<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER , 1994
REGISTRATION NO. 33-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
MOTOROLA, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
------------------------
<TABLE>
<S> <C> <C>
DELAWARE 36-1115800
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
1303 EAST ALGONQUIN ROAD
SCHAUMBURG, ILLINOIS 60196
(708) 576-5000
</TABLE>
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
CARL F. KOENEMANN
EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
1303 EAST ALGONQUIN ROAD
SCHAUMBURG, ILLINOIS 60196
(708) 576-5000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPY TO:
JAMES K. MARKEY
SENIOR CORPORATE COUNSEL
1303 EAST ALGONQUIN ROAD
SCHAUMBURG, ILLINOIS 60196
(708) 576-9564
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement
as determined in light of market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. /X/
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT BEING OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES BEING REGISTERED REGISTERED(1) PER UNIT(3) OFFERING PRICE(3) FEE(5)
<S> <C> <C> <C> <C>
Debt Securities, Common Stock, $3 par value per
share, Debt Securities Warrants and Common Stock $800,000,000 $800,000,000
Warrants......................................... (2) 100% (4) $275,862
<FN>
(1) Includes such indeterminate number of shares of Common Stock as may be
issued upon exercise of Securities Warrants and such indeterminate amount
of Common Stock as may be issued in exchange for, or upon conversion of,
Debt Securities.
(2) Or the equivalent thereof in one or more foreign currencies or composite
currencies, including European Currency Units, or, if any Debt Securities
or Debt Securities Warrants are issued at an original issue discount, such
greater amount as shall result.
(3) Estimated solely for purposes of calculating the registration fee.
(4) No separate consideration will be received for Common Stock that is issued
in exchange for, or upon conversion of, Debt Securities.
(5) Calculated on the basis of 1/29th of 1% of the proposed maximum aggregate
offering price.
</TABLE>
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
SUBJECT TO COMPLETION, DATED OCTOBER , 1994
PROSPECTUS [[LOGO] MOTOROLA]
DEBT SECURITIES AND DEBT WARRANTS
COMMON STOCK AND COMMON STOCK WARRANTS
UNITS
---------------------
Motorola, Inc. (the "Company") may offer from time to time under this
Prospectus in one or more series its (i) debt securities (the "Debt
Securities"), which may be senior (the "Senior Securities") or subordinated (the
"Subordinated Securities"), (ii) warrants to purchase Debt Securities (the "Debt
Warrants"), (iii) shares of its common stock, $3 par value per share (the
"Common Stock") and (iv) warrants to purchase Common Stock ("Common Stock
Warrants," and together with the Debt Warrants, the "Securities Warrants"), with
an aggregate initial public offering price of up to $800,000,000 or the
equivalent thereof in one or more foreign currencies or composite currencies,
including European Currency Units ("ECU"), on terms to be determined at the time
of each offering hereunder. The Debt Securities, Common Stock and Securities
Warrants may be offered separately or as a part of units consisting of one or
more such securities ("Units," and together with the Debt Securities, Common
Stock and Securities Warrants, the "Offered Securities"), in separate series, in
amounts, at prices and on terms to be determined at the time of sale and to be
set forth in one or more supplements to this Prospectus (a "Prospectus
Supplement"). The Debt Securities may be convertible into or exchangeable for
shares of Common Stock or any other securities of any Person (including the
Company), as described herein.
Certain terms of the Offered Securities in respect of which this Prospectus
is being delivered, such as, (i) in the case of Debt Securities, the specific
designation, ranking, priority, aggregate principal amount, currency or
currencies, denominations, maturity, which may be fixed or extendible, premium
or discount, if any, interest rate, which may be fixed or variable, and time of
payment of interest, terms for redemption at the option of the Company or
repayment at the option of the holder, terms for sinking fund payments, terms
for conversion or exchange and form (which may be bearer, registered or global)
and any other terms in connection with the offer and sale of Debt Securities;
(ii) in the case of Securities Warrants, the duration, offering price, exercise
price, exercise dates and detachability and any other terms in connection with
the offer and sale of the Securities Warrants; (iii) in the case of Common
Stock, the specific title, number of shares or fractional interests therein,
dividend, liquidation, voting and any other rights in connection with the offer
and sale of the Common Stock; and (iv) in the case of any Offered Security, the
net proceeds, initial public offering price and any other terms will be set
forth in the applicable Prospectus Supplement. Units may be issued in amounts,
at prices, on terms and containing such conditions, covenants and other
provisions, and consisting of such Offered Securities and other securities, as
will be set forth in the applicable Prospectus Supplement. The applicable
Prospectus Supplement will also contain information, where applicable, about
certain United States federal income tax considerations relating to the Offered
Securities and any listing on a securities exchange of the Offered Securities
covered by such Prospectus Supplement and about relationships between the
Company and the applicable trustee, in the case of the issuance of Debt
Securities and Securities Warrants.
The Offered Securities may be offered directly, through agents designated
from time to time, to or through underwriters or dealers, which may include
affiliates of the Company, or through a combination of the foregoing. See "Plan
of Distribution." If any agents, dealers or underwriters are involved in the
sale of any of the Offered Securities, their names, and any applicable fee,
commission, purchase price or discount arrangements with them, will be set
forth, or will be calculable from the information set forth, in the applicable
Prospectus Supplement. The Company may also issue Offered Securities to one or
more persons in exchange for outstanding securities of the Company acquired by
such persons from third parties in open market or privately negotiated
transactions. The newly issued Offered Securities sold in any such exchange may
be offered pursuant to this Prospectus and the applicable Prospectus Supplement
by such persons, acting as principal for their own accounts, at market prices
prevailing at the time of sale, at prices otherwise negotiated or at fixed
prices. Unless otherwise indicated in the applicable Prospectus Supplement, the
Company will receive only outstanding securities of the Company in any such
exchange transaction and will not receive cash proceeds in connection with the
exchange or receive any proceeds in connection with the resale by such persons
of any Offered Securities.
SEE "RISK FACTORS RELATING TO CURRENCIES" FOR A DISCUSSION OF CERTAIN
CONSIDERATIONS RELEVANT TO AN INVESTMENT IN DEBT SECURITIES AND DEBT WARRANTS.
--------------------------
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 OR ANY PROSPECTUS SUPPLEMENT. ANY REPRESENTA-
TION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
The date of this Prospectus is , 1994.
<PAGE>
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 and other information with the Securities and Exchange
Commission (the "Commission"). Reports, proxy statements and other information
filed by the Company can be inspected and copied at the public reference
facilities maintained by the Commission at 450 Fifth Street, N.W., Washington,
D.C. 20549, and at the Commission's Regional Offices at 13th Floor, Seven World
Trade Center, New York, New York 10048 and 500 West Madison Street, Chicago,
Illinois 60661. Copies of such material can be obtained by mail from the Public
Reference Branch of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates. In addition, reports, proxy statements and other
information concerning the Company may be inspected at the offices of the New
York Stock Exchange, 20 Broad Street, New York, New York 10005 and the Chicago
Stock Exchange, 440 South LaSalle Street, Chicago, Illinois 60605.
Additional information regarding the Company and the Offered Securities is
contained in the registration statement on Form S-3 (together with all exhibits
and amendments, the "Registration Statement") filed with the Commission under
the Securities Act of 1933, as amended (the "Securities Act"). This Prospectus
does not contain all of the information set forth in the Registration Statement,
certain parts of which are omitted in accordance with the Commission's rules.
For further information pertaining to the Company and the Offered Securities
offered hereby, reference is made to the Registration Statement which may be
inspected without charge at the office of the Commission at 450 Fifth Street
N.W., Washington, D.C. 20549, and copies thereof may be obtained from the
Commission at prescribed rates.
------------------------
Unless otherwise indicated, currency amounts in this Prospectus and any
Prospectus Supplement are stated in United States dollars ("$," "dollars," "U.S.
dollars," or "U.S. $").
------------------------
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission (File No. 1-7221) are
incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1993.
2. The Company's Quarterly Reports on Form 10-Q for the quarters ended
April 2, 1994 and July 2, 1994.
3. The Company's Current Report on Form 8-K dated August 5, 1994.
4. The description of the Common Stock included in the Registration
Statement on Form 8-B dated July 2, 1973, including any amendment or report
filed for the purpose of updating such description.
5. The description of the Company's Preferred Share Purchase Rights
included in the Registration Statement on Form 8-A dated November 15, 1988,
as amended by Forms 8 dated August 9, 1990 and December 2, 1992 and by Form
8-A/A dated February 28, 1994.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of the Offered Securities shall be deemed to be
incorporated by reference into this Prospectus and to be a part hereof from the
date of filing of such documents. 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
2
<PAGE>
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon the written or oral request of such person, a copy
of any or all of the documents incorporated herein by reference (other than
exhibits, unless such exhibits are specifically incorporated by reference in
such documents). Written requests for such copies should be directed to Richard
H. Weise, Secretary, Motorola, Inc., 1303 East Algonquin Road, Schaumburg,
Illinois 60196, telephone: (708) 576-5000.
NO PERSON IS AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS OR A PROSPECTUS
SUPPLEMENT IN CONNECTION WITH THE OFFERING DESCRIBED HEREIN AND THEREIN, AND ANY
INFORMATION OR REPRESENTATIONS NOT CONTAINED HEREIN OR THEREIN MUST NOT BE
RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR BY ANY UNDERWRITER,
DEALER OR AGENT. THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF OFFERED
SECURITIES UNLESS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT. NEITHER THIS
PROSPECTUS NOR ANY PROSPECTUS SUPPLEMENT SHALL CONSTITUTE AN OFFER TO SELL OR A
SOLICITATION OF AN OFFER TO BUY ANY OF THE OFFERED SECURITIES COVERED BY THIS
PROSPECTUS IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH
OFFER OR SOLICITATION IN SUCH JURISDICTION. THE DELIVERY OF THIS PROSPECTUS AND
THE APPLICABLE PROSPECTUS SUPPLEMENT AT ANY TIME DOES NOT IMPLY THAT THE
INFORMATION HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE HEREOF.
3
<PAGE>
THE COMPANY
Motorola, Inc. is a corporation organized under the laws of the State of
Delaware as the successor to an Illinois corporation organized in 1928. As used
in this discussion of "The Company," "Motorola" or the "Company" refers to
Motorola, Inc. and its subsidiaries, unless otherwise indicated by the context.
Motorola's principal executive offices are located at 1303 East Algonquin Road,
Schaumburg, Illinois 60196 (telephone number 708-576-5000).
Motorola, one of the world's leading providers of electronic equipment,
systems, components and services for worldwide markets, is engaged in the
design, manufacture and sale, principally under the Motorola brand, of a
diversified line of such products. These products include two-way land mobile
communications systems, paging and wireless data systems and other forms of
electronic communication systems; cellular mobile and portable telephones and
systems; semiconductors, including integrated circuits, discrete devices and
microprocessor units; information systems products such as modems, multiplexers
and network processors; electronic equipment for military and aerospace use;
electronic engine controls and other automotive and industrial electronic
equipment; and multifunction computer systems for distributed data processing
and office automation applications. Motorola also provides services for paging,
cellular telephone and shared mobile radio. "Motorola" is a registered trademark
of Motorola, Inc.
SEMICONDUCTOR PRODUCTS
The semiconductor products manufactured by the Semiconductor Products Sector
include integrated circuit devices (metal-oxide semiconductor and bipolar) such
as dynamic and static random access memories, microcontrollers, microprocessors,
microcomputers, gate arrays, standard cells, digital signal processors, mixed
signal arrays, and other logic and analog components. In addition, the
Semiconductor Products Sector manufactures a wide variety of discrete devices
including zener and tuning diodes, radio frequency devices, power and small
signal transistors, field effect transistors, microwave devices,
optoelectronics, rectifiers and thyristors.
GENERAL SYSTEMS PRODUCTS
General systems products are designed, manufactured and sold by the General
Systems Sector which includes the Cellular Subscriber Group, the Cellular
Infrastructure Group, the Network Ventures Division, Personal Communications
Systems and the Motorola Computer Group. The Cellular Subscriber and
Infrastructure Groups manufacture, sell, install and service cellular
infrastructure and radiotelephone equipment. In addition, the Cellular
Subscriber Group resells cellular line service in the U.S., New Zealand,
Germany, France and U.K. markets. The Network Ventures Division is a joint
venture partner in cellular and telepoint operating systems in Argentina,
Uruguay, Hong Kong, Israel, Chile, Mexico, Thailand, Pakistan, Dominican
Republic, Japan, Nicaragua and other countries. The Motorola Computer Group
develops, manufactures, sells and services multifunction computer systems and
board level products, together with operating systems and system enablers.
COMMUNICATIONS PRODUCTS
As a principal supplier of mobile and portable FM two-way radio and radio
paging and wireless data systems, the Land Mobile Products Sector and the
Messaging, Information and Media Sector provide equipment and systems to meet
the communications needs of individuals and many different types of business,
institutional and governmental organizations. Products of the Land Mobile
Products Sector and certain products of the Messaging, Information and Media
Sector provide voice and data communication between vehicles, persons and base
stations. The Messaging, Information and Media Sector products provide signaling
or signaling and one-way voice communications or wireless data communications to
people away from their homes, vehicles or offices.
4
<PAGE>
Information systems products are also designed, manufactured and sold by the
Messaging, Information and Media Sector. These products include high-speed
leased-line, dial and data communications modems; digital transmission devices,
DDS service units, ISDN terminal adaptors, multiplexers; network management and
control systems; X.25 networking equipment and local area network
interconnection products.
GOVERNMENT AND SYSTEMS TECHNOLOGY PRODUCTS
The Government and Systems Technology Group's products include aerospace
telecommunications systems, military communications equipment, radar systems,
data links, display systems, positioning and navigation systems, instrumentation
products, countermeasures systems, missile guidance equipment, electronic
ordinance devices, drone electronic systems and secure telecommunication and
commercial test equipment products. Under an agreement between Motorola, Inc.
and Iridium, Inc., the Government and Systems Technology Group is also designing
and constructing the satellite network and ground control segment of the
Iridium-R- space system.
AUTOMOTIVE, ENERGY AND CONTROLS PRODUCTS
The products manufactured by the Automotive, Energy and Controls Group
include automotive and industrial electronics, energy storage products and
systems, and ceramic and quartz electronic components, as well as electronic
ballasts for fluorescent lighting and radio frequency identification devices.
- ------------------------------
- -R---Registered Trademark and Servicemark of Iridium, Inc.
5
<PAGE>
RISK FACTORS RELATING TO CURRENCIES
Debt Securities or Debt Warrants denominated or payable in foreign
currencies may entail significant risks. These risks include, without
limitation, the possibility of significant fluctuations in the foreign currency
markets, the imposition or modification of foreign exchange controls and
potential illiquidity in the secondary market. These risks will vary depending
upon the currency or currencies involved. These risks may be more fully
described in the applicable Prospectus Supplement. See "Description of Debt
Securities" and "Description of Securities Warrants."
USE OF PROCEEDS
Unless otherwise specified in an applicable Prospectus Supplement, the net
proceeds to be received by the Company from the sale of the Offered Securities
will be used for general corporate purposes.
RATIOS OF EARNINGS TO FIXED CHARGES
The following are the unaudited consolidated ratios of earnings to fixed
charges for the quarters ended July 2, 1994 and July 3, 1993 and each of the
years in the five-year period ended December 31, 1993:
<TABLE>
<CAPTION>
SIX MONTHS
ENDED
----------------- YEAR ENDED DECEMBER 31,
JULY 2, JULY 3, --------------------------------
1994 1993 1993 1992 1991 1990 1989
------- ------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges....................... 8.5 5.9 6.8 4.0 3.5 3.8 3.7
</TABLE>
For purposes of computing the ratios of earnings to fixed charges, income
before income tax expense (excluding interest costs capitalized) plus fixed
charges has been divided by fixed charges. Fixed charges consist of interest
costs (including interest costs capitalized) and estimated interest included in
rentals (one-third of net rental expense).
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities (except for
the terms of Liquid Yield Option-TM- Notes ("LYONs"-TM-), which are described
separately) sets forth certain general terms and provisions of the Debt
Securities to which any Prospectus Supplement may relate. The particular terms
of the Debt Securities offered by any Prospectus Supplement and the extent, if
any, to which such general provisions may apply to such Debt Securities will be
described in such Prospectus Supplement.
The Senior Securities (except for LYONs) are to be issued under an Indenture
(the "Senior Indenture") between the Company and Harris Trust and Savings Bank,
as trustee, or the trustee named in the applicable Prospectus Supplement as
trustee (the "Senior Trustee") and the Subordinated Securities (except for
LYONs) are to be issued under an indenture (the "Subordinated Indenture"; the
Senior Indenture and the Subordinated Indenture are collectively referred to
herein as the "Indentures") between the Company and the First National Bank of
Chicago, as trustee, or the trustee named in the applicable Prospectus
Supplement as trustee (the "Subordinated Trustee"). The forms of the Senior
Indenture and the Subordinated Indenture are exhibits to the Registration
Statement. The following summary of certain provisions of the Indentures does
not purport to be complete and is qualified in its entirety by reference to the
provisions of the Indentures and the applicable Prospectus Supplement relating
to such Offered Securities. Numerical references in parentheses below are to
sections of the Indentures. Wherever particular sections or defined terms of the
Indentures are referred to, it is intended that such sections or defined terms
shall be incorporated herein by reference. Unless otherwise indicated,
capitalized terms used herein that are defined in the
- ------------------------------
- -TM---Trademark of Merrill Lynch & Co., Inc.
6
<PAGE>
Indentures shall have the meanings ascribed to them in the Indentures. As used
in this "Description of Debt Securities," the "Company" refers to Motorola, Inc.
and does not, unless the context otherwise indicates, include its subsidiaries.
GENERAL
The Senior Securities will be unsubordinated obligations of the Company.
They will be unsecured and will rank equally and PARI PASSU with each other,
unless otherwise indicated in the applicable Prospectus Supplement. (Section 301
of the Senior Indenture) The Subordinated Securities will be subordinated in
right of payment to the prior payment in full of the Senior Indebtedness of the
Company. See "Description of Debt Securities -- Subordinated Indenture
Provisions." The Subordinated Securities will be unsecured and will rank equally
and PARI PASSU with each other, unless otherwise indicated in the applicable
Prospectus Supplement. (Section 301 of the Subordinated Indenture) The
Indentures do not limit the aggregate principal amount of Debt Securities which
may be issued thereunder and provide that Debt Securities may be issued
thereunder from time to time in one or more series.
Reference is made to the Prospectus Supplement relating to the particular
series of Debt Securities offered thereby for the following terms, when
applicable, of the Offered Securities: (1) the title of the Offered Securities;
(2) any limit on the aggregate principal amount of the Offered Securities; (3)
the date or dates, or the method by which such date or dates will be determined
or extended, on which the principal (and premium, if any) of the Offered
Securities will be payable; (4) the rate or rates per annum at which the Offered
Securities will bear interest, if any, or the method by which such rate or rates
will be determined and the date or dates from which such interest will accrue;
(5) the dates on which such interest, if any, will be payable and the Regular
Record Dates for any interest payable on any Registered Security on any such
Interest Payment Dates, any circumstances in which the Company may defer
interest payments or any manner of computing interest if other than a 360-day
year of twelve 30-day months; (6) the place or places where principal and
interest (and premium, if any) on the Offered Securities may be payable, where
any Registered Securities may be surrendered for transfer and where Offered
Securities may be exchanged and notices and demands may be served or published,
(7) the price at which, the periods within which or the date or dates on which,
and the terms and conditions upon which the Offered Securities may, pursuant to
any optional or mandatory redemption provisions, be redeemed at the option of
the Company; (8) the obligation, if any, of the Company to redeem, repay or
purchase Offered Securities pursuant to any sinking fund or analogous provisions
or at the option of a Holder thereof and the period or periods, price or prices
and terms and conditions upon which such repurchase, redemption or purchase
shall occur; (9) whether Offered Securities are to be Registered Securities,
Bearer Securities or both, are to be issuable with or without coupons and the
terms upon which Bearer Securities may be exchanged for Registered Securities
and, in the case of Bearer Securities, the date as of which such Bearer
Securities shall be dated (if not the date of original issuance of the first
security of like tenor and term); (10) whether Offered Securities are to be
issued in the form of a Global Security, the Depositary and Global Exchange
Agent, whether such Global form is temporary or permanent, the circumstances
under which any temporary Global Security will be exchanged for definitive
Global Securities and any applicable Exchange Date; (11) whether any additional
amounts will be payable to Holders of the Offered Securities; (12) the
denomination of any Registered Security (if other than $1,000 or any integral
multiple thereof) and of any Bearer Security (if other than $5,000 or any
integral multiple thereof); (13) if other than Dollars, the Currency or
Currencies of denomination, including any composite Currency or index; (14) the
application, if any, of the defeasance or covenant defeasance provisions of the
applicable Indenture to the Offered Securities; (15) if other than Dollars, the
Currency, Currencies or Currency units in which payments shall be made on the
Offered Securities and the time and manner of determining any exchange rate
between the Currency or Currencies of denomination and that or those in which
they are to be paid; (16) the manner in which any payments on an Offered
Security may be determined with respect to an index; (17) the designation of any
initial Exchange Rate Agent; (18) the terms and conditions, if any, upon which
the Offered Securities are to be convertible into or exchangeable for any
7
<PAGE>
securities of any Person (including the Company); (19) the portion of the
principal amount of the Offered Securities, if other than the principal amount
thereof, payable upon acceleration of maturity thereof; (20) the Person to whom
any interest on any Registered Security shall be payable, if other than the
Person in whose name such Registered Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date,
the manner in which, or Person to whom, any interest on any Bearer Security will
be payable, if other than upon presentation and surrender of the coupons
appertaining thereto as they mature, and the extent to which any interest
payable on an Interest Payment Date on any temporary Security issued in Global
form will be paid if other than the manner in the applicable Indenture; (21) the
terms of any pledge of property made to secure the obligations of the Company
under such Offered Securities and the circumstances under which such pledge may
be released, and the limitations, if any, on recourse against the Company under
such Offered Securities; (22) if other than the Trustee, the identity of the
Security Registrar and/or Paying Agent; and (23) any other terms of the Offered
Securities. (Section 301 of each Indenture)
Additional provisions of the applicable Indenture, such as rate reset and
extension provisions, may be made applicable to the Offered Securities, as
described in the applicable Prospectus Supplement.
For purposes of this Prospectus, any reference to the payment of principal
(or premium, if any) or interest, if any, on any Debt Securities will be deemed
to include mention of the payment of any additional amounts required by the
terms of such Debt Securities.
Debt Securities may provide for less than the entire principal amount
thereof to be payable upon declaration of acceleration of the maturity thereof
("Original Issue Discount Securities"). Federal income tax and other
considerations pertaining to any such Original Issue Discount Securities will be
discussed in the applicable Prospectus Supplement.
The Debt Securities will be obligations exclusively of the Company. Since
the operations of the Company are currently partially conducted through
subsidiaries, primarily overseas, the cash flow and the consequent ability to
service debt, including the Debt Securities, of the Company, are partially
dependent upon the earnings of its subsidiaries and the distribution of those
earnings to, or upon loans or other payments of funds by those subsidiaries to,
the Company. The subsidiaries are separate and distinct legal entities and have
no obligation, contingent or otherwise, to pay any amounts due pursuant to the
Debt Securities or to make any funds available therefor, whether by dividends,
loans or other payments. In addition, the payment of dividends and the making of
loans and advances to the Company by its subsidiaries may be subject to
statutory or contractual restrictions, are contingent upon the earnings of those
subsidiaries and are subject to various business considerations.
Any right of the Company to receive assets of any of its subsidiaries upon
their liquidation or reorganization (and the consequent right of the Holders of
the Debt Securities to participate in those assets) will be effectively
subordinated to the claims of that subsidiary's creditors (including trade
creditors), except to the extent that the Company is itself recognized as a
creditor of such subsidiary, in which case the claims of the Company would still
be subordinate to any security interests in the assets of such subsidiary and
any indebtedness of such subsidiary senior to that held by the Company.
The general provisions of the Indentures do not contain any provisions that
would limit the ability of the Company to incur indebtedness or that would
afford holders of Debt Securities protection in the event of a highly leveraged
or similar transaction involving the Company. However, the general provisions of
the Indentures do provide that neither the Company nor any Domestic Subsidiary
(as defined below) will subject certain of its property or assets to any
mortgage or other encumbrance unless the Securities issued thereunder are
secured equally and ratably with or prior to such other indebtedness thereby
secured. See "Description of Debt Securities -- Restrictive Covenants" below.
Under the Indentures, the Company has the ability to issue Debt Securities
with terms different from those of Debt Securities previously issued thereunder
and, without the consent of the holders
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thereof, to issue additional amounts of a series of Debt Securities (with
different dates for payments, different rates of interest and in different
currencies or currency), in an aggregate principal amount determined by the
Company. (Section 301 of each Indenture)
DENOMINATIONS, FORM, EXCHANGE, REGISTRATION AND TRANSFER
Debt Securities of a series may be issuable solely as Registered Securities,
solely as Bearer Securities or as both Registered Securities and Bearer
Securities. Unless otherwise provided in the applicable Prospectus Supplement,
Registered Securities denominated in U.S. dollars (other than Global Securities,
which may be of any denomination) are issuable in denominations of $1,000 and
any integral multiple thereof and Bearer Securities denominated in U.S. dollars
are issuable in denominations of $5,000 and any integral multiples thereof. The
Indentures also provide that Debt Securities of a series may be issuable in
global form. See "Description of Debt Securities -- Global Securities" below.
Unless otherwise indicated in the applicable Prospectus Supplement, Bearer
Securities (except those in temporary or permanent global form) will have
interest coupons attached. (Section 201 of each Indenture)
Registered Securities of any series will be exchangeable for other
Registered Securities of the same series of authorized denominations and of a
like aggregate principal amount, tenor and terms. In addition, if Debt
Securities of any series are issuable as both Registered Securities and Bearer
Securities, at the option of the Holder, but subject to applicable laws, upon
request confirmed in writing, and subject to the terms of the applicable
Indenture, Bearer Securities (with all unmatured coupons, except as provided
below, and all matured coupons in default) of such series will be exchangeable
into Registered Securities of the same series of any authorized denominations
and of a like aggregate principal amount, tenor and terms. Bearer Securities
surrendered in exchange for Registered Securities of the same series between the
close of business on a Regular Record Date or a Special Record Date and the
relevant date for payment of interest shall be surrendered without the coupon
relating to such date for payment of interest, and interest will not be payable
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 terms of the applicable Indenture. Unless otherwise
specified in the applicable Prospectus Supplement, Bearer Securities will not
otherwise be issued in exchange for Registered Securities. (Section 305 of each
Indenture)
In connection with its original issuance, no Bearer Security shall be mailed
or otherwise delivered to any location in the United States (as defined below
under "Description of Debt Securities -- Limitations on Issuance of Bearer
Securities") and, unless otherwise specified in the applicable Prospectus
Supplement, a Bearer Security may be delivered in connection with its original
issuance only if the person entitled to receive such Bearer Security furnishes
written certification, in the form required by the applicable Indenture, to the
effect that (i) such Bearer Security is not being acquired by or on behalf of a
United States person (as defined below under "Description of Debt Securities --
Limitations on Issuance of Bearer Securities"), or (ii) if a beneficial interest
in such Bearer Security is being acquired by or on behalf of a United States
person, that such United States person is a foreign branch of a United States
financial institution (as defined in Treasury Regulation Section
1.165-12(c)(1)(v)) that is purchasing for its own account or for resale or such
person is acquiring the Bearer Security through the foreign branch of a United
States financial institution and the financial institution agrees, in either
case, to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
United States Internal Revenue Code of 1986, as amended (the "Code"), and the
regulations thereunder or (iii) such Bearer Security is being acquired by a
United States or foreign financial institution for resale during the restricted
period (as defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7))
and has not been acquired for purposes of resale directly or indirectly to a
United States person or to a person within the United States or its possessions.
(Section 303 of each Indenture) See "Description of Debt Securities -- Global
Securities" and "Description of Debt Securities -- Limitations on Issuance of
Bearer Securities" below.
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Debt Securities may be presented for exchange as provided above, and
Registered Securities may be presented for registration of transfer (duly
endorsed or accompanied by a satisfactory written instrument of transfer), at
the office of the Security Registrar or at the office of any transfer agent
designated by the Company for such purpose with respect to such series of Debt
Securities, without service charge and upon payment of any taxes and other
governmental charges. (Section 305 of each Indenture) If the Prospectus
Supplement refers to any transfer agent (in addition to the Security Registrar)
initially designated by the Company with respect to any series of Debt
Securities, the Company may at any time rescind the designation of any such
transfer agent or approve a change in the location through which any such
transfer agent (or Security Registrar) acts, except that, if Debt Securities of
a series are issuable solely as Registered Securities, the Company will be
required to maintain a transfer agent in each Place of Payment for such series
and, if Debt Securities of a series are issuable as Bearer Securities, the
Company will be required to maintain (in addition to the Security Registrar) a
transfer agent in a Place of Payment for such series located outside the United
States. The Company may at any time designate additional transfer agents with
respect to any series of Debt Securities. (Section 1002 of each Indenture)
The Company shall not be required (i) to issue, register the transfer of or
exchange Debt Securities of any particular series to be redeemed or exchanged
for a period of 15 days preceding the first publication of the relevant notice
of redemption or, if Registered Securities are outstanding and there is no
publication, the mailing of the relevant notice of redemption or exchange, (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 Registered
Security being redeemed or exchanged 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 like tenor and terms of that series,
provided that such Registered Security shall be surrendered for redemption.
(Section 305 of each Indenture)
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more Global Securities that will be deposited with, or on behalf
of, a depository (the "Depository") identified in the Prospectus Supplement
relating to such series. Global Securities may be issued in fully registered or
bearer form and may be issued in either temporary or permanent form. Unless and
until it is exchanged in whole or in part for the individual Debt Securities
represented thereby, a Global Security may not be transferred except as a whole
by the Depository for such Global Security to a nominee of such Depository or by
a nominee of such Depository to such Depository or another nominee of such
Depository or by the Depository or any nominee of such Depository to a successor
Depository or any nominee of such successor.
The specific terms of the depository arrangement with respect to a series of
Debt Securities will be described in the applicable Prospectus Supplement
relating to such series. The Company anticipates that the following provisions
will generally apply to depository arrangements.
Upon the issuance of a Global Security, the Depository for such Global
Security or its nominee will credit on its book-entry registration and transfer
system the respective principal amounts of the individual Debt Securities
represented by such Global Security to the accounts of persons that have
accounts with such Depository ("Participants"). Such accounts shall be
designated by the underwriters, dealers or agents with respect to such Debt
Securities or by the Company if such Debt Securities are offered and sold
directly by the Company. Ownership of beneficial interests in a Global Security
will be limited to Participants or persons that may hold interests through
Participants. Ownership of beneficial interests in such Global Security will be
shown on, and the transfer of that ownership will be effected only through,
records maintained by the applicable Depository or its nominee (with respect to
interests of Participants) and records of Participants (with respect to
interests of persons who hold through Participants). The laws of some states
require that certain purchasers of securities take physical delivery of such
securities in definitive form. Such limits and such laws may impair the ability
to own, pledge or transfer beneficial interest in a Global Security.
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So long as the Depository for a Global Security or its nominee is the
registered owner of such Global Security, such Depository or such nominee, as
the case may be, will be considered the sole owner or holder of the Debt
Securities represented by such Global Security for all purposes under the
applicable Indenture. Except as provided below, owners of beneficial interests
in a Global Security will not be entitled to have any of the individual Debt
Securities of the series represented by such Global Security registered in their
names, will not receive or be entitled to receive physical delivery of any such
Debt Securities of such series in definitive form and will not be considered the
owners or holders thereof under the applicable Indenture.
Payments of principal of and any interest (and premium, if any) on
individual Debt Securities represented by a Global Security registered in the
name of a Depository or its nominee will be made to the Depository or its
nominee, as the case may be, as the registered owner of the Global Security
representing such Debt Securities. None of the Company, the Trustee, any Paying
Agent or the Security Registrar for such Debt Securities will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in the Global
Security for such Debt Securities or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
The Company expects that the Depository for a series of Debt Securities or
its nominee, upon receipt of any payment of principal or interest (or premium,
if any) in respect of a permanent Global Security representing any of such Debt
Securities, immediately will credit Participants' accounts with payments in
amounts proportionate to their respective beneficial interests in the principal
amount of such Global Security for such Debt Securities as shown on the records
of such Depository or its nominee. The Company also expects that payments by
Participants to owners of beneficial interests in such Global Security held
through such Participants will be governed by standing instructions and
customary practices, as is now the case with securities held for the accounts of
customers in bearer form or registered in "street name." Such payments will be
the responsibility of such Participants.
If a Depository for a series of Debt Securities is at any time unwilling,
unable or ineligible to continue as depository and a successor depository is not
appointed by the Company within 90 days, the Company will issue individual Debt
Securities of such series to Participants in exchange for the Global 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
applicable Prospectus Supplement relating to such Debt Securities, determine not
to have any Debt Securities of such series represented by one or more Global
Securities and, in such event, will issue individual Debt Securities of such
series to Participants in exchange for the Global Security or Securities
representing such series of Debt Securities.
LIMITATIONS ON ISSUANCE OF BEARER SECURITIES
In compliance with United States federal tax laws and regulations, Bearer
Securities may not be offered, sold, resold or delivered in connection with
their original issuance in the United States or to United States persons (each
as defined below) other than to a Qualifying Branch of a United States Financial
Institution (as defined below) or a United States person acquiring Bearer
Securities through a Qualifying Branch of a United States Financial Institution
and any underwriters, agents and dealers participating in the offering of Debt
Securities must agree that they will not offer any Bearer Securities for sale or
resale in the United States or to United States persons (other than a Qualifying
Branch of a United States Financial Institution or a United States person
acquiring Bearer Securities through a Qualifying Branch of a United States
Financial Institution) nor deliver Bearer Securities within the United States.
In addition, any such underwriters, agents and dealers must agree to send
confirmations to each purchaser of a Bearer Security confirming that such
purchaser represents that it is not a United States person or is a Qualifying
Branch of a United States Financial Institution and, if such person is a dealer,
that it will send similar confirmations to purchasers from it. The term
"Qualifying Branch of a United States Financial Institution" means a branch
located outside the
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United States of a United States securities clearing organization, bank or other
financial institution listed under Treasury Regulation Section 1.165-12(c)(1)(v)
that agrees to comply with the requirements of Section 165(j)(3)(A), (B) or (C)
of the Code and the regulations thereunder.
Bearer Securities and any coupons appertaining thereto will bear a legend
substantially to the following effect: "Any United States person who holds this
obligation will be subject to limitations under the United States income tax
laws, including the limitations provided in Sections 165(j) and 1287(a) of the
Internal Revenue Code." Under Sections 165(j) and 1287(a) of the Code, holders
that are United States persons, with certain exceptions, will not be entitled to
deduct any loss on Bearer Securities and must treat as ordinary income any gain
realized on the sale or other disposition (including the receipt of principal)
of Bearer Securities.
The term "United States person" means a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in or
under the laws of the United States or of any political subdivision thereof, and
an estate or trust the income of which is subject to United States federal
income taxation regardless of its source, and the term "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
(including the Commonwealth of Puerto Rico).
PAYMENT AND PAYING AGENTS
Unless otherwise provided in the applicable Prospectus Supplement, the Place
of Payment for a series issuable solely as Registered Securities will be
Chicago, Illinois, U.S.A., and the Company will initially designate the
corporate trust office of the Senior Trustee and the Subordinated Trustee,
respectively, for this purpose. Notwithstanding the foregoing, at the option of
the Company, interest, if any, may be paid on Registered Securities (i) by check
mailed to the address of the Person entitled thereto as such Person's address
appears in the Security Register or (ii) by wire transfer to an account located
in the United States maintained by the Person entitled thereto as specified in
the Security Register. (Sections 307, 1001 and 1002 of each Indenture) Unless
otherwise provided in the applicable Prospectus Supplement, payment of any
installment of interest on Registered Securities will be made to the Person in
whose name such Registered Security is registered at the close of business on
the Regular Record Date for such interest. (Section 307 of each Indenture)
If Debt Securities of a series are issuable solely as Bearer Securities or
as both Registered Securities and Bearer Securities, unless otherwise provided
in the applicable Prospectus Supplement, the Company will be required to
maintain an office or agency (i) outside the United States at which, subject to
any applicable laws and regulations, the principal of (and premium, if any) and
interest, if any, on such series will be payable and (ii) in Chicago, Illinois
for payments with respect to any Registered Securities of such series (and for
payments with respect to Bearer Securities of such series in the limited
circumstances described below, but not otherwise); provided that, if required in
connection with any listing of such Debt Securities on The Stock Exchange of the
United Kingdom and the Republic of Ireland, the Luxembourg Stock Exchange or any
other stock exchange located outside the United States, the Company will
maintain an office or agency for such Debt Securities in London or Luxembourg or
any city located outside the United States required by such stock exchange.
(Section 1002 of each Indenture) The initial locations of such offices and
agencies will be specified in the applicable Prospectus Supplement. Unless
otherwise provided in the applicable Prospectus Supplement, principal of (and
premium, if any) and interest, if any, on Bearer Securities may be made, at the
Holder's option by (i) check in the Currency designated by the Bearer Security
presented or mailed to an address outside the United States or (ii) paid by wire
transfer to an account in such Currency maintained by the Person entitled
thereto with a bank located outside the United States. (Sections 307 and 1002 of
each Indenture) Unless otherwise provided in the applicable Prospectus
Supplement, payment of installments of interest on any Bearer Securities on or
before Maturity will be made only against surrender of coupons for such interest
installments as they severally mature. (Section 1001 of each Indenture) Unless
otherwise provided in the applicable Prospectus Supplement, no payment with
respect to any Bearer Security will be made at any office or agency of the
Company in
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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.
Notwithstanding the foregoing, payments of principal of (and premium, if any)
and interest, if any, on Bearer Securities payable in U.S. dollars will be made
at the office of the Company's Paying Agent in Chicago, Illinois if (but only
if) payment of the full amount thereof in U.S. dollars at all offices or
agencies outside the United States is illegal or effectively precluded by
exchange controls or other similar restrictions and the Trustee has received an
opinion of counsel that such payment within the United States is legal.
(Sections 307 and 1002 of each Indenture)
The Company may from time to time designate additional offices or agencies
for payment with respect to any Debt Securities, approve a change in the
location of any such office or agency and, except as provided above, rescind the
designation of any such office or agency.
Unless otherwise provided in the applicable Prospectus Supplement, all
payments of principal of (and premium, if any) and interest, if any, on any Debt
Security that is payable in a Currency other than U.S. dollars will be made in
U.S. dollars in the event that such Currency (i) ceases to be used both by the
government of the country that issued the currency and by a central bank or
other public institution of or within the international banking community for
the settlement of transactions, (ii) is the ECU and ceases to be used both
within the European Monetary System and for the settlement of transactions by
public institutions of or within the European Communities or (iii) is any
currency unit (or composite currency) other than the ECU and ceases to be used
for the purposes for which it was established (each of the events described in
clauses (i) through (iii), a "Conversion Event"). (Section 312 of each
Indenture)
All moneys deposited with a paying agent or held for the payment of
principal of (or premium, if any) or interest, if any, on any Debt Security that
remains unclaimed at the end of two years after such principal, premium or
interest shall have become due and payable will, at request of the Company, be
repaid to the Company, or discharged from trust, and the Holder of such Debt
Security or any coupon appertaining thereto will thereafter look only to the
Company for payment thereof. (Section 1003 of each Indenture)
DEFEASANCE AND COVENANT DEFEASANCE
Each Indenture provides that, if such provision is made applicable to the
Debt Securities of any series pursuant to Section 301 of the applicable
Indenture, the Company may elect either (A) to defease and be discharged from
any and all obligations in respect of such Debt Securities (except for certain
obligations to register the transfer or exchange of such Debt Securities, to
replace temporary, destroyed, stolen, lost or mutilated Debt Securities, to
maintain paying agencies and to hold monies for payment in trust) ("defeasance")
or (B) to omit to comply with certain restrictive covenants in Section 801
(being the restrictions described under "Description of Debt Securities --
Consolidation, Merger, Conveyance, Transfer or Lease"), Section 1007 (relating
to maintenance of the Company's existence), 1008 (Maintenance of Properties),
1009 (Payment of Taxes and Other Claims), 1010 (Restrictions on Secured Debt)
and 1011 (Restrictions on Sales and Leasebacks), and the occurrence of any event
specified in Sections 501(3) and 501(4) (with respect to any of Sections 1007
through 1011, inclusive, and Section 801) and 501(7) (described, respectively,
in clauses (c), (d) and (f) under "Description of Debt Securities -- Events of
Default") shall not be deemed to be an Event of Default under the applicable
Indenture and the Debt Securities of any series ("covenant defeasance"), in
either case upon the deposit with the applicable Trustee (or other qualifying
trustee), in trust, of money and/or U.S. Government Obligations (as defined
below) which through the payment of interest and principal in respect thereof in
accordance with their terms will provide money in an amount sufficient to pay
the principal of (and premium, if any) and each installment of interest, if any,
on the Debt Securities of such series on the Stated Maturities of such payments
in accordance with the terms of the applicable Indenture and the Debt Securities
of such series. Such a trust may only be established if, among other things, the
Company has delivered to the applicable Trustee an Opinion of Counsel (who may
be counsel for the Company) to the effect that the Holders of the Debt
Securities of
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such series will not recognize income, gain or loss for federal income tax
purposes as a result of such defeasance or covenant defeasance and will be
subject to federal income tax on the same amount and in the same manner and at
the same times as would have been the case if such deposit and defeasance had
not occurred. Such opinion, in the case of defeasance under clause (A) above,
must refer to and be based upon a ruling of Internal Revenue Service or a change
in applicable Federal income tax law occurring after the date of the applicable
Indenture. The applicable Prospectus Supplement may further describe the
provisions, if any, permitting such defeasance or covenant defeasance with
respect to the Debt Securities of a particular series. (Article Fifteen of each
Indenture)
In the event the Company exercises its option to omit compliance with
certain covenants of the applicable Indenture with respect to the Debt
Securities of any series as described above and the Debt Securities of such
series are declared due and payable because of the occurrence of any Event of
Default other than the Event of Default described in clause (d) under
"Description of Debt Securities -- Events of Default", the amount of money and
U.S. Government Obligations on deposit with the applicable Trustee will be
sufficient to pay amounts due on the Debt Securities of such series at the time
of their Stated Maturity but may not be sufficient to pay amounts due on the
Debt Securities of such series at the time of the acceleration resulting from
such Event of Default. However, the Company shall remain liable for such
payments. The term "U.S. Government Obligations" means direct noncallable
obligations of, or noncallable obligations guaranteed by, the United States or
an agency thereof for the payment of which guarantee or obligation the full
faith and credit of the United States is pledged.
RESTRICTIVE COVENANTS
RESTRICTIONS ON SECURED DEBT If the Company or any Domestic Subsidiary
shall incur or guarantee any Debt secured by a Mortgage on any Principal
Property or on any shares of stock of or Debt of any Domestic Subsidiary, the
Company will secure the Debt Securities of each series equally and ratably with
(or prior to) such secured Debt, unless after giving effect thereto, the
aggregate amount of all such Debt so secured, together with all Attributable
Debt (as defined below) in respect of sale and leaseback transactions involving
Principal Properties (see "Description of Debt Securities -- Restrictions on
Sales and Leasebacks" below), would not exceed 5% of the Consolidated Net
Tangible Assets of the Company and its consolidated subsidiaries. This
restriction will not apply to, and there will be excluded from secured Debt in
any computation under such restriction, 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 Domestic Subsidiary or at the time it is
merged into or consolidated with the Company or a Domestic Subsidiary, (b)
Mortgages in favor of the Company or a Domestic Subsidiary, (c) Mortgages in
favor of governmental bodies to secure progress or advance payments, (d)
Mortgages on property, shares of stock or Debt existing at the time of
acquisition thereof (including acquisition through merger or consolidation), (e)
purchase money Mortgages and Mortgages to secure the construction cost of
property, and (f) any extension, renewal or refunding of any Mortgage referred
to in the foregoing clauses (a) through (e), inclusive. "Principal Property"
will be defined to include any single parcel of real estate, any manufacturing
plant or warehouse owned or leased by the Company or any Domestic Subsidiary
which is located within the United States and the gross book value (without
deduction of any depreciation reserves) of which on the date as of which the
determination is being made exceeds 1% of Consolidated Net Tangible Assets,
other than any manufacturing plant or warehouse or a portion thereof (a) which
is a pollution control or other facility financed by obligations issued by a
state or local government unit, or (b) which, in the opinion of the Board of
Directors of the Company, is not of material importance to the total business
conducted by the Company and its subsidiaries as an entirety. "Attributable
Debt" means the total net amount of rent required to be paid during the
remaining term of any lease, discounted at the rate per annum borne by the
Senior Securities of each series, compounded annually. "Subsidiary of the
Company" means a corporation, a majority of the outstanding voting stock of
which is owned, directly or indirectly, by the Company and/ or one or more
Subsidiaries of the Company. "Domestic Subsidiary" means a Subsidiary of the
Company except a Subsidiary of the Company which neither transacts any
substantial portion of its business nor regularly maintains any substantial
portion of its fixed assets within the United States,
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or which is engaged primarily in financing the operations of the Company or its
Subsidiaries, or both, outside the United States. "Consolidated Net Tangible
Assets" means the aggregate amount of assets (less applicable reserves and other
properly deductible items) after deducting therefrom (a) all current liabilities
(excluding any constituting Funded Debt by reason of their being renewable or
extendable) and (b) goodwill and other intangibles. (Section 1010 of each
Indenture)
RESTRICTIONS ON SALES AND LEASEBACKS Neither the Company nor any Domestic
Subsidiary may enter into any sale and leaseback transaction involving any
Principal Property, completion of construction and commencement of full
operation of which has occurred more than 180 days prior thereto, unless (a) the
Company or such Domestic Subsidiary could mortgage such property as provided for
above under "Description of Debt Securities -- Restrictive Covenants --
Restrictions on Secured Debt" in an amount equal to the Attributable Debt with
respect to the sale and leaseback transaction without equally and ratably
securing the Debt Securities of each series, or (b) the Company, within 120
days, applies to the retirement of its Funded Debt an amount not less than the
greater of (i) the net proceeds of the sale of the Principal Property leased
pursuant to such arrangement or (ii) the fair market value of the Principal
Property so leased (subject to credits for certain voluntary retirements of
Funded Debt). This restriction will not apply to any sale and leaseback
transaction (a) between the Company and a Domestic Subsidiary or between
Domestic Subsidiaries or (b) involving the taking back of a lease for a period,
including renewals, of three years or less. (Section 1011 of each Indenture)
EVENTS OF DEFAULT
The following are Events of Default under the Indentures with respect to
Securities of any series: (a) failure to pay principal of (or premium, if any)
on any Security of that series when due; (b) failure to pay any installment of
interest on any Security of that series when due, continued for 30 days; (c)
failure to deposit any sinking fund payment, when due, in respect of any
Security of that series; (d) failure to perform any other covenant of the
Company in the applicable Indenture (other than a covenant included in the
applicable Indenture solely for the benefit of any series of Securities other
than that series), continued for 60 days after written notice as provided in the
applicable Indenture; (e) certain events in bankruptcy, insolvency or
reorganization; and (f) any other Event of Default provided with respect to
Securities of that series. (Section 501 of each Indenture) If an Event of
Default with respect to the Outstanding Securities of any series shall occur and
be continuing either the Trustee or the Holders of at least 25% in principal
amount of the Outstanding Securities of that series may declare the principal
amount (or, if the Securities of that series are Original Issue Discount
Securities or Indexed Securities, such portion of the principal amount as may be
specified in the terms of that series) of all Securities of that series to be
due and payable immediately; provided that in the case of certain events of
bankruptcy, insolvency or reorganization, such principal amount (or portion
thereof) shall automatically become due and payable. However, at any time after
an acceleration with respect to Securities of any series has occurred, but
before a judgment or decree based on such acceleration has been obtained, the
Holders of a majority in principal amount of the Outstanding Securities of that
series may, under certain circumstances, rescind and annul such acceleration.
(Section 502 of each Indenture) For information as to waiver of defaults, see
"Description of Debt Securities -- Modification and Waiver." Reference is made
to the Prospectus Supplement relating to each series of Offered Securities which
are Original Issue Discount Securities or Indexed Securities for the particular
provisions relating to acceleration of the Maturity of a portion of the
principal amount of such Original Issue Discount Securities or Indexed
Securities upon the occurrence of an Event of Default and the continuation
thereof.
The Indentures provide that, subject to the duty of the applicable Trustee
during default to act with the required standard of care, the applicable Trustee
will be under no obligation to exercise any of its rights or powers under the
Indenture at the request or direction of any of the Holders, unless such Holders
shall have offered to the applicable Trustee reasonable security or indemnity.
(Section 603 of each Indenture) Subject to such provisions for indemnification
of the Trustee and certain other limitations, the Holders of a majority in
principal amount of the Outstanding Securities of any
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series will 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 that
series. (Section 512 of the Senior Indenture and Section 505 of the Subordinated
Indenture)
The Company will be required to furnish to the applicable Trustee annually a
statement as to the performance by the Company of certain of its obligations
under the Indenture and as to any default in such performance. (Section 1006 of
each Indenture)
MODIFICATION AND WAIVER
Modifications and amendments of each Indenture may be made by the Company
and the applicable Trustee with the consent of the Holders of 66 2/3% in
principal amount of the Outstanding Securities of each series affected thereby;
PROVIDED, HOWEVER, that no such modification or amendment may, without the
consent of the Holder of each Outstanding Security affected thereby, (a) change
the Stated Maturity date of the principal of, or any installment of principal of
or interest on, any Security, (b) reduce the principal amount of (or premium, if
any) or interest, if any, on, any Security, (c) reduce the amount of principal
of any Original Issue Discount Security payable upon acceleration of the
Maturity thereof, (d) change the place or currency of payment of principal of
(or premium, if any) or interest, if any, on, any Security, (e) impair the right
to institute suit for the enforcement of any payment on or with respect to any
Security, or (f) reduce the percentage in principal amount of Outstanding
Securities of any series, the consent of the Holders of which is required for
modification or amendment of the Indenture or for waiver of compliance with
certain provisions of the applicable Indenture or for waiver of certain
defaults. (Section 902 of each Indenture)
The Holders of a majority in principal amount of the Outstanding Securities
of any series may on behalf of the Holders of all Securities of that series
waive, insofar as that series is concerned, compliance by the Company with
certain restrictive provisions of the applicable Indenture. (Section 1012 of
each Indenture) The Holders of a majority in principal amount of the Outstanding
Securities of any series may on behalf of the Holders of all Securities of that
series waive any past default under the applicable Indenture with respect to
Securities of that series, except a default in the payment of the principal of
(or premium, if any) or interest, if any, on any Security of that series or in
respect of any provision which under the applicable Indenture cannot be modified
or amended without the consent of the Holder of each Outstanding Security of
that series affected. (Section 513 of the Senior Indenture and Section 504 of
the Subordinated Indenture)
In addition, under the Subordinated Indenture, no modification or amendment
thereof may, without the consent of the holders of each Outstanding Subordinated
Security affected thereby, modify any of the provisions of such Indenture
relating to the subordination of the Subordinated Securities in a manner adverse
to the holders thereof without the consent of all the holders thereof and no
such modification or amendment may adversely affect the rights of the holders of
Senior Indebtedness then outstanding under Article Sixteen of such Indenture
(described under the caption "Description of Debt Securities -- Subordinated
Indenture Provisions") without the consent of the requisite holders of Senior
Indebtedness (as required pursuant to the terms of such Senior Indebtedness).
(Section 902 of the Subordinated Indenture)
In determining whether the holders of the requisite principal amount of
Outstanding Securities have given any request, demand, authorization, direction,
notice, consent or waiver under either Indenture or whether a quorum is present
at a meeting of holders of Securities thereunder, (i) the principal amount of an
Original Issue Discount Security that will be deemed to be outstanding will be
the amount of the principal thereof that would be due and payable as of the date
of such determination upon acceleration of the Maturity thereof, (ii) the
principal amount of a Security denominated in a foreign Currency or Currencies
will be the U.S. dollar equivalent, determined on the original issuance date for
such Security, of the principal amount thereof (or, in the case of an Original
Issue Discount Security or Indexed Security, the U.S. dollar equivalent on the
original issuance date of such Security of the amount determined as provided in
(i) above or (iii) below), (iii) the principal amount of an
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Indexed Security that may be counted in making such determination or calculation
and that will be deemed outstanding for such purpose will be equal to the
principal face amount of such Indexed Security at original issuance, unless
otherwise provided with respect to such Indexed Security pursuant to Section 301
of such Indenture and (iv) Securities owned by the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other obligor
will be disregarded. (Section 101 of each Indenture)
Each Indenture contains provisions for convening meetings of the Holders of
Debt Securities of a series issued thereunder if Debt Securities of that series
are issuable in whole or in part as Bearer Securities. (Section 1401 of each
Indenture) A meeting may be called at any time by the Trustee for such Debt
Securities, or upon the request of 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 the applicable Indenture with respect
thereto. (Section 1402 of each Indenture) Except for any consent that must be
given by each holder of a Debt Security affected, any resolution presented at a
meeting or adjourned meeting 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, except for
any consent that must be given by each holder of a Debt Security affected, any
resolution with respect to any consent which may be given by the Holders of not
less than 66 2/3% in principal amount of the Outstanding Debt Securities of a
series issued under an Indenture may be adopted at a meeting or an adjourned
meeting at which a quorum is present only by the affirmative vote of the Holders
of 66 2/3% in principal amount of such Outstanding Debt Securities of that
series; and provided, further, that, except for any consent that must be given
by each holder of a Debt Security affected, any resolution with respect to any
demand, consent, waiver or other action which may be made, given or taken by the
Holders of a specified percentage, which is less than a majority, in principal
amount of the Outstanding Debt Securities of a series issued under an Indenture
may be adopted at a meeting or adjourned meeting 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. (Section 1404 of each
Indenture)
Any resolution passed or decision taken at any meeting of Holders of Debt
Securities of any series duly held in accordance with the applicable Indenture
with respect thereto will be binding on all Holders of Debt Securities of that
series and the related coupons issued under that Indenture. The quorum at any
meeting of Holders of a series of Debt Securities called to adopt a resolution,
and at any reconvened meeting, will be persons holding or representing a
majority in principal amount of the Outstanding Debt Securities of such series;
provided, however, that if any action is to be taken at such meeting with
respect to a consent which may be given by the Holders of not less than 66 2/3%
in principal amount of the Outstanding Debt Securities of a series, the Persons
holding or representing 66 2/3% in principal amount of the Outstanding Debt
Securities of such series issued under that Indenture will constitute a quorum.
(Section 1404 of each Indenture)
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
The Company, without the consent of any Holders of Outstanding Securities,
may consolidate or merge with or into, or transfer or lease its assets
substantially as an entirety to, any Person, and any other Person may
consolidate or merge with or into, or transfer or lease its assets substantially
as an entirety to, the Company, PROVIDED that, (i) the Person (if other than the
Company) formed by such consolidation or into which the Company is merged or
which acquires or leases such assets of the Company is organized and existing
under the laws of any United States jurisdiction and assumes the Company's
obligations on the Debt Securities and under the applicable Indenture, (ii)
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 happened and be continuing (provided that a transaction will only be deemed
to be in violation of this condition (ii) as to any series of Debt Securities as
to which such Event of Default or such event shall have occurred and be
continuing), and (iii) certain other conditions are met. (Article Eight of each
Indenture)
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HARRIS TRUST AND SAVINGS BANK, AS TRUSTEE
Harris Trust and Savings Bank is trustee under an indenture with the Company
dated as of March 15, 1985 relating to the Company's 8.40% Debentures due August
15, 2031 and is trustee under an indenture with the Company dated as of October
1, 1991 relating to the Company's 7.60% Notes due January 1, 2007 and the
Company's 6 1/2% Notes due March 1, 2008. Harris Trust and Savings Bank has also
extended credit facilities to the Company and a subsidiary of the Company and
conducts business with the Company and certain of its affiliates, including cash
management and stock transfer services and serving as trustee for the Motorola
Pension Trust. Harris Trust and Savings Bank also serves as the Rights Agent
under the Rights Agreement, as amended, with the Company (the "Rights
Agreement"). See "Description of Capital Stock -- Preferred Share Purchase
Rights."
THE FIRST NATIONAL BANK OF CHICAGO, AS TRUSTEE
The First National Bank of Chicago serves as trustee under the indentures
with the Company for the 2009 LYONs and the 2013 LYONs and would serve as
extension trustee under the extension indenture relating to the extension notes
which could be issued in the future with respect to the 2009 LYONs. The First
National Bank of Chicago would also serve as trustee under the LYONs Indenture
except as otherwise set forth in the applicable Prospectus Supplement. See
"Description of Liquid Yield Option Notes." The Company also maintains certain
banking relationships with The First National Bank of Chicago.
