the series of Debt Securities offered thereby: (i) the
title of the Debt Securities of such series; (ii) any limit upon the
aggregate principal amount of such Debt Securities; (iii) the person to whom
the interest on a Debt Security of any series will be payable if not the
person in whose name that Debt Security is registered on the regular record
date; (iv) the date or dates on which such Debt Securities will mature; (v)
the rate or rates, or the method of determination thereof, at which such Debt
Securities will bear interest, if any, the date or dates from which such
interest will accrue, the date or dates such interest will be payable and the
Regular Record Dates; (vi) the place or places where the principal of,
premium, if any, and interest, if any, on, such Debt Securities will be
payable; (vii) the periods, prices and terms and conditions upon which any
such Debt Security may be redeemed, in whole or in part, at the option of the
Company; (viii) any terms for redemption or repurchase pursuant to any
sinking fund or analogous provision or at the option of a Holder; (ix) any
terms for conversion of the Debt Securities into other securities of the
Company or any other corporation at the option of a holder; (x) any terms for
the attachment to such Debt Securities of warrants, options or other rights
to purchase or sell stock or other securities of the Company; (xi) if other
than the principal amount thereof, the portion of the principal amount of
such Debt Securities that will be payable upon acceleration of maturity (Debt
Securities subject to such provisions being referred to as "Original Issue
Discount Securities"); (xii) any deletions or modifications of, or additions
to, the Events of Default or covenants of the Company under the Indenture
with respect to such Debt Securities (including whether the covenants
described below under "Certain Covenants of the Company" will not apply to
such Debt Securities); (xiii) whether such Debt Securities will be issued in
the form of one or more global securities (each a "Global Debt Security");
(xiv) if such Debt Securities are to be issued upon the exercise of warrants,
the time, manner and place for such Debt Securities to be authenticated and
delivered ; and (xv) any other terms of any of such Debt Securities not
inconsistent with the Indenture. (Sections 202 and 301)
Unless otherwise specified in the applicable Prospectus Supplement, (x)
the Debt Securities will be issued only in fully registered form without
coupons and (y) Debt Securities denominated in U.S. dollars will be issued in
denominations of $1,000 or an integral multiple thereof. Debt Securities may
bear legends required by United States Federal tax law and regulations.
(Section 401)
Certain Covenants of the Company
Certain Definitions Applicable to Covenants
The term "Subsidiary" of the Company will be defined in the Indenture as
a corporation at least a majority of whose outstanding Voting Stock shall at
the time be owned, directly or indirectly, by the Company and/or one or more
subsidiaries of the Company.
The term "Restricted Subsidiary" will be defined as a Subsidiary of the
Company which either owns a Principal Property or which had total assets that
exceeded 10% of the total assets of the Company and its Subsidiaries
consolidated as of the end of the most recently completed fiscal year..
The term "Principal Property" will be defined as any real estate or any
manufacturing or processing plant or warehouse owned or leased by the Company
or by any Restricted Subsidiary and the gross book value of which (without
deduction of any depreciation reserves) on the date as which the
determination is being made exceeds 2% of Consolidated Net Tangible Assets,
other than (a) properties which in the opinion of the Board of Directors are
not of material importance to the Company's business as an entirety or (b)
any portion of any particular property which is found by the Board of
Directors not to be of material importance to the use or operation of such
property.
The term "Attributable Debt" will be defined as the total net amount of
rent required to be paid during the remaining term of certain leases,
discounted at the rate per annum borne by the relevant Debt Securities.
The term "Consolidated Net Tangible Assets" will be defined as the total
assets (less applicable reserves and other properly deductible items) on the
balance sheet of the Company, less (a) all current liabilities and (b)
goodwill, trade names, trademarks, patents, organization expenses and other
like intangibles of the Company and its consolidated Subsidiaries. (Section
101)
Restrictions on Secured Debt
If the Company or any Restricted Subsidiary shall incur or guarantee any
indebtedness for money borrowed ("Debt") secured by a mortgage, pledge or
lien ("Mortgage") on any Principal Property of the Company or of any
Restricted Subsidiary, or on any shares of stock or Debt of any Restricted
Subsidiary, the Company will secure or cause such Restricted Subsidiary to
secure the Debt Securities equally and ratably with (or, at the Company's
option, prior to) such secured Debt, unless the aggregate amount of all such
secured Debt, together with all Attributable Debt of the Company and its
Restricted Subsidiaries with respect to sale and leaseback transactions
involving Principal Properties (with the exception of such transactions which
are excluded as described in "Restrictions on Sales and Leasebacks" below),
would not exceed 15% of Consolidated Net Tangible Assets. (Section 1104)
The above restrictions will not apply to, and there will be excluded
from secured Debt in any computation under such restrictions, Debt secured by
(a) Mortgages on property of, or on any shares of stock of or Debt of, any
corporation existing at the time such corporation becomes a Restricted
Subsidiary; provided, however, that such Mortgages in effect as of the date
of acquisition of a Restricted Subsidiary or a business acquired by a
Restricted Subsidiary shall not have been incurred in contemplation of such
acquisition, (b) Mortgages in favor of landlords and mechanics and
materialmen incurred in the ordinary course of business; (c) Mortgages in
favor of the Company or a Restricted Subsidiary; (d) Mortgages in favor of
governmental bodies to secure progress or advance payments; (e) Mortgages on
property, shares of stock or Debt existing at the time of acquisition thereof
(including acquisition through merger or consolidation) and purchase money
and construction Mortgages which are entered into prior to, at the time of or
within 180 days after the later of acquisition or completion of construction;
(f) Mortgages securing industrial revenue or pollution control bonds; (g)
Mortgages made in connection with, or to secure payment of, workmen's
compensation, unemployment insurance, old age pensions or other social
security obligations; (h) encumbrances consisting of easements, rights of
way, zoning restrictions, restrictions on the use of real property and
defects and irregularities in the title thereto; (i) Mortgages in respect of
certain judgements or awards in respect of which the Company or any of its
Restricted Subsidiaries has maintained adequate reserves and (j) any
extension, renewal or refunding of any Mortgage referred to in the foregoing
clauses (a) though (i) inclusive; provided that, any such extended, renewed
or replaced Mortgage shall be limited to the same property, stock or Debt
that secured the original Mortgage. (Section 1104)
Restrictions on Sales and Leasebacks
Neither the Company nor any Restricted Subsidiary may enter into any
sale and leaseback transaction involving any Principal Property, unless the
aggregate amount of all Attributable Debt with respect to such transactions
plus all Debt secured by Mortgages on Principal Properties (with the
exception of secured Debt which is excluded as described in "Restrictions on
Secured Debt" above) would not exceed 10% of Consolidated Net Tangible
Assets. (Section 1105)
The restrictions on sale and leaseback transactions will not apply to,
and there shall be excluded from Attributable Debt in any computation under
such restrictions, any sale and leaseback transaction if (a) the lease is for
a period, including renewal rights, of not in excess of three years, (b) the
sale or transfer of the Principal Property is made prior to, at the time of
or within 180 days after its acquisition or construction, (c) the lease
secures or relates to industrial revenue or pollution control bonds, (d) the
transaction is between the Company and a Restricted Subsidiary or between
Restricted Subsidiaries or (e) the Company or such Restricted Subsidiary,
within 180 days after the sale or transfer is completed, applies to the
retirement of Funded Debt (including the Debt Securities) of the Company
ranking on a parity with or senior to all the Debt Securities, or Funded Debt
of a Restricted Subsidiary, or to the purchase of other property which will
constitute a Principal Property of a value at least equal to the value of the
Principal Property leased back, an amount not less than the greater of (i)
the net proceeds of the sale of the Principal Property leased back or (ii)
the fair market value of the Principal Property leased back. The amount to
be applied to the retirement of Funded Debt shall be reduced by the principal
amount of any debentures or notes constituting Funded Debt (including the
Debt Securities) of the Company or a Restricted Subsidiary surrendered to the
applicable trustee for cancellation within such 180-day period or the
principal amount of Funded Debt voluntarily retired within such 180-day
period; provided, that, no retirement referred to in this sentence may be
effected by payment at maturity or pursuant to any mandatory prepayment
provision. (Section 1105)
Event Risk
Except for the limitations on Secured Indebtedness and Sale and
Leaseback Transactions described above, the Indenture and Debt Securities do
not contain any covenants or other provisions designed to afford holders of
the Debt Securities protection in the event of a highly leveraged transaction
involving the Company.
Limitation on Merger, Consolidation and Certain Sales of Assets
The Company will covenant that it will not merge into or consolidate
with any other corporation, or convey or transfer its properties and assets
substantially as an entirety to, any person unless (a) such successor shall
be a corporation organized and existing under the laws of the United States
of America or any state or the District of Columbia; (b) the successor
assumes on the same terms and conditions all obligations under the Debt
Securities and Indenture and (c) immediately after giving effect to the
transaction, there is no default, or an event which, after notice or lapse of
time, or both, would become a default, under the Indenture. (Section 901)
Upon any such merger, consolidation, conveyance or transfer, the successor
will succeed to, and will be substituted in lieu of, the Company. (Section
902)
Exchange, Registration and Transfer
Debt Securities of any series will be exchangeable for other Debt
Securities of the same series and of a like aggregate principal amount and
tenor of different authorized denominations. No service charge will be made
for any transfer or exchange of the Debt Securities, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge in connection therewith. (Section 404)
Debt Securities may be presented for exchange as provided above, and
Debt Securities (other than Book-Entry Debt Securities (as defined below
under "Global Securities")) may be presented for registration of transfer
(with the form of transfer endorsed thereon duly executed), at the office of
the Security Registrar or at the office of any additional transfer agent
designated by the Company for such purpose with respect to any series of Debt
Securities and referred to in the applicable Prospectus Supplement.
(Sections 404 and 1102) The Trustee will be the initial Security Registrar
under the Indenture. State Street Bank and Trust Company, N.A., an affiliate
of the Trustee, with offices currently located at 61 Broadway, Concourse
Level, New York, New York 10006, will initially be designated as the office
or agency of the Company in the Borough of Manhattan, The City of New York
where Debt Securities may be presented for registration of transfer or
exchange. (Section 404) The Company may at any time designate, or rescind
the designation of, the Security Registrar or any additional transfer agent
or approve a change in the location through which the Security Registrar or
any such transfer agent acts, except that the Company will be required to
maintain a transfer agent in each Place of Payment for each series of Debt
Securities. The Company may at any time designate additional transfer agents
with respect to any series of Debt Securities. (Section 1102)
In the event of any redemption in part of any series of Debt Securities,
the Company will not be required to: (i) issue, register the transfer of, or
exchange, Debt Securities of any series during a period beginning at the
opening of business 15 Business Days before any selection of Debt Securities
of that series to be redeemed and ending at the close of business on the day
of mailing of the relevant notice of redemption; (ii) register the transfer
of, or exchange, any Debt Security selected for redemption, in whole or in
part, except the unredeemed portion of any Debt Security being redeemed in
part. (Section 404)
For a discussion of restrictions on the exchange, registration and
transfer of Global Debt Securities, see "Global Securities" below.
Payment and Paying Agents
Payment of principal of, premium, if any, and interest, if any, on, Debt
Securities will be made at the office of such Paying Agent or Paying Agents
as the Company may designate from time to time. At the option of the
Company, payment of any interest on Debt Securities may be made by check
mailed to the address of the person entitled thereto as such address shall
appear in the Security Register. Payment of any installment of interest on
any Debt Security 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. (Sections 406 and 410)
Unless otherwise indicated in the applicable Prospectus Supplement, the
Trustee will be designated as the Company's Paying Agent with respect to Debt
Securities, and the office of State Street Bank and Trust Company, N.A., an
affiliate of the Trustee, will be the office or agency of the Company in the
Borough of Manhattan, The City of New York where Debt Securities may be
presented or surrendered for payment. Any other Paying Agents in the United
States initially designated by the Company for the Debt Securities of a
series will be named in the applicable Prospectus Supplement. The Company
may at any time designate additional Paying Agents or rescind that
designation of any Paying Agent or approve a change in the office through
which any Paying Agent acts, except that the Company will be required to
maintain a Paying Agent in each Place of Payment for each series of Debt
Securities
All moneys deposited with the Trustee or a Paying Agent, or then held by
the Company, in trust for the payment of principal of, premium, if any, and
interest, if any, on, any Debt Security that remains unclaimed at the end of
two years after such principal, premium or interest shall become due and
payable will be repaid to the Company, or, if then held by the Company,
discharged from such trust, and the holder of such Debt Security will
thereafter look only to the Company for payment thereof. (Section 1103)
Global Securities
The Debt Securities of a series may be issued in whole or in part as one
or more Global Debt Securities in registered, definitive form. The Global
Debt Security or Securities of a series will be deposited with, or on behalf
of, a depositary located in the United States (a "U.S. Depositary").
(Section 403)
The specific terms of the depositary arrangement with respect to any
Debt Securities of a series issued in global form will be described in the
Prospectus Supplement relating to such series. The Company anticipates that
the following provisions will apply to all depositary arrangements. None of
the Company, the Trustee, any Paying Agent or the Security Registrar will
have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests in a Global
Debt Security or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests. (Section 411) The Company
anticipates that the following provisions will apply to all depositary
arrangements with a U.S. Depositary.
If Debt Securities of a series are to be represented by a definitive
global registered Debt Security to be deposited with or on behalf of a U.S.
Depositary, such Debt Securities ("Book-Entry Debt Securities") will be
represented by a definitive Global Debt Security registered in the name of
the U.S. Depositary or its nominee. In such case, one or more Global Debt
Securities will be issued in a denomination or aggregate denominations equal
to the portion of the aggregate principal or face amount of outstanding
registered Debt Securities. Unless and until it is exchanged in whole for
Debt Securities in definitive registered form, a Global Debt Security may not
be transferred except as a whole by the U.S. Depositary for such Global Debt
Security to a nominee of such U.S. Depositary, or by a nominee of such U.S.
Depositary to such U.S. Depositary or another nominee of such U.S. Depositary
or by such U.S. Depositary or any such nominee to a successor U.S. Depositary
or a nominee of such successor. Upon the issuance of a definitive Global
Debt Security registered in the name of the U.S. Depositary, the U.S.
Depositary will credit, on its book-entry registration and transfer system,
the respective principal amounts of the Book-Entry Debt Securities
represented by such Global Debt Security to the accounts of institutions that
have accounts with such depository or its nominee ("participants"). The
accounts to be credited shall be designated by the underwriters or agents for
the sale of such Book-Entry Debt Securities or by the Company, if such Debt
Securities are offered and sold directly by the Company. Ownership of Book-
Entry Debt Securities will be limited to participants or persons that may
hold interests through participants. Ownership of Book-Entry Debt Securities
will be shown on, and the transfer of that ownership will be effected only
through, records maintained by the U.S. Depositary or its nominee for the
applicable definitive Global Debt Security or by participants or persons that
hold through participants. So long as the U.S. Depositary, or its nominee,
is the registered owner of such global Debt Security, such depositary or such
nominee, as the case may be, will be considered the sole owner or holder of
the Book-Entry Debt Securities represented by such Global Debt Security for
all purposes under the Indenture. Accordingly, each person owning a
beneficial interest in a Global Debt Security must rely on the procedures of
the U.S. Depositary for such Global Debt Security and, if such person is not
a participant, on the procedures of the participant through which such person
owns its interest, to exercise any rights of a holder under the applicable
Indenture. The Company understands that under existing industry practices,
if it requests any action of holders or if an owner of a beneficial interest
in a Global Debt Security desires to give or take any action which a holder
is entitled to give or take under the applicable Indenture, the U.S.
Depositary for such Global Debt 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 acting through them.
Payment of principal of, premium, if any, and interest, if any, on Book-Entry
Debt Securities will be made to the U.S. Depositary or its nominee, as the
case may be, as the registered owner or the holder of the Global Debt
Security representing such Book-Entry Debt Securities. Owners of Book-Entry
Debt Securities will not be entitled to have such Debt Securities registered
in their names in the Security Register, 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 thereof under the Indenture. The
laws of some jurisdictions required that certain purchasers of securities
take physical delivery of such securities in definitive form. Such limits
and such laws impair the ability to purchase or transfer Book-Entry Debt
Securities.
The Company expects that the U.S. Depositary for Book-Entry Debt
Securities of a series, upon receipt of any payment of principal of, premium,
if any, or interest, if any, on, the related definitive Global Debt Security,
will immediately credit participants' accounts with payments in amounts
proportionate to their respective beneficial interest in the principal amount
of such Global Debt Security as shown on the records of such U.S. Depositary.
The Company also expects that payments by participants to owners of
beneficial interests in such Global Debt Security held through such
participants will be governed by standing instructions and customary
practices, as is now the case with securities held for the accounts of
customers in bearer form or registered in "street name," and will be the
responsibility of such participants.
If the U.S. Depositary for a series of Debt Securities is at any time
unwilling, unable or ineligible to continue as depositary and a successor
depositary is not appointed by the Company within 90 days, the Company will
issue individual Debt Securities of such series in definitive form in
exchange for the Global Debt Security representing such series of Debt
Securities. In addition, the Company may, at any time and in its sole
discretion, subject to any limitations described in the Prospectus
Supplement, determine not to have any Debt Securities of such series
represented by one or more Global Debt Securities and, in such event, will
issue individual Debt Securities of such series in exchange for the Global
Debt Security or Securities representing such series of Debt Securities. In
either instance, the Company will issue Debt Securities in definitive form,
equal in aggregate principal amount to the Global Debt Securities, in such
names and in such principal amounts as the U.S. Depositary for such Global
Debt Securities shall request.
Satisfaction and Discharge; Defeasance
At the request of the Company, the Indenture will cease to be in effect
as to the Debt Securities of any series (except for certain obligations to
register the transfer or exchange of such Debt Securities and hold monies for
payment of such Debt Securities in trust) when either (a) all such Debt
Securities have been delivered to the Trustee for cancellation or (b) all
such Debt Securities have become due and payable or will become due and
payable at their stated maturity within one year, or are to be called for
redemption within one year, and the Company has deposited with the trustee in
trust, money, in the currency, currencies or currency unit or units in which
such Debt Securities are payable, in an amount sufficient to pay all the
principal of, premium, if any, and interest, if any, on, such Debt Securities
on the dates such payments are due in accordance with the terms of such Debt
Securities. (Section 501)
Unless otherwise specified in the applicable Prospectus Supplement, the
Company, at its option, (a) will be Discharged after 91 days from any and all
obligations in respect of any series of Debt Securities (except for certain
obligations to register the transfer of or exchange Debt Securities, replace
stolen, lost or mutilated Debt Securities, maintain paying agencies and hold
moneys for payment in trust) or (b) need not comply with certain restrictive
covenants of the Indenture in respect of such series (including those
described under "Certain Covenants of the Company"), in each case if the
Company deposits irrevocably with the trustee in trust, money, or U.S.
Government Obligations, which through the payment of interest thereon and
principal thereof in accordance with their terms will provide money, in an
amount sufficient to pay all the principal (including any mandatory sinking
fund payments) of, and interest on, such series on the dates such payments
are due in accordance with the terms of such series. Among the conditions to
the Company's exercising any such option, the Company is required to deliver
to the Trustee an opinion of counsel to the effect that the deposit and
related defeasance would not cause the holders of such series to recognize
income, gain or loss for United States Federal income tax purposes and that
the holders of such series will be subject to United States Federal income
tax in the same amounts, in the same manner and at the same times as would
have been the case if such option had not been exercised. (Section 503)
Events of Default, Notice and Waiver
The Indenture provides that, if an Event of Default specified therein
with respect to any series of Debt Securities shall have happened and be
continuing, either the Trustee or the holders of 25% in principal amount of
the outstanding Debt Securities of such series (in the case of certain events
of bankruptcy, insolvency and reorganization, voting as one class with all
other outstanding Debt Securities) may declare the principal of all the Debt
Securities of such series, together with accrued interest thereon, if any, to
be immediately due and payable by notice in writing to the Company (and to
the Trustee if given by the holders). (Section 602)
Events of Default in respect of any series are defined in the Indenture
as being: default for 30 days in payment of any interest installment when
due; default in payment of principal of, or premium, if any on, Debt
Securities of such series when due (other than any sinking fund payments) at
their stated maturity, by declaration, when called for redemption or
otherwise; default in the making of any sinking fund payment when due;
default for 90 days after notice to the Company by the Trustee or by holders
of 25% in principal amount of the outstanding Debt Securities of such series
in the performance of any covenant in the Debt Securities of such series or
in the Indenture with respect to Debt Securities of such series; default by
the Company in the payment at final maturity, after the expiration of any
applicable grace period, of debt having a principal amount then outstanding
in excess of $25 million, or acceleration of the Company's obligation to pay
any indebtedness in such principal amount; certain events of bankruptcy,
insolvency and reorganization; and any other Event of Default provided with
respect to the Debt Securities of such series, if so specified in the
applicable Prospectus Supplement. No Event of Default with respect to a
single series of indebtedness issued under the Indenture (and any
supplemental indentures) necessarily constitutes and Event of Default with
respect to any other series of indebtedness issued thereunder. (Section 601)
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 such series notice of all
uncured and unwaived defaults known to it; provided that, except in the case
of default in the payment of principal of, premium, if any, of interest, if
any, on, or a sinking fund installment, if any, with respect to, any of the
Debt Securities of such series, the Trustee will be protected in withholding
such notice if it in good faith determines that the withholding of such
notice is in the interest of the holders of the Debt Securities of such
series. The term "default" for the purpose of this provision only means the
happening of any of the Events of Default specified above, except that any
grace period or notice requirement is eliminated. (Section 702)
The Indenture contains provisions entitling the Trustee, subject to the
duty of the Trustee during an Event of Default to act with the required
standard of care, to be indemnified by the holders of the Debt Securities
before proceeding to exercise any right or power under the Indenture at the
request of holders of the Debt Securities. (Section 703)
The Indenture provides that the holders of a majority in principal
amount of the outstanding Debt Securities of any series may in certain
circumstances direct the time, method and place of conducting proceedings for
remedies available to the Trustee or exercising any trust or power conferred
on the Trustee in respect of such series; provided that the Trustee may
decline to follow any such direction if (i) such direction would involve the
Trustee in personal liability or (ii) such direction would be unduly
prejudicial to holders of the Debt Securities of such series not joining in
such direction. (Section 612)
The Indenture includes a covenant that the Company will file annually
with the Trustee an Officers' Certificate stating whether any default exists
and specifying any default that exists. (Section 1106)
In certain cases, the holders of a majority in principal amount of the
outstanding Debt Securities of any series may on behalf of the holders of all
Debt Securities of such series waive any past default or Event of Default
with respect to the Debt Securities of such series or compliance with certain
provisions of the Indenture, except a default (i) not theretofore cured in
payment of the principal of, or premium, if any, or interest, if any, on, any
of the Debt Securities of such series; or (ii) in respect of a covenant or
provision of the Indenture which cannot be modified or amended without the
consent of the Holder of each Outstanding Debt Security of a series affected.
(Section 613) The holders of a majority in principal amount of a series of
outstanding Debt Securities also have certain rights to rescind any
declaration of acceleration with respect to such series after all Events of
Default with respect to such series not arising from such declaration shall
have been cured. (Section 602)
Modification of the Indenture
The Indenture provides that the Company and the Trustee thereunder may,
without the consent of any holders of Debt Securities, enter into
supplemental indentures for the purposes, among other things, of adding to
the Company's covenants, adding additional Events of Default, establishing
the form or terms of any series of Debt Securities issued under such
supplemental indentures or curing ambiguities or inconsistencies in the
Indenture or making other provisions, provided such other provisions shall
not adversely affect the interests of the holders of any series of Debt
Securities in any material respect. (Section 1001)
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
principal amount of the outstanding Debt Securities of all affected series
(acting as one class), to execute supplemental indentures adding any
provisions to or changing or eliminating any of the provisions of the
Indenture or modifying the rights of the holders of the Debt Securities of
such series, except that no such supplemental indenture may, without the
consent of the holders of all the outstanding Debt Securities affected
thereby, among other things: (i) change the Stated Maturity of the principal
of, or any installment of principal of or interest on, any Debt Security;
(ii) reduce the principal amount of, the rate of interest on, or any premium
payable upon the redemption of, any Debt Security; (iii) reduce the amount of
the principal of an Original Issue Discount Security that would be due and
payable upon acceleration of the Maturity thereof; (iv) change any Place of
Payment where, or the currency or currencies or currency unit or units in
which, any Debt Security or any premium or interest thereon is payable; (v)
impair the right to institute suit for the enforcement of any such payment on
or after the Stated Maturity thereof (or, in the case of redemption, on or
after the Redemption Date); (vi) affect adversely the terms, if any, of
conversion of any Debt Security into stock or other securities of the Company
or of any other corporation; (vii) reduce the percentage in principal amount
of the outstanding Debt Securities of any series, the consent of whose
holders is required for any such supplemental indenture, or the consent of
whose holders is required for any waiver (of compliance with certain
provisions of the Indenture or certain defaults thereunder and their
consequences) provided for in the Indenture; (viii) change any obligation of
the Company, with respect to outstanding Debt Securities of a series, to
maintain an office or agency in the places and for the purposes specified in
the Indenture for such series; (ix) modify any of the foregoing provisions or
the provisions for the waiver of certain covenants and defaults, except to
increase any applicable percentage of the aggregate principal amount of
outstanding Debt Securities the consent of the holders of which is required
or to provide with respect to any particular series the right to condition
the effectiveness of any supplemental indenture as to that series on the
consent of the holders of a specified percentage of the aggregate principal
amount of outstanding Debt Securities of such series or to provide that
certain other provisions of the Indenture cannot be modified or waived
without the consent of the holder of each outstanding Debt Security affected
thereby. (Section 1002)
Waiver of Certain Covenants
The Indenture provides that the Company may omit to comply with the
restrictive covenants described above under "Certain Covenants of the
Company" if the holders of not less than a majority in principal amount of
all series of outstanding Debt Securities affected thereby (acting as one
class) waive compliance with such restrictive covenants. (Section 1107)
Meetings
The Indenture contains provisions for convening meetings of the holders
of Debt Securities of any series. (Section 1401) A meeting may be called at
any time by the Trustee under the Indenture, and also, upon request, by the
Company or the holders of at least 10% in principal amount of the outstanding
Debt Securities of such series, in any such case upon notice given in
accordance with "Notices" below. (Section 1402) Persons entitled to vote a
majority in principal amount of the outstanding Debt Securities of a series
will constitute a quorum at a meeting of holders of Debt Securities of such
series, except that in the absence of a quorum, if the meeting was called by
the Company or the Trustee, it may be adjourned for a period of not less than
10 days, and in the absence of a quorum at any such adjourned meeting, the
meeting may be further adjourned for a period of not less than 10 days.
Except for any consent which must be given by the holder of each outstanding
Debt Security affected thereby, as described above under "Modification of the
Indenture," and subject to the provisions described in the last sentence
under this subheading, any resolution presented at a meeting or adjourned
meeting duly reconvened at which a quorum is present may be adopted by the
affirmative vote of the holders of a majority in principal amount of the
outstanding Debt Securities of that series; provided, however, that any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action which may be made, given or taken by
the holders of a specified percentage, which is equal to or less than a
majority, in principal amount of outstanding Debt Securities of a series may
be adopted at a meeting or an adjourned meeting duly reconvened at which a
quorum is present by the affirmative vote of the holders of such specified
percentage in principal amount of the outstanding Debt Securities of that
series. Any resolution passed or decision taken at any meeting of holders of
Debt Securities of any series duly held in accordance with the Indenture will
be binding on all holders of Debt Securities of that series. With respect to
any consent, waiver or other action which the Indenture expressly provides
may be given by the holders of a specified percentage of outstanding Debt
Securities of all series affected thereby (acting as one class), only the
principal amount of outstanding Debt Securities of any series represented at
a meeting or an adjourned meeting duly reconvened at which a quorum is
present as aforesaid and voting in favor of such action will be counted for
purposes of calculating the aggregate principal amount of outstanding Debt
Securities of all series affected thereby favoring such action. (Section
1404)
Notices
Notices to holders of Debt Securities will be given by first-class mail
or by overnight courier to the addresses of such holders as they appear in
the Security Register. (Section 106)
Title
The Company, the Trustee and any agent of the Company or the Trustee may
treat, prior to due presentment for registration of transfer, the registered
owner of any Debt Security (including Debt Securities in global registered
form), as the absolute owner thereof (whether or not such Debt Security shall
be overdue and notwithstanding any notice to the contrary) for the purpose of
making payment and for all other purposes. (Section 407)
Replacement of Securities
Any mutilated Debt Security will be replaced by the Company at the
expense of the holder upon surrender of such mutilated Debt Security to the
Security Registrar. Debt Securities that become destroyed, stolen or lost
will be replaced by the Company at the expense of the holder upon delivery to
the Security Registrar of evidence of the destruction, loss or theft thereto
satisfactory to the Company and the Security Registrar. In the case of a
destroyed, lost or stolen Debt Security, an indemnity satisfactory to the
Security Registrar and the Company may be required at the expense of the
holder of such Debt Security before a replacement Debt Security will be
issued. (Section 405)
Governing Law
The Indenture and the Debt Securities will be governed by, and construed
in accordance with, the laws of the State of New York.
Concerning the Trustee
State Street Bank and Trust Company, as successor to The First National
Bank of Boston, also serves as the indenture trustee with respect to the
Company's Indenture dated as of May 3, 1995, under which are issued and
outstanding the Company's 6.78% Senior Notes due 2004. Boston EquiServe,
L.P., a joint venture of which the Trustee is an affiliate, serves as
Transfer Agent and Registrar for the Company's Common Stock. The State
Street Bank and Trust Company also is a lending party to a January 22, 1997
$450,000,000 Revolving Credit Agreement among the Company and a syndicate of
lending institutions.
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities in any of three ways: (i)
through underwriters, (ii) through agents or (iii) directly to a limited
number of institutional purchasers or to a single purchaser. The Prospectus
Supplement with respect to each series of Debt Securities will set forth the
terms of the offering of the Debt Securities of such series, including the
name or names of any underwriters, the purchase price and the proceeds to the
Company from such sale, any underwriting discounts and other items
constituting underwriters' compensation, any initial public offering price
and any discounts or concessions allowed or reallowed or paid to dealers and
any securities exchanges on which the Debt Securities of such series may be
listed.
If underwriters are used in the sale, 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, including negotiated transactions,
at a fixed public offering price or at varying prices determined at the time
of sale. The Debt Securities may be either offered to the public through
underwriting syndicates represented by managing underwriters or by
underwriters without a syndicate. Unless otherwise set forth in the
Prospectus Supplement, the obligations of the underwriters to purchase Debt
Securities will be subject to certain conditions precedent and the
underwriters will be obligated to purchase all the Debt Securities of a
series if any are purchased. Any initial public offering price and any
discounts or concessions allowed or reallowed or paid to dealers may be
changed from time to time.
The managing underwriter, on behalf of the underwriters, may engage in
stabilizing transactions in accordance with Rule 104 under the Securities
Exchange Act of 1934. Stabilizing transactions permit bids to purchase the
Debt Securities so long as the stabilizing bids do not exceed a specified
maximum. Such stabilizing transactions may cause the price of the Debt
Securities to be higher than it would otherwise be in the absence of such
transactions.
Debt Securities may be sold directly by the Company or through agents
designated by the Company from time to time. Any agent involved in the offer
or sale of the Debt Securities in respect of which this Prospectus is
delivered will be named, and any commissions payable by the Company to such
agent will be set forth, in the Prospectus Supplement. Unless otherwise
indicated in the Prospectus Supplement, any such agent will be acting on a
best efforts basis for the period of its appointment.
If so indicated in the Prospectus Supplement, the Company will authorize
agents or underwriters to solicit offers by certain types of institutions to
purchase Debt Securities from the Company at the public offering price set
forth in the Prospectus Supplement pursuant to delayed delivery contracts
providing for payment and delivery on a specified date in the future. Such
contracts will be subject only to those conditions set forth in the
Prospectus Supplement, and the Prospectus Supplement will set forth the
commissions payable for solicitation of such contracts.
Agents and underwriters may be entitled under agreements entered into
with the Company to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act of 1933, or to
contribution with respect to payments which the agents or underwriters may be
required to make in respect thereof. Agents and underwriters may be
customers of, engage in transactions with, or perform services for, the
Company in the ordinary course of business.
Each series of Debt Securities will be a new issue of securities with no
established trading market. Any underwriters to whom Debt Securities are
sold by the Company for public offering and sale may make a market in such
Debt Securities, but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. No assurance can
be given as to the liquidity of the trading market for any Debt Securities.
EXPERTS
The consolidated financial statements of the Company and its
subsidiaries as of December 31, 1996 and 1995 and for each of the years in
the three-year period ended December 31, 1996 have been incorporated by
reference herein in reliance upon the report of Coopers & Lybrand L.L.P.,
independent accountants, and upon the authority of said firm as experts in
accounting and auditing.
The financial statements of Amicon Bioseparations as of December 31,
1996 and for the year then ended incorporated herein by reference have been
audited by Price Waterhouse L.L.P., independent accountants, as indicated in
their reports with respect thereto, and are incorporated herein by reference
in reliance upon the authority of said firm as experts in accounting and
auditing.
The financial statements of Tylan General, Inc., as of October 31, 1996
and for the year then ended incorporated herein by reference have been
audited by Ernst & Young, independent public accountants, as indicated in
their report thereto, and are incorporated herein by reference in reliance
upon the authority of said firm as experts in giving said report.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following is an itemization of all expenses (subject to future
contingencies) incurred or expected to be incurred by the Company in
connection with this Registration Statement.