SUBORDINATED INDENTURE PROVISIONS
The Subordinated Securities shall be subordinate and junior in right of
payment, to the extent set forth in the Subordinated Indenture, to the prior
payment in full of all existing and future Senior Debt (as defined below) of the
Company. (Section 1601 of the Subordinated Indenture)
Senior Debt is defined in the Subordinated Indenture as the principal of
(and premium, if any) and interest on (including interest accruing after the
filing of a petition initiating any proceeding pursuant to any bankruptcy law)
and other amounts due on or in connection with any Debt incurred, assumed or
guaranteed by the Company, whether outstanding on the date of the Subordinated
Indenture or thereafter incurred, assumed or guaranteed, and all renewals,
extensions and refundings of any such Debt. Excluded from the definition of
Senior Debt are the following: (a) any Debt which expressly provides (i) that
such Debt shall not be senior in right of payment to the Subordinated
Securities, or (ii) that such Debt shall be subordinated to any other Debt of
the Company, unless such Debt expressly provides that such Debt shall be senior
in right of payment to the Subordinated Securities; (b) Debt of the Company in
respect of the Subordinated Securities; (c) Debt of the Company in respect of
its outstanding Liquid Yield Option Notes due 2009 (the "2009 LYONs") and its
outstanding Liquid Yield Option Notes due 2013 ("2013 LYONs") (which 2009 LYONs
and 2013 LYONs will rank on a parity with the Subordinated Securities); and (d)
Debt of the Company in respect of the extension notes which may be issued in the
future, at specified dates, in respect of the 2009 LYONs in payment of the
purchase price thereof (which extension notes would rank on a parity with the
Subordinated Securities and any 2009 LYONs and 2013 LYONs remaining
outstanding). (Section 101 of the Subordinated Indenture)
As of July 2, 1994, the Company had approximately $2,266 million of
consolidated indebtedness outstanding (excluding accrued interest thereon) which
would have constituted either Senior Debt or indebtedness of subsidiaries of the
Company. In addition, as of July 2, 1994, the Company had outstanding
approximately $450 million (issue price plus accrued original issue discount) of
2009 LYONs and 2013 LYONs, representing approximately $817 million in aggregate
principal amount at maturity, which would rank on a parity with the Subordinated
Securities. There are no restrictions in the Subordinated Indenture on the
creation of additional Senior Debt (or any other indebtedness). (Section 101 of
the Subordinated Indenture)
By reason of such subordination, in the event of dissolution, insolvency,
bankruptcy or other similar proceedings, upon any distribution of assets, (i)
the holders of all Senior Debt shall first be entitled to receive payment in
full of all amounts due or to become due thereon, or payment of such
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amounts shall have been provided for, before the Holders of Subordinated
Securities shall be entitled to receive any payment or distribution with respect
to such securities, (ii) the Holders of Subordinated Securities will be required
to pay over their share of such distribution to the holders of Senior Debt until
such Senior Debt is paid in full, and (iii) creditors of the Company who are not
Holders of Subordinated Securities or holders of Senior Debt may recover less,
ratably, than holders of Senior Debt and may recover more, ratably, than the
Holders of Subordinated Securities. (Section 16.02 of the Subordinated
Indenture)
Unless otherwise specified in the Prospectus Supplement, in the event that
the Subordinated Securities are declared due and payable prior to their Stated
Maturity by reason of the occurrence of an Event of Default, then the Company
would be obligated to promptly notify holders of Senior Debt of such
acceleration. Unless otherwise specified in the applicable Prospectus
Supplement, the Company may not pay the Subordinated Securities until 120 days
have passed after such acceleration occurs and may thereafter pay the
Subordinated Securities if the terms of the Subordinated Indenture otherwise
permit payment at that time. (Section 16.03 of the Subordinated Indenture)
Unless otherwise specified in the Prospectus Supplement, no payment of the
principal (and premium, if any) or interest, if any, with respect to any of the
Subordinated Securities may be made, except the Subordinated Securities may be
acquired for Common Stock or other Capital Stock or as otherwise set forth in
the Subordinated Indenture, if any default with respect to Senior Debt occurs
and is continuing that permits the acceleration of the maturity thereof and such
default is either the subject of judicial proceedings or the Company receives
notice of the default, unless (a) 120 days pass after notice of the default is
given and such default is not then the subject of judicial proceedings or the
default with respect to the Senior Debt is cured or waived and (b) the terms of
the Subordinated Indenture otherwise permit the payment or acquisition of the
Subordinated Securities at that time. (Section 16.04 of the Subordinated
Indenture)
DESCRIPTION OF LIQUID YIELD OPTION NOTES
The following description of the terms of the LYONs sets forth certain
general terms and provisions of the LYONs as to which any Prospectus Supplement
may relate. The particular terms of the LYONs and the extent, if any, to which
such general terms may apply to the LYONs so offered will be described in the
applicable Prospectus Supplement relating to such LYONs. Any Prospectus
Supplement relating to an offering of LYONs will also contain information
concerning certain United States federal income tax considerations relating
thereto and any rights of Holders of LYONs to exchange their LYONs for
securities of any Person (including the Company) (which exchange rights may be
in addition to, or in lieu of, the conversion rights described below under
"Description of Liquid Yield Option Notes -- Conversion Rights" and the terms of
any exchange rights).
Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch") has
previously marketed (and anticipates continuing to market) securities of issuers
under the trademark LYONs. Any LYONs offered by the Company pursuant to this
Prospectus and the applicable Prospectus Supplement may contain certain terms
and provisions which are different from such other previously marketed LYONs.
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The LYONs are to be issued under an indenture (the "LYONs Indenture"),
between the Company and The First National Bank of Chicago, as trustee, or the
trustee named in the applicable Prospectus Supplement as trustee (the "LYONs
Trustee"). The form of the LYONs Indenture (including the Form of LYON, which is
a part thereof) is an exhibit to the Registration Statement. The following
summaries of certain provisions of the LYONs and the LYONs Indenture do not
purport to be complete and are subject to, and are qualified in their entirety
by reference to, all the provisions of the LYONs and the LYONs Indenture,
including the definitions therein of certain terms which are not otherwise
defined in this Prospectus and the applicable Prospectus Supplement relating to
such LYONs. Wherever particular provisions or defined terms of the LYONs
Indenture (or of the Form of LYON which is a part thereof) are referred to, such
provisions or defined terms are incorporated herein by reference. References
herein are to sections in the LYONs Indenture and paragraphs in the Form of
LYON. As used in this "Description of Liquid Yield Option Notes," the "Company"
refers to Motorola, Inc. and does not, unless the context otherwise indicates,
include its subsidiaries.
GENERAL
Unless otherwise specified in the Prospectus Supplement, the LYONs will be
unsecured obligations of the Company limited to the aggregate principal amount
at maturity set forth in the applicable Prospectus Supplement and will mature on
the date set forth in such Prospectus Supplement. The principal amount at
maturity of each LYON is $1,000 and will be payable at the office of the Paying
Agent, initially the LYONs Trustee, in the Borough of Manhattan, the City of New
York, or any other office of the Paying Agent maintained for such purpose.
(Sections 2.02, 2.03 and 4.05 and Form of LYON, paragraph 3)
The LYONs will be issued at a substantial discount from their principal
amount at maturity. There will be no periodic payments of interest. The
calculation of the accrual of Original Issue Discount (the difference between
the Issue Price and the principal amount at maturity of a LYON) in the period
during which a LYON remains outstanding will be on a semi-annual bond equivalent
basis using a 360-day year composed of twelve 30-day months; such accrual will
commence on the Issue Date of the LYONs. (Form of LYON, paragraph 1.) Maturity,
conversion, purchase by the Company at the option of a Holder, or redemption of
a LYON will cause Original Issue Discount and interest, if any, to cease to
accrue on such LYON, under the terms and subject to the conditions of the LYONs
Indenture. (Section 2.08) The Company may not reissue a LYON that has matured or
been converted, purchased by the Company at the option of a Holder, redeemed or
otherwise cancelled (except for registration of transfer, exchange or
replacement thereof). (Section 2.10)
The LYONs will be issued only in fully registered form, without coupons, in
denominations of $1,000 of principal amount at maturity or an integral multiple
thereof. (Section 2.02 and Form of LYON, paragraph 11) Unless otherwise
specified in the applicable Prospectus Supplement, the LYONs may be presented
for conversion at the office of the Conversion Agent and for exchange or
registration of transfer at the office of the Registrar, each such agent
initially being the LYONs Trustee. (Section 2.03) Unless otherwise specified in
the applicable Prospectus Supplement, the Company will not charge a service
charge for any registration of transfer or exchange of LYONs; however, the
Company may require payment by a Holder of a sum sufficient to cover any tax,
assessment or other governmental charge payable in connection therewith.
(Section 2.06)
SUBORDINATION OF LYONS
Unless otherwise specified in the applicable Prospectus Supplement, the
indebtedness evidenced by the LYONs will be subordinated in right of payment, as
set forth in the LYONs Indenture, to the prior payment in full of all existing
and future Senior Indebtedness of the Company. (Section 10.01 and Form of LYON,
paragraph 8) Senior Indebtedness is defined in the LYONs Indenture as the
principal of (and premium, if any) and interest on (including interest accruing
after the filing of a petition initiating any proceeding pursuant to any
Bankruptcy Law) and other amounts due on or in connection with any Debt
incurred, assumed or guaranteed by the Company, whether outstanding on the date
of the LYONs Indenture or thereafter incurred, assumed or guaranteed, and all
renewals,
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extensions and refundings of any such Debt. Excluded from the definition of
Senior Indebtedness are the following: (a) any Debt which expressly provides (i)
that such Debt shall not be senior in right of payment to the LYONs, or (ii)
that such Debt shall be subordinated to any other Debt of the Company, unless
such Debt expressly provides that such Debt shall be senior in right of payment
to the LYONs; (b) Debt of the Company in respect of the LYONs; (c) Debt of the
Company in respect of its outstanding 2009 LYONs and its outstanding 2013 LYONs
(which 2009 LYONs and 2013 LYONs will rank on a parity with the LYONs and any
Subordinated Securities) and (d) Debt of the Company in respect of the extension
notes which may be issued in the future, at specified dates, in respect of the
2009 LYONs, in payment of the purchase price thereof (which extension notes
would rank on a parity with the LYONs, any 2009 LYONs and 2013 LYONs remaining
outstanding and any Subordinated Securities). (Section 10.01)
By reason of such subordination, in the event of dissolution, insolvency,
bankruptcy or other similar proceedings, upon any distribution of assets, (i)
the holders of all Senior Indebtedness shall first be entitled to receive
payment in full of all amounts due or to become due thereon, or payment of such
amounts shall have been provided for, before the Holders of LYONs shall be
entitled to receive any payment or distribution with respect to the LYONs, (ii)
the Holders of LYONs will be required to pay over their share of such
distribution to the holders of Senior Indebtedness until such Senior
Indebtedness is paid in full; and (iii) creditors of the Company who are not
Holders of LYONs or holders of Senior Indebtedness may recover less, ratably,
than holders of Senior Indebtedness and may recover more, ratably, than the
Holders of LYONs. (Section 10.02)
Unless otherwise specified in the Prospectus Supplement, in the event that
the LYONs are declared due and payable prior to their Stated Maturity by reason
of the occurrence of an Event of Default, then the Company would be obligated to
promptly notify holders of Senior Indebtedness of such acceleration. Unless
otherwise specified in the applicable Prospectus Supplement, the Company may not
pay the LYONs until 120 days have passed after such acceleration occurs and may
thereafter pay the LYONs if the terms of the LYONs Indenture otherwise permit
payment at that time. (Section 10.03)
Unless otherwise specified in the Prospectus Supplement, no payment of the
principal amount at maturity, Issue Price, accrued Original Issue Discount,
Redemption Price, Change in Control Purchase Price or interest, if any, with
respect to any of the LYONs may be made, nor may the Company pay cash in respect
of the Purchase Price (or portion thereof) of any LYON (other than for
fractional shares of Common Stock) or otherwise acquire any LYONs except for
Common Stock or other Capital Stock or as otherwise set forth in the LYONs
Indenture, if any default with respect to Senior Indebtedness occurs and is
continuing that permits the acceleration of the maturity thereof and such
default is either the subject of judicial proceedings or the Company receives
notice of the default, unless (a) 120 days pass after notice of the default is
given and such default is not then the subject of judicial proceedings or the
default with respect to the Senior Indebtedness is cured or waived and (b) the
terms of the LYONs Indenture otherwise permit the payment or acquisition of the
LYONs at that time. (Section 10.04)
The LYONs will be obligations exclusively of the Company. Since the
operations of the Company are currently partially conducted through
subsidiaries, primarily overseas, the cash flow and the consequent ability to
service debt, including the LYONs, of the Company, are partially dependent upon
the earnings of its subsidiaries and the distribution of those earnings to, or
upon loans or other payments of funds by those subsidiaries to, the Company. The
subsidiaries are separate and distinct legal entities and have no obligation,
contingent or otherwise, to pay any amounts due pursuant to the LYONs or to make
any funds available therefor, whether by dividends, loans or other payments. In
addition, the payment of dividends and the making of loans and advances to the
Company by its subsidiaries may be subject to statutory or contractual
restrictions, are contingent upon the earnings of those subsidiaries and are
subject to various business considerations.
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Any right of the Company to receive assets of any of its subsidiaries upon
their liquidation or reorganization (and the consequent right of the Holders of
the LYONs to participate in those assets) will be effectively subordinated to
the claims of that subsidiary's creditors (including trade creditors), except to
the extent that the Company is itself recognized as a creditor of such
subsidiary, in which case the claims of the Company would still be subordinate
to any security interests in the assets of such subsidiary and any indebtedness
of such subsidiary senior to that held by the Company.
As of July 2, 1994, the Company had approximately $2,266 million of
consolidated indebtedness outstanding (excluding accrued interest thereon) which
would have constituted either Senior Indebtedness or indebtedness of
subsidiaries of the Company. In addition, as of July 2, 1994, the Company had
outstanding approximately $450 million (issue price plus accrued original issue
discount) of 2009 LYONs and 2013 LYONs, representing approximately $817 million
in aggregate principal amount at maturity, which would rank on a parity with the
LYONs. There are no restrictions in the LYONs Indenture on the creation of
additional Senior Indebtedness (or any other indebtedness).
CONVERSION RIGHTS
Except as is otherwise specified in the applicable Prospectus Supplement, a
Holder of a LYON may convert it into Common Stock of the Company at the times
specified in the Prospectus Supplement; provided, however, that if a LYON is
called for redemption, the Holder may convert it only until the close of
business on the Redemption Date. A LYON in respect of which a Holder has
delivered a Purchase Notice or a Change in Control Purchase Notice exercising
the option of such Holder to require the Company to purchase such LYONs may be
converted only if such notice is withdrawn in accordance with the terms of the
LYONs Indenture. (Form of LYON, paragraph 9) A Holder may convert a portion of
such Holder's LYONs so long as such portion is $1,000 principal amount at
maturity or an integral multiple thereof. (Section 11.01)
The initial Conversion Rate is that number of shares of Common Stock per
LYON set forth as such in the applicable Prospectus Supplement, subject to
adjustment upon the occurrence of certain events. A Holder entitled to a
fractional share of Common Stock shall receive cash equal to the then current
market value of such fractional share. (Form of LYON, paragraph 9 and Section
11.03) Shares of Common Stock issued upon conversion of LYONs in accordance with
the terms of the LYONs Indenture, and prior to the Distribution Date (as defined
below) and the redemption or expiration of the Rights (as defined below), shall
also be entitled to receive Rights, under the terms and subject to the
conditions of the Rights Agreement (as defined below). See "Description of
Capital Stock-- Preferred Share Purchase Rights."
A Holder will not receive any cash payment representing accrued Original
Issue Discount. The Company's delivery to the Holder of the number of shares of
Common Stock into which the LYON is convertible (together with the cash payment,
if any, in lieu of fractional shares of Common Stock) will be deemed to satisfy
the Company's obligation to pay the principal amount of the LYON including the
accrued Original Issue Discount attributable to the period from the Issue Date
to the Conversion Date. Thus, the accrued Original Issue Discount is deemed to
be paid in full rather than cancelled, extinguished or forfeited. The Conversion
Rate will not be adjusted at any time during the term of the LYONs for such
accrued Original Issue Discount. (Section 11.02)
Except as is otherwise specified in the applicable Prospectus Supplement, to
convert a LYON into shares of Common Stock, a Holder must (i) complete and
manually sign the conversion notice on the back of the LYON (or complete and
manually sign a facsimile thereof) and deliver such notice to the Conversion
Agent or the office of the Paying Agent, (ii) surrender the LYON to the
Conversion Agent, (iii) if required, furnish appropriate endorsements and
transfer documents, and (iv) if required, pay all transfer or similar taxes.
Pursuant to the LYONs Indenture, the date on which all of the foregoing
requirements have been satisfied is the Conversion Date. (Section 11.02 and Form
of LYON, paragraph 9)
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Except as otherwise specified in the applicable Prospectus Supplement, the
Conversion Rate will be adjusted for dividends or distributions on Common Stock
payable in Common Stock or other Capital Stock of the Company; certain
subdivisions, combinations or reclassifications of Common Stock; distributions
to all holders of Common Stock of certain rights to purchase Common Stock for a
period expiring within 60 days at less than the Quoted Price at the Time of
Determination; and distributions to such holders of assets or debt securities of
the Company or certain rights, warrants or options to purchase securities of the
Company (excluding cash dividends or other cash distributions from current or
retained earnings other than any Extraordinary Cash Dividend). However, except
as otherwise specified in the applicable Prospectus Supplement, no adjustment
need be made if Holders may participate in the transaction or in certain other
cases. Except as otherwise specified in the applicable Prospectus Supplement, in
cases where the fair market value (per share of Common Stock) of assets, debt
securities or certain rights, warrants or options to purchase securities of the
Company distributed to shareholders exceeds the Average Quoted Price of the
Common Stock, or such Average Quoted Price exceeds the fair market value (per
share of Common Stock) of such assets, debt securities or rights, warrants or
options so distributed by less than $1.00, rather than being entitled to an
adjustment in the Conversion Rate, the Holder of a LYON upon conversion thereof
will be entitled to receive, in addition to the shares of Common Stock into
which such LYON is convertible, the kind and amount of assets, debt securities
or rights, warrants or options comprising the distribution that such Holder
would have received if such Holder had converted such LYON immediately prior to
the record date for determining the shareholders entitled to receive the
distribution. Except as otherwise specified in the applicable Prospectus
Supplement, none of (i) the distribution to holders of Common Stock of separate
certificates representing Rights (as defined below), (ii) the occurrence of
certain events entitling holders of such Rights to receive, upon exercise
thereof, Common Stock of the Company or Capital Stock of another corporation or
(iii) the exercise of such Rights, as described under "Description of Capital
Stock--Preferred Share Purchase Rights," will constitute a distribution
requiring an adjustment in the Conversion Rate. In addition, any future dividend
or distribution of rights to purchase Capital Stock which the Company determines
to be comparable in purpose and in effect to the dividend and subsequent
distribution of Rights will not constitute a distribution requiring an
adjustment in the Conversion Rate. The LYONs Indenture permits the Company to
increase the Conversion Rate from time to time. (Sections 11.06, 11.07, 11.08,
11.10, 11.12, 11.14, 11.17 and 11.19 and Form of LYON, paragraph 9)
Except as is otherwise provided in the applicable Prospectus Supplement, if
the Company is a party to a consolidation, merger or binding share exchange or a
transfer of all or substantially all of its assets, the right to convert a LYON
into Common Stock may be changed into a right to convert it into securities,
cash or other assets which the Holder would have received if the Holder had
converted such Holder's LYON immediately prior to such transaction. (Section
11.14)
Except as is otherwise provided in the applicable Prospectus Supplement, in
the event of a taxable distribution to holders of Common Stock which results in
an adjustment of the Conversion Rate or in the event the Conversion Rate is
increased at the discretion of the Company, the Holders of the LYONs may, in
certain circumstances, be deemed to have received a distribution subject to
Federal income tax as a dividend.
REDEMPTION OF LYONS AT THE OPTION OF THE COMPANY
Except as is otherwise provided in the applicable Prospectus Supplement, no
sinking fund is provided for the LYONs. Except as is otherwise provided in the
applicable Prospectus Supplement, prior to the date set forth in the applicable
Prospectus Supplement, the LYONs will not be redeemable at the option of the
Company. Beginning on the date set forth in the applicable Prospectus
Supplement, the Company may redeem the LYONs for cash as a whole at any time, or
from time to time in part at Redemption Prices set forth in the applicable
Prospectus Supplement (equal to, except as otherwise provided in the applicable
Prospectus Supplement, Issue Price plus accrued Original Issue Discount to the
Redemption Date). (Section 3.03 and Form of LYON, paragraph 5) Except as is
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otherwise provided in the Prospectus Supplement, not less than 15 days' nor more
than 60 days' notice of redemption shall be given by mail to Holders of LYONs.
(Section 3.03 and Form of LYON, paragraph 7)
Except as is otherwise provided in the applicable Prospectus Supplement, if
less than all of the outstanding LYONs are to be redeemed, the Trustee shall
select the LYONs to be redeemed in principal amounts at maturity of $1,000 or
integral multiples thereof by lot, pro rata or by another method the Trustee
considers fair and appropriate (so long as such method is not prohibited by the
rules of any stock exchange on which the LYONs are then listed). If a portion of
a Holder's LYON is selected for partial redemption and such Holder converts a
portion of such LYON prior to such redemption, such converted portion shall be
deemed to be (solely for purposes of determining the aggregate principal amount
of LYONs redeemed by the Company) the portion selected for redemption. (Section
3.02)
PURCHASE OF LYONS AT THE OPTION OF THE HOLDER
Except as is otherwise provided in the applicable Prospectus Supplement, on
the date or dates set forth in the applicable Prospectus Supplement (each, a
"Purchase Date"), the Company will become obligated to purchase, at the option
of the Holder thereof, any outstanding LYON for which a written Purchase Notice
has been delivered by the Holder to the office of the Paying Agent (initially
the Trustee) at any time from the opening of business on the date that is 20
Business Days prior to such Purchase Date until the close of business on such
Purchase Date and for which such Purchase Notice has not been withdrawn, subject
to certain additional conditions.
Except as is otherwise provided in the applicable Prospectus Supplement, the
Purchase Notice shall state (i) the certificate numbers of the LYONs to be
delivered by the Holder thereof for purchase by the Company; (ii) the portion of
the principal amount at maturity of LYONs to be purchased, which portion must be
$1,000 or an integral multiple thereof; (iii) that such LYONs are to be
purchased by the Company pursuant to the applicable provisions of the LYONs; and
(iv) in the event the Company elects, pursuant to the applicable portion of the
Indenture, to pay the Purchase Price to be paid as of such Purchase Date in
Common Stock, in whole or in part, but such Purchase Price is ultimately to be
paid to such Holder entirely in cash because any of the conditions to payment of
the Purchase Price (or portion thereof) in Common Stock is not satisfied by the
Purchase Date, as described below, whether such Holder elects (x) to withdraw
such Purchase Notice as to some or all of the LYONs to which it relates (stating
the principal amount at maturity and certificate numbers of the LYONs as to
which such withdrawal shall relate), or (y) to receive cash in respect of the
entire Purchase Price for all LYONs subject to such Purchase Notice. Except as
is otherwise specified in the applicable Prospectus Supplement, if the Holder
fails to indicate in the Purchase Notice and in any written notice of withdrawal
relating to such Purchase Notice, such Holder's choice with respect to the
election described in clause (iv) above, such Holder shall be deemed to have
elected to receive cash in respect of the entire Purchase Price for all LYONs
subject to such Purchase Notice in such circumstances. (Section 3.08)
Except as is otherwise specified in the applicable Prospectus Supplement,
any Purchase Notice may be withdrawn by the Holder by a written notice of
withdrawal delivered to the Paying Agent prior to the close of business on the
Purchase Date. Except as is otherwise specified in the applicable Prospectus
Supplement, the notice of withdrawal shall state the principal amount at
maturity and the certificate numbers of the LYONs as to which the withdrawal
notice relates and the principal amount at maturity, if any, which remains
subject to the Purchase Notice. (Section 3.10)
Except as is otherwise specified in the applicable Prospectus Supplement,
the Purchase Price payable in respect of a LYON shall be equal to the Issue
Price plus accrued Original Issue Discount to the Purchase Date and the Company
may elect to pay the Purchase Price payable as of any Purchase Date in cash or
shares of Common Stock, or any combination thereof.
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Except as is otherwise specified in the applicable Prospectus Supplement, if
the Company elects to pay the Purchase Price, in whole or in part, in shares of
Common Stock, the number of shares to be delivered in respect of the portion of
the Purchase Price to be paid in shares of Common Stock shall be equal to such
portion of the Purchase Price divided by the Market Price (as defined below) of
the Common Stock. Shares of Common Stock issued upon purchase of LYONs in
accordance with the provisions of the LYONs Indenture, and prior to the
Distribution Date (as defined below) and the redemption or expiration of the
Rights (as defined below), shall also be entitled to receive Rights, under the
terms and subject to the conditions of the Rights Agreement (as defined below).
See "Description of Capital Stock--Preferred Share Purchase Rights." Except as
is otherwise specified in the applicable Prospectus Supplement, however, no
fractional shares of Common Stock will be delivered upon any purchase by the
Company of LYONs through the delivery of shares of Common Stock in payment, in
whole or in part, of the Purchase Price and, instead, the Company will pay cash
based on the Market Price for all fractional shares of Common Stock.
Except as is otherwise specified in the Prospectus Supplement, the Company
will give notice (the "Company Notice") not less than 20 Business Days prior to
the Purchase Date (the "Company Notice Date") to all Holders at their addresses
shown in the register of the Registrar (and to beneficial owners as required by
applicable law) stating, among other things, whether the Company will pay the
Purchase Price of the LYONs in cash or Common Stock, or any combination thereof
(specifying the percentage of each) and, if the Company elects to pay in Common
Stock, in whole or in part, the method of calculating the Market Price of the
Common Stock. (Section 3.08)
Except as is otherwise specified in the Prospectus Supplement, the "Market
Price" means the average of the Sale Prices (as defined below) of the Common
Stock for the five trading day period ending on (if the third Business Day prior
to the applicable Purchase Date is a trading day or, if not, then on the last
trading day prior to) the third Business Day prior to the applicable Purchase
Date, appropriately adjusted to take into account the occurrence during the
period commencing on the first of such trading days during such five trading day
period and ending on such Purchase Date of certain events that would result in
an adjustment of the Conversion Rate with respect to the Common Stock. Except as
is otherwise specified in the Prospectus Supplement, the "Sale Price" of the
Common Stock on any date means the closing per share sale price (or if no
closing sale price is reported, the average bid and ask prices or, if more than
one in either case, the average of the average bid and average ask prices) on
such date as reported in the composite transactions for the principal United
States securities exchange on which the Common Stock is traded or, if the Common
Stock is not listed on a United States national or regional stock exchange, as
reported by the National Association of Securities Dealers Automated Quotation
System. Because the Market Price of the Common Stock is determined prior to the
applicable Purchase Date, Holders of LYONs bear the market risk with respect to
the value of the Common Stock to be received from the date such Market Price is
determined to such Purchase Date. Except as is otherwise specified in the
Prospectus Supplement, the Company may elect to pay the Purchase Price in Common
Stock only if the information necessary to calculate the Market Price is
reported in a daily newspaper of national circulation. (Section 3.08)
Except as is otherwise specified in the applicable Prospectus Supplement,
upon determination of the actual number of shares of Common Stock in accordance
with the foregoing provisions, the Company will publish such determination in a
daily newspaper of national circulation. (Section 3.08)
Except as is otherwise specified in the applicable Prospectus Supplement,
the Company's right to purchase LYONs with shares of Common Stock is subject to
the Company satisfying various conditions, including: (i) any required
registration of the Common Stock under the Securities Act or Exchange Act; and
(ii) compliance with other applicable federal and state securities laws, if any.
Except as is otherwise specified in any applicable Prospectus Supplement, if
such conditions are not satisfied by a Purchase Date, the Company will pay the
Purchase Price of the LYONs to be purchased on such Purchase Date entirely in
cash. (Section 3.08) The Company will comply with the provisions of
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Rule 13e-4 and any other tender offer rules under the Exchange Act which may
then be applicable and will file Schedule 13E-4 or any other Schedule required
thereunder in connection with any offer by the Company to purchase LYONs at the
option of Holders. (Section 3.13)
Except as is otherwise specified in the applicable Prospectus Supplement,
payment of the Purchase Price for a LYON for which a Purchase Notice has been
delivered and not withdrawn is conditioned upon delivery of such LYON (together
with necessary endorsements) to the Paying Agent at its office in the Borough of
Manhattan, the City of New York, or any other office of the Paying Agent
maintained for such purpose, at any time (whether prior to, on or after the
Purchase Date) after delivery of such Purchase Notice. Except as is otherwise
specified in the applicable Prospectus Supplement, payment of the Purchase Price
for such LYON will be made promptly following the later of the Purchase Date or
the time of delivery of such LYON. (Section 3.10) If the Paying Agent holds, in
accordance with the terms of the LYONs Indenture, money or securities sufficient
to pay the Purchase Price of such LYON on the Business Day following the
Purchase Date, then, on and after such date, Original Issue Discount on such
LYON will cease to accrue, whether or not such LYON is delivered to the Paying
Agent, and all other rights of the Holder shall terminate (other than the right
to receive the Purchase Price upon delivery of the LYON). (Section 2.08)
Except as is otherwise specified in the Prospectus Supplement, no LYONs may
be purchased at the option of the Holder for cash if there has occurred (prior
to, on or after the giving, by the Holders of such LYONs, of the required
Purchase Notice) and is continuing an Event of Default described under
"Description of Liquid Yield Option Notes -- Events of Default; Notice and
Waiver" below (other than a default in the payment of the Purchase Price with
respect to such LYONs). (Sections 3.10 and 10.03)
CHANGE IN CONTROL PERMITS PURCHASE OF LYONS AT THE OPTION OF THE HOLDER
Except as is otherwise specified in the applicable Prospectus Supplement, in
the event of any Change in Control (as defined below) of the Company occurring
on or prior to the date set forth in the applicable Prospectus Supplement, each
Holder of LYONs will have the right, at the Holder's option, subject to the
terms and conditions of the LYONs Indenture, to require the Company to purchase
all or any part (provided that the principal amount at maturity must be $1,000
or an integral multiple thereof) of the Holder's LYONs on the date that is 35
Business Days after the occurrence of such Change in Control (the "Change in
Control Purchase Date") at a cash price equal to (except as is otherwise
specified in the applicable Prospectus Supplement) the Issue Price plus accrued
Original Issue Discount to the Change in Control Purchase Date (the "Change in
Control Purchase Price"). (Section 3.09 and Form of LYON, paragraph 6) Holders
will not have any right to require the Company to purchase LYONs in the event of
any Change in Control occurring after the date set forth in the applicable
Prospectus Supplement.
Except as is otherwise specified in the applicable Prospectus Supplement,
within 15 Business Days after the occurrence of a Change in Control, the Company
shall mail to the Trustee and each Holder of LYONs at its address shown in the
register of the Registrar (and to beneficial owners as required by applicable
law) a notice regarding the Change in Control, which notice shall state, among
other things: (i) the date of such Change in Control and the events causing such
Change in Control; (ii) the date by which the Change in Control Purchase Notice
(as defined below) must be given; (iii) the Change in Control Purchase Price,
(iv) the Change in Control Purchase Date, (v) the name and address of the Paying
Agent and the Conversion Agent, (vi) the Conversion Rate and any adjustments
thereto, (vii) that LYONs with respect to which a Change in Control Purchase
Notice is given by the Holder may be converted into shares of Common Stock (or,
in lieu thereof, cash, if the Company shall so elect) only if the Change in
Control Purchase Notice has been withdrawn in accordance with the terms of the
LYONs Indenture, (viii) that LYONs must be surrendered to the Paying Agent to
collect payment; (ix) that the Change in Control Purchase Price for any LYON as
to which a Change in Control Purchase Notice has been given and not withdrawn
will be paid promptly following the later of the Change in Control Purchase Date
and the time the LYON is surrendered; (x) the procedures that Holders must
follow to exercise these rights; (xi) the procedures for withdrawing a Change in
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Control Purchase Notice and (xii) briefly, the conversion rights of Holders of
LYONs. The Company will cause a copy of such notice to be published in the WALL
STREET JOURNAL or another daily newspaper of national circulation. (Section
3.09)
Except as is otherwise specified in the applicable Prospectus Supplement, to
exercise the purchase right, the Holder must deliver a Change in Control
Purchase Notice to the Paying Agent (initially the Trustee), at its office in
the Borough of Manhattan, the City of New York, or any other office of the
Paying Agent maintained for such purpose, prior to the close of business on the
Change in Control Purchase Date. Except as is otherwise specified in the
applicable Prospectus Supplement, the Change in Control Purchase Notice shall
state (i) the certificate numbers of the LYONs to be delivered by the Holder
thereof for purchase by the Company; (ii) the portion of the principal amount at
maturity of LYONs to be purchased, which portion must be $1,000 or an integral
multiple thereof; and (iii) that such LYONs are to be purchased by the Company
pursuant to the applicable provisions of the LYONs. (Section 3.09)
Except as is otherwise specified in the applicable Prospectus Supplement,
any Change in Control Purchase Notice may be withdrawn by the Holder by a
written notice of withdrawal delivered to the Paying Agent prior to the close of
business on the Change in Control Purchase Date. The notice of withdrawal shall
state the principal amount at maturity and the certificate numbers of the LYONs
as to which the withdrawal notice relates and the principal amount at maturity,
if any, which remains subject to a Change in Control Purchase Notice. (Section
3.10)
Except as is otherwise specified in the applicable Prospectus Supplement,
payment of the Change in Control Purchase Price for a LYON for which a Change in
Control Purchase Notice has been delivered and not withdrawn is conditioned upon
delivery of such LYON (together with necessary endorsements) to the Paying Agent
at its office in the Borough of Manhattan, the City of New York, or any other
office of the Paying Agent maintained for such purpose, at any time (whether
prior to, on or after the Change in Control Purchase Date) after the delivery of
such Change in Control Purchase Notice. Except as is otherwise specified in the
applicable Prospectus Supplement, payment of the Change in Control Purchase
Price for such LYON will be made promptly following the later of the Change in
Control Purchase Date or the time of delivery of such LYON. (Section 3.10) If
the Paying Agent holds, in accordance with the terms of the LYONs Indenture,
money sufficient to pay the Change in Control Purchase Price of such LYON on the
Business Day following the Change in Control Purchase Date, then, on and after
the Change in Control Purchase Date, such LYON will cease to be outstanding and
Original Issue Discount on such LYON will cease to accrue and be deemed paid,
whether or not such LYON is delivered to the Paying Agent, and all other rights
of the Holder shall terminate (other than the right to receive the Change in
Control Purchase Price upon delivery of the LYON). (Section 2.08)
Except as is otherwise specified in the applicable Prospectus Supplement, a
"Change in Control" of the Company is deemed to have occurred at such time as
(i) any person, including its Affiliates and Associates, other than the Company,
its Subsidiaries or their employee benefit plans, files a Schedule 13D or 14D-1
under the Exchange Act (or any successor schedule, form or report) disclosing
that such person has become the Beneficial Owner of 50% or more of the voting
power of the Company's Common Stock or other Capital Stock of the Company into
which the Common Stock is reclassified or changed, with certain exceptions, or
(ii) there shall be consummated any consolidation or merger of the Company in
which the Company is not the continuing or surviving corporation or pursuant to
which the Common Stock (or such other Capital Stock) would be converted into
cash, securities or other property, other than a consolidation or merger of the
Company in which the holders of the Common Stock (or such other Capital Stock)
immediately prior to the consolidation or merger have, directly or indirectly,
the same proportionate ownership of common stock of the continuing or surviving
corporation immediately after the merger or consolidation. (Section 3.09) Except
as is otherwise specified in the applicable Prospectus Supplement, the LYONs
Indenture does not permit the Board of Directors of the Company to waive the
Company's obligation to purchase LYONs at the option of the Holders in the event
of a Change in Control of the Company.
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The Company will comply with the provisions of Rule 13e-4 and any other
tender offer rules under the Exchange Act which may then be applicable and will
file Schedule 13E-4 or any other schedule required thereunder in connection with
any offer by the Company to purchase LYONs at the option of Holders upon a
Change in Control. (Section 3.13) The Change in Control purchase feature of the
LYONs may in certain circumstances make more difficult or discourage a takeover
of the Company and, thus, the removal of incumbent management. The Change in
Control purchase feature, however, unless otherwise specified in the applicable
Prospectus Supplement, is not the result of management's knowledge of any
specific effort to accumulate shares of Common Stock or to obtain control of the
Company by means of a merger, tender offer, solicitation or otherwise, or part
of a plan by management to adopt a series of anti-takeover provisions. Instead,
unless otherwise specified in the applicable Prospectus Supplement, the Change
in Control purchase feature is a standard provision contained in other LYONs
offerings that have been marketed by Merrill Lynch and the terms of such feature
result from negotiations between the Company and Merrill Lynch. The 2009 LYONs
and the 2013 LYONs have change in control provisions substantially identical to
the change in control provision described above, and which, in the case of the
2009 Lyons, expired on September 8, 1994 and which, in the case of the 2013
Lyons, expires on September 27, 1998. The Company's Preferred Share Purchase
Rights also may have an anti-takeover effect. See "Description of Capital Stock
- -- Preferred Share Purchase Rights."
The Company could, in the future, enter into certain transactions, including
certain recapitalizations of the Company, that would not constitute a Change in
Control of the Company, but that would increase the amount of Senior
Indebtedness outstanding at such time. Except as is otherwise specified in the
applicable Prospectus Supplement, no LYONs may be purchased at the option of
Holders upon a Change in Control of the Company if there has occurred (prior to,
on or after the giving, by the Holders of such LYONs, of the required Change of
Control Purchase Notice) and is continuing an Event of Default described under
"Description of Liquid Yield Option Notes -- Events of Default; Notice and
Waiver" below (other than a default in the payment of the Change in Control
Purchase Price with respect to such LYONs). (Sections 3.10 and 10.03) Further,
except as is otherwise specified in the applicable Prospectus Supplement, the
LYONs are subordinated to the prior payment of Senior Indebtedness as described
under "Description of Liquid Yield Option Notes -- Subordination of LYONs"
above.
MERGERS AND SALES OF ASSETS BY THE COMPANY
Except as is otherwise specified in the applicable Prospectus Supplement,
the Company may not consolidate with or merge into any other person or convey,
transfer or lease its properties and assets substantially as an entirety to
another person, unless, among other items, (i) the resulting, surviving or
transferee person (if other than the Company) is organized and existing under
the laws of the United States, any state thereof or the District of Columbia and
such person assumes all obligations of the Company under the LYONs and the LYONs
Indenture, and (ii) the Company or such successor person shall not immediately
thereafter be in default under the LYONs Indenture. Upon the assumption of the
Company's obligations by such a person in such circumstances, subject to certain
exceptions, the Company shall be discharged from all obligations under the LYONs
and the LYONs Indenture. (Section 5.01) Except as is otherwise specified in the
applicable Prospectus Supplement, certain such transactions which would
constitute a Change in Control of the Company occurring on or prior to the date
set forth in the applicable Prospectus Supplement, permit each Holder to require
the Company to purchase the LYONs of such Holder as described above (Section
3.09)
EVENTS OF DEFAULT; NOTICE AND WAIVER
Except as otherwise specified in the applicable Prospectus Supplement, if an
Event of Default specified in the LYONs Indenture shall have happened and be
continuing, either the Trustee or the Holders of not less than 25% in aggregate
principal amount at maturity of the LYONs then outstanding may declare the LYONs
to be immediately due and payable. Except as is otherwise specified in the
applicable Prospectus Supplement, the amount so payable for each LYON shall be
the amount determined by discounting the $1,000 principal amount at maturity
payable at its maturity date back
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to the date of such declaration at the interest rate per annum for such LYON
(computed on a semi-annual bond equivalent basis using a 360-day year composed
of twelve 30-day months). In the case of certain events of bankruptcy or
insolvency, the amount determined pursuant to the preceding sentence shall
automatically become and be immediately due and payable. See "Description of
Liquid Yield Option Notes -- Subordination of LYONs" above. Except as is
otherwise specified in any applicable Prospectus Supplement, under certain
circumstances, the Holders of a majority in aggregate principal amount at
maturity of the outstanding LYONs may rescind any such acceleration with respect
to the LYONs and its consequences. (Section 6.02) Interest shall accrue and be
payable on demand upon a default in the payment of the Issue Price, accrued
Original Issue Discount, any Redemption Price, Purchase Price or Change in
Control Purchase Price to the extent that payment of such interest shall be
legally enforceable. The accrual of such interest on overdue amounts shall be in
lieu of, and not in addition to, the continued accrual of Original Issue
Discount. (Form of LYON, paragraph 1)
Except as is otherwise specified in the Prospectus Supplement, under the
LYONs Indenture, Events of Default are defined as: (i) default in payment of the
principal amount at maturity, Issue Price, accrued Original Issue Discount,
Redemption Price, Purchase Price (continuing for three Business Days) or Change
in Control Purchase Price (continuing for three Business Days) with respect to
any LYON when such becomes due and payable (whether or not payment is prohibited
by the provisions of the LYONs Indenture); (ii) failure by the Company to comply
with any of its other agreements in the LYONs or the LYONs Indenture upon the
receipt by the Company of notice of such default by the Trustee or by Holders of
not less than 25% in aggregate principal amount at maturity of the LYONs then
outstanding and the Company's failure to cure such default within 60 days after
receipt by the Company of such notice; or (iii) certain events of bankruptcy or
insolvency. (Section 6.01)
Except as is otherwise specified in the applicable Prospectus Supplement,
the Trustee shall give notice to Holders of the LYONs of any continuing default
known to the Trustee within 90 days after the occurrence thereof; provided, that
the Trustee may withhold such notice if it determines in good faith that
withholding the notice is in the interests of the Holders. (Section 7.05)
Except as is otherwise specified in the Prospectus Supplement, the Holders
of a majority in aggregate principal amount at maturity of the outstanding LYONs
may direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee, provided that such direction shall not be in conflict with any law
or the LYONs Indenture and subject to certain other limitations. (Section 6.05.)
Before proceeding to exercise any right or power under the LYONs Indenture at
the direction of such Holders, the Trustee shall be entitled to receive from
such Holders reasonable security or indemnity satisfactory to it against the
costs, expenses and liabilities which might be incurred by it in complying with
any such direction. Except as is otherwise specified in the applicable
Prospectus Supplement, no Holder of any LYON will have any right to pursue any
remedy with respect to the LYONs Indenture or the LYONs, unless (i) such Holder
shall have previously given the Trustee written notice of a continuing Event of
Default; (ii) the Holders of at least 25% in aggregate principal amount at
maturity of the outstanding LYONs shall have made a written request to the
Trustee to pursue such remedy; (iii) such Holder or Holders have offered to the
Trustee reasonable indemnity satisfactory to the Trustee; (iv) the Holders of a
majority in aggregate principal amount at maturity of the outstanding LYONs have
not given the Trustee a direction inconsistent with such request within 60 days
after receipt of such request; and (v) the Trustee shall have failed to comply
with the request within such 60-day period. (Section 6.06)
Except as is otherwise specified in the Prospectus Supplement, however, the
right of any Holder (x) to receive payment of the principal amount at maturity,
Issue Price, accrued Original Issue Discount, Redemption Price, Purchase Price,
Change in Control Purchase Price and any interest in respect of a default in the
payment of any such amounts on a LYON, on or after the due date expressed in
such LYON, (y) to institute suit for the enforcement of any such payments or
conversion or (z) to
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convert LYONs shall not be impaired or adversely affected without such Holder's
consent. (Section 6.07) The Holders of at least a majority in aggregate
principal amount at maturity of the outstanding LYONs may waive an existing
default and its consequences, other than (i) any default in any payment on the
LYONs, (ii) any default with respect to the conversion rights of the LYONs or
(iii) any default in respect of certain covenants or provisions in the LYONs
Indenture which may not be modified without the consent of the Holder of each
LYON as described in "Description of Liquid Yield Option Notes -- Modification"
below. When a default is waived, it is deemed cured and shall cease to exist,
but no such waiver shall extend to any subsequent or other default or impair any
consequent right. (Section 6.04)
Except as is otherwise specified in the Prospectus Supplement, the Company
will be required to furnish to the Trustee annually a statement as to any
default by the Company in the performance and observance of its obligations
under the LYONs Indenture. (Section 4.03)
MODIFICATION
Except as is otherwise set forth in the Prospectus Supplement, without the
consent of any Holder of LYONs, the Company and the Trustee may amend the LYONs
Indenture to cure any ambiguity, defect or inconsistency, to provide for the
assumption by a successor corporation of the obligations of the Company under
the LYONs Indenture, to provide for uncertificated LYONs in addition to
certificated LYONs so long as such uncertificated LYONs are in registered form
for purposes of the Internal Revenue Code, to make any change that does not
adversely affect the rights of any Holder of LYONs, to comply with any
requirement of the Commission in connection with the qualification of the LYONs
Indenture under the Trust Indenture Act of 1939, as amended, to add to the
covenants or obligations of the Company under the LYONs Indenture or to
surrender any right, power or option under the LYONs Indenture conferred upon
the Company or to provide for LYONs which are exchangeable for securities of any
Person and the terms and conditions upon which such LYONs will be so
exchangeable; provided, that no such amendment shall be made subsequent to the
issuance of the LYONs under the LYONs Indenture unless such amendment is
approved in accordance with Section 902 of the LYONs Indenture. (Section 9.01)
No amendment may be made to the subordination provisions of the LYONs Indenture
that adversely affects the rights of any holder of Senior Indebtedness then
outstanding, unless the holders of such Senior Indebtedness (as required
pursuant to the terms of such Senior Indebtedness) consent to such change.
(Section 9.02)
Except as is otherwise set forth in the Prospectus Supplement, modification
and amendment of the LYONs Indenture or the LYONs may be effected by the Company
and the Trustee with the consent of the Holders of not less than a majority in
aggregate principal amount at maturity of the LYONs then outstanding. However,
without the consent of each Holder affected thereby, no amendment may, among
other things: (i) reduce the principal amount at maturity, Issue Price, Purchase
Price, Change in Control Purchase Price or Redemption Price, or extend the
stated maturity of any LYON or alter the manner or rate of accrual of Original
Issue Discount or interest, or make any LYON payable in money or securities
other than that stated in the LYON; (ii) make any change to the principal amount
at maturity of LYONs whose Holders must consent to an amendment or any waiver
under the LYONs Indenture or modify the LYONs Indenture provisions relating to
such amendments or waivers; (iii) make any change that adversely affects the
right to convert any LYON or the right to require the Company to purchase a
LYON; (iv) modify the provisions of the LYONs Indenture relating to the
subordination of the LYONs in a manner adverse to the Holders of the LYONs; or
(v) impair the right to institute suit for the enforcement of any payment with
respect to, or conversion of, the LYONs. (Section 9.02)
DISCHARGE OF THE LYONS INDENTURE
Except as otherwise set forth in the applicable Prospectus Supplement, the
Company may satisfy or discharge its obligations under the LYONs Indenture by
delivering to the LYONs Trustee for cancellation all outstanding LYONs or by
depositing with the LYONs Trustee or the Paying Agent,
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after the LYONs have become due and payable, cash or Common Stock (as applicable
under the LYONs Indenture) sufficient to pay all of the outstanding LYONs and
paying all other sums payable under the LYONs Indenture by the Company. (Article
8)
LIMITATIONS OF CLAIMS IN BANKRUPTCY
If a bankruptcy proceeding is commenced in respect of the Company, the claim
of the Holder of a LYON is, under Title 11 of the United States Code, limited to
the Issue Price of the LYON plus that portion of the Original Issue Discount
that has accrued from the date of issue to the commencement of the proceeding.
In addition, the Holders of the LYONs will be subordinated in right of payment
to Senior Indebtedness and effectively subordinated to the indebtedness and
other obligations of the Company's subsidiaries. See "Description of Liquid
Yield Option Notes -- Subordination of LYONs" above.
THE FIRST NATIONAL BANK OF CHICAGO, AS TRUSTEE
The First National Bank of Chicago serves as trustee under the indentures
with the Company for the 2009 LYONs and the 2013 LYONs and would serve as
extension trustee under the extension indenture relating to the extension notes
which could be issued in the future with respect to the 2009 LYONs. The First
National Bank of Chicago would also serve as trustee under the Subordinated
Indenture except as otherwise set forth in the applicable Prospectus Supplement.
The Company also maintains certain banking relationships with The First National
Bank of Chicago.
DESCRIPTION OF CAPITAL STOCK
The following statements with respect to the Company's capital stock are
subject to the detailed provisions of the Company's restated certificate of
incorporation, as amended (the "Certificate of Incorporation"), and bylaws, as
amended (the "Bylaws"), and to the Rights Agreement (as defined below). These
statements do not purport to be complete and are qualified in their entirety by
reference to the terms of the Certificate of Incorporation, the Bylaws and the
Rights Agreement, which are incorporated by reference as exhibits to the
Registration Statement.
COMMON AND PREFERRED STOCK
The authorized capital stock of the Company consists of 1,400,000,000 shares
of Common Stock, par value $3 per share, and 500,000 shares of Preferred Stock,
par value $100 per share, issuable in series ("Preferred Stock"). There are no
shares of Preferred Stock presently outstanding. The Board of Directors of the
Company is authorized to create and issue one or more series of Preferred Stock
and to determine the rights and preferences of each series, to the extent
permitted by the Certificate of Incorporation. The holders of shares of the
Company's Common Stock are entitled to one vote for each share held and each
share of the Company's Common Stock is entitled to participate equally in
dividends out of funds legally available therefor, as and when declared by the
Board of Directors, and in the distribution of assets in the event of
liquidation. The shares of the Company's Common Stock have no preemptive or
conversion rights, redemption provisions or sinking fund provisions. The
outstanding shares of the Company's Common Stock are duly and validly issued,
fully paid and nonassessable, and any shares of Common Stock issued as Offered
Securities and any shares of Common Stock issuable upon the (i) exercise of
Common Stock Warrants, (ii) conversion or exchange of Debt Securities which are
convertible into or exchangeable for Common Stock or (iii) in the case of LYONs,
unless the applicable Prospectus Supplement specifies otherwise, upon the
purchase of the LYONs at the option of the Holder thereof will be, duly and
validly issued, fully paid and nonassessable.
PREFERRED SHARE PURCHASE RIGHTS
Each outstanding share of Common Stock of the Company is accompanied by
one-quarter of a preferred stock purchase right (a "Right"). Each Right entitles
the registered holder to purchase from the Company one-thousandth of a share of
Junior Participating Preferred Stock, Series A, $100 par value per share, of the
Company (the "Preferred Shares") at a price of $150 per one-thousandth of a
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Preferred Share (the "Preferred Share Purchase Price"), subject to adjustment.
The terms of the Rights are set forth in the Rights Agreement, as amended,
between the Company and Harris Trust and Savings Bank as Rights Agent.
The following summary of certain provisions of the Rights and the Rights
Agreement does not purport to be complete and is subject to, and is qualified in
its entirety by reference to, all of the provisions of the Rights and the Rights
Agreement, including particular provisions or defined terms of the Rights
Agreement. A copy of the Rights Agreement has been filed with the Commission as
an exhibit to a Registration Statement on Form 8-A, which, as amended by Forms 8
and a Form 8-A/A, is incorporated herein by reference. See "Incorporation of
Certain Documents by Reference."
Until the earlier to occur of (i) 10 days following a public announcement
that a person or group of affiliated or associated persons (an "Acquiring
Person") acquired, or obtained the right to acquire, beneficial ownership of 20%
or more of the outstanding shares of Common Stock and (ii) 10 days following the
commencement or announcement of a tender offer or exchange offer for 30% or more
of such outstanding shares of Common Stock (the earlier of such dates being
called the "Distribution Date"), the Rights will be evidenced, with respect to
any of the Common Stock certificates outstanding as of November 20, 1988, by
such Common Stock certificate. The Rights Agreement provides that, until the
Distribution Date, the Rights will be transferred with and only with the shares
of Common Stock. Until the Distribution Date (or earlier redemption or
expiration of the Rights), new Common Stock certificates issued after November
20, 1988, upon the transfer or new issuance of shares of Common Stock
(including, unless otherwise specified in the applicable Prospectus Supplement,
the shares of Common Stock issued (i) as Offered Securities, (ii) upon exercise
of any Common Stock Warrants, (iii) upon conversion or exchange of Debt
Securities which are convertible into or exchangeable for Common Stock or (iv)
upon purchase of LYONs at the option of the Holder thereof will contain a
notation incorporating the Rights Agreement by reference. Until the Distribution
Date (or earlier redemption or expiration of the Rights) the surrender for
transfer of any certificate for shares of Common Stock, outstanding as of
November 20, 1988, with or without such notation or a copy of a summary of
Rights being attached thereto, will also constitute the transfer of the Rights
associated with the shares of Common Stock represented by such certificate. As
soon as practicable following the Distribution Date, separate certificates
evidencing the Rights ("Right Certificates") will be mailed to holders of record
of the Common Stock as of the close of business on the Distribution Date and
such separate Right Certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution Date. The Rights will
expire on November 20, 1998, unless earlier redeemed by the Company as described
below.
The Preferred Share Purchase Price payable, and the number of Preferred
Shares or other securities or property issuable, upon exercise of the Rights are
subject to adjustment from time to time to prevent dilution (i) in the event of
a stock dividend on, or a subdivision, combination or reclassification of, the
Preferred Shares, (ii) upon the grant to holders of the Preferred Shares of
certain rights or warrants to subscribe for Preferred Shares or convertible
securities at less than the current market price of the Preferred Shares or
(iii) upon the distribution to holders of the Preferred Shares of evidences of
indebtedness or assets (excluding regular periodic cash dividends or dividends
payable in Preferred Shares) or of subscription rights or warrants (other than
those referred to above).
In the event that the Company were acquired in a merger or other business
combination transaction or more than 50% of its assets or earning power were
sold, proper provision shall be made so that each holder of a Right shall
thereafter have the right to receive, upon the exercise thereof at the then
current exercise price of the Right, that number of shares of common stock of
the acquiring company which at the time of such transaction (I.E., before the
dilution that would result from exercise or adjustment of the Rights) would have
a market value of two times the exercise price of the Right. In the event that
the Company were the surviving corporation in a merger or other business
combination involving an Acquiring Person and its shares of Common Stock were
not changed or exchanged, in the event that an Acquiring Person acquires
beneficial ownership of 20% or more of the outstanding
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shares of Common Stock, or in the event that an Acquiring Person engages in one
of a number of self-dealing transactions specified in the Rights Agreement,
proper provision shall be made so that each holder of a Right, other than Rights
that are or were beneficially owned by the Acquiring Person on or after the
earlier of the Distribution Date or the date the Acquiring Person acquires 20%
or more of the outstanding Common Shares (which will thereafter be void), will
thereafter have the right to receive upon exercise that number of shares of
Common Stock having at the time of such transaction (I.E., before the dilution
that would result from exercise or adjustment of the Rights) a market value of
two times the exercise price of the Right. The Company's Board of Directors,
after a person becomes an Acquiring Person by acquiring 20% or more of the
outstanding shares of Common Shares, may require all holders of Rights to
exchange, without any cash payment, all outstanding and exercisable Rights
(except those held by the Acquiring Person, which shall be void) for Common
Stock (or Common Stock equivalents) at a one-for-one exchange ratio. In order
for the Board to determine whether to exercise this exchange provision, the
Board can suspend the exercisability of the Rights for up to 90 days after a
person becomes an Acquiring Person by acquiring 20% or more of the outstanding
Common Shares.
At any time prior to the public announcement that a person or group of
affiliated or associated persons has acquired beneficial ownership of 20% or
more of the outstanding shares of Common Stock, the Board of Directors of the
Company may redeem the Rights in whole, but not in part, at a price of $.05 per
Right (the "Rights Redemption Price"). Immediately upon the action of the Board
of Directors ordering redemption of the Rights, the right to exercise the Rights
will terminate and the only right of the holders of Rights will be to receive
the Rights Redemption Price.
Until a Right is exercised, the holder thereof, as such, will have no rights
as a stockholder of the Company, including, without limitation, the right to
vote or to receive dividends.
At any time prior to the public announcement that a person or group of
affiliated or associated persons has acquired beneficial ownership of 20% or
more of the outstanding shares of Common Stock, the Company may amend or
supplement the Rights Agreement without the approval of the Rights Agent or any
holder of the Rights, except for an amendment or supplement which would change
the Rights Redemption Price, the final expiration date of the Rights, the
Preferred Share Purchase Price or the number of one-thousandths of a Preferred
Share for which a Right is then exercisable. Thereafter, the Company may amend
or supplement the Rights Agreement without such approval in order to increase
the benefits to holders of the Rights or to create new interests in such
holders. Immediately upon the action of the Board of Directors providing for any
amendment or supplement, such amendment or supplement will be deemed effective.
DESCRIPTION OF SECURITIES WARRANTS
The Company may issue Securities Warrants for the purchase of Debt
Securities or Common Stock. Securities Warrants may be issued independently or
together with Debt Securities offered by any Prospectus Supplement and may be
attached to or separate from such Debt Securities. Each series of Securities
Warrants will be issued under a separate warrant agreement (a "Securities
Warrant Agreement") to be entered into between the Company and a bank or trust
company, as Securities Warrant Agent, all as set forth in the applicable
Prospectus Supplement relating to the particular issue of Securities Warrants.
The Securities Warrant Agent will act solely as an agent of the Company in
connection with the Securities Warrant Agreement or any Certificates evidencing
the Securities Warrants ("Securities Warrant Certificates") and will not assume
any obligation or relationship of agency or trust for or with any holders of
Securities Warrant Certificates or beneficial owners of Securities Warrants.
Copies of the forms of Securities Warrant Agreements and the forms of Securities
Warrant Certificates representing the Securities Warrants are filed as exhibits
to the Registration Statement. The following summaries of certain provisions of
the forms of Securities Warrant Agreements and Securities Warrant Certificates
do not purport to be complete and are subject to, and are qualified in their
entirety by reference to, all the provisions of the Securities Warrant
Agreements and the Securities Warrant Certificates.
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GENERAL
If Securities Warrants are offered, the applicable Prospectus Supplement
will describe the terms of such Securities Warrants, including, in the case of
Securities Warrants for the purchase of Debt Securities (the "Underlying Debt
Securities"), the following where applicable: (i) the title and aggregate number
of such Debt Warrants; (ii) the title, rank, aggregate principal amount,
denominations, and terms of the Underlying Debt Securities purchasable upon
exercise of the Debt Warrants; (iii) the currencies in which such Debt Warrants
are being offered; (iv) the designation and terms of any series of Debt
Securities with which such Debt Warrants are being offered and the number of
such Debt Warrants being offered with each such Debt Security; (v) the date, if
any, on and after which such Debt Warrants and any related series of Debt
Securities will be transferable separately; (vi) the principal amount of the
series of Debt Securities purchasable upon exercise of each such Debt Warrant
and the price, or the manner of determining the price, at which and currencies
in which such principal amount of Debt Securities of such series may be
purchased upon such exercise; (vii) the time or times, or period or periods in
which, such Debt Warrants may be exercised and the date (the "Expiration Date")
on which such exercise right shall expire; (viii) whether the Securities Warrant
Certificates will be issued in registered or bearer form; (ix) United States
federal income tax consequences; (x) the terms of any right of the Company to
redeem or accelerate the exercisability of such Debt Warrants; (xi) whether such
Debt Warrants are to be issued with any Offered Securities; (xii) the offering
price of such Debt Warrants; and (xiii) any other terms of such Debt Warrants.
In the case of Securities Warrants for the purchase of Common Stock, the
Prospectus Supplement will describe the terms of such Common Stock Warrants,
including the following where applicable: (i) title and aggregate number of such
Common Stock Warrants and whether such Common Stock Warrants will be sold with
other Offered Securities; (ii) the number of shares of Common Stock that may be
purchased on exercise of each Common Stock Warrant; (iii) the price or manner of
determining price; if other than cash, the property and manner in which the
exercise price may be paid and any minimum number of Common Stock Warrants
exercisable at one time; (iv) the terms of any right of the Company to redeem
such Common Stock Warrants; (v) the date, if any, on and after which such Common
Stock Warrants and any related series of Debt Securities will be transferable
separately; (vi) the time or times, or period or periods in which, the Common
Stock Warrants shall be exercisable and the Expiration Date; (vii) any right of
the Company to accelerate the exercisability of the Common Stock Warrants;
(viii) United States federal income tax consequences; and (ix) any other terms
of such Common Stock Warrants. Securities Warrants for the purchase of Common
Stock will be offered and exercisable for U.S. dollars only.
Securities Warrants may be exchanged for new Securities Warrants of
different denominations, may (if in registered form) be presented for
registration of transfer and may be exercised at the corporate trust office of
the Securities Warrant Agent or any other office indicated in the applicable
Prospectus Supplement. No service charge will be made for any permitted transfer
or exchange of Securities Warrant Certificates, but the Company may require
payment of any tax or other governmental charge payable in connection therewith.
Prior to the exercise of any Securities Warrant to purchase Underlying Debt
Securities, holders of such Securities Warrants will not have any of the rights
of Holders of the Debt Securities purchasable upon such exercise, including the
right to receive payments of principal of (or premium, if any) or interest, if
any, on the Debt Securities purchasable upon such exercise or to enforce
covenants in the applicable indenture. Prior to the exercise of any Securities
Warrants to purchase Common Stock, holders of such Securities Warrants will not
have any rights of holders of the Common Stock purchasable upon such exercise,
including the right to receive payments of dividends, if any, on the Common
Stock purchasable upon such exercise or to exercise any applicable right to
vote.
EXERCISE OF SECURITIES WARRANTS
Each Securities Warrant will entitle the holder thereof to purchase such
principal amount of Underlying Debt Securities or number of shares of Common
Stock, as the case may be, at such exercise price as shall in each case be set
forth in, or calculable from, the Prospectus Supplement relating to the
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offered Securities Warrants. After the close of business on the Expiration Date
(or such later date to which such Expiration Date may be extended by the
Company), unexercised Securities Warrants will become void.
Securities Warrants may be exercised by delivering to the Securities Warrant
Agent payment as provided in the applicable Prospectus Supplement of the amount
required to purchase the Underlying Debt Securities or Common Stock, as the case
may be, purchasable upon such exercise together with certain information set
forth on the reverse side of the Securities Warrant. Securities Warrants will be
deemed to have been exercised upon receipt of payment of the exercise price,
subject to the receipt, within five business days, of the Securities Warrant
Certificate evidencing such Securities Warrants. Upon receipt of such payment
and such Securities Warrant Certificate properly completed and duly executed at
the corporate trust office of the Securities Warrant Agent or any other office
indicated in the applicable Prospectus Supplement, the Company will, as soon as
practicable, issue and deliver the Underlying Debt Securities or Common Stock,
as the case may be, purchasable upon such exercise. If fewer than all of the
Securities Warrants represented by such Securities Warrant Certificate are
exercised, a new Securities Warrant Certificate will be issued for the remaining
amount of Securities Warrants. The holder of a Securities Warrant will be
required to pay any tax or other governmental charge that may be imposed in
connection with any transfer involved in the issuance of Underlying Debt
Securities or Common Stock purchased upon such exercise.
MODIFICATIONS
The Securities Warrant Agreements and the terms of the Securities Warrants
may be modified or amended by the Company and the Securities Warrant Agent,
without the consent of any holder, for the purpose of curing any ambiguity, or
of curing, correcting or supplementing any defective or inconsistent provision
contained therein, or in any other manner that the Company deems necessary or
desirable and that will not materially adversely affect the interests of the
holders of the Securities Warrants.
The Company and the Securities Warrant Agent may also modify or amend the
Securities Warrant Agreement and the terms of the Securities Warrants with the
consent of the holders of not less than a majority in number of the then
outstanding unexercised Securities Warrants affected thereby; provided that no
such modification or amendment that accelerates the expiration date, increases
the exercise price, reduces the number of outstanding Securities Warrants the
consent of the holders of which is required for any such modification or
amendment, or otherwise materially adversely affects the rights of the holders
of the Securities Warrants, may be made without the consent of each holder
affected thereby.
COMMON STOCK WARRANT ADJUSTMENTS
The terms and conditions on which the exercise price of and/or the number of
shares of Common Stock covered by a Common Stock Warrant are subject to
adjustment will be set forth in the Common Stock Warrant Certificate and the
applicable Prospectus Supplement. Such terms will include provisions for
adjusting the exercise price and/or the number of shares of Common Stock covered
by such Common Stock Warrant; the events requiring such adjustment; the events
upon which the Company may, in lieu of making such adjustment, make proper
provisions so that the holder of such Common Stock Warrant, upon exercise
thereof, would be treated as if such holder had exercised such Common Stock
Warrant prior to the occurrence of such events; and provisions affecting
exercise in the event of certain events affecting the Common Stock.
PLAN OF DISTRIBUTION
The Company may offer and sell the Offered Securities in any of four ways:
(i) through agents, (ii) through underwriters or dealers, (iii) directly to one
or more purchasers or (iv) through any combination of the foregoing. The
Prospectus Supplement with respect to any of the Offered Securities will set
forth the terms of the offering of such Offered Securities, including the name
or names of any underwriters, dealers or agents, the purchase price of such
Offered Securities, the proceeds to the
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Company from such sale, any underwriting discounts or agency fees and other
items constituting underwriters' or agents' compensation, the initial public
offering price, any discounts or concessions allowed or reallowed or paid to
dealers, and any securities exchanges on which such Offered Securities may be
listed.
The distribution of the Offered Securities may be effected from time to time
in one or more transactions at a fixed price or prices, which may be changed, at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
The Company may also issue the Offered Securities to one or more persons in
exchange for outstanding securities of the Company acquired by such persons from
third parties in open market or privately negotiated transactions. The newly
issued Offered Securities sold in any such exchange may be offered pursuant to
this Prospectus and the applicable Prospectus Supplement by such persons, acting
as principal for their own accounts, at market prices prevailing at the time of
sale, at prices otherwise negotiated or at fixed prices. Unless otherwise
indicated in the applicable Prospectus Supplement, the Company will receive only
outstanding securities of the Company in any such exchange transaction and will
not receive cash proceeds in connection with the exchange or receive any
proceeds in connection with the resale by such persons of any Offered
Securities. Any resale may be effected by the selling party to or through
underwriters or dealers, and such underwriters or dealers may receive
compensation in the form of underwriting discounts, concessions or commissions
from such selling party for whom they may act as agent. Such selling party, if a
broker-dealer, may receive commissions from purchasers of Offered Securities for
whom it may act as agent. Any discounts, concessions or commissions received by
the selling party, if a broker-dealer, or received by any other underwriters or
dealers participating in the distribution of Offered Securities, and any profit
on the resale of Offered Securities by any of them, may be deemed to be
underwriting discounts and commissions under the Securities Act. The Company may
agree to indemnify the selling party and any other underwriters or dealers from
certain civil liabilities, including liabilities under the Securities Act. The
applicable Prospectus Supplement will set forth the terms under which Offered
Securities will be issued in exchange for outstanding securities of the Company,
the name of the party that will acquire such Offered Securities for resale, as
principal for its own account, the terms of resale by such selling party, the
names of any other underwriters or dealers participating in the distribution of
such Offered Securities and material arrangements, if any, entered into between
the selling party and such other underwriters or dealers. If any expenses of the
selling party in connection with the distribution of the Offered Securities are
reimbursed by the Company, such reimbursement arrangement will be set forth in
the applicable Prospectus Supplement.
If underwriters or dealers are used in the sale, the Offered Securities will
be acquired by the underwriters or dealers for their own accounts and may be
resold from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price, which may be changed, or at
varying prices determined at the time of sale. The Offered Securities may be
offered to the public either through underwriting syndicates represented by one
or more managing underwriters or directly by one or more of such firms. Unless
otherwise set forth in the Prospectus Supplement, the obligations of the
underwriters to purchase such Offered Securities will be subject to certain
conditions precedent, and the underwriters will be obligated to purchase all of
such Offered Securities 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.
If so indicated in the applicable Prospectus Supplement relating to any
Offered Securities, the Company will authorize underwriters, dealers and/or
agents to solicit offers by certain specified institutions to purchase such
Offered Securities from the Company at the public offering price set forth in
such 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 such Prospectus Supplement, and
such Prospectus Supplement will set forth the commission payable for
solicitation of such contracts. The underwriters and other persons soliciting
such contracts will have no responsibility for the validity or performance of
such contracts.
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Underwriters, dealers and agents 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, or to contributions
with respect to payments which the underwriters, dealers or agents may be
required to make in respect thereof. Underwriters, dealers and agents, and
affiliates thereof, may be customers of, engage in transactions with, or perform
services for the Company and its affiliates in the ordinary course of business.
All Offered Securities (except shares of Common Stock) will be new issues of
securities with no established trading market. Any underwriters to whom Offered
Securities are sold by the Company for public offering and sale may make a
market in such Offered 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 concerning the liquidity of the trading market for any
Offered Securities.
LEGAL OPINIONS
Certain legal matters will be passed upon for the Company by James K. Markey
of the Company's Law Department. As of September 1, 1994, Mr. Markey jointly
owned approximately 975 shares of Common Stock and also held options to purchase
9,400 shares of Common Stock, of which options to purchase 8,400 shares are
currently exercisable.
EXPERTS
The consolidated financial statements and schedules of the Company and its
consolidated subsidiaries as of December 31, 1993 and 1992 and for each of the
years in the three-year period ended December 31, 1993 have been incorporated by
reference in this Prospectus and in the Registration Statement in reliance upon
the reports of KPMG Peat Marwick LLP, independent certified public accountants,
incorporated by reference herein, and upon the authority of said firm as experts
in auditing and accounting.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following is an estimate, subject to future contingencies, of the
expenses to be incurred by the Registrant in connection with the issuance and
distribution of the securities being registered:
<TABLE>
<S> <C>
Registration Fee................................................ $ 275,862
*Legal Fees and Expenses......................................... 120,000
*Trustee Fees and Expenses....................................... 50,000
*Accounting Fees and Expenses.................................... 25,000
*Blue Sky and Legal Investment Fees and Expenses................. 50,000
*Printing and Engraving Fees..................................... 100,000
*Rating Agency Fees.............................................. 100,000
*Listing Fees.................................................... 50,000
*Miscellaneous................................................... 29,138
---------
Total...................................................... $ 800,000
---------
---------
<FN>
- ---------
* Estimated pursuant to instruction to Item 511 of Regulation S-K.
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law contains detailed
provisions for indemnification of directors and officers of Delaware
corporations against expenses, judgments, fines and settlements in connection
with litigation.
The Registrant's Restated Certificate of Incorporation and its directors'
and officers' liability insurance policy provide for indemnification of its
directors and officers against certain liabilities.
Reference is made to Section 6 of the Form of Underwriting Agreements filed
as Exhibit 1(a) and to Section 8 of the Form of Distribution Agreement filed as
Exhibit 1(b) for a description of the contemplated indemnification arrangements.
ITEM 16. EXHIBITS
The following Exhibits are filed as part of this Registration Statement:
<TABLE>
<S> <C>
1(a) Form of Underwriting Agreement.
1(b) Form of Distribution Agreement.
4(a) Restated Certificate of Incorporation, as amended, including
Certificate of Designation, Preferences and Rights of Junior
Participating Preferred Stock, Series A (incorporated by
reference to Exhibit 3(i)(b) to the Registrant's Quarterly
Report on Form 10-Q for the quarter ended April 2, 1994 (File
No. 1-7221)).
4(b) By-Laws, as amended (incorporated by reference to Exhibit 3(ii)
to the Registrant's Quarterly Report on Form 10-Q for the
quarter ended April 2, 1994 (File No. 1-7221)).
</TABLE>
II-1
<PAGE>
<TABLE>
<S> <C>
4(c) Rights Agreement, dated November 9, 1988 (incorporated by
reference to Exhibit 4.1 to Registrant's Annual Report on Form
10-K for the fiscal year ended December 31, 1988) (File No.
1-7221), Amendment to Rights Agreement dated August 7, 1990
(incorporated by reference to Exhibit 2 to Registrant's Form 8
dated August 9, 1990 amending Registrant's Registration
Statement on Form 8-A dated November 15, 1988) (File No.
1-7221), Amendment No. 2 on Form 8 dated December 2, 1992
amending Registrant's Registration Statement on Form 8-A dated
November 15, 1988 (incorporated by reference to Registrant's
Form 8 dated December 2, 1992) (File No. 1-7221) and Amendment
No. 3 on Form 8-A/A dated February 28, 1994 amending
Registrant's Registration Statement on Form 8-A dated November
15, 1988 (incorporated by reference to Registrant's Amendment
No. 3 on Form 8-A/A dated February 28, 1994) (File No. 1-7221).
4(d) Form of Senior Indenture.
4(e) Form of Subordinated Indenture.
4(f) Form of LYONs Indenture (including Form of LYON).
4(g) Form of Senior Security.
4(h) Form of Subordinated Security.
4(i) Form of Debt Warrant Agreement.
4(j) Form of Common Stock Warrant Agreement.
4(k) Form of Common Stock Certificate
4(l) Form of Warrant Certificate for Common Stock.
4(m) Form of Warrant Certificate for Debt Securities.
5 Opinion and consent of James Markey, Esq.
8 Form of Opinion re Certain Tax Matters
10(a) $500,000,000 Credit Agreement dated as of September 21, 1994
between The Chase Manhattan Bank, as Agent, and Motorola, Inc.
and Motorola Credit Corporation.
10(b) $1,000,000,000 Credit Agreement dated as of September 21, 1994
between The Chase Manhattan Bank, as Agent, and Motorola, Inc.
and Motorola Credit Corporation.
12 Statement re: Computation of ratio of earnings to fixed
charges.
23(a) Consent of James K. Markey (included as part of Exhibit 5).
23(b) Consent of KPMG Peat Marwick.
24 Powers of Attorney.
25(a) Statement of Eligibility of Harris Trust and Savings Bank, as
Trustee, on Form T-1.
25(b) Statement of Eligibility of The First National Bank of Chicago,
as Trustee, on Form T-1.
27 Financial Data Schedule.
</TABLE>
ITEM 17. UNDERTAKINGS
(a) The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement (i) to include any
prospectus required by Section 10(a)(3) of the Securities Act of 1933, (ii)
to reflect in the prospectus any facts or events arising after the effective
date of the Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the Registration
Statement, and (iii) to include any material information with
II-2
<PAGE>
respect to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information in the
Registration Statement; PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the Registration Statement is on Form S-3 or Form
S-8 and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial BONA FIDE offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial BONA FIDE offering thereof.
(c) The Registrant hereby undertakes to file an application for the purpose
of determining the eligibility of the trustee to act under subsection (a) of
Section 310 of the Trust Indenture Act ("Act") in accordance with the rules and
regulations prescribed by the Securities and Exchange Commission under Section
305(b)(2) of the Act.
(d) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers, and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer, or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer, or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act of 1933 and will be governed by the
final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement, or amendment thereto, to be signed on its behalf by the undersigned,
thereunto duly authorized, in the Village of Schaumburg and the State of
Illinois, on the 2nd day of August, 1994.
MOTOROLA, INC.
By ___________________________________
Gary L. Tooker
VICE CHAIRMAN AND CHIEF EXECUTIVE
OFFICER
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed on the date or dates indicated, by the
following persons in the capacities indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE(S)
- ------------------------------------------------------ ----------------------------- -----------------------
<C> <S> <C>
DIRECTOR, VICE CHAIRMAN AND
CHIEF EXECUTIVE OFFICER
Gary L. Tooker (PRINCIPAL EXECUTIVE
OFFICER)
EXECUTIVE VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
Carl F. Koenemann (PRINCIPAL FINANCIAL
OFFICER)
VICE PRESIDENT AND CONTROLLER
(PRINCIPAL ACCOUNTING
Kenneth J. Johnson OFFICER)
</TABLE>
ERICH BLOCH
DAVID R. CLARE
WALLACE C. DOUD
CHRISTOPHER B. GALVIN
ROBERT W. GALVIN
JOHN T. HICKEY
ANNE P. JONES
Directors
DONALD R. JONES
WALTER E. MASSEY
JOHN F. MITCHELL
THOMAS J. MURRIN
SAMUEL C. SCOTT III
GARDINER L. TUCKER
WILLIAM J. WEISZ
B. KENNETH WEST
Gary L. Tooker, ATTORNEY-IN-FACT
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT FORM OF
NUMBER DOCUMENT DESCRIPTION FILING
- ------ --------------------------------------------------------- ----------
<S> <C> <C>
1(a) Form of Underwriting Agreement.
1(b) Form of Distribution Agreement.
4(a) Restated Certificate of Incorporation, as amended,
including Certificate of Designation, Preferences and
Rights of Junior Participating Preferred Stock, Series A
(incorporated by reference to Exhibit 3(b)(i) to the
Registrant's Quarterly Report on Form 10-Q for the
quarter ended April 2, 1994 (File No. 1-7221)).
4(b) By-Laws, as amended (incorporated by reference to Exhibit
3(ii) to the Registrant's Quarterly Report on Form 10-Q
for the quarter ended April 2, 1994 (File No. 1-7221)).
4(c) Rights Agreement, dated as of November 9, 1988
(incorporated by reference to Exhibit 4.1 to Registrant's
Annual Report on Form 10-K for the fiscal year ended
December 31, 1988) (File No. 1-7221), Amendment to Rights
Agreement dated August 7, 1990 (incorporated by reference
to Exhibit 2 to Registrant's Form 8 dated August 9, 1990
amending Registrant's Registration Statement on Form 8-A
dated November 15, 1988 (File No. 1-7221), Amendment No.
2 on Form 8 dated December 2, 1992 amending Registrant's
Registration Statement on Form 8-A dated November 15,
1988 (incorporated by reference to Registrant's Form 8
dated December 2, 1992) (File No. 1-7221) and Amendment
No. 3 on Form 8-A/A dated February 28, 1994 amending
Registrant's Registration Statement on Form 8-A dated
November 15, 1988 (incorporated by reference to
Registrant's Amendment No. 3 on Form 8-A/A dated February
28, 1994) (File No. 1-7221).
4(d) Form of Senior Indenture.
4(e) Form of Subordinated Indenture.
4(f) Form of LYONs Indenture (including Form of LYON).
4(g) Form of Senior Security.
4(h) Form of Subordinated Security.
4(i) Form of Debt Warrant Agreement.
4(j) Form of Common Stock Warrant Agreement.
4(k) Form of Common Stock Certificate
4(l) Form of Warrant Certificate for Common Stock.
4(m) Form of Warrant Certificate for Debt Securities.
5 Opinion and Consent of James Markey, Esq.
8 Form of Opinion re Certain Tax Matters
10(a) $500,000,000 Credit Agreement dated as of September 21,
1994 between The Chase Manhattan Bank, as Agent, and
Motorola, Inc. and Motorola Credit Corporation.
10(b) $1,000,000,000 Credit Agreement dated as of September 21,
1994 between The Chase Manhattan Bank, as Agent, and
Motorola, Inc. and Motorola Credit Corporation.
12 Statement re: Computation of ratio of earnings to fixed
charges.
23(a) Consent of James K. Markey (included as part of Exhibit
5).
23(b) Consent of KPMG Peat Marwick.
24 Powers of Attorney.
25(a) Statement of Eligibility of Harris Trust and Savings
Bank, as Trustee, on Form T-1.
25(b) Statement of Eligibility of The First National Bank of
Chicago, as Trustee, on Form T-1.
27 Financial Data Schedule.
</TABLE>
<PAGE>
MOTOROLA, INC.
(a Delaware corporation)
Debt Securities
Debt Warrants
Common Stock
Common Stock Warrants
Units
UNDERWRITING AGREEMENT
___________, 199__
To the Representatives of the
several Underwriters named in
the respective Terms Agreements
hereinafter described
Dear Sirs:
Motorola, Inc., a Delaware corporation (the "Company"), proposes to issue
and sell, at up to an aggregate initial public offering price of $800,000,000,
or the equivalent thereof in one or more foreign currencies or composite
securities, including European Currency Units, in one or more series, its (i)
unsecured debt securities (the "Debt Securities") which may be senior (the
"Senior Securities") or subordinated (the "Subordinated Securities"), (ii)
warrants to purchase the Debt Securities (the "Debt Warrants"), (iii) shares of
its common stock, $3 par value per share (the "Common Stock"), and (iv) warrants
to purchase Common Stock (the "Common Stock Warrants") in one or more offerings
on terms determined at the time of sale. The Debt Securities, Debt Warrants,
Common Stock and Common Stock Warrants may be offered separately or as a part of
units consisting of one or more such securities (the "Units"; and together with
the Debt Securities, Debt Warrants, Common Stock and Common Stock Warrants, the
"Offered Securities"). The Debt Securities and the Units containing the Debt
Securities (collectively, the "Offered Debt Securities") will be issued under
one of several indentures depending upon the particular issuance. The Senior
Securities will be issued under an indenture dated as of ____________, 199__
between the Company and Harris Trust and Savings Bank, as Trustee (the "Senior
Indenture"). The Subordinated Securities will be issued under an indenture
dated as of ____________, 199__ between the Company and _______________________,
as Trustee (the "Subordinated Indenture"). The Liquid Yield Option-TM- Notes
(the "LYONs"-TM-) will be issued under an indenture dated as of _____________,
199__ between the Company and The First National Bank of Chicago, as Trustee
(the "LYONs Indenture"). The Senior Indenture, Subordinated Indenture and LYONs
Indenture are each sometimes referred to as the "Indentures." The Debt
Warrants, Common Stock Warrants and Units
<PAGE>
containing either of the foregoing (collectively, the "Warrants") will be issued
under one or more warrant agreements (the "Warrant Agreements") between the
Company and the Warrant Agent identified in such Warrant Agreement. Each issue
of the Offered Debt Securities and Warrants may vary, as applicable, as to the
aggregate principal amount, maturity date or dates, interest rate or rates and
timing of payments thereof, redemption provisions, conversion provisions,
exercise provisions and sinking fund requirements, if any, and any other
variable terms which the applicable Indenture or Warrant Agreement, as the case
may be, contemplates may be set forth in the Offered Debt Securities and
Warrants as issued from time to time.
Whenever the Company determines to make an offering of the Offered
Securities, it will enter into an agreement substantially in the form of Exhibit
A hereto (the "Terms Agreement") providing for the sale of such Offered
Securities to, and the purchase and offering thereof by, the underwriter or
underwriters named therein (the "Underwriters" or "you", which terms shall
include the underwriter or underwriters named therein whether acting alone in
the sale of the Offered Securities or as members of an underwriting syndicate).
The Terms Agreement relating to each offering of the Offered Securities shall
specify, where applicable, the principal amount of the Offered Securities to be
issued, the name or names of the Underwriters participating in such offering
(subject to substitution as provided in Section 9 hereof) and the principal
amount of the Offered Securities which each severally agrees to purchase, the
name or names of the Underwriters acting as manager or co-managers in connection
with such offerings, if any (the "Representatives", which term shall include
each Underwriter in the event that there shall be no manager or co-managers),
the price at which the Offered Securities are to be purchased by the
Underwriters from the Company, the initial public offering price, the time and
place of delivery and payment, the number of shares to be issued in the case of
the issuance of the Common Stock, and, to the extent not otherwise specified in
the applicable Indenture or Warrant Agreement in the case of the issuance of the
Offered Debt Securities or Warrants, their terms. Each offering of the Offered
Securities will be governed by this Agreement, as supplemented by the applicable
Terms Agreement, and this Agreement and such Terms Agreement shall inure to the
benefit of and be binding upon each Underwriter participating in the offering of
such Offered Securities.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 33-_______) relating to
(i) the Offered Securities and (ii) the Common Stock issuable upon conversion or
exercise of the Offered Securities in the case of the issuance of Offered
Securities convertible into or exercisable for Common Stock, and the offering
thereof from time to time in accordance with Rule 415
-2-
<PAGE>
under the Securities Act of 1933, as amended (the "1933 Act"), and has filed
such amendments thereto as may have been required to the date hereof. Such
registration statement, as amended, has been declared effective by the
Commission, and the Indentures have been qualified under the Trust Indenture Act
of 1939, as amended (the "1939 Act"). Such registration statement, as amended,
and the prospectus relating to the sale of the Offered Securities by the Company
constituting a part thereof, including all documents incorporated therein by
reference, as from time to time amended or supplemented pursuant to the
Securities Exchange Act of 1934, as amended (the "1934 Act"), the 1933 Act or
otherwise, are referred to herein as the "Registration Statement" and the
"Prospectus", respectively; provided, however, that a supplement of the
Prospectus contemplated by Section 3(a)(ix) hereof (a "Prospectus Supplement")
shall be deemed to have supplemented the Prospectus only with respect to the
offering of Offered Securities to which such Prospectus Supplement relates.
SECTION 1. REPRESENTATIONS AND WARRANTIES. (a) The Company represents
and warrants to each Underwriter as of the date hereof and as of the date of the
applicable Terms Agreement (such latter date being hereinafter referred to as
the "Representation Date") as follows:
(i) The Registration Statement and the Prospectus, at the time the
Registration Statement became effective and as of the applicable
Representation Date, complied in all material respects with the 1933 Act
and the rules and regulations of the Commission thereunder (the "1933 Act
Regulations"). The Registration Statement, at the time the Registration
Statement became effective (or, if an amendment to the Registration
Statement or an annual report on Form 10-K has been filed by the Company
with the Commission subsequent to the effectiveness of the Registration
Statement, then at the time of the most recent such filing) did not contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading. The Prospectus, at the time the Registration Statement
became effective and as of the applicable Representation Date, did not
contain an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the representations and warranties in this subsection shall
not apply to statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter, or on behalf of any
Underwriter by the Representatives, expressly for use in the Registration
Statement or Prospectus.
-3-
<PAGE>
(ii) The documents incorporated by reference in the Prospectus, at
the time they were or hereafter are filed with the Commission, complied and
will comply in all material respects with the requirements of the 1934 Act
and the rules and regulations of the Commission thereunder (the "1934 Act
Regulations"), and, when read together and with the other information in
the Prospectus, at the time the Registration Statement and any amendments
thereof became or become effective under the 1933 Act and at each
Representation Date, did not 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 light of the
circumstances under which they are made, not misleading.
(iii) The Company and its subsidiaries considered as a whole have not
sustained since the date of the latest 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 or decree, otherwise than as set forth,
incorporated by reference or contemplated in the Prospectus; and, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated or incorporated
therein, there has not been any change in the capital stock (other than
upon exercise of outstanding stock options or upon conversion of
convertible securities outstanding on the date of the most recent balance
sheet included in the Prospectus or pursuant to the Company's employee
stock ownership plan or pursuant to the Company's employee stock purchase
plans or the Company's employee savings and profit sharing plan), any
significant increase in the long-term debt of the Company and its
subsidiaries taken as a whole, or any material adverse change, or any
development which the Company has reasonable cause to believe will involve
a prospective material adverse change, in or affecting the general affairs,
management, consolidated financial position, stockholders' equity or
results of operations of the Company and its subsidiaries considered as a
whole, or, other than the Company's regular quarterly dividend, any
dividend or distribution of any kind declared, paid or made by the Company
on any class of its capital stock.
(iv) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to conduct its business as described in
the Prospectus with only such exceptions as are not material to the
business of the Company and its subsidiaries considered as a whole.
-4-
<PAGE>
(v) The authorized capitalization is as set forth or incorporated by
reference in the Prospectus and all of the issued and outstanding shares of
capital stock of the Company have been duly authorized and validly issued
and are fully paid and non-assessable.
(vi) The execution, delivery and performance of this Agreement, the
applicable Terms Agreement, the applicable Indenture in the case of the
issuance of the Offered Debt Securities, and the applicable Warrant
Agreement in the case of the issuance of the Warrants, and the consummation
of the transactions contemplated herein and therein have been duly
authorized by all necessary corporate action and will not conflict with or
constitute a breach of, or a default under, any material contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which the Company is a party or by which the Company is
bound; nor will such action result in a violation of the provisions of the
Company's Restated Certificate of Incorporation or bylaws of the Company,
as amended, or any applicable law, rule, regulation, judgment, order or
administrative or court decree.
(vii) Other than (a) as set forth, incorporated by reference, or
contemplated in the Prospectus and (b) litigation incident to the kind of
business conducted by the Company and its subsidiaries, which in the case
of those items in (b) individually and in the aggregate is not material to
the Company and its subsidiaries considered as a whole, there are no legal
or governmental proceedings pending to which the Company and its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject which, if determined adversely to the
Company or its subsidiaries, the Company has reasonable cause to believe
would individually or in the aggregate have a material adverse effect on
the consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries considered 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.
(viii) No consent, approval or authorization of any court or
governmental authority or agency is necessary in connection with the sale
of the Offered Securities or the consummation of the other transactions
contemplated by this Agreement, the applicable Terms Agreement, the
applicable Warrant Agreement in the case of the issuance of the Warrants,
or the applicable Indenture in the case of the issuance of the Offered Debt
Securities, except as may be required under the
-5-
<PAGE>
1933 Act or 1933 Act Regulations, the 1934 Act or 1934 Act Regulations, the
1939 Act or state securities laws.
(ix) The Company has complied and will comply with the provisions of
Florida H.B. 1771, codified as Section 517.075 of the Florida Statutes,
1987, as amended, and all regulations promulgated thereunder relating to
issuers doing business in Cuba.
(b) In the event the Offered Securities are Offered Debt Securities, the
Company additionally represents and warrants to each Underwriter as of the
Representation Date that the Offered Debt Securities to be issued and sold
pursuant to this Agreement have been duly authorized, and when issued,
authenticated and delivered pursuant to this Agreement, against payment of the
consideration set forth in the Terms Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Company entitled to the benefits provided by the
Indenture under which they are to be issued, which will be substantially in the
form included as an exhibit to the Registration Statement; the applicable
Indenture has been duly authorized, and when duly executed and delivered by the
Company and the applicable Trustee, will constitute a valid and legally binding
instrument enforceable against the Company in accordance with its terms subject,
as to enforcement, to bankruptcy, insolvency, reorganization or other laws of
general applicability relating to or affecting creditors' rights and to general
equity principles, and except as enforcement thereof may be limited by (i)
requirements that a claim with respect to any Offered Debt Securities
denominated other than in U.S. dollars (or a foreign currency or currency unit
judgment in respect of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law or (ii)
governmental authority to limit, delay or prohibit the making of payments
outside the United States; and the Offered Debt Securities and the applicable
Indenture conform in all material respects to the descriptions thereof in, or
incorporated by reference into, the Prospectus and the applicable Prospectus
Supplement.
(c) In the event the Offered Securities are convertible into or
exercisable for Common Stock, the Company makes the following additional
representations and warranties to each Underwriter as of the Representation
Date:
(i) The shares of Common Stock initially issuable upon conversion or
exercise, as the case may be, have been duly authorized and reserved for
issuance, and when issued and delivered, pursuant to the terms of the
Indenture or Warrant Agreement, as the case may be, will be validly issued,
fully paid and non-assessable.
-6-
<PAGE>
(ii) Holders of Offered Securities receiving shares of Common Stock
issued upon the conversion or exercise of such Offered Securities, as the
case may be, or upon the purchase of Offered Securities by the Company at
the option of holders of such Offered Securities in the case of the
issuance of LYONs with such a purchase feature as Offered Securities, will
also be entitled, to the same extent as will all shares of Common Stock
issuable at such time otherwise than upon the conversion or exercise of
such Offered Securities or upon purchase of Offered Securities by the
Company at the option of the holders in the case of the issuance of LYONs
with such a purchase feature as Offered Securities, to one-quarter
preferred share purchase right (a "Right") in respect of each share of
Common Stock so received; each such one-quarter Right has been duly
authorized, and when issued and delivered in accordance with the terms of
the Rights Agreement, dated as of November 9, 1988, between the Company and
Harris Trust and Savings Bank, as amended (the "Rights Agreement"), will
have been duly executed, issued and delivered; the Rights Agreement has
been duly authorized, executed and delivered by the Company and Harris
Trust and Savings Bank and is enforceable against the Company in accordance
with its terms, subject, as to enforcement, to general equity principles;
and the Rights and the Rights Agreement conform in all material respects to
the descriptions thereof included in or incorporated by reference into the
Prospectus and the applicable Prospectus Supplement.
(iii) The Common Stock conforms in all material respects to the
description thereof included in or incorporated by reference into the
Prospectus and the applicable Prospectus Supplement and is not subject to
preemptive or other similar rights.
(d) In the event the Offered Securities are Warrants, the Company
additionally represents and warrants to each Underwriter as of the
Representation Date that the Warrants to be issued and sold pursuant to this
Agreement have been duly authorized, and when issued, authenticated and
delivered pursuant to this Agreement, against payment of the consideration set
forth in the Terms Agreement, will have been duly executed, authenticated,
issued and delivered and will constitute valid and legally binding obligations
of the Company entitled to the benefits provided by the Warrant Agreement under
which they are to be issued, which will be substantially in the form included as
an exhibit to the Registration Statement; the applicable Warrant Agreement has
been duly authorized, and when duly executed and delivered by the Company and
the applicable Warrant Agent, will constitute a valid and legally binding
instrument enforceable in accordance with its terms subject, as to enforcement,
to bankruptcy, insolvency, reorganization or other laws of general applicability
relating to or affecting creditors' rights and to general equity principles; and
the Warrants and the applicable Warrant Agreement conform in all material
respects to
-7-
<PAGE>
the descriptions thereof in, or incorporated by reference into, the Prospectus
and the applicable Prospectus Supplement.
(e) In the event the Offered Securities are shares of Common Stock or
Units containing shares of Common Stock, the Company makes the following
additional representations and warranties to each Underwriter as of the
Representation Date:
(i) The Common Stock to be issued and sold pursuant to this Agreement
has been duly authorized, and when issued and delivered pursuant to this
Agreement, against payment of the consideration set forth in the applicable
Terms Agreement, will be validly issued and fully paid and non-assessable.
(ii) The Offered Securities will be entitled, to the same extent as
all other shares of Common Stock issued or to be issued by the Company, to
one-quarter Right in respect of each share of Common Stock so received;
each such one-quarter Right has been duly authorized, and when issued and
delivered in accordance with the terms of the Rights Agreement will have
been duly executed, issued and delivered; the Rights Agreement has been
duly authorized, executed and delivered by the Company and Harris Trust and
Savings Bank and is enforceable against the Company in accordance with its
terms, subject, as to enforcement, to general equity principles; and the
Rights and the Rights Agreement conform to the descriptions thereof
included in or incorporated by reference into the Prospectus and the
applicable Prospectus Supplement.
(iii) The Common Stock conforms in all material respects to the
description thereof included in or incorporated by reference into the
Prospectus and the applicable Prospectus Supplement and is not subject to
preemptive or other similar rights.
(f) In the event the Offered Securities are Debt Warrants or Units
containing Debt Warrants, the Company makes the following additional
representations and warranties to each Underwriter as of the Representation
Date:
(i) The debt securities initially issuable upon the exercise of such
Offered Securities, have been duly authorized, and, when issued, will be
duly executed, authenticated, issued and delivered and will constitute
valid and legally binding obligations of the Company entitled to the
benefits provided by the indenture under which they will be issued.
(ii) The debt securities issuable upon exercise of the Debt Warrants
conform in all material respects to the description thereof included in or
incorporated by reference into the Prospectus and the applicable Prospectus
Supplement.
-8-
<PAGE>
(g) In the event the Offered Securities are Warrants or Offered Debt
Securities convertible into Common Stock, the Company additionally represents
and warrants to each Underwriter as of the Representation Date that upon
issuance and delivery of such Warrants or Debt Securities in accordance with (i)
this Agreement and the applicable Terms Agreement, and (ii) the applicable
Warrant Agreement or Indenture, as the case may be, the Warrants shall be
exercisable at the option of the holder thereof for shares of Common Stock or
debt securities, as the case may be, in accordance with the terms of the
Warrants and the applicable Warrant Agreement, and such Debt Securities shall be
convertible at the option of the holder thereof for shares of Common Stock in
accordance with the terms of such Debt Securities and the applicable Indenture.
(h) Any certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection with an
offering of Offered Securities shall be deemed a representation and warranty by
the Company as to the matters covered thereby, to each Underwriter.
SECTION 2. SALE AND DELIVERY TO THE UNDERWRITERS; CLOSING. (a) The
several commitments of the Underwriters to purchase the Offered Securities
pursuant to any Terms Agreement shall be deemed to have been made on the basis
of the representations and warranties herein contained and shall be subject to
the terms and conditions herein set forth.
(b) Payment of the purchase price for, and delivery of, any Offered
Securities to be purchased by the Underwriters shall be made at the place set
forth in the applicable Terms Agreement, or at such other place as shall be
agreed upon by the Representatives and the Company, on the fifth business day
(or such lesser period as may then be required by the Commission) (unless
postponed in accordance with the provisions of Section 9) following the date of
the applicable Terms Agreement or such other time as shall be agreed upon by the
Representatives and the Company (each such time and date being referred to as a
"Closing Time"). Payment shall be made to the Company by certified or official
bank check or checks drawn in New York Clearing House funds or similar next day
funds payable to the order of the Company, against delivery to the
Representatives for the respective accounts of the Underwriters of the Offered
Securities to be purchased by them.
(c) Certificates for the Offered Securities shall be in such denominations
and registered in such names as the Representatives may request in writing at
least two business days before the applicable Closing Time. The certificates
for the Offered Securities, which may be in temporary form, will be made
available for examination and packaging by the Representatives not later than
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11:00 A.M. on the last business day prior to the applicable Closing Time.
SECTION 3. COVENANTS. (a) The Company covenants with each Underwriter as
follows:
(i) From the date of the applicable Terms Agreement, and for so long
as a Prospectus is required to be delivered in connection with the sale of
the Offered Securities covered by such Terms Agreement, the Company will
notify the Representatives immediately, and confirm the notice in writing,
(A) of the effectiveness of any amendment to the Registration Statement,
(B) of the mailing or the delivery to the Commission for filing of any
supplement to the Prospectus or any document to be filed pursuant to the
1934 Act which will be incorporated by reference into the Registration
Statement or Prospectus, (C) of the receipt of any comments from the
Commission with respect to the Registration Statement, the Prospectus or
any Prospectus Supplement, or the documents incorporated therein, (D) of
any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus, or the
documents incorporated therein, or for additional information, (E) of the
suspension of the qualification of (i) the Offered Securities, or (ii) the
shares of Common Stock (including the Rights associated therewith) issuable
upon conversion or exercise of the Offered Securities in the case of the
issuance of Offered Securities convertible into or exercisable for Common
Stock, or the shares of Common Stock issuable upon the purchase of Offered
Securities by the Company at the option of holders of Offered Securities in
the case of the issuance of LYONs with such a purchase feature as Offered
Securities, for offering or sale in any jurisdiction, or the initiation or
threatening of any proceedings for any such purpose, and (F) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or any order preventing or suspending the use
of the Prospectus or any preliminary prospectus supplement, or the
initiation of any proceedings for any such purpose. The Company will use
every reasonable effort to prevent the issuance of any stop order or any
order preventing or suspending the use of the Prospectus or any preliminary
prospectus supplement or suspending such qualification, and, in the event
of the issuance of a stop order or any order preventing or suspending the
use of the Prospectus or any preliminary prospectus supplement or
suspending such qualification, to obtain the lifting thereof at the
earliest possible moment.
(ii) From the date of the applicable Terms Agreement, and for so long
as a Prospectus is required to be delivered in connection with the sale of
the Offered Securities covered by
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such Terms Agreement, the Company will give the Representatives notice of
its intention to file or prepare any amendment to the Registration
Statement (including any post-effective amendment) or any amendment or
supplement to the Prospectus (including any revised prospectus which the
Company proposes for use by you in connection with the offering of the
Offered Securities which differs from the prospectus on file with the
Commission at the time the Registration Statement became effective, whether
or not such revised prospectus is required to be filed pursuant to Rule
424(b) of the 1933 Act Regulations) and will furnish them with copies of
any such amendment or supplement or other documents proposed to be filed a
reasonable amount of time prior to such proposed filing or use, as the case
may be, and will not file any such amendment or supplement or use any such
prospectus to which you or your counsel shall reasonably object.
(iii) The Company, during the period when the Prospectus is required
to be delivered under the 1933 Act, will file promptly all reports and any
definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the 1934 Act.
(iv) The Company will deliver to each of the Representatives two
copies of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and, if applicable, documents incorporated by reference
into the Prospectus pursuant to Item 12 of Form S-3 under the 1933 Act) and
will also deliver to the Representatives, from time to time during the
period when the Prospectus is required to be delivered under the 1933 Act
or the 1934 Act, as many conformed copies of the Registration Statement as
originally filed and of each amendment thereto (without exhibits) as the
Representatives may reasonably request.
(v) The Company will furnish to the Representatives, from time to
time during the period when the Prospectus is required to be delivered
under the 1933 Act or the 1934 Act, such number of copies of the Prospectus
(as amended or supplemented) as the Representatives may reasonably request
for the purposes contemplated by the 1933 Act or the 1934 Act or the
respective applicable rules and regulations of the Commission thereunder.
(vi) If at any time when the Prospectus is required by the 1933 Act
to be delivered in connection with sales of the Offered Securities any
event shall occur as a result of which it is necessary to amend or
supplement the Prospectus in order to make the Prospectus not misleading in
the light of the
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circumstances existing at the time it is delivered to a purchaser, the
Company will forthwith amend or supplement the Prospectus (in form and
substance satisfactory to your counsel) so that, as so amended or
supplemented, the Prospectus will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in light of the circumstances existing at the time
it is delivered to a purchaser, not misleading, and the Company will
furnish to the Representatives a reasonable number of copies of such
amendment or supplement.
(vii) The Company will endeavor, in cooperation with you, to qualify
the Offered Securities and, in the case of the issuance of Offered
Securities convertible into or exercisable for Common Stock, the shares of
Common Stock (including the Rights associated therewith) issuable upon
conversion or exercise, as the case may be, or upon the purchase of the
Offered Securities by the Company at the option of holders of such Offered
Securities in the case of the issuance of LYONs with such a purchase
feature as Offered Securities, for offering and sale under the applicable
securities laws of such states and other jurisdictions as the
Representatives may designate; provided, however, that the Company shall
not be obligated to qualify as a foreign corporation in any jurisdiction in
which it is not so qualified or to file a general consent to service of
process in any jurisdiction. In each jurisdiction in which the Offered
Securities, or in the case of the issuance of Offered Securities
convertible into or exercisable for Common Stock, such shares of Common
Stock (including the Rights associated therewith), have been so qualified,
the Company will file such statements and reports as may be required by the
laws of such jurisdiction to continue such qualification in effect for so
long as may be required to complete such distribution of such Offered
Securities.
(viii) With respect to each sale of Offered Securities, the Company
agrees that it will make generally available to its security holders as
soon as practicable, but not later than 90 days after the close of the
period covered thereby, earnings statements (in form complying with the
provisions of Rule 158 under the 1933 Act) covering a twelve-month period
beginning, in each case, not later than the first day of the Company's
fiscal quarter next following the "effective date" (as defined in said Rule
158) of the Registration Statement relating to such Offered Securities.
(ix) Immediately following the execution of each Terms Agreement, the
Company will prepare a Prospectus Supplement setting forth, where
applicable, the principal amount or
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number of shares, as the case may be, of the Offered Securities covered
thereby, the name or names of the Underwriters (subject to substitution as
provided in Section 9 hereof) and the principal amount or number of shares,
as the case may be, of the Offered Securities which each severally has
agreed to purchase, the name or names of the Representatives, the price at
which the Offered Securities are to be purchased by the Underwriters from
the Company, the initial public offering price, the selling concession and
reallowance, if any, the other terms of the Offered Securities to the
extent not otherwise specified in the applicable Indenture or Warrant
Agreement, as the case may be, in the event the Offered Securities are
Offered Debt Securities or Warrants, and such other information as the
Representatives and the Company deem appropriate in connection with the
offering of the Offered Securities. The Company will promptly transmit
copies of the Prospectus Supplement to the Commission for filing pursuant
to Rule 424 of the 1933 Act Regulations and will furnish to the
Underwriters named therein as many copies of the Prospectus and such
Prospectus Supplement as the Representatives shall reasonably request.
(b) In the event the Offered Securities are Offered Debt Securities, Debt
Warrants or Units containing Debt Warrants, the Company additionally covenants
with each Underwriter that the Company will not contract to sell or announce or
make any offering, sale or other disposition of any debt securities of the
Company having a maturity greater than one year during the period beginning from
the date of any Terms Agreement and continuing through the later of the
termination of trading restrictions with respect to the Offered Securities, as
notified to the Company by the Representatives, or the applicable Closing Time
except for (i) proposed issues of debt securities with respect to which the
Company shall have advised the Representatives in writing prior to the execution
hereof and (ii) except for such other debt securities with respect to which the
Representatives have given their prior written consent.
(c) In the event the Offered Securities are shares of Common Stock, Units
containing shares of Common Stock or are convertible into or exercisable for
Common Stock, the Company additionally covenants with each Underwriter as
follows:
(i) The Company will not contract to sell or announce or make any
offering, sale or other disposition of any shares of Common Stock or any
securities convertible into or exchangeable for shares of Common Stock
(collectively, "Common Equity Securities"), nor will the Company sell or
grant options, rights or warrants with respect to any Common Equity
Securities (except under the Company's stock option and other employee
incentive and benefit plans existing on the date
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<PAGE>
of the applicable Terms Agreement, except for sales of Common Equity
Securities under currently effective secondary shelf registration
statements, except for no more than 2,700,000 shares of Common Stock issued
as consideration for acquisitions and except for Common Stock issued upon
coversion of outstanding convertible securities) in each case during a
period of 90 days after the commencement of the public offering of the
Offered Securities referenced in Section 3(c) hereof, except for (a)
proposed issues of Common Equity Securities with respect to which the
Company shall have advised the Representatives in writing prior to the
execution hereof and (b) except for such other Common Equity Securities
with respect to which the Representatives have given their prior written
consent.
(ii) The Company will use its best efforts to effect the listing of
(A) Offered Securities that are shares of the Common Stock and (B) shares
of the Common Stock issuable upon the conversion or exercise of the Offered
Securities, as the case may be, or in the case of the issuance of LYONs
with such a purchase feature as Offered Securities, upon purchase of such
Offered Securities at option of the holders of such Offered Securities, on
the New York Stock Exchange (and/or such other exchanges or trading markets
on which the Common Stock is then listed or admitted for trading), and to
cause such Offered Securities to be registered under the 1934 Act.
(iii) In the case of the issuance of Offered Securities convertible
into or exercisable for Common Stock, the Company agrees to reserve and
keep available at all times, free of preemptive rights, shares of Common
Stock for the purpose of enabling the Company to satisfy any obligations to
issue shares of Common Stock upon conversion or exercise of the Offered
Securities, as the case may be.
SECTION 4. PAYMENT OF EXPENSES. The Company will pay all expenses
incident to the performance of its obligations under this Agreement and each
Terms Agreement, including (i) the printing and filing of the Registration
Statement as originally filed and of each amendment thereto, (ii) the copying
of this Agreement, each Terms Agreement, the Indentures, in the case of the
issuance of the Offered Debt Securities, and the Warrant Agreements, in the case
of the issuance of the Warrants, (iii) the preparation, issuance and delivery to
the Underwriters of the certificates for the Offered Securities, (iv) the fees
and disbursements of the Company's counsel and accountants, (v) the
qualification of the Offered Securities and, in the case of the issuance of
Offered Securities convertible into or exercisable for Common Stock, the shares
of Common Stock (including the Rights associated therewith) issuable upon the
conversion or exercise of the Offered Securities, as the case may be, or upon
the purchase of the Offered Securities by the Company at the option of the
holders of such Offered Securities in the case of the issuance of LYONs with
such a purchase feature as
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Offered Securities, under securities laws in accordance with the provisions of
Section 3(a)(vii), including filing fees and the fees and disbursements of
counsel for the Underwriters in connection therewith and in connection with the
preparation of the Blue Sky survey, (vi) the printing and delivery to the
Underwriters of copies of the Registration Statement as originally filed and of
each amendment thereto, of any preliminary prospectuses and of the Prospectus
and any amendments or supplements (including any preliminary prospectus
supplements) thereto, (vii) the copying and delivery to the Underwriters of
copies of the Blue Sky survey, (viii) in the case of the issuance of Offered
Debt Securities, the fees and expenses of the Trustee, including the fees and
disbursements of counsel for the Trustee in connection with the Indentures, (ix)
in the case of the issuance of Warrants, the fees and expenses of the Warrant
Agent, including the fees and disbursements of counsel for the Warrant Agent in
connection with the Warrant Agreements, (x) where applicable, any fees payable
in connection with the rating of the Offered Securities, (xi) where applicable,
the filing fee payable to the National Association of Securities Dealers, Inc.
incident to any required review of the terms of the sale of the Offered
Securities, (xii) where applicable, the fees and expenses incurred in
connection with the listing of the Offered Securities, and in the case of the
issuance of Offered Securities convertible into or exercisable for Common Stock,
the shares of Common Stock issuable upon the conversion or exercise of the
Offered Securities, as the case may be, or in the case of the issuance of LYONs
with such a purchase feature as Offered Securities, the shares of Common Stock
issuable upon purchase of such Offered Securities at the option of holders of
such Offered Securities on the New York Stock Exchange (and/or such other
exchanges or trading markets on which the Common Stock is then listed or
admitted for trading), and (xiii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. Except as provided in this Section and in
Sections 6 and 7, the Underwriters will pay all of their own costs and expenses,
including fees and disbursements of their counsel, stock transfer taxes on
resale of any of the Offered Securities by them, and any advertising expenses
which they may incur.
If a Terms Agreement is terminated by the Representatives in accordance
with the provisions of Section 5, other than solely as the result of a material
adverse change in the financial markets in the United States as provided for in
Section 5(f)(iii), the Company shall reimburse you for all out-of-pocket
expenses, including the reasonable fees and disbursements of your counsel,
reasonably incurred by you in making preparations for the purchase, sale and
delivery of the Offered Securities.
SECTION 5. CONDITIONS OF UNDERWRITER'S OBLIGATIONS. The obligations of
the Underwriters to purchase the Offered Securities pursuant to any Terms
Agreement are subject, in the discretion of the Representatives, to the accuracy
of the representations and warranties of the Company herein contained, to the
performance by
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the Company of its obligations hereunder, and to the following further
conditions:
(a) At the applicable Closing Time, no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission; all
requests for additional information on the part of the Commission shall have
been complied with to your reasonable satisfaction; and the Prospectus as
amended or supplemented in relation to the applicable Offered Securities shall
have been filed with the Commission pursuant to Rule 424(b) within the
applicable time period prescribed for filing pursuant to the 1933 Act and the
1933 Act Regulations.
(b) At the applicable Closing Time, you shall have received the favorable
opinion, dated as of the applicable Closing Time, of James K. Markey, Senior
Corporate Counsel of the Company, or another attorney employed by the Company
who is acceptable to the Representatives (the "Company Attorney's Opinion")
(except in the case of item (1)(vi), where applicable, insofar as it relates to
"Certain Tax Aspects", which opinion shall be delivered by a special outside tax
counsel to the Company), in form and substance satisfactory to your counsel.
(1) The Company Attorney's Opinion shall be to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with corporate power and authority to conduct its
business as described in the Prospectus.
(ii) The authorized capitalization of the Company is as set
forth or incorporated by reference in the Prospectus and all of the
issued and outstanding shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and
non-assessable.
(iii) This Agreement and the applicable Terms Agreement have
each been duly authorized, executed and delivered by the Company.
(iv) The Registration Statement is effective under the 1933 Act
and, to the best of such counsel's knowledge, no stop order suspending
the effectiveness of the Registration Statement has been issued under
the 1933 Act or proceedings therefor initiated or threatened by the
Commission.
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(v) At the time the Registration Statement became effective and
at each Representation Date, the Registration Statement and the
Prospectus (other than the financial statements and other financial
data and supporting schedules included therein and in the documents
incorporated by reference into the Prospectus, as to which no opinion
need be rendered) complied as to form in all material respects with
the applicable requirements of the 1933 Act and the 1933 Act
Regulations and the 1939 Act and the rules and regulations thereunder;
the documents incorporated by reference into the Prospectus (other
than the financial statements and other financial data and supporting
schedules included therein, as to which no opinion need be rendered),
when they were filed with the Commission, complied as to form in all
material respects with the applicable requirements of the 1934 Act and
the 1934 Act Regulations; and to the best of such counsel's knowledge
and information, there are no contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments required to be
described or referred to in the Prospectus or to be filed as exhibits
to the Registration Statement other than those described or referred
to therein or filed or incorporated by reference thereto and the
descriptions thereof or references thereto are correct.
(vi) To the best of such counsel's knowledge, other than as set
forth, incorporated by reference or contemplated in the Prospectus,
there are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any property
of the Company or any of its subsidiaries is the subject, other than
litigation incident to the kind of business conducted by the Company
and its subsidiaries, which litigation incident to the Company's
business individually and in the aggregate is not material to the
Company and its subsidiaries considered as a whole; and, to the best
of such counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(vii) Where applicable, the information in the Prospectus or the
applicable Prospectus Supplement under "Certain Tax Aspects" (or a
similar heading or headings), to the extent that it constitutes
matters of law or legal conclusions, has been reviewed by such counsel
and is correct in all material respects.
(viii) No consent, approval, authorization, order, registration
or qualification of any court or governmental authority or agency is
required in
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connection with the issuance and sale of the Offered Securities or the
consummation of the other transactions contemplated by this Agreement,
the applicable Terms Agreement, the applicable Warrant Agreement in
the case of the issuance of the Warrants, or the applicable Indenture
in the case of the issuance of the Offered Debt Securities, except
such as have been obtained or rendered, as the case may be, or such
consents, approvals, authorizations, registrations or qualifications
as may be required under the securities or Blue Sky laws of any
jurisdiction in connection with the purchase and distribution of the
Offered Securities by you, the issuance of shares of Common Stock
(including the Rights associated therewith), upon conversion or
exercise of the Offered Securities, in the case of the issuance of
Offered Securities convertible into or exercisable for Common Stock
and the issuance of shares of Common Stock (including the Rights
associated therewith) upon the purchase of the Offered Securities by
the Company at the option of holders of the Offered Securities, in the
case of the issuance of LYONs with such a purchase feature as Offered
Securities.
(ix) The execution and delivery of this Agreement, the
applicable Terms Agreement, the applicable Indenture in the case of
the issuance of the Offered Debt Securities, and the applicable
Warrant Agreement in the case of the issuance of the Warrants, the
issuance of the Offered Securities and the shares of Common Stock
(including the Rights associated therewith) issuable (a) upon
conversion or exercise of the Offered Securities in the case of the
issuance of Offered Securities convertible into or exercisable for
Common Stock, and (b) upon the purchase of the Offered Securities by
the Company at the option of holders of the Offered Securities in the
case of the issuance of LYONs with such a purchase feature as Offered
Securities, the compliance by the Company with all of the provisions
of the Offered Securities and the applicable Indenture and Warrant
Agreement in the case of the issuance of Offered Debt Securities or
Warrants, this Agreement and the applicable Terms Agreement and the
consummation of the transactions herein or therein contemplated do not
and will not conflict with or constitute a breach of, or a default
under, (a) the Company's Restated Certificate of Incorporation or
bylaws of the Company, as amended, (b) any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or instrument
known to such counsel to which the Company is a party or by which the
Company is bound, or (c) any applicable law, rule,
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regulation, judgment, order or administrative or court decree known to such
counsel.
(2) In the event the Offered Securities are Offered Debt Securities,
the Company Attorney's Opinion shall additionally be to the effect that:
(i) The Offered Debt Securities to be issued and sold by the
Company pursuant to this Agreement and the applicable Terms Agreement
have been duly authorized, executed, authenticated, issued and
delivered and constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the applicable Indenture;
the Offered Debt Securities and the applicable Indenture conform to
the descriptions thereof in, or incorporated by reference into, the
Prospectus and the applicable Prospectus Supplement; and the
information in the Prospectus and the applicable Prospectus Supplement
under "Description of Debt Securities," and, in the case of the
issuance of LYONs as Offered Securities, "Description of Liquid Yield
Option Notes" (or, in each case, a similar heading or headings), to
the extent that it constitutes matters of law or legal conclusions,
has been reviewed by such counsel and is correct in all material
respects.
(ii) The applicable Indenture has been duly authorized, executed
and delivered by the parties thereto and constitutes a valid and
legally binding instrument, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles, and except as
enforcement thereof may be limited by (A) requirements that a claim
with respect to any Offered Debt Securities denominated other than in
U.S. dollars (or a foreign currency or currency unit judgment in
respect of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law or
(B) governmental authority to limit, delay or prohibit the making of
payments outside the United States; and the applicable Indenture has
been duly qualified under the 1939 Act.