22
21
[NYCORP2:313358.3:4335:02/26/97--3:45p]
[NYCORP2:313358.3:4335:02/26/97--3:45p]
[Draft--3/4/97] EXHIBIT 1
FORM OF SHELF UNDERWRITING AGREEMENT
MILLIPORE CORPORATION
DEBT SECURITIES
Underwriting Agreement
, 1997
To the Representative[s] named
in Schedule I hereto of the
Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
Millipore Corporation, a Massachusetts corporation (the
"Company"), proposes to issue and sell to the underwriters named in
Schedule II hereto (the "Underwriters"), for whom you are acting as
Representative[s] (the "Representative[s]"), the principal amount of its
debt securities identified in Schedule I hereto (the "Securities"), to
be issued under the indenture specified in Schedule I hereto (the
"Indenture") between the Company and the Trustee identified in such
Schedule (the "Trustee"). If the firm or firms listed in Schedule II
hereto include only the firm or firms listed in Schedule I hereto, then
the terms "Underwriters" and "Representative[s]", as used herein, shall
each be deemed to refer to such firm or firms.
The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission") in accordance with the provisions
of Securities Act of 1933, as amended, and the rules and regulations of
the Commission thereunder (collectively, the "Securities Act"), a
registration statement (the file number of which is set forth in
Schedule I hereto) on Form S-3, relating to certain debt securities (the
"Shelf Securities") to be issued from time to time by the Company. The
Company also has filed with, or proposes to file with, the Commission
pursuant to Rule 424 under the Securities Act a prospectus supplement
specifically relating to the Securities. The registration statement as
amended to the date of this Agreement is hereinafter referred to as the
"Registration Statement" and the related prospectus covering the Shelf
Securities in the form first used to confirm sales of the Securities is
hereinafter referred to as the "Basic Prospectus". The Basic Prospectus
as supplemented by the prospectus supplement specifically relating to
the Securities in the form first used to confirm sales of the Securities
is hereinafter referred to as the "Prospectus". Any reference in this
Agreement to the Registration Statement, the Basic Prospectus, any
preliminary form of Prospectus (a "preliminary prospectus") previously
filed with the Commission pursuant to Rule 424 or the Prospectus shall
be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Securities
Act which were filed under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") on or before the date of this
Agreement or the date of the Basic Prospectus, any preliminary
prospectus or the Prospectus, as the case may be; and any reference to
"amend", "amendment" or "supplement" with respect the Registration
Statement, the Basic Prospectus, any preliminary prospectus or the
Prospectus shall be deemed to refer to and include any documents filed
under the Exchange Act after the date of this Agreement, or the date of
the Basic Prospectus, any preliminary prospectus or the Prospectus, as
the case may be, which are deemed to be incorporated by reference
therein.
The Company hereby agrees with the Underwriters as follows:
. The Company agrees to issue and sell the Securities to the
several Underwriters as hereinafter provided, and each Underwriter, on
the basis of the representations and warranties herein contained, but
subject to the conditions hereinafter stated, agrees to purchase,
severally and not jointly, from the Company the respective principal
amount of Securities set forth opposite such Underwriter's name in
Schedule II hereto at the purchase price set forth in Schedule I hereto
plus accrued interest, if any, from the date specified in Schedule I
hereto to the date of payment and delivery.
. The Company understands that the several Underwriters
intend (i) to make a public offering of their respective portions of the
Securities and (ii) initially to offer the Securities upon the terms set
forth in the Prospectus.
. Payment for the Securities shall be made by wire transfer
in immediately available funds, to the account specified by the Company
to the Representative[s] no later than noon the Business Day (as defined
below) prior to the Closing Date (as defined below), on the date and at
the time and place set forth in Schedule I hereto (or at such other time
and place on the same or such other date, not later than the fifth
Business Day (as defined below) thereafter, as you and the Company may
agree in writing). As used herein, the term "Business Day" means any
day other than a day on which banks are permitted or required to be
closed in New York City. The time and date of such payment and delivery
with respect to the Designated Securities are referred to herein as the
"Closing Date".
Payment for the Securities shall be made against delivery to
the nominee of The Depository Trust Company for the respective accounts
of the several Underwriters of the Securities of one or more global
notes (the "Global Note") representing the Securities, with any transfer
taxes payable in connection with the transfer to the Underwriters of the
Securities duly paid by the Company. The Global Note will be made
available for inspection by the Representative[s] at the office of [J.P.
Morgan Securities Inc.] not later than 1:00 P.M., New York City time, on
the Business Day prior to the Closing Date.
. The Company represents and warrants to each Underwriter
that:
() the Registration Statement has been declared effective by
the Commission under the Securities Act; no stop order suspending
the effectiveness of the Registration Statement has been issued and
no proceeding for that purpose has been instituted or threatened by
the Commission; and the Registration Statement and Prospectus (as
amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) comply, or will comply, as the
case may be, in all material respects with the Securities Act and
the Trust Indenture Act of 1939, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Trust
Indenture Act"), and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto and as of the date of the Prospectus and any amendment or
supplement thereto, contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and the
Prospectus, as amended or supplemented at the Closing Date, if
applicable, will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; except that the foregoing
representations and warranties shall not apply to (i) that part of
the Registration Statement which constitutes the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture
Act of the Trustee, and (ii) statements or omissions in the
Registration Statement or the Prospectus made in reliance upon and
in conformity with information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Representative[s] expressly for use therein;
() the documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as
the case may be, conformed in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and
none of such documents contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
and any further documents so filed and incorporated by reference in
the Prospectus or any further amendment or supplement thereto ,
when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material
respects to the requirements of the Securities Act or the Exchange
Act, as applicable, and the rules and regulations thereunder and
will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading;
() the financial statements, and the related notes thereto,
included or incorporated by reference in the Registration Statement
and the Prospectus present fairly the consolidated financial
position of the Company and its consolidated subsidiaries as of the
dates indicated and the results of their operations and the changes
in their consolidated cash flows for the periods specified; said
financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent
basis, and the supporting schedules included or incorporated by
reference in the Registration Statement present fairly the
information required to be stated therein; and the pro forma
financial information, and the related notes thereto, included or
incorporated by reference in the Registration Statement and the
Prospectus has been prepared in accordance with the applicable
requirements of the Securities Act and the Exchange Act, as
applicable and is based upon good faith estimates and assumptions
believed by the Company to be reasonable;
() since the respective dates as of which information is given
in the Registration Statement and the Prospectus, there has not
been any change in the capital stock or long-term debt of the
Company or any of its subsidiaries, or any material adverse change,
or any development involving a prospective material adverse change,
in or affecting the general affairs, business, prospects,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole,
otherwise than as set forth or contemplated in the Prospectus; and
except as set forth or contemplated in the Prospectus neither the
Company nor any of its subsidiaries has entered into any
transaction or agreement (whether or not in the ordinary course of
business) material to the Company and its subsidiaries taken as a
whole;
() the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as
described in the Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns
or leases properties, or conducts any business, so as to require
such qualification, other than where the failure to be so qualified
or in good standing would not have a material adverse effect on the
Company and its subsidiaries taken as a whole;
() each of the Company's subsidiaries has been duly
incorporated and is validly existing as a corporation under the
laws of its jurisdiction of incorporation, with power and authority
(corporate and other) to own its properties and conduct its
business as described in the Prospectus, and has been duly
qualified as a foreign corporation for the transaction of business
and is in good standing under the laws of each jurisdiction in
which it owns or leases properties or conducts any business so as
to require such qualification, other than where the failure to be
so qualified or in good standing would not have a material adverse
effect on the Company and its subsidiaries taken as a whole; and
all the outstanding shares of capital stock of each subsidiary of
the Company have been duly authorized and validly issued, are fully-
paid and non-assessable, and (except in the case of foreign
subsidiaries, for directors' qualifying shares) are owned by the
Company, directly or indirectly, free and clear of all liens,
encumbrances, security interests and claims;
() this Agreement has been duly authorized, executed and
delivered by the Company;
() the Securities have been duly authorized, and, when issued
and delivered pursuant to this Agreement, will have been duly
executed, authenticated, issued and delivered and will constitute
valid and binding obligations of the Company entitled to the
benefits provided by the Indenture; the Indenture has been duly
authorized and upon effectiveness of the Registration Statement
will have been duly qualified under the Trust Indenture Act and,
when executed and delivered by the Company and the Trustee, the
Indenture will constitute a valid and binding instrument; and the
Securities and the Indenture will conform to the descriptions
thereof in the Prospectus;
() neither the Company nor any of its subsidiaries is, or with
the giving of notice or lapse of time or both would be, in
violation of or in default under, its Certificate of Incorporation
or By-Laws or any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which it or any of them or
any of their respective properties is bound, except for violations
and defaults which individually and in the aggregate are not
material to the Company and its subsidiaries taken as a whole or to
the holders of the Securities; the issue and sale of the Securities
and the performance by the Company of all of the provisions of its
obligations under the Securities, the Indenture and this Agreement
and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, nor will any
such action result in any violation of the provisions of the
Certificate of Incorporation or the By-Laws of the Company or any
applicable law or statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company, its subsidiaries or any of their respective properties;
and no consent, approval, authorization, order, license,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of
the Securities or the consummation by the Company of the
transactions contemplated by this Agreement or the Indenture,
except such consents, approvals, authorizations, orders, licenses,
registrations or qualifications as have been obtained under the
Securities Act, the Trust Indenture Act and as may be required
under state securities or Blue Sky Laws in connection with the
purchase and distribution of the Securities by the Underwriters;
() other than as set forth or contemplated in the Prospectus,
there are no legal or governmental investigations, actions, suits
or proceedings pending or, to the knowledge of the Company,
threatened against or affecting the Company or any of its
subsidiaries or any of their respective properties or to which the
Company or any of its subsidiaries is or may be a party or to which
any property of the Company or any of its subsidiaries or any of
their respective properties or to which the Company or any of its
subsidiaries is or may be the subject which, if determined
adversely to the Company or any of its subsidiaries, could
individually or in the aggregate have, or reasonably be expected to
have, a material adverse effect on the general affairs, business,
prospects, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries taken as
a whole and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others; and there are no statutes,
regulations, contracts or other documents that are required to be
filed as an exhibit to the Registration Statement or required to be
described in the Registration Statement or the Prospectus which are
not filed or described as required;
() Coopers & Lybrand LLP, who have certified certain financial
statements of the Company and its subsidiaries, Price Waterhouse
LLP and Ernst & Young, who have certified certain financial
statements of the Amicon separation business of W.R. Grace & Co.
and Tylan General, Inc., respectively, are each independent public
accountants as required by the Securities Act;
() the Company and its subsidiaries have good and marketable
title in fee simple to all items of real property and good and
marketable title to all personal property owned by them, in each
case free and clear of all liens, encumbrances and defects except
such as are described or referred to in the Prospectus or such as
do not materially affect the value of such property and do not
interfere with the use made or proposed to be made of such property
by the Company and its subsidiaries; and any real property and
buildings held under lease by the Company and its subsidiaries are
held by them under valid, existing and enforceable leases with such
exceptions as are not material and do not interfere with the use
made or proposed to be made of such property and buildings by the
Company or its subsidiaries;
() no relationship, direct or indirect, exists between or
among the Company or any or its subsidiaries on the one hand, and
the directors, officers, stockholders, customers or suppliers of
the Company or any of its subsidiaries on the other hand, which is
required by the Securities Act to be described in the Registration
Statement and the Prospectus which is not so described;
() the Company is not and, after giving effect to the offering
and sale of the Securities, will not be an "investment company" or
entity "controlled" by an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
() the Company and its subsidiaries have filed all federal,
state, local and foreign tax returns which have been required to be
filed and have paid all taxes shown thereon and all assessments
received by them or any of them to the extent that such taxes have
become due and are not being contested in good faith; and, except
as disclosed in the Registration Statement and the Prospectus,
there is no tax deficiency which has been or might reasonable be
expected to be asserted or threatened against the Company or any
subsidiary;
() each of the Company and its subsidiaries owns, possesses or
has obtained all licenses, permits, certificates, consents, orders,
approvals and other authorizations from, and has made all
declarations and filings with, all federal, state, local and other
governmental authorities (including foreign regulatory agencies),
all self-regulatory organizations and all courts and other
tribunals, domestic or foreign, necessary to own or lease, as the
case may be, and to operate its properties and to carry on its
business as conducted as of the date hereof, and neither the
Company nor any such subsidiary has received any actual notice of
any proceeding relating to revocation or modification of any such
license, permit, certificate, consent, order, approval or other
authorization, except as described in the Registration Statement
and the Prospectus; and each of the Company and its subsidiaries is
in compliance with all laws and regulations relating to the conduct
of its business as conducted as of the date hereof;
() there are no existing or, to the best knowledge of the
Company, threatened labor disputes with the employees of the
Company or any of its subsidiaries which are likely to have a
material adverse effect on the Company and its subsidiaries taken
as a whole;
() the Company and its subsidiaries (i) are in compliance with
any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety,
the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws"), (ii) have
received all permits, licenses or other approvals required of them
under applicable Environmental Laws to conduct their respective
businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where
such noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to comply
with the terms and conditions of such permits, licenses or
approvals would not, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a
whole;
() in the ordinary course of its business, the Company
conducts a periodic review of the effect of Environmental Laws on
the business, operations and properties of the Company and its
subsidiaries, in the course of which it identifies and evaluates
associated costs and liabilities (including, without limitation,
any capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws or any
permit, license or approval, any related constraints on operating
activities and any potential liabilities to third parties). On the
basis of such review, the Company has reasonably concluded that
such associated costs and liabilities would not, singly or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
() each employee benefit plan, within the meaning of Section
3(3) of the Employee Retirement Income Security Act of 1974, as
amended, ("ERISA") that is maintained, administered or contributed
to by the Company or any of its affiliates for employees or former
employees of the Company and its affiliates has been maintained in
compliance with its terms and the requirements of any applicable
statutes, orders, rules and regulations, including but not limited
to ERISA and the Internal Revenue Code of 1986, as amended,
("Code"). No prohibited transaction, within the meaning of Section
406 of ERISA or Section 4975 of the Code has occurred with respect
to any such plan excluding transactions effected pursuant to a
statutory or administrative exemption. For each such plan which is
subject to the funding rules of Section 412 of the Code or Section
302 of ERISA no "accumulated funding deficiency" as defined in
Section 412 of the Code has been incurred, whether or not waived,
and the fair market value of the assets of each such plan
(excluding for these purposes accrued but unpaid contributions)
exceeded the present value of all benefits accrued under such plan
determined using reasonable actuarial assumptions.
. The Company covenants and agrees with each of the several
Underwriters as follows:
() to file the Prospectus in a form approved by you pursuant
to Rule 424 under the Securities Act not later than the
Commission's close of business on the second Business Day following
the date of determination of the offering price of the Securities
or, if applicable, such earlier time as may be required by Rule
424(b);
() to deliver to each Representative and counsel for the
Underwriters, at the expense of the Company, a signed copy of the
Registration Statement (as originally filed) and each amendment
thereto, in each case including exhibits and documents incorporated
by reference therein and, during the period mentioned in paragraph
(e) below, to each of the Underwriters as many copies of the
Prospectus (including all amendments and supplements thereto) and
documents incorporated by reference therein as you may reasonably
request;
() from the date hereof and prior to the Closing Date, to
furnish to you a copy of any proposed amendment or supplement to
the Registration Statement or the Prospectus, for your review, and
not to file any such proposed amendment or supplement to which you
reasonably object;
() to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is
required in connection with the offering or sale of the Securities,
and during such same period, to advise you promptly, and to confirm
such advice in writing, (i) when any amendment to the Registration
Statement shall have become effective, (ii) of any request by the
Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for any additional
information, (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or
the initiation or threatening of any proceeding for that purpose,
and (iv) of the receipt by the Company of any notification with
respect to any suspension of the qualification of the Securities
for offer and sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and to use its best
efforts to prevent the issuance of any such stop order or
notification and, if issued, to obtain as soon as possible the
withdrawal thereof;
() if, during such period after the first date of the public
offering of the Securities as in the opinion of counsel for the
Underwriters a prospectus relating to the Securities is required by
law to be delivered in connection with sales by an Underwriter or
dealer, any event shall occur as a result of which it is necessary
to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if it is
necessary to amend or supplement the Prospectus to comply with law,
forthwith to prepare and furnish, at the expense of the Company, to
the Underwriters and to the dealers (whose names and addresses you
will furnish to the Company) to which Securities may have been sold
by you on behalf of the Underwriters and to any other dealers upon
request, such amendments or supplements to the Prospectus as may be
necessary so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that
the Prospectus will comply with law; the opinion of counsel for the
Underwriters described above shall be rendered to the Underwriters
at the request of the Company and shall so state therein;
() to endeavor to qualify the Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as you
shall reasonably request and to continue such qualification in
effect so long as reasonably required for distribution of the
Securities; provided that the Company shall not be required to file
a general consent to service of process in any jurisdiction;
() to make generally available to its security holders and to
you as soon as practicable an earnings statement covering a period
of at least twelve months beginning with the first fiscal quarter
of the Company occurring after the effective date of the
Registration Statement, which shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 of the Commission
promulgated thereunder;
() so long as the Securities are outstanding, to furnish to
you copies of all reports or other communications (financial or
other) furnished to holders of Securities, and copies of any
reports and financial statements furnished to or filed with the
Commission or any national securities exchange;
() during the period beginning on the date hereof and
continuing [to and including the Business Day following the Closing
Date], not to offer, sell, contract to sell or otherwise dispose of
any debt securities of or guaranteed by the Company which are
substantially similar to the Securities;
() to use the net proceeds received by the Company from the
sale of the Securities pursuant to this Agreement in the manner
specified in the Prospectus under the caption "Use of Proceeds";
[() to use its best efforts to list, subject to notice of
issuance, the Securities on the New York Stock Exchange (the
"Exchange")];
() whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay
or cause to be paid all costs and expenses incident to the
performance of its obligations hereunder, including without
limiting the generality of the foregoing, all costs and expenses
(i) incident to the preparation, issuance, execution,
authentication and delivery of the Securities, including any
expenses of the Trustee, (ii) incident to the preparation, printing
and filing under the Securities Act of the Registration Statement,
the Prospectus and any preliminary prospectus (including in each
case all exhibits, amendments and supplements thereto), (iii)
incurred in connection with the registration or qualification and
determination of eligibility for investment of the Securities under
the laws of such jurisdictions as the Underwriters may designate
(including fees of counsel for the Underwriters and their
disbursements), [(iv) in connection with the listing of the
Securities on the New York Stock Exchange], (v) related to any
filing with National Association of Securities Dealers, Inc., (vi)
in connection with the printing (including word processing and
duplication costs) and delivery of this Agreement, the Indenture,
the Preliminary and Supplemental Blue Sky Memoranda and any Legal
Investment Survey and the furnishing to Underwriters and dealers of
copies of the Registration Statement and the Prospectus, including
mailing and shipping, as herein provided, (vii) payable to rating
agencies in connection with the rating of the Securities, (viii)
any expenses incurred by the Company in connection with a "road
show" presentation to potential investors and (ix) the cost and
charges of any transfer agent.
. The several obligations of the Underwriters hereunder shall
be subject to the following conditions:
() the representations and warranties of the Company contained
herein are true and correct on and as of the Closing Date as if
made on and as of the Closing Date and the Company shall have
complied with all agreements and all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date;
() the Prospectus shall have been filed with the Commission
pursuant to Rule 424 within the applicable time period prescribed
for such filing by the rules and regulations under the Securities
Act; no stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for such purpose
shall be pending before or threatened by the Commission; and all
requests for additional information on the part of the Commission
shall have been complied with to your satisfaction;
() subsequent to the execution and delivery of this Agreement
and prior to the Closing Date, there shall not have occurred any
downgrading, nor shall any notice have been given of (i) any
downgrading, (ii) any intended or potential downgrading or (iii)
any review or possible change that does not indicate an
improvement, in the rating accorded any securities of or guaranteed
by the Company by any "nationally recognized statistical rating
organization", as such term is defined for purposes of Rule
436(g)(2) under the Securities Act;
() since the respective dates as of which information is given
in the Prospectus there shall not have been any change in the
capital stock or long-term debt of the Company or any of its
subsidiaries or any material adverse change, or any development
involving a material adverse change, in or affecting the general
affairs, business, prospects, management, financial position,
stockholders' equity or results of operations of the Company and
its subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Prospectus, the effect of which in the judgment
of the Representative[s] makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Securities
on the terms and in the manner contemplated in the Prospectus; and
neither the Company nor any of its subsidiaries has sustained since
the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order to decree, otherwise
than as set forth or contemplated in the Prospectus;
() the Representative[s] shall have received on and as of the
Closing Date a certificate of an executive officer of the Company,
with specific knowledge about the Company's financial matters,
satisfactory to you to the effect set forth in subsections (a)
through (c) (with respect to the respective representations,
warranties, agreements and conditions of the Company) of this
Section and to the further effect that there has not occurred any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
business, prospects, management, financial position, stockholders'
equity or results of operations of the Company and its subsidiaries
taken as a whole from that set forth or contemplated in the
Registration Statement.
() Jeff Rudin, General Counsel for the Company, shall have
furnished to you their written opinion, dated the Closing Date, in
form and substance satisfactory to you, to the effect that:
() the Company has been duly incorporated and
is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation, with power and
authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus as amended
or supplemented;
() the Company has been duly qualified as a
foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in
which it owns or leases properties, or conducts any business,
so as to require such qualification, other than where the
failure to be so qualified or in good standing would not have
a material adverse effect on the Company and its subsidiaries
taken as a whole;
() each of the Company's subsidiaries has been
duly incorporated and is validly existing as a corporation
under the laws of its jurisdiction of incorporation with power
and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus and has
been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws
of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such
qualification, other than where the failure to be so qualified
and in good standing would not have a material adverse effect
on the Company and its subsidiaries taken as a whole; and all
of the issued shares of capital stock of each subsidiary have
been duly and validly authorized and issued, are fully paid
and non-assessable, and (except in the case of foreign
subsidiaries, for directors' qualifying shares) are owned
directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims;
() other than as set forth or contemplated in
the Prospectus, there are no legal or governmental
investigations, actions, suits or proceedings pending or, to
the best of such counsel's knowledge, threatened against or
affecting the Company or any of its subsidiaries or any of
their respective properties or to which the Company or any of
its subsidiaries is or may be a party or to which any property
of the Company or its subsidiaries is or may be the subject;
to the best of such counsel's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or
threatened by others; and such counsel does not know of any
statutes, regulations, contracts or other documents that are
required to be filed as an exhibit to the Registration
Statement or required to be described in the Registration
Statement or the Prospectus which are not filed or described
as required;
() this Agreement has been duly authorized,
executed and delivered by the Company;
() the Securities have been duly authorized,
executed and delivered by the Company and, when duly
authenticated in accordance with the terms of the Indenture
and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will constitute
valid and binding obligations of the Company entitled to the
benefits provided by the Indenture;
() the Indenture has been duly authorized,
executed and delivered by the Company and constitutes a valid
and binding instrument of the Company; and the Indenture has
been duly qualified under the Trust Indenture Act;
() neither the Company nor any of its
subsidiaries is, or with the giving of notice or lapse of time
or both would be, in violation of or in default under, its
Certificate of Incorporation or By-Laws or any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company or any
of its subsidiaries is a party or by which it or any of them
or any of their respective properties is bound; the issue and
sale of the Securities and the performance by the Company of
its obligations under the Securities, the Indenture and this
Agreement and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such
counsel to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is
bound or to which any of the property or assets of the Company
or any of its subsidiaries is subject, nor will any such
action result in any violation of the provisions of the
Certificate of Incorporation, or the By-Laws of the Company or
any applicable law or statute or any order, rule or regulation
of any court or governmental agency or body having
jurisdiction over the Company, its subsidiaries or any of
their respective properties;
() no consent, approval, authorization, order,
license, registration or qualification of or with any court or
governmental agency or body is required for the issue and sale
of the Securities or the consummation of the other
transactions contemplated by this Agreement or the Indenture,
except such consents, approvals, authorizations, orders,
licenses, registrations or qualifications as have been
obtained under the Securities Act and the Trust Indenture Act
and as may be required under state securities or Blue Sky laws
in connection with the purchase and distribution of the
Securities by the Underwriter;
() the statements in the Prospectus under
"Description of the Debt Securities" and "Plan of
Distribution", in the Prospectus incorporated by reference
from item 3 of Part 1 of the Company's Annual Report on Form
10-K for the year ended December 31, 1996 and in the
Registration Statement in Item 15, insofar as such statements
constitute a summary of the legal matters, documents or
proceedings referred to therein, fairly present the
information called for with respect to such legal matters,
documents or proceedings;
() such counsel (A) is of the opinion that each
document incorporated by reference in the Registration
Statement and the Prospectus as amended or supplemented (other
than the financial statements and related schedules therein,
as to which such counsel need express no opinion) complied as
to form when filed with Commission in all material respects
with the Exchange Act, and the rules and regulations of the
Commission thereunder, (B) believes that (except for the
financial statements included therein as to which such counsel
need express no belief) each part of the registration
statement (including the documents incorporated by reference
therein) filed with the Commission pursuant to the Securities
Act relating to the Securities, when such part became
effective, did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, (C) is of the opinion that the Registration
Statement and the Prospectus and any amendments and
supplements thereto (except for the financial statement
included therein as to which such counsel need express no
opinion) comply as to form in all material respects with the
requirements of the Securities Act and the Trust Indenture Act
and (D) believes that (except for the financial statements
included therein as to which such counsel need express no
belief) the Registration Statement and the Prospectus, on the
date of this Agreement, did not contain any untrue statement
of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading, and that the Prospectus as amended or
supplemented, if applicable, does not contain any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
() the Company is not, and after giving effect
to the offering and sale of the Securities will not be, an
"investment company" or entity "controlled" by an "investment
company", as such terms are defined in the Investment Company
Act;
() each of the Company and its subsidiaries
owns, possesses or has obtained all licenses, permits,
certificates, consents, orders, approvals and other
authorizations from, and has made all declarations and filings
with, all federal, state, local and other governmental
authorities (including foreign regulatory agencies), all self-
regulatory organizations and all courts and other tribunals,
domestic or foreign, necessary to own or lease, as the case
may be, and to operate its properties and to carry on its
business as conducted as of the date hereof, and neither the
Company nor any such subsidiary has received any actual notice
of any proceeding relating to revocation or modification of
any such license, permit, certificate, consent, order,
approval or other authorization, except as described in the
Registration Statement and the Prospectus; and each of the
Company and its subsidiaries is in compliance with all laws
and regulations relating to the conduct of its business as
conducted as of the date of the Prospectus;
() each of the Company and its subsidiaries
owns, possesses or has the right to use the Intellectual
Property employed by it in connection with the business
conducted by it as of the date hereof;
() the Company and its subsidiaries have good
and marketable title in fee simple to all real property and
good and marketable title to all personal property owned by
them, in each case free and clear of all liens, encumbrances
and defects except such as are described or referred to in the
Prospectus or such as do not materially affect the value of
such property and do not interfere with the use made and
proposed to be made of such property by the Company and its
subsidiaries; and any real property and buildings held under
lease by the Company and its subsidiaries are held by them
under valid, existing and enforceable leases with such
exceptions as are not material and do not interfere with the
use made or proposed to be made of such property and buildings
by the Company or its subsidiaries; and
() each of the Company and its subsidiaries is
in compliance with all Environmental Laws, except, in each
case, where noncompliance, individually or in the aggregate,
would not have a material adverse effect on the Company and
its subsidiaries taken as a whole;
In rendering such opinions, such counsel may rely (A) as to
matters involving the application of laws other than the laws of
the United States and the States of Massachusetts and Delaware, to
the extent such counsel deems proper and to the extent specified in
such opinion, if at all, upon an opinion or opinions (in form and
substance reasonably satisfactory to Underwriters' counsel) of
other counsel reasonably acceptable to the Underwriters' counsel,
familiar with the applicable laws; (B) as to matters of fact, to
the extent such counsel deems proper, on certificates of
responsible officers of the Company and certificates or other
written statements of officials of jurisdictions having custody of
documents respecting the corporate existence or good standing of
the Company and its subsidiaries. The opinion of such counsel for
the Company shall state that the opinion of any such other counsel
upon which they relied is in form satisfactory to such counsel and,
in such counsel's opinion, the Underwriters and such counsel are
justified in relying thereon. With respect to the matters to be
covered in subparagraph (xi) above, counsel may state their opinion
and belief is based upon their participation in the preparation of
the Registration Statement and the Prospectus and any amendment or
supplement thereto but is without independent check or verification
except as specified.
() on the date hereof and on the Closing Date, Coopers &
Lybrand LLP shall have furnished to you letters, dated such date,
in form and substance satis factory to you, containing statements
and information of the type customarily included in accountants
"comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in the
Registration Statement and the Prospectus;
() you shall have received on and as of the Closing Date an
opinion of [Cravath, Swaine & Moore], counsel to the Underwriters,
with respect to the validity of the Indenture and the Securities
and other related matters as the Representative[s] may reasonably
request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass
upon such matters; [and]
[() the Securities shall have been approved for listing on
the New York Stock Exchange, subject to official notice of
issuance; and]
() on or prior to the Closing Date, the Company shall have
furnished to the Representative[s] such further certificates and
documents as the Representative[s] shall reasonably request.
. The Company agrees to indemnify and hold harmless each
Underwriter, each affiliate of any Underwriter which assists such
Underwriter in the distribution of the Securities and each person, if
any, who controls any Underwriter within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities (including
without limitation the legal fees and other expenses incurred in
connection with any suit, action or proceeding or any claim asserted)
caused by any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or the Prospectus (as
amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) or any preliminary prospectus, or
caused by any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages
or liabilities are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity
with information relating to any Underwriter furnished to the Company in
writing by such Underwriter through the Representative[s] expressly for
use therein.
Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who
sign the Registration Statement and each person who controls the Company
within the meaning of Section 15 of the Securities Act and Section 20 of
the Exchange Act, to the same extent as the foregoing indemnity from the
Company to each Underwriter, but only with reference to information
relating to such Underwriter furnished to the Company in writing by such
Underwriter through the Representative[s] expressly for use in the
Registration Statement, the Prospectus, any amendment or supplement
thereto, or any preliminary prospectus.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted
against any person in respect of which indemnity may be sought pursuant
to either of the two preceding paragraphs, such person (the "Indemnified
Person") shall promptly notify the person against whom such indemnity
may be sought (the "Indemnifying Person") in writing, and the
Indemnifying Person, upon request of the Indemnified Person, shall
retain counsel reasonably satisfactory to the Indemnified Person to
represent the Indemnified Person and any others the Indemnifying Person
may designate in such proceeding and shall pay the fees and expenses of
such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but
the fees and expenses of such counsel shall be at the expense of such
Indemnified Person unless (i) the Indemnifying Person and the
Indemnified Person shall have mutually agreed to the contrary, (ii) the
Indemnifying Person has failed within a reasonable time to retain
counsel reasonably satisfactory to the Indemnified Person or (iii) the
named parties in any such proceeding (including any impleaded parties)
include both the Indemnifying Person and the Indemnified Person and
representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between
them. It is understood that the Indemnifying Person shall not, in
connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be reimbursed as they
are incurred. Any such separate firm for the Underwriters, each
affiliate of any Underwriter which assists such Underwriter in the
distribution of the Securities and such control persons of Underwriters
shall be designated in writing by the first of the named
Representative[s] on Schedule I hereto and any such separate firm for
the Company, its directors, its officers who sign the Registration
Statement and such control persons of the Company or authorized
Representative[s] shall be designated in writing by the Company. The
Indemnifying Person shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with
such consent or if there be a final judgment for the plaintiff, the
Indemnifying Person agrees to indemnify any Indemnified Person from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested an Indemnifying Person to reimburse the
Indemnified Person for fees and expenses of counsel as contemplated by
the third sentence of this paragraph, the Indemnifying Person agrees
that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more
than 30 days after receipt by such Indemnifying Person of the aforesaid
request and (ii) such Indemnifying Person shall not have reimbursed the
Indemnified Person in accordance with such request prior to the date of
such settlement. No Indemnifying Person shall, without the prior written
consent of the Indemnified Person, effect any settlement of any pending
or threatened proceeding in respect of which any Indemnified Person is
or could have been a party and indemnity could have been sought
hereunder by such Indemnified Person, unless such settlement includes an
unconditional release of such Indemnified Person from all liability on
claims that are the subject matter of such proceeding.
If the indemnification provided for in the first and second
paragraphs of this Section 7 is unavailable to an Indemnified Person in
respect of any losses, claims, damages or liabilities referred to
therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the
amount paid or payable by such Indemnified Person as a result of such
losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on
the one hand and the Underwriters on the other hand from the offering of
the Securities or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above
but also the relative fault of the Company on the one hand and the
Underwriters on the other in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as
any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the
other shall be deemed to be in the same respective proportions as the
net proceeds from the offering of such Securities (before deducting
expenses) received by the Company and the total underwriting discounts
and the commissions received by the Underwriters bear to the aggregate
public offering price of the Securities. The relative fault of the
Company on the one hand and the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations referred to
in the immediately preceding paragraph. The amount paid or payable by
an Indemnified Person as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any legal
or other expenses incurred by such Indemnified Person in connection with
investigating or defending any such action or claim. Notwithstanding
the provisions of this Section 7, in no event shall an Underwriter be
required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant
to this Section 7 are several in proportion to the respective principal
amount of the Securities set forth opposite their names in Schedule I
hereto, and not joint.
The remedies provided for in this Section 7 are not exclusive
and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
The indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the Company set
forth in this Agreement shall remain operative and in full force and
effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter or by or on behalf of the Company, its
officers or directors or any other person controlling the Company and
(iii) acceptance of and payment for any of the Designated Securities.
. Notwithstanding anything herein contained, this Agreement
may be terminated in the absolute discretion of the Representative[s],
by notice given to the Company, if after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall
have been suspended or materially limited on or by, as the case may be,
any of the New York Stock Exchange, the American Stock Exchange, the
National Association of Securities Dealers, Inc., the Chicago Board
Options Exchange, the Chicago Mercantile Exchange or the Chicago Board
of Trade, (ii) trading of any securities of or guaranteed by the Company
shall have been suspended on any exchange or in any over-the-counter
market, (iii) a general moratorium on commercial banking activities in
New York shall have been declared by either Federal or New York State
authorities, or (iv) there shall have occurred any outbreak or
escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the judgment of the Representative[s], is
material and adverse and which, in the judgment of the
Representative[s], makes it impracticable to market the Designated
Securities on the terms and in the manner contemplated in the
Prospectus.