(3) In the event the Offered Securities are convertible into or
exercisable for Common Stock, the Company Attorney's Opinion shall
additionally be to the effect that:
(i) Holders of Offered Securities convertible into or
exercisable for Common Stock receiving shares of Common Stock issued
upon the conversion or exercise of
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such Offered Securities, as the case may be, or, in the case of the
issuance of LYONs with such a purchase feature as Offered Securities,
upon the purchase of such Offered Securities by the Company at the
option of holders of such Offered Securities, will also be entitled,
to the same extent as will all shares of Common Stock issuable at such
time otherwise than upon the conversion or exercise of such Offered
Securities or upon purchase of such Offered Securities by the Company
in the case of the issuance of LYONs with such a purchase feature as
Offered Securities, to one-quarter Right in respect of each share of
Common Stock so received; each such one-quarter Right has been duly
authorized, and when issued and delivered in accordance with the terms
of the Rights Agreement, will have been duly executed, issued and
delivered; the Rights Agreement, as amended, has been duly authorized,
executed and delivered by the Company and Harris Trust and Savings
Bank and is enforceable against the Company in accordance with its
terms, subject, as to enforcement, to general equity principles; and
the Rights and the Rights Agreement conform to the descriptions
thereof included in or incorporated by reference into the Prospectus
and the applicable Prospectus Supplement.
(ii) Upon issuance and delivery of Offered Securities
convertible into or exercisable for Common Stock in accordance with
this Agreement and the applicable Terms Agreement, and the applicable
Indenture or Warrant Agreement, as the case may be, such Offered
Securities shall be convertible or exercisable at the option of the
holder thereof for shares of Common Stock in accordance with the terms
of such Offered Securities and the applicable Indenture or Warrant
Agreement, as the case may be; and the shares of Common Stock
initially issuable upon conversion or exercise of such Offered
Securities have been duly authorized and reserved for issuance and,
when issued and delivered pursuant to the terms of the applicable
Indenture or Warrant Agreement, as the case may be, will be validly
issued, fully paid and non-assessable.
(iii) The Common Stock conforms to the description thereof in,
or incorporated by reference into, the Prospectus and the applicable
Prospectus Supplement and is not subject to preemptive or other
similar rights; and the information in the Prospectus and the
applicable Prospectus Supplement under "Description of Capital Stock"
(or a similar heading or headings) to the extent that it constitutes
matters of law or legal conclusions,
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has been reviewed by such counsel and is correct in all material
respects.
(iv) The shares of Common Stock issuable upon the conversion or
exercise of such Offered Securities, as the case may be, or in the
case of the issuance of LYONs with such a purchase feature as Offered
Securities, upon the purchase of such Offered Securities at the option
of holders of such Offered Securities, have been approved for listing
upon notice of issuance on the New York Stock Exchange (and/or such
other exchanges or trading markets on which the Common Stock is then
listed or admitted for trading).
(4) In the event the Offered Securities are Warrants, the Company
Attorney's Opinion shall additionally be to the effect that:
(i) The Warrants to be issued and sold by the Company pursuant
to this Agreement and the applicable Terms Agreement have been duly
authorized, executed, authenticated, issued and delivered and
constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the applicable Warrant Agreement;
the Warrants and the applicable Warrant Agreement conform to the
descriptions thereof in, or incorporated by reference into, the
Prospectus and the applicable Prospectus Supplement; and the
information in the Prospectus and the applicable Prospectus Supplement
under "Description of Securities Warrants" (or a similar heading or
headings) to the extent that it constitutes matters of law or legal
conclusions, has been reviewed by such counsel and is correct in all
material respects.
(ii) The applicable Warrant Agreement has been duly authorized,
executed and delivered by the parties thereto and constitutes a valid
and legally binding instrument, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
(5) In the event the Offered Securities are shares of Common Stock or
Units containing shares of Common Stock, the Company Attorney's Opinion shall
additionally be to the effect that:
(i) The Common Stock conforms to the description thereof in, or
incorporated by reference into, the Prospectus and the applicable
Prospectus Supplement and is not subject to preemptive or other
similar rights; and
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the information in the Prospectus and the applicable Prospectus
Supplement under "Description of Capital Stock" (or a similar heading
or headings) to the extent that it constitutes matters of law or legal
conclusions, has been reviewed by such counsel and is correct in all
material respects.
(ii) The Common Stock will be entitled, to the same extent as
any other shares of Common Stock issued or to be issued by the
Company, to one-quarter Right in respect of each share of Common Stock
so received; each such one-quarter Right has been duly authorized, and
when issued and delivered in accordance with the terms of the Rights
Agreement will have been duly executed, issued and delivered; the
Rights Agreement has been duly authorized, executed and delivered by
the Company and Harris Trust and Savings Bank and is enforceable
against the Company in accordance with its terms, subject, as to
enforcement, to general equity principles; and the Rights and the
Rights Agreement conform to the descriptions thereof included in or
incorporated by reference into the Prospectus.
(iii) The Common Stock to be issued and sold pursuant to this
Agreement and the applicable Terms Agreement has been duly authorized
for issuance and sale to the Underwriters pursuant to this Agreement
and, when issued and delivered by the Company pursuant to this
Agreement against payment of the consideration set forth in the Terms
Agreement, will be validly issued and fully paid and non-assessable.
(iv) The shares of Common Stock to be issued and sold pursuant
to this Agreement and the applicable Terms Agreement have been
approved for listing upon notice of issuance on the New York Stock
Exchange (and/or such other exchanges or trading markets on which the
Common Stock is then listed or admitted for trading).
(6) In the event the Offered Securities are Debt Warrants or Units
containing Debt Warrants, the Company Attorney's Opinion shall additionally be
to the effect that:
(i) Upon issuance and delivery of Offered Securities exercisable
into debt securities, such Offered Securities shall be exercisable at
the option of the holder thereof for debt securities in accordance
with the terms of such Offered Securities and the applicable Warrant
Agreement; and the debt securities initially issuable upon the
exercise of such Offered Securities, have been duly authorized, and,
when issued, will
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<PAGE>
constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the indenture under which they
will be issued.
(ii) The information in the applicable Prospectus Supplement
describing the debt securities issuable upon exercise of the Debt
Warrants has been reviewed by such counsel and is correct in all
material respects.
The Company Attorney's Opinion shall additionally state that nothing has
come to his attention that has caused him to believe that the Registration
Statement (other than the financial statements, financial data and schedules
included therein, as to which such counsel need express no belief), at the time
it became effective or at the Representation Date, 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 not misleading or that the
Prospectus (other than the financial statements, financial data and schedules
included therein, as to which such counsel need express no belief), at the
Representation Date (unless the term "Prospectus" refers to a prospectus which
has been provided to you by the Company for use in connection with the offering
of the Offered Securities which differs from the Prospectus on file at the
Commission at the Representation Date, in which case at the time it is provided
to you for such use) or at Closing Time, included an untrue statement of a
material fact or omitted 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.
(c) At the applicable Closing Time, you shall have received the favorable
opinion, dated as of the applicable Closing Time, of your counsel, with respect
to the matters set forth in (b)(1)(i) (insofar as it relates to the existence
and good standing of the Company), (b)(i)(iii) - (v), inclusive (in the case of
(v), insofar as it relates to the compliance of the Registration Statement and
Prospectus as to form), (b)(2)(i), (b)(2)(ii), (b)(3)(ii), (b)(3)(iii) (insofar
as it relates to the description of the Common Stock), (b)(4)(i), (b)(4)(ii),
(b)(5)(i), (b)(5)(iii), (b)(6)(i) and (b)(6)(ii) as well as the last paragraph
of subsection (b) of this Section.
(d) (i) The Company and its subsidiaries considered as a whole shall have
not sustained since the date of the latest financial statements included or
incorporated by reference in the Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth, incorporated by reference or
contemplated in the Prospectus, and (ii) since the respective dates as of which
information is given in the Registration Statement and the Prospectus there
shall not have been any change in the capital stock (other than upon exercise of
outstanding stock options or upon conversion of convertible securities
outstanding at the date of the most recent balance sheet
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<PAGE>
included in the Prospectus or pursuant to the Company's employee stock ownership
plan or pursuant to the Company's employee stock purchase plans or the Company's
employee savings and profit sharing plan) or any significant increase in long-
term debt of the Company and its subsidiaries considered as a whole or any
change, or any development involving a prospective change, in or affecting the
general affairs, management, consolidated financial position, stockholders'
equity or results of operations of the Company and its subsidiaries considered
as a whole, otherwise than as set forth or incorporated by reference or
contemplated in the Prospectus, the effect of which, in any such case described
in clause (i) or (ii), is in your judgment so material and adverse as to make
it impracticable or inadvisable to proceed with the public offering or the
delivery of the Offered Securities on the terms and in the manner contemplated
in the Prospectus.
(e) On or after the date of the applicable Terms Agreement (i) no
downgrading shall have occurred in the rating accorded the Company's debt
securities by any "nationally recognized statistical rating organization," as
that term is defined by the Commission for purposes of Rule 436(g)(2) under the
1933 Act and (ii) no such organization shall have publicly announced that it has
under surveillance or review, with possible negative implications, its rating of
any of the Company's debt securities.
(f) On or after the date of the applicable Terms Agreement there shall not
have occurred any of the following: (i) a suspension or material limitation in
trading in the Common Stock or securities generally on the New York Stock
Exchange; (ii) a general moratorium on commercial banking activities in New York
or Illinois declared by either Federal or state authorities; or (iii) any
material adverse change in the financial markets in the United States or the
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, if the effect
of any such event specified in this clause (iii) in your judgment makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Offered Securities on the terms and in the manner contemplated in the
Prospectus as amended or supplemented.
(g) You shall have received a certificate of the Vice Chairman and Chief
Executive Officer, the President or another senior officer acceptable to you of
the Company and of the Chief Financial Officer, Controller, Treasurer or
Assistant Treasurer of the Company, dated as of the applicable Closing Time, to
the effect that (i) the Company and its subsidiaries shall not have sustained
any loss or interference with its business of the type specified in Section
5(d)(i) and there shall not have occurred any change of the type specified in
Section 5(d)(ii), (ii) there shall not have occurred any downgrading of the type
specified in Section 5(e), (iii) the applicable representations and warranties
in Section 1
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<PAGE>
are true and correct with the same force and effect as though expressly made at
and as of such Closing Time, (iv) the Company has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied at or
prior to such Closing Time, and (v) no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for that
purpose have been initiated or threatened by the Commission.
(h) At the time of the execution of each Terms Agreement, you shall have
received from KPMG Peat Marwick a letter dated such date, in form and substance
satisfactory to you, to the effect that (i) they are independent public
accountants with respect to the Company and its subsidiaries within the meaning
of the 1933 Act and the 1933 Act Regulations; (ii) it is their opinion that the
financial statements and supporting schedules included in or incorporated by
reference into the Registration Statement or the Prospectus and covered by their
opinions therein comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933 Act Regulations and the
1934 Act and the 1934 Act Regulations; (iii) based upon limited procedures set
forth in detail in such letter, nothing has come to their attention which causes
them to believe that (A) the unaudited financial statements and supporting
schedules of the Company and its subsidiaries included in or incorporated by
reference into the Registration Statement or the Prospectus do not comply as to
form in all material respects with the applicable accounting requirements of the
1933 Act and the 1933 Act Regulations or the 1934 Act and the 1934 Act
Regulations, as the case may be, or are not presented in conformity with
generally accepted accounting principles applied on a basis substantially
consistent with that of the audited financial statements included in or
incorporated by reference into the Registration Statement or the Prospectus or
(B) at a specified date not more than five days prior to the date of the
applicable Terms Agreement, there has been any change in the capital stock of
the Company (other than upon exercise of outstanding stock options or upon
conversion of convertible securities outstanding on the date of the most recent
balance sheet included in or incorporated by reference into the Prospectus or
pursuant to the Company's employee stock ownership plan or pursuant to the
Company's stock purchase plans or the Company's employee savings and profit
sharing plan) or any increase in the consolidated long term debt of the Company
and its subsidiaries or any decrease in consolidated net current assets or net
assets as compared with the amounts shown in the most recent balance sheet
included in or incorporated by reference into the Prospectus or, during the
period from the date of the most recent financial statements included in or
incorporated by reference into the Prospectus to a specified date not more than
five days prior to the date of such Terms Agreement, there were any decreases,
as compared with the corresponding period in the preceding year, in consolidated
net sales, net earnings or net earnings per share of
-25-
<PAGE>
the Company and its subsidiaries, except in all instances for changes, increases
or decreases which the Registration Statement and the Prospectus disclose have
occurred or may occur; and (iv) in addition to the examination referred to in
their opinions and the limited procedures referred to in clause (iii) above,
they have carried out certain specified procedures, not constituting an audit,
with respect to certain amounts, percentages and financial information which are
included in or incorporated by reference into the Registration Statement and
Prospectus and which are specified by you, and have found such amounts,
percentages and financial information to be in agreement with the relevant
accounting, financial and other records of the Company and its subsidiaries
identified in such letter.
(i) At each Closing Time, your counsel shall have been furnished with such
documents and opinions as they may require for the purpose of enabling them to
pass upon the issuance and sale of the Offered Securities, as contemplated
herein, and related proceedings, or in order to evidence the accuracy of any of
the representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection with
the issuance and sale of the Offered Securities and with respect to the shares
of Common Stock (including the Rights associated therewith) issuable upon the
purchase of the Offered Securities by the Company at the option of holders of
the Offered Securities, in the case of the issuance of LYONs with such a
purchase feature as Offered Securities, and debt securities or shares of Common
Stock (including the Rights associated therewith) issuable upon conversion or
exercise of the Offered Securities, in the case of the issuance of Offered
Securities convertible into Common Stock or exercisable for Common Stock or debt
securities, as the case may be, as herein contemplated, shall be satisfactory in
form and substance to you and your counsel.
(j) In the case of the issuance of shares of Common Stock, Units
containing shares of Common Stock or Offered Securities convertible into or
exercisable for Common Stock, at each Closing Time, you shall have received the
written agreement of each of the persons specified in the applicable Terms
Agreement, if any, to the effect that each such person will not contract to sell
or announce or make any offering, sale or other disposition of any shares of
Common Stock, nor sell or grant any options, rights or warrants with respect to
any shares of Common Stock, in each case during a period of 90 days after the
commencement of the public offering of the Offered Securities, without your
prior written consent.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement and the applicable Terms
Agreement may be terminated by the Representatives by notice to the Company at
any time at or prior to
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<PAGE>
the applicable Closing Time, and such termination shall be without liability of
any party to any other party except as provided in Section 4.
SECTION 6. INDEMNIFICATION. (a) The Company agrees to indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any preliminary
prospectus or the Prospectus (or any amendment or supplement, including any
preliminary prospectus supplement, thereto) or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including,
subject to Section 6(c) hereof, the fees and disbursements of counsel
chosen by you), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement does not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through the Representatives expressly for use in the Registration
Statement (or any amendment thereto) or any preliminary prospectus or the
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<PAGE>
Prospectus (or any amendment or supplement, including any preliminary prospectus
supplement, thereto); and further provided that this indemnity agreement does
not apply to any loss, liability, claim, damage or expense arising out of any
untrue statement or omission or alleged untrue statement or omission made in a
preliminary prospectus or preliminary prospectus supplement, as the case may be,
but eliminated or remedied in the Prospectus if a copy of the Prospectus
(excluding documents incorporated therein by reference) was not delivered by you
to the person asserting the claim arising from such untrue statement or omission
or such alleged untrue statement or omission, at or prior to the time required
by the 1933 Act.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, its directors, each of the Company's officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement, including any preliminary prospectus
supplement, thereto) in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Representatives
expressly for use in the Registration Statement (or any amendment thereto) or
such preliminary prospectus or the Prospectus (or any amendment or supplement,
including any preliminary prospectus supplement, thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of this indemnity agreement. In
case any such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. In no event
shall the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances.
SECTION 7. CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Company and you shall
contribute to the aggregate losses, liabilities, claims, damages and expenses of
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<PAGE>
the nature contemplated by said indemnity agreement incurred by the Company and
you, as incurred, in such proportions that you are responsible for that portion
represented by the percentage that the underwriting discount appearing on the
cover page of the Prospectus bears to the initial public offering price
appearing thereon and the Company is responsible for the balance; provided,
however, that no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section, each person, if any, who controls you within the
meaning of Section 15 of the 1933 Act shall have the same right to contribution
as you, and each director of the Company, each officer of the Company who signed
the Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as the Company.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this Agreement and
the applicable Terms Agreement, or contained in certificates of officers of the
Company submitted pursuant hereto, shall remain operative and in full force and
effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any controlling person, or
by or on behalf of the Company, and shall survive delivery of the Offered
Securities to the Underwriters.
SECTION 9. DEFAULT. If one or more of the Underwriters shall fail at the
applicable Closing Time to purchase the Offered Securities which it or they are
obligated to purchase under the applicable Terms Agreement (the "Defaulted
Securities"), then the Representatives shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth. If, however, during such 24 hours the Representatives
shall not have completed such arrangements for the purchase of all of the
Defaulted Securities, then:
(a) if the aggregate initial public offering price of the Defaulted
Securities does not exceed 10% of the aggregate initial public offering
price of the Offered Securities to be purchased pursuant to such Terms
Agreement, the non-defaulting Underwriters shall be obligated to purchase
the full amount thereof in the proportions that their respective
underwriting obligations under the applicable Terms Agreement (including
this Agreement as incorporated by reference therein) bear to the
underwriting obligations of all such non-defaulting Underwriters; or
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<PAGE>
(b) if the aggregate initial public offering price of the Defaulted
Securities exceeds 10% of the aggregate initial public offering price of
the Offered Securities to be purchased pursuant to such Terms Agreement,
such Terms Agreement (including this Agreement as incorporated by reference
therein) shall terminate, without any liability on the part of any
non-defaulting Underwriter or the Company.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
the applicable Terms Agreement or this Agreement.
In the event of a default by any Underwriter or Underwriters as set forth
in this Section, either the Representatives or the Company shall have the right
to postpone the applicable Closing Time for a period not exceeding seven days in
order that any required changes in the Registration Statement, Prospectus or
applicable Prospectus Supplement, or in any other documents or arrangements, may
be effected.
SECTION 10. NOTICES. 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 directed to you as provided in the applicable Terms
Agreement; notices to the Company shall be directed to it at 1303 East Algonquin
Road, Schaumburg, Illinois 60196; Attention: Treasurer.
SECTION 11. PARTIES. This Agreement and the applicable Terms Agreement
shall each inure to the benefit of and be binding upon you, the Company and your
and the Company's respective successors. Nothing expressed or mentioned in this
Agreement or the applicable Terms Agreement is intended or shall be construed to
give any person, firm or corporation, other than you, the Company and your and
the Company's respective successors and the controlling persons and officers and
directors referred to in Sections 6, 7 and 8 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or the applicable Terms Agreement or any provision
herein or therein contained. This Agreement and the applicable Terms Agreement
and all conditions and provisions hereof and thereof are intended to be for the
sole and exclusive benefit of you, the Company and your and the Company's
respective successors, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of the Offered Securities from you
shall be deemed to be a successor by reason merely of such purchase.
SECTION 12. GOVERNING LAW AND TIME. This Agreement and each Terms
Agreement shall be governed by and construed in accordance
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<PAGE>
with the laws of the State of New York applicable to agreements made and to be
performed in said State. Specified times of day refer to New York City time.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
you and the Company in accordance with its terms.
Very truly yours,
MOTOROLA, INC.
By _________________________
Title: ____________________
CONFIRMED AND ACCEPTED,
as of the date first above written:
By ______________________________
Title:
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<PAGE>
Exhibit A-1
MOTOROLA, INC.
Debt Securities
TERMS AGREEMENT
_____________, 199_
To: Motorola, Inc.
1303 East Algonquin Road
Schaumburg, Illinois 60196
Attention: Treasurer
Dear Sirs:
We understand that Motorola, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell $___________ aggregate principal amount of its Debt
Securities. Subject to the terms and conditions set forth herein or
incorporated by reference herein, the underwriter(s) named below (the
"Underwriter(s)") hereby offer(s) to purchase such Offered Securities.
The Offered Securities to be purchased by the Underwriter(s), which are to
be issued under an Indenture dated as of ___________, 199_ between the Company
and ________________________________, as Trustee, shall have the following
terms:
Title:
Rank/Subordination:
Date of Maturity:
Interest Rate:
Interest Payment Dates:
Date From Which Interest Accrues:
Public Offering Price:
Purchase Price:
Redemption Provisions:
Conversion Provisions:
Sinking Fund Provisions:
Closing Date and Location:
<PAGE>
Manager or Co-Managers:
Current Ratings: Moody's Investors Services - __;
Standard & Poor's Corporation - __.
All of the provisions contained in the Underwriting Agreement dated as of
______________, 199_, a copy of which is attached hereto as Annex A, are herein
incorporated by reference in their entirety and shall be deemed to be a part of
this Agreement to the same extent as if such provisions had been set forth in
full herein. Terms defined in such document are used herein as therein defined.
Each Underwriter severally agrees, subject to the terms and provisions of this
Terms Agreement, including the terms and provisions incorporated by reference
herein, to purchase from the Company the principal amount of the Offered
Securities set forth opposite its name.
PRINCIPAL
NAME AMOUNT
---- ---------
Any notice by the Company to the Underwriter(s) pursuant to this Terms
Agreement shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication addressed to:
_______________________; Attention: __________.
Please accept this offer by signing a copy of this Terms Agreement in the
space set forth below and returning the signed copy to us.
[Manager]
By:____________________________
Accepted:
Motorola, Inc.
By:____________________________
A-1-2
<PAGE>
Exhibit A-2
MOTOROLA, INC.
_______ Shares
Common Stock
($__ Par Value Per Share)
TERMS AGREEMENT
---------------
_____________, 199_
To: Motorola, Inc.
1303 East Algonquin Road
Schaumburg, Illinois 60196
Attention: Treasurer
Dear Sirs:
We understand that Motorola, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell ___________ shares of its common stock, $__ par value
per share (the "Common Stock"). Subject to the terms and conditions set forth
herein or incorporated by reference herein, the underwriter(s) named below (the
"Underwriter(s)") hereby offer(s) to purchase such Offered Securities.
The Offered Securities to be purchased by the Underwriter(s) shall have the
following terms:
1. The initial public offering price per share for the Common Stock
shall be $_____________.
2. The purchase price per share for the Common Stock to be paid by
you shall be $__________, being an amount equal to the initial public
offering price set forth above less $__________ per share.
3. Closing Date and Location:
4. Manager or Co-Managers:
[5. Names of Persons specified pursuant to Section 5(j):]
All of the provisions contained in the Underwriting Agreement dated as of
______________, 199_, a copy of which is attached hereto as Annex A, are herein
incorporated by reference in their entirety and shall be deemed to be a part of
this Agreement to the
<PAGE>
same extent as if such provisions had been set forth in full herein. Terms
defined in such document are used herein as therein defined. Each Underwriter
severally agrees, subject to the terms and provisions of this Terms Agreement,
including the terms and provisions incorporated by reference herein, to purchase
from the Company the number of shares of Common Stock set forth opposite its
name.
NUMBER OF
NAME SHARES
---- ---------
Any notice by the Company to the Underwriter(s) pursuant to this Terms
Agreement shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication addressed to:
_______________________; Attention: __________.
Please accept this offer by signing a copy of this Terms Agreement in the
space set forth below and returning the signed copy to us.
[Manager]
By:____________________________
Accepted:
Motorola, Inc.
By:____________________________
A-2-2
<PAGE>
Exhibit A-3
MOTOROLA, INC.
Warrants
TERMS AGREEMENT
---------------
_____________, 199_
To: Motorola, Inc.
1303 East Algonquin Road
Schaumburg, Illinois 60196
Attention: Treasurer
Dear Sirs:
We understand that Motorola, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell $___________ aggregate principal amount of its
Warrants. Subject to the terms and conditions set forth herein or incorporated
by reference herein, the underwriter(s) named below (the "Underwriter(s)")
hereby offer(s) to purchase such Offered Securities.
The Offered Securities to be purchased by the Underwriter(s), which are to
be issued under a Warrant Agreement dated as of
_____________, 199_ between the Company and _______________________ as Warrant
Agent shall have the following terms:
Title of Warrants:
Stated Value per Warrant:
Number of Warrants:
Liquidation Value:
Initial Offering Price to Public:
[$ per Warrant][Formula]
Purchase Price by Underwriters:
[$ per Warrant][Formula]
Commission Payable to Underwriters:
[$ per Warrant]
Exercise Price:
<PAGE>
Exercise Provisions:
[The Warrants may be exercised in whole or in part at the option of the
Holder, on or after ________________, at the following [price or formula]
for the purchase of [such principal amount] of:
[Debt Securities] [Common Stock]
[Other exercise provisions:]
[Other terms and conditions:]
Expiration Date:
Date of Board or Committee Resolution Establishing the Terms and Conditions
of the Designated Warrants:
Other Terms:
Closing Date and Location:
Manager or Co-Managers:
[Names of Persons specified pursuant to Section 5(j):]
All of the provisions contained in the Underwriting Agreement dated as of
______________, 199_, a copy of which is attached hereto as Annex A, are herein
incorporated by reference in their entirety and shall be deemed to be a part of
this Agreement to the same extent as if such provisions had been set forth in
full herein. Terms defined in such document are used herein as therein defined.
Each Underwriter severally agrees, subject to the terms and provisions of this
Terms Agreement, including the terms and provisions incorporated by reference
herein, to purchase from the Company the number or Warrants set forth opposite
its name.
NUMBER OF
NAME WARRANTS
---- ---------
Any notice by the Company to the Underwriter(s) pursuant to this Terms
Agreement shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form
A-3-2
<PAGE>
of telecommunication addressed to: _______________________; Attention:
__________.
Please accept this offer by signing a copy of this Terms Agreement in the
space set forth below and returning the signed copy to us.
[Manager]
By:____________________________
Accepted:
Motorola, Inc.
By:____________________________
A-3-3
<PAGE>
Exhibit A-4
MOTOROLA, INC.
$_____________
Liquid Yield Option-TM- Notes
Due 20___
TERMS AGREEMENT
---------------
_____________, 199__
To: Motorola, Inc.
1303 East Algonquin Road
Schaumburg, Illinois 60196
Attention: Treasurer
Dear Sirs:
We understand that Motorola, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell $___________ aggregate principal amount at maturity
of its Liquid Yield Option-TM- Notes ("LYONs"-TM-). Subject to the terms and
conditions set forth herein or incorporated by reference herein, the
underwriter(s) named below (the "Underwriter(s)") hereby offer(s) to purchase
such Offered Securities.
The Offered Securities to be purchased by the Underwriter(s), which are to
be issued under an Indenture dated as of ___________, 199_ between the Company
and The First National Bank of Chicago, as Trustee, shall have the following
terms:
1. The initial public offering price per $______________ principal amount
at maturity of the LYONs shall be $_____________.
2. The LYONs shall be initially convertible into shares of common stock,
$___ par value per share, of Motorola, Inc. ("Common Stock") at a rate of
___________ shares of Common Stock per $______________ principal amount at
maturity of LYONs.
3. The purchase price per $_____________ principal amount at maturity of
LYONs to be paid by you shall be $____________, being an amount equal to the
initial public offering price set forth above, less $________ per
$______________ principal amount at maturity of LYONs.
____________________
- -TM- Trademark of Merrill Lynch & Co., Inc.
<PAGE>
4. Prior to ______________, _____, the Securities will not be redeemable.
5. Closing Date and Location:
6. Manager or Co-managers:
7. Current Ratings: Moody's Investors Services - __; Standard & Poor's
Corporation - __.
8. Names of Persons specified pursuant to Section 5(j):
All of the provisions contained in the Underwriting Agreement dated as of
______________, 199_, a copy of which is attached hereto as Annex A, are herein
incorporated by reference in their entirety and shall be deemed to be a part of
this Agreement to the same extent as if such provisions had been set forth in
full herein. Terms defined in such document are used herein as therein defined.
Each Underwriter severally agrees, subject to the terms and provisions of this
Terms Agreement, including the terms and provisions incorporated by reference
herein, to purchase from the Company the principal amount at maturity of the
Offered Securities set forth opposite its name.
PRINCIPAL
NAME AMOUNT AT MATURITY
---- ------------------
Any notice by the Company to the Underwriter(s) pursuant to this Terms
Agreement shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication addressed to:
_______________________; Attention: __________.
Please accept this offer by signing a copy of this Terms Agreement in the
space set forth below and returning the signed copy to us.
[Manager]
By:____________________________
Accepted:
Motorola, Inc.
By:____________________________
A-4-2
<PAGE>
EXHIBIT 1(c)
MOTOROLA, INC.
MEDIUM-TERM NOTES DUE
9 MONTHS OR MORE FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
________ __, 19__
[Name of Agent]
[Address]
Dear Sirs:
Motorola, Inc., a Delaware corporation (the "Company"), confirms its
agreement with ___________________________ (the "Agent") with respect to the
issue and sale by the Company of its Medium-Term Notes described herein (the
"Notes"). The Notes are to be issued pursuant to an indenture (the "Indenture")
dated as of _______ __, 19__ between the Company and ________________, as
trustee (the "Trustee"). As of the date hereof, the Company has authorized the
issuance and sale of up to U.S. $___,000,000 aggregate principal amount (or its
equivalent, based upon the applicable exchange rate at the time of issuance, in
such foreign or composite currencies, including European Currency Units, as the
Company shall designate at the time of issuance) of Notes to or through the
Agent pursuant to the terms of this Agreement. It is understood, however, that
the Company may from time to time authorize the issuance of additional Notes and
that such additional Notes may be sold to or through the Agent pursuant to the
terms of this Agreement, all as though the issuance of such Notes were
authorized as of the date hereof.
This Agreement provides both for the sale of Notes by the Company to the
Agent as principal for resale to investors and other purchasers and for the sale
of Notes by the Company
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directly to investors (as may from time to time be agreed to by the Company and
the Agent), in which case the Agent will act as an agent of the Company in
soliciting Note purchases.
The Company has filed with the Securities and Exchange Commission (the
"SEC") a registration statement on Form S-3 (No. 33-______) for the registration
of, among other securities of the Company, debt securities, including the Notes,
under the Securities Act of 1933 (the "1933 Act") and the offering thereof from
time to time in accordance with Rule 415 of the rules and regulations of the SEC
under the 1933 Act (the "1933 Act Regulations"). Such registration statement
has been declared effective by the SEC and the Indenture has been qualified
under the Trust Indenture Act of 1939 (the "1939 Act"). Such registration
statement (and any further registration statements which may be filed by the
Company for the purpose of registering additional Notes and in connection with
which this Agreement is included or incorporated by reference as an exhibit) and
the prospectus constituting a part thereof, and any prospectus supplements
relating to the Notes, including all documents incorporated therein by
reference, as from time to time amended or supplemented by the filing of
documents pursuant to the Securities Exchange Act of 1934 (the "1934 Act") or
the 1933 Act or otherwise, are referred to herein as the "Registration
Statement" and the "Prospectus", respectively, except that if any revised
prospectus shall be provided to the Agent by the Company for use in connection
with the offering of the Notes, whether or not such revised prospectus is
required to be filed by the Company pursuant to Rule 424(b) of the 1933 Act
Regulations, the term "Prospectus" shall refer to such revised prospectus from
and after the time it is first provided to the Agent for such use.
SECTION 1. APPOINTMENT AS AGENT.
(a) APPOINTMENT. Subject to the terms and conditions stated herein and
subject to the reservation by the Company of the right to sell Notes directly on
its own behalf, the Company hereby agrees that Notes will be sold to or through
the Agent. The Agent is authorized to engage the services of any other broker
or dealer in connection with the offer or sale of the Notes purchased by the
Agent as principal for resale to others but is not authorized to appoint
sub-agents. In connection with sales by the Agent of Notes purchased by the
Agent as principal to other brokers or dealers, the Agent may allow any portion
of the discount it has received in connection with such purchase from the
Company to such brokers or dealers. The Company agrees that, during the period
the Agent is acting as the Company's agent hereunder, unless otherwise agreed,
the Company will not contact or solicit potential investors to purchase the
Notes and will not appoint other agents to act on its behalf, or to assist it,
in the placement of the Notes.
(b) SALE OF NOTES. The Company shall not sell or approve the solicitation
of purchases of Notes in excess of the amount which shall be authorized by the
Company from time to time or in excess of the principal amount of Notes
registered pursuant to the Registration Statement. The Agent will have no
responsibility for maintaining records with respect to the aggregate principal
amount of Notes sold, or of otherwise monitoring the availability of Notes for
sale, under the Registration Statement.
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<PAGE>
(c) PURCHASES AS PRINCIPAL. The Agent shall not have any obligation to
purchase Notes from the Company as principal, but the Agent may agree from time
to time to purchase Notes as principal. Any such purchase of Notes by the Agent
as principal shall be made in accordance with Section 3(a) hereof.
(d) SOLICITATIONS AS AGENT. If agreed upon by the Agent and the Company,
the Agent, acting solely as agent for the Company and not as principal, will
solicit purchases of the Notes. The Agent will communicate to the Company,
orally, each offer to purchase Notes solicited by such Agent on an agency basis,
other than those offers rejected by the Agent. The Agent shall have the right,
in its discretion reasonably exercised, to reject any proposed purchase of
Notes, as a whole or in part, and any such rejection shall not be deemed a
breach of the Agent's agreement contained herein. The Company may accept or
reject any proposed purchase of Notes, in whole or in part. The Agent shall
make reasonable efforts to assist the Company in obtaining performance by each
purchaser whose offer to purchase Notes has been solicited by the Agent and
accepted by the Company. The Agent shall not have any liability to the Company
in the event any such agency purchase is not consummated for any reason. If the
Company shall default on its obligation to deliver Notes to a purchaser whose
offer it has accepted, the Company shall (i) hold the Agent harmless against any
loss, claim or damage arising from or as a result of such default by the Company
and (ii) notwithstanding such default, pay to the Agent any commission to which
it would be entitled in connection with such sale.
(e) RELIANCE. The Company and the Agent agree that any Notes purchased by
the Agent shall be purchased, and any Notes the placement of which the Agent
arranges shall be placed by the Agent, in reliance on the representations,
warranties, covenants and agreements of the Company contained herein and on the
terms and conditions and in the manner provided herein.
(f) ADDITIONAL AGENTS. Notwithstanding anything to the contrary contained
herein, the Company may authorize any other person, partnership or corporation
(an "Additional Agent") to act as its agent to solicit offers for the purchase
of all or part of the Notes of the Company upon thirty days' prior notice to the
Agent; provided, however, that any Additional Agent shall execute this Agreement
and become a party hereto and thereafter the term Agent as used in this
Agreement shall mean the Agent and such Additional Agent. At such time, the
Additional Agent shall specify its requirements for the delivery of
certificates, letters and opinions as are set forth in Section 5 hereof.
SECTION 2. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants to the Agent as of the date
hereof, as of the date of each acceptance by the Company of an offer for the
purchase of Notes (whether to the Agent as principal or through the Agent as
agent), as of the date of each delivery of Notes (whether to the Agent as
principal or through the Agent as agent; the date of each such delivery to the
Agent as principal being hereafter referred to as a "Settlement Date"), and as
of any time that the Registration Statement or the Prospectus shall be amended
or supplemented or there is filed with the SEC any document incorporated by
reference into the Prospectus (each of the times referenced above being referred
to herein as a "Representation Date") as follows:
(i) DUE INCORPORATION AND QUALIFICATION. The Company has
been duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware, with corporate power and
authority to conduct its business as described in the Prospectus with only
such exceptions as are not material to the business of the Company and its
subsidiaries considered as a whole.
3
<PAGE>
(ii) REGISTRATION STATEMENT AND PROSPECTUS. At the time the
Registration Statement became effective, the Registration Statement and the
Prospectus complied, and as of each applicable Representation Date will
comply, in all material respects with the requirements of the 1933 Act and
the 1933 Act Regulations and the 1939 Act and the rules and regulations of
the SEC promulgated thereunder. The Registration Statement, at the time
it became effective, did not, and at each time thereafter at which any
amendment to the Registration Statement becomes effective or any Annual
Report on Form 10-K is filed by the Company with the SEC and as of each
Representation Date, 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 not misleading. The Prospectus,
at the time the Registration Statement became effective did not, as of the
date hereof does not, and as of each Representation Date will not, include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; PROVIDED,
HOWEVER, that the representations and warranties in this subsection shall
not apply to statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by the Agent expressly for use in the
Registration Statement or Prospectus.
(iii) INCORPORATED DOCUMENTS. The documents incorporated by
reference in the Prospectus, at the time they were or hereafter are filed
with the SEC, complied or when so filed will comply, as the case may be, in
all material respects with the requirements of the 1934 Act and the rules
and regulations promulgated thereunder (the "1934 Act Regulations"), and,
when read together and with the other information in the Prospectus, at the
time the Registration Statement and any amendments thereto became or become
effective under the 1933 Act and at each Representation Date, did not and
will not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under which they
were or are made, not misleading.
(iv) FINANCIAL STATEMENTS. The financial statements and any
supporting schedules of the Company and its consolidated subsidiaries
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 consolidated results of their operations for the periods specified;
and, except as stated therein, said financial statements have been prepared
in conformity with generally accepted accounting principles in the United
States applied on a consistent basis; and the supporting schedules included
in the Registration Statement present fairly the information required to be
stated therein.
(v) AUTHORIZATION AND VALIDITY OF THIS AGREEMENT, THE
INDENTURE AND THE NOTES. This Agreement has been duly authorized, executed
and delivered by the Company and, upon execution and delivery by the Agent,
will be a valid and legally binding agreement of the Company; the Indenture
has been duly authorized, executed and delivered by the Company and, upon
execution and delivery by the Trustee, will be a
4
<PAGE>
valid and legally binding obligation of the Company enforceable in
accordance with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws relating
to or affecting enforcement of creditors' rights generally or by general
equity principles, and except further as enforcement thereof may be limited
by (i) requirements that a claim with respect to any Notes denominated
other than in U.S. dollars (or a foreign currency or currency unit judgment
in respect of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law or (ii)
governmental authority to limit, delay or prohibit the making of payments
outside the United States; the Notes have been duly and validly authorized
for issuance, offer and sale pursuant to this Agreement and, when issued,
authenticated and delivered pursuant to the provisions of this Agreement
and the Indenture against payment of the consideration therefor specified
in the Prospectus or agreed upon pursuant to the provisions of this Agree-
ment, the Notes will constitute valid and legally binding obligations of
the Company enforceable in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting enforce-
ment of creditors' rights generally or by general equity principles, and
except further as enforcement thereof may be limited by (i) requirements
that a claim with respect to any Notes denominated other than in U.S.
dollars (or a foreign currency or currency unit judgment in respect of such
claim) be converted into U.S. dollars at a rate of exchange prevailing on a
date determined pursuant to applicable law or (ii) governmental authority
to limit, delay or prohibit the making of payments outside the United
States; the Notes and the Indenture will be substantially in the form
heretofore delivered to the Agent and conform in all material respects to
all statements relating thereto contained in the Prospectus; and each
holder of Notes will be entitled to the benefits of the Indenture.
(vi) MATERIAL CHANGES OR MATERIAL TRANSACTIONS. The Company
and its subsidiaries considered as a whole have not sustained since the
date of the latest 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 or decree, otherwise than as set forth, incorporated by
reference or contemplated in the Prospectus; and, since the respective
dates as of which information is given in the Registration Statement and
the Prospectus, except as otherwise stated or incorporated therein, there
has not been any change in the capital stock (other than upon exercise of
outstanding stock options or upon conversion of convertible securities
outstanding on the date of the most recent balance sheet included in the
Prospectus or pursuant to the Company's employee stock ownership plan or
pursuant to the Company's employee stock purchase plans or the Company's
employee savings and profit sharing plan), any significant increase in the
long-term debt of the Company and its subsidiaries taken as a whole, or any
material adverse change, or any development which the Company has
reasonable cause to believe will involve a prospective material adverse
change, in or affecting the general affairs, management, consolidated
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries considered as a whole, or, other than the
Company's regular quarterly dividend, any dividend or
5
<PAGE>
distribution of any kind declared, paid or made by the Company on any class
of its capital stock.
(vii) NO DEFAULTS; REGULATORY APPROVALS. The execution,
delivery and performance of this Agreement and the Indenture and the
consummation of the transactions contemplated herein and therein have been
duly authorized by all necessary corporate action and will not conflict
with or constitute a breach of, or default under, any material contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which the Company is a party or by which the Company is
bound, nor will such action result in any violation of the provisions of
the charter or by-laws of the Company or any applicable law, administrative
regulation or administrative or court order or decree; and no consent,
approval, authorization, order or decree of any court or governmental
agency or body is required for the consummation by the Company of the
transactions contemplated by this Agreement, the Indenture or in connection
with the sale of Notes hereunder, except such as have been obtained or
rendered, as the case may be, or as may be required under state securities
laws.
(viii) LEGAL PROCEEDINGS; CONTRACTS. Other than (a) as set
forth, incorporated by reference, or contemplated in the Prospectus and (b)
litigation incident to the kind of business conducted by the Company and
its subsidiaries, which in the case of those items in (b) individually and
in the aggregate is not material to the Company and its subsidiaries
considered as a whole, there are no legal or governmental proceedings
pending to which the Company and its subsidiaries is a party or of which
any property of the Company or any of its subsidiaries is the subject
which, if determined adversely to the Company or its subsidiaries, the
Company has reasonable cause to believe would individually or in the
aggregate have a material adverse effect on the consolidated financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries considered as a whole; and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others; and there are no
contracts or documents of the Company or any of its subsidiaries which are
required to be filed as exhibits to the Registration Statement by the 1933
Act or by the 1933 Act Regulations which have not been so filed.
(ix) DOING BUSINESS WITH CUBA. The Company has complied and
will comply with the provisions of Florida H.B. 1771, codified as Section
517.075 of the Florida Statutes, 1987, as amended, and all regulations
promulgated thereunder relating to issuers doing business in Cuba.
(xiv) COMMODITY EXCHANGE ACT. The Notes, when issued,
authenticated and delivered pursuant to the provisions of this Agreement and the
Indenture, will be excluded or exempted under the provisions of the Commodity
Exchange Act.
(b) ADDITIONAL CERTIFICATIONS. Any certificate signed by any director or
officer of the Company and delivered to the Agent or to counsel for the Agent in
connection with an offering of Notes through the Agent as agent or the sale of
Notes to the Agent as principal shall be
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<PAGE>
deemed a representation and warranty by the Company to the Agent as to the
matters covered thereby on the date of such certificate and at each
Representation Date subsequent thereto.
SECTION 3. PURCHASES AS PRINCIPAL; SOLICITATIONS AS AGENT.
(a) PURCHASES AS PRINCIPAL. Unless otherwise agreed by the Agent and the
Company, Notes may be purchased by the Agent as principal. Such purchases shall
be made in accordance with terms agreed upon by the Agent and the Company (which
terms, unless otherwise agreed, shall be agreed upon orally, with written
confirmation prepared by the Agent and mailed to the Company). The Agent's
commitment to purchase Notes as principal shall be deemed to have been made on
the basis of the representations and warranties of the Company herein contained
and shall be subject to the terms and conditions herein set forth. Each
purchase of Notes, unless otherwise agreed, shall be at a discount from the
principal amount of each such Note equivalent to the applicable commission set
forth in Schedule A hereto. The Agent may engage the services of any other
broker or dealer in connection with the resale of the Notes purchased as
principal and may allow any portion of the discount received in connection with
such purchases from the Company to such brokers and dealers. At the time of
each purchase of Notes by the Agent as principal, the Agent shall specify the
requirements for the stand-off agreement, officer's certificate, opinion of
counsel and comfort letter pursuant to Sections 4(k), 7(b), 7(c) and 7(d)
hereof.
(b) SOLICITATIONS AS AGENT. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, when agreed by the Company and the Agent, the Agent, as an agent of the
Company, will use its reasonable efforts to solicit offers to purchase the Notes
upon the terms and conditions set forth herein and in the Prospectus. All Notes
sold through the Agent as agent will be sold at 100% of their principal amount
unless otherwise agreed to by the Company and the Agent.
The Company reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Notes through the Agent, as agent, commencing
at any time for any period of time or permanently. Upon receipt of instructions
from the Company, the Agent will forthwith suspend solicitation of purchases
from the Company until such time as the Company has advised the Agent that such
solicitation may be resumed.
The Company agrees to pay the Agent a commission, in the form of a
discount, equal to the applicable percentage of the principal amount of each
Note sold by the Company as a result of a solicitation made by the Agent as set
forth in Schedule A hereto.
(c) ADMINISTRATIVE PROCEDURES. The purchase price, interest rate or
formula, maturity date and other terms of the Notes (as applicable) specified in
Exhibit A hereto shall be agreed upon by the Company and the Agent and set forth
in a pricing supplement to the Prospectus to be prepared in connection with each
sale of Notes. Except as may be otherwise provided in such supplement to the
Prospectus, the Notes will be issued in denominations of U.S. $1,000 or any
larger amount that is an integral multiple of U.S. $1,000. Administrative
procedures with respect to the sale of Notes shall be agreed upon from time to
time by the Agent, the
7
<PAGE>
Company and the Trustee (the "Procedures"). The Agent and the Company agree to
perform the respective duties and obligations specifically provided to be
performed by them in the Procedures.
SECTION 4. COVENANTS OF THE COMPANY.
The Company covenants with the Agent as follows:
(a) NOTICE OF CERTAIN EVENTS. The Company will notify the Agent promptly,
and confirm the notice in writing (i) of the effectiveness of any amendment to
the Registration Statement, (ii) of the transmittal to the SEC for filing of any
supplement to the Prospectus or any document to be filed pursuant to the 1934
Act which will be incorporated by reference into the Registration Statement or
the Prospectus, (iii) of the receipt of any comments from the SEC with respect
to the Registration Statement, the Prospectus or any Prospectus Supplement, or
the documents incorporated therein, (iv) of any request by the SEC for any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus, or the documents incorporated therein, or for additional
information, (v) of the suspension of the qualification of the Notes for
offering or sale in any jurisdiction, or threatening of any proceedings for any
such purpose, and (vi) of the issuance by the SEC of any stop order suspending
the effectiveness of the Registration Statement or any order preventing or
suspending the use of the Prospectus or any preliminary prospectus supplement,
or the initiation of any proceedings for any such purpose. The Company will
make every reasonable effort to prevent the issuance of any stop order or any
order preventing or suspending the use of the Prospectus or any preliminary
prospectus supplement or suspending such qualification and, in the event of the
issuance of a stop order or any order preventing or suspending the use of the
Prospectus or any preliminary prospectus supplement or suspending such
qualification, to obtain the lifting thereof at the earliest possible moment.
(b) NOTICE OF CERTAIN PROPOSED FILINGS. The Company will give the Agent
advance notice of its intention to file or prepare any additional registration
statement with respect to the registration of additional Notes, any amendment to
the Registration Statement (including any post effective amendment) or any
amendment or supplement to the Prospectus (other than an amendment or supplement
providing solely for a change in the interest rates of Notes), whether by the
filing of documents pursuant to the 1934 Act, the 1933 Act or otherwise, and
will furnish the Agent with copies of any such amendment or supplement or other
documents proposed to be filed or prepared a reasonable time in advance of such
proposed filing, preparation or use, as the case may be, and will not file any
such amendment or supplement or other documents or use any prospectus to which
the Agent or counsel for the Agent shall reasonably object.
(c) COPIES OF THE REGISTRATION STATEMENT AND THE PROSPECTUS. The Company
will deliver to the Agent as many signed and conformed copies of the
Registration Statement (as originally filed) and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference in the Prospectus) as the Agent may
reasonably request. The Company will furnish to the Agent as many copies of the
Prospectus (as amended or supplemented) as the Agent shall reasonably request so
long as the
8
<PAGE>
Agent is required to deliver a Prospectus in connection with sales or
solicitations of offers to purchase the Notes.
(d) PREPARATION OF PRICING SUPPLEMENTS. The Company will prepare, with
respect to any Notes to be sold through or to the Agent pursuant to this
Agreement, a Pricing Supplement with respect to such Notes in a form previously
approved by the Agent and will file such Pricing Supplement pursuant to
Rule 424(b) under the 1933 Act not later than the close of business of the SEC
on the fifth business day after the date on which such Pricing Supplement is
first used.
(e) REVISIONS OF PROSPECTUS -- MATERIAL CHANGES. Except as otherwise
provided in subsection (l) of this Section, if at any time during the term of
this Agreement any event shall occur or condition exist as a result of which it
is necessary, in the reasonable opinion of counsel for the Agent or counsel for
the Company, to amend or supplement the Prospectus in order that the Prospectus
will not include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein not misleading
in the light of the circumstances existing at the time the Prospectus is
delivered to a purchaser, or if it shall be necessary, in the reasonable opinion
of either such counsel, to amend or supplement the Registration Statement or the
Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, immediate notice shall be given, and confirmed in writing, to
the Agent to cease the solicitation of offers to purchase the Notes in the
Agent's capacity as agent and to cease sales of any Notes the Agent may then own
as principal, and the Company will forthwith amend or supplement the
Registration Statement and the Prospectus (in form and substance satisfactory to
counsel for the Agent), whether by filing documents pursuant to the 1934 Act,
the 1933 Act or otherwise, as may be necessary to correct such untrue statement
or omission or to make the Registration Statement and Prospectus comply with
such requirements and the Company will furnish to the Agent a reasonable number
of copies of such amendment or supplement.
(f) PROSPECTUS REVISIONS -- PERIODIC FINANCIAL INFORMATION. Except as
otherwise provided in subsection (l) of this Section, on or prior to the date
on which there shall be released to the general public interim financial
statement information related to the Company with respect to each of the first
three quarters of any fiscal year or preliminary financial statement
information with respect to any fiscal year, the Company shall furnish such
information to the Agent, confirmed in writing, and shall cause the Prospectus
to be amended or supplemented to include or incorporate by reference financial
information with respect thereto and corresponding information for the
comparable period of the preceding fiscal year, as well as such other
information and explanations as shall be necessary for an understanding
thereof or as shall be required by the 1933 Act or the 1933 Act Regulations.
(g) PROSPECTUS REVISIONS -- AUDITED FINANCIAL INFORMATION. Except as
otherwise provided in subsection (l) of this Section, on or prior to the date
on which there shall be released to the general public financial information
included in or derived from the audited financial statements of the Company for
the preceding fiscal year, the Company shall cause the Registration Statement
and the Prospectus to be amended, whether by the filing of documents pursuant to
the 1934 Act, the 1933 Act or otherwise, to include or incorporate by reference
such
9
<PAGE>
audited financial statements and the report or reports, and consent or consents
to such inclusion or incorporation by reference, of the independent accountants
with respect thereto, as well as such other information and explanations as
shall be necessary for an understanding of such financial statements or as shall
be required by the 1933 Act or the 1933 Act Regulations.
(h) EARNINGS STATEMENTS. The Company will make generally available to its
security holders as soon as practicable, but not later than 90 days after the
close of the period covered thereby, earnings statements (in form complying with
the provisions of Rule 158 under the 1933 Act) covering a twelve month period
beginning, in each case, not later than the first day of the Company's fiscal
quarter next following the "effective date" (as defined in such Rule 158) of the
Registration Statement with respect to each sale of Notes.
(i) BLUE SKY QUALIFICATIONS. The Company will endeavor, in cooperation
with the Agent, to qualify the Notes for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States as
the Agent may designate, and will maintain such qualifications in effect for as
long as may be required for the distribution of the Notes; provided, however,
that the Company shall not be obligated to file any general consent to service
of process or to qualify as a foreign corporation in any jurisdiction in which
it is not so qualified. The Company will file such statements and reports as
may be required by the laws of each jurisdiction in which the Notes have been
qualified as above provided.
(j) 1934 ACT FILINGS. The Company, during the period when the Prospectus
is required to be delivered under the 1933 Act, will file promptly all reports
and any definitive proxy information statements required to be filed by the
Company with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934
Act.
(k) STAND-OFF AGREEMENT. If specified by the Agent in connection with a
purchase by it of Notes as principal, between the date of the agreement to
purchase such Notes and the Settlement Date with respect to such purchase, the
Company will not, without the Agent's prior written consent, offer or sell, or
enter into any agreement to sell, any debt securities of the Company (other than
the Notes that are to be sold pursuant to such agreement and commercial paper in
the ordinary course of business).
(l) SUSPENSION OF CERTAIN OBLIGATIONS. The Company shall not be required
to comply with the provisions of subsections (e), (f) or (g) of this Section
during any period from the time (i) the Agent shall have suspended solicitation
of purchases of the Notes in its capacity as agent pursuant to a request from
the Company and (ii) the Agent shall not then hold any Notes purchased as
principal pursuant hereto, until the time the Company shall determine that
solicitation of purchases of the Notes should be resumed or the Agent shall
subsequently purchase Notes from the Company as principal.
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SECTION 5. CONDITIONS OF OBLIGATIONS.
The obligations of the Agent to purchase Notes as principal and to solicit
offers to purchase the Notes as agent of the Company, and the obligations of any
purchasers of the Notes sold through the Agent as agent, will be subject to the
accuracy of the representations and warranties on the part of the Company herein
and to the accuracy of the statements of the Company's officers made in any
certificate furnished pursuant to the provisions hereof, to the performance and
observance by the Company of all its covenants and agreements herein contained
and to the following additional conditions precedent:
(a) LEGAL OPINIONS. On the date hereof, the Agent shall have received the
following legal opinions, dated as of the date hereof and in form and substance
satisfactory to the Agent or counsel to the Agent:
(1) OPINION OF COMPANY COUNSEL. The opinion of James K. Markey,
Senior Corporate Counsel of the Company, or another attorney employed by
the Company who is acceptable to the Agent, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware.
(ii) The Company has corporate power and authority to con-
duct its business as described in the Prospectus.
(iii) The authorized capitalization of the Company is as set
forth or incorporated by reference in the Prospectus and all of the
issued and outstanding shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and
non-assessable.
(iv) This Agreement has been duly and validly authorized,
executed and delivered by the Company.
(v) The Indenture has been duly and validly authorized,
executed and delivered by the parties thereto and constitutes a legal,
valid and binding agreement of the Company, enforceable in accordance
with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting enforcement of creditors' rights generally,
or by general equity principles, and except further as enforcement
thereof may be limited by (A) requirements that a claim with respect
to any Notes denominated other than in U.S. dollars (or a foreign
currency or foreign currency unit judgment in respect of such claim)
be converted into United States dollars at a rate of exchange pre-
vailing on a date determined pursuant to applicable law or (B)
governmental authority to limit, delay or prohibit the making of
payments in foreign currency or currency units or payments outside the
United States.
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(vi) The Notes, in the form(s) certified by the Company as
of the date hereof, have been duly authorized for issuance, offer and
sale pursuant to this Agreement and, when issued, authenticated and
delivered pursuant to the provisions of this Agreement and the
Indenture against payment of the consideration therefor, will
constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting enforcement of
creditors' rights generally or by general equity principles, and
except further as enforcement thereof may be limited by (A)
requirements that a claim with respect to any Notes denominated other
than in U.S. dollars (or a foreign currency or foreign currency unit
judgment in respect of such claim) be converted into United States
dollars at a rate of exchange prevailing on a date determined pursuant
to applicable law or (B) governmental authority to limit, delay or
prohibit the making of payments in foreign currency or currency units
or payments outside the United States, and each holder of Notes will
be entitled to the benefits of the Indenture.
(vii) The statements in the Prospectus and the applicable
Prospectus Supplement under the caption "Description of Notes" (or a
similar heading or headings), to the extent that they constitute
matters of law or legal conclusions, have been reviewed by such
counsel and are correct in all material respects.
(viii) The Indenture is qualified under the 1939 Act.
(ix) The Registration Statement is effective under the 1933
Act and, to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has been
issued under the 1933 Act or proceedings therefor initiated or
threatened by the SEC.
(x) At the time the Registration Statement became effective
and at each Representation Date, the Registration Statement and the
Prospectus (other than the financial statements and other financial
data and supporting schedules included therein, as to which no opinion
need be rendered) complied as to form in all material respects with
the applicable requirements of the 1933 Act, the 1939 Act and the
regulations under each of those Acts.
(xi) The Notes, in the form(s) certified by the Company as
of the date hereof, when issued, authenticated and delivered pursuant
to the provisions of this Agreement and the Indenture, will be
excluded or exempted from the provisions of the Commodity Exchange
Act, assuming the accuracy of any certifications of factual matters
furnished by the Agent to the Company in connection with the issuance
thereof.
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(xii) To the best of such counsel's knowledge, other than as
set forth, incorporated by reference or contemplated in the
Prospectus, there are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which
any property of the Company or any of its subsidiaries is the subject,
other than litigation incident to the kind of business conducted by
the Company and its subsidiaries, which litigation incident to the
Company's business individually and in the aggregate is not material
to the Company and its subsidiaries considered as a whole; and, to the
best of such counsel's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by others.
(xiii) The execution and delivery of this Agreement or of the
Indenture, or the consummation by the Company of the transactions con-
templated herein and therein have been duly authorized by all
necessary corporate action and will not conflict with or constitute a
breach of, or default under, any contract, indenture, mortgage, loan
agreement, note, lease or other instrument known to such counsel and
to which the Company is a party or by which the Company is bound, or
any law, administrative regulation or administrative or court order or
decree known to such counsel to be applicable to the Company of any
court or governmental agency, authority or body or any arbitrator
having jurisdiction over the Company; nor will such action result in
any violation of the provisions of the charter or by-laws of the
Company.
(xiv) To the best of such counsel's knowledge and
information, there are no contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments or documents required
to be described or referred to in the Prospectus or to be filed as
exhibits to the Registration Statement other than those described or
referred to therein or filed or incorporated by reference as exhibits
thereto and the descriptions thereof or references thereto are
correct.
(xv) No consent, approval, authorization, order or decree of
any court or governmental agency or body is required for the consum-
mation by the Company of the transactions contemplated by this
Agreement, the Indenture or in connection with the sale of Notes
hereunder, except such as have been obtained or rendered, as the case
may be, or as may be required under state securities laws.
(xvi) Each document filed pursuant to the 1934 Act and
incorporated by reference in the Prospectus (other than the financial
statements and other financial data and supporting schedules included
therein, as to which no opinion need be rendered) complied when filed
as to form in all material respects with the 1934 Act and the 1934 Act
Regulations thereunder.
(xvii) The information contained in the Prospectus and the
applicable Prospectus Supplement under the caption "Description of
Notes" (or a similar
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heading or headings), to the extent that it constitutes matters of law
or legal conclusions, has been reviewed by such counsel and is correct
in all material respects.
(2) OPINION OF COUNSEL TO THE AGENT. The opinion of _______________,
counsel to the Agent, covering the matters referred to in subparagraph (1)
under the subheadings (i) and (iv) to (x), inclusive, above.
(3) In giving their opinions required by subsection (a)(1) and (a)(2)
of this Section, Mr. Markey and ____________________ shall each
additionally state that nothing has come to their attention that has caused
them to believe that the Registration Statement, at the time it became
effective or, if an amendment to the Registration Statement or an Annual
Report on Form 10-K has been filed by the Company with the SEC subsequent
to the effectiveness of the Registration Statement (in each case, other
than the financial statements, financial data and schedules included
therein, as to which such counsel need express no belief), then at the time
such amendment became effective or at the time of the most recent such
filing, as the case may be, or at the date hereof, contained or contains an
untrue statement of a material fact or omitted or omits to state a material
fact required to be stated therein or necessary in order to make the state-
ments therein not misleading or that the Prospectus (other than the
financial statements, financial data and schedules included therein, as to
which such counsel need express no belief), as amended or supplemented at
the date hereof, or (if such opinion is being delivered in connection with
the purchase of Notes by the Agent as principal pursuant to Section 7(c)
hereof) at the date of any agreement by the Agent to purchase Notes as
principal and at the Settlement Date with respect thereto, as the case may
be, included or includes an untrue statement of a material fact or omitted
or omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(b) OFFICER'S CERTIFICATE. At the date hereof, the Agent shall have
received a certificate of the Vice Chairman and Chief Executive Officer, the
President or another senior officer acceptable to the Agent of the Company, and
of the Chief Financial Officer, Controller, Treasurer or Assistant Treasurer of
the Company, in form and substance satisfactory to the Agent or counsel to the
Agent and dated as of the date hereof, to the effect that (i) the Company and
its subsidiaries considered as a whole shall have not sustained since the date
of the latest financial statements included or incorporated by reference in the
Prospectus any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as set
forth, incorporated by reference or contemplated in the Prospectus, (ii) since
the respective dates as of which information is given in the Registration
Statement and the Prospectus or since the date of any agreement by the Agent to
purchase Notes as principal, there shall not have been any change in the capital
stock (other than upon exercise of outstanding stock options or upon conversion
of convertible securities outstanding at the date of the most recent balance
sheet included in the Prospectus or pursuant to the Company's employee stock
ownership plan or pursuant to the Company's employee stock purchase plans or the
Company's
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employee savings and profit sharing plan) or any significant increase in long-
term debt of the Company and its subsidiaries considered as a whole or any
change, or any development involving a prospective change, in or affecting the
general affairs, management, financial position, stockholders' equity or results
of operations of the Company and its subsidiaries, otherwise than as set forth
or incorporated by reference or contemplated in the Prospectus, (iii) no
downgrading shall have occurred in the rating accorded the Company's debt
securities by any "nationally recognized statistical rating organization," as
the term is defined by the SEC for purposes of Rule 436(G)(2) under the 1933 Act
("Rating Organization") and no such organization shall have publicly announced
that it has under surveillance or review, with possible negative implications,
its rating of any of the Company's debt securities, (iv) the representations and
warranties of the Company contained in Section 2 hereof are true and correct
with the same force and effect as though expressly made at and as of the date of
such certificate, (v) the Company has performed or complied with all agreements
and satisfied all conditions on its part to be performed or satisfied at or
prior to the date of such certificate, and (vi) that no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been initiated or threatened by the SEC.
(c) COMFORT LETTER. On the date hereof, the Agent shall have received a
letter from KPMG Peat Marwick, dated as of the date hereof and in form and
substance satisfactory to the Agent, to the effect that:
(i) They are independent public accountants with respect to
the Company and its subsidiaries within the meaning of the 1933 Act and the
1933 Act Regulations.
(ii) In their opinion, the consolidated financial statements
and supporting schedules of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement or the Prospectus
comply as to form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations and the 1934 Act
and the 1934 Act Regulations.
(iii) Based upon limited procedures set forth in detail in
such letter, nothing has come to their attention which causes them to
believe that (A) the unaudited financial statements and supporting
schedules of the Company and its subsidiaries included in or incorporated
by reference into the Registration Statement or the Prospectus do not
comply as to form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations or the 1934 Act
and the 1934 Act Regulations, as the case may be, or are not presented in
conformity with generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial statements
included in or incorporated by reference into the Registration Statement or
the Prospectus or (B) at a specified date not more than five days prior to
the date of such letter, there has been any change in the capital stock of
the Company (other than upon exercise of outstanding stock options or upon
conversion of convertible securities outstanding on the date of the most
recent balance sheet included in or incorporated by reference into the
Prospectus or pursuant to the Company's employee stock ownership plan or
pursuant to the Company's stock purchase plans or the
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Company's employee savings and profit sharing plan) or any increase in the
consolidated long term debt of the Company and its subsidiaries or any
decrease in consolidated net current assets or net assets as compared with
the amounts shown in the most recent balance sheet included in or
incorporated by reference into the Prospectus or, during the period from
the date of the most recent financial statements included in or
incorporated by reference into the Prospectus to a specified date not more
than five days prior to the date of such letter, there were any decreases,
as compared with the corresponding period in the preceding year, in
consolidated net sales, net earnings or net earnings per share of the
Company and its subsidiaries, except in all instances for changes,
increases or decreases which the Registration Statement and the Prospectus
disclose have occurred or may occur.
(iv) In addition to the examination referred to in their
report included or incorporated by reference in the Registration Statement
and the Prospectus, and the limited procedures referred to in clause (iii)
above, they have carried out certain other specified procedures, not
constituting an audit, with respect to certain amounts, percentages and
financial information which are included in or incorporated by reference
into the Registration Statement and Prospectus and which are specified by
the Agent, and have found such amounts, percentages and financial
information to be in agreement with the relevant accounting, financial and
other records of the Company and its subsidiaries identified in such
letter.
(d) OTHER DOCUMENTS. On the date hereof and on each Settlement Date,
counsel to the Agent shall have been furnished with such documents and opinions
as such counsel may reasonably require for the purpose of enabling such counsel
to pass upon the issuance and sale of Notes as herein contemplated and related
proceedings, or in order to evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection with
the issuance and sale of Notes as herein contemplated shall be satisfactory in
form and substance to the Agent and to counsel to the Agent.
If any condition specified in this Section 5 shall not have been fulfilled
when and as required to be fulfilled, this Agreement (or, at the option of the
Agent, any applicable agreement by the Agent to purchase Notes as principal) may
be terminated by the Agent by notice to the Company at any time and any such
termination shall be without liability of any party to any other party, except
that the covenant regarding provision of an earnings statement set forth in
Section 4(h) hereof, the provisions concerning payment of expenses under
Section 10 hereof, the indemnity and contribution agreement set forth in
Sections 8 and 9 hereof, the provisions concerning the representations,
warranties and agreements to survive delivery set forth in Section 11 hereof,
the provisions relating to governing law set forth in Section 14 and the
provisions set forth under "Parties" of Section 15 hereof shall remain in
effect.
SECTION 6. DELIVERY OF AND PAYMENT FOR NOTES SOLD THROUGH THE AGENT.
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Delivery of Notes sold through the Agent as agent shall be made by the
Company to the Agent for the account of any purchaser only against payment
therefor in immediately available funds. In the event that a purchaser shall
fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, the Agent shall promptly notify the Company and deliver
the Note to the Company, and, if the Agent has theretofore paid the Company for
such Note, the Company will promptly return such funds to the Agent. If such
failure occurred for any reason other than default by the Agent in the
performance of its obligations hereunder, the Company will reimburse the Agent
on an equitable basis for its loss of the use of the funds for the period such
funds were credited to the Company's account.
SECTION 7. ADDITIONAL COVENANTS OF THE COMPANY.
The Company covenants and agrees with the Agent that:
(a) REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. Each acceptance by
it of an offer for the purchase of Notes (whether to the Agent as principal or
through the Agent as agent), and each delivery of Notes to the Agent (whether to
the Agent as principal or through the Agent as agent), shall be deemed to be an
affirmation that the representations and warranties of the Company contained in
this Agreement and in any certificate theretofore delivered to the Agent
pursuant hereto are true and correct at the time of such acceptance or sale, as
the case may be, and an undertaking that such representations and warranties
will be true and correct at the time of delivery to the purchaser or its agent,
or to the Agent, of the Note or Notes relating to such acceptance or sale, as
the case may be, as though made at and as of each such time (and it is under-
stood that such representations and warranties shall relate to the Registration
Statement and Prospectus as amended and supplemented to each such time).
(b) SUBSEQUENT DELIVERY OF CERTIFICATES. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for a change in the
interest rates of Notes or similar changes, and, unless the Agent shall
otherwise specify, other than by an amendment or supplement which relates
exclusively to an offering of debt securities other than the Notes), (ii) there
is filed with the SEC any document incorporated by reference into the Prospectus
(other than any Current Report on Form 8-K relating exclusively to the issuance
of debt securities under the Registration Statement, unless the Agent shall
otherwise specify), (iii) the Company sells Notes to the Agent as principal or
(iv) if the Company issues and sells Notes in a form not previously certified to
the Agent by the Company, the Company shall furnish or cause to be furnished to
the Agent forthwith a certificate dated the date of filing with the SEC of such
supplement or document, the date of effectiveness of such amendment, or the date
of such sale, as the case may be, in form satisfactory to the Agent to the
effect that the statements contained in the certificate referred to in Section
5(b) hereof which were last furnished to the Agent are true and correct at the
time of such amendment, supplement, filing or sale, as the case may be, as
though made at and as of such time (except that such statements shall be deemed
to relate to the Registration Statement and the Prospectus as amended and
supplemented to such time) or, in lieu of such certificate, a certificate of the
same tenor as the certificate referred to in said Section 5(b), modified as
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necessary to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such certificate.
(c) SUBSEQUENT DELIVERY OF LEGAL OPINIONS. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for a change in the interest
rates of the Notes or similar changes or solely for the inclusion of additional
financial information, and, unless the Agent shall otherwise specify, other than
by an amendment or supplement which relates exclusively to an offering of debt
securities other than the Notes), (ii) there is filed with the SEC any document
incorporated by reference into the Prospectus (other than any Current Report on
Form 8-K, unless the Agent shall otherwise specify), (iii) the Company sells
Notes to the Agent as principal or (iv) if the Company issues and sells Notes in
a form not previously certified to the Agent by the Company, the Company shall
furnish or cause to be furnished forthwith to the Agent and to counsel to the
Agent a written opinion of James K. Markey, Senior Corporate Counsel to the
Company, or other counsel satisfactory to the Agent dated the date of filing
with the SEC of such supplement or document, the date of effectiveness of such
amendment, or the date of such sale, as the case may be, in form and substance
satisfactory to the Agent, of the same tenor as the opinion referred to in
Section 5(a)(1) hereof, but modified, as necessary, to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such opinion; or, in lieu of such opinion, counsel last
furnishing such opinion to the Agent shall furnish the Agent with a letter, in
form and substance satisfactory to the Agent or counsel to the Agent, to the
effect that the Agent may rely on such last opinion to the same extent as though
it was dated the date of such letter authorizing reliance (except that
statements in such last opinion shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of delivery
of such letter authorizing reliance).
(d) SUBSEQUENT DELIVERY OF COMFORT LETTERS. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented to
include additional financial information or there is filed with the SEC any
document incorporated by reference into the Prospectus which contains additional
financial information, or (ii) the Company sells Notes to the Agent as
principal, the Company shall cause KPMG Peat Marwick forthwith to furnish the
Agent a letter, dated the date of effectiveness of such amendment, supplement or
document with the SEC, or the date of such sale, as the case may be, in form
satisfactory to the Agent, of the same tenor as the portions of the letter
referred to in clauses (i) and (ii) of Section 5(c) hereof but modified to
relate to the Registration Statement and Prospectus, as amended and supplemented
to the date of such letter, and of the same general tenor as the portions of the
letter referred to in clauses (iii) and (iv) of said Section 5(c) with such
changes as may be necessary to reflect changes in the financial statements and
other information derived from the accounting records of the Company.
SECTION 8. INDEMNIFICATION.
(a) INDEMNIFICATION OF THE AGENT. The Company agrees to indemnify and
hold harmless the Agent and each person, if any, who controls the Agent within
the meaning of Section 15 of the 1933 Act as follows:
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(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus or the Prospectus (or any amendment or supplement,
including any preliminary prospectus supplement, thereto) or the omission
or alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid
in settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred,
(including the fees and disbursements of counsel chosen by the Agent)
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or (ii)
above.
provided, however, that this indemnity agreement does not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Agent expressly for use in the Registration Statement (or any amendment thereto)
or any preliminary prospectus or the Prospectus (or any amendment or supplement,
including any preliminary prospectus supplement, thereto); and further provided
that this indemnity agreement does not apply to any loss, liability, claim,
damage or expense arising out of any untrue statement or omission or alleged
untrue statement or omission made in a preliminary prospectus or preliminary
prospectus supplement, as the case may be, but eliminated or remedied in the
Prospectus if a copy of the Prospectus (excluding documents incorporated therein
by reference) was not delivered by you to the person asserting the claim arising
from such untrue statement or omission or such alleged untrue statement or
omission, at or prior to the time required by the 1933 Act.
(b) INDEMNIFICATION OF COMPANY. The Agent agrees to indemnify and hold
harmless the Company, its directors, each of the Company's officers who signed
the Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
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Registration Statement (or any amendment thereto) or any preliminary prospectus
or the Prospectus (or any amendment or supplement, including any preliminary
prospectus supplement, thereto) in reliance upon and in conformity with written
information furnished to the Company by the Agent expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement, including any preliminary
prospectus supplement, thereto).
(c) GENERAL. Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability which it may have otherwise than on account of this indemnity
agreement. In case any such action shall be brought against any indemnified
party and it shall notify the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and, after notice from the
indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal expenses of other counsel
or any other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs of
investigation. In no event shall the indemnifying parties be liable for the
fees and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances.
SECTION 9. CONTRIBUTION.
In order to provide for just and equitable contribution in circumstances in
which the indemnity agreement provided for in Section 8 hereof is for any reason
held to be unavailable to or insufficient to hold harmless the indemnified
parties although applicable in accordance with its terms, the Company and the
Agent shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement incurred by the
Company and the Agent, as incurred, in such proportions that the Agent is
responsible for that portion represented by the percentage that the total
commissions and underwriting discounts received by the Agent to the date of such
liability bears to the total sales price from the sale of Notes sold to or
through the Agent to the date of such liability, and the Company is responsible
for the balance; PROVIDED, HOWEVER, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section, each person, if any, who
controls the Agent within the meaning of Section 15 of the 1933 Act shall have
the same rights to contribution as the Agent, and each director of the Company,
each officer of the Company who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act shall have the same rights to contribution as the Company.
SECTION 10. PAYMENT OF EXPENSES.
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(a) The preparation, printing and filing of the Registration Statement and
all amendments thereto and the Prospectus and any amendments or supplements
thereto;
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(b) The preparation, copying, filing and reproduction of this Agreement;
(c) The preparation, printing, issuance and delivery of the Notes,
including any fees and expenses relating to the use of book-entry notes;
(d) The fees and disbursements of the Company's accountants and counsel,
of the Trustee and its counsel and, where applicable, of any Calculation Agent
or Exchange Rate Agent;
(e) The reasonable fees and disbursements of counsel to the Agent incurred
in connection with the establishment of the program relating to the Notes and
incurred from time to time in connection with the transactions contemplated
hereby;
(f) The qualification of the Notes under state securities laws in
accordance with the provisions of Section 4(i) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Agent in connection
therewith and in connection with the preparation of any Blue Sky Survey;
(g) The printing and delivery to the Agent in quantities as hereinabove
stated of copies of the Registration Statement as originally filed and of each
amendment thereto, of any preliminary prospectuses, and of the Prospectus and
any amendments or supplements (including any preliminary prospectus supplements)
thereto, and the delivery by the Agent of the Prospectus and any amendments or
supplements thereto in connection with solicitations or confirmations of sales
of the Notes;
(h) The preparation, printing, reproducing and delivery to the Agent of
copies of the Indenture and all supplements and amendments thereto;
(i) Any fees charged by rating agencies for the rating of the Notes;
(j) The fees and expenses incurred in connection with the listing of the
Notes on any securities exchange;
(k) The filing fees and expenses, if any, incurred with respect to any
filing with the National Association of Securities Dealers, Inc., including the
fees and disbursements of counsel for the Agent in connection with such review;
(l Any advertising and other out-of-pocket expenses of the Agent incurred
with the approval of the Company;
(m) The cost of providing any CUSIP or other identification numbers for
the Notes;
(n) The fees and expenses of any Depositary (as defined in the Indenture)
and any nominees thereof in connection with the Notes; and
21
<PAGE>
(o) All other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in this
section.
SECTION 11. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this Agreement
or in certificates of officers of the Company submitted pursuant hereto or
thereto, shall remain operative and in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of the Agent or any controlling person of the Agent, or by or on behalf of the
Company, and shall survive each delivery of and payment for any of the Notes.
SECTION 12. TERMINATION.
(a) TERMINATION OF THIS AGREEMENT. This Agreement (excluding any
agreement hereunder by the Agent to purchase Notes as principal) may be
terminated for any reason, at any time by either the Company or the Agent upon
the giving of 30 days' written notice of such termination to the other party
hereto.
(b) TERMINATION OF AGREEMENT TO PURCHASE NOTES AS PRINCIPAL. The Agent
may terminate any agreement hereunder by the Agent to purchase Notes as
principal, immediately upon notice to the Company, at any time prior to the
Settlement Date relating thereto (i) if (A) the Company and its subsidiaries
considered as a whole shall have sustained since the date of the latest
financial statements included or incorporated by reference in the Prospectus any
loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth,
incorporated by reference or contemplated in the Prospectus, and (B) since the
respective dates as of which information is given in the Registration Statement
and the Prospectus or since the date of any agreement by the Agent to purchase
Notes as principal, there shall have been any change in the capital stock (other
than upon exercise of outstanding stock options or upon conversion of
convertible securities outstanding at the date of the most recent balance sheet
included in the Prospectus or pursuant to the Company's employee stock ownership
plan or pursuant to the Company's employee stock purchase plans or the Company's
employee savings and profit sharing plan) or any significant increase in long-
term debt of the Company and its subsidiaries considered as a whole or any
change, or any development involving a prospective change, in or affecting the
general affairs, management, consolidated financial position, stockholders'
equity or results of operations of the Company and its subsidiaries considered
as a whole, otherwise than as set forth or incorporated by reference or
contemplated in the Prospectus, the effect of which, in any such case described
in clause (A) or (B), is such as to make it, in the judgment of the Agent,
impracticable or inadvisable to market the Notes or enforce contracts for sale
of the Notes on the terms and in the manner contemplated in the Prospectus as
amended or supplemented, or (ii) if there shall have occurred any material
adverse change in the financial markets in the United States or any outbreak or
escalation of hostilities involving the United States or the declaration by the
United States of a national emergency or war the effect of which is such as to
make it, in the judgment of the Agent, impracticable or inadvisable to market
the Notes or enforce contracts for the sale of the
22
<PAGE>
Notes on the terms and in the manner contemplated in the Prospectus as amended
or supplemented, or (iii) if there has been a suspension or material limitation
in trading in the securities of the Company or securities generally on the New
York Stock Exchange, or if a general moratorium on commercial banking activities
in New York or Illinois shall have been declared by either Federal or state
authorities or if a banking moratorium shall have been declared by the relevant
authorities in the country or countries of origin of any foreign currency or
currencies in which the Notes are denominated or payable, or (iv) if the rating
assigned by any Rating Organization to any debt securities of the Company as of
the date of any applicable principal purchase shall have been lowered since that
date or if any such rating agency shall have publicly announced that it has
under surveillance or review, with possible negative implications, its rating of
any debt securities of the Company, or (v) if there shall have come to the
Agent's attention any facts that would cause the Agent to believe that the
Prospectus, at the time it was required to be delivered to a purchaser of Notes,
included an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in light of the circum-
stances existing at the time of such delivery, not misleading, or (vi) if the
SEC has issued a stop order suspending the effectiveness of the Registration
Statement under the 1933 Act or if the SEC has initiated or threatened
proceedings for such purpose.
(c) GENERAL. In the event of any such termination, neither party will
have any liability to the other party hereto, except that (i) the Agent shall be
entitled to any commission earned in accordance with the third paragraph of
Section 3(b) hereof, (ii) if at the time of termination (a) the Agent shall own
any Notes purchased by it as principal with the intention of reselling them or
(b) an offer to purchase any of the Notes has been accepted by the Company but
the time of delivery to the purchaser or his agent of the Note or Notes relating
thereto has not occurred, the covenants set forth in Sections 4 and 7 hereof
shall remain in effect until such Notes are so resold or delivered, as the case
may be, and (iii) the covenant set forth in Section 4(h) hereof, the provisions
of Section 10 hereof, the indemnity and contribution agreements set forth in
Sections 8 and 9 hereof, and the provisions of Sections 11, 14 and 15 hereof
shall remain in effect.
SECTION 13. NOTICES.
Unless otherwise provided herein, all notices required under the terms and
provisions hereof shall be in writing, either delivered by hand, by mail or by
telex, telecopier or telegram, and any such notice shall be effective when
received at the address specified below.
If to the Company:
Motorola, Inc.
1303 East Algonquin Road
Schaumburg, Illinois 60196
Attention: Treasurer
23
<PAGE>
If to the Agent:
[Name and Address of Agent]
Attention: __________________
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 13.
SECTION 14. GOVERNING LAW; FORUM.
This Agreement and all the rights and obligations of the parties shall be
governed by and construed in accordance with the laws of the State of New York
applicable to agreements made and to be performed in such State. Any suit,
action or proceeding brought by the Company against the Agent in connection with
or arising under this Agreement shall be brought solely in the state or federal
court of appropriate jurisdiction located in the Borough of Manhattan, The City
of New York.
SECTION 15. PARTIES.
This Agreement shall inure to the benefit of and be binding upon the Agent
and the Company and their respective successors. Nothing expressed or mentioned
in this Agreement is intended or shall be construed to give any person, firm or
corporation, other than the parties hereto and their respective successors and
the controlling persons and officers and directors referred to in Sections 8 and
9 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the parties hereto and respective
successors and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Notes shall be deemed to be a successor by reason
merely of such purchase.
24
<PAGE>
If the foregoing is in accordance with the Agent's understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument along with all counterparts will become a binding agreement
between the Agent and the Company in accordance with its terms.
Very truly yours,
MOTOROLA, INC.
By: _______________________________
Name:
Title:
Accepted:
[Agent]
By: __________________________________
Name:
Title:
25
<PAGE>
EXHIBIT A
The following terms, if applicable, shall be agreed to by the Agent and the
Company in connection with each sale of Notes:
Principal Amount: $_______
(or principal amount of foreign currency)
Interest Rate:
If Fixed Rate Note, Interest Rate:
If Floating Rate Note:
Interest Rate Basis:
Initial Interest Rate:
Spread or Spread Multiplier, if any:
Interest Reset Date(s):
Interest Payment Date(s):
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Reset Period:
Interest Payment Period:
Calculation Agent:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
If Repayable:
Optional Repayment Date(s):
Date of Maturity:
Purchase Price: ___%
Settlement Date and Time:
Currency of Denomination:
Denominations (if currency is other than U.S. dollar):
Currency of Payment:
Additional Terms:
Also, in connection with the purchase of Notes by the Agent as principal,
agreement as to whether the following will be required:
Officer's Certificate pursuant to Section 7(b) of the Distribution
Agreement.
Legal Opinion pursuant to Section 7(c) of the Distribution Agreement.
Comfort Letter pursuant to Section 7(d) of the Distribution Agreement.
Stand-off Agreement pursuant to Section 4(k) of the Distribution Agreement.
<PAGE>
SCHEDULE A
As compensation for the services of the Agent hereunder, the Company shall
pay it, on a discount basis, a commission for the sale of each Note equal to the
principal amount of such Note multiplied by the appropriate percentage set forth
below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
From 9 months to less than 1 year. . . . . . . . . . .125%
From 1 year to less than 18 months . . . . . . . . . .150
From 18 months to less than 2 years. . . . . . . . . .200
From 2 years to less than 3 years. . . . . . . . . . .250
From 3 years to less than 4 years. . . . . . . . . . .350
From 4 years to less than 5 years. . . . . . . . . . .450
From 5 years to less than 6 years. . . . . . . . . . .500
From 6 years to less than 7 years. . . . . . . . . . .550
From 7 years to less than 10 years . . . . . . . . . .600
From 10 years to less than 15 years. . . . . . . . . .625
From 15 years to less than 20 years. . . . . . . . . .700
From 20 years to 30 years. . . . . . . . . . . . . . .750
Greater than 30 years. . . . . . . . . . . . . . . . . . *
- ---------------
* As agreed to by the Company and the Agent at the time of sale.
<PAGE>
Exhibit 4(d)
MOTOROLA, INC.
TO
HARRIS TRUST AND SAVING BANK,
AS TRUSTEE
-------------------
INDENTURE
DATED AS OF ______________________ ,199 ____
-------------------
SENIOR DEBT SECURITIES
<PAGE>
CROSS REFERENCE TABLE(1)
TIA Indenture
Section Section
- ------- -----------
310(a)(1) . . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . . . . N.A.
(a)(5) . . . . . . . . . . . . . . . . . . . 608
(b) . . . . . . . . . . . . . . . . . . . 608
(c) . . . . . . . . . . . . . . . . . . . N.A.
311(a) . . . . . . . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . . . . . . . 613
(c) . . . . . . . . . . . . . . . . . . . N.A.
312(a) . . . . . . . . . . . . . . . . . . . 701, 702 (a)
(b) . . . . . . . . . . . . . . . . . . . 702 (b)
(c) . . . . . . . . . . . . . . . . . . . 702 (c)
313(a) . . . . . . . . . . . . . . . . . . . 703 (a)
(b) . . . . . . . . . . . . . . . . . . . 703 (b)
(c) . . . . . . . . . . . . . . . . . . . 703 (c)
(d) . . . . . . . . . . . . . . . . . . . 703 (d)
314(a) . . . . . . . . . . . . . . . . . . . 704, 1006
(b) . . . . . . . . . . . . . . . . . . . N.A.
(c)(1) . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . . . . . . . 102
315(a) . . . . . . . . . . . . . . . . . . . 601 (a)
(b) . . . . . . . . . . . . . . . . . . . 602, 703 (a)
(c) . . . . . . . . . . . . . . . . . . . 601 (b)
(d) . . . . . . . . . . . . . . . . . . . 601 (c)
(e) . . . . . . . . . . . . . . . . . . . 502, 512
316(a) (last sentence) . . . . . . . . . . . . . . . . . . . 101 ("outstanding")
(a)(1)(A) . . . . . . . . . . . . . . . . . . . 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . 508
317(a)(1) . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . 1003
318(a) . . . . . . . . . . . . . . . . . . . 107
N.A. means Not Applicable.
- ---------------
(1) THIS CROSS REFERENCE TABLE SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE PART
OF THE INDENTURE.
<PAGE>
PAGE
TABLE OF CONTENTS
-----------------
PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . .
RECITALS OF THE COMPANY. . . . . . . . . . . . . . . . . . .
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101
Definitions:
Act . . . . . . . . . . . . . . . . . . . . . . . . . . .
Affiliate; control. . . . . . . . . . . . . . . . . . . .
Attributable Debt . . . . . . . . . . . . . . . . . . . .
Authenticating Agent. . . . . . . . . . . . . . . . . . .
Authorized Newspaper. . . . . . . . . . . . . . . . . . .
Bearer Security . . . . . . . . . . . . . . . . . . . . .
Board of Directors. . . . . . . . . . . . . . . . . . . .
Board Resolution. . . . . . . . . . . . . . . . . . . . .
Business Day. . . . . . . . . . . . . . . . . . . . . . .
CEDEL OR CEDEL S.A. . . . . . . . . . . . . . . . . . . .
Commission. . . . . . . . . . . . . . . . . . . . . . . .
Company . . . . . . . . . . . . . . . . . . . . . . . . .
Company Request; Company Order. . . . . . . . . . . . . .
Consolidated Net Tangible Assets. . . . . . . . . . . . .
Conversion Date . . . . . . . . . . . . . . . . . . . . .
Conversion Event. . . . . . . . . . . . . . . . . . . . .
Corporate Trust Office. . . . . . . . . . . . . . . . . .
corporation . . . . . . . . . . . . . . . . . . . . . . .
coupon. . . . . . . . . . . . . . . . . . . . . . . . . .
Currency. . . . . . . . . . . . . . . . . . . . . . . . .
Covenant Defeasance . . . . . . . . . . . . . . . . . . .
Defaulted Interest. . . . . . . . . . . . . . . . . . . .
Defeasance. . . . . . . . . . . . . . . . . . . . . . . .
Defeasible Series . . . . . . . . . . . . . . . . . . . .
Depositary. . . . . . . . . . . . . . . . . . . . . . . .
Designated Security . . . . . . . . . . . . . . . . . . .
Domestic Subsidiary . . . . . . . . . . . . . . . . . . .
Dollar. . . . . . . . . . . . . . . . . . . . . . . . . .
ECU . . . . . . . . . . . . . . . . . . . . . . . . . . .
Euroclear . . . . . . . . . . . . . . . . . . . . . . . .
European Communities. . . . . . . . . . . . . . . . . . .
European Monetary System. . . . . . . . . . . . . . . . .
Event of Default. . . . . . . . . . . . . . . . . . . . .
Exchange Act. . . . . . . . . . . . . . . . . . . . . . .
- ---------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
<PAGE>
PAGE
Exchange Date . . . . . . . . . . . . . . . . . . . . . .
Exchange Rate Agent . . . . . . . . . . . . . . . . . . .
Exchange Rate Officer's Certificate . . . . . . . . . . .
Foreign Currency. . . . . . . . . . . . . . . . . . . . .
Funded Debt . . . . . . . . . . . . . . . . . . . . . . .
Global Security . . . . . . . . . . . . . . . . . . . . .
Holder. . . . . . . . . . . . . . . . . . . . . . . . . .
Indenture . . . . . . . . . . . . . . . . . . . . . . . .
Indexed Security. . . . . . . . . . . . . . . . . . . . .
interest. . . . . . . . . . . . . . . . . . . . . . . . .
lnterest Payment Date . . . . . . . . . . . . . . . . . .
Market Exchange Rate. . . . . . . . . . . . . . . . . . .
Maturity. . . . . . . . . . . . . . . . . . . . . . . . .
Notice of Default . . . . . . . . . . . . . . . . . . . .
Officers' Certificate . . . . . . . . . . . . . . . . . .
Opinion of Counsel. . . . . . . . . . . . . . . . . . . .
Original Issue Discount Security. . . . . . . . . . . . .
Outstanding . . . . . . . . . . . . . . . . . . . . . . .
Paying Agent. . . . . . . . . . . . . . . . . . . . . . .
Person. . . . . . . . . . . . . . . . . . . . . . . . . .
Place of Payment. . . . . . . . . . . . . . . . . . . . .
Predecessor Security. . . . . . . . . . . . . . . . . . .
Principal Property. . . . . . . . . . . . . . . . . . . .
Redemption Date . . . . . . . . . . . . . . . . . . . . .
Redemption Price. . . . . . . . . . . . . . . . . . . . .
Registered Security . . . . . . . . . . . . . . . . . . .
Regular Record Date . . . . . . . . . . . . . . . . . . .
Remarketing Entity. . . . . . . . . . . . . . . . . . . .
Repayment Date. . . . . . . . . . . . . . . . . . . . . .
Repayment Price . . . . . . . . . . . . . . . . . . . . .
Securities. . . . . . . . . . . . . . . . . . . . . . . .
Security Register and Security Registrar. . . . . . . . .
Special Record Date . . . . . . . . . . . . . . . . . . .
Stated Maturity . . . . . . . . . . . . . . . . . . . . .
Subsidiary. . . . . . . . . . . . . . . . . . . . . . . .
Trustee . . . . . . . . . . . . . . . . . . . . . . . . .
Trust Indenture Act; TIA. . . . . . . . . . . . . . . . .
United States . . . . . . . . . . . . . . . . . . . . . .
United States Alien . . . . . . . . . . . . . . . . . . .
U.S. Government Obligations . . . . . . . . . . . . . . .
Valuation Date. . . . . . . . . . . . . . . . . . . . . .
Vice President. . . . . . . . . . . . . . . . . . . . . .
SECTION 102. Compliance Certificates and Opinions. . . . .
SECTION 103. Form of Documents Delivered to Trustee. . . .
SECTION 104. Acts of Holders; Record Dates . . . . . . . .
SECTION 105. Notices, Etc., to Trustee and Company . . . .
<PAGE>
PAGE
SECTION 106. Notice to Holders; Waiver . . . . . . . . . .
SECTION 107. Conflict with Trust Indenture Act . . . . . .
SECTION 108. Effect of Headings and Table of Contents. . .
SECTION 109. Successors and Assigns. . . . . . . . . . . .
SECTION 110. Separability Clause . . . . . . . . . . . . .
SECTION 111. Benefits of Indenture . . . . . . . . . . . .
SECTION 112. Governing Law . . . . . . . . . . . . . . . .
SECTION 113. Legal Holidays. . . . . . . . . . . . . . . .
SECTION 114. Counterparts. . . . . . . . . . . . . . . . .
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally . . . . . . . . . . . . . . .
SECTION 202. Form of Trustee's Certificate of
Authentication. . . . . . . . . . . . . . .
SECTION 203. Securities Issuable in Global Form. . . . . .
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. . . . .
SECTION 302. Denominations . . . . . . . . . . . . . . . .
SECTION 303. Execution, Authentication, Delivery and
Dating. . . . . . . . . . . . . . . . . . .
SECTION 304. Temporary Securities. . . . . . . . . . . . .
SECTION 305. Registration, Registration of Transfer
and Exchange. . . . . . . . . . . . . . . .
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities. . . . . . . . . . . . . . . .
SECTION 307. Payment of Interest; Interest Rights
Preserved; Optional Interest Reset. . . . .
SECTION 308. Optional Extension of Maturity. . . . . . . .
SECTION 309. Persons Deemed Owners . . . . . . . . . . . .
SECTION 310. Cancellation. . . . . . . . . . . . . . . . .
SECTION 311. Computation of Interest . . . . . . . . . . .
SECTION 312. Currency and Manner of Payments in Respect
of Securities . . . . . . . . . . . . . . .
SECTION 313. Appointment and Resignation of Successor
Exchange Rate Agent . . . . . . . . . . . .
SECTION 314. CUSIP Numbers . . . . . . . . . . . . . . . .
SECTION 315 Certification by a Person Entitled to
Delivery of Bearer Security . . . . . . . .
SECTION 316. Judgments . . . . . . . . . . . . . . . . . .
<PAGE>
PAGE
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture . . .
SECTION 402. Application of Trust Money. . . . . . . . . .
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default . . . . . . . . . . . . . .
SECTION 502. Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . . .
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee. . . . . . . . . . .
SECTION 504. Trustee May File Proofs of Claim. . . . . . .
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities or Coupons . . . .
SECTION 506. Application of Money Collected. . . . . . . .
SECTION 507. Limitation on Suits . . . . . . . . . . . . .
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest . . . . . .
SECTION 509. Restoration of Rights and Remedies. . . . . .
SECTION 510. Rights and Remedies Cumulative. . . . . . . .
SECTION 511. Delay or Omission Not Waiver. . . . . . . . .
SECTION 512. Control by Holders. . . . . . . . . . . . . .
SECTION 513. Waiver of Past Defaults . . . . . . . . . . .
SECTION 514. Undertaking for Costs . . . . . . . . . . . .
SECTION 515. Waiver of Usury, Stay or Extension Laws . . .
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities . . . . .
SECTION 602. Notice of Defaults. . . . . . . . . . . . . .
SECTION 603. Certain Rights of Trustee . . . . . . . . . .
SECTION 604. Not Responsible for Recitals or Issuance of Securities
SECTION 605. May Hold Securities . . . . . . . . . . . . .
SECTION 606. Money Held in Trust . . . . . . . . . . . . .
SECTION 607. Compensation and Reimbursement. . . . . . . .
SECTION 608. Disqualification; Conflicting Interests . . .
SECTION 609. Corporate Trustee Required; Eligibility . . .
SECTION 610. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . .
SECTION 611. Acceptance of Appointment by Successor. . . .
SECTION 612. Merger, Conversion, Consolidation or
Succession to Business. . . . . . . . . . . .
<PAGE>
PAGE
SECTION 613. Preferential Collection of Claims Against
Company . . . . . . . . . . . . . . . . . .
SECTION 614. Appointment of Authenticating Agent . . . . .
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and
Addresses of Holders. . . . . . . . . . . .
SECTION 702. Preservation of Information; Communications
to Holders. . . . . . . . . . . . . . . . .
SECTION 703. Reports by Trustee. . . . . . . . . . . . . .
SECTION 704. Reports by Company. . . . . . . . . . . . . .
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on
Certain Terms . . . . . . . . . . . . . . .
SECTION 802. Successor Person Substituted. . . . . . . . .
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of
Holders . . . . . . . . . . . . . . . . . .
SECTION 902. Supplemental Indentures with Consent of
Holders . . . . . . . . . . . . . . . . . .
SECTION 903. Execution of Supplemental Indentures. . . . .
SECTION 904. Effect of Supplemental Indentures . . . . . .
SECTION 905. Conformity with Trust Indenture Act . . . . .
SECTION 906. Reference in Securities to Supplemental
Indentures. . . . . . . . . . . . . . . . .
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest. .
SECTION 1002. Maintenance of Office or Agency . . . . . . .
SECTION 1003. Money for Securities Payments to Be Held in
Trust . . . . . . . . . . . . . . . . . . .
SECTION 1004. Purchase of Securities by Company or
Subsidiary. . . . . . . . . . . . . . . . .
SECTION 1005. Payment of Additional Amounts . . . . . . . .
SECTION 1006. Statement by Officers as to Default . . . . .
SECTION 1007. Existence . . . . . . . . . . . . . . . . . .
SECTION 1008. Maintenance of Properties . . . . . . . . . .
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SECTION 1009. Payment of Taxes and Other Claims . . . . . .
SECTION 1010. Limitation on Liens . . . . . . . . . . . . .
SECTION 1011. Limitation on Sales and Leasebacks. . . . . .
SECTION 1012. Waiver of Certain Covenants . . . . . . . . .
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article. . . . . . . . . . .
SECTION 1102. Election to Redeem; Notice to Trustee . . . .
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed. . . . . . . . . . . . . . . . . .
SECTION 1104. Notice of Redemption. . . . . . . . . . . . .
SECTION 1105. Deposit of Redemption Price . . . . . . . . .
SECTION 1106. Securities Payable on Redemption Date . . . .
SECTION 1107. Securities Redeemed in Part . . . . . . . . .
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article. . . . . . . . . . .
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities. . . . . . . . . . . . . . . . .
SECTION 1203. Redemption of Securities for Sinking Fund . .
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. . . . . . . . . . .
SECTION 1302. Repayment of Securities . . . . . . . . . . .
SECTION 1303. Exercise of Option; Notice. . . . . . . . . .
SECTION 1304. Election of Repayment by Remarketing
Entities. . . . . . . . . . . . . . . . . .
SECTION 1305. Securities Payable on the Repayment Date. . .
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1401. Purposes for Which Meetings May Be Called . .
SECTION 1402. Call, Notice and Place of Meetings. . . . . .
SECTION 1403. Persons Entitled to Vote at Meetings. . . . .
SECTION 1404. Quorum; Action. . . . . . . . . . . . . . . .
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SECTION 1405. Determination of Voting Rights; Conduct
and Adjournment of Meetings . . . . . . . .
SECTION 1406. Counting Votes and Recording Action of
Meetings. . . . . . . . . . . . . . . . . .
ARTICLE FIFTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1501. Company's Option to Effect Defeasance or Covenant
Defeasance. . . . . . . . . . . . . . . . .
SECTION 1502. Defeasance and Discharge. . . . . . . . . . .
SECTION 1503. Covenant Defeasance . . . . . . . . . . . . .
SECTION 1504. Conditions to Defeasance or Covenant
Defeasance. . . . . . . . . . . . . . . . .
SECTION 1505. Deposited Money and U.S. Government
Obligations to be Held in Trust; Other
Miscellaneous Provisions. . . . . . . . . .
SECTION 1506. Reinstatement . . . . . . . . . . . . . . . .
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . .
SIGNATURES AND SEALS . . . . . . . . . . . . . . . . . . . .
ACKNOWLEDGMENTS. . . . . . . . . . . . . . . . . . . . . . .
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THIS INDENTURE, dated as of___________________________, 199____, is between
Motorola, Inc., a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office at
1303 East Algonquin Road, Schaumburg, Illinois 60196, and Harris Trust and
Savings Bank, a corporation duly organized and existing under the laws of the
State of Illinois, 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 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 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 TIA, or by
Commission rule or regulation under the TIA, either directly or by
reference therein, as in force at the date as of which this instrument was
executed, except as provided in Section 905, have the meanings assigned to
them therein; the terms "cash transaction" and "self-liquidating paper", as
used in TIA Section 311, shall have the meanings assigned to them in the
rules of the Commission adopted under the Trust Indenture Act; and the
following TIA terms used in this Indenture have the following meanings:
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"INDENTURE SECURITIES" means the Securities;
"INDENTURE SECURITY HOLDER" means the Holder;
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee; and
"OBLIGOR" on the indenture securities means the Company;
(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 at the date of such
computation;
(4) the words "Article" and "Section" refer to an Article and Section,
respectively, of this Indenture; and
(5) 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 in Article Three, are 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, partnerships or other
ownership interests, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Attributable Debt" shall mean, as to any particular lease under which any
Person is at the time liable, at any date as of which the amount thereof is to
be determined, the total net amount of rent required to be paid by such Person
under such lease during the remaining term thereof, discounted from the
respective due dates thereof to such date at the rate per annum borne by the
Securities compounded annually. 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,
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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 614 to act on behalf of the Trustee to authenticate Securities of one
or more series.
"Authorized Newspaper" means a newspaper in an official language of the
country of publication or in the English language customarily published on each
Business Day, whether or not published on Saturdays, Sundays or holidays, and of
general circulation in the place in connection with which the term is used or in
the financial community of such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security established pursuant to Section 201
which is payable to bearer including, without limitation, unless the context
otherwise indicates, a Security in global bearer form.
"Board of Directors" or "Board" means either the board of directors of the
Company or any duly authorized committee 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 and to be in full force and effect on the date of such
certification, and delivered to the Trustee. Where any provision of this
Indenture refers to action to be taken pursuant to a Board Resolution (including
the establishment of any series of the Securities and the forms and terms
thereof), such action may be taken by any committee of the Board or the Company
or any officer or employee of the Company authorized to take such action by a
Board Resolution.
"Business Day", when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"CEDEL" or "CEDEL S.A." means Centrale de Livraison de Valeurs Mobilieres
S.A., or its successor.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution
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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.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Vice Chairman of the Board and Chief
Executive Officer, its President or a Vice President, and by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to
the Trustee.
"Consolidated Net Tangible Assets" shall mean the aggregate amount of
assets (less applicable reserves and other properly deductible items) after
deducting therefrom (a) all current liabilities (excluding any constituting
Funded Debt by reason of their being renewable or extendible), and (b) all
goodwill, trade names, trademarks, patents, unamortized debt discount and
expense 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 312(d).
"Conversion Event" means the cessation of use of (i) a Foreign Currency
both by the government of the country which issued such currency and for the
settlement of transactions by a central bank or other public institutions of or
within the international banking community, (ii) the ECU both within the
European Monetary System and for the settlement of transactions by public
institutions of or within the European Communities or (iii) any currency unit
(or composite currency) other than the ECU for the purposes for which it was
established.
"Corporate Trust Office" means the principal office of the Trustee in the
State of Illinois or in New York, New York at which at any particular time its
corporate trust business shall be administered.
"corporation" means a corporation, association, company, joint stock
company or business trust.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Currency" means any currency or currencies, composite currency or currency
unit or currency units, including, without limitation, the ECU, issued by the
government of one or more countries or by any reorganized confederation or
association of such
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governments.
"Covenant Defeasance" has the meaning specified in Section 1503.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1502.
"Defeasible Series" has the meaning specified in Section 1501.
"Depositary" means, with respect to the Securities of any series issuable
or issued in whole or in part in the form of one or more Global Securities, the
Person designated as Depositary by the Company pursuant to Section 301 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each person who is then a Depositary hereunder, and if at any time there is more
than one such Person, "Depositary" as used with respect to the Securities of any
such series shall mean the Depositary with respect to the Securities of that
series.
"Designated Currency" has the meaning specified in Section 312.
"Domestic Subsidiary" shall mean a Subsidiary of the Company except a
Subsidiary of the Company (a) which neither transacts any substantial portion of
its business nor regularly maintains any substantial portion of its fixed assets
within the States of the United States, or (b) which is engaged primarily in
financing the operations of the Company or its Subsidiaries, or both, outside
the States of the United States.
"Dollar" or "$" means a dollar or other equivalent within the coin or
currency of the United States as at the time of payment is legal tender for the
payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised from time to
time by the Council of the European Communities.
"Euroclear" means Morgan Guarantee Trust Company of New York, Brussels
Office, as operator of the Euroclear System.
"European Communities" means the European Economic Community, the European
Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System established
by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Event of Default" has the meaning specified in Section 501.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, and any successor thereto, and the rules and regulations
promulgated thereunder.
"Exchange Date" shall have the meaning specified in Section 304.
"Exchange Rate Agent" shall have the meaning specified as contemplated in
Section 301.
"Exchange Rate Officer's Certificate", means a certificate setting forth
the applicable Market Exchange Rate or applicable bid quotation and the amounts
payable in Dollars and Foreign Currencies in respect of the principal of (and
premium, if any) and interest on Securities denominated in ECU and other
composite Currency or Foreign Currency, and signed by the Vice Chairman of the
Board and Chief Executive Officer, the President, any Vice President, the
Treasurer or any Assistant Treasurer of the Company or the Exchange Rate Agent
appointed pursuant to Section 301, and delivered to the Trustee.
"Foreign Currency" means any Currency, including, without limitation, the
ECU issued by the government of one or more countries other than the United
States or by any recognized confederation or association of such governments.
"Funded Debt" shall mean all indebtedness for money borrowed having a
maturity of more than 12 months from the date of the most recent balance sheet
of the Company and its consolidated subsidiaries or having a maturity of less
than 12 months but by its terms being renewable or extendible beyond 12 months
from the date of such balance sheet at the option of the borrower.
"Global Security" means a Security evidencing all or part of a series of
Securities, authenticated and delivered to the Depositary for such series or its
nominee, and registered in the name of such Depositary or nominee in accordance
with Section 303.
"Holder" means, with respect to a Registered Security, a Person in whose
name a Registered Security is registered in the Security Register and, with
respect to a Bearer Security, 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, including, for
all purposes of this instrument, and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively. The term
"Indenture" shall also include the terms of particular series of Securities
established as contemplated by Section 301.
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"Indexed Security" means a Security as to which all or certain interest
payments and/or the principal amount payable at Maturity are determined by
reference to prices, changes in prices, or differences between prices, or
securities or Currencies as specified pursuant to Section 301 hereof.
"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, and, when used
with respect to a Security which provides for the payment of additional amounts
pursuant to Section 1005, includes such additional amounts.
"Market Exchange Rate" means, unless otherwise specified with respect to
any Securities pursuant to Section 301, (i) for any conversion involving a
Currency unit on the one hand and Dollars or any Foreign Currency on the other,
the exchange rate between the relevant Currency unit and Dollars or such Foreign
Currency calculated by the method specified pursuant to Section 301 for the
Securities of the relevant series, (ii) for any conversion of Dollars into any
Foreign Currency, the noon buying rate for such Foreign Currency for cable
transfers quoted in New York City as certified for customs purposes by the
Federal Reserve Bank of New York and (iii) for any conversion of one Foreign
Currency into Dollars or another Foreign Currency, the spot rate at noon local
time in the relevant market at which, in accordance with normal banking
procedures, the Dollars or Foreign Currency into which conversion is being made
could be purchased with the Foreign Currency from which conversion is being made
from major banks located in either New York City, London or any other principal
market for Dollars or such purchased Foreign Currency, in each case determined
by the Exchange Rate Agent. Unless otherwise specified with respect to any
Securities pursuant to Section 301, in the event of the unavailability of any of
the exchange rates provided for in the foregoing clauses (i), (ii) and (iii),
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, London or other principal market for such 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 purchase such
currency or currency unit in order to make payments in respect of such
securities.
"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 or otherwise.
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"Notice of Default" means a written notice of the kind specified in Section
501(4).
"Officers' Certificate" means a certificate signed by the Vice Chairman of
the Board and Chief Executive Officer, the President or any elected Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or any
Assistant Secretary, of the Company, and delivered to the Trustee, which shall
comply with Section 102 to the extent applicable.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company, and who shall be reasonably satisfactory to the Trustee, which
shall comply with Section 102 to the extent applicable.
"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 502.
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, EXCEPT:
(1) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the necessary
amount 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 in accordance with Section 401; 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;
(3) Securities as to which Defeasance has been effected pursuant to
Section 1502; and
(4) Securities which have been paid pursuant to Section 306 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 are
present
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at a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (A) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, (B) the principal amount of any Security denominated in
a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined as of the date such Security is originally
issued by the Company as set forth in an Exchange Rate Officer's Certificate
delivered to the Trustee, of the principal amount (or in the case of an Original
Issue Discount Security or Indexed Security, the Dollar equivalent as of such
date of original issuance of the amount determined as provided in clause (A)
above or (C) below respectively) of such Security, (C) the principal amount of
any Indexed Security that may be counted in making such determination or
calculation and that shall be deemed outstanding for such purpose shall be equal
to the principal face amount of such Indexed Security at original issuance,
unless otherwise provided with respect to such Security pursuant to Section 301,
and (D) 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 any Person authorized by the Company to pay the
principal of (or any premium) or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint venture,
trust, 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 any premium and interest on
the Securities of that series are payable as specified as contemplated by
Sections 301 and 1002.
"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 306 in exchange for or in lieu of a
mutilated, destroyed, lost or
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stolen Security shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Security.
"Principal Property" means any single parcel of real estate, manufacturing
plant or warehouse owned or leased by the Company or any Domestic Subsidiary
which is located within the United States and the gross book value (without
deduction of any depreciation reserves) of which on the date as of which the
determination is being made exceeds 1% of Consolidated Net Tangible Assets,
other than any such manufacturing plant or warehouse or portion thereof (a)
which is a pollution control or other facility financed by obligations issued by
a state or local government unit and described in Sections 141(a), 142(a)(5),
142(a)(6) or 144(a) of the Internal Revenue Code, or any successor provision
thereof, or (b) which, in the opinion of the Board of Directors, is not of
material importance to the total business conducted by the Company and its
subsidiaries as an entirety.
"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 at which it is to be redeemed pursuant to this Indenture.
"Registered Security" means any Security in the form of Registered
Securities established pursuant to Section 201 which is registered in the
Security Register.
"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 301.
"Remarketing Entity", when used with respect to Securities of any series
which are repayable at the option of the Holders thereof before their Stated
Maturity, means any person designated by the Company to purchase any such
Securities.
"Repayment Date", when used with respect to any Security to be repaid upon
exercise of option for repayment by the Holder, means the date fixed for such
repayment.
"Repayment Price", when used with respect to any Security to be repaid upon
exercise of option for repayment by the Holder, means the price at which it is
to be repaid pursuant to this Indenture.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
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"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" shall mean a corporation a majority of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
For the purposes of this definition, the term "voting stock" means stock having
ordinary voting power for the election of directors irrespective of whether or
not stock of any other class or classes shall have or might have voting power by
reason of the happening of any contingency.
"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 each Trustee with respect to Securities of that series.
"Trust Indenture Act", or "TIA", means the Trust Indenture Act of 1939 and
the rules and regulations promulgated thereunder as in force at the date as of
which this instrument was executed, except as provided in Section 905; PROVIDED,
HOWEVER, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act" or "TIA" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended and the rules and
regulations promulgated thereunder.
"United States" means the United States of America (including the District
of Columbia) and its possessions and territories and other areas subject to its
jurisdiction (including the Commonwealth of Puerto Rico).
"United States Alien" means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
"U.S. Government Obligations" means securities which are (i) direct
obligations of the United States for the payment of which its full faith and
credit is pledged or (ii)
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obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States, which, in
either case, are not callable or redeemable at the option of the issuer thereof,
and shall also include a depository receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act of 1933, as amended) 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.
"Valuation Date" has the meaning specified in Section 312(c).
"Vice President", when used with respect to the Company or the Trustee,
means any elected vice president, whether or not designated by a word or words
added before the title "vice president".
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 (other than delivery of any
Security to the Trustee for authentication pursuant to Section 303), the Company
shall furnish to the Trustee such certificates and opinions as may be required
under the Trust Indenture Act. Each such certificate or opinion shall be given
in the form of an Officers' Certificate, if to be given by an officer of the
Company, or an Opinion of Counsel, if to be given by counsel, and shall comply
with the requirements of the Trust lndenture Act and any other requirements set
forth in this lndenture. 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, however,
no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than pursuant to Section 1006)
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
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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; RECORD DATES.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. If Securities of a series are issuable in whole or in part
as Bearer Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may, alternatively, be embodied in and evidenced by the record of
Holders of Securities voting in favor thereof, either in person or by proxies
duly appointed in writing, at any meeting of Holders of Securities duly called
and held in accordance with the provisions of Article Fourteen, or a combination
of such instruments and any such record. Except as herein
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otherwise expressly provided, such action shall become effective when such
instrument or instruments are received by the Trustee and, where it is hereby
expressly required, to the Company. Such 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. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Indenture and (subject to Section 601)
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.
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. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(b) The ownership of Registered Securities shall be proved by the Security
Register.
(c) The ownership, 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, as
depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be satisfactory,
showing that at the date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities in the amount and with the
serial numbers 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 be 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, or (2) such Bearer Security is produced to
the Trustee by some other person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding. The fact and date of execution of any such instrument or writing,
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 Section.
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(d) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security 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, any Security
Registrar, any Paying Agent, any Authenticating Agent or the Company in reliance
thereon, whether or not notation of such action is made upon such Security.
(e) 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, in 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. Notwithstanding TIA Section
316(c), such record date shall be the record date specified in or pursuant to
such Board Resolution, which shall be a date not earlier than the date 30 days
prior to the first solicitation of Holders generally in connection therewith and
not later than the date such solicitation is completed. 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 eleven
months after the record date.
Without limiting the foregoing, a Holder entitled hereunder to give or
take any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any different part of such principal amount.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver or
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 sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention: Indenture
Trust Division, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every
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purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, 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.
SECTION 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice of any event to Holders of
Registered Securities by the Company or the Trustee, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each such Holder affected by such
event, at his address as it appears in the Security Register, not later than the
latest date, if any, and not earlier than the earliest date, if any, prescribed
for the giving of such notice. In any case where notice to Holders of
Registered Securities is given by mail, neither the failure to mail such notice,
nor any defect in any notice so mailed, to any particular Holder shall affect
the sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. Any notice mailed to a Holder in the manner herein
prescribed shall be conclusively deemed to have been received by such Holder,
whether or not such Holder actually receives such notice.
If by reason of the suspension of or irregularities in regular mail service
or by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification to Holders of Registered Securities as shall be
made with the approval of the Trustee shall constitute a sufficient notification
to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified with
respect to any Securities pursuant to Section 301, where this Indenture provides
for notice to Holders of Bearer Securities of any event, such notice shall be
sufficiently given if published in an Authorized Newspaper in the City of New
York and, if the Securities of such series are then listed on the International
Stock Exchange of the United Kingdom and the Republic of Ireland and such stock
exchange shall so require, in London, and, if the Securities of such series are
then listed on the Luxembourg Stock Exchange and such stock exchange shall so
require, in Luxembourg and, if the Securities of such series are than listed on
any other stock exchange outside the United States and such stock exchange shall
so require, in any other required city outside the United States or, if not
practicable, in Europe on a Business Day at least twice, the first such
publication to be not later than the latest date and not earlier than the
earliest date prescribed for the giving of such notice, and in such other city
or cities as may be specified in such Securities on a Business Day, such
publication to be not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. Any such notice shall
be deemed to have been given on the date of such publication or, if published
more than once, on the date of the first such publication.
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If 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. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of such notice with
respect to other Holders of Bearer Securities or the sufficiency of any notice
to Holders of Registered Securities given as provided herein.
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.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with a provision of
the TIA that is required under such Act to be a part of and govern this
Indenture, the TIA provision shall control. If any provision of this Indenture
modifies or excludes any provision of the TIA that may be so modified or
excluded, the latter provision shall be deemed to apply to this Indenture as so
modified or to be excluded, as the case may be.
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 or coupons
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.
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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, any Paying Agent, Security Registrar and Authenticating
Agent 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 law of the State of New York, but without
regard to principles of conflicts of law.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date, Repayment
Date, Stated Maturity or Maturity of any Security shall not be a Business Day at
any Place of Payment, then (notwithstanding any other provision of this
Indenture or of the Securities or coupons (other than a provision of the
Securities of any series which specifically states that such provision shall
apply in lieu of this Section)) 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 or Redemption Date, Repayment
Date, Stated Maturity or Maturity, provided that no interest shall accrue for
the period from and after such Interest Payment Date, Redemption Date, Repayment
Date, Stated Maturity or Maturity, as the case may be.
SECTION 114. COUNTERPARTS.
This Indenture 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 Indenture.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The Registered Securities, if any, and the Bearer Securities and related
coupons, if any, of each series shall be in substantially the form (including
temporary or permanent global form) as shall be established by or pursuant to a
Board Resolution or in one or more indentures supplemental hereto, in each case
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification
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and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or market or as may, consistently
herewith, be determined by the officers executing such Securities or coupons, as
evidenced by their execution of the Securities or coupons. If the form of
Securities of any series or coupons is established by action taken pursuant to a
Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of such
Securities or coupons.
Unless otherwise specified as contemplated by Section 301, Bearer
Securities other than Securities in temporary or permanent global form shall
have coupons attached.