. If, on the Closing Date, any one or more of the
Underwriters shall fail or refuse to purchase Securities which it or
they have agreed to purchase under this Agreement, and the aggregate
principal amount of Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than
one-tenth of the aggregate principal amount of the Securities, the other
Underwriters shall be obligated severally in the proportions that the
principal amount of Securities set forth opposite their respective names
in Schedule I hereto bears to the aggregate principal amount of
Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Representative[s] may
specify, to purchase the Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date;
provided that in no event shall the principal amount of Securities that
any Underwriter has agreed to purchase pursuant to Section 1 be
increased pursuant to this Section 9 by an amount in excess of one-ninth
of such principal amount of Securities without the written consent of
such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Securities and the
aggregate principal amount of Securities with respect to which such
default occurs is more than one-tenth of the aggregate principal amount
of Securities to be purchased, and arrangements satisfactory to you and
the Company for the purchase of such Securities are not made within 36
hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or the Company.
In any such case either you or the Company shall have the right to
postpone the Closing Date, but in no event for longer than seven days,
in order that the required changes, if any, in the Registration
Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph
shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
. If this Agreement shall be terminated by the Underwriters,
or any of them, because of any failure or refusal on the part of the
Company to comply with the terms or to fulfill any of the conditions of
this Agreement, or if for any reason the Company shall be unable to
perform its obligations under this Agreement or any condition of the
Underwriters' obligations cannot be fulfilled, the Company agrees to
reimburse the Underwriters or such Underwriters as have so terminated
this Agreement with respect to themselves, severally, for all out-of-
pocket expenses (including the fees and expenses of their counsel)
reasonably incurred by such Underwriters in connection with this
Agreement or the offering of Securities.
. This Agreement shall inure to the benefit of and be binding
upon the Company, each affiliate of any Underwriter which assists such
Underwriter in the distribution of the Securities, the Underwriters, any
controlling persons referred to herein and their respective successors
and assigns. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any other person, firm or
corporation any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. No
purchaser of Securities from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
. Any action by the Underwriters hereunder may be taken by
you jointly or by the first of the named Representative[s] set forth in
Schedule I hereto alone on behalf of the Underwriters, and any such
action taken by you jointly or by the first of the named
Representative[s] set forth in Schedule I hereto alone shall be binding
upon the Underwriters. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication.
Notices to the Underwriters shall be given at the address set forth in
Schedule II hereto. Notices to the Company shall be given to it at
Millipore Corporation, 80 Ashby Road, Bedford, Massachusetts 01730,
(facsimile:[ ]); Attention:[ ]
. This Agreement may be signed in counterparts, each of which
shall be an original and all of which together shall constitute one and
the same instrument.
. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect
to the conflicts of laws provisions thereof.
Very truly yours,
MILLIPORE CORPORATION,
by
______________________________
Name:
Title:
Accepted: , 1997
J. P. MORGAN SECURITIES INC.
[CO-MANAGER]
Acting severally on behalf of
themselves and the several
Underwriters listed in Schedule II
hereto.
by: J. P. MORGAN SECURITIES INC.
by: ___________________________
Name:
Title:
SCHEDULE I
Representative[s]: J. P. MORGAN SECURITIES INC.
[Co-Manager]
Underwriting Agreement
dated: _________________________________________
Registration Statement
No.: _________________________________________
Title of Securities: _________________________________________
Aggregate principal
amount: $________________________________________
Price to Public : __% of the principal amount of the Securities,
plus accrued interest, if any, from _______, 19__ to the
Closing Date.
Indenture: Indenture dated as of _________ between
the Company and State Street Bank and Trust Company,
N.A., as Trustee.
Maturity: _____________________________________________
Interest Rate: _____________________________________________
Interest Payment Dates: _____________________________________________
Optional Redemption
Provisions: _____________________________________________
Sinking Fund Provisions: _____________________________________________
Other Provisions: _____________________________________________
Closing Date and
Time of Delivery: _____________________________________________
Closing Location: ______________________________________________
Address for Notices
to Underwriters: ______________________________________________
SCHEDULE II
Underwriter Principal
Amount of
Securities
To Be
Purchased
J. P. Morgan Securities Inc. $___________
___
[Co-Manager] $___________
___
Total $
96
97
[NYCORP2:305354.5:4332D-03/05/97 5:53pm]
[NYCORP2:305354.5:4332D-03/05/97 5:53pm]
[Draft--3/5/97] EXHIBIT 4.1
- -----------------------------
- -----------------------------
MILLIPORE CORPORATION
and
STATE STREET BANK AND
TRUST COMPANY
as Trustee
----------
INDENTURE
Dated as of [ ], 1997
----------
Providing for the Issuance of
Debt Securities in Series
-----------------------------
-----------------------------
TABLE OF CONTENTS1
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. Definitions 1
SECTION 102. Compliance Certificates and Opinions 9
SECTION 103. Form of Documents Delivered to Trustee 10
SECTION 104. Acts of Holders 10
SECTION 105. Notices, etc., to Trustee and Company 12
SECTION 106. Notice to Holders; Waiver 12
SECTION 107. Conflict with Trust Indenture Act 13
SECTION 108. Effect of Headings and Table of Contents 13
SECTION 109. Successors and Assigns 13
SECTION 110. Separability Clause 13
SECTION 111. Benefits of Indenture 14
SECTION 112. Governing Law 14
SECTION 113. Legal Holidays 14
SECTION 114. Moneys of Different Currencies To Be Segregated 14
SECTION 115. Payment To Be in Proper Currency 14
SECTION 116. Language of Notices, etc 14
SECTION 117. Changes in Exhibits 15
ARTICLE TWO
Issuance of Securities
SECTION 201. Creation of Securities in Amount Unlimited 15
SECTION 202. Documents Required for Issuance of Each Series of
Securities Other than Medium-Term Debt
Securities 15
ARTICLE THREE
Issuance of Medium-Term Debt Securities
SECTION 301. Documents Required for Issuance of Each Series of
Medium-Term Debt Securities 19
SECTION 302. Form of Medium-Term Debt Securities 23
ARTICLE FOUR
The Securities
SECTION 401. Form and Denomination 24
SECTION 402. Execution, Delivery, Dating and Authentication 24
SECTION 403. Temporary Securities 26
SECTION 404. Registration, Registration of Transfer and Exchange 28
SECTION 405. Mutilated, Destroyed, Lost and Stolen Securities 30
SECTION 406. Payment of Interest; Interest Rights Preserved 31
SECTION 407. Persons Deemed Owners 32
SECTION 408. Cancellation 33
SECTION 409. Computation of Interest 33
SECTION 410. Currency and Manner of Payment in Respect of
Securities 33
SECTION 411. Securities in Global Form 38
SECTION 412. Registered Global Notes 39
ARTICLE FIVE
Satisfaction and Discharge
SECTION 501. Satisfaction and Discharge of Indenture in Respect of
Any Series of Securities 41
SECTION 502. Application of Trust Money 42
SECTION 503. Satisfaction, Discharge and Defeasance of Securities of
Any Series 42
SECTION 504. Reinstatement 43
SECTION 505. Definitions 44
ARTICLE SIX
Remedies
SECTION 601. Events of Default 45
SECTION 602. Acceleration of Maturity; Rescission and Annulment 46
SECTION 603. Collection of Indebtedness and Suits for Enforcement by
Trustee 47
SECTION 604. Trustee May File Proofs of Claim 47
SECTION 605. Trustee May Enforce Claims Without Possession of
Securities 48
SECTION 606. Application of Money Collected 48
SECTION 607. Limitation on Suits 49
SECTION 608. Unconditional Right of Holders To Receive Principal,
Premium and Interest 49
SECTION 609. Restoration of Rights and Remedies 49
SECTION 610. Rights and Remedies Cumulative 49
SECTION 611. Delay or Omission Not Waiver 50
SECTION 612. Control by Holders 50
SECTION 613. Waiver of Past Defaults 50
SECTION 614. Undertaking for Costs 50
SECTION 615. Waiver of Stay or Extension Laws 51
ARTICLE SEVEN
The Trustee
SECTION 701. Certain Duties and Responsibilities 51
SECTION 702. Notice of Defaults 51
SECTION 703. Certain Rights of Trustee 52
SECTION 704. Not Responsible for Recitals or Issuance of Securities 52
SECTION 705. May Hold Securities 53
SECTION 706. Money Held in Trust 53
SECTION 707. Compensation and Reimbursement 53
SECTION 708. Disqualification; Conflicting Interests 53
SECTION 709. Corporate Trustee Required; Eligibility 54
SECTION 710. Resignation and Removal; Appointment of Successor 54
SECTION 711. Acceptance of Appointment by Successor 55
SECTION 712. Merger, Conversion, Consolidation or Succession to
Business 56
SECTION 713. Preferential Collection of Claims Against Company 57
SECTION 714. Judgment Currency 57
SECTION 715. Appointment of Authenticating Agent 58
ARTICLE EIGHT
Holders' Lists and Reports by Trustee and Company
SECTION 801. Company To Furnish Trustee Names and Addresses of
Holders 59
SECTION 802. Preservation of Information; Communications to
Holders 60
SECTION 803. Reports by Trustee 60
SECTION 804. Reports by Company 60
ARTICLE NINE
Consolidation, Merger, Conveyance or Transfer
SECTION 901. Company May Consolidate, etc., Only on
Certain Terms 61
SECTION 902. Successor Corporation Substituted 61
ARTICLE TEN
Supplemental Indentures
SECTION 1001. Supplemental Indentures Without Consent of Holders 61
SECTION 1002. Supplemental Indentures with Consent of Holders 62
SECTION 1003. Execution of Supplemental Indentures 64
SECTION 1004. Effect of Supplemental Indentures 64
SECTION 1005. Conformity with Trust Indenture Act 64
SECTION 1006. Reference in Securities to Supplemental Indentures 64
ARTICLE ELEVEN
Covenants
SECTION 1101. Payment of Principal, Premium and Interest 64
SECTION 1102. Maintenance of Office or Agency 64
SECTION 1103. Money for Securities Payments To Be Held in Trust 66
SECTION 1104. Restrictions on Secured Debt 67
SECTION 1105. Restrictions on Sales and Leasebacks 68
SECTION 1106. Statement by Officers as to Default 69
SECTION 1107. Waiver of Certain Covenants 70
SECTION 1108. Additional Amounts 70
ARTICLE TWELVE
Redemption of Securities
SECTION 1201. Applicability of Article 71
SECTION 1202. Election To Redeem; Notice to Trustee 71
SECTION 1203. Selection by Trustee of Securities To Be Redeemed 71
SECTION 1204. Notice of Redemption 71
SECTION 1205. Deposit of Redemption Price 72
SECTION 1206. Securities Payable on Redemption Date 72
SECTION 1207. Securities Redeemed in Part 73
ARTICLE THIRTEEN
Sinking Funds
SECTION 1301. Applicability of Article 73
SECTION 1302. Satisfaction of Sinking Fund Payments with Securities 74
SECTION 1303. Redemption of Securities for Sinking Fund 74
ARTICLE FOURTEEN
Meetings of Holders of Securities
SECTION 1401. Purposes for Which Meetings May Be Called 74
SECTION 1402. Call, Notice and Place of Meetings 74
SECTION 1403. Persons Entitled To Vote at Meetings 75
SECTION 1404. Quorum; Action 75
SECTION 1405. Determination of Voting Rights; Conduct and
Adjournment of Meetings 76
SECTION 1406. Counting Votes and Recording Action of Meetings 76
EXHIBIT A Forms of Debt Securities
EXHIBIT B.1 Form of Certificate to be given by Euro-clear and CEDEL S.A.
in connection with the Exchange of a portion of Temporary
Global Security
EXHIBIT B.2 Form of Certificate to be given by Person entitled to receive
Bearer Security
INDENTURE dated as of [ ], 1997, between MILLIPORE
CORPORATION, a corporation duly organized and existing under the
laws of the Commonwealth of Massachusetts (herein called the
"Company"), having its principal office at 80 Ashby Road, Bedford,
Massachusetts 01730, and STATE STREET BANK AND TRUST COMPANY, a
trust company duly organized and existing under the laws of the
Commonwealth of Massachusetts, as Trustee (herein called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture
provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal
and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted in the United
States of America at the date of such computation; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally within an Article of this Indenture, may be
defined in that Article.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Debt" means, as to any particular lease under which any
Person is at the time liable and 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 primary term thereof, discounted
from the respective due dates thereof to such date at the weighted average
Yield to Maturity of the Securities outstanding hereunder, such average being
weighted by the principal amount of the Securities or, in the case of
Original Issue Discount Securities, the amount that would become due
hereunder in the event such Securities were declared due and payable on the
date of the determination. 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 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" means any Person authorized by the Trustee pursuant
to Section 715 to act on behalf of the Trustee to authenticate Securities of
one or more series.
"Authorized Newspaper" means a newspaper of general circulation in the
place of publication, printed in the official language of the country of
publication and customarily published on each Business Day, whether or not
published on Saturdays, Sundays or holidays. Whenever successive weekly
publications in an Authorized Newspaper are authorized or required hereunder,
they may be made (unless otherwise expressly provided herein) on the same or
different days of the week and in the same or different Authorized
Newspapers.
"Bearer Security" means any Security which is not registered in the
Security Register as to both principal and interest (including without
limitation any Security in temporary or definitive global bearer form).
"Board of Directors" means either the board of directors of the Company,
any officer of the Company duly authorized to act in the name of or on behalf
of that board or any committee consisting of one or more persons, who need
not be directors, duly authorized to act in the name of or on behalf of that
board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the
Board of Directors (as here in above defined) and to be in full force and
effect on the date of such certification.
"Business Day", when used with respect to any Place of Payment or place of
publication, means each day on which commercial banks and foreign exchange
markets settle payments in such Place of Payment or place of publication, or
as otherwise specified for a series of Securities pursuant to Section 202 or
Section 301, as the case may be. Unless otherwise specified for a series of
Securities pursuant to Section 202 or Section 301, as the case may be, when
used with respect to Securities bearing interest at a rate or rates
determined by reference to London interbank offered rates for deposits in
U.S. Dollars, "Business Day" shall exclude any day on which commercial banks
and foreign exchange markets do not settle payments in London.
"Capital Stock", as applied to the stock of any corporation, means the
capital stock of every class whether now or hereafter authorized, regardless
of whether such capital stock shall be limited to a fixed sum or percentage
with respect to the rights of the holders thereof to participate in dividends
and in the distribution of assets upon the voluntary or involuntary
liquidation, dissolution or winding up of such corporation.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or, if
at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Common Depository" has the meaning specified in Section 403.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor corporation shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter "Company"
shall mean such successor corporation.
"Company Request", "Request of the Company", "Company Order" or "Order of
the Company" means a written request or order signed in the name of the
Company by its Chairman of the Board, its President or a Vice President, and
by its Chief Financial Officer, Treasurer, its Clerk or an Assistant Clerk,
and delivered to the Trustee.
"Component Currency" has the meaning specified in Section 410(i).
"Consolidated Net Tangible Assets" means total assets (less applicable
reserves and other properly deductible items) after deducting therefrom (a)
all current liabilities and (b)all goodwill, trade names, trademarks,
patents, organization expenses and other like intangibles, all as set forth
on the most recent balance sheet of the Company and its consolidated
Subsidiaries and computed in accordance with generally accepted accounting
principles.
"Conversion Date" has the meaning specified in Section 410(e).
"Conversion Rate" has the meaning specified in Section 714.
"Corporate Trust Office" means the principal office of the Trustee at which
at any particular time its corporate trust business shall be administered,
which office at the date hereof is located at [ ], Attention: [
], except that with respect to the presentation of Securities (or Coupons, if
any, representing an installment of interest) for payment or for registration
of transfer and exchange, such term shall mean the office or the agency of
the Trustee in [New York, New York] at which at any particular time its
corporate agency business shall be conducted.
"corporation" includes corporations, associations, companies and business
trusts.
"Coupon" or "coupon" means any interest coupon appertaining to a Bearer
Security.
"Debt" means indebtedness for money borrowed.
"Defaulted Interest" has the meaning specified in Section 406.
"Discharged" has the meaning specified in Section 505.
"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.
"Dollar Equivalent of the Currency Unit" has the meaning specified in
Section 410(h).
"Dollar Equivalent of the Foreign Currency" has the meaning specified in
Section 410(g).
"ECU" means the European Currency Unit as defined and revised from time to
time by the Council of the European Communities.
"Euro-clear" means the operator of the Euro-clear System.
"European Communities" means the European Economic Community, the European
Coal and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 601.
"Exchange Rate Agent" means the entity appointed by the Company pursuant to
Section 104(g). Unless otherwise specified as contemplated by Section 202 or
Section 301, as the case may be, the Luxembourg Stock Exchange shall act as
Exchange Rate Agent for purposes of Section 410 in the case of each series of
Securities listed on the Luxembourg Stock Exchange.
"Exchange Rate Officers' Certificate" means a telecopy or tested telex or a
certificate setting forth (i)the applicable Official Currency Unit Exchange
Rate and (ii)the Dollar or Foreign Currency or currency unit amounts of
principal, premium, if any, and interest, if any, respectively (on an
aggregate basis and on the basis of a Security having a principal amount of
1,000 units in the relevant currency or currency unit), payable on the basis
of such Official Currency Unit Exchange Rate, sent (in the case of a telecopy
or telex) or executed (in the case of a certificate) by the Chief Financial
Officer or by the Treasurer of the Company and delivered to the Trustee; such
telecopy, tested telex or certificate need not comply with Section 102.
"Finance Subsidiary" means a Subsidiary of the Company engaged primarily in
financing or assisting in financing the acquisition or disposition of
products of the Company or of a Subsidiary of the Company by dealers,
distributors or customers.
"Foreign Currency" means a currency issued by the government of any country
other than the United States of America.
"Foreign Government Securities" has the meaning specified in Section 505.
"Funded Debt" means (a)all indebtedness for money borrowed having a
maturity of more than 12 months from the date as of which the determination
is made or having a maturity of 12 months or less but which is by its terms
renewable or extendible beyond 12 months from such date at the option of the
borrower and (b) rental obligations payable more than 12 months from such
date under leases which are capitalized in accordance with generally accepted
accounting principles (such rental obligations to be included as Funded Debt
at the amount so capitalized and to be included for the purposes of the
definition of Consolidated Net Tangible Assets both as an asset and as Funded
Debt at the amount so capitalized).
"Holder" or "holder" means, with respect to a Registered Security, the
Person in whose name at the time a particular Registered Security is
registered in the Security Register and, with respect to a Bearer Security
and/or a Coupon, the bearer thereof.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 202 or Section 301, as the case may be.
"interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Market Exchange Rate" has the meaning specified in Section 410(i).
"Maturity", when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption, repayment at the option of
the Holder, required repurchase or otherwise.
"Medium-Term Debt Securities" has the meaning specified in Section 301.
"Medium-Term Debt Securities Certificate" shall mean a certificate signed
by the Chairman of the Board, the President, any Vice President, the
Treasurer, the Controller, any Secretary or Assistant Treasurer, Assistant
Controller or Assistant Secretary of the Company, or any other employee of
the Company designated by a Board Resolution as having the authority to
deliver a Medium-Term Debt Securities Certificate hereunder.
"Mortgage" means any mortgage, pledge, lien, encumbrance, charge or
security interest of any kind.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President or any Vice President, and by the Treasurer, the
Controller, the Secretary or any Assistant Treasurer, Assistant Controller or
Assistant Secretary, of the Company, and delivered to the Trustee. Each such
Officers' Certificate shall contain the statements provided in Section 102 if
and to the extent required by the provisions of such Section.
"Official Currency Unit Exchange Rate" means, with respect to any payment
to be made hereunder, the exchange rate between the relevant currency unit
and the currency or currency unit of payment calculated by the Exchange Rate
Agent for the Securities of the relevant series (in the case of ECU, reported
by the Commission of the European Communities and on the date hereof based on
the rates in effect at 2:30 p.m., Brussels time, on the exchange markets of
the Component Currencies of ECU), on the Business Day (in the city in which
such Exchange Rate Agent has its principal office) immediately preceding
delivery of any Exchange Rate Officers' Certificate.
"Opinion of Counsel" means a written opinion of counsel (subject to
customary qualifications and limitations), who may be counsel for or an
employee of the Company. Each Opinion of Counsel shall contain the statements
provided in Section 102 if and to the extent required by the provisions of
such Section.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 602.
"Outstanding" or "outstanding", when used with respect to Securities,
means, as of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered or
deemed delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount and in the required currency or currency unit has
been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in
trust by the Company (if the Company shall act as its own Paying
Agent) for the Holders of such Securities; provided that, if such
Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 405 or in
exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than
any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder or
whether a quorum is present at a meeting of Holders of Outstanding Securities
or the number of votes entitled to be cast by each Holder of a Security in
respect of such Security at any such meeting, (i)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 602, (ii)the
principal amount of a Security denominated in a Foreign Currency or currency
unit shall be the Dollar equivalent obtained by converting the specified
Foreign Currency or currency unit into Dollars at the Market Exchange Rate on
the date of such determination (or, in the case of a Security denominated in
a currency unit for which there is no Market Exchange Rate, the Dollar
equivalent obtained by adding together the results obtained by converting the
Specified Amount of each Component Currency into Dollars at the Market
Exchange Rate for each such Component Currency on the date of such
determination) of the principal amount (or, in the case of an Original Issue
Discount Security, of the amount determined as provided in (i) above) of such
Security, and (iii)Securities owned by the Company or any other obligor upon
the Securities or any Affiliate of the Company or of such other obligor shall
be disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Securities
which the Trustee knows to be so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's
right so to act with respect to such Securities and that the pledgee is not
the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor.
"Paying Agent" means the Trustee or any other Person authorized by the
Company to pay the principal of (and premium, if any) or interest, if any, on
any Securities on behalf of the Company.
"Person" or "person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
estate, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment", when used with respect to the Securities of any series,
means the place or places where the principal of (and premium, if any) and
interest, if any, on the Securities of that series are payable as specified
in accordance with Section 202 or Section 301, as the case may be.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by
such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 405 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Property" means any real estate or any manufacturing or
processing plant or warehouse owned or leased by the Company or any
Restricted Subsidiary of the Company the gross book value (including related
land and improvements thereon and all machinery and equipment included
therein without deduction of any depreciation reserves) of which on the date
as of which the determination is being made exceeds 2% of Consolidated Net
Tangible Assets, other than (a)any property which in the opinion of the Board
of Directors is not of material importance to the total business conducted by
the Company as an entirety or (b)any portion of a particular property which
is found by the Board of Directors not to be of material importance to the
use or operation of such property.
"Realty Subsidiary" means a Subsidiary of the Company engaged primarily in
the development and sale or financing of real property.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price, in the currency or currency unit in which such Security is
payable, at which it is to be redeemed pursuant to this Indenture.
"Registered Global Note" has the meaning specified in Section 412.
"Registered Security" means any Security registered in the Security
Register (including without limitation any Security in temporary or
definitive global registered form).
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Registered Securities of any series means the date specified for that
purpose as contemplated by Section 202 or Section 301, as the case may be,
which date shall be, unless otherwise specified pursuant to Section 202 or
Section 301, as the case may be, the fifteenth day preceding such Interest
Payment Date, whether or not such day shall be a Business Day.
"Required Currency" has the meaning specified in Section 115.
"Responsible Trust Officer", when used with respect to the Trustee, means
any officer in the Corporate Trust Office and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Restricted Subsidiary" means a Subsidiary of the Company which meets
either of the following conditions: (i) such Subsidiary owns a Principal
Property or (ii) the Company's and its other Subsidiaries' proportionate
share of the total assets (after intercompany eliminations) of such
Subsidiary exceeds 10% of the total assets of the Company and its
Subsidiaries consolidated as of the end of the most recently completed fiscal
year, but in any case does not include a Realty Subsidiary or a Finance
Subsidiary.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities (including Medium-Term Debt
Securities) authenticated and delivered under this Indenture and, in the case
of any Bearer Security, shall include where appropriate any Coupons
appertaining thereto.
"Security Register" has the meaning specified in Section 404.
"Security Registrar" means the Person appointed as the initial Security
Registrar in Section 404 or any Person appointed by the Company as a
successor or replacement Security Registrar.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 406.
"Specified Amount" has the meaning specified in Section 410(i).
"Stated Maturity", when used with respect to any Security (or Coupon, if
any, representing an installment of interest) or any installment of principal
thereof or interest thereon, means the date specified in such Security (or
Coupon) as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.
"Subsidiary" of any specified corporation means any corporation at least a
majority of whose outstanding Voting Stock shall at the time be owned,
directly or indirectly, by the specified corporation or by one or more of its
Subsidiaries, or both.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall
mean or include each Person who is then a Trustee hereunder, and if at any
time there is more than one such Person, "Trustee" as used with respect to
the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended by
the Trust Indenture Reform Act of 1990, and as in force at the date as of
which this instrument was executed, except as provided in Section 1005.
"United States" means the United States of America (including the states
and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"U.S. Depositary" means a clearing agency registered under the Securities
Exchange Act of 1934, as amended, or any successor thereto, which shall in
either case be designated by the Company pursuant to Section 202 or Section
301, as the case may be, until a successor U.S. Depositary shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"U.S. Depositary" shall mean or include each Person who is then a U.S.
Depositary hereunder, and if at any time there is more than one such Person,
"U.S. Depositary" as used with respect to the Securities of any series shall
mean the U.S. Depositary with respect to the Securities of that series.
"U.S. Government Obligations" has the meaning specified in Section 505.
"Valuation Date" has the meaning specified in Section 410(e).
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
"Voting Stock", as applied to the stock of any corporation, means stock of
any class or classes (however designated) having by the terms thereof
ordinary voting power to elect a majority of the members of the board of
directors (or other governing body) of such corporation other than stock
having such power only by reason of the happening of a contingency.
"Yield to Maturity" of any Security means the yield to maturity on such
Security, calculated at the time of issuance of such Security, or if
applicable, at the most recent redetermination of interest on such Security
in accordance with accepted financial practice.
SECTION 102. Compliance Certificates and Opinions. Upon any application or
request by the Company to the Trustee to take any action under any provision
of this Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in
this Indenture relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the
case of any such application or request as to which the furnishing of such
documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate
or opinion need be furnished.
Unless expressly otherwise specified with respect to any certificate or
opinion provided for in this Indenture, every certificate or opinion with
respect to compliance with a condition or covenant provided for in this
Indenture (other than annual certificates provided pursuant to Section 1106)
shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture
to be given or taken by Holders of Securities of any series may be embodied
in and evidenced by (i) one or more instruments of substantially similar
tenor signed by such Holders in person or by proxies duly appointed in
writing, (ii) the record of such Holders voting in favor thereof, either in
person or by proxies duly appointed in writing, at any meeting of Holders of
Securities of such series duly called and held in accordance with the
provisions of Article Fourteen, or (iii) a combination of any such record and
one or more instruments of substantially similar tenor signed by such Holders
in person or by proxies duly appointed in writing. Except as herein otherwise
expressly provided, such action shall become effective when such record
and/or instrument or instruments are delivered to the Trustee and, where it
is hereby expressly required, to the Company. Such record or instrument or
instruments (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Holders signing such
instrument or instruments or so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such proxy
shall be sufficient for any purpose of this Indenture and (subject to Section
701) conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section. The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 1406.
(b)The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or
by a certificate of a notary public or other officer authorized by law to
take acknowledgments of deeds, certifying that the individual signing such
instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient
proof of his authority.
(c) The principal amount and serial numbers of Bearer Securities held by
any Person, and the date of holding the same, may be proved by the production
of such Bearer Securities or by a certificate executed by any trust company,
bank, banker or other depository, wherever situated, showing that at the date
therein mentioned such Person had on deposit with such depository, or
exhibited to it, the Bearer Securities therein described; or such facts may
be proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to bc
satisfactory. The Trustee and the Company may assume that such ownership of
any Bearer Security continues until (1)another certificate or affidavit
bearing a later date issued in respect of the same Bearer Security is
produced, (2)such Bearer Security is produced to the Trustee by some other
Person, (3)such Bearer Security is surrendered in exchange for a Registered
Security, or (4)such Bearer Security is no longer Outstanding.
(d) The fact and date of execution of any such instrument or writing
pursuant to clause (c)above, the authority of the Person executing the same
and the principal amount and serial numbers of Bearer Securities held by the
Person so executing such instrument or writing and the date of holding the
same may also be proved in any other manner which the Trustee deems
sufficient; and the Trustee may in any instance require further proof with
respect to any of the matters referred to in this clause.
(e) The principal amount and serial numbers of Registered Securities held
by any Person and the date of holding the same shall be proved by the
Security Register.
(f) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of a Holder shall bind every future Holder of the same Security
and/or Coupon and the Holder of every Security and/or Coupon issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is
made upon such Security and/or Coupon.
(g) Whenever any Act is to be taken hereunder by the Holders of two or
more series of Securities denominated in different currencies (or currency
units), then, for the purpose of determining the principal amount of
Securities held by such Holders, the aggregate principal amount of the
Securities denominated in a Foreign Currency (or any currency unit) shall be
deemed to be that amount determined by the Company or by an authorized
Exchange Rate Agent and evidenced to the Trustee by an Officers' Certificate
as of the date the taking of such Act by the Holders of the requisite
percentage in principal amount of the Securities is evidenced to the Trustee
to be equal to the Dollar equivalent obtained by converting the specified
Foreign Currency or currency unit into Dollars at the Market Exchange Rate on
such date (or, in the case of a Security denominated in a currency unit for
which there is no Market Exchange Rate, the Dollar equivalent obtained by
adding together the results obtained by converting the Specified Amount of
each Component Currency into Dollars at the Market Exchange Rate for each
such Component Currency on such date) of the principal amount (or, in the
case of an Original Issue Discount Security, the principal amount thereof
that would be due and payable as of the declaration of acceleration of the
Maturity thereof pursuant to Section 602) of such Security. An Exchange Rate
Agent may be authorized in advance or from time to time by the Company. Any
such determination by the Company or by any such Exchange Rate Agent shall be
conclusive and binding on all Holders, the Company and the Trustee, and
neither the Company nor any such Exchange Rate Agent shall be liable therefor
in the absence of bad faith.
(h) If the Company shall solicit from the Holders of Registered Securities
any request, demand, authorization, direction, notice, consent, waiver or
other Act, the Company may, at its option, by or pursuant to a Board
Resolution, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do
so. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before or after
such record date, but only the Holders of record at the close of business on
such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Holders on
such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six months after
the record date.
SECTION 105. Notices, etc., to Trustee and Company. Any request, demand,
authorization, direction, notice, consent, waiver or other Act of Holders or
other document provided or permitted by this Indenture to be made upon, given
or furnished to, or filed with,
(1)the Trustee by any Holder or by the Company shall be made,
given, furnished or filed in writing to or with the Trustee at its
Corporate Trust Office and unless otherwise herein expressly
provided, any such document shall be deemed to be sufficiently made,
given, furnished or filed upon its receipt by a Responsible Trust
Officer of the Trustee, or
(2)the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and delivered in person, mailed, first-class
postage prepaid, or sent by overnight courier or, until such time as
the Company shall have notified the Trustee in writing that it shall
no longer accept delivery of notice by telecopy or telex, given by
telecopy or by telex (with answerback received) to the Company
addressed to it at the address of its principal office specified in
the first paragraph of this instrument or at any other address
previously furnished in writing to the Trustee by the Company, or at
its telecopy or telex number from time to time furnished in writing
to the Trustee expressly for purposes of this Indenture, Attention:
Secretary.
SECTION 106. Notice to Holders; Waiver. (a) Where this Indenture provides
for notice to Holders of any event:
(i)if any of the Securities affected by such event are Registered
Securities, such notice shall be sufficiently given (unless otherwise
herein expressly provided or unless otherwise specified in such
Securities) if in writing and delivered in person, mailed, first-
class postage prepaid or sent by overnight courier, to each Holder
affected by such event, at his address as it appears in the Security
Register, within the time prescribed for the giving of such notice,
and
(ii)if any of the Securities affected by such event are Bearer
Securities, such notice shall be sufficiently given (unless otherwise
herein expressly provided or unless otherwise specified in such
Securities) if (A) published once in an Authorized Newspaper in New
York City and London and, if applicable, in Luxembourg or such other
place of publication as may be required pursuant to the rules and
regulations of any securities exchange on which such Securities are
listed, and (B) delivered in person, mailed, first-class postage
prepaid or sent by overnight courier to such Persons whose names were
previously filed with the Trustee, within the time prescribed for the
giving of such notice.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice to Holders of
Registered Securities in the manner specified above, then such notification
as shall be made with the approval of the Trustee shall constitute a
sufficient notification for every purpose hereunder. In case by reason of the
suspension of publication of any Authorized Newspaper or Authorized
Newspapers or by reason of any other cause it shall be impracticable to
publish any notice to Holders of Bearer Securities as provided above, then
such notification to Holders of Bearer Securities as shall be given with the
approval of the Trustee shall constitute sufficient notice to such Holders
for every purpose hereunder.
(b)In any case where notice to a Holder of Registered Securities is given
in any manner specified in paragraph (a) above, such notice shall be
conclusively presumed to have been duly given, whether or not such Holder
receives such notice. In any case where notice to Holders of Registered
Securities is given in any manner specified in paragraph (a) above, neither
the failure to deliver, mail or send such notice, nor any defect in any
notice so mailed or sent, to any particular Holder of a Registered Security
shall affect the sufficiency of such notice with respect to other Holders of
Registered Securities or the sufficiency of any notice to Holders of Bearer
Securities given as provided herein. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided in paragraph (a)
above, nor any defect in any notice so published, shall affect the
sufficiency of any notice to Holders of Registered Securities given as
provided herein.
(c)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 of Securities 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.
SECTION 107. Conflict with Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with the duties imposed by any of Sections 310
to 317, inclusive, of the Trust Indenture Act through operation of Section
318(c) thereof, such imposed duties shall control.
SECTION 108. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
SECTION 109. Successors and Assigns. All covenants and agreements in this
Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 110. Separability Clause. In case any provision in this Indenture
or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture. Nothing in this Indenture or in the
Securities or Coupons, express or implied, shall give to any Person, other
than the parties hereto and their successors hereunder and the Holders, any
benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 112. Governing Law. THIS INDENTURE AND THE SECURITIES AND COUPONS
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK.
SECTION 113. Legal Holidays. Except as otherwise specified as contemplated
by Section 202 or Section 301, as the case may be, in any case where any
Interest Payment Date, Redemption Date, scheduled date of repayment at the
option of the Holder, scheduled date of required repurchase or Stated
Maturity of any Security or Coupon shall not be a Business Day at any Place
of Payment, then (notwithstanding any other provision of this Indenture or of
such Security or Coupon) payment of interest or principal (and premium, if
any) need not be made at such Place of Payment on such date, but may be made
on the next succeeding Business Day at such Place of Payment with the same
force and effect as if made on the Interest Payment Date, Redemption Date,
scheduled date of repayment at the option of the Holder or scheduled date of
required repurchase, or at the Stated Maturity, as the case may be, provided
that no interest shall accrue for the period from and after such Interest
Payment Date, Redemption Date, scheduled date of repayment at the option of
the Holder, scheduled date of required repurchase or Stated Maturity, as the
case may be, to the next succeeding Business Day at such Place of Payment if
such payment is made or duly provided for on such Business Day.
SECTION 114. Moneys of Different Currencies To Be Segregated. The Trustee
shall segregate moneys, funds and accounts held by the Trustee hereunder in
one currency (or currency unit) from any moneys, funds or accounts in any
other currencies (or currency units), notwithstanding any provision herein
which would otherwise permit the Trustee to commingle such amounts.
SECTION 115. Payment To Be in Proper Currency. In the case of any Security
denominated in any particular currency or currency unit (the "Required
Currency"), subject to applicable law and except as otherwise provided
herein, therein or in or pursuant to the related Board Resolution, Medium-
Term Debt Securities Certificate or supplemental indenture, the obligation of
the Company to make any payment of principal, premium or interest thereon
shall not be discharged or satisfied by any tender by the Company, or
recovery by the Trustee, in any currency or currency unit other than the
Required Currency, except to the extent that such tender or recovery shall
result in the Trustee's timely holding the full amount of the Required
Currency then due and payable. If any such tender or recovery is made in
other than the Required Currency, the Trustee may take such actions as it
considers appropriate to exchange such other currency or currency unit for
the Required Currency. The costs and risks of any such exchange, including
without limitation the risks of delay and exchange rate fluctuation, shall be
borne by the Company, the Company shall be liable for any shortfall or
delinquency in the full amount of the Required Currency then due and payable,
and in no circumstances shall the Trustee be liable therefor. The Company
hereby waives any defense of payment based upon any such tender or recovery
which is not in the Required Currency, or which, when exchanged for the
Required Currency by the Trustee, is less than the full amount of the
Required Currency then due and payable
SECTION 116. Language of Notices, etc. Any request, demand, authorization,
direction, notice, consent or waiver required or permitted under this
Indenture shall be in the English language, except that any published notice
may be in an official language of the country of publication.
SECTION 117. Changes in Exhibits. At any time and from time to time, the
Company may substitute a new form, or add new forms, of the Exhibits hereto.
Such substitution shall be effective upon receipt by the Trustee of such new
form of Exhibit and a Board Resolution or Officers' Certificate adopting such
new form of Exhibit, and thereafter all references in this Indenture to such
Exhibit shall be deemed to refer to such new form of Exhibit.
ARTICLE TWO
Issuance of Securities
SECTION 201. Creation of Securities in Amount Unlimited. An unlimited
aggregate principal amount of Securities may be issued pursuant to this
Article Two and, in the case of Medium-Term Debt Securities, pursuant to
Article Three. The Securities (including Medium-Term Debt Securities) may be
authenticated and delivered, as authorized by the Board of Directors, in an
unlimited number of series.
SECTION 202. Documents Required for Issuance of Each Series of Securities
Other than Medium-Term Debt Securities. At any time and from time to time,
Securities of each series created pursuant to the provisions of this Article
Two may be executed by the Company and delivered to the Trustee and shall be
authenticated by the Trustee and delivered to, or upon the order of, the
Company upon receipt by the Trustee of the following:
(a)A Board Resolution or Board Resolutions authorizing the issuance
of the Securities of the series, and specifying, to the extent
applicable, the following terms:
(1)the title of the Securities of the series (which shall
distinguish the Securities of the series from all other
Securities);
(2)any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
(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 403, 404, 405,
1006 or 1207 and except for any Securities which, pursuant to
Section 402, are deemed never to have been authenticated and
delivered hereunder);
(3)the date or dates on which the principal (and premium, if any)
of any of the Securities of the series are payable or the method of
determination thereof;
(4)the rate or rates, or the method of determination thereof, at
which any of the Securities of the series shall bear interest, if
any, the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest shall be payable and
the Regular Record Date for the interest payable on any Registered
Securities on any Interest Payment Date;
(5) the place or places where the principal of (and premium, if
any) and interest, if any, on any of the Securities and Coupons, if
any, of the series shall be payable and the office or agency for
the Securities of the series maintained by the Company pursuant to
Section 1102;
(6)the period or periods within which, the price or prices at
which and the terms and conditions upon which any of the Securities
of the series may be redeemed, in whole or in part, at the option
of the Company;
(7)the terms of any sinking fund and the obligation, if any, of
the Company to redeem, repay or purchase Securities of the series
pursuant to any sinking fund or analogous provisions, upon the
occurrence of certain events or at the option of a Holder thereof
and the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the
series shall be so redeemed, repaid or purchased, in whole or in
part;
(8)the terms of the obligation of the Company, if any, to permit
the conversion of the Securities of the series into stock or other
securities of the Company or of any other corporation;
(9)the terms, if any, for the attachment to Securities of the
series of warrants, options or other rights to purchase or sell
stock or other securities of the Company;
(10)if other than denominations of $1,000 and any integral
multiple thereof, if Registered Securities, and $5,000, if Bearer
Securities, for Securities denominated in Dollars, the
denominations in which the Securities of the series shall be
issuable;
(11)if other than the principal amount thereof, the portion of
the principal amount of any of the Securities of the series which
shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 602;
(12)any non-application of Section 503, and whether and to what
extent any other means of satisfaction and discharge and/or
defeasance shall be applicable to the Securities and Coupons, if
any, of a series;
(13)any deletions or modifications of or additions to the Events
of Default set forth in Section 601 or covenants of the Company set
forth in Article Nine or Eleven pertaining to the Securities of the
series (including without limitation whether the provisions of
Section 1104 or Section 1105 shall not be applicable to the
Securities of the series);
(14)the forms of the Securities and Coupons, if any, of the
series;
(15)if other than Dollars, the currency or currencies, or
currency unit or units, in which the Securities of such series will
be denominated and/or in which payment of the principal of (and
premium, if any) and interest, if any, on any of the Securities of
the series shall be payable and the Exchange Rate Agent, if any,
for such series;
(16)if the principal of (and premium, if any) or interest, if
any, on any of the Securities of the series are to be payable at
the election of the Company or a Holder thereof, or under some or
all other circumstances, in a currency or currencies, or currency
unit or units, 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, or the other
circumstances under which any of the Securities are to be so
payable, including without limitation the application of Section
410(b) and any deletions to, modifications of or additions to the
provisions thereof, and any provision requiring the Holder to bear
currency exchange costs by deduction from such payments;
(17)if the amount of payments of principal of (and premium, if
any) or interest, if any, on any of the Securities of the series
may be determined with reference to an index based on (i) a
currency or currencies or currency unit or units other than that in
which such Securities are stated to be payable or (ii)any other
method, not inconsistent with the provisions of this Indenture,
then in each of cases (i)and (ii)the manner in which such amounts
shall be determined;
(18)whether the Securities of the series are to be issued as
Registered Securities or Bearer Securities (with or without
Coupons), or any combination thereof, whether Bearer Securities may
be exchanged for Registered Securities of the series and the
circumstances under which and the place or places where any such
exchanges, if permitted, may be made; and whether any Securities of
the series are to be issuable initially in temporary global form
and whether any Securities of the series are to be issuable in
definitive global form with or without Coupons and, if so, whether
beneficial owners of interests in any such definitive global
Security may exchange such interests for Securities of such series
and of like tenor of any authorized form and denomination and the
circumstances under which and the place or places where any such
exchanges may occur, if other than in the manner provided in
Section 404 or Section 412;
(19)if the Securities and Coupons, if any, of the series are to
be issued upon the exercise of warrants, the time, manner and place
for such Securities and Coupons, if any, to be authenticated and
delivered;
(20)whether and under what circumstances and with what procedures
and documentation the Company will pay additional amounts on any of
the Securities and Coupons, if any, of the series to any Holder who
is not a U.S. Person (including a definition of such term), in
respect of any tax, assessment or governmental charge withheld or
deducted and, if so, whether the Company will have the option to
redeem such Securities rather than pay additional amounts (and the
terms of any such option);
(21)the Person to whom any interest on any Registered Security of
the series shall be payable, if other than the Person in whose name
that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such
interest, the manner in which, or the Person to whom, any interest
on any Bearer Security of the series shall be payable, if otherwise
than upon presentation and surrender of the Coupons appertaining
thereto as they severally mature and the extent to which, or the
manner in which, any interest payable on a temporary global
Security on an Interest Payment Date will be paid if other than in
the manner provided in Section 403;
(22)whether the Securities of the series shall be issued in whole
or in part in the form of one or more global Securities and, in
such case, the U.S. Depositary or any Common Depositary for, and
any other provisions relating to, such global Security or global
Securities; and if the Securities of the series are issuable only
as Registered Securities, (A)the manner in which and the
circumstances under which Registered Global Notes representing
Securities of the series may be exchanged for Registered Securities
in definitive form, if other than, or in addition to, the manner
and circumstances specified in Section 412, and (B)any other
provisions that may be necessary or desirable to effect compliance
with the rules, regulations, practices and policies of the U.S.
Depositary from time to time in effect, which provisions may or may
not be consistent with Section 412; and
(23)any other terms of any of the Securities of the series (which
terms shall not be inconsistent with the provisions of this
Indenture).
If any of the terms of the series are established by action taken
pursuant to a Board Resolution or Board Resolutions, an Officers'
Certificate certifying as to such action also shall be delivered to
the Trustee.
(b)In case the Securities of the series to be authenticated and
delivered are to be created pursuant to one or more supplemental
indentures, such supplemental indenture or indentures, accompanied by
a Board Resolution or Board Resolutions authorizing such supplemental
indenture or indentures and designating the new series to be created
and prescribing pursuant to paragraph (a)above, consistent with the
applicable provisions of this Indenture, the terms and provisions
relating to the Securities of the series.
(c) Either (i)a certificate or other official document evidencing
the due authorization, approval or consent of any governmental body
or bodies, at the time having jurisdiction in the premises, together
with an Opinion of Counsel that the Trustee is entitled to rely
thereon and that the authorization, approval or consent of no other
governmental body is required, or (ii)an Opinion of Counsel that no
authorization, approval or consent of any governmental body is
required.
(d)An Opinion of Counsel that all instruments furnished the Trustee
conform to the requirements of this Indenture and constitute
sufficient authority hereunder for the Trustee to authenticate and
deliver the Securities and to deliver the Coupons, if any, of the
series; that all conditions precedent provided for in this Indenture
relating to the authentication and delivery of the Securities and
delivery of the Coupons, if any, of the series have been complied
with and the Company is duly entitled to the authentication and
delivery of the Securities and Coupons, if any, of the series in
accordance with the provisions of this Indenture; that all laws and
requirements with respect to the form and execution by the Company of
the supplemental indenture, if any, and the execution and delivery by
the Company of the Securities and Coupons, if any, of the series have
been complied with; that the Company has corporate power to execute
and deliver the supplemental indenture, if any, and to issue the
Securities and Coupons, if any, of the series and has duly taken all
necessary corporate action for those purposes; and that the
supplemental indenture, if any, as executed and delivered and the
Securities and Coupons, if any, of the series, when issued, will be
the legal, valid and binding obligations of the Company enforceable
against the Company in accordance with their terms (subject to
applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other laws affecting creditors' rights
generally from time to time in effect, the enforceability of the
Company's obligations also being subject to general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law)); that the Securities and Coupons, if
any, of the series, when issued, will be entitled to the benefits of
this Indenture, equally and ratably with all other Securities and
Coupons, if any, of such series theretofore issued and then
outstanding hereunder; and that the amount of Securities then
outstanding under this Indenture, including the Securities of the
series, will not exceed the amount at the time permitted by law or
this Indenture.
(e)An Officers' Certificate stating that the Company is not in
default under this Indenture and that the issuance of the Securities
and Coupons, if any, of the series will not result in any breach of
any of the terms, conditions or provisions of, or constitute a
default under, the Company's certificate of incorporation or by-laws
or any indenture, mortgage, deed of trust or other agreement or
instrument to which the Company is a party or by which it is bound,
or any order of any court or administrative agency entered in any
proceeding to which the Company is a party or by which it may be
bound or to which it may be subject; and that all conditions
precedent provided in this Indenture relating to the authentication
and delivery of the Securities and Coupons, if any, of the series
have been complied with.
(f)Such other documents as the Trustee may reasonably require.
ARTICLE THREE
Issuance of Medium-Term Debt Securities
SECTION 301. Documents Required for Issuance of Each Series of Medium-Term
Debt Securities. At any time, and from time to time, Securities (sometimes
referred to herein as "Medium-Term Debt Securities") of each series created
pursuant to the provisions of this Article Three may be executed by the
Company and delivered to the Trustee and shall be authenticated by the
Trustee and delivered to, or upon the order of, the Company upon receipt by
the Trustee of the following:
(a)A Board Resolution or Board Resolutions authorizing the issuance
of Medium-Term Debt Securities up to a specified aggregate principal
amount or having a maximum aggregate offering price, in such series
and subject to such terms as shall be established by officers of the
Company authorized by such resolutions to establish such series and
terms.
(b)A Medium-Term Debt Securities Certificate requesting the Trustee
to authenticate and deliver Medium-Term Debt Securities of a series
as contemplated by Section 402, and specifying, to the extent
applicable, the following terms with respect to the Medium-Term Debt
Securities of the particular series, or specifying, to the extent
applicable, the method of determining any such terms with respect to
any such Medium-Term Debt Securities, authorized pursuant to the
Board Resolution or Board Resolutions referred to in paragraph (a)
above:
(1)the title of the Medium-Term Debt Securities of the series
(which shall distinguish the Medium-Term Debt Securities of the
series from all other Securities);
(2)the dates of the Medium-Term Debt Securities of the series;
(3)any limit upon the aggregate principal amount of the Medium-
Term Debt Securities of the series which may be authenticated and
delivered (except for Medium-Term Debt Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or
in lieu of, other Medium-Term Debt Securities of the series
pursuant to Section 403, 404, 405, 1006 or 1207 and except for any
Medium-Term Debt Securities which, pursuant to Section 402, are
deemed never to have been authenticated and delivered hereunder);
(4)the date or dates on which the principal (and premium, if any)
of any of the Medium-Term Debt Securities of the series are
payable;
(5)the rate or rates at which any of the Medium-Term Debt
Securities of the series shall bear interest, if any, the date or
dates from which such interest shall accrue, the Interest Payment
Dates on which such interest shall be payable and the Regular
Record Date for the interest payable on any Medium-Term Debt
Securities of the series that are Registered Securities on any
Interest Payment Date;
(6)the place or places where the principal of (and premium, if
any) and interest, if any, on any of the Medium-Term Debt
Securities and Coupons, if any, of the series shall be payable and
the office or agency for the Medium-Term Debt Securities of the
series maintained by the Company pursuant to Section 1102;
(7)the period or periods within which, the price or prices at
which and the terms and conditions upon which any of the Medium-
Term Debt Securities of the series may be redeemed, in whole or in
part, at the option of the Company;
(8)the terms of any sinking fund and the obligation, if any, of
the Company to redeem, repay or purchase Medium-Term Debt
Securities of the series pursuant to any sinking fund or analogous
provisions, upon the occurrence of certain events or at the option
of a Holder thereof and the period or periods within which, the
price or prices at which and the terms and conditions upon which
Medium-Term Debt Securities of the series shall be so redeemed,
repaid or purchased, in whole or in part;
(9)the terms of the obligation of the Company, if any, to permit
the conversion of the Medium-Term Debt Securities of the series
into stock or other securities of the Company or of any other
corporation;
(10)the terms, if any, for the attachment to Medium-Term Debt
Securities of the series of warrants, options or other rights to
purchase or sell stock or other securities of the Company;
(11)if other than denominations of $1,000 and any integral
multiple thereof, if Registered Securities, and $5,000 if Bearer
Securities, for Medium-Term Debt Securities denominated in Dollars,
the denominations in which the Medium-Term Debt Securities of the
series shall be issuable;
(12)if other than the principal amount thereof, the portion of
the principal amount of any of the Medium-Term Debt Securities of
the series which shall be payable upon declaration of acceleration
of the Maturity thereof pursuant to Section 602;
(13)any non-application of Section 503, and whether and to what
extent any other means of satisfaction and discharge and/or
defeasance shall be applicable to the Medium-Term Debt Securities
and Coupons, if any, of the series;
(14)any deletions or modifications of or additions to the Events
of Default set forth in Section 601 or covenants of the Company set
forth in Article Nine or Eleven pertaining to the Medium-Term Debt
Securities of the series (including without limitation whether the
provisions of Section 1104 or Section 1105 shall not be applicable
to the Medium-Term Debt Securities of the series);
(15)if other than Dollars, the currency or currencies, or
currency unit or units, in which any of the Medium-Term Debt
Securities of the series will be denominated and/or in which
payment of the principal of (and premium, if any) and interest, if
any, on any of the Medium-Term Debt Securities of the series shall
be payable and the Exchange Rate Agent, if any, for such series;
(16)if the principal of (and premium, if any) or interest, if
any, on any of the Medium-Term Debt Securities of the series are to
be payable at the election of the Company or Holder thereof, or
under some or all other circumstances, in a currency or currencies,
or currency unit or units, other than that in which the Medium-Term
Debt Securities are stated to be payable, the period or periods
within which, and the terms and conditions upon which, such
election may be made, or the other circumstances under which any of
the Medium-Term Debt Securities are to be so payable, including
without limitation the application of Section 410(b) and any
deletions to, modification of or additions to the provisions
thereof, and any provision requiring the Holder to bear currency
exchange costs by deduction from such payments;
(17)if the amount of payments of principal of (and premium, if
any) or interest, if any, on any of the Medium-Term Debt Securities
of the series may be determined with reference to an index based on
(i) a currency or currencies or currency unit or units other than
that in which such Medium-Term Debt Securities are stated to be
payable or (ii) any other method, not inconsistent with the
provisions of this Indenture, then in each of cases (i) and (ii)
the manner in which such amounts shall be determined;
(18)whether the Medium-Term Debt Securities of the series are to
be issued as Registered Securities or Bearer Securities (with or
without Coupons), or any combination thereof, whether Bearer
Securities may be exchanged for Registered Securities of the series
and the circumstances under which and the place or places where any
such exchanges, if permitted, may be made; and whether any of the
Medium-Term Debt Securities of the series are to be issuable
initially in temporary global form and whether any of the Medium-
Term Debt Securities of the series are to be issuable in definitive
global form with or without Coupons and, if so, whether beneficial
owners of interests in any such definitive global Medium-Term Debt
Security may exchange such interests for any of the Medium-Term
Debt Securities of such series and of like tenor of any authorized
form and denomination and the circumstances under which and the
place or places where any such exchange may occur, if other than in
the manner provided in Section 404 or Section 412;
(19)if any of the Medium-Term Debt Securities and Coupons, if
any, of the series are to be issued upon the exercise of warrants,
the time, manner and place for such Medium-Term Debt Securities and
Coupons, if any, of the series to be authenticated and delivered;
(20)whether and under what circumstances and with what procedures
and documentation the Company will pay additional amounts on any of
the Medium-Term Debt Securities of the series to any Holder who is
not a U.S. Person (including a definition of such term), in respect
of any tax, assessment or governmental charge withheld or deducted
and, if so, whether the Company will have the option to redeem such
Medium-Term Debt Securities rather than pay additional amounts (and
the terms of any such option);
(21)the Person to whom any interest on any Medium-Term Debt
Security of the series shall be payable, if other than the Person
in whose name that Medium-Term Debt Security (or one or more
Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest, the manner in which, or
the Person to whom, any interest on any Bearer Security of the
series shall be payable, if otherwise than upon presentation and
surrender of the Coupons appertaining thereto as they severally
mature and the extent to which, or the manner in which, any
interest payable on a temporary global Medium-Term Debt Security on
an Interest Payment Date will be paid if other than in the manner
provided in Section 403;
(22)if other than the forms set forth in Exhibit A hereto, the
forms of the Medium-Term Debt Securities and Coupons, if any, of
the series;
(23)whether the Medium-Term Debt Securities of the series shall
be issued in whole or in part in the form of one or more global
Securities and, in such case, the U.S. Depositary or any Common
Depositary for, and any other provisions relating to, such global
Security or global Securities; and if the Medium-Term Debt
Securities of the series are issuable only as Registered
Securities, (A)the manner in which and the circumstances under
which Registered Global Notes representing Medium-Term Debt
Securities of the series may be exchanged for Registered Securities
in definitive form, if other than, or in addition to, the manner
and circumstances specified in Section 412, and (B)any other
provisions that may be necessary or desirable to effect compliance
with the rules, regulations, practices and policies of the U.S.
Depositary from time to time in effect, which provisions may or may
not be consistent with Section 412; and
(24)any other terms of any of the Medium-Term Debt Securities of
the series (which terms shall not be inconsistent with the
provisions of this Indenture).
Unless the Company shall be required to deliver an Officers'
Certificate pursuant to paragraph(d) below in connection with the
authentication of the Medium-Term Debt Securities of the series, the
delivery of such Medium-Term Debt Securities Certificate to the
Trustee shall be deemed to be a certification by the Company that all
matters certified in the most recent Officers' Certificate delivered
to the Trustee pursuant to paragraph (d) below continue to be true
and correct, as if such Officers' Certificate related to the Medium-
Term Debt Securities covered by such Medium-Term Debt Securities
Certificate, on and as of the date of such Medium-Term Debt
Securities Certificate. The delivery of such Medium-Term Debt
Securities Certificate also shall be deemed to be a certification
that the Board Resolution or Board Resolutions referred to in
paragraph (a) above are in full force and effect on and as of the
date of such Medium-Term Debt Securities Certificate and that the
terms and form or forms of the Medium-Term Debt Securities and
Coupons, if any, of the series have been established by an officer or
officers of the Company authorized by such Board Resolution or Board
Resolutions in accordance with the provisions thereof and hereof.
(c) If (i) the Company shall not have previously delivered to the
Trustee an Opinion of Counsel to the effect set forth in this
paragraph (c) with respect to the Medium-Term Debt Securities
authorized pursuant to the Board Resolution or Board Resolutions
referred to in paragraph (a) above or (ii) if the Medium-Term Debt
Securities Certificate referred to in paragraph (b) above specifies a
means of satisfaction and discharge other than the application of
Section 503 with respect to the series of Medium-Term Debt Securities
to which such Medium-Term Debt Securities Certificate relates, either
(A) an Opinion of Counsel that the Medium-Term Debt Securities have
been duly authorized by resolutions of the Board of Directors of the
Company, subject to the establishment of certain terms of the Medium-
Term Debt Securities and Coupons, if any, of the series by officers
of the Company authorized by such resolutions to establish such
terms, that when the terms of the Medium-Term Debt Securities and
Coupons, if any, of the series have been established as provided in
such resolutions, in this Indenture and in the applicable Medium-Term
Debt Securities Certificate and the Medium-Term Debt Securities and
Coupons, if any, of the series have been executed, authenticated and
delivered in accordance with the provisions of this Indenture, the
Medium-Term Debt Securities and Coupons, if any, of the series,
assuming they do not violate any applicable law then binding on the
Company, will constitute legal, valid and binding obligations of the
Company entitled to the benefits of this Indenture, equally and
ratably with all other Securities and Coupons, if any, of such series
theretofore issued and then outstanding hereunder, and that the
amount of Securities then outstanding under this Indenture, including
the Medium-Term Debt Securities of the series, will not exceed the
amount at the time permitted by law or this Indenture, or (B) such
other Opinion of Counsel as is satisfactory to the Trustee in form
and substance.
(d)If the Company shall not have delivered an Officers' Certificate
pursuant to the provisions of this paragraph (d)to the Trustee during
the immediately preceding 12-month period, an Officers' Certificate
stating that the Company is not in default under this Indenture, that
the issuance of the Medium-Term Debt Securities and Coupons, if any,
of the series will not result in any breach or violation of any of
the terms, conditions or provisions of, or constitute a default
under, the Company's certificate of incorporation or By-laws or any
order of any court or other governmental body entered in any
proceeding to which the Company is a party or by which it may be
bound or to which it may be subject, that all laws, rules and
regulations and any requirements of any court or other governmental
body with respect to the execution and delivery by the Company of the
Medium-Term Debt Securities and Coupons, if any, of the series have
been complied with and that, upon the delivery of an Officer's
Certificate pursuant to Section 301(e) with respect to any issue of
Medium-Term Debt Securities of a series, all conditions precedent
provided in this Indenture relating to the authentication and
delivery of such issue of the Medium-Term Debt Securities and
Coupons, if any, of the series will have been complied with.
(e)With respect to each issue of Medium-Term Debt Securities and
Coupons, if any, of a series, an Officer's Certificate stating that
the issuance of such issue of Medium-Term Debt Securities and
Coupons, if any, of such series will not result in the breach of any
of the terms, conditions or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust or other agreement or
instrument to which the Company is a party or by which it is bound.
(f) Such other documents as the Trustee shall reasonably request.
SECTION 302. Form of Medium-Term Debt Securities. The Medium-Term Debt
Securities and Coupons, if any, of each series shall be in such forms as
shall be specified as contemplated by Section 301. In the absence of any such
provisions with respect to the Medium-Term Debt Securities of any series, the
Medium-Term Debt Securities and Coupons, if any, of such series shall be
substantially in the applicable form set forth in Exhibit A hereto, except
with such additions, changes and deletions thereto as may be required to
reflect the different provisions thereof as shall be specified as provided in
Section 301.
ARTICLE FOUR
The Securities
SECTION 401. Form and Denomination. All Securities of any one series and
the Coupons appertaining to any Bearer Securities of such series shall be
substantially identical except, in the case of Registered Securities, as to
denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to in Section 202 or Section 301, as the case may
be, and (subject to Section 402) set forth in the Officers' Certificate or
Medium-Term Debt Securities Certificate referred to in Section 202 or Section
301, as the case may be, or in any indenture supplemental hereto.
The Securities of each series shall be issuable in such denominations as
shall be specified as contemplated by Section 202 or Section 301, as the case
may be. In the absence of any such provisions with respect to the Securities
of any series, the Securities of such series denominated in Dollars shall be
issuable in denominations of $l,000 and any integral multiple thereof, if
registered, and in denominations of $5,000 if bearer. 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 Company executing the
same may determine with the approval of the Trustee. Each Security shall bear
the appropriate legends, if any, as required by U.S. Federal tax law and
regulations.
SECTION 402. Execution, Delivery, Dating and Authentication. The Securities
shall be executed on behalf of the Company by the manual or facsimile
signature of its Chairman, its President, any of its Vice Presidents, its
Treasurer, any Assistant Treasurer, its Secretary or any Assistant Secretary.
Any Coupons shall be executed on behalf of the Company by the manual or
facsimile signature of any such officer of the Company. In case any of the
above referenced officers of the Company who shall have signed any of the
Securities or Coupons shall cease to be such officer before the Securities so
signed shall have been authenticated and delivered by the Trustee or disposed
of by the Company, such Securities nevertheless may be authenticated and
delivered or disposed of as though the person who signed such Securities
and/or Coupons had not ceased to be such officer; and any Securities or
Coupons may be signed on behalf of the Company by such persons as, at the
actual date of the execution of such Security or Coupon, shall be such
officers of the Company, although at the date of the execution of this
Indenture any such person was not such officer.
At any time and from time to time, the Company may deliver Securities of
any series, together with any Coupons appertaining thereto, executed by the
Company to the Trustee for authentication, together (except in the case of
any Medium-Term Debt Securities) with a Company Order for the authentication
and delivery of such Securities, and the Trustee in accordance with the
Company Order (or, in the case of Medium-Term Debt Securities of any series,
upon receipt of a Medium-Term Debt Securities Certificate and in accordance
with the terms thereof) shall authenticate and make available for delivery
such Securities; provided, however, that, unless otherwise specified in the
Board Resolution (or, in the case of any Bearer Securities that are Medium-
Term Debt Securities in the Medium-Term Debt Securities Certificate) with
respect to an Bearer Securities, in connection with its original issuance, no
Bearer Security (including any temporary Bearer Security issued pursuant to
Section 403 which is not in global form) shall be mailed or otherwise
delivered to any location in the United States; and provided further that,
unless otherwise specified in the Board Resolution (or, in the case of any
Bearer Securities that are Medium-Term Debt Securities, in the Medium-Term
Debt Securities Certificate) with respect to such Bearer Securities, such
Bearer Security may be delivered in connection with its original issuance
only if the Person entitled to receive such Bearer Security (including any
temporary Bearer Security issued pursuant to Section 403 which is not in
global form) shall have furnished to the Company or any agent, underwriter or
selling group member a certificate substantially in the form set forth in
Exhibit B.2 to this Indenture, dated no earlier than 15 days prior to the
earlier of the date on which such Bearer Security is delivered and the date
on which any temporary Security first becomes exchangeable for such Bearer
Security in accordance with the terms of such temporary Security and this
Indenture. If any Security shall be represented by a definitive global Bearer
Security, then, for purposes of this Section and Section 403, the notation of
a beneficial owner's interest therein upon original issuance of such Security
or upon exchange of a portion of a temporary global Security shall be deemed
to be delivery in connection with its original issuance of such beneficial
owner's interest in such definitive global Bearer Security. Except as
permitted by Section 405, the Trustee shall not authenticate and make
available for delivery any Bearer Security unless all appurtenant Coupons for
interest then matured have been detached and canceled.
The Trustee shall not be required to authenticate Securities of any series
if the issue of such Securities pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee, or if the Trustee determines that such action may not lawfully be
taken.
Unless otherwise specified pursuant to Section 301(b)(2), each Registered
Security shall be dated the date of its authentication, and each Bearer
Security and any Bearer Security in global form shall be dated as of the date
of original issuance of the first Security of such series to be issued.
No Security or Coupon shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided
for below executed by the Trustee by manual signature, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that
such Security has been duly authenticated and delivered hereunder.
Notwithstanding the foregoing, if any Security shall have been duly
authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancelation as provided in Section 408 together with a written statement
(which need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel) stating that such Security has never been issued and sold
by the Company, for all purposes of this Indenture such Security shall be
deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
The Trustee's certificate of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated herein issued under
the within-mentioned Indenture.
STATE STREET BANK AND TRUST
COMPANY,
as Trustee
By
Authorized Signatory
SECTION 403. Temporary Securities. Pending the preparation of
definitive Securities of any series, the Company may execute, and
upon Company Order (or, in the case of Medium-Term Debt Securities,
receipt of the Medium-Term Debt Securities Certificate with respect
to such Medium-Term Debt Securities) the Trustee shall authenticate
and make available for delivery, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are
issued, in registered form or, if authorized, in bearer form with
one or more Coupons or without Coupons, and with such appropriate
insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as evidenced
conclusively by their execution of such Securities. Such temporary
Securities may be in global form.
Except in the case of temporary Securities in global form (which
shall be exchanged in accordance with the provisions of the
following paragraphs), if temporary Securities of any series are
issued, the Company will cause definitive Securities of that series
to be prepared without unreasonable delay. After the preparation of
definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such
series upon surrender of the temporary Securities of such series at
the office or agency of the Company maintained pursuant to Section
1102 in a Place of Payment for such series for the purpose of
exchanges of Securities of such series, without charge to the
Holder. Upon surrender for cancelation of any one or more temporary
Securities of any series (accompanied by any unmatured Coupons) the
Company shall execute and the Trustee shall authenticate and make
available for delivery in exchange therefor a like aggregate
principal amount of definitive Securities of the same series and of
like tenor and of authorized denominations; provided, however, that
a definitive Bearer Security shall be delivered in exchange for a
temporary Bearer Security only in compliance with the conditions
set forth in Section 402.
If temporary Bearer Securities of any series are issued in global
form, such temporary global Bearer Securities shall, unless
otherwise specified as contemplated by Section 202 or Section 301,
as the case may be, be delivered to the London office of a
depository or common depository (the "Common Depositary"), for the
benefit of Euro-clear and CEDEL S.A., for credit to the respective
accounts of the beneficial owners of interests in such Securities
(or to such other accounts as they may direct).
Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such
temporary global Security (which shall (subject to any applicable
laws and regulations) be at least 40 days after the issue date of
such temporary global Security (the "Exchange Date"), the Company
shall deliver to the Trustee definitive Securities, in aggregate
principal amount equal to the principal amount of such temporary
global Security, executed by the Company. On or after the Exchange
Date such temporary global Security shall be surrendered by the
Common Depositary to the Trustee, as the Company's agent for such
purpose, to be exchanged, in whole or from time to time in part,
for definitive Securities without charge and the Trustee shall
authenticate and make available for delivery, in exchange for each
portion of such temporary global Security, an equal aggregate
principal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such
temporary global Security to be exchanged. The definitive
Securities to be delivered in exchange for any such temporary
global Security shall be in bearer form, registered form,
definitive global form or any combination thereof, as specified as
contemplated by Section 202 or Section 301, as the case may be,
and, if any combination thereof is so specified, as requested by
the beneficial owner thereof; provided, however, that, unless
otherwise specified as contemplated by Section 202 or Section 301,
as the case may be, upon such presentation by the Common
Depositary, such temporary global Security shall be accompanied by
a certificate dated the Exchange Date or a subsequent date and
signed by Euro-clear as to the portion of such temporary global
Security held for its account then to be exchanged and a
certificate dated the Exchange Date or a subsequent date and signed
by CEDEL S.A. as to the portion of such temporary global Security
held for its account then to be exchanged, each in the form set
forth in Exhibit B.1 to this Indenture; provided further that
definitive Bearer Securities (including a definitive global Bearer
Security) shall be delivered in exchange for a portion of a
temporary global Security only in compliance with the requirements
of Section 402.
Unless otherwise specified as contemplated by Section 202 or
Section 301, as the case may be, the interest of a beneficial owner
of Securities of a series in a temporary global Bearer Security
shall be exchanged for definitive Bearer Securities of the same
series and of like tenor following the Exchange Date when the
beneficial owner instructs Euro-clear or CEDEL S.A., as the case
may be, to request such exchange on his behalf and delivers to Euro-
clear or CEDEL S.A., as the case may be, a certificate
substantially in the form set forth in Exhibit B.2 to this
Indenture, dated no earlier than 15 days prior to the Exchange
Date, copies of which certificate shall be available from the
offices of Euro-clear, CEDEL S.A., the Trustee, any Authenticating
Agent appointed for such series of Securities and any Paying Agent
appointed for such series of Securities. Unless otherwise specified
as contemplated by Section 202 or Section 301, as the case may be,
any such exchange shall be made free of charge to the beneficial
owners of such temporary global Security, except that a Person
receiving definitive Securities must bear the cost of insurance,
postage, transportation and the like in the event that such Person
does not take delivery of such definitive Securities in person at
the offices of Euro-clear or CEDEL S.A. The definitive Bearer
Securities to be delivered in exchange for any portion of a
temporary global Security shall be delivered only outside the
United States.
Until exchanged in full as provided above, the temporary
Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of the
same series and of like tenor authenticated and delivered
hereunder, except that, unless otherwise specified as contemplated
by Section 202 or Section 301, as the case may be, interest payable
on a temporary global Bearer Security on an Interest Payment Date
for Securities of such series occurring prior to the applicable
Exchange Date shall be payable to Euro-clear and CEDEL S.A. on such
Interest Payment Date upon delivery by Euro-clear and CEDEL S.A. to
the Trustee of a certificate or certificates substantially in the
form set forth in Exhibit B.1 to this Indenture, for credit without
further interest on or after such Interest Payment Date to the
respective accounts of the Persons who are the beneficial owners of
such temporary global Security (or to such other accounts as they
may direct) on such Interest Payment Date and who have each
delivered to Euro-clear or CEDEL S.A., as the case may be, a
certificate substantially in the form set forth in Exhibit B.2 to
this Indenture. Any interest so received by Euro-clear and CEDEL
S.A. and not paid as herein provided shall be returned to the
Trustee immediately prior to the expiration of two years after such
Interest Payment Date in order to be repaid to the Company in
accordance with Section 1103.
SECTION 404. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at an office or agency to be
maintained by the Company in accordance with Section 1102 a
register (being the combined register of the Security Registrar and
all additional transfer agents designated pursuant to Section 1102
for the purpose of registration of transfer of Securities and
sometimes collectively referred to as the "Security Register") in
which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of Registered
Securities and the registration of transfers of Registered
Securities. [ ] is hereby appointed the initial
Security Registrar. At all reasonable times each register
maintained by the Security Registrar and any additional transfer
agents shall be open for inspection by the Trustee.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency of the Company
maintained pursuant to Section 1102 for such purpose in a Place of
Payment for such series, the Company shall execute, and the Trustee
shall authenticate and make available for delivery, in the name of
the designated transferee or transferees, one or more new
Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor.
At the option of the Holder, Registered Securities of any series
may be exchanged for other Registered Securities of the same series
of any authorized denominations and of a like aggregate principal
amount and tenor, upon surrender of the Registered Securities to be
exchanged at any such office or agency. Whenever any Securities are
so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and make available for delivery, the
Securities which the Holder making the exchange is entitled to
receive. Unless otherwise specified as contemplated by Section 202
or Section 301, as the case may be, Bearer Securities may not be
issued in exchange for Registered Securities.
At the option of the Holder, to the extent permitted by law, and
unless otherwise specified as contemplated by Section 202 or
Section 301, as the case may be, Bearer Securities of any series
may be exchanged for Registered Securities of the same series of
any authorized denominations and of a like aggregate principal
amount and tenor, upon surrender of the Bearer Securities to be
exchanged at any such office or agency, with all unmatured Coupons
and all matured Coupons in default appertaining thereto. If the
Holder of a Bearer Security is unable to produce any such unmatured
Coupon or Coupons or matured Coupon or Coupons in default, such
exchange may be effected if the Bearer Securities are accompanied
by payment in funds acceptable to the Company in an amount equal to
the face amount of such missing Coupon or Coupons, or the surrender
of such missing Coupon or Coupons may be waived by the Company and
the Trustee if there is furnished to them such security or
indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Bearer Security
shall surrender to any Paying Agent any such missing Coupon in
respect of which such a payment shall have been made, such Holder
shall be entitled to receive the amount of such payment; provided,
however, that, except as otherwise provided in Section 1102,
interest represented by Coupons shall be payable only upon
presentation and surrender of those Coupons at an office or agency
located outside the United States. Notwithstanding the foregoing,
in case a Bearer Security of any series is surrendered at any such
office or agency in exchange for a Registered Security of the same
series and like tenor after the close of business at such office or
agency on (i) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of
business at such office or agency on the related proposed date for
payment of Defaulted Interest, such Bearer Security shall be
surrendered without the Coupon relating to such Interest Payment
Date or proposed date for payment, as the case may be (or, if such
Coupon is surrendered with such Bearer Security, such Coupon shall
be returned to the Person so surrendering the Bearer Security), and
interest or Defaulted Interest, as the case may be, will not be
payable on such Interest Payment Date or proposed date for payment,
as the case may be, in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the
Holder of such Coupon when due in accordance with the provisions of
this Indenture.
Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and make
available for delivery, the Securities which the Holder making the
exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 202 or Section 301, as the case may be, any
definitive global Bearer Security shall be exchangeable only as
provided in this paragraph. If the beneficial owners of interests
in a definitive global Bearer Security are entitled to exchange
such interests for Securities of such series and of like tenor and
principal amount of another authorized form and denomination, as
specified as contemplated by Section 202 or Section 301, as the
case may be, then without unnecessary delay but in any event not
later than the earliest date on which such interests may be so
exchanged, the Company shall deliver to the Trustee definitive
Securities in an aggregate principal amount equal to the principal
amount of such definitive global Bearer Security, executed by the
Company. On or after the earliest date on which such interests may
be so exchanged, such definitive global Bearer Security shall be
surrendered by the Common Depositary or such other depositary as
shall be specified in the Company Order or Medium-Term Debt
Securities Certificate, as the case may be, with respect thereto to
the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive
Securities without charge and the Trustee shall authenticate and
make available for delivery, in exchange for each portion of such
definitive global Bearer Security, an equal aggregate principal
amount of definitive Securities of the same series of authorized
denominations and of like tenor as the portion of such definitive
global Bearer Security to be exchanged which, unless the Securities
of the series are not issuable both as Bearer Securities and as
Registered Securities, as specified as contemplated by Section 202
or Section 301, as the case may be, shall be in the form of Bearer
Securities or Registered Securities, or any combination thereof, as
shall be specified by the beneficial owner thereof; provided,
however, that no such exchanges may occur during a period beginning
at the opening of business 15 Business Days before any selection of
Securities of that series to be redeemed and ending on the relevant
Redemption Date; provided further that no Bearer Security delivered
in exchange for a portion of a definitive global Security shall be
mailed or otherwise delivered to any location in the United States.
If a Registered Security is issued in exchange for any portion of a
definitive global Bearer Security after the close of business at
the office or agency where such exchange occurs on (i) any Regular
Record Date and before the opening of business at such office or
agency on the relevant Interest Payment Date, or (ii) any Special
Record Date and before the opening of business at such office or
agency on the related proposed date for payment of Defaulted
Interest, interest or Defaulted Interest, as the case may be, will
not be payable on such Interest Payment Date or proposed date for
payment, as the case may be, in respect of such Registered
Security, but will be payable on such Interest Payment Date or
proposed date for payment, as the case may be, only to the Person
to whom interest in respect of such portion of such definitive
global Bearer Security is payable in accordance with the provisions
of this Indenture.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the
Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered upon
such registration of transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by
the Company or the Trustee or any transfer agent) be duly endorsed,
or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar or any
transfer agent duly executed, by the Holder thereof or his attorney
duly authorized in writing.
No service charge shall be made for any registration of transfer
or exchange of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or
exchange of Securities, other than exchanges pursuant to Section
403, 1006 or 1207 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period
beginning at the opening of business 15 Business Days before any
selection of Securities of that series to be redeemed and ending at
the close of business on (A) if Securities of the series are
issuable only as Registered Securities, the day of the mailing of
the relevant notice of redemption and (B) if Securities of the
series are issuable as Bearer Securities, the day of the first
publication of the relevant notice of redemption or, if Securities
of the series are also issuable as Registered Securities and there
is no publication, the day of mailing of the relevant notice of
redemption, or (ii) to register the transfer of or exchange any
Registered Security so selected for redemption, in whole or in
part, except the unredeemed portion of any Security being redeemed
in part, or (iii) to exchange any Bearer Security so selected for
redemption except that such a Bearer Security may be exchanged for
a Registered Security of that series and of like tenor; provided
that such Registered Security shall be simultaneously surrendered
for redemption.
SECTION 405. Mutilated, Destroyed, Lost and Stolen Securities. If
any mutilated Security or Security with a mutilated Coupon
appertaining to it is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and make available for
delivery in exchange therefor a new Security of the same series and
of like tenor and principal amount and bearing a number not
contemporaneously outstanding with Coupons corresponding to the
Coupons, if any, appertaining to the surrendered Security, provided
that if such new Security is a Bearer Security, such Security shall
be delivered only outside the United States.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of
any Security or Coupon and (ii) such security or indemnity as may
be required by them to save each of them and any agent of either of
them harmless, then, in the absence of notice to the Company or the
Trustee that such Security or Coupon has been acquired by a bona
fide purchaser, the Company shall execute and the Trustee shall
authenticate and make available for delivery, in lieu of any such
destroyed, lost or stolen Security or in exchange for the Security
to which a destroyed, lost or stolen Coupon appertains (upon
surrender to the Trustee of such Security with all appurtenant
Coupons not destroyed, lost or stolen), a new Security of the same
series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding, with Coupons corresponding to
the Coupons, if any, appertaining to such destroyed, lost or stolen
Security or to the Security to which such destroyed, lost or stolen
Coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or
Coupon has become or is about to become due and payable, the
Company in its discretion may, instead of issuing a new Security or
Coupon, pay such Security or Coupon; provided, however, that
principal of (and premium, if any) and any interest on Bearer
Securities shall, except as otherwise provided in Section 1102, be
payable only at an office or agency located outside the United
States and, unless otherwise specified as contemplated by Section
202 or Section 301, as the case may be, any interest on Bearer
Securities shall be payable only upon presentation and surrender of
the Coupons appertaining thereto.
Upon the issuance of any new Security or Coupon under this
Section, the Company may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
Every new Security or Coupon of any series issued pursuant to
this Section in lieu of any mutilated, destroyed, lost or stolen
Security or Coupon shall constitute an original additional
contractual obligation of the Company, whether or not the
mutilated, destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other
Securities or Coupons of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect
to the replacement or payment of mutilated. destroyed, lost or
stolen Securities or Coupons.
SECTION 406. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 202 or Section
301, as the case may be, with respect to any series of Securities,
interest on any Registered Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date
shall be paid to the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest. At the option of the
Company, interest on the Registered Securities of any series that
bears interest may be paid by mailing a check to the address of any
Holder as such address shall appear in the Security Register.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any
Interest Payment Date (herein called "Defaulted Interest") shall
forthwith cease to be payable to the Holder on the relevant Regular
Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in
each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities
of such series (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of the proposed
payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this Clause
provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not
more than 15 days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class
postage prepaid, to each Holder of Securities of such series at
his address as it appears in the Security Register, not less
than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to
the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Registered Securities of any series in any other lawful
manner not inconsistent with the requirements of any securities
exchange on which such Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment
pursuant to this Clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section
404, each Security delivered under this Indenture upon registration
of transfer of or in exchange for or in lieu of any other Security
shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
SECTION 407. Persons Deemed Owners. Prior to due presentment
of a Registered Security for registration of transfer, the Company,
the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Registered Security is registered as
the owner of such Registered Security for the purpose of receiving
payment of principal of (and premium, if any) and (subject to
Sections 404, 406 and 411 and unless otherwise specified as
contemplated by Section 202 or Section 301, as the case may be)
interest on such Security and for all other purposes whatsoever,
whether or not such Security is overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Title to any Bearer Security and any Coupons shall pass by
delivery. The Company, the Trustee and any agent of the Company or
the Trustee may treat the Holder of any Bearer Security and the
Holder of any Coupon as the absolute owner of such Security or
Coupon for the purpose of receiving payment thereof or on account
thereof (unless otherwise specified as contemplated by Section 202
or Section 301, as the case may be) and for all other purposes
whatsoever, whether or not such Security or Coupon be overdue, and
neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
Notwithstanding the foregoing, with respect to any temporary
or permanent global Security, nothing herein shall prevent the
Company, the Trustee, or any agent of the Company or the Trustee,
from giving effect to any written certification, proxy or other
authorization furnished by a Common Depositary or a U.S.
Depositary, as the case may be, or impair, as between a Common
Depositary or a U.S. Depositary and holders of beneficial interests
in any temporary or permanent global Security, as the case may be,
the operation of customary practices governing the exercise of the
rights of the Common Depositary or the U.S. Depositary as Holder of
such temporary or permanent global Security.
SECTION 408. Cancelation. All Securities and Coupons surrendered
for payment, redemption, registration of transfer or exchange or
for credit against any sinking fund payment shall, if surrendered
to any Person other than the Trustee, be delivered to the Trustee.
All Securities and Coupons so delivered shall be promptly canceled
by the Trustee. All Bearer Securities and unmatured Coupons held by
the Trustee pending such cancelation shall be deemed to be
delivered for cancelation for all purposes of this Indenture and
the Securities. The Company may at any time deliver to the Trustee
for cancelation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any
manner whatsoever, and may deliver to the Trustee (or to any other
Person for delivery to the Trustee) for cancelation any Securities
previously authenticated hereunder which the Company has not issued
and sold, and all Securities so delivered to the Trustee shall be
promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled
as provided in this Section, except as expressly permitted by this
Indenture. All canceled Securities and Coupons held by the Trustee
shall be disposed of in a manner selected by the Trustee unless
otherwise directed by a Company Order; provided, however, that the
Trustee may, but shall not be required to, destroy such canceled
Securities and Coupons.
SECTION 409. Computation of Interest. Except as otherwise
specified as contemplated by Section 202 or Section 301, as the
case may be, for Securities of any series, interest on the
Securities of each series shall bc computed on the basis of a 360-
day year of twelve 30-day months.
SECTION 410. Currency and Manner of Payment in Respect of
Securities. The provisions of this Section shall apply to the
Securities of any series unless otherwise provided as contemplated
by Section 202 or Section 301, as the case may be.
(a) The following payment provisions shall apply to any
Registered Security of any series denominated in a Foreign
Currency or any currency unit, including without limitation ECU,
except as provided in paragraph (b) below:
(1) Except as provided in subparagraph (a)(2) or in
paragraph (e) below, payment of principal of and premium,
if any, on such Registered Security will be made at the
Place of Payment by delivery of a check in the currency or
currency unit in which the Security is denominated on the
payment date against surrender of such Registered Security,
and any interest on any Registered Security will be paid at
the Place of Payment by mailing a check in the currency or
currency unit in which such interest is payable (which
shall be the same as that in which the Security is
denominated unless otherwise provided) to the Person
entitled thereto at the address of such Person appearing on
the Security Register.
(2) Payment of the principal of, premium, if any, and
interest, if any, on such Security may also, subject to
applicable laws and regulations, be made at such other
place or places as may be designated by the Company by any
appropriate method.
(b) With respect to any Registered Security of any series
denominated in any currency unit, including without limitation
ECU, if the following provisions (or any substitute therefor, or
addition thereto, not inconsistent with this Indenture) are
established pursuant to Section 202 or Section 301, as the case
may be, and if the Company has not, before the delivery of the
election referred to in clause (1) below, deposited funds or
securities in compliance with Section 501 or clause (a)(i) or
(if specified pursuant to Section 202 or Section 301, as the
case may be) clause (a)(ii) of Section 503, the following
payment provisions shall apply to any payment to be made prior
to the giving of any notice to Holders of any election to redeem
pursuant to Section 1204, except as otherwise provided in
paragraphs (e) and (f) below:
(1) A Holder of Securities of a series shall have the option
to elect to receive payments of principal of, premium, if any,
and interest, if any, on such Securities in a currency or
currency unit (including Dollars), other than that in which
the Security is denominated, such election, as designated in
the certificates for such Securities (or as provided by
Section 202 or Section 301, as the case may be, or a
supplemental indenture hereto with respect to uncertificated
securities), shall be made by delivering to the Paying Agent a
written election, to be in form and substance satisfactory to
the Paying Agent, not later than the close of business in New
York, New York, on the day 15 days prior to the applicable
payment date. Such election will remain in effect for such
Holder until changed by the Holder by written notice to the
Paying Agent (but any such written notice must be received by
the Paying Agent not later than the close of business on the
day 15 days prior to the next payment date to be effective for
the payment to be made on such payment date and no such change
may be made with respect to payments to be made on any
Security of such series with respect to which notice of
redemption has been given by the Company pursuant to Article
Twelve). Any Holder of any such Security who shall not have
delivered any such election to the Paying Agent in accordance
with this paragraph (b) will be paid the amount due on the
applicable payment date in the relevant currency unit as
provided in paragraph (a) of this Section. Payment of
principal of and premium, if any, shall be made on the payment
date therefor against surrender of such Security. Payment of
principal, premium, if any, and interest, if any, shall be
made at the Place of Payment by mailing at such location a
check, in the applicable currency or currency unit, to the
Holder entitled thereto at the address of such Holder
appearing on the Security Register.
(2) Payment of the principal of, premium, if any, and
interest, if any, on such Security may also, subject to
applicable laws and regulations, be made at such other place
or places as may be designated by the Company by any
appropriate method.
(c) Payment of the principal of and premium, if any, and
interest, if any, on any Bearer Security will be made, except as
provided in Section 403 with respect to temporary global
Securities, unless otherwise specified pursuant to Section 202
or Section 301, as the case may be, and/or Section 1001(8), at
such place or places outside the United States as may be
designated by the Company pursuant to any applicable laws or
regulations by any appropriate method in the currency or
currencies or currency unit or units in which the Security is
payable (except as provided in paragraph (e) below) on the
payment date therefor against surrender of the Bearer Security,
in the case of payment of principal and premium, if any, or the
relevant Coupon, in the case of payment of interest, if any, to
a Paying Agent designated for such series pursuant to Section
1102.
(d) Not later than 10 Business Days (with respect to any Place
of Payment) prior to each payment date, the Paying Agent shall
deliver to the Company a copy of its record of the respective
aggregate amounts of principal of, premium, if any, and
interest, if any, on the Securities to be made on such payment
date, in the currency or currency unit in which each of the
Securities is payable, specifying the amounts so payable in
respect of Registered Securities and Bearer Securities and in
respect of the Registered Securities as to which the Holders of
Securities denominated in any currency unit shall have elected
to be paid in another currency or currency unit as provided in
paragraph (b) above. If the election referred to in paragraph
(b) above has been provided for pursuant to Section 202 or
Section 301, as the case may be, and if at least one Holder has
made such election, then, not later than the fifth Business Day
(with respect to any Place of Payment) prior to the applicable
payment date the Company will deliver to the Trustee an Exchange
Rate Officers' Certificate in respect of the Dollar or Foreign
Currency or currency unit payments to be made on such payment
date. The Dollar or Foreign Currency or currency unit amount
receivable by Holders of Registered Securities denominated in a
currency unit who have elected payment in another currency or
currency unit as provided in paragraph (b) above shall be
determined by the Company on the basis of the applicable
Official Currency Unit Exchange Rate set forth in the applicable
Exchange Rate Officers' Certificate.
(e) If a Foreign Currency in which any Security is denominated
or payable ceases to be recognized both by the government of the
country which issued such currency and for the settlement of
transactions by public institutions of or within the
international banking community, or if ECU ceases to be used
within the European Monetary System, or if any other currency
unit in which a Security is denominated or payable ceases to be
used for the purposes for which it was established, in each case
as determined in good faith by the Company, then with respect to
each date for the payment of principal of, premium, if any, and
interest, if any, on the applicable Security denominated or
payable in such Foreign Currency, ECU or such other currency
unit occurring after the last date on which such Foreign
Currency, ECU or such other currency unit was so used (the
"Conversion Date"), the Dollar shall become the currency of
payment for use on each such payment date (but ECU or the
Foreign Currency or the currency unit previously the currency of
payment shall, at the Company's election, resume being the
currency of payment on the first such payment date preceded by
15 Business Days during which the circumstances which gave rise
to the Dollar becoming such currency no longer prevail, in each
case as determined in good faith by the Company). The Dollar
amount to be paid by the Company to the Trustee and by the
Trustee or any Paying Agent to the Holder of such Security with
respect to such payment date shall be the Dollar Equivalent of
the Foreign Currency or, in the case of a currency unit, the
Dollar Equivalent of the Currency Unit, as determined by the
Exchange Rate Agent (which shall be delivered in writing to the
Trustee not later than the fifth Business Day prior to the
applicable payment date) as of the Conversion Date or, if later,
the date most recently preceding the payment date in question on
which such determination is possible of performance, but not
more than 15 days before such payment date (such Conversion Date
or date preceding a payment date as aforesaid being called the
"Valuation Date") in the manner provided in paragraph (g) or (h)
below.
(f) If the Holder of a Registered Security denominated in a
currency unit elects payment in a specified Foreign Currency or
currency unit as provided for by paragraph (b) and such Foreign
Currency ceases to be used both by the government of the country
which issued such currency and for the settlement of
transactions by public institutions of or within the
international banking community, or if ECU ceases to be used
within the European Monetary System, or if another currency unit
ceases to be used for the purposes for which it is established,
in each case as determined in good faith by the Company, such
Holder shall (subject to paragraph (e) above) receive payment in
the currency unit in which the Security is denominated. Each
payment covered by an election pursuant to paragraph (b) above
shall be governed by the provisions of this paragraph (f) (but,
subject to any contravening valid election pursuant to paragraph
(b) above, the specified Foreign Currency or ECU or other
currency unit shall, at the Company's election, resume being the
currency or currency unit, as applicable, of payment with
respect to Holders who have so elected, but only with respect to
payments on payment dates preceded by 15 Business Days during
which the circumstances which gave rise to such currency unit
becoming the currency unit of payment, no longer prevail, in
each case as determined in good faith by the Company).
(g) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent as of each Valuation Date
and shall be obtained by converting the specified Foreign
Currency into Dollars at the Market Exchange Rate on the
Valuation Date.
(h) The "Dollar Equivalent of the Currency Unit" shall be
determined by the Exchange Rate Agent as of each Valuation Date
and shall be the sum obtained by adding together the results
obtained by converting the Specified Amount of each Component
Currency into Dollars at the Market Exchange Rate on the
Valuation Date for such Component Currency.
(i) For purposes of this Section 410 the following terms shall
have the following meanings:
A "Component Currency" shall mean any currency which, on the
Conversion Date, was a component currency of the relevant
currency unit, including without limitation ECU.
A "Specified Amount" of a Component Currency shall mean the
number of units (including decimals) which such Component
Currency represented in the relevant currency unit, on the
Conversion Date or, if ECU and such currency unit is being
used for settlement of transactions by public institutions of
or within the European Communities or was so used after the
Conversion Date, the Valuation Date or the last date the
currency unit was so used, whichever is later. If after such
date the official unit of any Component Currency is altered by
way of combination or subdivision, the Specified Amount of
such Component Currency shall be divided or multiplied in the
same proportion. If after such date two or more Component
Currencies are consolidated into a single currency, the
respective Specified Amounts of such Component Currencies
shall be replaced by an amount in such single currency equal
to the sum of the respective Specified Amounts of such
consolidated Component Currencies expressed in such single
currency, and such amount shall thereafter be a Specified
Amount and such single currency shall thereafter be a
Component Currency. If after such date any Component Currency
shall be divided into two or more currencies, the Specified
Amount of such Component Currency shall be replaced by
specified amounts of such two or more currencies, the sum of
which, at the Market Exchange Rate of such two or more
currencies on the date of such replacement, shall be equal to
the Specified Amount of such former Component Currency and
such amounts shall thereafter be Specified Amounts and such
currencies shall thereafter be Component Currencies.
"Market Exchange Rate" shall mean, as of any date, for any
currency or currency unit the noon Dollar buying rate for that
currency or currency unit, as the case may be, for cable
transfers quoted in New York City on such date as certified
for customs purposes by the Federal Reserve Bank of New York
or such other rate as may be established pursuant to Section
202 or Section 301, as the case may be. If such rates are not
available for any reason with respect to one or more
currencies or currency units for which an Exchange Rate is
required, the Exchange Rate Agent shall use, in its sole
discretion and without liability on its part, such quotation
of the Federal Reserve Bank of New York as of the most recent
available date, or quotations from one or more major banks in
New York City or in the country of issue of the currency or
currency unit in question, or such other quotations as the
Exchange Rate Agent shall deem appropriate. Unless otherwise
specified by the Exchange Rate Agent, if there is more than
one market for dealing in any currency or currency unit by
reason of foreign exchange regulations or otherwise, the
market to be used in respect of such currency or currency unit
shall be that upon which a nonresident issuer of securities
designated in such currency or currency unit would, as
determined in its sole discretion and without liability on the
part of the Exchange Rate Agent, purchase such currency or
currency unit in order to make payments in respect of such
securities.
All decisions and determinations of the Exchange Rate Agent
regarding the Dollar Equivalent of the Foreign Currency, the
Dollar Equivalent of the Currency Unit and the Market Exchange
Rate shall be in its sole discretion and shall, in the absence
of manifest error, be conclusive for all purposes and
irrevocably binding upon the Company and all Holders of the
Securities and Coupons denominated or payable in the relevant
currency or currency units. In the event that a Foreign
Currency ceases to be used both by the government of the
country which issued such currency and for the settlement of
transactions by public institutions of or within the
international banking community, the Company, after learning
thereof, will immediately give notice thereof to the Trustee
(and the Trustee will promptly thereafter give notice in the
manner provided in Section 106 to the Holders) specifying the
Conversion Date. In the event the ECU ceases to be used within
the European Monetary System, or any other currency unit in
which Securities or Coupons are denominated or payable, ceases
to be used for the purposes for which it was established, the
Company, after learning thereof, will immediately give notice
thereof to the Trustee (and the Trustee will promptly
thereafter give notice in the manner provided in Section 106
to the Holders) specifying the Conversion Date. Any actions
taken pursuant to the parentheticals at the end of the first
sentence of Section 410(e) and at the end of Section 410(f)
shall be promptly set forth in like notices from the Company
to the Trustee and then from the Trustee to the Holders (which
notices may be mailed with payment to the Holders).
Subject to the provisions of Sections 701 and 703, the
Trustee shall be fully justified and protected in relying and
acting upon information received by it from the Company and
the Exchange Rate Agent, and shall not otherwise have any duty
or obligation to determine such information independently.
SECTION 411. Securities in Global Form. If Securities of a series
are issuable in global form, as specified as contemplated by
Section 202 or Section 301, as the case may be, then,
notwithstanding clause (a)(8) of Section 202 or clause (b)(9) of
Section 301, as the case may be, and the provisions of Section 401,
a global Security shall represent such of the Outstanding
Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding
Securities from time to time endorsed thereon and that the
aggregate amount of Outstanding Securities represented thereby may
from time to time be reduced or increased to reflect exchanges. Any
endorsement of a Security in global form to reflect the amount, or
any increase or decrease in the amount, of Outstanding Securities
represented thereby shall be made by the Trustee in such manner and
upon instructions given by such Person or Persons as shall be
specified therein or in the Company Order (or, in the case of
Medium-Term Debt Securities, the Medium-Term Debt Securities
Certificate) to be delivered to the Trustee pursuant to Section 402
or Section 403. Subject to the provisions of Section 402 and, if
applicable, Section 403, the Trustee shall deliver and redeliver
any Security in definitive global bearer form in the manner and
upon written instructions given by the Person or Persons specified
therein or in the applicable Company Order (or, in the case of
Medium-Term Debt Securities, the Medium-Term Debt Securities
Certificate). If a Company Order (or, in the case of Medium-Term
Debt Securities, Medium-Term Debt Securities Certificate) pursuant
to Section 402 or 403 has been, or simultaneously is, delivered,
any instructions by the Company with respect to endorsement or
delivery or redelivery of a Security in global form shall be in
writing but need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel.
The provisions of the last sentence of the fifth paragraph of
Section 402 shall apply to any Security represented by a Security
in global form if such Security was never issued and sold by the
Company and the Company delivers to the Trustee the Security in
global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion
of Counsel) with regard to the reduction in the principal amount of
Securities represented thereby, together with the written statement
contemplated by the last sentence of the fifth paragraph of Section
402.
Notwithstanding the provisions of Section 406, unless otherwise
specified as contemplated by Section 202 or Section 301, as the
case may be, payment of principal of and any premium and any
interest on any Security in definitive global form shall be made to
the Person or Persons specified therein.
SECTION 412. Registered Global Notes. (a) If the Company shall
establish pursuant to Section 202 or Section 301, as the case may
be, that the Registered Securities of a series are to be issued in
whole or in part in the form of one or more global Securities
(Registered Securities in the form of global Securities being
herein called "Registered Global Notes"), then the Company shall
execute and the Trustee shall, in accordance with Section 202 or
Section 301, as the case may be, and the Company Order or the
Medium-Term Debt Securities Certificate, as the case may be, with
respect to such series, authenticate and deliver one or more
temporary or permanent Registered Global Notes that (i) shall
represent the aggregate principal amount of the Outstanding
Securities of such series to be represented by one or more
Registered Global Notes, (ii) shall be registered in the name of
the U.S. Depositary for such Registered Global Note or Notes or the
nominee of such depositary, and (iii) may bear a legend, in
addition to any other legend required or requested by the U.S.
Depositary or included on such Note pursuant to applicable laws or
regulations, substantially to the following effect:
UNLESS AND UNTIL IT IS EXCHANGED FOR SECURITIES IN DEFINITIVE
REGISTERED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS
A WHOLE BY THE U.S. DEPOSITARY TO A NOMINEE OF THE U.S.
DEPOSITARY OR BY A NOMINEE OF THE U.S. DEPOSITARY TO THE U.S.
DEPOSITARY OR ANOTHER NOMINEE OF THE U.S. DEPOSITARY OR BY THE
U.S. DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR U.S.
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR U.S. DEPOSITARY.
Notwithstanding any other provision of this Section 412 or
Section 404, unless and until it is exchanged in whole or in part
for Registered Securities in definitive form, a Registered Global
Note representing all or a portion of the Registered Securities of
a series may not be transferred except as a whole by the U.S.
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 U.S. Depositary for such series or a nominee of such
successor depositary.
(b) If at any time the U.S. Depositary for the Securities of a
series notifies the Company that it is unwilling or unable to
continue as U.S. Depositary for the Securities of such series or if
at any time the U.S. Depositary for Securities of a series shall no
longer be a clearing agency registered and in good standing under
the Securities Exchange Act of 1934, as amended, or other
applicable statute or regulation, the Company shall appoint a
successor U.S. Depositary with respect to the Securities of such
series. If a successor U.S. Depositary for the Securities of such
series is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such condition,
the Company will execute, and the Trustee, upon receipt of a
Company Order or a Medium-Term Debt Securities Certificate, as the
case may be, for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver Registered
Securities of such series in definitive form in an aggregate
principal amount equal to the principal amount of the Registered
Global Note or Notes representing such series in exchange for such
Registered Global Note or Notes.
(c) The Company may at any time and in its sole discretion
determine that all or a portion of the Registered Securities of any
series issued in the form of one or more Registered Global Notes
shall no longer be represented by such Registered Global Note or
Notes. In such event, the Company will execute, and the Trustee,
upon receipt of a Company Order or a Medium-Term Debt Securities
Certificate, as the case may be, for the authentication and
delivery of definitive Securities of such series, will authenticate
and deliver, Registered Securities of such series in definitive
form and in an aggregate principal amount equal to the principal
amount of the Registered Global Note or Notes representing such
series, or portion thereof to be exchanged, in exchange for such
Registered Global Note or Notes.
(d) If the Registered Securities of any series shall have been
issued in the form of one or more Registered Global Notes and if an
Event of Default with respect to the Securities of such series
shall have occurred and be continuing, the Company will promptly
execute, and the Trustee, upon receipt of a Company Order or a
Medium-Term Debt Securities Certificate, as the case may be, for
the authentication and delivery of definitive Securities of such
series, will authenticate and deliver, Registered Securities of
such series, in definitive form and in an aggregate principal
amount equal to the principal amount of the Registered Global Note
or Notes representing such series in exchange for such Registered
Global Note or Notes.