The definitive Securities and coupons, if any, shall be printed,
lithographed or engraved or produced by any combination of these methods on
steel engraved borders or may be produced in any other manner permitted by the
rules of any securities exchange on which the Securities may be listed, all as
determined by the officers executing such Securities or coupons, as evidenced by
their execution of such Securities or coupons.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication on each Security shall be in
substantially the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
------------------------------
as Trustee
By ---------------------------
[AUTHORIZED OFFICER]
SECTION 203. SECURITIES ISSUABLE IN GLOBAL FORM.
If Securities of or within a series are issuable in global form, as
specified as contemplated by Section 301, then, notwithstanding clause (9) of
Section 301 and the provisions of Section 302, any such 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 of such series from time to time endorsed thereon and
that the aggregate amount of Outstanding Securities of such series represented
thereby may from time to time be increased or decreased to reflect exchanges.
Any endorsement of a Global Security to reflect the
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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 to be delivered to the Trustee pursuant to Section 303 or 304.
Subject to the provisions of Section 303 and, if applicable, Section 304, the
Trustee shall deliver and redeliver any Security in permanent global form in the
manner and upon instructions given by the Person or Persons specified therein or
in the applicable Company Order. If a Company Order pursuant to Section 303 or
304 has been, or simultaneously is, delivered, any instructions by the Company
with respect to endorsement, 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 Section 303(g) 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 Section 303(g).
Notwithstanding the provisions of Section 307, unless otherwise specified
as contemplated by Section 301, payment of principal of (and premium, if any)
and interest, if any, on any permanent Global Security shall be made to the
Person or Persons specified therein.
Notwithstanding the provisions of Section 309 and except as provided in the
preceding paragraph, the Company, the Trustee and any agent of the Company and
the Trustee shall treat as the Holder of such principal amount of Outstanding
Securities represented by a permanent Global Security (i) in the case of a
permanent Global Security in registered form, the Holder of such permanent
Global Security in registered form, or (ii) in the case of a permanent Global
Security in bearer form, Euroclear or CEDEL.
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be authenticated and
delivered under this lndenture is unlimited.
The Securities shall rank equally and PARI PASSU and may be issued in one
or more series. There shall be established in or pursuant to a Board Resolution,
and,
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subject to Section 303 set forth, or determined in the manner provided, in an
Officers' Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series, any or all of the
following, as applicable (each of which (except for the matters in clauses (1)
and (2)), if so provided, may be determined by the Company with respect to
unissued Securities, of the series when issued from time to time):
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from Securities of any other series):
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906, 1107 or 1303 and except for
any Securities which, pursuant to Section 303, are deemed never to have
been authenticated and delivered hereunder);
(3) the date or dates, or the method by which such date or dates will
be determined or extended, on which the principal of the Securities (and
premium, if any), of the series is payable;
(4) the rate or rates at which the Securities of the series shall bear
interest, or the method or methods by which such rate or rates shall be
determined, if any, the date or dates from which such interest shall
accrue, or the method by which such date or dates will be determined or
extended, the Interest Payment Dates on which any such interest shall be
payable and the Regular Record Date for any interest payable on any
Registered Security on any Interest Payment Date, the circumstances, if
any, in which the Company may defer interest payments and the manner of
computing interest if other than as specified in Section 311;
(5) the place or places where, subject to the provisions of Section
1002, the principal of (and premium, if any) and interest, if any, on
Securities of the series shall be payable, any Registered Securities of the
series may be surrendered for registration of transfer, Securities of the
series may be surrendered for exchange and notices and demands to or upon
the Company in respect of the Securities of the series and this Indenture
may be served and where notices to Holders pursuant to Section 106 will be
published;
(6) the period or periods within which or the date or dates on which,
the price or prices at which and the terms and conditions upon which
Securities of the series may be redeemed, in whole or in part, at the
option of the Company;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or analogous
provisions or at
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the option of a Holder thereof and the period or periods within which, the
price or prices at which, the period or periods within which, and the other
terms and conditions upon which Securities of the series shall be redeemed,
repaid or purchased, in whole or in part, pursuant to such obligation;
(8) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities or both, whether Securities of the series are
to be issuable with or without coupons or both, the terms upon which Bearer
Securities of the series may be exchanged for Registered Securities of the
series (and vice versa) if other than as provided in Sections 304 and 305,
and, in the case of Bearer Securities (or any temporary Global Security
representing the same), the date as of which such Bearer Securities shall
be dated if other than the date of original issuance of the first Security
of such series of like tenor and term to be issued;
(9) whether the Securities of the series shall be issued in whole or
in part in the form of a Global Security or Securities and, in such case,
the Depositary for such Global Security or Securities, whether such global
form shall be permanent or temporary and, if so, whether beneficial owners
of interests in any such permanent Global Security may exchange such
interests for Securities of such series in certificated form and of like
tenor of any authorized form and denomination and the circumstances under
which any such exchanges may occur, if other than in the manner provided in
this Article Three, and, if applicable, the Exchange Date;
(10) whether, and under what conditions, additional amounts will be
payable to Holders of Securities of the series pursuant to Section 1005;
(11) the denominations in which any Registered Securities of the
series shall be issuable, if other than denominations of $1,000 and any
integral multiple thereof, and the denominations in which any Bearer
Securities of such series shall be issuable, if other than the
denominations of $5,000 and any integral multiple thereof;
(12) if other than Dollars, the Currency or Currencies of denomination
of the Securities of any series, which may be in any Foreign Currency or
any composite Currency or index, including but not limited to the ECU, and,
if any such Currency of denomination is a composite Currency other than the
ECU, the agency or organization, if any, responsible for overseeing such
composite Currency;
(13) that either or both of Section 1502 or 1503 shall apply to the
Securities of the series;
(14) if other than Dollars, the Currency, Currencies or currency units
in which payment of the principal of (and any premium) and interest on any
Securities of the series shall be payable and the Currency or Currencies,
if any, in which payment of the principal of (and premium, if any) or the
interest on Registered Securities at the
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election of each of the Holders thereof, may also be payable and the
periods within which and the terms and conditions upon which such election
is to be made and the time and manner of determining the exchange rate
between Currency or Currencies in which such Securities are denominated or
stated to be paid and the Currency or Currencies in which such Securities
are to be paid, in each case in accordance with, in addition to or in lieu
of Section 312;
(15) if the amount of payments of principal of (or premium, if any) or
interest on any Securities of the series may be determined with reference
to an index, the manner in which such amounts shall be determined;
(16) the Person to whom any interest on any Registered Security of the
series shall be payable, if other than the Person in whose name such
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 other 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 304;
(17) the designation of the initial Exchange Rate Agent, if any;
(18) if the Securities of the series are to be convertible into or
exchangeable for any securities of any Person (including the Company), the
terms and conditions upon which such Securities will be so convertible or
exchangeable;
(19) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section
502; and
(20) if other than the Trustee, the identity of the Security Registrar
and/or Paying Agent;
(21) the terms of any pledge of property made to secure the
obligations of the Company under the Securities of any series and the
circumstances, if any, under which such pledge may be released and the
limitations, if any, on recourse against the Company on Securities of such
series; and
(22) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 901(5)).
Except as set forth below, all Securities of any one series and the coupons
appertaining to Bearer Securities of such series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to such
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Board Resolution and (subject to Section 303) set forth, or determined in the
manner provided, in such Officers' Certificate or in any indenture supplemental
hereto.
Securities of any particular series may be issued at various times, with
different dates on which the principal or any installment of principal is
payable, with different rates of interest, if any, or different methods by which
rates of interest may be determined, with different dates on which such interest
may be payable and with different Redemption or Repayment Dates and may be
denominated in different Currencies or payable in different Currencies.
If any of the terms of the Securities of any series are established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
SECTION 302. DENOMINATIONS.
Securities of each series shall be issuable in such form and denominations
as shall be specified in the form of Security for such series approved or
established pursuant to Section 201 or in the Officers' Certificate delivered
pursuant to Section 301. In the absence of any specification with respect to
the Securities of any series, the Registered Securities of such series, if any
(other than Registered Securities in global form, which may be in any
denomination), shall be issuable in denominations of $1,000 and any integral
multiples thereof and the Bearer Securities of such series, if any (other than
Bearer Securities in global form, which may be in any denomination), shall be
issuable in denominations of $5,000 and any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
(a) The Securities shall be executed on behalf of the Company by its Vice
Chairman of the Board and Chief Executive Officer, its President, its Treasurer
or one of its Vice Presidents, under its corporate seal reproduced thereon and
shall be attested by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers on the Securities may be manual or facsimile.
Coupons shall bear the facsimile signature of an authorized officer of the
Company.
Securities or coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
coupons or did not hold such offices at the date of such Securities or coupons.
(b) At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, executed by
the
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Company, to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Securities, and, except as otherwise
provided in this Article Three, the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities; PROVIDED, HOWEVER, that,
in connection with its original issuance, no Bearer Security shall be mailed or
otherwise delivered to any location in the United States; and PROVIDED FURTHER
that, unless otherwise specified with respect to any series of Securities
pursuant to Section 301, a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
Security shall have furnished a certificate in the form set forth in Exhibit A-1
to this Indenture or such other certificate as may be specified with respect to
any series of Securities pursuant to Section 301, 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 permanent Global Bearer
Security, then, for purposes of this Section 303 and Section 304, 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 permanent Global Security. Except as permitted by Section 306,
the Trustee shall not authenticate and deliver any Bearer Security unless all
appurtenant coupons for interest then matured have been detached and cancelled.
If all the Securities of any series are not to be issued at one time and if the
Board Resolution or supplemental indenture establishing such series shall so
permit, such Company Order may set forth procedures acceptable to the Trustee
for the issuance of such Securities and determining the terms of particular
Securities of such series, such as interest rate, maturity date, date of
issuance and date from which interest shall accrue. If the form or terms of the
Securities of the series have been established in or pursuant to one or more
Board Resolutions as permitted by Sections 201 and 301, in authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 601) shall be fully protected in relying upon, an Opinion of
Counsel stating,
(i) if the form of such Securities and coupons, if any, has been
established by or pursuant to a Board Resolution as permitted by Section
201, that such form has been established in conformity with the provisions
of this Indenture;
(ii) if the terms of such Securities and coupons, if any, have been
established by or pursuant to a Board Resolution as permitted by Section
301, that such terms have been established in conformity with the
provisions of this Indenture; and
(iii) that such Securities and coupons, if any, when authenticated and
delivered by the Trustee and issued by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms,
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subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles and except
further as enforcement thereof may be limited by (1) requirements that a
claim with respect to any Securities denominated other than in Dollars (or
a Foreign Currency or Currency unit judgment in respect of such claim) be
converted into Dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (2) governmental authority to
limit, delay or prohibit the making of payments in Foreign Currencies or
Currency units or payments outside the United States.
(c) If the Company shall establish pursuant to Section 301 that the
Securities of a series are to be issued in whole or in part in the form of one
or more Global Securities, then the Company shall execute and the Trustee shall,
in accordance with this Section 303, Section 304, if and to the extent
applicable, and the Company Order with respect to such series, authenticate and
deliver one or more Global Securities in permanent or temporary form that (i)
shall represent and shall be denominated in an aggregate principal amount of the
Outstanding Securities of such series to be represented by one or more Global
Securities, (ii) shall be registered in the name of the Depositary for such
Global Security or Securities or the nominee of such Depositary and (iii) shall
be delivered by the Trustee to such Depositary or pursuant to such Depositary's
instructions.
(d) If such form or terms have been so established, the Trustee shall not
be required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
(e) Notwithstanding the provisions of Section 301 and this Section 303, if
all Securities of a series are not to be originally issued at one time, it shall
not be necessary to deliver the Officers' Certificate otherwise required
pursuant to Section 301 or the Company Order and Opinion of Counsel otherwise
required pursuant to such preceding paragraph at or prior to the time of
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
(f) Each Registered Security shall be dated the date of its
authentication. Each Bearer Security shall be dated the date contemplated by
Section 301.
(g) No Security or attached coupon shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless executed and
issued by the Company and there appears on such Security a certificate of
authentication substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered
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hereunder and is entitled to the benefits of this Indenture. Except as
permitted by Section 306, the Trustee shall not authenticate and deliver any
Bearer Security unless all appurtenant coupons for interest then matured have
been detached and cancelled. Notwithstanding the foregoing, if any Security
shall have been authenticated and delivered hereunder but never issued and sold
by the Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 310, 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.
(h) Each Depositary designated pursuant to Section 301 for a Global
Security [in registered form] must, at the time of its designation and at all
times while it serves as Depositary, be a clearing agency registered under the
Exchange Act and any other applicable statute or regulation.
(i) The Securities may contain such notations, legends or endorsements
required by law, stock exchange rule or usage.
SECTION 304. TEMPORARY SECURITIES.
(a) Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities 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 conclusively evidenced by their execution of such
Securities. In the case of Securities of any series, 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 Section 304(b) or as otherwise provided in or
pursuant to a Board Resolution), or as otherwise provided in or pursuant to a
Board Resolution, 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 in a Place of Payment for
that series, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series (accompanied by any non-
matured coupons appertaining thereto), the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations; PROVIDED,
HOWEVER, that unless otherwise contemplated or specified with respect to any
series of
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Securities pursuant to Section 301, no definitive Bearer Security shall be
delivered in exchange for a temporary Registered Security; and PROVIDED FURTHER
that a Bearer Security shall be delivered in exchange for a Bearer Security only
in compliance with the applicable conditions set forth in Sections 303, 304 and
305. Until so exchanged, the temporary Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities of such series.
(b) Unless otherwise provided in or pursuant to a Board Resolution, this
Section 304(b) shall govern the exchange of temporary Securities issued in
global form. If temporary Securities of any series are issued in global form,
any such temporary Global Security shall, unless otherwise provided therein, be
delivered to the London office of a Depositary, for the benefit of Euroclear and
CEDEL, for credit to the respective accounts of the beneficial owners of 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 (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
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 deliver, 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, permanent
global bearer form or permanent global registered form, or any combination
thereof, as specified as contemplated by Section 301, and, if any combination
thereof is so specified, as requested by the beneficial owner thereof; PROVIDED,
HOWEVER, that, unless otherwise specified in such temporary Global Security,
upon such presentation by the Depositary, such temporary Global Security is
accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by Euroclear 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 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 A-2 to this Indenture or in such other form as may be established
pursuant to Section 301; and PROVIDED FURTHER that definitive Bearer Securities
shall be delivered in exchange for a portion of a temporary Global Security only
in compliance with the requirements of Section 303, 304 and Section 305, as
applicable.
Unless otherwise specified in such temporary Global Security, the
interest of a beneficial owner of Securities of a series in a temporary Global
Security
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shall be exchanged for definitive Securities of the same series and of like
tenor following the Exchange Date when the account holder instructs Euroclear or
CEDEL, as the case may be, to request such exchange on his behalf and delivers
to Euroclear or CEDEL, as the case may be, a certificate in the form set forth
in Exhibit A-1 to this Indenture (or in such other form as may be established
pursuant to Section 301), dated no earlier than 15 days prior to the Exchange
Date, copies of which certificate shall be available from the officers of
Euroclear and CEDEL, the Trustee, any Authenticating Agent appointed for such
series of Securities and each Paying Agent. Unless otherwise specified in such
temporary Global Security, 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 unless such Person takes delivery of such definitive
Securities in person at the offices of Euroclear or CEDEL. Definitive
Securities in bearer form 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 hereinabove provided, 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 301, interest payable on a temporary Global
Security on an Interest Payment Date for Securities of such series occurring
prior to the applicable Exchange Date shall be payable to Euroclear and CEDEL on
such Interest Payment Date upon delivery by Euroclear and CEDEL to the Trustee
of a certificate or certificates in the form set forth in Exhibit A-2 to this
Indenture (or in such other forms as may be established pursuant to Section 301)
for credit without further interest on or after such Interest Payment Date
to the respective accounts of Persons who are the beneficial owners of such
temporary Global Security on such Interest Payment Date and who have each
delivered to Euroclear or CEDEL, as the case may be, a certificate dated no
earlier than 15 days prior to the Interest Payment Date occurring prior to such
Exchange Date in the form set forth as Exhibit A-1 to this Indenture (or in such
other forms as may be established pursuant to Section 301). Notwithstanding
anything to the contrary herein contained, the certifications made pursuant to
this paragraph shall satisfy the certification requirements of the preceding two
paragraphs of this Section 304(b) and of Section 303(b) of this Indenture and
the interests of the Persons who are the beneficial owners of the temporary
Global Security with respect to which such certification was made will be
exchanged for definitive Securities of the same series and of like tenor on the
Exchange Date or the date of certification if such date occurs after the
Exchange Date, without further act or deed by such beneficial owners. Except as
otherwise provided in this paragraph, no payments of principal (or premium, if
any) or interest, if any, owing with respect to a beneficial interest in a
temporary Global Security will be made unless and until such interest in such
temporary Global Security shall have been exchanged for an interest in a
definitive Security. Any interest so received by Euroclear and CEDEL and not
paid as herein provided shall be returned to the Trustee prior to the expiration
of two years after such Interest Payment Date in
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order to be repaid to the Company.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at one of the offices or agencies to be
maintained by the Company in accordance with the provisions of this Section 305
and Section 1002, with respect to the Securities of each series which are
Registered Securities, a register (herein sometimes 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 of
transfers of Registered Securities. Pursuant to Section 301, the Company shall
appoint, with respect to Securities of each series which are Registered
Securities, a "Security Registrar" for the purpose of registering such
Securities and transfers and exchanges of such Securities as herein provided.
The Trustee, at its Corporate Trust office, is initially appointed "Security
Registrar" for such Registered Securities.
Upon surrender for registration of transfer of any Registered Security of
any series at the office or agency of the Company maintained for such purpose,
the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new Registered
Securities of the same series of any authorized denomination or denominations,
of like tenor and terms and aggregate principal amount, all as requested by the
transferor.
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
denomination or denominations, of like tenor and terms and aggregate principal
amount, upon surrender of the Registered Securities to be exchanged at such
office or agency. Unless otherwise specified with respect to any series of
Securities as contemplated by Section 301, Bearer Securities may not be issued
in exchange for Registered Securities.
At the option of the Holder, Registered Securities or Bearer Securities of
any series may be issued in exchange for Bearer Securities (except as otherwise
specified as contemplated by Section 301 with respect to a Bearer Security in
global form) of the same series, of any authorized denominations and of like
tenor and terms and aggregate principal amount, 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 thereto appertaining. 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
and the Trustee 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 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 any
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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 1002,
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 a permitted exchange for a
Registered Security of the same series and like tenor and terms after the close
of business at such office or agency of (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 date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date of payment, as the case may be, 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 deliver, the Securities which
the Holder making the exchange is entitled to receive.
If at any time the Depositary for the Securities of a series notifies the
Company that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for the Securities of
such series shall no longer be eligible under Section 303(h), the Company shall
appoint a successor Depositary with respect to the Securities of such series.
If a successor 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 ineligibility, the Company's election pursuant to Section 301(9)
shall no longer be effective with respect to the Securities of such series and
the Company will execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of definitive Securities of such series, will
authenticate and deliver, Securities of such series in definitive form in an
aggregate principal amount equal to the principal amount of the Global Security
or Securities representing such series in exchange for such Global Security or
Securities.
The Company may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by such Global Security or Securities. In such
event the Company will execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of definitive Securities of such series,
will authenticate and deliver, Securities of such series in definitive form and
in an aggregate principal amount equal to the principal amount of the Global
Security or Securities representing such series in exchange for such Global
Security or Securities.
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If specified by the Company pursuant to Section 301 with respect to a
series of Securities, the Depositary for such series of Securities may surrender
a Global Security for such series of Securities in exchange in whole or in part
for Securities of such series of like tenor and terms and 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
service charge,
(a) to each Person specified by such Depositary a new Security or
Securities of the same series, of like tenor and terms and of any
authorized denominations as requested by such person in aggregate principal
amount equal to and in exchange for such Person's beneficial interest in
the Global Security; and
(b) to such Depositary a new Global Security of like tenor and terms
and in a denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the aggregate
principal amount of Securities delivered to Holders thereof.
In any exchange provided for in any of the preceding three paragraphs,
the Company will execute and the Trustee will authenticate and deliver
Securities (a) in definitive registered form in authorized denominations, if the
Securities of such series are issuable as Registered Securities, (b) in
definitive bearer form in authorized denominations, with coupons attached, if
the Securities of such series are issuable as Bearer Securities or (c) as either
Registered or Bearer Securities, as shall be specified by the beneficial owner
thereof, if the Securities of such series are issuable in either form; PROVIDED,
HOWEVER, that no definitive Bearer Security shall be delivered in exchange for a
temporary Global Security unless the Company or its agent shall have received
from the person entitled to receive the definitive Bearer Security a certificate
substantially in the form set forth in Exhibit A-1 and, if applicable, A-2
hereto; and PROVIDED FURTHER that delivery of a Bearer Security shall occur only
outside the United States; and PROVIDED FURTHER that no definitive Bearer
Security will be issued if the Company has reason to know that any such
certificate is false.
Upon the exchange of a Global Security for Securities in definitive form,
such Global Security shall be cancelled by the Trustee. Registered Securities
issued in exchange for a Global Security pursuant to this Section shall be
registered in such names and in such authorized denominations as the Depositary
for such Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Registered Securities to the persons in whose names such Securities
are so registered. The Trustee shall deliver Bearer Securities issued in
exchange for a Global Security pursuant to this Section to the persons, and in
such authorized denominations, as the Depositary for such Global Security,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee; PROVIDED, HOWEVER, that no definitive Bearer
Security shall be delivered in exchange for a temporary Global Security unless
the Company or its
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agent shall have received from the person entitled to receive the definitive
Bearer Security a certificate substantially in the form set forth in Exhibit A-1
and, if applicable, A-2 hereto; and PROVIDED FURTHER that delivery of a Bearer
Security shall occur only outside the United States; and PROVIDED FURTHER that
no definitive Bearer Security will be issued if the Company has reason to know
that any such certificate is false.
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, the Security
Registrar or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar, 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 transfer, registration of transfer or exchange of Securities, other
than exchanges of Securities expressly provided in this Indenture to be made at
the Company's own expense or without expense or without charge to the Holders.
The Company shall not be required (i) to issue, register the transfer of or
exchange Securities of any particular series to be redeemed for a period of
fifteen days preceding the first publication of the relevant notice of
redemption or, if Registered Securities are outstanding and there is no
publication, the mailing of the relevant notice of redemption of Securities of
such series selected for redemption under Section 1103 and ending at the close
of business on the day of such mailing, 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 such Registered 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 like
tenor and terms of that series, PROVIDED that such Registered Security shall be
simultaneously surrendered for redemption.
Notwithstanding anything herein to the contrary, the exchange of Bearer
Securities into Registered Securities shall be subject to applicable laws and
regulations in effect at the time of exchange; neither the Company, the Trustee
nor the Security Registrar shall exchange any Bearer Securities into Registered
Securities if it has received an Opinion of Counsel that as a result of such
exchanges the Company would suffer adverse consequences under the United States
Federal income tax laws and regulations then in effect and the Company has
delivered to the Trustee a Company Order directing the Trustee not to make such
exchanges thereafter unless and until the
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Trustee receives a subsequent Company Order to the contrary. The Company shall
deliver copies of such Company Orders to the Security Registrar.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If (i) any mutilated Security or Security with a mutilated coupon is
surrendered to a Paying Agent outside the United States or, in the case of a
Registered Security, to the Trustee or (ii) the Company and the Trustee receive
evidence to their satisfaction of the loss, destruction or theft of any Security
or coupon together with, in proper cases, such security or indemnity as may be
required by the Company or the Trustee to save each of them or any agent of
either of them harmless, then, in the absence of notice to the Company or the
Trustee that such Security has been acquired by a bona fide purchaser, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor (together with all 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 any
coupons appertaining to the surrendered Security; provided, that any such Bearer
Security will be delivered only in compliance with Section 303, 304 and 305, as
applicable.
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, with coupons corresponding to the
coupons, if any, appertaining to such mutilated, destroyed, lost or stolen
Security or to the Security to which such mutilated, destroyed, lost or stolen
coupon appertains, pay such Security or coupon; PROVIDED, HOWEVER, that payment
of principal of (and premium, if any) and interest, if any, on Bearer Securities
shall, except as otherwise provided in Section 1002, be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 301, 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 of any series, with its coupons, if any, issued pursuant
to this Section in lieu of any destroyed, lost or stolen Security, or in
exchange for a Security to which a destroyed, lost or stolen coupon appertains,
shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security and its coupons, if any,
or the destroyed, lost or stolen coupon 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 of that Series and their
coupons, if any, duly issued hereunder.
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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 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED; OPTIONAL INTEREST
RESET.
(a) Except as otherwise specified with respect to a series of Securities
in accordance with the provision of Section 301, interest, if any, on any
Registered Security that 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 office or agency of
the Company maintained for such purpose pursuant to Section 1002; PROVIDED,
HOWEVER, that each installment of interest, if any, on any Registered Security
may at the Company's option be paid by (i) mailing a check for such interest,
payable to or upon the written order of the Person entitled thereto pursuant to
Section 309, to the address of such Person as it appears on the Security
Register or (ii) transfer to an account maintained by the payee inside the
United States.
Unless otherwise provided as contemplated by Section 301 with respect
to the Securities of any series, payment of interest, if any, may be made, in
the case of a Bearer Security, at the Holder's option by (i) check in the
Currency designated for such payment pursuant to the terms of the Bearer
Security presented or mailed to an address outside the United States or (ii)
transfer to an account in such Currency maintained by the payee with a bank
located outside the United States.
Unless otherwise provided as contemplated by Section 301, every
permanent Global Security will provide that interest, if any, payable on any
Interest Payment Date will be paid to each of Euroclear and CEDEL with respect
to that portion of such permanent Global Security held for its account by the
Depositary, for the purpose of permitting each of Euroclear and CEDEL to credit
the interest, if any, received by it in respect of such permanent Global
Security to the accounts of the beneficial owners thereof.
In case a Bearer Security of any series is surrendered in exchange for
a Registered Security of such series after the close of business (at an office
or agency in a Place of Payment for such series) on any Regular Record Date and
before the opening of business (at such office or agency) on the next succeeding
Interest Payment Date, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date and interest will not be payable
on such Interest Payment Date 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.
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Except as otherwise specified with respect to a series of Securities
in accordance with the provisions of Section 301, any interest on any Registered
Security of any series that 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 registered Holder thereof 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 Registered Security of such series and the date of the
proposed payment (which shall not be less than 20 days after such notice is
received by the Trustee), and at the same time the Company shall deposit
with the Trustee an amount of money in the Currency in which the Securities
of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 312(b), 312(d) and 312(e)) 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 on or 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 Registered 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 mailed as aforesaid, such Defaulted Interest shall be paid 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 such Special Record Date and shall no longer be payable
pursuant to the following clause (2). In case a Bearer Security of any
series is surrendered at the office or agency in a Place of Payment for
such series in exchange for a Registered Security of such series after the
close of business at such office or agency on 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 proposed date of payment
and Defaulted Interest will
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not be payable on such proposed date of payment 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.
(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.
(b) The provisions of this Section 307(b) may be made applicable to any
series of Securities pursuant to Section 301 (with such modifications, additions
or substitutions as may be specified pursuant to such Section 301). The interest
rate (or the spread or spread multiplier used to calculate such interest rate,
if applicable) on any Security of such series may be reset by the Company on the
date or dates specified on the face of such Security (each an "Optional Reset
Date"). The Company may exercise such option with respect to such Security by
notifying the Trustee of such exercise at least 45 but not more than 60 days
prior to an Optional Reset Date for such Security. Not later than 40 days prior
to each Optional Reset Date, the Trustee shall transmit, in the manner provided
for in Section 106, to the Holder of any such Security a notice (the "Reset
Notice") indicating whether the Company has elected to reset the interest rate
(or the spread or spread multiplier used to calculate such interest rate, if
applicable), and if so (i) such new interest rate (or such new spread or spread
multiplier, if applicable) and (ii) the provisions, if any, for redemption
during the period from such Optional Reset Date to the next Optional Reset Date
or, if there is no such next Optional Reset Date, to the Stated Maturity of such
Security (each such period a "Subsequent Interest Period"), including the date
or dates on which or the period or periods during which and the price or prices
at which such redemption may occur during the Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to the
Optional Reset Date, the Company may, at its option, revoke the interest rate
(or the spread or spread multiplier used to calculate such interest rate, if
applicable) provided for in the Reset Notice and establish an interest rate (or
a spread or spread multiplier used to calculate such interest rate, if
applicable) that is higher than the interest rate (or the spread or spread
multiplier, if applicable) provided for in the Reset Notice, for the Subsequent
Interest Period by causing the Trustee to transmit, in the manner provided for
in Section 106, notice of such higher interest rate (or such higher spread or
spread multiplier, if applicable) to the Holder of any such Security. Such
notice shall be irrevocable. All Securities with respect to which the interest
rate (or the spread or spread multiplier used to calculate such interest rate,
if applicable) is reset on an Optional Reset Date, and with respect to which the
Holders of such Securities have not tendered such Securities for repayment (or
have validly revoked any such tender)
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pursuant to the next succeeding paragraph, will bear such higher interest rate
(or such higher spread or spread multiplier, if applicable).
The Holder of any such Security will have the option to elect
repayment by the Company of the principal of such Security on each Optional
Reset Date at a price equal to the principal amount thereof plus interest
accrued to such Optional Reset Date. In order to obtain repayment on an Optional
Reset Date, the Holder must follow the procedures set forth in Article Thirteen
for repayment at the option of Holders except that the period for delivery or
notification to the Trustee shall be at least 25 but not more than 35 days prior
to such Optional Reset Date and except that, if the Holder has tendered any
Security for repayment pursuant to the Reset Notice, the Holder may, by written
notice to the Trustee, revoke such tender or repayment until the close of
business on the tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section 307 and Section
305, 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 308. OPTIONAL EXTENSION OF MATURITY.
The provisions of this Section 308 may be made applicable to any
series of Securities pursuant to Section 301 (with such modifications, additions
or substitutions as may be specified pursuant to such Section 301). The Stated
Maturity of any Security of such series may be extended at the option of the
Company for the period or periods specified on the face of such Security (each
an "Extension Period") up to but not beyond the date (the "Final Maturity") set
forth on the face of such Security. The Company may exercise such option with
respect to any Security by notifying the Trustee of such exercise at least 45
but not more than 60 days prior to the Stated Maturity of such Security in
effect prior to the exercise of such option (the "Original Stated Maturity"). If
the Company exercises such option, the Trustee shall transmit, in the manner
provided for in Section 106, to the Holder of any such Security not later than
40 days prior to the Original Stated Maturity a notice (the "Extension Notice")
indicating (i) the election of the Company to extend the Stated Maturity, (ii)
the new Stated Maturity, (iii) the interest rate, if any, applicable to the
Extension Period and (iv) the provisions, if any, for redemption during such
Extension Period. Upon the Trustee's transmittal of the Extension Notice, the
Stated Maturity of such Security shall be extended automatically and, except as
modified by the Extension Notice and as described in the next paragraph, such
Security will have the same terms as prior to the transmittal of such Extension
Notice.
Notwithstanding the foregoing, not later than 20 days before the
Original Stated Maturity of such Security, the Company may, at its option,
revoke the interest rate provided for in the Extension Notice and establish a
higher interest rate for the Extension Period by causing the Trustee to
transmit, in the manner provided for in
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Section 106, notice of such higher interest rate to the Holder of any such
Security. Such notice shall be irrevocable. All Securities with respect to which
the Stated Maturity is extended will bear such higher interest rate.
If the Company extends the Stated Maturity of any Security, the Holder
will have the option to elect repayment of such Security by the Company on the
Original Stated Maturity at a price equal to the principal amount thereof, plus
interest accrued to such date. In order to obtain repayment on the Original
Stated Maturity once the Company has extended the Stated Maturity thereof, the
Holder must follow the procedures set forth in Article Thirteen for repayment at
the option of Holders, except that the period for delivery or notification to
the Trustee shall be at least 25 but not more than 35 days prior to the Original
Stated Maturity and except that, if the Holder has tendered any Security for
repayment pursuant to an Extension Notice, the Holder may by written notice to
the Trustee revoke such tender for repayment until the close of business on the
tenth day before the Original Stated Maturity.
SECTION 309. 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 Security for the purpose of receiving payment of principal of (and
premium, if any) and (subject to Section 305 and 307) any interest on such
Registered Security and for all other purposes whatsoever, whether or not such
Registered 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 appertaining thereto
shall pass by delivery. The Company, the Trustee and any agent of the Company
or the Trustee may treat the bearer of any Bearer Security and the bearer of any
coupon as the absolute owner of such Security or coupon for the purpose of
receiving payment thereof or on account thereof 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.
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 of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any 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 any Depositary, as a Holder, with respect to
such Global Security or
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impair, as between such Depositary and owners of beneficial interests in such
Global Security, the operation of customary practices governing the exercise of
the rights of such Depositary (or its nominee) as Holder of such Global
Security.
SECTION 310. CANCELLATION.
All Securities and coupons surrendered for payment, redemption,
repayment at the option of the Holder, 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 and shall be promptly
cancelled by it. The Company may at any time deliver to the Trustee for
cancellation 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
cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold, and all Securities so delivered shall be promptly
cancelled by the Trustee. If the Company shall so acquire any of the
Securities, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and until
the same are surrendered to the Trustee for cancellation. No Securities shall
be authenticated in lieu of or in exchange for any Securities cancelled as
provided in this Section, except as expressly permitted by this Indenture. All
cancelled Securities and coupons held by the Trustee shall be disposed of as
directed by a Company Order.
SECTION 311. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
SECTION 312. CURRENCY AND MANNER OF PAYMENTS IN RESPECT OF SECURITIES.
(a) Unless otherwise specified with respect to any Securities pursuant to
Section 301, with respect to Registered Securities of any series not permitting
the election provided for in paragraph (b) below or the Holders of which have
not made the election provided for in paragraph (b) below, and with respect to
Bearer Securities of any series, except as provided in paragraph (d) below,
payment of the principal of (and premium, if any) and interest, if any, on any
Registered or Bearer Security of such series will be made in the Currency in
which such Registered Security or Bearer Security, as the case may be, is
payable. The provisions of this Section 312 may be modified or superseded with
respect to any Securities pursuant to Section 301.
(b) It may be provided pursuant to Section 301 with respect to Registered
Securities of any series that Holders shall have the option, subject to
paragraphs (d) and (e) below, to receive payments of principal of (or premium,
if any) or interest, if
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any, on such Registered Securities in any of the Currencies which may be
designated for such election by delivering to the Trustee for such series of
Registered Securities a written election with signature guarantees and in the
applicable form established pursuant to Section 301, not later than the close of
business on the Election Date (as defined below) immediately preceding the
applicable payment date. If a Holder so elects to receive such payments in any
such Currency, such election will remain in effect for such Holder or any
transferee of such Holder until changed by such Holder or such transferee by
written notice to the Trustee for such series of Registered Securities (but any
such change must be made not later than the close of business on the Election
Date immediately preceding the next payment date to be effective for the payment
to be made on such payment date and no such change of election may be made with
respect to payments to be made on any Registered Security of such series with
respect to which an Event of Default has occurred or with respect to which the
Company has deposited funds pursuant to Article Four or Fifteen or with respect
to which a notice of redemption has been given by the Company or a notice of
option to elect repayment has been sent by such Holder or such transferee). Any
Holder of any such Registered Security who shall not have delivered any such
election to the Trustee of such series of Registered Securities not later than
the close of business on the applicable Election Date will be paid the amount
due on the applicable payment date in the relevant Currency as provided in
Section 312(a). The Trustee for each such series of Registered Securities shall
notify the Exchange Rate Agent as soon as practicable after the Election Date of
the aggregate principal amount of Registered Securities for which Holders have
made such written election.
(c) Unless otherwise specified pursuant to Section 301, if the election
referred to in paragraph (b) above has been provided for pursuant to Section
301, then, unless otherwise specified pursuant to Section 301, not later than
the fourth Business Day after the Election Date for each payment date for
Registered Securities of any series, the Exchange Rate Agent will deliver to the
Company a written notice specifying the Currency in which Registered Securities
of such series are payable, the respective aggregate amounts of principal of
(and premium, if any) and interest, if any, on the Registered Securities to be
paid on such payment date, specifying the amounts in such Currency so payable in
respect of the Registered Securities as to which the Holders of Registered
Securities denominated in any Currency shall have elected to be paid in another
Currency as provided in paragraph (b) above. If the election referred to in
paragraph (b) above has been provided for pursuant to Section 301 and if at
least one Holder has made such election, then, unless otherwise specified
pursuant to Section 301, on the second Business Day preceding such payment date
the Company will deliver to the Trustee for such series of Registered Securities
an Exchange Rate Officer's Certificate in respect of the Dollar or Foreign
Currency or Currencies amount receivable by Holders of Registered Securities who
have elected payment in a Currency as provided in paragraph (b) above. Such
amounts shall be determined by the Company on the basis of the applicable Market
Exchange Rate in effect on the second Business Day (the "Valuation Date")
immediately preceding each payment date, and such determination shall be
conclusive and binding for all
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purposes, absent manifest error.
(d) If a Conversion Event occurs with respect to a Foreign Currency in
which any of the Securities are denominated or payable other than pursuant to an
election provided for pursuant to paragraph (b) above, then with respect to each
date for the payment of principal of (and premium, if any) and interest, if any,
on the applicable Securities denominated or payable in such Foreign Currency
occurring after the last date on which such Foreign Currency was used (the
"Conversion Date"), the Dollar shall be the currency of payment for use on each
such payment date. Unless otherwise specified pursuant to Section 301, the
Dollar amount to be paid by the Company to the Trustee of each such series of
Securities and by such Trustee or any Paying Agent to the Holders of such
Securities with respect to such payment date shall be, in the case of a Foreign
Currency other than a currency unit, the Dollar Equivalent of the Foreign
Currency (as defined below) or, in the case of a currency unit, the Dollar
Equivalent of the Currency Unit (as defined below), in each case as determined
by the Exchange Rate Agent in the manner provided in paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 301, if the Holder of a
Registered Security denominated in any Currency shall have elected to be paid in
another Currency as provided in paragraph (b) above, and a Conversion Event
occurs with respect to such elected Currency, such Holder shall receive payment
in the Currency in which payment would have been made in the absence of such
election; and if a Conversion Event occurs with respect to the Currency in which
payment would have been made in the absence of such election, such Holder shall
receive payment in Dollars as provided in paragraph (d) of this Section 312.
(f) "Dollar Equivalent" when used with respect to any Foreign Currency
shall be determined by the Exchange Rate Agent and shall be obtained for each
subsequent payment date by converting the specified Foreign Currency into
Dollars at the Market Exchange Rate on the Conversion Date.
(g) "Dollar Equivalent" when used with respect to any Currency Unit shall
be determined by the Exchange Rate Agent and subject to the provisions of
paragraph (h) below shall be the sum of each amount obtained by converting the
Specified Amount (as defined below) of each Component Currency (as defined
below) into Dollars at the Market Exchange Rate for such Component Currency on
the Valuation Date with respect to each payment.
(h) For purposes of this Section 312, 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, but not limited to, the ECU. A "SPECIFIED AMOUNT" of a
Component Currency shall
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mean the number of units of such Component Currency or fractions thereof
which were represented in the relevant currency unit, including, but not
limited to, the ECU, on the Conversion Date. If after the Conversion 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 the
Conversion 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 the Conversion Date any Component
Currency shall be divided into two or more currencies, the Specified Amount
of such Component Currency shall be replaced by amounts of such two or more
currencies, having an aggregate Dollar Equivalent value at the Market
Exchange Rate on the date of such replacement equal to the Dollar
Equivalent of the Specified Amount of such former Component Currency at the
Market Exchange Rate immediately before such division, and such amounts
shall thereafter be Specified Amounts and such currencies shall thereafter
be Component Currencies. If, after the Conversion Date of the relevant
currency unit, including, but not limited to, the ECU, a Conversion Event
(other than any event referred to above in this definition of "Specified
Amount") occurs with respect to any Component Currency of such currency
unit and is continuing on the applicable Valuation Date, the Specified
Amount of such Component Currency shall, for purposes of calculating the
Dollar Equivalent of the Currency Unit, be converted into Dollars at the
Market Exchange Rate in effect on the Conversion Date of such Component
Currency.
"Election Date" shall mean the Regular Record Date for the applicable
series of Registered Securities or at least 16 days prior to Maturity, as
the case may be, or such other prior date for any series of Registered
Securities as specified pursuant to Section 301(14) by which the written
election referred to in Section 312(b) may be made.
All decisions and determinations of the Exchange Rate Agent regarding the
Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the Currency
Unit, the Market Exchange Rate and changes in the Specified Amounts as specified
above 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,
the Trustee for the appropriate series of Securities and all Holders of such
Securities denominated or payable in the relevant Currency. The Exchange Rate
Agent shall promptly give written notice to the Company and the Trustee for the
appropriate series of Securities of any such decision or determination.
In the event that the Company determines in good faith that a Conversion
Event
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has occurred with respect to a Foreign Currency, the Company will immediately
give written notice thereof to the Trustee of the appropriate series of
Securities and to the Exchange Rate Agent (and such Trustee will promptly
thereafter give notice in the manner provided in Section 106 to the affected
Holders) specifying the Conversion Date. In the event the Company so determines
that a Conversion Event has occurred with respect to the ECU or any other
currency unit in which Securities are denominated or payable, the Company will
immediately give written notice thereof to the Trustee of the appropriate series
of Securities and to the Exchange Rate Agent (and such Trustee will promptly
thereafter give notice in the manner provided in Section 106 to the affected
Holders) specifying the Conversion Date and the Specified Amount of each
Component Currency on the Conversion Date. In the event the Company determines
in good faith that any subsequent change in any Component Currency as set forth
in the definition of Specified Amount above has occurred, the Company will
similarly give written notice to the Trustee of the appropriate series of
Securities and to the Exchange Rate Agent (and such Trustee will promptly
thereafter give notice in the manner provided in Section 106 to the affected
Holders).
The Trustee of the appropriate series of Securities 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 the accuracy or validity of such information
independent of the Company or the Exchange Rate Agent.
SECTION 313. APPOINTMENT AND RESIGNATION OF SUCCESSOR EXCHANGE RATE AGENT.
(a) Unless otherwise specified pursuant to Section 301, if and so long as
the Securities of any series (i) are denominated in a Foreign Currency or (ii)
may be payable in a Foreign Currency, or so long as it is required under any
other provision of this Indenture, then the Company will maintain with respect
to each such series of Securities, or as so required, at least one Exchange Rate
Agent. The Company will cause the Exchange Rate Agent to make the necessary
foreign exchange determinations at the time and in the manner specified pursuant
to Section 301 for the purpose of determining the applicable rate of exchange
and, if applicable, for the purpose of converting the issued Foreign Currency
into the applicable payment Currency for the payment of principal (and premium,
if any) and interest, if any, pursuant to Section 312.
(b) No resignation of the Exchange Rate Agent and no appointment of a
successor Exchange Rate Agent pursuant to this Section shall become effective
until the acceptance of appointment by the successor Exchange Rate Agent as
evidenced by a written instrument delivered to the Company and the Trustee of
the appropriate series of Securities accepting such appointment executed by the
successor Exchange Rate Agent.
(c) If the Exchange Rate Agent shall resign, be removed or become
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incapable of acting, or if a vacancy shall occur in the office of the Exchange
Rate Agent for any cause, with respect to the Securities of one or more series,
the Company, by or pursuant to a Board Resolution, shall promptly appoint a
successor Exchange Rate Agent or Exchange Rate Agents with respect to the
Securities of that or those series (it being understood that any such successor
Exchange Rate Agent may be appointed with respect to the Securities of one or
more or all of such series and that, unless otherwise specified pursuant to
Section 301, at any time there shall only be one Exchange Rate Agent with
respect to the Securities of any particular series that are originally issued by
the Company on the same date and that are initially denominated and/or payable
in the same Currency).
SECTION 314. CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall indicate the "CUSIP" numbers of
the Securities in notices of redemption as a convenience to Holders; PROVIDED
that any such notice may state that no representation is made as to the
correctness or accuracy of such numbers either as printed on the Securities or
as contained in any notice of redemption and that reliance may be placed only on
the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
SECTION 315. CERTIFICATION BY A PERSON ENTITLED TO DELIVERY OF BEARER SECURITY.
Whenever any provision of this Indenture or a Security contemplates
that certification be given by a Person entitled to delivery of a Bearer
Security, such certification shall be provided substantially in the form of
Exhibit A-1 and, if applicable, A-2 hereto, with only such changes as shall be
approved by the Company and consented to by the Trustee whose consent shall not
unreasonably be withheld.
SECTION 316. JUDGMENTS.
The Company may provide, pursuant to Section 301, for the Securities
of any series that, to the fullest extent possible under applicable law and
except as may otherwise be specified as contemplated in Section 301, (a) the
obligation, if any, of the Company to pay the principal of (and premium, if any)
and interest on the Securities of any series and any appurtenant coupons in a
Foreign Currency, composite Currency or Dollars (the "Designated Currency") as
may be specified pursuant to Section 301 is of the essence and agrees that
judgments in respect of such Securities shall be given in the Designated
Currency; (b) the obligation of the Company to make payments in the Designated
Currency of the principal of (and premium, if any) and interest on such
Securities and any appurtenant coupons shall notwithstanding any payment in any
other currency (whether pursuant to a judgment or otherwise), be discharged only
to the extent of the amount in the Designated Currency that the Holder receiving
such payment may, in accordance with normal banking procedures, purchase with
the sum
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paid in such other currency (after any premium and cost of exchange) in the
country of issue of the Designated Currency in the case of Foreign Currency or
Dollars or in the international banking community in the case of a composite
currency on the Business Day immediately following the day of such payment; (c)
if the amount in the Designated Currency that may be purchased falls short of
the amount originally due for any reason, the Company shall pay such additional
amounts needed to compensate for any short fall; and (d) any obligation of the
Company not discharged by such payment shall be due as a separate and
independent obligation and, until discharged as provided herein, shall continue
in full force and effect.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for and rights to receive
payments of principal (and premium, if any) and interest thereon and any right
to receive additional amounts, as provided in Section 1005), and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated, issued and
delivered and all coupons appertaining thereto (other than (i) coupons
appertaining to Bearer Securities surrendered in exchange for Registered
Securities and maturing after such exchange, surrender of which is not required
or has been waived as provided in Section 305; (ii) Securities which have been
destroyed, lost or stolen and which have been replaced or paid as provided in
Section 306; (iii) coupons appertaining to Bearer Securities called for
redemption or surrendered for repayment and maturing after the relevant
Redemption Date or Repayment Date, as appropriate, surrender of which has been
waived as provided in Section 1106 or 1303; and (iv) Securities 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 1003), have been delivered to the Trustee for
cancellation; or
(B) all such Securities and, in the case of (B) (i) or (ii)
below, any coupons appertaining thereto, not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year,
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or
(iii) if redeemable at the option of the Company, 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 (B) (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust an amount
sufficient to pay and discharge the entire indebtedness on such Securities and
such coupons not theretofore delivered to the Trustee for cancellation, for
principal (and any premium , if any) and interest to the date of such deposit
(in the case of Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, or any Repayment Dates as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; 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 this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 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 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
(a) Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 or 1504 shall be held
in trust and applied by it, in accordance with the provisions of the Securities,
the coupons 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 for whose payment such money has been deposited
with the Trustee.
(b) If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article Four with respect to the Securities of any series
by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company's obligations under this Indenture and the Securities of such series
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article Four with respect to Securities of such
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series until such time as the Trustee or Paying Agent is permitted to apply all
money held in trust pursuant to this Section 402 with respect to Securities of
such series in accordance with this Article Four; provided, however, that if the
Company makes any payment of principal (or premium, if any) or interest on any
Security of such series following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of Securities of such
series to receive payment from the money so held in trust.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any installment of interest upon any
Security of that series or of any coupon appertaining thereto when it becomes
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 Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty a default in
whose performance or whose breach is elsewhere in this Section 501 specifically
dealt with or which has expressly been included in this Indenture solely for the
benefit of a series of Securities other than that series), and continuance of
such default or breach for a period of 60 days after there has 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 principal amount of the
Outstanding Securities of that series a written notice specifying such default
or breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(5) a decree or order by a court having jurisdiction in the premises
shall have been entered adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization of the Company
under any Bankruptcy Law, and such decree or order shall have continued
undischarged and unstayed for a
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period of 60 days; or a decree or order of a court having jurisdiction in the
premises for the appointment of a receiver or liquidator or trustee or assignee
in bankruptcy or insolvency of the Company or of its property, or for the
winding-up or liquidation of its affairs, shall have been entered, and such
decree or order shall have remained in force undischarged and unstayed for a
period of 60 consecutive days; or
(6) the Company shall institute proceedings to be adjudicated a
voluntary bankrupt, or shall consent to the filing of a bankruptcy proceeding
against it, or shall file a petition or answer or consent seeking reorganization
under any Bankruptcy Law, or shall consent to the filing of any such petition,
or shall consent to the appointment of a receiver or liquidator or trustee or
assignee in bankruptcy or insolvency of it or of its property or shall make an
assignment for the benefit of creditors, or shall admit in writing its inability
to pay its debts generally as they become due; or
(7) any other Event of Default provided with respect to Securities of
that series.
"BANKRUPTCY LAW" means Title 11, United States Code, or any similar Federal
or state law for the relief of debtors. "CUSTODIAN" means any receiver,
trustee, assignee, liquidator, custodian or similar official under any
Bankruptcy Law.
A Default under clause (4) above is not an Event of Default until the
Trustee notifies the Company, or the Holders of at least 25% in principal amount
of the Outstanding Securities for that series notify the Company and the
Trustee, of the Default and the Company does not cure such Default (and such
Default is not waived) within the time specified in clause (4) above after
receipt of such notice. Any such notice must specify the Default, demand that it
be remedied and state that such notice is a Notice of Default.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Securities of any series at the time
Outstanding (other than an Event of Default specified in Section 504 (5) or
(6)) occurs and is continuing, unless the principal amount of all the Securities
of such series shall have already become due and payable, then in every such
case the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if
any of the Securities of that series are Original Issue Discount Securities or
Indexed Securities, such portion of the principal amount of such Securities as
may be specified in the terms thereof) of all of the Securities of that series
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) shall become immediately due and payable. If an
Event of Default specified in Section 501(5) or (6) occurs and is continuing,
the principal amount (or, if any of the Securities of that series are Original
Issue Discount Securities or Indexed Securities, such portion of the principal
amount of such Securities as may be specified in the terms hereof) of all of the
Outstanding
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Securities of that series shall become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any Holders
of that series. Upon payment to the Holders of such amount, all obligations of
the Company in respect of the payment of principal of the Securities of such
series shall terminate.
At any time after such acceleration with respect to Securities of any
series has occurred 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, in the Currency in which the Securities of that series are
payable (except as may otherwise be specified pursuant to Section 301 for such
series and except as may be provided in Section 312, if and to the extent
applicable):
(A) all overdue installments of interest on all Outstanding
Securities of that series, and any related coupons,
(B) the principal of (and premium, if any, on) all Outstanding
Securities of that series which have become due otherwise than by such
acceleration and any 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 the Defaulted Interest at the rate or rates prescribed
therefor in such Securities and any related coupons, and
(D) all sums paid or advanced by the Trustee hereunder, except as
a result of its negligence or bad faith, 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 non-payment of the principal of (or premium, if any) or interest
on Securities of that series which have become due solely by such acceleration,
have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if an Event of Default specified in Sections
501(1) or 501(2) occurs, the Company will, upon demand of the Trustee, pay to
the Trustee, for the benefit of the Holders of such Securities and coupons, the
whole amount then due and payable on such Securities and coupons for principal
(and premium, if any) and interest 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, at the rate or
rates prescribed therefor in such Securities and coupons, 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, which are not the result of the
Trustee's gross negligence or willful misconduct, 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, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon Securities of such series 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 Securities of
such series, wherever situated.
If an Event of Default with respect to Securities 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 of such series and any
related coupons 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 504. 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
of any series shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have made
any demand on the Company for the payment of any overdue principal, premium 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 (or in the
case of Original Issue Discount Securities or Indexed Securities, such portion
of the principal as may be provided in the terms thereof) (and premium, if any)
and interest, if any,
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owing and unpaid in respect of the Securities and any appurtenant coupons 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 [which are not
the result of the Trustee's gross negligence or willful misconduct], 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 of Securities of such series and coupons 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 to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee and any predecessor Trustee, their agents and counsel, and any other
amounts due the Trustee or any predecessor Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or coupon in any such proceeding; provided, however, that the Trustee
may, on behalf of the Holders, vote for the election of a trustee in bankruptcy
or similar official and be a member of a creditors' or other similar committee.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES OR
COUPONS.
All rights of action and claims under this Indenture or the Securities or
coupons may be prosecuted and enforced by the Trustee without the possession of
any of the Securities 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 in respect of which
such judgment has been recovered.
SECTION 506. 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
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presentation of the Securities or coupons, or both, and the notation thereon of
the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection, including
all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses and disbursements of the Trustee [which are not the
result of the Trustee's gross negligence or willful misconduct], its agents
and counsel and all other amounts due the Trustee under Section 607;
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 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 for principal (and
premium, if any) and interest, respectively. The Holders of each series of
Securities denominated in ECU, any other composite Currency or a Foreign
Currency and any matured coupons relating thereto shall be entitled to
receive a ratable portion of the amount determined by the Exchange Rate
Agent by converting the principal amount Outstanding of such series of
Securities and matured but unpaid interest on such series of Securities in
the Currency in which such series of Securities is denominated into Dollars
at the Exchange Rate as of the date of declaration of acceleration of the
Maturity of the Securities; and
THIRD: The balance, if any, to the Company or any other Person or
Persons entitled thereto.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Security of any series or any related coupons 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) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series 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
security or indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
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(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;
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 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 of such
Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND
INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of any
Security or 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 305 or 307) interest on such Security or coupon on the respective Stated
Maturities expressed in such Security or coupon (or, in the case of redemption
or repayment, on the Redemption Date or Repayment Date) and to institute suit
for the enforcement of any such payment on and after the respective Stated
Maturities or applicable Redemption Date or Repayment Date, and such rights
shall not be impaired without the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder of any Security or coupon 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 of any Security or coupon shall continue as though no such
proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities or coupons in the last paragraph
of Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders of any Security or coupon is intended to be exclusive
of any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be
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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 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Security or
coupon 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. 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 512. CONTROL BY HOLDERS.
The Holders of 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, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
This Section 512 shall be in lieu of Section 316 (a)(1)(A) of the Trust
Indenture Act and such Section 316 (a)(1)(A) is hereby expressly excluded from
this Indenture, as permitted by the Trust Indenture Act.
SECTION 513. 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 and any related coupons 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 on any Security of such series or any related coupons, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series or coupons affected.
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Upon any such waiver, such default shall cease to exist, and any Event of
Default 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. This Section 513 shall be in
lieu of Section 316 (a)(1)(B) of the Trust Indenture Act and such Section 316
(a)(1)(B) is hereby expressly excluded from this Indenture, as permitted by the
Trust Indenture Act.
SECTION 514. UNDERTAKING FOR COSTS.
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, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in Section
315(e) of the Trust Indenture Act; provided that neither this Section nor the
Trust Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Company.
SECTION 515. WAIVER OF USURY, 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 usury, 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 SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
The duties and responsibilities of the Trustee shall be as provided by
Section 315 of the Trust Indenture Act and this Indenture. Except during the
continuance of an Event of Default and after the curing or waiving of all such
Events of Default which may have occurred, the Trustee undertakes to perform
such duties and only such duties as are specifically set forth in this
Indenture, and the Trustee shall not be liable except for the performance of
such duties and obligations as are specifically set forth in this Indenture, and
no implied covenants or obligations shall be read into this Indenture against
the Trustee. Notwithstanding the foregoing, no provision of this Indenture
shall require the Trustee to expend or risk its own funds or otherwise incur any
financial
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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 601.
SECTION 602. NOTICE OF DEFAULTS.
If a default occurs hereunder with respect to Securities of any series, the
Trustee shall give the Holders of Securities of such series notice of such
default as and to the extent provided by Section 315(b) of the Trust Indenture
Act; PROVIDED, HOWEVER, that in the case of any default of the character
specified in Section 501(4) with respect to Securities of such series, no such
notice to Holders shall be given until at least 30 days after the occurrence
thereof. For the purpose of this Section 602, 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 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or other
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, 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 instruction, 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 shall 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 to take any action hereunder, the Trustee (unless
other evidence is herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) before the Trustee acts or refrains from acting, 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;
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(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 of Securities of any series or any related coupons
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) prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, the Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, Officers' Certificate, or other certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
appraisal, bond, debenture, note, coupon, security, or other paper or
document unless requested in writing so to do by the Holders of not less
than a majority in aggregate principal amount of the Securities then
outstanding; provided that, if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by it
in the making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the
terms of this Indenture, the Trustee may require reasonable indemnity
against such expenses or liabilities as a condition to proceeding; the
reasonable expenses of every such examination shall be paid by the Company
or, if advanced by the Trustee, shall be repaid by the Company upon demand;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys reasonably acceptable to the Company and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder.
(h) the Trustee shall not be responsible for the computation of any
adjustment to the Conversion Price or for any determination as to whether
an adjustment is required;
(i) the Trustee shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture;
(j) the Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder;
(k) the Trustee shall not be bound to ascertain or inquire as to the
performance or observance of any covenants, conditions, or agreements on
the part of the Company, except as otherwise set forth herein, but the
Trustee may require of the Company full information and advice as to the
performance of the covenants, conditions and agreements contained herein
and shall be entitled in connection herewith to examine the books, records
and premises of the Company;
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(l) the permissive rights of the Trustee to do things enumerated in
this Indenture shall not be construed as a duty and the Trustee shall not
be answerable for other than its negligence or willful default; and
(m) except for (i) a default under Section 501(1) or (2) hereof, or
(ii) any other event of which the Trustee has "actual knowledge" and which
event, with the giving of notice or the passage of time or both, would
constitute an Event of Default under this Indenture, the Trustee shall not
be deemed to have notice of any default or event unless specifically
notified in writing of such event by the Company or the Holders of not less
than 25% in aggregate principal amount of the Securities Outstanding; as
used herein, the term "actual knowledge" means the actual fact or statement
of knowing, without any duty to make any investigation with regard thereto.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, and in any coupons, shall be taken as the
statements of the Company, and the Trustee or any Authenticating Agent assumes
no responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities or any
coupons, except that the Trustee represents that it is duly authorized to
execute and deliver this Indenture, authenticate the Securities and perform its
obligations hereunder and that the statements made by it in a Statement of
Eligibility on Form T-1 supplied to the Company are true and accurate, subject
to the qualifications set forth therein. The Trustee or any Authenticating
Agent shall not be accountable for the use or application by the Company of
Securities or the proceeds thereof.
SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, 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 and coupons and, subject
to Sections 608 and 613, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed to in writing by the Company and the Trustee.
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SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Trustee from time to time, and the Trustee shall be
entitled to, reasonable compensation as the Company and the Trustee shall
from time to time agree in writing 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 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 gross negligence or
willful misconduct; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without gross negligence or willful
misconduct 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 or investigating any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder.
The obligations of the Company under this Section 607 to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture. As security for the performance of such
obligations of the Company, the Trustee shall have a claim 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 (and premium, if any,
on) or interest on particular Securities, and the Securities are hereby
subordinated to such prior claim. When the Trustee incurs expenses or renders
services in connection with an Event of Default specified in Article Five
hereof, the expenses (including reasonable fees and expenses of its counsel) and
the compensation for the service in connection therewith are intended to
constitute expense of administration under any applicable bankruptcy law.
The Trustee shall give the Company notice of any claim or liability for
which the Trustee might be entitled to indemnification under subparagraph (3) of
this Section 607 within a reasonable amount of time after a trust officer of the
Trustee becomes aware of such claim or liability.
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SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee has or shall acquire a conflicting interest within the
meaning of Section 310(b) 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 being a trustee under the Indentures, dated as
of March 15, 1985 and October 1, 1991, between the Company and the Trustee.
Nothing herein shall prevent the Trustee from filing with the Commission the
application referred to in the penultimate paragraph of Section 310(b) of the
Trust Indenture Act.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a Person
that is eligible pursuant to Section 310(a) of the Trust Indenture Act to act
as such and has a combined capital and surplus of at least $50,000,000 and its
Corporate Trust Office is in the Borough of Manhattan, The City of New York, New
York or in the City of Chicago, Illinois. The Trustee hereby represents and
warrants that it is currently in compliance and at all times will remain in
compliance with the foregoing requirements of this Section 609. If such 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 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 Affiliate of the Company
shall serve as Trustee hereunder. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 609, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
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 611.
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 611 shall not have been
delivered to the 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.
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
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Securities of such series, delivered to the Trustee and to the Company.
If at any time:
(1) the Trustee shall fail to comply with Section 310(b) of the Trust
Indenture Act pursuant to Section 608 hereof after written request therefor
by the Company or by any Holder who has been a bona fide Holder of a
Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by any such
Holder, 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, or
(4) the Trustee shall commence a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or state bankruptcy, insolvency or similar law or shall consent to
the appointment of or taking possession by a receiver, custodian,
liquidator, assignee, trustee, sequestrator (or other similar official) of
the Trustee or its property or affairs, or shall make an assignment for the
benefit of creditors, or shall admit in writing its inability to pay its
debts generally as they become due, or shall take corporate action in
furtherance of any such action,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, or the Trustee,
petition any court of competent jurisdiction for the removal of the Trustee with
respect to all Securities and the appointment of a successor Trustee or
Trustees.
If the Trustee shall resign, be removed or become incapable of acting, or
if a vacancy shall occur in the office of 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 or all of such series
and that at any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the applicable
requirements of Section 611. 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
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shall, forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 611, 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 611, 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, or the
Trustee, petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
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 to all Holders of
Securities of such series in the manner provided in 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 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
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.
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
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the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee,
it being understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; 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.
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 the
first two paragraphs of this Section 611, as the case may be.
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 and under the Trust Indenture Act.
SECTION 612. 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 of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article and under the Trust Indenture Act, 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 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Securities), the Trustee shall be subject to the
provisions of Section 311(a) of the Trust Indenture Act regarding the collection
of claims against the
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Company (or any such other obligor), excluding any creditor relationships
described in Section 311(b) of the Trust Indenture Act. A Trustee who resigned
or has been removed shall be subject to Section 311(a) of the Trust Indenture
Act to the extent indicated therein.
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee 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
and exchange, registration of transfer or partial redemption thereof or pursuant
to Section 306, 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 Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. 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 614, 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 an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section 614, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. 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
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in accordance with the provisions of this Section 614, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the Company and
shall mail written notice of such appointment by first-class mail, postage
prepaid, to all Holders of Securities 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 614.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 607.
If an appointment with respect to one or more series is made pursuant to
this Section 614, 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 therein referred to in
the within-mentioned Indenture.
------------------------------
AS TRUSTEE
BY
------------------------------
AS AUTHENTICATING AGENT
BY
------------------------------
AUTHORIZED OFFICER
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than 15 days after each Regular Record
Date for each series of Securities at the time Outstanding, a list, in such
form as the Trustee
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may reasonably require, of the names and addresses of the Holders of
Registered Securities of such series as of the preceding Regular Record
Date (or a date to be determined pursuant to Section 301 for Original Issue
Discount Securities), 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 as of a date not more than 15 days prior to the
time such list is furnished;
EXCLUDING from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Registered Holders contained in the most
recent list furnished to the Trustee as provided in Section 701 and the names
and addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished. The Trustee shall preserve
for at least two years the names and addresses of Holders of Bearer Securities
filed with the Trustee by such Holders.
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 privileges of the Trustee, shall be as provided by Section 312(b) of
the Trust Indenture Act.
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 any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
SECTION 703. REPORTS BY TRUSTEE.
The Trustee shall transmit to Holders such reports concerning the Trustee
and its actions under this Indenture as may be required pursuant to Section 313
of the Trust Indenture Act at the times and in the manner provided pursuant
thereto, if so required.
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.
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SECTION 704. REPORTS BY COMPANY.
The Company shall file with the Trustee and the Commission, and transmit to
Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to Section 314(a) of the Trust Indenture
Act at the times and in the manner provided pursuant to the TIA; provided that
any such information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed
with the Trustee within 15 days after the same is so required to be filed with
the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other Person or
convey, transfer or lease all or substantially all of its properties and assets
to any Person, and the Company shall not permit any Person to consolidate with
or merge into the Company or convey, transfer or lease all or substantially all
of its properties and assets to the Company, unless:
(1) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease all or substantially all of its
properties and assets to any Person, the Person formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, all or substantially
all of the properties and assets of the Company shall be a corporation,
partnership or trust, shall be organized and validly existing under the
laws of the United States of America, any State thereof 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 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 and treating
any indebtedness which becomes an obligation of the Company or any
Subsidiary as a result of such transaction as having been incurred by the
Company or such Subsidiary at the time of 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 happened and be continuing;
(3) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company would
become subject to a mortgage, pledge, lien, security interest or other
encumbrance which would not be
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permitted by this Indenture, the Company or such successor Person, as the
case may be, shall take such steps as shall be necessary to effectively
secure the Securities equally and ratably with (or prior to) all
indebtedness secured thereby; and
(4) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture comply
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
SECTION 802. SUCCESSOR PERSON SUBSTITUTED.
Upon any consolidation of the Company with, or merger of the Company into
any other Person or any conveyance, transfer or lease of all or substantially
all of the properties and assets of the Company in accordance with Section 801,
the successor Person formed by such consolidation or into which the Company is
merged or to which such conveyance, transfer or lease 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 Person had been
named as the Company herein, and thereafter the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities and coupons. The Trustee shall enter into a supplemental indenture
to evidence the succession and substitution of such successor person and the
discharge and release of the Company.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders of Securities or coupons, the Company,
when authorized by 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 Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities or coupons (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
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herein conferred upon the Company; or
(3) to add any additional Events of Default (and if such Events of
Default are to be applicable to less than all series of Securities, stating
that such Events of Default are expressly being included solely to be
applicable to such series): or
(4) to add to, change or eliminate any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal (or premium, if any) on Registered Securities or of principal (or
premium, if any) or any interest on Bearer Securities, to permit Bearer
Securities to be issued in exchange for Registered Securities of other
authorized denominations or to permit or facilitate the issuance of
Securities in uncertificated form; PROVIDED that any such action shall not
adversely affect the interests of the Holders of Securities of any series
or any related coupons in any material respect; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, PROVIDED that any
such addition, change or elimination (i) shall neither (A) apply to any
Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (B) modify the
rights of the Holder of any such Security with respect to such provision or
(ii) shall become effective only when there is no Outstanding Security; or
(6) to secure the Securities pursuant to the requirements of Section
1010 or otherwise; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) 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 611; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture; PROVIDED THAT such action pursuant to this clause (9)
shall not adversely affect the interests of the Holders of Securities of
any series or any appurtenant coupons in any material respect; or
(10) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act.
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SECTlON 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than 66 2/3% in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by 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 premium, if any) or the rate of interest thereon or
[any premium payable upon the redemption thereof, or] repayment thereof, or
change any obligation of the Company to pay additional amounts pursuant to
Section 1005 (except as contemplated by Section 801(1) and permitted by
Section 901(1)) 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 502, or change any
Place of Payment where, or the Currency in which, any Security (or premium,
if any) or 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 or repayment, on or after
the Redemption Date or Repayment Date, as applicable), or
(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 or reduce the quorum or voting requirements of Section 1404, or
(3) modify any of the provisions of this Section 902, Section 513 or
Section 1010, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each 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 902 and Section 1010, or
the deletion of this proviso, in accordance with the requirements of
Section 611 and 901(8).
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
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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 903. 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,
and (subject to Section 601) 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 or immunities under this Indenture or otherwise.
SECTlON 904. 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 905. 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 906. 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 bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company or the Trustee 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 to such series.
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SECTION 907. NOTICE OF SUPPLEMENTAL INDENTURE.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to Section 902, the Company shall transmit to
the Holders a notice setting forth the substance of such supplemental indenture.
ARTICLE TEN
COVENANTS
Section 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities of that series in accordance with the
terms of the Securities, any appurtenant coupons and this Indenture. Any
interest due on Bearer Securities on or before Maturity, other than additional
amounts, if any, payable as provided in Section 1005 in respect of principal of
(or premium, if any, on) such a Security, shall be payable only upon
presentation and surrender of the several coupons for such interest installments
as are evidenced thereby as they severally mature. Unless otherwise specified
with respect to Securities of any series pursuant to Section 301, at the option
of the Company, all payments of principal may be paid by check to the registered
Holder of the Registered Security or other person entitled thereto against
surrender of such Security. Unless otherwise specified as contemplated by
Section 301 with respect to any series of Securities, any interest due on Bearer
Securities on or before Maturity shall be payable only upon presentation and
surrender of the several coupons for such interest installments as are evidenced
thereby as they severally mature.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series (but, except as
otherwise provided below, unless such Place of Payment is located outside the
United States, not Bearer Securities) 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 Bearer Securities, the Company will
maintain, subject to any laws or regulations applicable thereto, an office or
agency in a Place of Payment for such series which is located outside the United
States where Securities of such series and the related coupons may be presented
and surrendered for payment (including payment of any additional amounts payable
on Securities of such series pursuant to Section 1005); PROVIDED, HOWEVER, that
if the Securities of such series are listed on The Stock Exchange of the United
Kingdom and the Republic of Ireland or the Luxembourg Stock Exchange or
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any other stock exchange located outside the United States and such stock
exchange shall so require, the Company will maintain a Paying Agent in London or
Luxembourg or any other required city located outside the United States, as the
case may be, so long as the Securities of such series are listed on such
exchange. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands, 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 1005) at the place
specified for the purpose pursuant to Section 301(5).
No payment of principal of, (or premium, if any) 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, payment of principal of and any premium and interest denominated in
Dollars (including additional amounts payable in respect thereof) on any Bearer
Security may be made at an office or agency of, and designated by, the Company
located in the United States if (but only if) payment of the full amount of such
principal, premium, interest or additional amounts in Dollars at all offices
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 and the Trustee receives an Opinion of
Counsel that such payment within the United States is legal. Unless otherwise
provided as contemplated by Section 301 with respect to any series of
Securities, at the option of the Holder of any Bearer Security or related
coupon, payment may be made by check in the Currency designated for such payment
pursuant to the terms of such Bearer Security presented or mailed to an address
outside the United States or by transfer to an account in such Currency
maintained by the payee with a bank located outside the United States.
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 each Place of Payment for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
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SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST
If the Company, a Subsidiary or any of their respective Affiliates, 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 (or premium,
if any) or interest on any of the Securities of that series, segregate and hold
in trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal (and premium, if any) and 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, prior to each due date of the principal of (or premium, if
any) or interest on any Securities of that series, and any appurtenant coupons,
deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be
held as provided by the Trust Indenture Act, 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 1003, that such Paying Agent will (i) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (ii) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series and any appurtenant coupons, and upon the written
request of the Trustee, forthwith pay to the Trustee all sums held in trust by
such Paying Agent for payment in respect of the Securities of that series.
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 (or premium, if any)
or interest on any Security of any series or any related coupons and remaining
unclaimed for two years after such principal (or premium) or interest has become
due and payable shall be paid to the Company on Company Request, or (if then
held by the Company) shall be discharged from such trust; and the Holder of such
Security 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,
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that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense 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, New York, notice that such money remains unclaimed and that, after a
date specified therein, 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.
SECTION 1004. PURCHASE OF SECURITIES BY COMPANY OR SUBSIDIARY.
If and so long as the Securities of a series are listed on The Stock
Exchange of the United Kingdom and the Republic of Ireland and such stock
exchange shall so require, the Company will not, and will not permit any
Subsidiary to, purchase any Securities of that series by private treaty at a
price (exclusive of expenses and accrued interest) which exceeds 120% of the
mean of the nominal quotations of the Securities of that series as shown in The
Stock Exchange Daily Official List for the last trading day preceding the date
of purchase.
SECTION 1005. PAYMENT OF 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 any series or any
coupon appertaining thereto additional amounts upon the terms and subject to the
conditions provided therein. Whenever in this Indenture there is mentioned, in
any context, the payment of the principal of (or premium, if any) or interest
on, or in respect of, any Security of any series, 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 the terms of such Securities and this Section 1005 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
premium, if any) is made), and at least 10 days prior to each date of payment of
principal (and premium, if any) 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 Officer's Certificate instructing the
Trustee and such Paying Agent or Paying Agents whether such payment of principal
of (and premium, if any) or interest on the Securities of that series shall be
made to
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Holders of Securities of that series or the related coupons who are United
States Aliens 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, if any, required by the terms of
such Securities and the first paragraph of this Section 1005. 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 1005.
SECTION 1006. STATEMENT BY OFFICERS AS TO DEFAULT.
(a) The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of force provided hereunder), and if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
(b) The Company shall deliver to the Trustee as soon as possible, and in
any event within five days after the Company becomes aware or should reasonably
have become aware of the occurrence of any Default or Event of Default, an
Officers' Certificate specifying such Default or Event of Default, the period of
existence thereof and what action the Company is taking or proposes to take with
respect thereto.
SECTION 1007. EXISTENCE.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; PROVIDED, HOWEVER, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 1008. MAINTENANCE OF PROPERTIES.
The Company will cause all properties used or useful in the conduct of its
business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
settlements and improvements
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thereof, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; PROVIDED, HOWEVER, that nothing in this Section 1008
shall prevent the Company from discontinuing the operation or maintenance of any
of such properties if such discontinuance is, in the judgment of the Company,
desirable in the conduct of its business or the business of any Subsidiary and
not disadvantageous in any material respect to the Holders.
SECTlON 1009. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or discharged, before
the same shall become delinquent, (1) all taxes, assessments and governmental
charges levied or imposed upon the Company or any Subsidiary or upon the income,
profits or property of the Company or any Subsidiary, and (2) all lawful claims
for labor, materials and supplies which, if unpaid, might by law become a lien
upon the property of the Company or any Subsidiary; PROVIDED, HOWEVER, that the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings.
SECTION 1010. LIMITATION ON LIENS.
The Company will not itself, and will not permit any Domestic Subsidiary
to, incur, issue, assume, or guarantee any notes, bonds, debentures or other
similar evidences of indebtedness for money borrowed (notes, bonds, debentures
or other similar evidences of indebtedness for money borrowed being hereinafter
in this Article called "Debt"), secured by a pledge of, or mortgage or lien on,
any Principal Property of the Company or any Domestic Subsidiary, or any shares
of stock of or Debt of any Domestic Subsidiary (mortgages, pledges and liens
being hereinafter in this Article called "Mortgage" or "Mortgages"), without
effectively providing that the Securities (together with, if the Company shall
so determine, any other Debt of the Company or such Domestic Subsidiary then
existing or thereafter created which is not subordinate to the Securities) shall
be secured equally and ratably with (or 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 Domestic Subsidiaries in respect of sale and leaseback
transactions (as defined in Section 1011) would not exceed 5% of the
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:
(1) Mortgages on property of, or on any shares of stock of or Debt of,
any corporation which Mortgages are existing at the time such corporation
becomes a Domestic Subsidiary or at the time it is merged into or
consolidated with the Company or any Domestic Subsidiary;
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(2) Mortgages in favor of the Company or any Domestic Subsidiary;
(3) Mortgages in favor of any governmental body to secure progress,
advance or other payments pursuant to any contract or provision of any
statute;
(4) Mortgages on property, shares of stock or Debt existing at the
time of acquisition thereof (including acquisition through merger or
consolidation);
(5) Mortgages on property, shares of stock or Debt to secure the
payment of all or any part of the purchase price or construction cost
thereof or to secure any Debt incurred prior to, at the time of, or within
180 days after, the acquisition of such property or shares or Debt, the
completion of any construction or the commencement of full operation, for
the purpose of financing all or any part of the purchase price or
construction cost thereof; and
(6) 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 (1) to (5), inclusive; PROVIDED, that such
extension, renewal or replacement Mortgage shall be limited to all or a
part of the same property, shares of stock or Debt that secured the
Mortgage extended, renewed or replaced (plus improvements on such
property).
SECTION 1011. LIMITATION ON SALES AND LEASEBACKS.
The Company will not itself, and it will not permit any Domestic Subsidiary
to, enter into any arrangement with any bank, insurance company or other lender
or investor (not including the Company or any Domestic Subsidiary) or to which
any such lender or investor is a party, providing for the leasing by the Company
or a Domestic Subsidiary for a period, including renewals, in excess of three
years of any Principal Property which has been or is to be sold or transferred,
more than 180 days after the completion of construction and commencement of full
operation thereof, by the Company or such Domestic Subsidiary to such lender or
investor or to any person to whom funds have been or are to be advanced by such
lender or investor on the security of such Principal Property (herein referred
to as a "sale and leaseback transaction") unless either
(1) the Company or such Domestic Subsidiary could create Debt secured
by a Mortgage pursuant to Section 1010 on the Principal Property to be
leased in an amount equal to the Attributable Debt with respect to such
sale and leaseback transaction without equally and ratably securing the
Securities, or
(2) the Company within 120 days after the sale or transfer shall have
been made by the Company or by a Domestic Subsidiary, applies an amount not
less than the greater of (i) the net proceeds of the sale of the Principal
Property leased pursuant to such arrangement or (ii) the fair market value
of the Principal Property
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so leased at the time of entering into such arrangement (as determined by
any two of the following: Vice Chairman of the Board and Chief Executive
Officer, President, any Vice President or Treasurer) to the retirement of
Funded Debt of the Company; PROVIDED, that the amount to be applied to the
retirement of Funded Debt of the Company shall be reduced by (a) the
principal amount of any Securities delivered within 120 days after such
sale to the Trustee for retirement and cancellation, and (b) the principal
amount of Funded Debt, other than Securities, voluntarily retired by the
Company within 120 days after such sale. Notwithstanding the foregoing, no
retirement referred to in this clause (2) may be effected by payment at
maturity or pursuant to any mandatory sinking fund payment or any mandatory
prepayment provision.
SECTION 1012. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Sections 1010 and 1011 with respect to the
Securities of any series if before the time for such compliance the Holders of
at least a majority in principal amount of the Outstanding Securities of such
series shall, by Act of such Holders, 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.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. 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 301 for Securities of any series) in
accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution. In case of any redemption at the election of the Company of
less than all 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, of
the principal amount of Securities of such series to be redeemed and, if
applicable, of the tenor of the Securities to be redeemed. In the case of any
redemption of Securities prior to the
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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.
SECTlON 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
Except as otherwise specified or contemplated by Section 301 for Securities
of any series, if less than all the Securities of any series are to be redeemed
(unless all of the Securities of such series and of a specified tenor 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 thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series (so long as
such method is not prohibited by the rules of any stock exchange on which the
Securities are then listed). If less than all of the Securities of such series
and of a specified tenor 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 and specified tenor
not previously called for redemption in accordance with the preceding sentence.
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.
SECTlON 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in Section 106
not less than 30 nor more than 60 days prior to the Redemption Date, to each
Holder of Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are to
be redeemed,
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the identification (and, in the case of partial redemption of any
Securities, the principal amounts) of the particular Securities to be
redeemed,
(4) that, on the Redemption Date, the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) the Place or Places of Payment where such Securities, together in
the case of Bearer Securities with all coupons appertaining thereto, if
any, maturing after the Redemption Date, are to be surrendered for payment
of the Redemption Price and accrued interest, if any,
(6) that the redemption is for a sinking fund, if such is the case,
(7) that Bearer Securities may be surrendered for payment only at
such place or places outside of the United States, except as otherwise
specified in Section 1002 and unless otherwise specified in such notice,
Bearer Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the date fixed for
redemption or the amount of any such missing coupon or coupons will be
deducted from the Redemption Price, unless security or indemnity
satisfactory to the Company, the Trustee for such series and any Paying
Agent is furnished,
(8) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject to
redemption on this Redemption Date pursuant to Section 305 or otherwise,
the last date, as determined by the Company, on which such exchanges may be
made, and
(9) the CUSIP number of such Security, if any.
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 and shall be irrevocable.
Failure to give such notice to the Holder of any Security or any defect in
such notice given to the Holder of any Security shall not affect the validity of
the proceedings for any other Security or part thereof.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
Prior to 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 1003) an amount of money in
the Currency in which such Securities are payable sufficient to pay the
Redemption Price of, and
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(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 1106. 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. Upon surrender of any
such Security for redemption in accordance with said notice, 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 upon presentation and surrender of coupons for such
interest (at an office or agency located outside the United States except as
otherwise provided in Section 1002) and PROVIDED FURTHER, that, unless otherwise
specified in Section 301, 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 Registered 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 307.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant coupons maturing after the Redemption Date, such Bearer
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 Bearer
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 without
interest thereon; PROVIDED, HOWEVER, that interest represented by coupon
shall be payable only upon presentation and surrender of those coupons at an
office or agency located outside of the United States except as otherwise
provided in Section 1002.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate prescribed therefor in the
Security.
SECTION 1107. SECURITIES REDEEMED IN PART.
Any Registered 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
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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 deliver to the Holder of such Security without service
charge, a new Registered Security or Securities of the same series and of like
tenor, 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.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. 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 301 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 1202. 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 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (1) may deliver Outstanding Securities of a series (other than
any previously called for redemption), together with any unmatured coupons
appertaining to any Bearer Securities of such series, 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 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.
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SECTlON 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities (unless a shorter period is satisfactory to the Trustee),
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 1202 and
will also deliver to the Trustee any Securities to be so delivered. Not less
than 30 nor more than 60 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date (unless a shorter period is satisfactory to the Trustee) in the
manner specified in Section 1103 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 1104. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. APPLICABILITY OF ARTICLE.
Securities of any series which are repayable at the option of the Holders
thereof before their Stated Maturity shall be repaid in accordance with their
terms and (except as otherwise specified pursuant to Section 301 for Securities
of such series) in accordance with this Article.
SECTION 1302. REPAYMENT OF SECURITIES.
Each Security which is subject to repayment in whole or in part at the
option of the Holder thereof on a Repayment Date shall, unless otherwise
provided in its terms, be repaid at the applicable Repayment Price together with
interest accrued to such Repayment Date as specified pursuant to Section 301.
SECTION 1303. EXERCISE OF OPTION; NOTICE.
Each Holder desiring to exercise such Holder's option for repayment shall,
as conditions to such repayment, surrender the Security to be repaid in whole or
in part together with written notice of the exercise of such option at any
office or agency of the Company in a Place of Payment, not less than 30 nor more
than 45 days prior to the Repayment Date; PROVIDED, HOWEVER, that surrender of
Bearer Securities together with written notice of exercise of such option shall
be made at an office or agency located outside the United States except as
otherwise provided in Section 1002. Such notice, which shall be irrevocable,
shall specify the principal amount of such
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Security to be repaid, which shall be equal to the minimum authorized
denomination for such Security or an integral multiple thereof, and shall
identify the Security to be repaid and, in the case of a partial repayment of
the Security, shall specify the denominations of the Security or Securities of
the same series to be issued to the Holder for the portion of the principal of
the Security surrendered which is not to be repaid.
If any Bearer Security surrendered for repayment shall not be accompanied
by all unmatured coupons and all matured coupons in default, such Bearer
Security may be paid after deducting from the Repayment 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 Bearer
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 Repayment
Price, such Holder shall be entitled to receive the amount so deducted without
interest thereon; 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 1002.
The Company shall execute and the Trustee shall authenticate and deliver
without service charge to the Holder of any Registered Security so surrendered a
new Registered Security or Securities of the same series, of any authorized
denomination specified in the foregoing notice, in an aggregate principal amount
equal to any portion of the principal of the Registered Security so surrendered
which is not to be repaid.
The Company shall execute and the Trustee shall authenticate and deliver
without service charge to the Holder of any Bearer Security so surrendered a new
Registered Security or Securities or new Bearer Security or Securities (and all
appurtenant unmatured coupons and matured coupons in default) or any combination
thereof of the same series of any authorized denomination or denominations
specified in the foregoing notice, in an aggregate principal amount equal to any
portion of the principal of the Security so surrendered which is not to be paid;
PROVIDED, HOWEVER, that the issuance of a Registered Security therefor shall be
subject to applicable laws and regulations in effect at the time of the
exchange; neither the Company, the Trustee nor the Security Registrar shall
issue Registered Securities for Bearer Securities if it has received an Opinion
of Counsel that as a result of such issuance the Company would suffer adverse
consequences under the United States Federal income tax laws then in effect and
the Company has delivered to the Trustee a Company Order directing the Trustee
not to make such issuances thereafter unless and until the Trustee receives a
subsequent Company Order to the contrary. The Company shall deliver copies of
such Company Order to the Security Registrar.
For all purposes of this Indenture, unless the context otherwise requires,
all
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provisions relating to the repayment of Securities shall relate, in the case of
any Security repaid or to be repaid in part, to the portion of the principal of
such Security which has been or is to be repaid.
SECTION 1304. ELECTION OF REPAYMENT BY REMARKETING ENTITIES.
The Company may elect with respect to Securities of any series which are
repayable at the option of the Holders thereof before their Stated Maturity, at
any time prior to any Repayment Date to designate one or more Remarketing
Entities to purchase, at a price equal to the Repayment Price, Securities of
such series from the Holders thereof who give notice and surrender their
Securities in accordance with Section 1303.
SECTION 1305. SECURITIES PAYABLE ON THE REPAYMENT DATE.
Notice of exercise of the option of repayment having been given and the
Securities so to be repaid having been surrendered as aforesaid, such Securities
shall, unless purchased in accordance with Section 1304, on the Repayment Date
become due and payable at the price therein specified and from and after the
Repayment Date such Securities shall cease to bear interest and shall be paid on
the Repayment Date, and the coupons for such interest appertaining to Bearer
Securities so to be repaid, except to the extent provided above, shall be void,
unless the Company shall default in the payment of such price in which case the
Company shall continue to be obligated for the principal amount of such
Securities and shall be obligated to pay interest on such principal amount at
the rate borne by such Securities from time to time until payment in full of
such principal amount.
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1401. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
If Securities of a series are issuable in whole or in part as Bearer
Securities, a meeting of Holders of Securities of such 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
Act 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 issuable as Bearer Securities 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
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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 21 no more
than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, 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 21 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; PROVIDED, HOWEVER, that if any action is
to be taken at such meeting with respect to a consent which this Indenture
expressly provides may be given by the Holders of not less than 66 2/3% in
principal amount of the Outstanding Securities of a series, the Persons entitled
to vote 66 2/3% in principal amount of the Outstanding Securities of such
series shall constitute a quorum. 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 the
absence of a quorum in any other case the meeting may be adjourned for a period
of not less than 10 days as determined by the chairperson 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 chairperson of the meeting prior
to the adjournment of such
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adjourned meeting. Notice of this 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. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted only by the affirmative vote of the Holders of
majority in principal amount of the Outstanding Securities of that series,
PROVIDED, HOWEVER, that, except as limited by the proviso to Section 902, any
resolution with respect to any consent or waiver which this Indenture expressly
provides may be given by the Holders of not less than 66 2/3% 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 only by the affirmative vote of the Holders of 66 2/3% in principal
amount of the Outstanding Securities of that series; and PROVIDED, FURTHER,
that, except as limited by the proviso to Section 902, any resolution with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other Act which this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage, which is 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.
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 such 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, in the case of Bearer Securities, by having the
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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 holding 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
chairperson 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 chairperson. A
permanent chairperson 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 $1.00 principal amount (or the equivalent in
ECU, any other composite currency or a Foreign Currency) of 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 chairperson of the meeting not to be Outstanding.
The chairperson 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 a 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 chairperson of the meeting shall appoint two inspectors of vote 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 triplicate of all votes cast at the meeting. A record, at least in
triplicate, 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 1401. Each copy shall be signed and
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verified by the affidavits of the permanent chairperson 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.
ARTICLE FIFTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1501. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE.
The Company may elect, at its option by Board Resolution at any time, to
have either Section 1502 or Section 1503 applied to the Outstanding Securities
of any series designated pursuant to Section 301 as being defeasible, and any
related coupon, pursuant to this Article Fifteen (hereinafter called a
"Defeasible Series"), upon compliance with the conditions set forth below in
this Article Fifteen.
SECTION 1502. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of the option provided in Section 1501 to have
this Section 1502 applied to the Outstanding Securities of any Defeasible
Series, the Company shall be deemed to have been discharged from its obligations
with respect to the Outstanding Securities of such series and any related
coupons as provided in this Section on and after the date the conditions set
forth in Section 1504 are satisfied (hereinafter called "Defeasance"). For this
purpose, such Defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by the Outstanding Securities of
such series and to have satisfied all its other obligations under the Securities
of such series and this Indenture insofar as the Securities of such series are
concerned (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), subject to the following which shall
survive until otherwise terminated or discharged hereunder (1) the rights of
Holders of Securities of such series to receive, solely from the trust fund
described in Section 1504 and as more fully set forth in such Section, payments
in respect of the principal of (and premium, if any) and interest on such
Securities of such series when payments are due, (2) the Company's obligations
with respect to the Securities of such series under Sections 304, 305, 306,
1002, 1003 and any additional amounts under Section 1005, (3) the rights,
powers, trusts, duties and immunities of the Trustee hereunder and (4) this
Article Fifteen. Subject to compliance with this Article Fifteen, the Company
may exercise its option provided in Section 1501 to have this Section 1502
applied to the Outstanding Securities of any Defeasible Series notwithstanding
the prior exercise of its option provided in Section 1501 to have Section 1503
applied to the Outstanding Securities of such series and any related coupons.
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SECTION 1503. COVENANT DEFEASANCE.
Upon the Company's exercise of the option provided in Section 1501 to have
this Section 1503 applied to the Outstanding Securities of any Defeasible Series
and any related coupons, (1) the Company shall be released from its obligations
under Sections 1007 through 1011, inclusive, and Section 801 and (2) the
occurrence of any event specified in Sections 501(3), 501(4) (with respect to
any of Sections 1007 through 1011, inclusive, and Section 801) and 501(7) shall
be deemed not to be or result in an Event of Default, in each case with respect
to the Outstanding Securities of such series as provided in this Section 1503 on
and after the date the conditions set forth in Section 1504 are satisfied
(hereinafter called "Covenant Defeasance"). For this purpose, such Covenant
Defeasance means that the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
specified Section (to the extent so specified in the case of Section 501(4)),
whether directly or indirectly by reason of any reference elsewhere herein to
any such Section or by reason of any reference in any such Section to any other
provision herein or in any other document, but the remainder of this Indenture
and the Securities of such series shall be unaffected thereby.
SECTION 1504. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of either Section 1502
or Section 1503 to the Outstanding Securities of any Defeasible Series:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee that satisfies the
requirements contemplated by Section 609 and agree to comply with the
provisions of this Article Fifteen applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of Outstanding Securities of such series, (A) money in an amount
(in such Currency in which such Securities and any coupons appertaining
thereto are then specified as payable at Stated Maturity), (B) U.S.
Government Obligations that through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide,
not later than one day before the due date of any payment, money in an
amount, or (C) a combination thereof, in each case sufficient, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to
pay and discharge, and which shall be applied by the Trustee (or any such
other qualifying Trustee) to pay and discharge, the principal of (and
premium, if any) and interest on the Securities of such series on the
respective Stated Maturities, in accordance with the terms of this
Indenture and the Securities of such series.
(2) In the case of an election under Section 1502, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (A) the
Company has received from, or there has been published by, the Internal
Revenue Service a
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ruling or (B) since the date first set forth hereinabove, there has been a
change in the applicable Federal income tax law, in either case (A) or (B)
to the effect that, and based thereon such opinion shall confirm that, the
Holders of the Outstanding Securities of such series will not recognize
gain or loss for Federal income tax purposes as a result of the deposit,
Defeasance and discharge to be effected with respect to the Securities of
such series and will be subject to Federal income tax on the same amount,
in the same manner and at the same times as would be the case if such
deposit, Defeasance and discharge were not to occur.
(3) In the case of an election under Section 1503, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities of such series will not recognize
gain or loss for Federal income tax purposes as result of the deposit and
Covenant Defeasance to be effected with respect to the Securities of such
series and will be subject to Federal income tax on the same amount, in the
same manner and at the same times as would be the case if such deposit and
Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an Officers'
Certificate to the effect that the Securities of such series, if then
listed on any securities exchange, will not be delisted as a result of such
deposit.
(5) No Event of Default or event that (after notice of lapse of time
or both) would become an Event of Default shall have occurred and be
continuing at the time of such deposit or, with regard to any Event of
Default or any such event specified in Sections 501(5) and (6), at any time
on or prior to the 90th day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until after
such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee
to have a conflicting interest within the meaning of the Trust Indenture
Act.
(7) Such Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any other agreement
or instrument to which the Company is a party or by which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in the
trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act of 1940, as amended, unless such
trust shall be qualified or exempt from regulation thereunder.
(9) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
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SECTION 1505. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section 1003, all money
and U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee or other qualifying trustee (solely for purposes of this Section
1505 and Section 1506, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 1504 in respect of the
Securities of any Defeasible Series and any related coupons shall be held in
trust and applied by the Trustee, in accordance with the provisions of the
Securities and the related coupons, if any, of such series and this Indenture,
to the payment, either directly or through any such Paying Agent (including the
Company acting as its own Paying Agent) as the Trustee may determine, to the
Holders of Securities of such series, of all sums due and to become due thereon
in respect of principal and any premium and interest, but money so held in trust
need not be segregated from other funds except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to Section
301, if, after a deposit referred to in Section 1504(a) has been made, (a) the
Holder of a Security in respect of which such deposit was made is entitled to,
and does, elect pursuant to Section 312(b) or the terms of such Security to
receive payment in a Currency other than that in which the deposit pursuant to
Section 1504(a) has been made in respect of such Security, or (b) a Conversion
Event occurs as contemplated in Section 312(d) or 312(e) or by the terms of any
Security in respect of which the deposit pursuant to Section 1504(a) has been
made, the indebtedness represented by such Security and any coupons appertaining
thereto shall be deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal of (and premium, if any) and
interest, if any, on such Security as the same becomes due out of the proceeds
yielded by converting (from time to time as specified below in the case of any
such election) the amount or other property deposited in respect of such
Security into the Currency in which such Security becomes payable as a result of
such election or Conversion Event based on the applicable Market Exchange Rate
for such Currency in effect on the second Business Day prior to each payment
date, except, with respect to a Conversion Event, for such Currency in effect
(as nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1504 or the principal and interest received in
respect thereof other than any such tax, fee or other charge that by law is for
the account of the Holders of Outstanding Securities.
Anything in this Article Fifteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 1504 with respect to Securities of any Defeasible Series that, in the
opinion of a nationally recognized firm
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of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Defeasance or Covenant
Defeasance with respect to the Securities of such series.
SECTlON 1506. REINSTATEMENT.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article Fifteen with respect to the Securities of any
series by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company's obligations under this Indenture and the Securities of such series
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article Fifteen with respect to Securities of such series until such time
as the Trustee or Paying Agent is permitted to apply all money held in trust
pursuant to Section 1505 with respect to Securities of such series in accordance
with this Article Fifteen; PROVIDED, HOWEVER, that if the Company makes any
payment of principal of (or premium, if any) or interest on any Security of such
series following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of Securities of such series to receive
such payment from the money so held in trust.
95
<PAGE>
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.
MOTOROLA, INC.
By
--------------------------------------
Attest:
- --------------------------------------
HARRIS TRUST AND SAVINGS BANK,
as Trustee
By
--------------------------------------
Attest:
- --------------------------------------
STATE OF ILLINOIS
COUNTY OF COOK
On the ............... day of ..............., before me personally came
....................., to me known, who, being by me duly sworn, did depose and
say that he is ............................... of Motorola, Inc., 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.
STATE OF ILLINOIS
COUNTY OF COOK
On the ................ day of ................, before me personally
came............................., to me known, who, being by me duly sworn, did
depose and say that he is ................................. of Harris Trust and
Savings Bank, one of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that he signed his
name thereto by like authority.
96
<PAGE>
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
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 person(s) 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 person(s)"), (ii) are owned by United States persons(s) that are
(a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section 1.165-
12(c)(1)(v) are herein referred to as "financial institutions") purchasing for
their own account or for resale, or (b) United States person(s) who 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 Motorola, Inc. or its agent that such financial institution will comply
with the requirements of Section 165(j)(3)(A), (B) or (C) of the United States
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 United States
Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7), and, in addition, if the
owner 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.
As used herein, "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 (including the
Commonwealth of Puerto Rico).
<PAGE>
A-1-2
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 above-captioned
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 certificate excepts and does not relate to [U.S.$]___________ of such
interest in the above-captioned Securities in respect of which we are not able
to certify and as to which we understand an exchange for an interest in a
permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until
we do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: , 19
------------------------ ---
[To be dated no earlier than the 15th day
prior to (i) the Exchange Date or (ii) the
relevant Interest Payment Date occurring
prior to the Exchange Date, as applicable]
[Name of Person Making Certification]
-------------------------------
(Authorized Signatory)
Name:
Title:
<PAGE>
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND
CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, based solely on written certifications that we
have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, [U.S.$] principal
amount of the above-captioned Securities (i) is owned by person(s) 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
person(s)"), (ii) is owned by United States person(s) that are (a) foreign
branches of United States financial institutions (financial institutions, as
defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v) are herein
referred to as "financial institutions") purchasing for their own account or for
resale, or (b) United States person(s) who 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 financial institution has agreed, on
its own behalf or through its agent, that we may advise Motorola, Inc. or its
agent that such financial institution 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 institution(s) for purposes of resale during the restricted
period (as defined in United States Treasury Regulations Section 1.163-5(c)(2)
(i)(D)(7)), and, to the further effect, that 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.
As used herein, "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 (including the
Commonwealth of Puerto Rico).
<PAGE>
A-2-2
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary Global Security representing the above-captioned Securities excepted
in the above-referenced certificates of Member Organizations and (ii) 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, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: ______________, 19__
[To be dated no earlier than the Exchange
Date or the relevant Interest Payment Date
occurring prior to the Exchange Date, as
applicable]
[Morgan Guaranty Trust Company of
New York, Brussels Office,] as
Operator of the Euroclear System
[Cedel S.A.]
By
------------------------------
<PAGE>
Exhibit 4(e)
MOTOROLA, INC.
TO
THE FIRST NATIONAL BANK OF CHICAGO,
AS TRUSTEE
-------------------
INDENTURE
DATED AS OF ______________________ ,199 ____
-------------------
SUBORDINATED DEBT SECURITIES
<PAGE>
CROSS REFERENCE TABLE(1)
TIA Indenture
Section Section
- ------- ------------
310(a)(1) . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . . . N.A.
(a)(5) . . . . . . . . . . . . . . . . . . 608
(b) . . . . . . . . . . . . . . . . . . 608
(c) . . . . . . . . . . . . . . . . . . N.A.
311(a) . . . . . . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . . . . . . 613
(c) . . . . . . . . . . . . . . . . . . N.A.
312(a) . . . . . . . . . . . . . . . . . . 701, 702 (a)
(b) . . . . . . . . . . . . . . . . . . 702 (b)
(c) . . . . . . . . . . . . . . . . . . 702 (c)
313(a) . . . . . . . . . . . . . . . . . . 703 (a)
(b) . . . . . . . . . . . . . . . . . . 703 (b)
(c) . . . . . . . . . . . . . . . . . . 703 (c)
(d) . . . . . . . . . . . . . . . . . . 703 (d)
314(a) . . . . . . . . . . . . . . . . . . 704, 1006
(b) . . . . . . . . . . . . . . . . . . N.A.
(c)(1) . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . . . . . . 102
315(a) . . . . . . . . . . . . . . . . . . 601 (a)
(b) . . . . . . . . . . . . . . . . . . 602, 703 (a)
(c) . . . . . . . . . . . . . . . . . . 601 (b)
(d) . . . . . . . . . . . . . . . . . . 601 (c)
(e) . . . . . . . . . . . . . . . . . . 502, 512
316(a) (last sentence) . . . . . . . . . . . . . . . . . . 101 ("outstanding")
(a)(1)(A) . . . . . . . . . . . . . . . . . . 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . 508
317(a)(1) . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . 1003
318(a) . . . . . . . . . . . . . . . . . . 107
N.A. means Not Applicable.
- ---------------
(1) This Cross Reference Table shall not, for any purpose, be deemed to be part
of the Indenture.
<PAGE>
PAGE
TABLE OF CONTENTS
-----------------
PARTIES . . . . . . . . . . . . . . . . . .
RECITALS OF THE COMPANY . . . . . . . . . . . . . . . . . .
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101
Definitions:
Act . . . . . . . . . . . . . . . . . . . . . . . . . .
Affiliate; control. . . . . . . . . . . . . . . . . . .
Attributable Debt . . . . . . . . . . . . . . . . . . .
Authenticating Agent. . . . . . . . . . . . . . . . . .
Authorized Newspaper. . . . . . . . . . . . . . . . . .
Bearer Security . . . . . . . . . . . . . . . . . . . .
Board of Directors. . . . . . . . . . . . . . . . . . .
Board Resolution. . . . . . . . . . . . . . . . . . . .
Business Day. . . . . . . . . . . . . . . . . . . . . .
CEDEL OR CEDEL S.A. . . . . . . . . . . . . . . . . . .
Commission. . . . . . . . . . . . . . . . . . . . . . .
Company . . . . . . . . . . . . . . . . . . . . . . . .
Company Request; Company Order. . . . . . . . . . . . .
Consolidated Net Tangible Assets. . . . . . . . . . . .
Conversion Date . . . . . . . . . . . . . . . . . . . .
Conversion Event. . . . . . . . . . . . . . . . . . . .
Corporate Trust Office. . . . . . . . . . . . . . . . .
corporation . . . . . . . . . . . . . . . . . . . . . .
coupon. . . . . . . . . . . . . . . . . . . . . . . . .
Currency. . . . . . . . . . . . . . . . . . . . . . . .
Covenant Defeasance . . . . . . . . . . . . . . . . . .
Defaulted Interest. . . . . . . . . . . . . . . . . . .
Defeasance. . . . . . . . . . . . . . . . . . . . . . .
Defeasible Series . . . . . . . . . . . . . . . . . . .
Depositary. . . . . . . . . . . . . . . . . . . . . . .
Designated Security . . . . . . . . . . . . . . . . . .
Domestic Subsidiary . . . . . . . . . . . . . . . . . .
Dollar. . . . . . . . . . . . . . . . . . . . . . . . .
ECU . . . . . . . . . . . . . . . . . . . . . . . . . .
Euroclear . . . . . . . . . . . . . . . . . . . . . . .
European Communities. . . . . . . . . . . . . . . . . .
European Monetary System. . . . . . . . . . . . . . . .
Event of Default. . . . . . . . . . . . . . . . . . . .
Exchange Act. . . . . . . . . . . . . . . . . . . . . .
- --------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
PAGE
Exchange Date . . . . . . . . . . . . . . . . . . . . .
Exchange Rate Agent . . . . . . . . . . . . . . . . . .
Exchange Rate Officer's Certificate . . . . . . . . . .
Foreign Currency. . . . . . . . . . . . . . . . . . . .
Funded Debt . . . . . . . . . . . . . . . . . . . . . .
Global Security . . . . . . . . . . . . . . . . . . . .
Holder. . . . . . . . . . . . . . . . . . . . . . . . .
Indenture . . . . . . . . . . . . . . . . . . . . . . .
Indexed Security. . . . . . . . . . . . . . . . . . . .
interest. . . . . . . . . . . . . . . . . . . . . . . .
lnterest Payment Date . . . . . . . . . . . . . . . . .
Market Exchange Rate. . . . . . . . . . . . . . . . . .
Maturity. . . . . . . . . . . . . . . . . . . . . . . .
Notice of Default . . . . . . . . . . . . . . . . . . .
Officers' Certificate . . . . . . . . . . . . . . . . .
Opinion of Counsel. . . . . . . . . . . . . . . . . . .
Original Issue Discount Security. . . . . . . . . . . .
Outstanding . . . . . . . . . . . . . . . . . . . . . .
Paying Agent. . . . . . . . . . . . . . . . . . . . . .
Person. . . . . . . . . . . . . . . . . . . . . . . . .
Place of Payment. . . . . . . . . . . . . . . . . . . .
Predecessor Security. . . . . . . . . . . . . . . . . .
Principal Property. . . . . . . . . . . . . . . . . . .
Redemption Date . . . . . . . . . . . . . . . . . . . .
Redemption Price. . . . . . . . . . . . . . . . . . . .
Registered Security . . . . . . . . . . . . . . . . . .
Regular Record Date . . . . . . . . . . . . . . . . . .
Remarketing Entity. . . . . . . . . . . . . . . . . . .
Repayment Date. . . . . . . . . . . . . . . . . . . . .
Repayment Price . . . . . . . . . . . . . . . . . . . .
Securities. . . . . . . . . . . . . . . . . . . . . . .
Security Register and Security Registrar. . . . . . . .
Special Record Date . . . . . . . . . . . . . . . . . .
Stated Maturity . . . . . . . . . . . . . . . . . . . .
Subsidiary. . . . . . . . . . . . . . . . . . . . . . .
Trustee . . . . . . . . . . . . . . . . . . . . . . . .
Trust Indenture Act; TIA. . . . . . . . . . . . . . . .
United States . . . . . . . . . . . . . . . . . . . . .
United States Alien . . . . . . . . . . . . . . . . . .
U.S. Government Obligations . . . . . . . . . . . . . .
Valuation Date. . . . . . . . . . . . . . . . . . . . .
Vice President. . . . . . . . . . . . . . . . . . . . .
SECTION 102. Compliance Certificates and Opinions. . . . .
SECTION 103. Form of Documents Delivered to Trustee. . . .
SECTION 104. Acts of Holders; Record Dates . . . . . . . .
SECTION 105. Notices, Etc., to Trustee and Company . . . .
<PAGE>
PAGE
SECTION 106. Notice to Holders; Waiver . . . . . . . . . .
SECTION 107. Conflict with Trust Indenture Act . . . . . .
SECTION 108. Effect of Headings and Table of Contents. . .
SECTION 109. Successors and Assigns. . . . . . . . . . . .
SECTION 110. Separability Clause . . . . . . . . . . . . .
SECTION 111. Benefits of Indenture . . . . . . . . . . . .
SECTION 112. Governing Law . . . . . . . . . . . . . . . .
SECTION 113. Legal Holidays. . . . . . . . . . . . . . . .
SECTION 114. Counterparts. . . . . . . . . . . . . . . . .
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally
SECTION 202. Form of Trustee's Certificate of Authentication
SECTION 203. Securities Issuable in Global Form. . . . . .
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. . . . .
SECTION 302. Denominations . . . . . . . . . . . . . . . .
SECTION 303. Execution, Authentication, Delivery and
Dating. . . . . . . . . . . . . . . . . . .
SECTION 304. Temporary Securities. . . . . . . . . . . . .
SECTION 305. Registration, Registration of Transfer and
Exchange. . . . . . . . . . . . . . . . . .
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities. . . . . . . . . . . . . . . .
SECTION 307. Payment of Interest; Interest Rights
Preserved; Optional Interest Reset. . . . .
SECTION 308. Optional Extension of Maturity. . . . . . . .
SECTION 309. Persons Deemed Owners . . . . . . . . . . . .
SECTION 310. Cancellation. . . . . . . . . . . . . . . . .
SECTION 311. Computation of Interest . . . . . . . . . . .
SECTION 312. Currency and Manner of Payments in Respect
of Securities . . . . . . . . . . . . . . .
SECTION 313. Appointment and Resignation of Successor
Exchange Rate Agent . . . . . . . . . . . .
SECTION 314. CUSIP Numbers . . . . . . . . . . . . . . . .
SECTION 315 Certification by a Person Entitled to
Delivery of Bearer Security . . . . . . . .
SECTION 316. Judgments . . . . . . . . . . . . . . . . . .
<PAGE>
PAGE
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture . . .
SECTION 402. Application of Trust Money. . . . . . . . . .
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default . . . . . . . . . . . . . .
SECTION 502. Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . . .
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee. . . . . . . . . . .
SECTION 504. Trustee May File Proofs of Claim. . . . . . .
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities or Coupons . . . .
SECTION 506. Application of Money Collected. . . . . . . .
SECTION 507. Limitation on Suits . . . . . . . . . . . . .
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest . . . . . .
SECTION 509. Restoration of Rights and Remedies. . . . . .
SECTION 510. Rights and Remedies Cumulative. . . . . . . .
SECTION 511. Delay or Omission Not Waiver. . . . . . . . .
SECTION 512. Control by Holders. . . . . . . . . . . . . .
SECTION 513. Waiver of Past Defaults . . . . . . . . . . .
SECTION 514. Undertaking for Costs . . . . . . . . . . . .
SECTION 515. Waiver of Usury, Stay or Extension Laws . . .
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities . . . . .
SECTION 602. Notice of Defaults. . . . . . . . . . . . . .
SECTION 603. Certain Rights of Trustee . . . . . . . . . .
SECTION 604. Not Responsible for Recitals or Issuance
of Securities . . . . . . . . . . . . . . .
SECTION 605. May Hold Securities . . . . . . . . . . . . .
SECTION 606. Money Held in Trust . . . . . . . . . . . . .
SECTION 607. Compensation and Reimbursement. . . . . . . .
SECTION 608. Disqualification; Conflicting Interests . . .
SECTION 609. Corporate Trustee Required; Eligibility . . .
SECTION 610. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . .
SECTION 611. Acceptance of Appointment by Successor. . . .
SECTION 612. Merger, Conversion, Consolidation or
Succession to Business. . . . . . . . . . .
<PAGE>
PAGE
SECTION 613. Preferential Collection of Claims Against
Company . . . . . . . . . . . . . . . . . .
SECTION 614. Appointment of Authenticating Agent . . . . .
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and
Addresses of Holders. . . . . . . . . . . .
SECTION 702. Preservation of Information; Communications
to Holders. . . . . . . . . . . . . . . . .
SECTION 703. Reports by Trustee. . . . . . . . . . . . . .
SECTION 704. Reports by Company. . . . . . . . . . . . . .
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on
Certain Terms . . . . . . . . . . . . . . .
SECTION 802. Successor Person Substituted. . . . . . . . .
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent
of Holders. . . . . . . . . . . . . . . . .
SECTION 902. Supplemental Indentures with Consent of
Holders . . . . . . . . . . . . . . . . . .
SECTION 903. Execution of Supplemental Indentures. . . . .
SECTION 904. Effect of Supplemental Indentures . . . . . .
SECTION 905. Conformity with Trust Indenture Act . . . . .
SECTION 906. Reference in Securities to Supplemental
Indentures. . . . . . . . . . . . . . . . .
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest. .
SECTION 1002. Maintenance of Office or Agency . . . . . . .
SECTION 1003. Money for Securities Payments to Be Held
in Trust. . . . . . . . . . . . . . . . . .
SECTION 1004. Purchase of Securities by Company or
Subsidiary. . . . . . . . . . . . . . . . .
SECTION 1005. Payment of Additional Amounts . . . . . . . .
SECTION 1006. Statement by Officers as to Default . . . . .
SECTION 1007. Existence . . . . . . . . . . . . . . . . . .
SECTION 1008. Maintenance of Properties . . . . . . . . . .
<PAGE>
PAGE
SECTION 1009. Payment of Taxes and Other Claims . . . . . .
SECTION 1010. Limitation on Liens . . . . . . . . . . . . .
SECTION 1011. Limitation on Sales and Leasebacks. . . . . .
SECTION 1012. Waiver of Certain Covenants . . . . . . . . .
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article. . . . . . . . . . .
SECTION 1102. Election to Redeem; Notice to Trustee . . . .
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed. . . . . . . . . . . . . . . . . .
SECTION 1104. Notice of Redemption. . . . . . . . . . . . .
SECTION 1105. Deposit of Redemption Price . . . . . . . . .
SECTION 1106. Securities Payable on Redemption Date . . . .
SECTION 1107. Securities Redeemed in Part . . . . . . . . .
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article. . . . . . . . . . .
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities. . . . . . . . . . . . . . . . .
SECTION 1203. Redemption of Securities for Sinking Fund . .
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. . . . . . . . . . .
SECTION 1302. Repayment of Securities . . . . . . . . . . .
SECTION 1303. Exercise of Option; Notice. . . . . . . . . .
SECTION 1304. Election of Repayment by Remarketing
Entities. . . . . . . . . . . . . . . . . .
SECTION 1305. Securities Payable on the Repayment Date. . .
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1401. Purposes for Which Meetings May Be Called . .
SECTION 1402. Call, Notice and Place of Meetings. . . . . .
SECTION 1403. Persons Entitled to Vote at Meetings. . . . .
SECTION 1404. Quorum; Action. . . . . . . . . . . . . . . .
<PAGE>
PAGE
SECTION 1405. Determination of Voting Rights; Conduct
and Adjournment of Meetings . . . . . . . .
SECTION 1406. Counting Votes and Recording Action of
Meetings. . . . . . . . . . . . . . . . . .
ARTICLE FIFTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1501. Company's Option to Effect Defeasance or
Covenant Defeasance . . . . . . . . . . . .
SECTION 1502. Defeasance and Discharge. . . . . . . . . . .
SECTION 1503. Covenant Defeasance . . . . . . . . . . . . .
SECTION 1504. Conditions to Defeasance or Covenant
Defeasance. . . . . . . . . . . . . . . . .
SECTION 1505. Deposited Money and U.S. Government
Obligations to be Held in Trust; Other
Miscellaneous Provisions. . . . . . . . . .
SECTION 1506. Reinstatement . . . . . . . . . . . . . . . .
ARTICLE SIXTEEN
SUBORDINATION OF SECURITIES
SECTION 1601. Securities Subordinate to Senior Debt . . . .
SECTION 1602. Payment Over of Proceeds upon Dissolution,
Etc.. . . . . . . . . . . . . . . . . . . .
SECTION 1603. Acceleration of Securities. . . . . . . . . .
SECTION 1604. Default on Senior Debt. . . . . . . . . . . .
SECTION 1605. Payment Permitted If No Default . . . . . . .
SECTION 1606. Subrogation to Rights of Holders of Senior
Debt. . . . . . . . . . . . . . . . . . . .
SECTION 1607. Provisions Solely to Define Relative Rights .
SECTION 1608. Trustee to Effectuate Subordination . . . . .
SECTION 1609. No Waiver of Subordination Provisions . . . .
SECTION 1610. Notice to Trustee . . . . . . . . . . . . . .
SECTION 1611. Reliance on Judicial Order or Certificate
of Liquidating Agent. . . . . . . . . . . .
SECTION 1612. Trustee Not Fiduciary for Holders of Senior
Debt. . . . . . . . . . . . . . . . . . . .
SECTION 1613. Rights of Trustee as Holders of Senior
Debt; Preservation of Trustee's Rights. . .
SECTION 1614. Article Sixteen Applicable to Paying Agents .
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . .
SIGNATURES AND SEALS . . . . . . . . . . . . . . . . . . . .
ACKNOWLEDGMENTS. . . . . . . . . . . . . . . . . . . . . . .
<PAGE>
THIS INDENTURE, dated as of ___________________________, 199____, is
between Motorola, Inc., a corporation duly organized and existing under the laws
of the State of Delaware (herein called the "Company"), having its principal
office at 1303 East Algonquin Road, Schaumburg, Illinois 60196, and
_____________________, a corporation duly organized and existing under the laws
of the State of _____________, 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 subordinated
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 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 TIA, or by
Commission rule or regulation under the TIA, either directly or by
reference therein, as in force at the date as of which this instrument was
executed, except as provided in Section 905, have the meanings assigned to
them therein; the terms "cash transaction" and "self-liquidating paper", as
used in TIA Section 311, shall have the meanings assigned to them in the
rules of the Commission adopted under the Trust Indenture Act; and the
following TIA terms used in this Indenture have the following meanings:
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"INDENTURE SECURITIES" means the Securities;
"INDENTURE SECURITY HOLDER" means the Holder;
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee; and
"OBLIGOR" on the indenture securities means the Company;
(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 at the date of such
computation;
(4) the words "Article" and "Section" refer to an Article and Section,
respectively, of this Indenture; and
(5) 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 in Article Three, are 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, partnerships or other
ownership interests, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Attributable Debt" shall mean, as to any particular lease under which any
Person is at the time liable, at any date as of which the amount thereof is to
be determined, the total net amount of rent required to be paid by such Person
under such lease during the remaining term thereof, discounted from the
respective due dates thereof to such date at the rate per annum borne by the
Securities compounded annually. 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,
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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 614 to act on behalf of the Trustee to authenticate Securities of one
or more series.