(e) If specified by the Company pursuant to Section 202 or
Section 301, as the case may be, with respect to Registered
Securities of a series, the U.S. Depositary for such series of
Registered Securities may surrender a Registered Global Note for
such series of Securities in exchange in whole or in part for
Registered Securities of such series in definitive form on such
terms as are acceptable to the Company and such depositary.
Thereupon, the Company shall execute and the Trustee shall
authenticate and deliver, without charge:
(i) to each Person specified by the U.S. Depositary a new
Registered Security or Securities of the same series in
definitive form registered in such names and in such authorized
denominations as the U.S. Depositary for such Registered Global
Note, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee, and in
exchange for such Person's beneficial interest in the Registered
Global Note; and
(ii) to the U.S. Depositary a new Registered Global Note in a
denomination equal to the difference, if any, between the
principal amount of the surrendered Registered Global Note and
the aggregate principal amount of Registered Securities in
definitive form delivered to Holders thereof.
(f) Upon the exchange of a Registered Global Note for
Registered Securities in definitive form, such Registered Global
Note shall be cancelled by the Trustee. Securities issued in
exchange for a Registered Global Note pursuant to this Section 412
shall be registered in such names and in such authorized
denominations as the U.S. Depositary for such Registered Global
Note, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Securities to the Persons in whose names such
Securities are so registered.
ARTICLE FIVE
Satisfaction and Discharge
SECTION 501. Satisfaction and Discharge of Indenture in Respect
of Any Series of Securities. This Indenture shall upon Company
Request cease to be of further effect with respect to a series of
Securities (except as to any surviving rights of (as applicable)
registration of transfer or exchange of Securities and Coupons, if
any, of such series herein expressly provided for), and the
Trustee, at the request and expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this
Indenture with respect to such series, when
(1) either
(A) all Securities and Coupons, if any, of such series
theretofore authenticated and delivered (other than (i)
Securities and Coupons of such series which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 405 and (ii) Securities and Coupons of
such series for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1103) have been
delivered to the Trustee for cancelation; or
(B) all such Securities and Coupons of such series not
theretofore delivered to the Trustee for cancelation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name,
and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose an amount in
the currency or currency unit in which such Securities and
Coupons of such series are payable sufficient to pay and
discharge the entire indebtedness on such Securities and
Coupons of such series not theretofore delivered to the
Trustee for cancelation, for principal (and premium, if any)
and interest, if any, to the date of such deposit (in the case
of Securities and Coupons of such series which have become due
and payable) or to the Stated Maturity or Redemption Date, as
the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company with respect to such series of
Securities; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of the Securities of the series under
this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture
with respect to a series, the obligations of the Company to the
Trustee under Section 707, the obligations of the Trustee to any
Authenticating Agent under Section 715 and, if money shall have
been deposited with the Trustee pursuant to subclause (B) of clause
(1) of this Section, the obligations of the Trustee under Section
502 and the last paragraph of Section 1103 shall survive.
SECTION 502. Application of Trust Money. Subject to the
provisions of the last paragraph of Section 1103, all money
deposited with the Trustee pursuant to Sections 501 and 503 (and
all money received as payment in connection with U.S. Government
Obligations and Foreign Government Securities deposited pursuant to
Section 503) shall be held in trust and applied by it, in
accordance with the provisions of the Securities and Coupons, if
any, and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Persons entitled
thereto, of the principal (and premium, if any) and interest, if
any, for whose payment such money has been deposited with the
Trustee.
SECTION 503. Satisfaction, Discharge and Defeasance of Securities
of Any Series. (a) Unless pursuant to Section 202 or Section 301,
as the case may be, provision is made that this Section shall not
be applicable to Securities and Coupons, if any, of any series, at
the Company's option, either:
(i) the Company will be deemed to have been Discharged (as
defined below) from its obligations with respect to Securities
and Coupons, if any, of such series, or
(ii) the Company will cease to be under any obligation with
respect to such series to comply with any term, provision or
condition set forth in (x) Sections 901, 902, 1104 and 1105 or
(y) the instrument or instruments setting forth the terms,
provisions or conditions of such series pursuant to Section 202
or Section 301, as the case may be (provided, in the case of
this subclause (y), that such instrument or instruments specify
which terms, provisions or conditions, if any, are subject to
this clause (a)(ii) and that no such instrument may specify that
the Company may cease to comply with any obligations as to which
it may not be Discharged pursuant to the definition of
"Discharged").
(b) A Discharge pursuant to clause (a)(i) above shall be
effective with respect to the Securities and Coupons, if any, of
such series on the first day after the applicable conditions set
forth below in (i) and either (ii) or (iii) have been satisfied,
and the Company's release from its obligations to comply with
certain obligations with respect to such series pursuant to clause
(a)(ii) above shall be effective with respect to the Securities and
Coupons, if any, of such series on the first day after the
applicable conditions set forth below in (i) and either (ii) or
(iii) have been satisfied:
(i) the Company has:
(A) paid or caused to be paid all other sums payable with
respect to the Outstanding Securities and Coupons, if any, of
such series (in addition to any required under clause (b)(ii)
or (b)(iii)); and
(B) delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge
of the entire indebtedness on all Outstanding Securities and
Coupons, if any, of any such series have been complied with;
(ii) (A) the Company shall have deposited or caused to be
deposited irrevocably with the Trustee as a trust fund
specifically pledged as security for, and dedicated solely to,
the benefit of the Holders of the Securities and Coupons, if
any, of such series (1) money in an amount (in such currency,
currencies or currency unit or units in which any Outstanding
Securities and Coupons, if any, of such series are payable) or
(2) in the case of Securities and Coupons, if any, denominated
in Dollars, U.S. Government Obligations (as defined below) or,
in the case of Securities and Coupons, if any, denominated in a
Foreign Currency, Foreign Government Securities (as defined
below), which through the payment of interest and principal in
respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment of
principal (including any premium) and interest, if any, under
the Securities and Coupons, if any, of such series, money in an
amount or (3) a combination of (1) and (2), which in any case of
clauses (1), (2) and (3) is sufficient (in the opinion with
respect to (2) and (3) of a nationally recognized firm of
independent public accountants expressed in a written
certification thereof delivered to the Trustee) to pay and
discharge each installment of principal of (including premium,
if any, on), and interest, if any, on, the Outstanding
Securities and Coupons, if any, of such series on the dates such
installments of interest or principal are due, in the currency,
currencies or currency unit or units, in which such Securities
and Coupons, if any, are payable;
(B)(1) no Event of Default or event (including such deposit)
which with notice or lapse of time would become an Event of
Default shall have occurred and be continuing on the date of
such deposit, and (2) no Event of Default as defined in clause
(5) or (6) of Section 601, or event which with notice or lapse
of time or both would become an Event of Default under either
such clause, shall have occurred within 91 days after the date
of such deposit;
(C) the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that Holders of the Securities and
Coupons, if any, of such series will not recognize income, gain
or loss for Federal income tax purposes as a result of the
Company's exercise of its option under this Section 503 and will
be subject to Federal income tax in the same amount, in the same
manner and at the same times as would have been the case if such
option had not been exercised; and
(D) if the Securities of such series are then listed on the
New York Stock Exchange, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that such Securities
will not be delisted as the result of the Company's exercise of
its option under this Section 503;
(iii) the Company has properly fulfilled such other means of
satisfaction and discharge as is specified, as contemplated by
Section 202 or Section 301, as the case may be, to be applicable
to the Securities and Coupons, if any, of such series.
(c) Any deposits with the Trustee referred to in clause
(b)(ii)(A) above will be made under the terms of an escrow trust
agreement in form and substance satisfactory to the Trustee. If any
Outstanding Securities and Coupons, if any, of such series are to
be redeemed prior to their Stated Maturity, whether pursuant to any
mandatory redemption provisions or in accordance with any mandatory
sinking fund requirement, the applicable escrow trust agreement
will provide therefor and the Company will make arrangements for
the giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company.
SECTION 504. Reinstatement. If the Trustee is unable to apply
any money, U.S. Government Obligations or Foreign Government
Securities in accordance with Section 501 by reason of any legal
proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company's obligations under this
Indenture and the Securities and Coupons, if any, of such series
shall bc revived and reinstated as though no deposit had occurred
pursuant to Section 501 until such time as the Trustee is permitted
to apply all such money, U.S. Government Obligations or Foreign
Government Securities in accordance with Section 501; provided,
however, that if the Company has made any payment of interest on or
principal of (and premium, if any) on any Securities and Coupons,
if any, of such series because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the
Holders of such series of Securities and Coupons, if any, to
receive such payment from the money, U.S. Government Obligations or
Foreign Government Securities held by the Trustee.
SECTION 505. Definitions. The following terms, as used in this
Article, shall have the following meanings:
"Discharged" means that the Company will be deemed to have
paid and discharged the entire indebtedness represented by, and
obligations under, the Securities and Coupons, if any, of the
series as to which this Section is specified as applicable as
aforesaid and to have satisfied all the obligations under this
Indenture relating to the Securities and Coupons, if any, of
such series (and the Trustee, at the request and expense of the
Company, will execute proper instruments acknowledging the
same), except (A) the rights of Holders thereof to receive, from
the trust fund described in Section 503(b)(ii)(A), payment of
the principal of (and premium, if any) and the interest, if any,
on such Securities and Coupons, if any, when such payments are
due, (B) the Company's obligations with respect to such
Securities and Coupons, if any, under Sections 404 and 405
(insofar as applicable to Securities of such series), 502, 1102
and 1103 (last paragraph only) and the Company's obligations to
the Trustee under Section 707, (C) the rights of Holders of
Securities of any series with respect to the currency or
currency units in which they are to receive payments of
principal, premium, if any, and interest, if any, and (D) the
rights, powers, trusts, duties and immunities of the Trustee
hereunder, will survive such discharge. The Company will
reimburse the trust fund for any loss suffered by it as a result
of any tax, fee or other charge imposed on or assessed against
deposited U.S. Government Obligations or Foreign Government
Securities, as the case may be, or any principal or interest
paid on such obligations, and, subject to the provisions of
Section 707, will indemnify the Trustee against any claims made
against the Trustee in connection with any such loss.
"Foreign Government Securities" means, with respect to
Securities and Coupons, if any, of any series that are
denominated in a Foreign Currency, securities that are (i)
direct obligations of the government that issued or caused to be
issued such currency for the payment of which obligations its
full faith and credit is pledged or (ii) obligations of a Person
controlled or supervised by and acting as an agency or
instrumentality of such government the timely payment of which
is unconditionally guaranteed as a full faith and credit
obligation by such government, which, in either case under
clause (i) or (ii), are not callable or redeemable at the option
of the issuer thereof.
"U.S. Government Obligations" means securities that are (i)
direct obligations of the United States of America for the
payment of which its full faith and credit is pledged or (ii)
obligations of a Person controlled or supervised by and acting
as an agency or instrumentality of the United States of America
the timely payment of which is unconditionally guaranteed as a
full faith and credit obligation of the United States of
America, which, in either case under clause (i) or (ii), are not
callable or redeemable at the option of the issuer thereof, and
will also include a depository receipt issued by a bank or trust
company as custodian with respect to any such U.S. Government
Obligation or a specific payment of interest on or principal of
any such U.S. Government Obligation held by such custodian for
the account of the holder of a depository receipt, provided that
(except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific
payment of interest on or principal of the U.S. Government
Obligation evidenced by such depository receipt.
ARTICLE SIX
Remedies
SECTION 601. Events of Default. "Event of Default" with respect
to any series of Securities means each one of the events specified
below in this Section 601, unless it is either inapplicable to a
particular series or is specifically deleted or modified in or
pursuant to the supplemental indenture, Board Resolution or Medium-
Term Debt Securities Certificate establishing such series of
Securities:
(1) 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
(2) default in the payment of the principal of, or premium, if
any, on, any of the Securities of such series, as and when the
same shall become due and payable (subject to clause (3) below)
either at maturity, upon redemption, by declaration or
otherwise; or
(3) default in the making of any payment for a sinking,
purchase or analogous fund provided for in respect of such
series of Securities, as and when the same shall become due and
payable; or
(4) failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on the part of
the Company in respect of the Securities of such series, or in
this Indenture contained with respect to such series, for a
period of 90 days after the date on which written notice of such
failure requiring the Company to remedy the same and stating
that such notice is a `Notice of Default' hereunder, shall have
been given, by registered or certified mail, to the Company by
the Trustee, or to the Company and the Trustee by the holders of
at least 25% in aggregate principal amount of the Securities of
such series at the time Outstanding; or
(5) entry of a decree or order for relief in respect of the
Company by a court having jurisdiction in the premises in an
involuntary case under any applicable Federal or state
bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of the
Company or for any substantial part of its property, or ordering
the winding-up or liquidation of its affairs and such decree or
order shall remain unstayed and in effect for a period of 60
consecutive days; or
(6) commencement by the Company of a voluntary case under any
applicable Federal or state bankruptcy, insolvency or other
similar law now or hereafter in effect, or consent by the
Company to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, custodian, sequestrator
(or other similar official) of the Company or for any
substantial part of its property, or any general assignment by
the Company for the benefit of creditors, or failure by the
Company generally to pay its debts as they become due, or the
taking by the Company of any corporate action in furtherance of
any of the foregoing; or
(7) Debt of the Company or any Subsidiary is accelerated by
the holders thereof because of a default or not paid within any
applicable grace period after final maturity and the total
amount of such Debt unpaid or accelerated exceeds $25,000,000 or
its foreign currency equivalent at the time; or
(8) any other Event of Default provided with respect to
Securities of that series.
SECTION 602. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at
the time Outstanding occurs and is continuing, then in each and
every such case, either the Trustee or the Holders of not less than
25% in aggregate principal amount of the Outstanding Securities of
that series or, in the case of an Event of Default specified in
Clause (5) or (6) of Section 601, of all series (voting as a class)
with respect to which such Event of Default has occurred and is
continuing, may declare the principal amount (or, if the Securities
of that series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of that
series) of all of the Securities of that series, together with
accrued interest thereon, if any, to be due and payable
immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon any such declaration such
principal amount (or specified amount), together with accrued
interest thereon, if any, shall become immediately due and payable.
At any time after such a declaration of acceleration with respect
to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article provided, the Holders of a
majority in principal amount of the Outstanding Securities of that
series, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that
series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than
by such declaration of acceleration and interest thereon at
the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) in Dollars all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default with respect to Securities of that
series, other than the nonpayment of the principal of Securities
of that series which has become due solely by such declaration
of acceleration, have been cured or waived as provided in
Section 613.
No such rescission shall affect any subsequent default or impair
any right consequent thereon.
SECTION 603. Collection of Indebtedness and Suits for Enforcement
by Trustee. The Company covenants that if
(1) default shall be made in the payment of any installment of
interest on any Security or Coupon as and when the same shall
become due and payable, and such default shall have continued
for the period of grace provided for with respect to such
Security or Coupon, as the case may be,
(2) default shall be made in the payment of the principal of
or premium, if any, on any Security as and when the same shall
have become due and payable (subject to clause (3) below),
whether at maturity of the Security or upon redemption or by
declaration or otherwise, and such default shall have continued
for any period of grace provided for with respect to such
Security, or
(3) default shall be made in the making of any payment for any
sinking, purchase or analogous fund provided for in respect of
any Security as and when the same shall become due and payable,
and such default shall have continued for any period of grace
provided for with respect to such Security,
the Company will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities and Coupons, if any, the
whole amount then due and payable on such Securities and Coupons,
if any, for principal (and premium, if any) and interest, if any,
and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal (and premium, if
any) and on any overdue installments of interest, if any, at the
rate or rates prescribed therefor in such Securities and Coupons,
if any, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express
trust, may institute a judicial proceeding for the collection of
the sums so due and unpaid, may prosecute such proceeding to
judgment or final decree and may enforce the same against the
Company or any other obligor upon such Securities and Coupons, if
any, and collect the moneys adjudged or decreed to be payable in
the manner provided by law out of the property of the Company or
any other obligor upon such Securities and Coupons, if any,
wherever situated.
If an Event of Default with respect to Securities and Coupons, if
any, of any series occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights
of the Holders of Securities and/or Coupons of such series by such
appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture
or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
SECTION 604. Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor
upon the Securities or the property of the Company or of such other
obligor or their creditors, the Trustee (irrespective of whether
the principal of the Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest, if any, owing and
unpaid in respect of the Securities and to file such other
papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel) and of the Holders allowed
in such judicial proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the
same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under
Section 707.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities and/or Coupons or the rights
of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 605. Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or
the Securities and Coupons, if any, may be prosecuted and enforced
by the Trustee without the possession of any of the Securities or
Coupons, if any, or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment
of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable
benefit of the Holders of the Securities and Coupons, if any, in
respect of which such judgment has been recovered.
SECTION 606. Application of Money Collected. Any money collected
by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in
case of the distribution of such money on account of principal (or
premium, if any) or interest, upon presentation of the Securities
and Coupons, if any, and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: to the payment of all amounts due the Trustee under
Section 707;
SECOND: to the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the
Securities and Coupons, if any, in respect of which or for the
benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due
and payable on such Securities and/or Coupons for principal (and
premium, if any) and interest, if any, respectively; and
THIRD: the balance, if any, to the Person or Persons entitled
thereto.
SECTION 607. Limitation on Suits. No Holder of Securities of any
series shall have any right to institute any proceeding, judicial
or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) an Event of Default with respect to Securities of such
series shall have occurred and be continuing and such Holder has
previously given written notice to the Trustee of such
continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series or, in the case of an
Event of Default specified in Clause (5) or (6) of Section 601,
of all series (voting as a class) with respect to which such
Event of Default has occurred and is continuing, shall have made
written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee
hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities
to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the
Holders of a majority in principal amount of the Outstanding
Securities of that series or, in the case of an Event of Default
specified in Clause (5) or (6) of Section 601, of all series
(voting as a class) with respect to which such Event of Default
has occurred and is continuing;
it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by virtue of,
or by availing of, any provision of this Indenture (including
without limitation the provisions of Section 612) to affect,
disturb or prejudice the rights of any other of such Holders, or to
obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable
benefit of all such Holders.
SECTION 608. Unconditional Right of Holders To Receive Principal,
Premium and Interest. Notwithstanding any other provision in this
Indenture, the Holder of any Security or any Coupon shall have the
right, which is absolute and unconditional, to receive payment of
the principal of (and premium, if any) and (subject to Section 406)
interest, if any, on such Security or Coupon on the Stated Maturity
or Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder.
SECTION 609. Restoration of Rights and Remedies. If the Trustee
or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, the Company,
the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all
rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 610. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities and/or Coupons, if any, in the
last paragraph of Section 405, no right or remedy herein conferred
upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy
shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion
or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 611. Delay or Omission Not Waiver. No delay or omission
of the Trustee or of any Holder of any Securities and/or Coupons to
exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Subject to the
provisions of Section 607, every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised
from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
SECTION 612. Control by Holders. The Holders of not less than a
majority in principal amount of the Outstanding Securities of any
series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series; provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture.
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) subject to the provisions of Section 701, the Trustee
shall have the right to decline to follow any such direction if
the Trustee in good faith shall, by a Responsible Trust Officer
or Officers of the Trustee, determine that the action so
directed would involve the Trustee in personal liability or
would be unduly prejudicial to Holders not joining in such
direction.
SECTION 613. Waiver of Past Defaults. The Holders of not less
than a majority in principal amount of the Outstanding Securities
of any series may on behalf of the Holders of all the Securities of
such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest, if any, on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article Ten cannot be modified or amended without the consent of
the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist with
respect to such series, and any Event of Default with respect to
such series arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other default or impair any right
consequent thereon.
SECTION 614. Undertaking for Costs. All parties to this Indenture
agree, and each Holder of a Security and/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 and expenses, against any party litigant in such
suit in the manner and to the extent provided in Section 315(e) of
the Trust Indenture Act, having due regard to the merits and good
faith of the claims or defenses made by such party litigant; but
the provisions of this Section shall not apply to any suit
instituted by the Company, to any suit instituted by the Trustee,
to any suit instituted by any Holder, or group of Holders, holding
in the aggregate more than 10% in principal amount of the
Outstanding Securities of any series, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of
(or premium, if any) or interest, if any, on any Security or the
payment of interest on any Coupon on or after the Stated Maturity
or Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
SECTION 615. Waiver of Stay or Extension Laws. The Company
covenants (to the extent that it may lawfully do so) that it will
not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension
law wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture; and
the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been
enacted.
ARTICLE SEVEN
The Trustee
SECTION 701. Certain Duties and Responsibilities. The duties and
responsibilities of the Trustee shall be as provided by the Trust
Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds
or otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it. Whether or not
therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of
this Section.
SECTION 702. Notice of Defaults. Within 90 days after the
occurrence of any default hereunder with respect to the Securities
of any series, the Trustee shall transmit to the Holders of
Securities of such series notice as provided in Section 106 of such
default hereunder known to the Trustee, unless such default shall
have been cured or waived; provided, however, that, except in the
case of a default in the payment of the principal of (or premium,
if any, on) or interest on any Security of such series or in the
payment of any sinking fund installment with respect to Securities
of such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive
committee or a trust committee of directors or Responsible Trust
Officers of the Trustee in good faith determines that the
withholding of such notice is in the interest of the Holders of
Securities of such series; provided further that in the case of any
default of the character specified in Section 601(4) with respect
to Securities of such series, no such notice to Holders shall be
given until at least 30 days after the occurrence of such default.
For the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become, an
Event of Default with respect to Securities of such series.
SECTION 703. Certain Rights of Trustee. Subject to the provisions
of Section 701 and subject to Sections 315(a) through (d) of the
Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting in reliance upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note,
coupon, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company
Order and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this
Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with
such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, coupon, other
evidence of indebtedness or other paper or document;
(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 counsel, and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or counsel appointed with due care (and, in the case of
any agent, with the prior written consent of the Company;
provided, however, that the Company's prior written consent
shall not be required in connection with the appointment of an
agent as a result of or in connection with a default or an Event
of Default) by it hereunder; and
(h) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers
conferred upon it by this Indenture.
SECTION 704. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities,
except the Trustee's certificates of authentication, shall be taken
as the statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture
or of the Securities. Neither the Trustee nor any Authenticating
Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 705. May Hold Securities. The Trustee, any Paying Agent,
any Security Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee
of Securities or warrants to purchase Securities and, subject to
Sections 708 and 713, may otherwise deal with the Company with the
same rights it would have if it were not Trustee, Paying Agent,
Security Registrar or such other agent.
SECTION 706. Money Held in Trust. Except as provided in Section
114, money held by the Trustee or any Paying Agent in trust
hereunder need not be segregated from other funds except to the
extent required by law. The Trustee or any Paying Agent shall be
under no liability for interest on any money received by it
hereunder except as otherwise agreed with the Company.
SECTION 707. Compensation and Reimbursement. The Company agrees
(1) to pay to the Trustee from time to time in Dollars such
compensation as shall be agreed to in writing between the
Company and the Trustee for all services rendered by it
hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of
an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee in Dollars upon its request for all
reasonable expenses, disbursements and advances incurred or made
by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except
any such expense, disbursement or advance as may be attributable
to its negligence or bad faith; and
(3) to indemnify the Trustee in Dollars for, and to hold it
harmless against, any and all loss, liability, damage, claim or
expense, including taxes (other than taxes based upon, or
measured or determined by, the income of the Trustee) incurred
without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration of the trust
or trusts hereunder, including the costs and expenses of
defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties
hereunder.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the
Securities upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the payment of
principal of, premium, if any, or interest, if any, on particular
Securities.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 601(5) and
Section 601(6), the expenses (including the reasonable charges and
expenses of its counsel) and the compensation for the services are
intended to constitute expenses of administration under any
applicable Federal or state bankruptcy, insolvency or other similar
law. The provisions of this Section shall survive the termination
of this Indenture.
SECTION 708. Disqualification; Conflicting Interests. If the
Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture
Act and this Indenture. To the extent permitted by such Act, the
Trustee shall not be deemed to have a conflicting interest by
virtue of (i) being a trustee under this Indenture with respect to
Securities of more than one series, or (ii) being a trustee under
the indenture dated as of May 3, 1995, between the Company and The
First National Bank of Boston..
SECTION 709. Corporate Trustee Required; Eligibility. There shall
at all times be a Trustee for each series of Securities hereunder
which shall be either (1) a corporation or other Person organized
and doing business under the laws of the United States of America,
any State thereof or the District of Columbia, which is authorized
under such laws to exercise corporate trust powers and is subject
to supervision or examination by Federal or State authority or (2)
a corporation or other Person organized and doing business under
the laws of a foreign government that is permitted to act as
Trustee pursuant to a rule, regulation or order of the Commission,
which is authorized under such laws to exercise corporate trust
powers and is subject to supervision or examination by authority of
such foreign government or a political subdivision thereof
substantially equivalent to supervision or examination applicable
to United States institutional trustees; in either case having a
combined capital and surplus of at least $50,000,000. If such
corporation or Person publishes reports of condition at least
annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation or
Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published.
Neither the Company nor any Person directly or indirectly
controlling, controlled by, or under common control with the
Company shall serve as trustee for the Securities of any series
issued hereunder. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 710. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 711.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof
to the Company. If the instrument of acceptance by a successor
Trustee required by Section 711 shall not have been delivered to
the resigning Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court
of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 708 after
written request therefor by the Company or by any Holder who has
been a bona fide Holder of a Security of a series as to which
the Trustee has a conflicting interest for at least six months,
or
(2) the Trustee for a series shall cease to be eligible under
Section 709 and shall fail to resign after written request
therefor by the Company or by any Holder of Securities of such
series, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or
of its property shall be appointed or any public officer shall
take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by a Board Resolution may
remove the Trustee with respect to the series, or, in its
discretion, with respect to all Securities, or (ii) subject to
Section 614, any Holder who has been a bona fide Holder of a
Security for at least six months (and, in the case of Clause (1)
above, who is a holder of a Security of a series as to which the
Trustee has a conflicting interest) may, on behalf of himself and
all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to the
series, or in the case of clause (3), with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of the Trustee
for any cause, with respect to the Securities of one or more
series, the Company, by a Board Resolution, shall promptly appoint
a successor Trustee or Trustees with respect to the Securities of
that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or
more of or all such series and that at any time there shall be only
one Trustee with respect to the Securities of any particular
series) and such successor Trustee or Trustees shall comply with
the applicable requirements of Section 711. If, within one year
after such resignation, removal or incapability, or the occurrence
of such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements
of Section 711, become the successor Trustee with respect to the
Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee
with respect to the Securities of any series shall have been so
appointed by the Company or the Holders and accepted appointment in
the manner required by Section 711, any Holder who has been a bona
fide Holder of a Security of such series for at least six months
may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of
a successor Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series
and each appointment of a successor Trustee with respect to the
Securities of any series by giving notice of such event to all
Holders of Securities of such series as provided by Section 106.
Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its
Corporate Trust Office.
SECTION 711. Acceptance of Appointment by Successor. (a) In case
of the appointment hereunder of a successor Trustee with respect to
all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on the request of
the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series,
the Company, the retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each successor
Trustee shall accept such appointment and which (1) shall contain
such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights,
powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the appointment of
such successor Trustee relates, (2) if the retiring Trustee is not
retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series as
to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and (3) shall add to or change any
of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute
such Trustees cotrustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate
and apart from any trust or trusts hereunder administered by any
other such Trustee; and upon the execution and delivery of such
supplemental indenture, the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein and
each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities
of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of
that or those series to which the appointment of such successor
Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such
rights, powers and trusts referred to in paragraph (a) or (b) of
this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be
qualified and eligible under this Article.
SECTION 712. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Trustee,
including the trust created by this Indenture, shall be the
successor of the Trustee hereunder, provided that such corporation
shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Securities shall
have been authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as if
such successor Trustee had itself authenticated such Securities.
SECTION 713. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the
Company (or of any other obligor upon the Securities or the
Coupons, if any), the Trustee shall be subject to the provisions of
the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
SECTION 714. Judgment Currency. If, for the purpose of obtaining
a judgment in any court with respect to any obligation of the
Company hereunder or under any Security or Coupon, it shall become
necessary to convert into any other currency or currency unit any
amount in the currency or currency unit due hereunder or under such
Security or Coupon, then such conversion shall be made at the
Conversion Rate (as defined below) as in effect on the date the
Company shall make payment to any Person in satisfaction of such
judgment. If pursuant to any such judgment, conversion shall be
made on a date other than the date payment is made and there shall
occur a change between such Conversion Rate and the Conversion Rate
as in effect on the date of payment or distribution, the Company
agrees to pay such additional amounts (if any) as may be necessary
to ensure that the amount paid is the amount in such other currency
or currency unit which, when converted at the Conversion Rate as in
effect on the date of payment or distribution, is the amount then
due hereunder or under such Security or Coupon. Any amount due from
the Company under this Section 714 shall be due as a separate debt
and is not to be affected by or merged into any judgment being
obtained for any other sums due hereunder or in respect of any
Security or Coupon so that in any event the Company's obligations
hereunder or under such Security or Coupon will be effectively
maintained as obligations in such currency or currency unit. In no
event, however, shall the Company be required to pay more in the
currency or currency unit stated to be due hereunder or under such
Security or Coupon.
For purposes of this Section 714, "Conversion Rate" shall mean,
as of any date, for any currency or currency unit into which an
amount due hereunder or under any Security or Coupon is to be
converted, the noon buying rate in the other currency or currency
unit for that currency or currency unit for cable transfers quoted
in New York City on such date as certified for customs purposes by
the Federal Reserve Bank of New York. If such rates are not
available for any reason with respect to one or more currencies or
currency units for which a Conversion Rate is required, the
Exchange Rate Agent shall use, in its sole discretion and without
liability on its part, such quotation of the Federal Reserve Bank
of New York as of the most recent available date, or quotations
from one or more major banks in New York City or in the country of
issue of the currency in question, or such other quotations as the
Exchange Rate Agent shall deem appropriate. Unless otherwise
specified by the Exchange Rate Agent, if there is more than one
market for dealing in a currency or currency unit by reason of
foreign exchange regulations or otherwise, the market to be used in
respect of such currency or currency unit shall be that upon which
a nonresident issuer of securities denominated in such currency or
currency unit would, as determined in its sole discretion and
without liability on the part of the Exchange Rate Agent, purchase
such currency or currency unit in order to make payments in respect
of such securities. If there does not exist a quoted exchange rate
in any currency or currency unit (the "First Currency") for another
currency unit (the "Second Currency"), then the Conversion Rate for
the Second Currency shall be equal to equivalent amount in the
First Currency obtained by converting the Specified Amount of each
Component Currency of the Second Currency into the First Currency
at the Conversion Rate (determined as provided above) for each such
Component Currency on such date (or, if the First Currency is a
currency unit for which there is no quoted exchange rate in any
Component Currency, by converting the Specified Amount of each
Component Currency of the Second Currency into the Specified Amount
of each Component Currency of the First Currency at the Conversion
Rate (determined as provided above) for each such Component
Currency on such date).
SECTION 715. Appointment of Authenticating Agent. The Company may
appoint an Authenticating Agent or Agents with respect to one or
more series of Securities which shall be authorized to act on
behalf of the Trustee to authenticate Securities of such series
issued upon original issue or upon exchange, registration of
transfer or partial redemption thereof or pursuant to Section 405,
and Securities so authenticated shall be entitled to the benefits
of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever
reference is made in this Indenture to the authentication and
delivery of Securities by the Trustee or the Trustee's certificate
of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed
on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Trustee and shall
at all times be a corporation having a combined capital and surplus
of not less than the equivalent of $50,000,000 and subject to
supervision or examination by Federal, state or District of
Columbia authority or the equivalent foreign authority, in the case
of an Authenticating Agent who is not organized and doing business
under the laws of the United States of America, any state thereof
or the District of Columbia. If such Authenticating Agent publishes
reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of
such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of
this Section, such Authenticating Agent shall resign immediately in
the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged
or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation
to which such Authenticating Agent shall be a party, or any
corporation succeeding to the corporate agency or corporate trust
business of such Authenticating Agent, shall continue to be an
Authenticating Agent; provided such corporation shall be otherwise
eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or such
Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Company may
at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to
the Trustee. Upon receiving such a notice of resignation or upon
such a termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions
of this Section, the Company may appoint a successor Authenticating
Agent which shall be acceptable to the Trustee and shall mail, or
cause to be mailed, written notice of such appointment by first-
class mail, postage prepaid, to all Holders of Registered
Securities, if any, of the series with respect to which such
Authenticating Agent will serve, as their names and addresses
appear in the Security Register. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested
with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services under this
Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have
endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the
following form:
This is one of the Securities of the series designated herein
issued under the within-mentioned Indenture.
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By
As Authenticating Agent
By
Authorized [Officer] [Signatory]
If all the Securities of a series may not be originally issued
at one time, and if the Trustee does not have an office capable of
authenticating Securities upon original issuance located in a Place
of Payment or other place where the Company wishes to have
Securities of such series authenticated upon original issuance, the
Company shall appoint in accordance with this Section an
Authenticating Agent (which may be an Affiliate of the Company if
eligible to be appointed as an Authenticating Agent hereunder)
having an office in such Place of Payment or other place designated
by the Company with respect to such series of Securities.
ARTICLE EIGHT
Holders' Lists and Reports by Trustee and Company
SECTION 801. Company To Furnish Trustee Names and Addresses of
Holders. The Company will furnish or cause to be furnished to the
Trustee:
(a) semiannually, not later than January 15 and July 15 in
each year, a list in such form as the Trustee may reasonably
require and which shall comply with the requirements of the
Trust Indenture Act, of the names and addresses of the Holders
of each series of Registered Securities as of the preceding
January 1 or July 1, as the case may be, and such information
concerning the Holders of Bearer Securities which is known to
the Company or any Paying Agent other than the Company;
provided, however, that the Company and such Paying Agents
shall have no obligation to investigate any matter relating
to any Holder of a Bearer Security or a Coupon; and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such
request, a list of similar form and content, such list to be
dated as of a date not more than 15 days prior to the time such
list is furnished, and such information concerning the Holders
of Bearer Securities which is known to the Company or any such
Paying Agent; provided, however, that the Company and such
Paying Agents shall have no obligation to investigate any matter
relating to any Holder of a Bearer Security or a Coupon;
notwithstanding the foregoing subsections (a) and (b), at such
times as the Trustee is the Security Registrar and Paying Agent
with respect to a particular series of Securities, no such list
shall be required to be furnished in respect of such series.
SECTION 802. Preservation of Information; Communications to
Holders. (a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of each
series contained in the most recent list furnished to the Trustee
as provided in Section 801 and the names and addresses of Holders
of each series received by the Trustee in any capacity as Security
Registrar or Paying Agent. The Trustee may destroy any list
furnished to it as provided in Section 801 upon receipt of a new
list so furnished.
(b) The rights of the Holders to communicate with other Holders
with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and duties of the Trustee,
shall be as provided by the Trust Indenture Act.
(c) Every Holder of Securities or Coupons, by receiving and
holding the same, agrees with the Company and the Trustee that
neither the Company nor the Trustee nor any agent of either of them
shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders in
accordance with Section 312 of the Trust Indenture Act, regardless
of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under Section 312(b) of the
Trust Indenture Act.
SECTION 803. Reports by Trustee. (a) Within 60 days after May 15
of each year commencing with the May 15 occurring after the initial
issuance of Securities hereunder, the Trustee shall transmit to the
Holders of Securities, in the manner and to the extent provided in
Section 313(c) of the Trust Indenture Act, a brief report, dated as
of such May 15, if required by Section 313(a) of the Trust
Indenture Act. The Trustee also shall comply with Section 313(b)
of the Trust Indenture Act and shall transmit to Holders, in the
manner and to the extent provided in said Section 313(c), such
other reports, if any, as may be required pursuant to the Trust
Indenture Act.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock
exchange upon which any Securities are listed, with the Commission
and with the Company. The Company will notify the Trustee when any
Securities are listed on any stock exchange.
SECTION 804. Reports by Company. The Company shall file with
the Trustee and the Commission, and transmit to Holders, such
information, documents and reports, and such summaries thereof and
copies of portions thereof, as may be required pursuant to Section
314 of the Trust Indenture Act at the times and in the manner
provided pursuant to such Act; provided that any such information,
documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 shall be filed with the Trustee within 15 days after the same
shall be so required to be filed with the Commission.
ARTICLE NINE
Consolidation, Merger, Conveyance or Transfer
SECTION 901. Company May Consolidate, etc., Only on Certain
Terms. The Company shall not consolidate with or merge into any
other corporation or convey or transfer its properties and assets
substantially as an entirety to any Person, unless:
(1) the corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance
or transfer the properties and assets of the Company
substantially as an entirety shall be a corporation organized
and existing under the laws of the United States of America or
any state or the District of Columbia, and shall expressly
assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee,
the due and punctual payment of the principal of, and premium,
if any, and interest, if any, on all the Securities and the
performance or observance of every covenant of this Indenture on
the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of
time, or both, would become an Event of Default, shall have
occurred and be continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such
supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such
transaction have been complied with.
SECTION 902. Successor Corporation Substituted. Upon any
consolidation or merger, or any conveyance or transfer of the
properties and assets of the Company substantially as an entirety
in accordance with Section 901, the successor corporation formed by
such consolidation or into which the Company is merged or to which
such conveyance or transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such
successor corporation had been named as the Company herein; and in
the event of any such conveyance or transfer, the Company (which
term shall for this purpose mean the Person named as the "Company"
in the first paragraph of this instrument or any successor
corporation which shall have theretofore become such in the manner
prescribed in Section 901) shall be discharged from all liability
under this Indenture and in respect of the Securities and may be
dissolved and liquidated.
ARTICLE TEN
Supplemental Indentures
SECTION 1001. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by
or pursuant to a Board Resolution, and the Trustee, at any time and
from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any
of the following purposes:
(1) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the
covenants of the Company herein and in the Securities;
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being
included solely for the benefit of such series) or to surrender
any right or power herein conferred upon the Company;
(3) to add any additional Events of Default with respect to
all or any series of the Securities (and, if such Event of
Default is applicable to less than all series of Securities,
specifying the series to which such Event of Default is
applicable);
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to facilitate the
issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest
coupons; to change or eliminate any restrictions on the payment
of principal of or any premium or interest on Bearer Securities,
to permit Bearer Securities to be issued in exchange for Bearer
Securities of other authorized denominations; provided that any
such addition or change shall not adversely affect the interests
of the Holders of Securities of any series or any related
Coupons in any material respect;
(5) to change or eliminate any of the provisions of this
Indenture; provided that any such change or elimination shall
become effective only when there is no Security Outstanding of
any series created prior to the execution of such supplemental
indenture which is adversely affected by such change in or
elimination of such provision;
(6) to establish the form or terms of Securities of any series
as permitted by Sections 202 and 301;
(7) 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
711(b);
(8) if allowed under applicable laws and regulations, to
permit payment in the United States of principal, premium or
interest on Bearer Securities or Coupons, if any;
(9) to provide for the issuance of uncertificated Securities
of one or more series in addition to or in place of
certificated Securities;
(10) to cure any ambiguity or to correct or supplement any
provision herein which may be defective or inconsistent with any
other provision herein; or
(11) to make any other provisions with respect to matters or
questions arising under this Indenture; provided such other
provisions as may be made shall not adversely affect the
interests of the Holders of outstanding Securities of any series
in any material respect.
SECTION 1002. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of all series
affected by such supplemental indenture (acting as one class), by
Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by or pursuant to a Board Resolution, and
the Trustee may enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture
or of modifying in any manner the rights of the Holders of
Securities of such series under this indenture; provided, however,
that no such supplemental indenture shall, without the consent of
the Holder of each outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or
reduce the principal amount thereof or the rate of interest
thereon or any premium payable upon the redemption thereof, or
reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 602, or
change any Place of Payment where, or the currency, currencies
or currency unit or units in which, any Security or any premium
or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or affect
adversely the terms, if any, of conversion of any Security into
stock or other securities of the Company or of any other
corporation,
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose
Holders is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this
Indenture,
(3) change any obligation of the Company, with respect to
Outstanding Securities of a series, to maintain an office or
agency in the places and for the purposes specified in Section
1102 for such series, or
(4) modify any of the provisions of this Section, Section 613
or Section 1107, except to increase any such percentage or to
provide with respect to the Securities of any particular series
the right to condition the effectiveness of any supplemental
indenture as to that series on the consent of the Holders of a
specified percentage of the aggregate principal amount of
Outstanding Securities of such series (which provision may be
made pursuant to Section 202 or Section 301, as the case may be,
without the consent of any Holder) or to provide that certain
other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause shall not
be deemed to require the consent of any Holder with respect to
changes in the references to "the Trustee" and concomitant
changes in this Section and Section 1107, or the deletion of
this proviso, in accordance with the requirements of Section
711(b) and 1001(7).
For purposes of this Section 1002, if the Securities of any
series are issuable upon the exercise of warrants, each holder of
an unexercised and unexpired warrant with respect to such series
shall be deemed to be a Holder of Outstanding Securities of such
series in the amount issuable upon the exercise of such warrant.
For such purposes, the ownership of any such warrant shall be
determined by the Company in a manner consistent with customary
commercial practices. The Trustee for such series shall be entitled
to rely on an Officers' Certificate as to the principal amount of
Securities of such series in respect of which consents shall have
been executed by holders of such warrants.
A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of the Holders of
Securities of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
SECTION 1003. Execution of Supplemental Indentures. In executing,
or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled
to receive (in addition to the opinion which the Trustee is
entitled to receive pursuant to Section 202), and (subject to
Section 701) shall be fully protected in relying upon, an Opinion
of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights,
duties, immunities or liabilities under this Indenture or
otherwise.
SECTION 1004. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
SECTION 1005. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in
effect.
SECTION 1006. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article
may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new
Securities of any series so modified as to conform, in the opinion
of the Trustee and the Company, to any such supplemental indenture
may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of
such series.
ARTICLE ELEVEN
Covenants
SECTION 1101. Payment of Principal, Premium and Interest. The
Company covenants and agrees for the benefit of each series of
Securities and Coupons, if any, that it will duly and punctually
pay the principal of (and premium, if any, on) and interest, if
any, on the Securities and Coupons, if any, of that series in
accordance with the terms of the Securities and Coupons, if any, of
such series and this Indenture.
SECTION 1102. Maintenance of Office or Agency. If Securities of a
series are issuable only as Registered Securities, the Company will
maintain in each Place of Payment for such series an office or
agency where Securities of that series may be presented or
surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. If
Securities of a series are issuable as both Registered or Bearer
Securities or only as Bearer Securities, the Company will maintain
(A) in the Borough of Manhattan, The City of New York, an office or
agency where any Registered Securities of that series may be
presented or surrendered for payment, where any Registered
Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for
exchange, where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be
served and where Bearer Securities of that series and related
Coupons may be presented or surrendered for payment in the
circumstances described in the proviso contained in the last
sentence of this first paragraph of Section 1102 (and not
otherwise), (B) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series which is located
outside the United States, an office or agency where Securities of
that series and related Coupons may be presented and surrendered
for payment (including payment of any additional amounts payable on
Securities of that series pursuant to Section 1108); provided,
however, that if the Securities of that series are listed on any
stock exchange located outside the United States and such stock
exchange shall so require, the Company will maintain a Paying Agent
for the Securities of that series in any required city located
outside the United States, so long as the Securities of that series
are listed on such exchange, and (C) subject to any laws or
regulations applicable thereto, in a Place of Payment for that
series located outside the United States, an office or agency where
any Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be
surrendered for exchange and where notices and demands to or upon
the Company in respect of the Securities of that series and this
Indenture may be served. The Company will give prompt written
notice to the Trustee and the Holders of the location, and any
change in the location, of any such office or agency. If at any
time the Company shall fail to maintain any such required office or
agency in respect of any series of Securities or shall fail to
furnish the Trustee with the address thereof, such presentations
and surrenders of Securities of that series may be made and notices
and demands may be made or served at the office or agency of the
Company in the Borough of Manhattan, The City of New York, except
that Bearer Securities of that series and the related Coupons may
be presented and surrendered for payment (including payment of any
additional amounts payable on Bearer Securities of that series
pursuant to Section 1108) at the London office of the Trustee (or
an agent with a London office appointed by the Trustee and
acceptable to the Company), and the Company hereby appoints the
same as its agent to receive such respective presentations,
surrenders, notices and demands. No payment of principal, premium
or interest on Bearer Securities shall be made at any office or
agency of the Company in the United States or by check mailed to
any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided,
however, that, if the Securities of a series are denominated and
payable in Dollars, payment of principal of and any premium and
interest on any Bearer Security (including any additional amounts
payable on Securities of such series pursuant to Section 1108)
shall be made at the office of the Company's Paying Agent in the
Borough of Manhattan, The City of New York, if (but only if)
payment in Dollars of the full amount of such principal, premium,
interest or additional amounts, as the case may be, at all offices
or agencies outside the United States maintained for the purpose by
the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar
restrictions.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more
series may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or
agency in accordance with the requirements set forth above for
Securities of any series for such purposes. The Company will give
prompt written notice to the Trustee and the Holders of any such
designation or rescission and of any change in the location of any
such other office or agency.
SECTION 1103. Money for Securities Payments To Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due
date of the principal of (and premium, if any, on) or interest, if
any, on any of the Securities of that series, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum in the
relevant currency (or a sufficient number of currency units, as the
case may be) sufficient to pay the principal (and premium, if any,
on) or interest so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided and will
promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, at or prior to the opening of
business on each due date of the principal of (and premium, if any,
on) or interest, if any, on any Securities of that series, deposit
with a Paying Agent a sum sufficient to pay the principal (and
premium, if any) or interest so becoming due, such sum to be held
in trust for the benefit of the Persons entitled to such principal,
premium or interest, and (unless such Paying Agent is the Trustee)
the Company will promptly notify the Trustee of its action or
failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with
the Trustee, subject to the provisions of this Section, that such
Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of (and premium, if any, on) or interest, if any, on Securities
of that series in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the
making of any payment of principal (and premium, if any, on) or
interest, if any, on the Securities of that series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such Paying
Agent, such sums to be held by the Trustee upon the same trusts as
those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of
(and premium, if any, on) or interest, if any, on any Security of
any series and remaining unclaimed for two years after such
principal (and premium, if any) or interest has become due and
payable shall be paid to the Company, or (if then held by the
Company) shall be discharged from such trust; and the Holder of
such Security and Coupons, if any, shall thereafter, as an
unsecured general creditor, look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any
such repayment, may at the expense and at the direction of the
Company cause to be published once, in a newspaper published in the
English language, customarily published on each Business Day and of
general circulation in the Borough of Manhattan, The City of New
York, notice that such money remains unclaimed and that, after a
date specified herein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Company. All moneys payable to
the Company by the Trustee or any Paying Agent as provided in the
preceding sentence shall be paid to the Company on May 31 of each
year.
SECTION 1104. Restrictions on Secured Debt. The Company will
not itself, and will not permit any Restricted Subsidiary to,
incur, issue, assume, or guarantee any Debt, whether or not
evidenced by negotiable instruments or securities, secured after
the date hereof by Mortgage on any Principal Property of the
Company or any Restricted Subsidiary or any shares of Capital Stock
of or Debt of any Restricted Subsidiary, without effectively
providing that all the Securities Outstanding (together with, if
the Company shall so determine, any other Debt of the Company or
such Restricted Subsidiary then existing or thereafter created
which is not subordinate to any of the Securities) shall be secured
equally and ratably with (or, at the option of the Company, prior
to) such secured Debt, so long as such secured Debt shall be so
secured, unless, after giving effect thereto, the aggregate amount
of all such secured Debt plus all Attributable Debt of the Company
and its Restricted Subsidiaries with respect to sale and leaseback
transactions to which Section 1105 is applicable would not exceed
15% of Consolidated Net Tangible Assets; provided, however, that
this Section shall not apply to, and there shall be excluded from
secured Debt in any computation under this Section, Debt secured
by:
(a) Mortgages on property of, or on any shares of Capital
Stock of or Debt of, any corporation existing at the time such
corporation becomes a Restricted Subsidiary provided, however,
that such Mortgages in effect as of the date of acquisition of a
Restricted Subsidiary or a business acquired by a Restricted
Subsidiary shall not have been incurred in contemplation of such
acquisition;
(b) Mortgages in favor of the Company or any Restricted
Subsidiary;
(c) Mortgages in favor of any governmental body to secure
progress, advance or other payments pursuant to any contract or
provisions of any statute;
(d) Mortgages on property, shares of Capital Stock or Debt
existing at the time of acquisition thereof (including
acquisition through merger or consolidation) or to secure the
payment of all or any part of the purchase price thereof or
construction thereon or to secure any Debt incurred prior to, at
the time of, or within 180 days after the later of the
acquisition of such property, shares of Capital Stock or Debt or
the completion of construction for the purpose of financing all
or any part of the purchase price thereof or construction
thereon;
(e) Mortgages securing obligations issued by a state,
territory or possession of the United States, any political
subdivision of any of the foregoing, or the District of
Columbia, or any instrumentality of any of the foregoing to
finance the acquisition or construction of property and on which
the interest is not, in the opinion of tax counsel of recognized
standing or in accordance with a ruling issued by the Internal
Revenue Service, includible in gross income of the holder by
reason of Section 103 of the Internal Revenue Code (or any
successor to such provision) as in effect at the time of the
issuance of such obligations;
(f) Mortgages made in connection with, or to secure payment
of, workmen's compensation, unemployment insurance, old age
pensions or other social security obligations;
(g) Mortgages of carriers, warehousemen, mechanics and
materialmen, and other like liens, in existence less than 120
days from the date of creation thereof in respect of obligations
not overdue, provided that such liens may continue to exist for
a period of more than 120 days if the validity or amount thereof
shall currently be contested by the Company or any of its
Restricted Subsidiaries in good faith by appropriate proceedings
and if the Company or any of its Restricted Subsidiaries shall
have set aside on its books adequate reserves with respect
thereto as required by GAAP and provided further that the
Company or any of its Restricted Subsidiaries will pay any such
claim forthwith upon commencement of proceedings to foreclose
any such lien;
(h) encumbrances consisting of easements, rights of way,
zoning restrictions, restrictions on the use of real property
and defects and irregularities in the title thereto, landlord's
or lessor's liens under leases to which the Company or any of
its Restricted Subsidiaries is a party, and other minor liens or
encumbrances none of which in the opinion of the Company
interferes materially with the use of the property affected in
the ordinary conduct of the business of the Company or any of
its Restricted Subsidiaries which defects do not individually or
in the aggregate have a material adverse effect on the business
of the Company or of its Restricted Subsidiaries individually or
of the Company and its Restricted Subsidiaries on a consolidated
basis;
(i) Mortgages in respect of judgments or awards which have
been in force for less than the applicable period for taking an
appeal so long as execution is not levied thereunder or in
respect of which the Company or any of its Restricted
Subsidiaries shall at the time in good faith be prosecuting an
appeal or proceedings for review and in respect of which a stay
of execution shall have been obtained pending such appeal or
review and in respect of which the Company or any of its
Restricted Subsidiaries has maintained adequate reserves; or
(j) Any extension, renewal or replacement (or successive
extensions, renewals or replacements), as a whole or in part, of
any Mortgage referred to in the foregoing clauses (a) to (i),
inclusive; provided, however, that such extension, renewal or
replacement Mortgage shall be limited to all or part of the same
property, shares of Capital Stock or Debt that secured the
Mortgage so extended, renewed or replaced (plus improvements on
such property).
SECTION 1105. Restrictions on Sales and Leasebacks. The Company
will not itself, and will not permit any Restricted Subsidiary to,
enter into any transaction after the date hereof with any bank,
insurance company or other lender or investor, or to which any such
bank, company, lender or investor is a party, providing for the
leasing by the Company or a Restricted Subsidiary of any Principal
Property which has been or is to be sold or transferred by the
Company or such Restricted Subsidiary to such bank, company, lender
or investor, or to any person to whom funds have been or are to be
advanced by such bank, company, lender or investor on the security
of such Principal Property (herein referred to as a "sale and
leaseback transaction") unless, after giving effect thereto, the
aggregate amount of all Attributable Debt with respect to all such
transactions plus all secured Debt to which Section 1104 is
applicable would not exceed 10% of Consolidated Net Tangible
Assets. This covenant shall not apply, and there shall be excluded
from Attributable Debt in any computation under this Section,
Attributable Debt with respect to any sale and leaseback
transaction if:
(a) the lease in such sale and leaseback transaction is for a
period, including renewal rights, of not in excess of three
years; or
(b) the Company or a Restricted Subsidiary, within 180 days
after the sale or transfer shall have been made by the Company
or by a Restricted Subsidiary, applies an amount equal to the
greater of the net proceeds of the sale of the Principal
Property so leased or the fair market value of the Principal
Property so leased at the time of entering into such arrangement
(as determined in a reasonable manner approved by the Board of
Directors) (i) to the retirement of Securities or other Funded
Debt of the Company ranking on a parity with or senior to all
the Securities, or the retirement of the Funded Debt of a
Restricted Subsidiary, provided, however, that the amount to be
applied to the retirement of such Funded Debt of the Company or
a Restricted Subsidiary shall be reduced by (x) the principal
amount of any Securities, or other notes or debentures
constituting such Funded Debt, delivered within such 180-day
period to the trustee or other applicable trustee for retirement
and cancelation and (y) the principal amount of such Funded
Debt, other than items referred to in the preceding clause (x),
voluntarily retired by the Company or a Restricted Subsidiary
within 180 days after such sale, and provided, further, that,
notwithstanding the foregoing, no retirement referred to in this
clause (i) may be effected by payment at maturity or pursuant to
any mandatory sinking fund payment or any mandatory prepayment
provision; or (ii) to the purchase of other property which will
constitute a Principal Property having a fair market value, in
the opinion of the Board of Directors, at least equal to the
fair market value of the Principal Property leased in such sale
and leaseback transaction; or
(c) the sale or transfer of the Principal Property is made
prior to, at the time of, or within 180 days after the later of
the acquisition of the Principal Property or the completion of
construction thereon; or
(d) the lease in such sale and leaseback transaction secures
or relates to obligations issued by a state, territory or
possession of the United States, or any political subdivision of
any of the foregoing, the District of Columbia, or any
instrumentality of any of the foregoing to finance the
acquisition or construction of property and on which the
interest is not, in the opinion of tax counsel of recognized
standing or in accordance with a ruling issued by the Internal
Revenue Service, includible in gross income of the holder by
reason of Section 103 of the Internal Revenue Code (or any
successor to such provision) as in effect at the time of the
issuance of such obligations; or
(e) such sale and leaseback transaction is entered into
between the Company and a Restricted Subsidiary or between
Restricted Subsidiaries.
SECTION 1106. Statement by Officers as to Default. The Company
will deliver to the Trustee, within 120 days after the end of eac h
fiscal year, a written certificate signed by the principal
executive officer, the principal financial officer or the principal
accounting officer of the Company, stating that:
(1) a review of the activities of the Company during such year
and of performance under this Indenture has been made under such
officer's supervision; and
(2) to such officer's knowledge, based on such review, the
Company has fulfilled all its obligations, and has complied with
all conditions and covenants, under this Indenture throughout
such year, or, if there has been a default in the fulfillment of
any such obligation, condition or covenant, specifying each such
default known to him and the nature and status thereof. For
purposes of this Section 1106, compliance shall be determined
without regard to any grace period or requirement of notice
provided pursuant to the terms of this Indenture.
SECTION 1107. Waiver of Certain Covenants. The Company may omit
in any particular instance to comply with any term, provision or
condition set forth in Section 1104 or Section 1105 if before the
time for such compliance the Holders of not less than a majority in
principal amount of the Outstanding Securities of all series
affected thereby shall, by Act of such Holders (acting as one
class), either waive such compliance in such instance or generally
waive compliance with such term, provision or condition, but no
such waiver shall extend to or affect such term, provision or
condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and
the duties of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
SECTION 1108. Additional Amounts. If the Securities of a series
provide for the payment of additional amounts, the Company will pay
to the Holder of any Security of such series or any related Coupon
additional amounts as provided therein. Whenever in this Indenture
there is mentioned, in any context, the payment of the principal of
or any premium or interest on, or in respect of, any Security of
any series or payment of any related Coupon or the net proceeds
received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of
additional amounts provided for in this Section to the extent that,
in such context, additional amounts are, were or would be payable
in respect thereof pursuant to the provisions of this Section and
express mention of the payment of additional amounts (if
applicable) in any provisions hereof shall not be construed as
excluding additional amounts in those provisions hereof where such
express mention is not made.
If the Securities of a series provide for the payment of
additional amounts, at least 10 days prior to the first Interest
Payment Date with respect to that series of Securities (or if the
Securities of that series will not bear interest prior to Maturity,
the first day on which a payment of principal and any premium is
made), and at least 10 days prior to each date of payment of
principal and any premium or interest if there has been any change
with respect to the matters set forth in the below-mentioned
Officers' Certificate, the Company will furnish the Trustee and the
Company's Paying Agent or Paying Agents, if other than the Trustee,
with an Officers' Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such payment of principal of
and any premium or interest on the Securities of that series shall
be made to Holders of Securities of that series or any related
Coupons who are United States Aliens (as defined in such
Securities) without withholding for or on account of any tax,
assessment or other governmental charge described in the Securities
of that series. If any such withholding shall be required, then
such Officers' Certificate shall specify by country the amount, if
any, required to be withheld on such Payments to such Holders of
Securities or Coupons and the Company will pay to the Trustee or
such Paying Agent the additional amounts required by this Section.
The Company covenants to indemnify the Trustee and any Paying Agent
for, and to hold them harmless against, any loss, liability or
expense reasonably incurred without negligence or bad faith on
their part arising out of or in connection with actions taken or
omitted by any of them in reliance on any Officers' Certificate
furnished pursuant to this Section.
ARTICLE TWELVE
Redemption of Securities
SECTION 1201. Applicability of Article. Securities of any series
which are redeemable before their Stated Maturity shall be
redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 202 or Section 301, as the
case may be, for Securities of any series) in accordance with this
Article.
SECTION 1202. Election To Redeem; Notice to Trustee. If the
Company shall desire to exercise the right to redeem all, or, as
the case may be, any part of the Securities of any series, the
Company shall, at least 60 days prior to the Redemption Date fixed
by the Company (unless a shorter notice shall be satisfactory to
the Trustee), notify the Trustee of such Redemption Date and of the
principal amount of Securities of such series to be redeemed. In
the case of any redemption of Securities prior to the expiration of
any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
SECTION 1203. Selection by Trustee of Securities To Be Redeemed.
If less than all the Securities of any series are to be redeemed,
the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series not previously called for
redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption
of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple of $1,000 in
excess thereof, except as otherwise specified as contemplated by
Section 202 or Section 301, as the case may be) of the principal
amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any
Securities selected for partial redemption, the principal amount
thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be
redeemed only in part, to the portion of the principal amount of
such Securities which has been or is to be redeemed.
SECTION 1204. Notice of Redemption. Notice of redemption shall be
given not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, as
provided in Section 106.
Each such notice of redemption shall specify the Redemption Date,
the Redemption Price, the Place or Places of Payment, that the
Securities of such series are being redeemed at the option of the
Company pursuant to provisions contained in the terms of the
Securities of such series or in a supplemental indenture
establishing such series, if such be the case, together with a
brief statement of the facts permitting such redemption, that on
the Redemption Date the Redemption Price will become due and
payable upon each Security redeemed, that payment will be made upon
presentation and surrender of the applicable Securities, that all
Coupons, if any, maturing subsequent to the date fixed for
redemption shall be void, that any interest accrued to the
Redemption Date will be paid as specified in said notice, that the
redemption is pursuant to the sinking fund, if such is the case,
and that on and after said Redemption Date any interest thereon or
on the portions thereof to be redeemed will cease to accrue. If
less than all the Securities of any series are to be redeemed, the
notice of redemption shall specify the registration and, if any,
CUSIP numbers of the Securities of such series to be redeemed, and,
if only Bearer Securities of any series are to be redeemed, and if
such Bearer Securities may be exchanged for Registered Securities,
the last date on which exchanges of Bearer Securities for
Registered Securities not subject to redemption may be made. In
case any Security of any 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
Redemption Date, upon surrender of such Security and any Coupons
appertaining thereto, a new Security or Securities of such series
in principal amount equal to the unredeemed portion thereof and
with appropriate Coupons will be issued, or, in the case of
Registered Securities providing appropriate space for such
notation, at the option of the Holders, the Trustee, in lieu of
delivering a new Security or Securities as aforesaid, may make a
notation on such Security of the payment of the redeemed portion
thereof.
Notice of redemption of Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the
Company.
SECTION 1205. Deposit of Redemption Price. On or before the
opening of business on any Redemption Date, the Company shall
deposit with the Trustee or with a Paying Agent (or, if the Company
is acting as its own paying Agent, segregate and hold in trust as
provided in Section 1103) an amount of money in the relevant
currency (or a sufficient number of currency units, as the case may
be) sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest
on, all the Securities which are to be redeemed on that date.
SECTION 1206. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be
redeemed shall, on the Redemption Date, become due and payable at
the Redemption Price therein specified, and from and after such
date (unless the Company shall default in the payment of the
Redemption Price and accrued interest) such Securities shall cease
to bear interest and the Coupons for such interest appertaining to
any Bearer Securities so to be redeemed, except to the extent
provided below, shall be void. Upon surrender of any such Security
for redemption in accordance with said notice, together with all
Coupons, if any, appertaining thereto maturing after the Redemption
Date, such Security shall be paid by the Company at the Redemption
Price, together with accrued interest to the Redemption Date;
provided, however, that installments of interest on Bearer
Securities whose Stated Maturity is on or prior to the Redemption
Date shall be payable only at an office or agency located outside
the United States (except otherwise provided in Section 1102) and,
unless otherwise specified as contemplated by Section 202 or
Section 301, as the case may be, only upon presentation and
surrender of Coupons for such interest; provided further that,
unless otherwise specified as contemplated by Section 202 or
Section 301, as the case may be, installments of interest on
Registered Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their
terms and the provisions of Section 406.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing after the
Redemption Date, such Security may be paid after deducting from the
Redemption Price an amount equal to the face amount of all such
missing Coupons, or the surrender of such missing Coupon or Coupons
may be waived by the Company and the Trustee if there be furnished
to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of
such Security shall surrender to the Trustee or any Paying Agent
any such missing Coupon in respect of which a deduction shall have
been made from the Redemption Price, such Holder shall be entitled
to receive the amount so deducted; provided, however, that interest
represented by Coupons shall be payable only at an office or agency
located outside the United States (except as otherwise provided in
Section 1102) and, unless otherwise specified as contemplated by
Section 202 or Section 301, as the case may be, only upon
presentation and surrender of those Coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium
shall, until paid, bear interest from the Redemption Date at the
rate prescribed therefor in the Security.
SECTION 1207. Securities Redeemed in Part. Any Security which is
to be redeemed only in part shall be surrendered at a Place of
Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and make
available for delivery to the Holder of such Security without
service charge, a new Security or Securities (with appropriate
Coupons) of the same series and Stated Maturity, of any authorized
denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered or, in the case of
Registered Securities providing appropriate space for such
notation, at the option of the Holder, the Trustee, in lieu of
delivering a new Security or Securities as aforesaid, may make a
notation on such Security of the payment of the redeemed portion
thereof.
ARTICLE THIRTEEN
Sinking Funds
SECTION 1301. Applicability of Article. The provisions of this
Article shall be applicable to any sinking fund for the retirement
of Securities of a series, except as otherwise specified as
contemplated by Section 202 or Section 301, as the case may be, for
Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a
"mandatory sinking fund payment", and any payment in excess of such
minimum amount provided for by the terms of Securities of any
series is herein referred to as an "optional sinking fund payment".
If provided for by the terms of Securities of any series, the cash
amount of any sinking fund payment may be subject to reduction as
provided in Section 1302. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided
for by the terms of Securities of such series.
SECTION 1302. Satisfaction of Sinking Fund Payments with
Securities. The Company (1) may deliver Outstanding Securities
(including all unmatured Coupons appertaining thereto) of a series
(other than any previously called for redemption) and (2) may apply
as a credit Securities of a series which have been redeemed either
at the election of the Company pursuant to the terms of such
Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Securities, in each
case in satisfaction of all or any part of any sinking fund payment
with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the
terms of such series; provided that such Securities have not been
previously so credited. Such Securities shall be received and the
outstanding principal amount thereof credited for such purpose by
the Trustee at the Redemption Price specified in such Securities
for redemption through operation of the sinking fund and the amount
of such sinking fund payment shall be reduced accordingly.
SECTION 1303. Redemption of Securities for Sinking Fund. Not less
than 60 days prior to each sinking fund payment date for any series
of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, the
portion thereof, if any, which is to be satisfied by payment of
cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities of that series pursuant to
Section 1302 and will also deliver to the Trustee any Securities
(including all unmatured Coupons appertaining thereto) to be so
delivered. Not less than 30 days before each such sinking fund
payment date the Trustee shall select the Securities to be redeemed
upon such sinking fund payment date in the manner specified in
Section 1203 and cause notice of the redemption thereof to be given
in the name of and at the expense of the Company in the manner
provided in Section 1204. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in
the manner stated in Sections 1206 and 1207.
ARTICLE FOURTEEN
Meetings of Holders of Securities
SECTION 1401. Purposes for Which Meetings May Be Called. A
meeting of Holders of Securities of any series may be called at any
time and from time to time pursuant to this Article to make, give
or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be
made, given or taken by Holders of Securities of such series.
SECTION 1402. Call, Notice and Place of Meetings. (a) The
Trustee may at any time call a meeting of Holders of Securities of
any series for any purpose specified in Section 1401, to be held at
such time and at such place in the Borough of Manhattan, The City
of New York, or in London, as the Trustee shall determine. Notice
of every meeting of Holders of Securities of any series, setting
forth the time and the place of such meeting and in general terms
the action proposed to be taken at such meeting, shall be given, in
the manner provided in Section 106, not less than 20 nor more than
180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, by or pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of
the Outstanding Securities of any series shall have requested the
Trustee to call a meeting of the Holders of Securities of such
series for any purpose specified in Section 1401, by written
request setting forth in reasonable detail the action proposed to
be taken at the meeting, and the Trustee shall not have made the
first publication of the notice of such meeting within 20 days
after receipt of such request or shall not thereafter proceed to
cause the meeting to be held as provided herein, then the Company
or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place
in the Borough of Manhattan, The City of New York, or in London,
for such meeting and may call such meeting for such purposes by
giving notice thereof as provided in subsection (a) of this
Section.
SECTION 1403. Persons Entitled To Vote at Meetings. To be
entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding
Securities of such series or (2) a Person appointed by an
instrument in writing as proxy for a Holder or Holders of one or
more Outstanding Securities of such series by such Holder or
Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall
be the Persons entitled to vote at such meeting and their counsel,
any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION 1404. Quorum; Action. The Persons entitled to vote a
majority in principal amount of the Outstanding Securities of a
series shall constitute a quorum for a meeting of Holders of
Securities of such series. In the absence of a quorum within 30
minutes of the time appointed for any such meeting, the meeting
shall, if convened at the request of Holders of Securities of such
series, be dissolved. In any other case the meeting may be
adjourned for a period of not less than 10 days as determined by
the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting,
such adjourned meeting may be further adjourned for a period of not
less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such adjourned meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in
Section 1402(a), except that such notice need be given only once
not less than five days prior to the date on which the meeting is
scheduled to be reconvened.
Except as limited by the proviso to Section 1002, and subject to
the provisions described in the next succeeding paragraph, any
resolution presented to a meeting or adjourned meeting duly
reconvened at which a quorum is present as aforesaid may be adopted
by the affirmative vote of the Holders of a majority in principal
amount of the Outstanding Securities of that series; provided,
however, that any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action
which this Indenture expressly provides may be made, given or taken
by the Holders of a specified percentage, which is equal to or less
than a majority, in principal amount of the Outstanding Securities
of a series may be adopted at a meeting or an adjourned meeting
duly reconvened and at which a quorum is present as aforesaid by
the affirmative vote of the Holders of such specified percentage in
principal amount of the Outstanding Securities of that series. Any
resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section
shall be binding on all the Holders of Securities of such series
and the related Coupons, whether or not present or represented at
the meeting.
With respect to any consent, waiver or other action which this
Indenture expressly provides may be given by the Holders of a
specified percentage of Outstanding Securities of all series
affected thereby (acting as one class), only the principal amount
of Outstanding Securities of any series represented at a meeting or
adjourned meeting duly reconvened at which a quorum is present,
held in accordance with this Section, and voting in favor of such
action, shall be counted for purposes of calculating the aggregate
principal amount of Outstanding Securities of all series affected
thereby favoring such action.
SECTION 1405. Determination of Voting Rights; Conduct and
Adjournment of Meetings. (a) Notwithstanding any other provisions
of this Indenture, the Trustee may make such reasonable regulations
as it may deem advisable for any meeting of Holders of Securities
of a series in regard to proof of the holding of Securities of such
series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the
meeting as it shall deem appropriate. Except as otherwise permitted
or required by any such regulations, the holding of Securities
shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in
Section 104 or by having the signature of the person executing the
proxy witnessed or guaranteed by any trust company, bank or banker
authorized by Section 104 to certify to the holder of Bearer
Securities. Such regulations may provide that written instruments
appointing proxies, regular on their face, may be presumed valid
and genuine without the proof specified in Section 104 or other
proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have
been called by the Company or by Holders of Securities as provided
in Section 1402(b), in which case the Company or the Holders of
Securities of the series calling the meeting, as the case may be,
shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected
by vote of the Persons entitled to vote a majority in principal
amount of the outstanding Securities of such series represented at
the meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each $1,000 (or the
equivalent thereof) principal amount of the Outstanding Securities
of such series held or represented by him; provided, however, that
no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of
the meeting to be not Outstanding. The chairman of the meeting
shall have no right to vote, except as a Holder of a Security of
such series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1402 at which a quorum is present may be
adjourned from time to time by Persons entitled to vote a majority
in principal amount of the Outstanding Securities of such series
represented at the meeting; and the meeting may be held as so
adjourned without further notice.
SECTION 1406. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall
be subscribed the signatures of the Holders of Securities of such
series or of their representatives by proxy and the principal
amounts and serial numbers of the Outstanding Securities of such
series held or represented by them. The permanent chairman of the
meeting shall appoint two inspectors of votes who shall count all
votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their
verified written reports in duplicate of all votes cast at the
meeting. A record, at least in duplicate, of the proceedings of
each meeting of Holders of Securities of any series shall be
prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or
more persons having knowledge of the facts setting forth a copy of
the notice of the meeting and showing that said notice was given as
provided in Section 1402 and, if applicable, Section 1404. Each
copy shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one such copy
shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
__________________________
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first
above written.
MILLIPORE CORPORATION,
by
Name:
Title:
STATE STREET BANK AND TRUST COMPANY, as
Trustee,
by
Name:
Title:
COMMONWEALTH OF MASSACHUSETTS)
) ss.:
COUNTY OF MIDDLESEX )
On the ___ day of _________, 1997, before me personally came
_____________________, to me known, who, being by me duly sworn,
did depose and say that he is a _______________ of MILLIPORE
CORPORATION, one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto
by like authority.
Notary Public
Name:
Notary Public, Commonwealth of
Massachusetts
No.:
Qualified in:
Commission Expires:
COMMONWEALTH OF MASSACHUSETTS)
) ss.:
COUNTY OF SUFFOLK )
On the ___ day of __________, 1997, before me personally came
____________________, to me known, who, being by me duly sworn, did
depose and say that he is a _______________ of STATE STREET BANK
AND TRUST COMPANY, a trust company described in and which executed
the foregoing instrument; that he knows the seal of said trust
company; that the seal affixed to said instrument is such seal;
that it was so affixed by authority of the Board of Directors of
said trust company; and that he signed his name thereto by like
authority.
Notary Public
Name:
Notary Public, Commonwealth of
Massachusetts
No.:
Qualified in:
Commission Expires:
Exhibit A.3
(Form of Fixed Rate
Security with and without Optional
Redemption Provision)
(Form of Face of [Note]2)
[Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to the issuer or its agent for registration of
transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or in 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.]3
No.:
MILLIPORE CORPORATION
% [Note] Due
No.: CUSIP No.:
$
MILLIPORE CORPORATION, a corporation duly organized and existing
under the laws of the Commonwealth of Massachusetts (herein called
the "Company", which term includes any successor corporation under
the Indenture referred to on the reverse hereof), for value
received, hereby promises to pay to
or registered assigns, the principal sum of
Dollars, at the office or agency of the Company designated for such
purpose, on , in such coin or currency of the United
States of America as at the time of payment shall be legal tender
for the payments of public and private debts, and to pay interest,
semi-annually on and
of each year, on said principal sum at said office or agency, in
like coin or currency, at the rate of % per annum,
from the or the , as the case may be,
next preceding the date of this [Note] to which interest has been
paid, unless the date hereof is a date to which interest has been
paid, in which case from the date of this [Note], or unless no
interest has been paid on the [Notes] due (as defined on the
reverse hereof), in which case from until
payment of said principal sum has been made or duly provided for.
Notwithstanding the foregoing, if the date hereof is after
or as the case may be, and before the
following or ,
this [Note] shall bear interest from such
or , provided, however, that if the
Company shall default in the payment of interest due on such
or , then this [Note] shall bear interest from the
next preceding or
to which interest has been paid, or, if no interest has been paid
on the [Notes] due ,from . The
interest so payable on any or
will subject to certain exceptions provided in the Indenture
referred to on the reverse hereof, be paid to the person in whose
name this [Note] is registered at the close of business on such
or , as the case may be, next preceding such
or , unless the Company shall default in the
payment of interest due on such interest payment date, in which
case such defaulted interest, at the option of the Company, may be
paid to the person in whose name this [Note] is registered at the
close of business on a special record date for the payment of such
defaulted interest established by notice to the registered holders
of [Notes] not less than 10 days preceding such special record date
or may be paid in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the [Notes] due
may be listed. Payment of interest may, at the option of the
Company, be made by check mailed to the registered address of the
person entitled thereto.
Reference is made to the further provisions of this [Note] set
forth on the reverse hereof. Such further provisions shall for all
purposes have the same effect as though fully set forth at this
place.
This [Note] shall not be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have
been signed by the Trustee under the Indenture referred to on the
reverse hereof.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
Dated: MILLIPORE
CORPORATION
by__________________________________
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Securities of the
Series designated herein issued under the
within-mentioned Indenture.
by__________________________________
STATE STREET BANK AND TRUST
COMPANY.,
as Trustee
by
_____________________________________
Authorized Signatory
(Form of Reverse of [Note])
This [Note] is one of a duly authorized issue of unsecured
debentures, notes or other evidences of indebtedness of the Company
(hereinafter called the "Securities), of the series hereinafter
specified, all issued or to be issued under an indenture dated as of [
] (hereinafter called the "Indenture"), duly executed and delivered by
the Company to [ ], a trust company duly organized
and existing under the laws of the Commonwealth of Massachusetts, as
trustee (hereinafter called the "Trustee"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a
description of the respective rights and duties thereunder of the
Trustee, the Company and the holders of the Securities. 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 at different rates, may be subject to different
redemption provisions, may be subject to different sinking, purchase or
analogous funds, may be subject to different covenants and Events of
Default and may otherwise vary as in the Indenture provided. This
[Note] is one of a series designated as the % [Notes] due of
the Company (hereinafter called the "[Notes] due ") issued under the
Indenture, limited in aggregate principal amount to $
.
In case an Event of Default with respect to the [Notes] due ,
as defined in the Indenture, shall have occurred and be continuing, the
principal hereof together with interest accrued thereon, if any, 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 contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of the Securities at the time outstanding of
all series to be affected (acting as one class) to execute supplemental
indentures adding any provisions to or changing in any manner or
eliminating any of the provisions of the Indenture or of any
supplemental indenture or modifying in any manner the rights of the
holders of the Securities of such series to be affected; provided,
however, that no such supplemental indenture shall, among other things,
(i) change the fixed maturity of the principal of, or any installment of
principal of or interest on, any Security; (ii) reduce the principal
amount thereof or the rate of interest thereon or any premium payable
upon the redemption thereof; (iii) impair the right to institute suit
for the enforcement of any such payment on or after the fixed maturity
thereof (or, in the case of redemption, on or after the redemption
date); (iv) reduce the percentage in principal amount of the outstanding
Securities of any series, the consent of whose holders is required for
any such supplemental indenture, or the consent of whose holders is
required for any waiver (of compliance with certain provisions of the
Indenture or certain defaults thereunder and their consequences)
provided for in the Indenture; (v) change any obligation of the Company,
with respect to outstanding Securities of a series, to maintain an
office or agency in the places and for the purposes specified in the
Indenture for such series; or (vi) modify any of the foregoing
provisions or the provisions for the waiver of certain covenants and
defaults, except to increase any applicable percentage of the aggregate
principal amount of outstanding Securities the consent of the holders of
which is required or to provide with respect to any particular series
the right to condition the effectiveness of any supplemental indenture
as to that series on the consent of the holders of a specified
percentage of the aggregate principal amount of outstanding Securities
of such series or to provide that certain other provisions of the
Indenture cannot be modified or waived without the consent of the holder
of each outstanding Security affected thereby. It is also provided in
the Indenture that the holders of a majority in aggregate principal
amount of the Securities of a series at the time outstanding may on
behalf of the holders of all the Securities of such series waive any
past default under the Indenture with respect to such series and its
consequences, except a default in the payment of the principal of,
premium, if any, or interest, if any, on any Security of such series or
in respect of a covenant or provision which cannot be modified without
the consent of the Holder of each outstanding Security of the series
affected. Any such consent or waiver by the holder of this [Note] shall
be conclusive and binding upon such holder and upon all future holders
and owners of the [Note] and any [Notes] due which may be issued in
exchange or substitution herefor, irrespective of whether or not any
notation thereof is made upon this [Note] or such other [Notes] due
.
No reference herein to the Indenture and no provision of this
[Note] or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of,
premium, if any, and interest on this [Note] at the place, at the
respective times, at the rate and in the coin or currency herein
prescribed.
The Indenture permits the Company to Discharge its obligations with
respect to the [Notes] due on the first day following the
satisfaction of the conditions set forth in the Indenture, which include
the irrevocable deposit with the Trustee of money or U.S. Government
Obligations or a combination thereof sufficient to pay and discharge
each installment of principal of (including premium, if any, on) and
interest, if any, on the outstanding [Notes] due .
If the Company shall, in accordance with Section 901 of the
Indenture, consolidate with or merge into any other corporation or
convey or transfer its properties and assets substantially as an
entirety to any Person, the successor shall succeed to, and be
substituted for, the Person named as the "Company" on the face of this
[Note], all on the terms set forth in the Indenture.
The [Notes] due are issuable in registered form without
coupons in denominations of $1,000 or any integral multiple thereof.
In the manner and subject to the limitations provided in the Indenture,
but without the payment of any service charge, [Notes] due may be
exchanged for an equal aggregate principal amount of [Notes] due of
other authorized denominations at the office or agency of the Company
maintained for such purpose in the Borough of Manhattan, the City and
State of New York.
[The [Notes] due may be redeemed as a whole, or from time to
time in part, at the option of the Company at any time upon mailing a
notice of such redemption not less than 30 nor more than 60 days prior
to the date fixed for redemption to the holders of the [Notes] due
at their last registered addresses, all as provided in the Indenture, at
the following optional redemption prices (expressed in percentages of
the principal amount), together in each case with accrued interest to
the date fixed for redemption.
If redeemed during the twelve-month period beginning
Year Percentage
]4
Upon due presentment for registration of transfer of this [Note] at
the office or agency of the Company for such registration in the Borough
of Manhattan, the City and State of New York, a new [Note] or [Notes] of
authorized denominations for an equal aggregate principal amount will be
issued to the transferee in exchange herefor, subject to the limitations
provided in the Indenture, without charge except for any tax or other
governmental charge imposed in connection therewith.
Prior to due presentment for registration of transfer of this
[Note], the Company, the Trustee and any agent of the Company or the
Trustee may deem and treat the registered holder hereof as the absolute
owner of this [Note] (whether or not this [Note] shall be overdue) for
the purpose of receiving payment of the principal of, premium, if any,
and interest on this Note, as herein provided, and for all other
purposes, and neither the Company nor the Trustee nor any agent of the
Company or the Trustee shall be affected by any notice to the contrary.
All payments made to or upon the order of such registered holder shall,
to the extent of the sum or sums paid, effectively satisfy and discharge
liability for moneys payable on this [Note].
No recourse for the payment of the principal of, premium, if any,
or interest on this [Note], or for any claim based hereon or otherwise
in respect hereof, and no recourse under or upon any obligation,
covenant or agreement of the Company in the Indenture or any indenture
supplemental thereto or in any [Note], or because of the creation of any
indebtedness represented thereby, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of
the Company or of any successor corporation, either directly or through
the Company or any successor corporation, whether by virtue of any
constitution, statute or rule of law or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issue hereof,
expressly waived and released.
Unless otherwise defined in this [Note], all terms used in this
[Note] which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
THIS [NOTE] SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
EXHIBIT B
[FORMS OF CERTIFICATIONS]
EXHIBIT B.1
[FORM OF CERTIFICATION TO BE GIVEN
BY THE EUROCLEAR OPERATOR OR CEDEL]
CERTIFICATION
MILLIPORE CORPORATION
[Title of Securities]
(the "Securities")
This is to certify that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from
member organizations appearing in our records as persons being entitled
to a portion of the principal amount set forth below (our "Member
Organizations") substantially to the effect set forth in the Fiscal
Agency or other Agreement, as of the date hereof.
principal amount of the above captioned Securities (i) is owned by
persons that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the
income of which is subject to United States Federal income taxation
regardless of its source ("United States persons"), (ii) is owned by
United States persons that (a) are foreign branches of United States
financial institutions (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v) ("financial institutions")) purchasing for their own
account or for resale, or (b) acquired the Securities through foreign
branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date
hereof (and in either case (a) or (b), each such United States financial
institution has agreed, on its own behalf or through its agent, that we
may advise the Issuer or the Issuer's agent that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue
Code of 1986, as amended, and the regulations thereunder), or (iii) is
owned by United States or foreign financial institutions for purposes of
resale during the restricted period (as defined in U.S. Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7)), and to the further effect
that United States or foreign financial institutions described in clause
(iii) above (whether or not also described in clause (i) or (ii)) have
certified that they have not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a person
within the United States or its possessions.
If the Securities are of the category contemplated in Section
230.903(c)(3) of Regulation S under the Securities Act of 1933, as
amended (the "Act") then this is also to certify with respect to the
principal amount of Securities set forth above that, except as set forth
below, we have received in writing by tested telex or by electronic
transmission, from our Member Organizations entitled to portion of such
principal amount, certifications with respect to such portion,
substantially to the effect set forth in the Fiscal Agency or other
Agreement.
We further certify (i) that we are not making available herewith
for exchange (or, if relevant, exercise of any rights or collection of
any interest) any portion of the Temporary Global security excepted in
such certifications and (ii) that as of the date hereof we have not
received any notification from any of our Member Organizations to the
effect that the statements made by such Member Organizations with
respect to any portion of the part submitted herewith for exchange (or,
if relevant, exercise of any rights or collection of any interest) are
no longer true and cannot be relied upon as the date hereof.
We understand that this certification is required in connection
with certain tax laws and, if applicable, certain securities laws of the
United States. In connection therewith, if administrative or legal
proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize you to
produce this certification to any interested party in such proceedings.
Dated: , 19 **
Yours faithfully,
[MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
Brussels Office,
as operator of the Euroclear System]
or
[CEDEL S.A.]
By
* Note: Unless Morgan Guaranty Brussels and Cedel are otherwise
informed by the Lead Manager or Issuing Agent, the Standard Long-Form
Certification set out in the Operating Procedures will be deemed to meet
the requirements of this sentence.
** Not earlier than the Certification Event to which the certification
relates.
To the extent that this certification is used as a reference document,
drafters should note that the asterisks in the text, and the footnotes,
may be omitted.
EXHIBIT B.2
[FORM OF PARTICIPANT CERTIFICATION INCORPORATED
BY REFERENCE IN A CERTIFICATION INSTRUCTION]
CERTIFICATE
MILLIPORE CORPORATION
[Title of Securities]
(the "Securities")
This is to certify that as of the date hereof, and except as set
forth below, the above captioned Securities held by you for our account
(i) are owned by persons that are not citizens or residents of the
United States, domestic partnerships, domestic corporations or any
estate or trust the income of which is subject to the United States
Federal income taxation regardless of its source ("United States
persons"), (ii) are owned by United States person(s) that (a) are
foreign branches of a United States financial institution (as defined in
U.S. Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial
institutions") purchasing for their own account or for resale, or (b)
acquired the Securities through foreign branches of United States
financial institutions and who hold the Securities through such United
States financial institutions on the date hereof (and in either case (a)
or (b), each such United States financial institution hereby agrees, on
its own behalf or through its agent, that you may advise the issuer or
the issuer's agent that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) are owned by United
States or foreign financial institution(s) for purposes of resale during
the restricted period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and in addition if the owner of the Securities
is a United States or foreign financial institution described in clause
(iii) above (whether or not also described in clause (i) or (ii)) this
is to further certify that such financial institution has not acquired
the Securities for purposes of resale directly or indirectly to a United
States person or to a person within the United States or its
possessions.
If the Securities are of the category contemplated in Section
230.903(c)(3) of Regulation S under the Securities Act of 1933, as
amended (the "Act"), then this is also to certify that, except as set
forth below, (i) in the case of debt securities, the Securities are
beneficially owned by (a) non-U.S. person(s) or (b) U.S. person(s) who
purchased the Securities in transactions which did not require
registration under the Act or (ii) in the case of equity securities, the
Securities are owned by (x) non-U.S. person(s) (and such person(s) are
not acquiring the Securities for the account or benefit of U.S.
person(s)) or (y) U.S. person(s) who purchased the Securities in a
transaction which did not require registration under the Act. If this
certification is being delivered in connection with the exercise of
warrants pursuant to Section 230.902(m) of Regulation S under the Act,
then this is further to certify that, except as set forth below, the
Securities are being exercised by and on behalf of non-U.S. person(s).
As used in this paragraph the term "U.S. person" has the meaning given
to it by Regulation S under the Act.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam,
American Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to
the date on which you intend to submit your certification relating to
the Securities held by you for our account in accordance with your
operating procedures if any applicable statement herein is not correct
on such date, and in the absence of any such notification it may be
assumed that this certification applies as of such date.
This certification excepts and does not relate to $ of
such interest in the above Securities in respect of which we are not
able to certify and as to which we understand exchange and delivery of
definitive Securities (or, if relevant, exercise of any rights or
collection of any interest) cannot be made until we do so certify.
We understand that this certification is required in connection
with certain tax laws and, if applicable, certain securities laws of the
United States. In connection therewith, if administrative or legal
proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize you to
produce this certification to any interested party in such proceedings.
Date: , 19 *
By
As, or as agent for, the beneficial owner(s)
of the Securities to which this certificate relates
* Not earlier than 15 days prior to the Certification Event to which the
certification relates.
_______________________________
1This table of contents shall not, for any purpose, be deemed to be part of
the Indenture.
2 / Bracketed references to "Note" or "Notes" should be changed
to reflect the designation of the series of Securities being
issued.
3 / The bracketed language is to be included if the Securities
are included within DTC's book-entry system.
4 / Bracketed language to be included in Securities redeemable
at the option of the Company
Millipore Corporation
March 7, 1997
Page 2
EXHIBIT 5
March 7, 1997
Millipore Corporation
80 Ashby Road
Bedford, MA 01730
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
This opinion is furnished to you in connection with a registration statement
(the "Registration Statement") on Form S-3 to be filed with the Securities
and Exchange Commission under the Securities Act of 1933, as amended, for the
registration of $300,000,000 principal amount of Debt Securities of Millipore
Corporation (the "Company") to be issued under an Indenture (the "Indenture")
to be entered into between you and State Street Bank and Trust Company, as
Trustee (the "Trustee").
I have acted as counsel for the Company in connection with the proposed issue
and sale of the Debt Securities and the preparation of the Registration
Statement. For purposes of this opinion, I have examined and relied upon the
information set forth in the registration statement and such other documents
and records as I have deemed necessary.
Basing my opinion on the foregoing, I am of the opinion that:
(1) When the Registration Statement relating to the Debt Securities filed
with the Securities and Exchange Commission under the Securities Act of 1933,
as amended, has been declared effective; when the Indenture has been
qualified under the Trust Indenture Act of 1939; no further authorization,
consent or approval by any regulatory authority will be required for the
valid issuance and sale of the Debt Securities;
(2) when the Board of Directors of the Company or committee designated
thereby or other designee thereof have fixed the price and other terms and
conditions relating to the issue and sale of the Debt Securities, the Debt
Securities will have been duly authorized by the Company;
(3) upon the execution and filing with the Trustee of the proper papers, the
Debt Securities will be issuable under the terms of the Indenture; and
(4) upon the execution, certification and delivery of the Debt Securities in
accordance with the corporate authorizations referred to above and in
accordance with the Indenture, the Debt Securities will be valid and legally
binding obligations of the Company and the Debt Securities will be entitled
to the benefits and security provided by the Indenture together with any
other series of securities of the Company which may hereafter be issued
thereunder pursuant to the terms thereof; except that enforcement of the
rights and remedies created thereby is subject to bankruptcy, reorganization,
insolvency or similar laws affecting creditors' rights generally, as may from
time to time be in effect, and by availability of specific performance or of
injunctive relief which is subject to the discretion of the court before
which any proceeding may be brought.
I understand that this opinion is to be used in connection with the
Registration Statement relating to the Debt Securities to be filed with the
Securities and Exchange Commission. I consent to the filing of this opinion
with and as a part of said Registration Statement and the use of our name
therein and in the related Prospectus under the caption "Legal Opinions."
Very truly yours,
/s/ Geoffrey Nunes
Geoffrey Nunes, Esquire
Senior Vice President
GN/bb
EXHIBIT 12
Ratio of Earnings to Fixed Charges
(continuing operations only)
<TABLE>
(in 000's)
<S> <C> <C> <C> <C> <C>
1996 1995 1994 1993 1992
Income from continuing $43,622 $85,354 $59,609 $48,998 $35,536
operations
Add: provision for 13 2 17, 14,225 10,317
income taxes ,401 4,781 306
57 110 76, 63,223 45,853
,023 ,135 915
Fixed charges:
Interest 3 9,270 9,365
9,503 9,870 ,834
Interest factor 4 3,626 2,960
portion of rentals 4,182 3,799 ,038
Total fixed charges 13 13 7 12,896 12,325
,685 ,669 ,872
Earnings before income
taxes $70,708 $123,804 $84,787 $76,119 $58,178
and fixed charges
Ratio of earnings to 5.17 9.06 10.77 5.90 4.72
fixed charges
</TABLE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the
registration statement of Millipore Corporation on Form S-3 of
our report dated January 22, 1997 on our audits of the
consolidated financial statements of Millipore Corporation as of
December 31, 1996 and 1995, and for the years ended December 31,
1996, 1995, and 1994, which report is included in the Company's
1996 Annual Report on Form 10-K.
We also consent to the references to our Firm under the
caption "Experts".
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
March 7, 1997
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Officers
and Directors of Millipore Corporation (the "Corporation") do hereby
constitute and appoint C. William Zadel, Geoffrey Nunes, and Jeffrey
Rudin, and each of them individually, their true and lawful attorneys
and agents to execute on behalf of the Corporation, a Registration
Statement on Form S-3 registering with the Securities and Exchange
Commission $300,000,000 principal amount of its Senior Notes due 2002
and 2007.
IN WITNESS WHEREOF, Millipore Corporation has caused this Power
of Attorney to be executed in its name and by its Chief Executive
Officer, and its corporate seal to be affixed and attested by its
Assistant Clerk and the undersigned Officers and Directors have
hereunto set their hand and seals this 6th day of February, 1997.
SIGNATURE TITLE DATE
/s/ C. William Zadel Chairman, President, February 6, 1997
C. William Zadel Chief Executive Officer
and Director
/s/ Charles D. Baker Director February 6, 1997
Charles D. Baker
/s/ Samuel C. Butler Director February 6, 1997
Samuel C. Butler
/s/ Robert E. Caldwell Director February 6, 1997
Robert E. Caldwell
/s/Maureen A. Hendricks Director February 6, 1997
Maureen A. Hendricks
/s/ Mark Hoffman Director February 6, 1997
Mark Hoffman
/s/ Steven Muller Director February 6, 1997
Steven Muller
/s/ Thomas O. Pyle Director February 6, 1997
Thomas O. Pyle
/s/ John F. Reno Director February 6, 1997
John F. Reno
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) __
STATE STREET BANK AND TRUST COMPANY
(Exact name of trustee as specified in its charter)
Massachusetts 04-1867445
(Jurisdiction of (I.R.S. Employer
incorporation or Identification No.)
organization if not a U.S.
national bank)
225 Franklin Street, Boston, Massachusetts 02110
(Address of principal executive offices)
(Zip Code)
John R. Towers, Esq. Senior Vice President and Corporate Secretary
225 Franklin Street, Boston, Massachusetts 02110
(617)654-3253
(Name, address and telephone number of agent for service)
_____________________
Millipore Corporation
(Exact name of obligor as specified in its charter)
MASSACHUSETTS 04-2170233
(State or other jurisdiction (I.R.S. Employer
of Identification No.)
incorporation or
organization)
80 Ashby Road
Bedford, Massachusetts 01730
(617) 275-9200
(Address of principal executive offices) (Zip Code)
Debt Securities
(Title of indenture securities)
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervisory authority to
which it is subject.
Department of Banking and Insurance of The Commonwealth of
Massachusetts, 100 Cambridge Street, Boston, Massachusetts.
Board of Governors of the Federal Reserve System, Washington, D.C.,
Federal Deposit Insurance Corporation, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations with Obligor.
If the Obligor is an affiliate of the trustee, describe each such
affiliation.
The obligor is not an affiliate of the trustee or of its parent,
State Street Boston Corporation.
(See note on page 2.)
Item 3. through Item 15. Not applicable.
Item 16. List of Exhibits.
List below all exhibits filed as part of this statement of eligibility.
1. A copy of the articles of association of the trustee as now in
effect.
A copy of the Articles of Association of the trustee, as now in
effect, is on file with the Securities and Exchange Commission as
Exhibit 1 to Amendment No. 1 to the Statement of Eligibility and
Qualification of Trustee (Form T-1) filed with the Registration Statement of
Morse Shoe, Inc. (File No. 22-17940) and is incorporated herein by
reference thereto.
2. A copy of the certificate of authority of the trustee to commence
business, if not contained in the articles of association.
A copy of a Statement from the Commissioner of Banks of
Massachusetts that no certificate of authority for the trustee to commence
business was necessary or issued is on file with the Securities and Exchange
Commission as Exhibit 2 to Amendment No. 1 to the Statement of Eligibility
and Qualification of Trustee (Form T-1) filed with the Registration Statement
of Morse Shoe, Inc. (File No. 22-17940) and is incorporated herein by
reference thereto.
3. A copy of the authorization of the trustee to exercise corporate
trust powers, if such authorization is not contained in the documents
specified in paragraph (1) or (2), above.
A copy of the authorization of the trustee to exercise corporate
trust powers is on file with the Securities and Exchange Commission as
Exhibit 3 to Amendment No. 1 to the Statement of Eligibility and
Qualification of Trustee (Form T-1) filed with the Registration Statement of
Morse Shoe, Inc. (File No. 22-17940) and is incorporated herein by reference
thereto.
4. A copy of the existing by-laws of the trustee, or instruments
corresponding thereto.
A copy of the by-laws of the trustee, as now in effect, is on file
with the Securities and Exchange Commission as Exhibit 4 to the Statement of
Eligibility and Qualification of Trustee (Form T-1) filed with the
Registration Statement of Eastern Edison Company (File No. 33-37823) and is
incorporated herein by reference thereto.
5. A copy of each indenture referred to in Item 4. if the obligor is
in default.
Not applicable.
6. The consents of United States institutional trustees required by
Section 321(b) of the Act.
The consent of the trustee required by Section 321(b) of the Act is
annexed hereto as Exhibit 6 and made a part hereof.
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.
A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining
authority is annexed hereto as Exhibit 7 and made a part hereof.
NOTES
In answering any item of this Statement of Eligibility which relates to
matters peculiarly within the knowledge of the obligor or any underwriter for
the obligor, the trustee has relied upon information furnished to it by the
obligor and the underwriters, and the trustee disclaims responsibility for
the accuracy or completeness of such information.
The answer furnished to Item 2. of this statement will be amended, if
necessary, to reflect any facts which differ from those stated and which
would have been required to be stated if known at the date hereof.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, State Street Bank and Trust Company, a corporation
organized and existing under the laws of The Commonwealth of Massachusetts,
has duly caused this statement of eligibility to be signed on its behalf by
the undersigned, thereunto duly authorized, all in the City of Boston and The
Commonwealth of Massachusetts, on the 6th day of March, 1997.
STATE STREET BANK AND TRUST COMPANY
By: /s/ Eric J. Donaghey
Eric J. Donaghey
Assistant Vice President
EXHIBIT 6
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture
Act of 1939, as amended, in connection with the proposed issuance by
Millipore Corporation of its Debt Securities, we hereby consent that reports
of examination by Federal, State, Territorial or District authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
request therefor.
STATE STREET BANK AND TRUST COMPANY
By: /s/ Eric J. Donaghey
Eric J. Donaghey
Assistant Vice President
Dated: March 6, 1997
EXHIBIT 7
Consolidated Report of Condition of State Street Bank and Trust Company of
Boston, Massachusetts and foreign and domestic subsidiaries, a state banking
institution organized and operating under the banking laws of this
commonwealth and a member of the Federal Reserve System, at the close of
business December 31, 1996, published in accordance with a call made by the
Federal Reserve Bank of this District pursuant to the provisions of the
Federal Reserve Act and in accordance with a call made by the Commissioner of
Banks under General Laws, Chapter 172, Section 22(a).
Thousands of
ASSETS Dollars
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin 1,561,409
Interest-bearing balances ............... 7,562,240
Securities ............................................... 9,388,513
Federal funds sold and securities purchased
under agreements to resell in domestic offices
of the bank and its Edge subsidiary ........... 5,622,962
Loans and lease financing receivables:
Loans and leases, net of unearned income ............ 4,858,187
Allowance for loan and lease losses ....................... 72,614
Loans and leases, net of unearned income and allowances 4,785,573
Assets held in trading accounts .................. 874,700
Premises and fixed assets ..................... 383,955
Other real estate owned ............................. 870
Investments in unconsolidated subsidiaries .............. 93,621
Customers' liability to this bank on acceptances outstanding 35,022
Intangible assets ........................................ 148,190
Other assets.............................................. 932,673
Total assets ......................................... 31,389,728
LIABILITIES
Deposits:
In domestic offices ................................. 8,508,096
Noninterest-bearing .............................. 6,435,131
Interest-bearing ................................... 2,072,965
In foreign offices and Edge subsidiary ............... 11,395,724
Noninterest-bearing .............................. 27,508
Interest-bearing .................................... 11,368,216
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of
the bank and of its Edge subsidiary ........... 7,518,222
Demand notes issued to the U.S. Treasury and Trading Liabilities 733,935
Other borrowed money .............................. 650,578
Bank's liability on acceptances executed and outstanding 35,022
Other liabilities ................................. 770,029
Total liabilities ................................. 29,611,606
EQUITY CAPITAL
Common stock ...................................... 29,931
Surplus ........................................... 358,146
Undivided profits ................................. 1,389,720
Cumulative foreign currency translation adjustments 325
Total equity capital ............................. 1,778,122
Total liabilities and equity capital .............. 31,389,728
I, Rex S. Schuette, Senior Vice President and Comptroller of the above named
bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Rex S. Schuette
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true
and correct.
David A. Spina
Marshall N. Carter
Charles F. Kaye
5. A copy of each indenture referred to in Item 4. if the obligor is
in default.
Not applicable.
6. The consents of United States institutional trustees required by
Section 321(b) of the Act.
The consent of the trustee required by Section 321(b) of the Act is
annexed hereto as Exhibit 6 and made a part hereof.
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.
A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining authority
is annexed hereto as Exhibit 7 and made a part hereof.
NOTES
In answering any item of this Statement of Eligibility which relates to
matters peculiarly within the knowledge of the obligor or any underwriter of
the obligor, the trustee has relied upon the information furnished to it by
the obligor and the underwriters, and the trustee disclaims responsibility
for the accuracy or completeness of such information.
The answer to Item 2. of this statement will be amended, if necessary,
to reflect any facts which differ from those stated and which would have been
required to be stated if known at the date hereof.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, State Street Bank and Trust Company, a corporation duly
organized and existing under the laws of The Commonwealth of Massachusetts,
has duly caused this statement of eligibility to be signed on its behalf by
the undersigned, thereunto duly authorized, all in the City of Boston and The
Commonwealth of Massachusetts, on the 6th day of March, 1997
STATE STREET BANK AND TRUST COMPANY
By: /s/ Eric J. Donaghey
Eric J. Donaghey
Assistant Vice President
EXHIBIT 6
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture
Act of 1939, as amended, in connection with the proposed issuance by
Millipore Corporation of its Debt Securities, we hereby consent that reports
of examination by Federal, State, Territorial or District authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
request therefor.
STATE STREET BANK AND TRUST COMPANY
By: /s/ Eric J. Donaghey
Eric J. Donaghey
Assistant Vice President
Dated: March 6, 1997