"Authorized Newspaper" means a newspaper in an official language of the
country of publication or in the English language customarily published on each
Business Day, whether or not published on Saturdays, Sundays or holidays, and of
general circulation in the place in connection with which the term is used or in
the financial community of such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security established pursuant to Section 201
which is payable to bearer including, without limitation, unless the context
otherwise indicates, a Security in global bearer form.
"Board of Directors" or "Board" means either the board of directors of the
Company or any duly authorized committee 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 and to be in full force and effect on the date of such
certification, and delivered to the Trustee. Where any provision of this
Indenture refers to action to be taken pursuant to a Board Resolution (including
the establishment of any series of the Securities and the forms and terms
thereof), such action may be taken by any committee of the Board or the Company
or any officer or employee of the Company authorized to take such action by a
Board Resolution.
"Business Day", when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Capital Stock" for any corporation means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interest in (however designated) stock issued by that corporation.
"CEDEL" or "CEDEL S.A." means Centrale de Livraison de Valeurs Mobilieres
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S.A., or its successor.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, 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.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Vice Chairman of the Board and Chief
Executive Officer, its President or a Vice President, and by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to
the Trustee.
"Consolidated Net Tangible Assets" shall mean the aggregate amount of
assets (less applicable reserves and other properly deductible items) after
deducting therefrom (a) all current liabilities (excluding any constituting
Funded Debt by reason of their being renewable or extendible), and (b) all
goodwill, trade names, trademarks, patents, unamortized debt discount and
expense 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 312(d).
"Conversion Event" means the cessation of use of (i) a Foreign Currency
both by the government of the country which issued such currency and for the
settlement of transactions by a central bank or other public institutions of or
within the international banking community, (ii) the ECU both within the
European Monetary System and for the settlement of transactions by public
institutions of or within the European Communities or (iii) any currency unit
(or composite currency) other than the ECU for the purposes for which it was
established.
"Corporate Trust Office" means the principal office of the Trustee in the
State of Illinois or in New York, New York at which at any particular time its
corporate trust business shall be administered.
"corporation" means a corporation, association, company, joint stock
company or business trust.
"coupon" means any interest coupon appertaining to a Bearer Security.
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"Currency" means any currency or currencies, composite currency or currency
unit or currency units, including, without limitation, the ECU, issued by the
government of one or more countries or by any reorganized confederation or
association of such governments.
"Covenant Defeasance" has the meaning specified in Section 1503.
"Debt" means with respect to any person at any date, without duplication,
(i) all obligations of such person for borrowed money, (ii) all obligations of
such person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all Debt of others secured by a lien on any asset of such person, whether
or not such Debt is assumed by such person, (iv) all obligations of such person
pursuant to capitalized leases, and (v) all Debt of others for the payment of
which such person is responsible or liable as obligor or guarantor.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1502.
"Defeasible Series" has the meaning specified in Section 1501.
"Depositary" means, with respect to the Securities of any series issuable
or issued in whole or in part in the form of one or more Global Securities, the
Person designated as Depositary by the Company pursuant to Section 301 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each person who is then a Depositary hereunder, and if at any time there is more
than one such Person, "Depositary" as used with respect to the Securities of any
such series shall mean the Depositary with respect to the Securities of that
series.
"Designated Currency" has the meaning specified in Section 312.
"Domestic Subsidiary" shall mean a Subsidiary of the Company except a
Subsidiary of the Company (a) which neither transacts any substantial portion of
its business nor regularly maintains any substantial portion of its fixed assets
within the States of the United States, or (b) which is engaged primarily in
financing the operations of the Company or its Subsidiaries, or both, outside
the States of the United States.
"Dollar" or "$" means a dollar or other equivalent within the coin or
currency of the United States as at the time of payment is legal tender for the
payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised from time to
time
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by the Council of the European Communities.
"Euroclear" means Morgan Guarantee Trust Company of New York, Brussels
Office, as operator of the Euroclear System.
"European Communities" means the European Economic Community, the European
Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System established
by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, and any successor thereto, and the rules and regulations
promulgated thereunder.
"Exchange Date" shall have the meaning specified in Section 304.
"Exchange Rate Agent" shall have the meaning specified as contemplated in
Section 301.
"Exchange Rate Officer's Certificate", means a certificate setting forth
the applicable Market Exchange Rate or applicable bid quotation and the amounts
payable in Dollars and Foreign Currencies in respect of the principal of (and
premium, if any) and interest on Securities denominated in ECU and other
composite Currency or Foreign Currency, and signed by the Vice Chairman of the
Board and Chief Executive Officer, the President, any Vice President, the
Treasurer or any Assistant Treasurer of the Company or the Exchange Rate Agent
appointed pursuant to Section 301, and delivered to the Trustee.
"Foreign Currency" means any Currency, including, without limitation, the
ECU issued by the government of one or more countries other than the United
States or by any recognized confederation or association of such governments.
"Funded Debt" shall mean all indebtedness for money borrowed having a
maturity of more than 12 months from the date of the most recent balance sheet
of the Company and its consolidated subsidiaries or having a maturity of less
than 12 months but by its terms being renewable or extendible beyond 12 months
from the date of such balance sheet at the option of the borrower.
"Global Security" means a Security evidencing all or part of a series of
Securities, authenticated and delivered to the Depositary for such series or its
nominee, and registered in the name of such Depositary or nominee in accordance
with Section 303.
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"Holder" means, with respect to a Registered Security, a Person in whose
name a Registered Security is registered in the Security Register and, with
respect to a Bearer Security, 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, including, for
all purposes of this instrument, and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively. The term
"Indenture" shall also include the terms of particular series of Securities
established as contemplated by Section 301.
"Indexed Security" means a Security as to which all or certain interest
payments and/or the principal amount payable at Maturity are determined by
reference to prices, changes in prices, or differences between prices, or
securities or Currencies as specified pursuant to Section 301 hereof.
"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, and, when used
with respect to a Security which provides for the payment of additional amounts
pursuant to Section 1005, includes such additional amounts.
"Market Exchange Rate" means, unless otherwise specified with respect to
any Securities pursuant to Section 301, (i) for any conversion involving a
Currency unit on the one hand and Dollars or any Foreign Currency on the other,
the exchange rate between the relevant Currency unit and Dollars or such Foreign
Currency calculated by the method specified pursuant to Section 301 for the
Securities of the relevant series, (ii) for any conversion of Dollars into any
Foreign Currency, the noon buying rate for such Foreign Currency for cable
transfers quoted in New York City as certified for customs purposes by the
Federal Reserve Bank of New York and (iii) for any conversion of one Foreign
Currency into Dollars or another Foreign Currency, the spot rate at noon local
time in the relevant market at which, in accordance with normal banking
procedures, the Dollars or Foreign Currency into which conversion is being made
could be purchased with the Foreign Currency from which conversion is being made
from major banks located in either New York City, London or any other principal
market for Dollars or such purchased Foreign Currency, in each case determined
by the Exchange Rate Agent. Unless otherwise specified with respect to any
Securities pursuant to Section 301, in the event of the unavailability of any of
the exchange rates provided for in the foregoing clauses (i), (ii) and (iii),
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, London or other principal market for such
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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 purchase such currency or currency unit in order to make payments in
respect of such securities.
"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 or otherwise.
"Notice of Default" means a written notice of the kind specified in Section
501(4).
"Officers' Certificate" means a certificate signed by the Vice Chairman of
the Board and Chief Executive Officer, the President or any elected Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or any
Assistant Secretary, of the Company, and delivered to the Trustee, which shall
comply with Section 102 to the extent applicable.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company, and who shall be reasonably satisfactory to the Trustee, which
shall comply with Section 102 to the extent applicable.
"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 502.
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, EXCEPT:
(1) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the necessary
amount 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 in accordance with Section 401; 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;
(3) Securities as to which Defeasance has been effected pursuant to
Section
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1502; and
(4) Securities which have been paid pursuant to Section 306 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 are
present at a meeting of Holders for quorum purposes, and for the purpose of
making the calculations required by TIA Section 313, (A) the principal amount of
an Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, (B) the principal amount of any Security denominated in
a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined as of the date such Security is originally
issued by the Company as set forth in an Exchange Rate Officer's Certificate
delivered to the Trustee, of the principal amount (or in the case of an Original
Issue Discount Security or Indexed Security, the Dollar equivalent as of such
date of original issuance of the amount determined as provided in clause (A)
above or (C) below respectively) of such Security, (C) the principal amount of
any Indexed Security that may be counted in making such determination or
calculation and that shall be deemed outstanding for such purpose shall be equal
to the principal face amount of such Indexed Security at original issuance,
unless otherwise provided with respect to such Security pursuant to Section 301,
and (D) 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 any Person authorized by the Company to pay the
principal of (or any premium) or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint venture,
trust,
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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 any premium and interest on
the Securities of that series are payable as specified as contemplated by
Sections 301 and 1002.
"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 306 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 single parcel of real estate, manufacturing
plant or warehouse owned or leased by the Company or any Domestic Subsidiary
which is located within the United States and the gross book value (without
deduction of any depreciation reserves) of which on the date as of which the
determination is being made exceeds 1% of Consolidated Net Tangible Assets,
other than any such manufacturing plant or warehouse or portion thereof (a)
which is a pollution control or other facility financed by obligations issued by
a state or local government unit and described in Sections 141(a), 142(a)(5),
142(a)(6) or 144(a) of the Internal Revenue Code, or any successor provision
thereof, or (b) which, in the opinion of the Board of Directors, is not of
material importance to the total business conducted by the Company and its
subsidiaries as an entirety.
"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 at which it is to be redeemed pursuant to this Indenture.
"Registered Security" means any Security in the form of Registered
Securities established pursuant to Section 201 which is registered in the
Security Register.
"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 301.
"Remarketing Entity", when used with respect to Securities of any series
which are repayable at the option of the Holders thereof before their Stated
Maturity, means any person designated by the Company to purchase any such
Securities.
"Repayment Date", when used with respect to any Security to be repaid upon
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exercise of option for repayment by the Holder, means the date fixed for such
repayment.
"Repayment Price", when used with respect to any Security to be repaid upon
exercise of option for repayment by the Holder, means the price at which it is
to be repaid pursuant to this Indenture.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Senior Debt" means the principal of (and premium, if any) and interest on
(including interest accruing after the filing of a petition initiating any
proceeding pursuant to any bankruptcy law) and other amounts due on or in
connection with any Debt incurred, assumed or guaranteed by the Company, whether
outstanding on the date of this Indenture or thereafter incurred, assumed or
guaranteed and all renewals, extensions or refundings of any such Debt;
PROVIDED, HOWEVER, that the following will not constitute Senior Debt: (a) any
Debt if the instrument creating or evidencing the same or pursuant to which the
same is Outstanding expressly provides (i) that such Debt shall not be senior in
right of payment to the Securities, or (ii) that such Debt shall be subordinated
to any other Debt of the Company, unless such instrument expressly provides that
such Debt shall be senior in right of payment to the Securities; (b) Debt of the
Company in respect of the Securities; (c) Debt of the Company in respect of the
Company's Liquid Yield Option-TM- Notes due 2009 (the "2009 LYONs") and the
Company's Liquid Yield Option-TM- Notes due 2013 (the "2013 LYONs"); and (d) any
Debt of the Company in respect of any extension notes which may be issued by the
Company in respect of the 2009 LYONs (which 2009 LYONs, 2013 LYONs and extension
notes shall rank PARI PASSU with the Securities of any series to which this
definition of Senior Debt applies).
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" shall mean a corporation a majority of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
For the purposes of this definition, the term "voting stock" means stock having
ordinary voting power for the election of directors irrespective of whether or
not stock of any other
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class or classes shall have or might have voting power by reason of the
happening of any contingency.
"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 each Trustee with respect to Securities of that series.
"Trust Indenture Act", or "TIA", means the Trust Indenture Act of 1939 and
the rules and regulations promulgated thereunder as in force at the date as of
which this instrument was executed, except as provided in Section 905; PROVIDED,
HOWEVER, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act" or "TIA" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended and the rules and
regulations promulgated thereunder.
"United States" means the United States of America (including the District
of Columbia) and its possessions and territories and other areas subject to its
jurisdiction (including the Commonwealth of Puerto Rico).
"United States Alien" means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
"U.S. Government Obligations" means securities which are (i) direct
obligations of the United States 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 the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States, which, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a depository receipt issued
by a bank (as defined in Section 3(a)(2) of the Securities Act of 1933, as
amended) 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.
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"Valuation Date" has the meaning specified in Section 312(c).
"Vice President", when used with respect to the Company or the Trustee,
means any elected vice president, whether or not designated by a word or words
added before the title "vice president".
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 (other than delivery of any
Security to the Trustee for authentication pursuant to Section 303), the Company
shall furnish to the Trustee such certificates and opinions as may be required
under the Trust Indenture Act. Each such certificate or opinion shall be given
in the form of an Officers' Certificate, if to be given by an officer of the
Company, or an Opinion of Counsel, if to be given by counsel, and shall comply
with the requirements of the Trust lndenture Act and any other requirements set
forth in this lndenture. 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, however,
no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than pursuant to Section 1006)
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,
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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; RECORD DATES.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. If Securities of a series are issuable in whole or in part
as Bearer Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may, alternatively, be embodied in and evidenced by the record of
Holders of Securities voting in favor thereof, either in person or by proxies
duly appointed in writing, at any meeting of Holders of Securities duly called
and held in accordance with the provisions of Article Fourteen, or a combination
of such instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are received by the Trustee and, where it is hereby expressly required, to the
Company. Such 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. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 601) 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.
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,
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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. The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
(b) The ownership of Registered Securities shall be proved by the Security
Register.
(c) The ownership, 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, as
depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be satisfactory,
showing that at the date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities in the amount and with the
serial numbers 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 be 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, or (2) such Bearer Security is produced to
the Trustee by some other person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding. The fact and date of execution of any such instrument or writing,
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 Section.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security 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, any Security
Registrar, any Paying Agent, any Authenticating Agent or the Company in reliance
thereon, whether or not notation of such action is made upon such Security.
(e) 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, in 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. Notwithstanding TIA Section
316(c), such record date
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shall be the record date specified in or pursuant to such Board Resolution,
which shall be a date not earlier than the date 30 days prior to the first
solicitation of Holders generally in connection therewith and not later than the
date such solicitation is completed. 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 eleven months after
the record date.
Without limiting the foregoing, a Holder entitled hereunder to give or
take any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any different part of such principal amount.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver or
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 sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention: Indenture
Trust Division, 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 mailed, first-class postage prepaid, 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.
SECTION 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice of any event to Holders of
Registered Securities by the Company or the Trustee, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each such Holder affected by such
event, at his address as it appears in the Security Register, not later than the
latest date, if any, and not earlier than the earliest date, if any, prescribed
for the giving of such notice. In any case where notice to Holders of
Registered Securities is given by mail, neither the failure to
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mail such notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect to other Holders
of Registered Securities or the sufficiency of any notice to Holders of Bearer
Securities given as provided herein. Any notice mailed to a Holder in the
manner herein prescribed shall be conclusively deemed to have been received by
such Holder, whether or not such Holder actually receives such notice.
If by reason of the suspension of or irregularities in regular mail service
or by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification to Holders of Registered Securities as shall be
made with the approval of the Trustee shall constitute a sufficient notification
to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified with
respect to any Securities pursuant to Section 301, where this Indenture provides
for notice to Holders of Bearer Securities of any event, such notice shall be
sufficiently given if published in an Authorized Newspaper in the City of New
York and, if the Securities of such series are then listed on the International
Stock Exchange of the United Kingdom and the Republic of Ireland and such stock
exchange shall so require, in London, and, if the Securities of such series are
then listed on the Luxembourg Stock Exchange and such stock exchange shall so
require, in Luxembourg and, if the Securities of such series are than listed on
any other stock exchange outside the United States and such stock exchange shall
so require, in any other required city outside the United States or, if not
practicable, in Europe on a Business Day at least twice, the first such
publication to be not later than the latest date and not earlier than the
earliest date prescribed for the giving of such notice, and in such other city
or cities as may be specified in such Securities on a Business Day, such
publication to be not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. Any such notice shall
be deemed to have been given on the date of such publication or, if published
more than once, on the date of the first such publication.
If 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. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of such notice with
respect to other Holders of Bearer Securities or the sufficiency of any notice
to Holders of Registered Securities given as provided herein.
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.
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Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 107. CONFLICT WITH TRUST LNDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with a provision of
the TIA that is required under such Act to be a part of and govern this
Indenture, the TIA provision shall control. If any provision of this Indenture
modifies or excludes any provision of the TIA that may be so modified or
excluded, the latter provision shall be deemed to apply to this Indenture as so
modified or to be excluded, as the case may be.
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 or coupons
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, any Paying Agent, Security Registrar and Authenticating
Agent 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 law of the State of New York, but without
regard to principles of conflicts of law.
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SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date, Repayment
Date, Stated Maturity or Maturity of any Security shall not be a Business Day at
any Place of Payment, then (notwithstanding any other provision of this
Indenture or of the Securities or coupons (other than a provision of the
Securities of any series which specifically states that such provision shall
apply in lieu of this Section)) 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 or Redemption Date, Repayment
Date, Stated Maturity or Maturity, provided that no interest shall accrue for
the period from and after such Interest Payment Date, Redemption Date, Repayment
Date, Stated Maturity or Maturity, as the case may be.
SECTION 114. COUNTERPARTS.
This Indenture 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 Indenture.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The Registered Securities, if any, and the Bearer Securities and related
coupons, if any, of each series shall be in substantially the form (including
temporary or permanent global form) as shall be established by or pursuant to a
Board Resolution or in one or more indentures supplemental hereto, in each case
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any securities exchange
or market or as may, consistently herewith, be determined by the officers
executing such Securities or coupons, as evidenced by their execution of the
Securities or coupons. If the form of Securities of any series or coupons is
established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities or coupons.
Unless otherwise specified as contemplated by Section 301, Bearer
Securities other than Securities in temporary or permanent global form shall
have coupons attached.
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The definitive Securities and coupons, if any, shall be printed,
lithographed or engraved or produced by any combination of these methods on
steel engraved borders or may be produced in any other manner permitted by the
rules of any securities exchange on which the Securities may be listed, all as
determined by the officers executing such Securities or coupons, as evidenced by
their execution of such Securities or coupons.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication on each Security shall be in
substantially the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
------------------------------
as Trustee
By
---------------------------
[AUTHORIZED OFFICER]
SECTION 203. SECURITIES ISSUABLE IN GLOBAL FORM.
If Securities of or within a series are issuable in global form, as
specified as contemplated by Section 301, then, notwithstanding clause (9) of
Section 301 and the provisions of Section 302, any such 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 of such series from time to time endorsed thereon and
that the aggregate amount of Outstanding Securities of such series represented
thereby may from time to time be increased or decreased to reflect exchanges.
Any endorsement of a Global Security 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 to be delivered to
the Trustee pursuant to Section 303 or 304. Subject to the provisions of
Section 303 and, if applicable, Section 304, the Trustee shall deliver and
redeliver any Security in permanent global form in the manner and upon
instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 303 or 304 has
been, or simultaneously is, delivered, any instructions by the Company with
respect to endorsement, 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.
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The provisions of the last sentence of Section 303(g) 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 Section 303(g).
Notwithstanding the provisions of Section 307, unless otherwise specified
as contemplated by Section 301, payment of principal of (and premium, if any)
and interest, if any, on any permanent Global Security shall be made to the
Person or Persons specified therein.
Notwithstanding the provisions of Section 309 and except as provided in the
preceding paragraph, the Company, the Trustee and any agent of the Company and
the Trustee shall treat as the Holder of such principal amount of Outstanding
Securities represented by a permanent Global Security (i) in the case of a
permanent Global Security in registered form, the Holder of such permanent
Global Security in registered form, or (ii) in the case of a permanent Global
Security in bearer form, Euroclear or CEDEL.
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be authenticated and
delivered under this lndenture is unlimited.
The Securities shall rank equally and PARI PASSU and may be issued in one
or more series. There shall be established in or pursuant to a Board Resolution,
and, subject to Section 303 set forth, or determined in the manner provided, in
an Officers' Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series, any or all of the
following, as applicable (each of which (except for the matters in clauses (1)
and (2)), if so provided, may be determined by the Company with respect to
unissued Securities, of the series when issued from time to time):
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from Securities of any other series):
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in
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exchange for, or in lieu of, other Securities of the series pursuant to
Section 304, 305, 306, 906, 1107 or 1303 and except for any Securities
which, pursuant to Section 303, are deemed never to have been authenticated
and delivered hereunder);
(3) the date or dates, or the method by which such date or dates will
be determined or extended, on which the principal of the Securities (and
premium, if any), of the series is payable;
(4) the rate or rates at which the Securities of the series shall bear
interest, or the method or methods by which such rate or rates shall be
determined, if any, the date or dates from which such interest shall
accrue, or the method by which such date or dates will be determined or
extended, the Interest Payment Dates on which any such interest shall be
payable and the Regular Record Date for any interest payable on any
Registered Security on any Interest Payment Date, the circumstances, if
any, in which the Company may defer interest payments and the manner of
computing interest if other than as specified in Section 311;
(5) the place or places where, subject to the provisions of Section
1002, the principal of (and premium, if any) and interest, if any, on
Securities of the series shall be payable, any Registered Securities of the
series may be surrendered for registration of transfer, Securities of the
series may be surrendered or exchanged and notices and demands to or upon
the Company in respect of the Securities of the series and this Indenture
may be served and where notices to Holders pursuant to Section 106 will be
published;
(6) the period or periods within which or the date or dates on which,
the price or prices at which and the terms and conditions upon which
Securities of the series may be redeemed, in whole or in part, at the
option of the Company;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which, the period or periods within
which, and the other terms and conditions upon which Securities of the
series shall be redeemed, repaid or purchased, in whole or in part,
pursuant to such obligation;
(8) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities or both, whether Securities of the series are
to be issuable with or without coupons or both, the terms upon which Bearer
Securities of the series may be exchanged for Registered Securities of the
series (and vice versa) if other than as provided in Sections 304 and 305,
and, in the case of Bearer Securities (or any temporary Global Security
representing the same), the date as of which such Bearer Securities shall
be dated if other than the date of original issuance of the first Security
of such series of like tenor and term to be issued;
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(9) whether the Securities of the series shall be issued in whole or
in part in the form of a Global Security or Securities and, in such case,
the Depositary for such Global Security or Securities, whether such global
form shall be permanent or temporary and, if so, whether beneficial owners
of interests in any such permanent Global Security may exchange such
interests for Securities of such series in certificated form and of like
tenor of any authorized form and denomination and the circumstances under
which any such exchanges may occur, if other than in the manner provided in
this Article Three, and, if applicable, the Exchange Date;
(10) whether, and under what conditions, additional amounts will be
payable to Holders of Securities of the series pursuant to Section 1005;
(11) the denominations in which any Registered Securities of the
series shall be issuable, if other than denominations of $1,000 and any
integral multiple thereof, and the denominations in which any Bearer
Securities of such series shall be issuable, if other than the
denominations of $5,000 and any integral multiple thereof;
(12) if other than Dollars, the Currency or Currencies of denomination
of the Securities of any series, which may be in any Foreign Currency or
any composite Currency or index, including but not limited to the ECU, and,
if any such Currency of denomination is a composite Currency other than the
ECU, the agency or organization, if any, responsible for overseeing such
composite Currency;
(13) that either or both of Section 1502 or 1503 shall apply to the
Securities of the series;
(14) if other than Dollars, the Currency, Currencies or currency units
in which payment of the principal of (and any premium) and interest on any
Securities of the series shall be payable and the Currency or Currencies,
if any, in which payment of the principal of (and premium, if any) or the
interest on Registered Securities at the election of each of the Holders
thereof, may also be payable and the periods within which and the terms and
conditions upon which such election is to be made and the time and manner
of determining the exchange rate between Currency or Currencies in which
such Securities are denominated or stated to be paid and the Currency or
Currencies in which such Securities are to be paid, in each case in
accordance with, in addition to or in lieu of Section 312;
(15) if the amount of payments of principal of (or premium, if any) or
interest on any Securities of the series may be determined with reference
to an index, the manner in which such amounts shall be determined;
(16) the Person to whom any interest on any Registered Security of the
series shall be payable, if other than the Person in whose name such
Security (or one or
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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 other 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 304;
(17) the designation of the initial Exchange Rate Agent, if any;
(18) if the Securities of the series are to be convertible into or
exchangeable for any securities of any Person (including the Company), the
terms and conditions upon which such Securities will be so convertible or
exchangeable;
(19) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section
502; and
(20) if other than the Trustee, the identity of the Security Registrar
and/or Paying Agent;
(21) the terms of any pledge of property made to secure the
obligations of the Company under the Securities of any series and the
circumstances, if any, under which such pledge may be released and the
limitations, if any, on recourse against the Company on Securities of such
series; and
(22) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 901(5)).
Except as set forth below, all Securities of any one series and the coupons
appertaining to Bearer Securities of such series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to such Board Resolution and (subject to Section 303) set forth, or
determined in the manner provided, in such Officers' Certificate or in any
indenture supplemental hereto.
Securities of any particular series may be issued at various times, with
different dates on which the principal or any installment of principal is
payable, with different rates of interest, if any, or different methods by which
rates of interest may be determined, with different dates on which such interest
may be payable and with different Redemption or Repayment Dates and may be
denominated in different Currencies or payable in different Currencies.
If any of the terms of the Securities of any series are established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to
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the Trustee at or prior to the delivery of the Officers' Certificate setting
forth the terms of the series.
SECTION 302. DENOMINATIONS.
Securities of each series shall be issuable in such form and denominations
as shall be specified in the form of Security for such series approved or
established pursuant to Section 201 or in the Officers' Certificate delivered
pursuant to Section 301. In the absence of any specification with respect to
the Securities of any series, the Registered Securities of such series, if any
(other than Registered Securities in global form, which may be in any
denomination), shall be issuable in denominations of $1,000 and any integral
multiples thereof and the Bearer Securities of such series, if any (other than
Bearer Securities in global form, which may be in any denomination), shall be
issuable in denominations of $5,000 and any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
(a) The Securities shall be executed on behalf of the Company by its Vice
Chairman of the Board and Chief Executive Officer, its President, its Treasurer
or one of its Vice Presidents, under its corporate seal reproduced thereon and
shall be attested by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers on the Securities may be manual or facsimile.
Coupons shall bear the facsimile signature of an authorized officer of the
Company.
Securities or coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
coupons or did not hold such offices at the date of such Securities or coupons.
(b) At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, executed by
the Company, to the Trustee for authentication, together with a Company Order
for the authentication and delivery of such Securities, and, except as otherwise
provided in this Article Three, the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities; PROVIDED, HOWEVER, that,
in connection with its original issuance, no Bearer Security shall be mailed or
otherwise delivered to any location in the United States; and PROVIDED FURTHER
that, unless otherwise specified with respect to any series of Securities
pursuant to Section 301, a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
Security shall have furnished a certificate in the form set forth in Exhibit A-1
to this Indenture or such other certificate as may be specified with respect to
any series of Securities pursuant to Section 301, 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
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accordance with the terms of such temporary Security and this Indenture. If any
Security shall be represented by a permanent Global Bearer Security, then, for
purposes of this Section 303 and Section 304, 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 permanent Global Security. Except as permitted by Section 306,
the Trustee shall not authenticate and deliver any Bearer Security unless all
appurtenant coupons for interest then matured have been detached and cancelled.
If all the Securities of any series are not to be issued at one time and if the
Board Resolution or supplemental indenture establishing such series shall so
permit, such Company Order may set forth procedures acceptable to the Trustee
for the issuance of such Securities and determining the terms of particular
Securities of such series, such as interest rate, maturity date, date of
issuance and date from which interest shall accrue. If the form or terms of the
Securities of the series have been established in or pursuant to one or more
Board Resolutions as permitted by Sections 201 and 301, in authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 601) shall be fully protected in relying upon, an Opinion of
Counsel stating,
(i) if the form of such Securities and coupons, if any, has been
established by or pursuant to a Board Resolution as permitted by Section
201, that such form has been established in conformity with the provisions
of this Indenture;
(ii) if the terms of such Securities and coupons, if any, have been
established by or pursuant to a Board Resolution as permitted by Section
301, that such terms have been established in conformity with the
provisions of this Indenture; and
(iii) that such Securities and coupons, if any, when authenticated and
delivered by the Trustee and issued by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles and except further as enforcement thereof
may be limited by (1) requirements that a claim with respect to any
Securities denominated other than in Dollars (or a Foreign Currency or
Currency unit judgment in respect of such claim) be converted into Dollars
at a rate of exchange prevailing on a date determined pursuant to
applicable law or (2) governmental authority to limit, delay or prohibit
the making of payments in Foreign Currencies or Currency units or payments
outside the United States.
(c) If the Company shall establish pursuant to Section 301 that the
Securities of a series are to be issued in whole or in part in the form of one
or more Global Securities, then the Company shall execute and the Trustee shall,
in accordance with
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this Section 303, Section 304, if and to the extent applicable, and the Company
Order with respect to such series, authenticate and deliver one or more Global
Securities in permanent or temporary form that (i) shall represent and shall be
denominated in an aggregate principal amount of the Outstanding Securities of
such series to be represented by one or more Global Securities, (ii) shall be
registered in the name of the Depositary for such Global Security or Securities
or the nominee of such Depositary and (iii) shall be delivered by the Trustee to
such Depositary or pursuant to such Depositary's instructions.
(d) If such form or terms have been so established, the Trustee shall not
be required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
(e) Notwithstanding the provisions of Section 301 and this Section 303, if
all Securities of a series are not to be originally issued at one time, it shall
not be necessary to deliver the Officers' Certificate otherwise required
pursuant to Section 301 or the Company Order and Opinion of Counsel otherwise
required pursuant to such preceding paragraph at or prior to the time of
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
(f) Each Registered Security shall be dated the date of its
authentication. Each Bearer Security shall be dated the date contemplated by
Section 301.
(g) No Security or attached coupon shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless executed and
issued by the Company and there appears on such Security a certificate of
authentication substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder and is entitled to the benefits of this
Indenture. Except as permitted by Section 306, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant coupons for
interest then matured have been detached and cancelled. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 310, 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.
(h) Each Depositary designated pursuant to Section 301 for a Global
Security must, at the time of its designation and at all times while it serves
as Depositary, be a clearing agency registered under the Exchange Act and any
other applicable statute
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or regulation.
(i) The Securities may contain such notations, legends or endorsements
required by law, stock exchange rule or usage.
SECTION 304. TEMPORARY SECURITIES.
(a) Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities 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 conclusively evidenced by their execution of such
Securities. In the case of Securities of any series, 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 Section 304(b) or as otherwise provided in or
pursuant to a Board Resolution), or as otherwise provided in or pursuant to a
Board Resolution, 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 in a Place of Payment for
that series, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series (accompanied by any non-
matured coupons appertaining thereto), the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations; PROVIDED,
HOWEVER, that unless otherwise contemplated or specified with respect to any
series of Securities pursuant to Section 301, no definitive Bearer Security
shall be delivered in exchange for a temporary Registered Security; and PROVIDED
FURTHER that a Bearer Security shall be delivered in exchange for a Bearer
Security only in compliance with the applicable conditions set forth in Sections
303, 304 and 305. Until so exchanged, the temporary Securities of any series
shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series.
(b) Unless otherwise provided in or pursuant to a Board Resolution, this
Section 304(b) shall govern the exchange of temporary Securities issued in
global form. If temporary Securities of any series are issued in global form,
any such temporary Global Security shall, unless otherwise provided therein, be
delivered to the London office of a Depositary, for the benefit of Euroclear and
CEDEL, for credit to the respective accounts of the beneficial owners of such
Securities (or to such other
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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 (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
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 deliver, 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, permanent
global bearer form or permanent global registered form, or any combination
thereof, as specified as contemplated by Section 301, and, if any combination
thereof is so specified, as requested by the beneficial owner thereof; PROVIDED,
HOWEVER, that, unless otherwise specified in such temporary Global Security,
upon such presentation by the Depositary, such temporary Global Security is
accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by Euroclear 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 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 A-2 to this Indenture or in such other form as may be established
pursuant to Section 301; and PROVIDED FURTHER that definitive Bearer Securities
shall be delivered in exchange for a portion of a temporary Global Security only
in compliance with the requirements of Section 303, 304 and Section 305, as
applicable.
Unless otherwise specified in such temporary Global Security, the
interest of a beneficial owner of Securities of a series in a temporary Global
Security shall be exchanged for definitive Securities of the same series and of
like tenor following the Exchange Date when the account holder instructs
Euroclear or CEDEL, as the case may be, to request such exchange on his behalf
and delivers to Euroclear or CEDEL, as the case may be, a certificate in the
form set forth in Exhibit A-1 to this Indenture (or in such other form as may be
established pursuant to Section 301), dated no earlier than 15 days prior to the
Exchange Date, copies of which certificate shall be available from the officers
of Euroclear and CEDEL, the Trustee, any Authenticating Agent appointed for such
series of Securities and each Paying Agent. Unless otherwise specified in such
temporary Global Security, 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 unless such Person takes delivery of such definitive
Securities in person at the offices of Euroclear or CEDEL. Definitive
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Securities in bearer form 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 hereinabove provided, 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 301, interest payable on a temporary Global
Security on an Interest Payment Date for Securities of such series occurring
prior to the applicable Exchange Date shall be payable to Euroclear and CEDEL on
such Interest Payment Date upon delivery by Euroclear and CEDEL to the Trustee
of a certificate or certificates in the form set forth in Exhibit A-2 to this
Indenture (or in such other forms as may be established pursuant to Section
301), for credit without further interest on or after such Interest Payment Date
to the respective accounts of Persons who are the beneficial owners of such
temporary Global Security on such Interest Payment Date and who have each
delivered to Euroclear or CEDEL, as the case may be, a certificate dated no
earlier than 15 days prior to the Interest Payment Date occurring prior to such
Exchange Date in the form set forth as Exhibit A-1 to this Indenture (or in such
other forms as may be established pursuant to Section 301). Notwithstanding
anything to the contrary herein contained, the certifications made pursuant to
this paragraph shall satisfy the certification requirements of the preceding two
paragraphs of this Section 304(b) and of Section 303(b) of this Indenture and
the interests of the Persons who are the beneficial owners of the temporary
Global Security with respect to which such certification was made will be
exchanged for definitive Securities of the same series and of like tenor on the
Exchange Date or the date of certification if such date occurs after the
Exchange Date, without further act or deed by such beneficial owners. Except as
otherwise provided in this paragraph, no payments of principal (or premium, if
any) or interest, if any, owing with respect to a beneficial interest in a
temporary Global Security will be made unless and until such interest in such
temporary Global Security shall have been exchanged for an interest in a
definitive Security. Any interest so received by Euroclear and CEDEL and not
paid as herein provided shall be returned to the Trustee prior to the expiration
of two years after such Interest Payment Date in order to be repaid to the
Company.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at one of the offices or agencies to be
maintained by the Company in accordance with the provisions of this Section 305
and Section 1002, with respect to the Securities of each series which are
Registered Securities, a register (herein sometimes 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 of
transfers of Registered Securities. Pursuant to Section 301, the Company shall
appoint, with respect to Securities of each series which are Registered
Securities, a "Security Registrar" for the purpose of registering such
Securities and transfers and exchanges of such Securities
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as herein provided. The Trustee, at its Corporate Trust office, is initially
appointed "Security Registrar" for such Registered Securities.
Upon surrender for registration of transfer of any Registered Security of
any series at the office or agency of the Company maintained for such purpose,
the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new Registered
Securities of the same series of any authorized denomination or denominations,
of like tenor and terms and aggregate principal amount, all as requested by the
transferor.
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
denomination or denominations, of like tenor and terms and aggregate principal
amount, upon surrender of the Registered Securities to be exchanged at such
office or agency. Unless otherwise specified with respect to any series of
Securities as contemplated by Section 301, Bearer Securities may not be issued
in exchange for Registered Securities.
At the option of the Holder, Registered Securities or Bearer Securities of
any series may be issued in exchange for Bearer Securities (except as otherwise
specified as contemplated by Section 301 with respect to a Bearer Security in
global form) of the same series, of any authorized denominations and of like
tenor and terms and aggregate principal amount, 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 thereto appertaining. 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
and the Trustee 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 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 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 1002, 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 a permitted exchange for a
Registered Security of the same series and like tenor and terms after the close
of business at such office or agency of (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 date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date of payment, as the
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case may be, 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 deliver, the Securities which
the Holder making the exchange is entitled to receive.
If at any time the Depositary for the Securities of a series notifies the
Company that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for the Securities of
such series shall no longer be eligible under Section 303(h), the Company shall
appoint a successor Depositary with respect to the Securities of such series.
If a successor 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 ineligibility, the Company's election pursuant to Section 301(9)
shall no longer be effective with respect to the Securities of such series and
the Company will execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of definitive Securities of such series, will
authenticate and deliver, Securities of such series in definitive form in an
aggregate principal amount equal to the principal amount of the Global Security
or Securities representing such series in exchange for such Global Security or
Securities.
The Company may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by such Global Security or Securities. In such
event the Company will execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of definitive Securities of such series,
will authenticate and deliver, Securities of such series in definitive form and
in an aggregate principal amount equal to the principal amount of the Global
Security or Securities representing such series in exchange for such Global
Security or Securities.
If specified by the Company pursuant to Section 301 with respect to a
series of Securities, the Depositary for such series of Securities may surrender
a Global Security for such series of Securities in exchange in whole or in part
for Securities of such series of like tenor and terms and 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
service charge,
(a) to each Person specified by such Depositary a new Security
or Securities of the same series, of like tenor and terms and of any
authorized denominations as requested by such person in aggregate principal
amount equal to and in exchange for such Person's beneficial interest in
the Global Security; and
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(b) to such Depositary a new Global Security of like tenor and
terms and in a denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the aggregate
principal amount of Securities delivered to Holders thereof.
In any exchange provided for in any of the preceding three paragraphs,
the Company will execute and the Trustee will authenticate and deliver
Securities (a) in definitive registered form in authorized denominations, if the
Securities of such series are issuable as Registered Securities, (b) in
definitive bearer form in authorized denominations, with coupons attached, if
the Securities of such series are issuable as Bearer Securities or (c) as either
Registered or Bearer Securities, as shall be specified by the beneficial owner
thereof, if the Securities of such series are issuable in either form; PROVIDED,
HOWEVER, that no definitive Bearer Security shall be delivered in exchange for a
temporary Global Security unless the Company or its agent shall have received
from the person entitled to receive the definitive Bearer Security a certificate
substantially in the form set forth in Exhibit A-1 and, if applicable, A-2
hereto; and PROVIDED FURTHER that delivery of a Bearer Security shall occur only
outside the United States; and PROVIDED FURTHER that no definitive Bearer
Security will be issued if the Company has reason to know that any such
certificate is false.
Upon the exchange of a Global Security for Securities in definitive form,
such Global Security shall be cancelled by the Trustee. Registered Securities
issued in exchange for a Global Security pursuant to this Section shall be
registered in such names and in such authorized denominations as the Depositary
for such Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Registered Securities to the persons in whose names such Securities
are so registered. The Trustee shall deliver Bearer Securities issued in
exchange for a Global Security pursuant to this Section to the persons, and in
such authorized denominations, as the Depositary for such Global Security,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee; PROVIDED, HOWEVER, that no definitive Bearer
Security shall be delivered in exchange for a temporary Global Security unless
the Company or its agent shall have received from the person entitled to receive
the definitive Bearer Security a certificate substantially in the form set forth
in Exhibit A-1 and, if applicable, A-2 hereto; and PROVIDED FURTHER that
delivery of a Bearer Security shall occur only outside the United States; and
PROVIDED FURTHER that no definitive Bearer Security will be issued if the
Company has reason to know that any such certificate is false.
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, the Security
Registrar or the
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Trustee) be duly endorsed, or be accompanied by a written instrument of transfer
in form satisfactory to the Company and the Security Registrar, 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 transfer, registration of transfer or exchange of Securities, other
than exchanges of Securities expressly provided in this Indenture to be made at
the Company's own expense or without expense or without charge to the Holders.
The Company shall not be required (i) to issue, register the transfer of or
exchange Securities of any particular series to be redeemed for a period of
fifteen days preceding the first publication of the relevant notice of
redemption or, if Registered Securities are outstanding and there is no
publication, the mailing of the relevant notice of redemption of Securities of
such series selected for redemption under Section 1103 and ending at the close
of business on the day of such mailing, 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 such Registered 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 like
tenor and terms of that series, PROVIDED that such Registered Security shall be
simultaneously surrendered for redemption.
Notwithstanding anything herein to the contrary, the exchange of Bearer
Securities into Registered Securities shall be subject to applicable laws and
regulations in effect at the time of exchange; neither the Company, the Trustee
nor the Security Registrar shall exchange any Bearer Securities into Registered
Securities if it has received an Opinion of Counsel that as a result of such
exchanges the Company would suffer adverse consequences under the United States
Federal income tax laws and regulations then in effect and the Company has
delivered to the Trustee a Company Order directing the Trustee not to make such
exchanges thereafter unless and until the Trustee receives a subsequent Company
Order to the contrary. The Company shall deliver copies of such Company Orders
to the Security Registrar.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If (i) any mutilated Security or Security with a mutilated coupon is
surrendered to a Paying Agent outside the United States or, in the case of a
Registered Security, to the Trustee or (ii) the Company and the Trustee receive
evidence to their satisfaction of the loss, destruction or theft of any Security
or coupon together with, in proper cases, such security or indemnity as may be
required by the Company or the Trustee to save each of them or any agent of
either of them harmless, then, in the absence of notice to the Company or the
Trustee that such Security has been acquired by a bona fide purchaser, the
Company shall execute and the Trustee shall authenticate and deliver
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in exchange therefor (together with all 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
any coupons appertaining to the surrendered Security; provided, that any such
Bearer Security will be delivered only in compliance with Section 303, 304 and
305, as applicable.
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, with coupons corresponding to the
coupons, if any, appertaining to such mutilated, destroyed, lost or stolen
Security or to the Security to which such mutilated, destroyed, lost or stolen
coupon appertains, pay such Security or coupon; PROVIDED, HOWEVER, that payment
of principal of (and premium, if any) and interest, if any, on Bearer Securities
shall, except as otherwise provided in Section 1002, be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 301, 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 of any series, with its coupons, if any, issued pursuant
to this Section in lieu of any destroyed, lost or stolen Security, or in
exchange for a Security to which a destroyed, lost or stolen coupon appertains,
shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security and its coupons, if any,
or the destroyed, lost or stolen coupon 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 of that Series and their
coupons, if any, 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 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED; OPTIONAL INTEREST
RESET.
(a) Except as otherwise specified with respect to a series of Securities
in accordance with the provision of Section 301, interest, if any, on any
Registered Security that 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 office or agency of
the Company maintained for
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such purpose pursuant to Section 1002; PROVIDED, HOWEVER, that each installment
of interest, if any, on any Registered Security may at the Company's option be
paid by (i) mailing a check for such interest, payable to or upon the written
order of the Person entitled thereto pursuant to Section 309, to the address of
such Person as it appears on the Security Register or (ii) transfer to an
account maintained by the payee inside the United States.
Unless otherwise provided as contemplated by Section 301 with respect
to the Securities of any series, payment of interest, if any, may be made, in
the case of a Bearer Security, at the Holder's option by (i) check in the
Currency designated for such payment pursuant to the terms of the Bearer
Security presented or mailed to an address outside the United States or (ii)
transfer to an account in such Currency maintained by the payee with a bank
located outside the United States.
Unless otherwise provided as contemplated by Section 301, every
permanent Global Security will provide that interest, if any, payable on any
Interest Payment Date will be paid to each of Euroclear and CEDEL with respect
to that portion of such permanent Global Security held for its account by the
Depositary, for the purpose of permitting each of Euroclear and CEDEL to credit
the interest, if any, received by it in respect of such permanent Global
Security to the accounts of the beneficial owners thereof.
In case a Bearer Security of any series is surrendered in exchange for
a Registered Security of such series after the close of business (at an office
or agency in a Place of Payment for such series) on any Regular Record Date and
before the opening of business (at such office or agency) on the next succeeding
Interest Payment Date, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date and interest will not be payable
on such Interest Payment Date 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.
Except as otherwise specified with respect to a series of Securities
in accordance with the provisions of Section 301, any interest on any Registered
Security of any series that 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 registered Holder thereof 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
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amount of Defaulted Interest proposed to be paid on each Registered
Security of such series and the date of the proposed payment (which shall
not be less than 20 days after such notice is received by the Trustee), and
at the same time the Company shall deposit with the Trustee an amount of
money in the Currency in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities
of such series and except, if applicable, as provided in Sections 312(b),
312(d) and 312(e)) 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 on or 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 Registered 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 mailed as aforesaid, such
Defaulted Interest shall be paid 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 such Special Record
Date and shall no longer be payable pursuant to the following clause (2).
In case a Bearer Security of any series is surrendered at the office or
agency in a Place of Payment for such series in exchange for a Registered
Security of such series after the close of business at such office or
agency on 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 proposed date of payment and Defaulted Interest will not
be payable on such proposed date of payment 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.
(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.
(b) The provisions of this Section 307(b) may be made applicable to any
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series of Securities pursuant to Section 301 (with such modifications, additions
or substitutions as may be specified pursuant to such Section 301). The interest
rate (or the spread or spread multiplier used to calculate such interest rate,
if applicable) on any Security of such series may be reset by the Company on the
date or dates specified on the face of such Security (each an "Optional Reset
Date"). The Company may exercise such option with respect to such Security by
notifying the Trustee of such exercise at least 45 but not more than 60 days
prior to an Optional Reset Date for such Security. Not later than 40 days prior
to each Optional Reset Date, the Trustee shall transmit, in the manner provided
for in Section 106, to the Holder of any such Security a notice (the "Reset
Notice") indicating whether the Company has elected to reset the interest rate
(or the spread or spread multiplier used to calculate such interest rate, if
applicable), and if so (i) such new interest rate (or such new spread or spread
multiplier, if applicable) and (ii) the provisions, if any, for redemption
during the period from such Optional Reset Date to the next Optional Reset Date
or, if there is no such next Optional Reset Date, to the Stated Maturity of such
Security (each such period a "Subsequent Interest Period"), including the date
or dates on which or the period or periods during which and the price or prices
at which such redemption may occur during the Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to the
Optional Reset Date, the Company may, at its option, revoke the interest rate
(or the spread or spread multiplier used to calculate such interest rate, if
applicable) provided for in the Reset Notice and establish an interest rate (or
a spread or spread multiplier used to calculate such interest rate, if
applicable) that is higher than the interest rate (or the spread or spread
multiplier, if applicable) provided for in the Reset Notice, for the Subsequent
Interest Period by causing the Trustee to transmit, in the manner provided for
in Section 106, notice of such higher interest rate (or such higher spread or
spread multiplier, if applicable) to the Holder of any such Security. Such
notice shall be irrevocable. All Securities with respect to which the interest
rate (or the spread or spread multiplier used to calculate such interest rate,
if applicable) is reset on an Optional Reset Date, and with respect to which the
Holders of such Securities have not tendered such Securities for repayment (or
have validly revoked any such tender) pursuant to the next succeeding paragraph,
will bear such higher interest rate (or such higher spread or spread multiplier,
if applicable).
The Holder of any such Security will have the option to elect
repayment by the Company of the principal of such Security on each Optional
Reset Date at a price equal to the principal amount thereof plus interest
accrued to such Optional Reset Date. In order to obtain repayment on an Optional
Reset Date, the Holder must follow the procedures set forth in Article Thirteen
for repayment at the option of Holders except that the period for delivery or
notification to the Trustee shall be at least 25 but not more than 35 days prior
to such Optional Reset Date and except that, if the Holder has tendered any
Security for repayment pursuant to the Reset Notice, the Holder may, by written
notice to the Trustee, revoke such tender or repayment until the close of
business on the tenth day before such Optional Reset Date.
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Subject to the foregoing provisions of this Section 307 and Section
305, 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 308. OPTIONAL EXTENSION OF MATURITY.
The provisions of this Section 308 may be made applicable to any
series of Securities pursuant to Section 301 (with such modifications, additions
or substitutions as may be specified pursuant to such Section 301). The Stated
Maturity of any Security of such series may be extended at the option of the
Company for the period or periods specified on the face of such Security (each
an "Extension Period") up to but not beyond the date (the "Final Maturity") set
forth on the face of such Security. The Company may exercise such option with
respect to any Security by notifying the Trustee of such exercise at least 45
but not more than 60 days prior to the Stated Maturity of such Security in
effect prior to the exercise of such option (the "Original Stated Maturity"). If
the Company exercises such option, the Trustee shall transmit, in the manner
provided for in Section 106, to the Holder of any such Security not later than
40 days prior to the Original Stated Maturity a notice (the "Extension Notice")
indicating (i) the election of the Company to extend the Stated Maturity, (ii)
the new Stated Maturity, (iii) the interest rate, if any, applicable to the
Extension Period and (iv) the provisions, if any, for redemption during such
Extension Period. Upon the Trustee's transmittal of the Extension Notice, the
Stated Maturity of such Security shall be extended automatically and, except as
modified by the Extension Notice and as described in the next paragraph, such
Security will have the same terms as prior to the transmittal of such Extension
Notice.
Notwithstanding the foregoing, not later than 20 days before the
Original Stated Maturity of such Security, the Company may, at its option,
revoke the interest rate provided for in the Extension Notice and establish a
higher interest rate for the Extension Period by causing the Trustee to
transmit, in the manner provided for in Section 106, notice of such higher
interest rate to the Holder of any such Security. Such notice shall be
irrevocable. All Securities with respect to which the Stated Maturity is
extended will bear such higher interest rate.
If the Company extends the Stated Maturity of any Security, the Holder
will have the option to elect repayment of such Security by the Company on the
Original Stated Maturity at a price equal to the principal amount thereof, plus
interest accrued to such date. In order to obtain repayment on the Original
Stated Maturity once the Company has extended the Stated Maturity thereof, the
Holder must follow the procedures set forth in Article Thirteen for repayment at
the option of Holders, except that the period for delivery or notification to
the Trustee shall be at least 25 but not more than 35 days prior to the Original
Stated Maturity and except that, if the Holder has tendered any Security for
repayment pursuant to an Extension Notice, the Holder
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may by written notice to the Trustee revoke such tender for repayment until the
close of business on the tenth day before the Original Stated Maturity.
SECTION 309. 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 Security for the purpose of receiving payment of principal of (and
premium, if any) and (subject to Section 305 and 307) any interest on such
Registered Security and for all other purposes whatsoever, whether or not such
Registered 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 appertaining thereto
shall pass by delivery. The Company, the Trustee and any agent of the Company
or the Trustee may treat the bearer of any Bearer Security and the bearer of any
coupon as the absolute owner of such Security or coupon for the purpose of
receiving payment thereof or on account thereof 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.
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 of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any 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 any Depositary, as a Holder, with respect to
such Global Security or impair, as between such Depositary and owners of
beneficial interests in such Global Security, the operation of customary
practices governing the exercise of the rights of such Depositary (or its
nominee) as Holder of such Global Security.
SECTION 310. CANCELLATION.
All Securities and coupons surrendered for payment, redemption,
repayment at the option of the Holder, 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 and shall be promptly
cancelled by it. The Company may at any time deliver to the Trustee for
cancellation 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
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Person for delivery to the Trustee) for cancellation any Securities previously
authenticated hereunder which the Company has not issued and sold, and all
Securities so delivered shall be promptly cancelled by the Trustee. If the
Company shall so acquire any of the Securities, however, such acquisition shall
not operate as a redemption or satisfaction of the indebtedness represented by
such Securities unless and until the same are surrendered to the Trustee for
cancellation. No Securities shall be authenticated in lieu of or in exchange
for any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities and coupons held by the
Trustee shall be disposed of as directed by a Company Order.
SECTION 311. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
SECTION 312. CURRENCY AND MANNER OF PAYMENTS IN RESPECT OF SECURITIES.
(a) Unless otherwise specified with respect to any Securities pursuant to
Section 301, with respect to Registered Securities of any series not permitting
the election provided for in paragraph (b) below or the Holders of which have
not made the election provided for in paragraph (b) below, and with respect to
Bearer Securities of any series, except as provided in paragraph (d) below,
payment of the principal of (and premium, if any) and interest, if any, on any
Registered or Bearer Security of such series will be made in the Currency in
which such Registered Security or Bearer Security, as the case may be, is
payable. The provisions of this Section 312 may be modified or superseded with
respect to any Securities pursuant to Section 301.
(b) It may be provided pursuant to Section 301 with respect to Registered
Securities of any series that Holders shall have the option, subject to
paragraphs (d) and (e) below, to receive payments of principal of (or premium,
if any) or interest, if any, on such Registered Securities in any of the
Currencies which may be designated for such election by delivering to the
Trustee for such series of Registered Securities a written election with
signature guarantees and in the applicable form established pursuant to Section
301, not later than the close of business on the Election Date (as defined
below) immediately preceding the applicable payment date. If a Holder so elects
to receive such payments in any such Currency, such election will remain in
effect for such Holder or any transferee of such Holder until changed by such
Holder or such transferee by written notice to the Trustee for such series of
Registered Securities (but any such change must be made not later than the close
of business on the Election Date immediately preceding the next payment date to
be effective for the payment to be made on such payment date and no such change
of election may be made with respect to payments to be made on any Registered
Security of such series with respect to which an Event of Default has occurred
or with respect to which the
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Company has deposited funds pursuant to Article Four or Fifteen or with respect
to which a notice of redemption has been given by the Company or a notice of
option to elect repayment has been sent by such Holder or such transferee). Any
Holder of any such Registered Security who shall not have delivered any such
election to the Trustee of such series of Registered Securities not later than
the close of business on the applicable Election Date will be paid the amount
due on the applicable payment date in the relevant Currency as provided in
Section 312(a). The Trustee for each such series of Registered Securities shall
notify the Exchange Rate Agent as soon as practicable after the Election Date of
the aggregate principal amount of Registered Securities for which Holders have
made such written election.
(c) Unless otherwise specified pursuant to Section 301, if the election
referred to in paragraph (b) above has been provided for pursuant to Section
301, then, unless otherwise specified pursuant to Section 301, not later than
the fourth Business Day after the Election Date for each payment date for
Registered Securities of any series, the Exchange Rate Agent will deliver to the
Company a written notice specifying the Currency in which Registered Securities
of such series are payable, the respective aggregate amounts of principal of
(and premium, if any) and interest, if any, on the Registered Securities to be
paid on such payment date, specifying the amounts in such Currency so payable in
respect of the Registered Securities as to which the Holders of Registered
Securities denominated in any Currency shall have elected to be paid in another
Currency as provided in paragraph (b) above. If the election referred to in
paragraph (b) above has been provided for pursuant to Section 301 and if at
least one Holder has made such election, then, unless otherwise specified
pursuant to Section 301, on the second Business Day preceding such payment date
the Company will deliver to the Trustee for such series of Registered Securities
an Exchange Rate Officer's Certificate in respect of the Dollar or Foreign
Currency or Currencies amount receivable by Holders of Registered Securities who
have elected payment in a Currency as provided in paragraph (b) above. Such
amounts shall be determined by the Company on the basis of the applicable Market
Exchange Rate in effect on the second Business Day (the "Valuation Date")
immediately preceding each payment date, and such determination shall be
conclusive and binding for all purposes, absent manifest error.
(d) If a Conversion Event occurs with respect to a Foreign Currency in
which any of the Securities are denominated or payable other than pursuant to an
election provided for pursuant to paragraph (b) above, then with respect to each
date for the payment of principal of (and premium, if any) and interest, if any,
on the applicable Securities denominated or payable in such Foreign Currency
occurring after the last date on which such Foreign Currency was used (the
"Conversion Date"), the Dollar shall be the currency of payment for use on each
such payment date. Unless otherwise specified pursuant to Section 301, the
Dollar amount to be paid by the Company to the Trustee of each such series of
Securities and by such Trustee or any Paying Agent to the Holders of such
Securities with respect to such payment date shall be, in the case of a Foreign
Currency other than a currency unit, the Dollar
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Equivalent of the Foreign Currency (as defined below) or, in the case of a
currency unit, the Dollar Equivalent of the Currency Unit (as defined below), in
each case as determined by the Exchange Rate Agent in the manner provided in
paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 301, if the Holder of
a Registered Security denominated in any Currency shall have elected to be paid
in another Currency as provided in paragraph (b) above, and a Conversion Event
occurs with respect to such elected Currency, such Holder shall receive payment
in the Currency in which payment would have been made in the absence of such
election; and if a Conversion Event occurs with respect to the Currency in which
payment would have been made in the absence of such election, such Holder shall
receive payment in Dollars as provided in paragraph (d) of this Section 312.
(f) "Dollar Equivalent" when used with respect to any Foreign Currency
shall be determined by the Exchange Rate Agent and shall be obtained for each
subsequent payment date by converting the specified Foreign Currency into
Dollars at the Market Exchange Rate on the Conversion Date.
(g) "Dollar Equivalent" when used with respect to any Currency Unit shall
be determined by the Exchange Rate Agent and subject to the provisions of
paragraph (h) below shall be the sum of each amount obtained by converting the
Specified Amount (as defined below) of each Component Currency (as defined
below) into Dollars at the Market Exchange Rate for such Component Currency on
the Valuation Date with respect to each payment.
(h) For purposes of this Section 312, 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, but not limited to, the ECU. A "SPECIFIED AMOUNT" of a
Component Currency shall mean the number of units of such Component
Currency or fractions thereof which were represented in the relevant
currency unit, including, but not limited to, the ECU, on the Conversion
Date. If after the Conversion 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 the Conversion 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 the
Conversion Date any Component Currency shall be divided into two or more
currencies, the
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Specified Amount of such Component Currency shall be replaced by amounts of
such two or more currencies, having an aggregate Dollar Equivalent value at
the Market Exchange Rate on the date of such replacement equal to the
Dollar Equivalent of the Specified Amount of such former Component Currency
at the Market Exchange Rate immediately before such division, and such
amounts shall thereafter be Specified Amounts and such currencies shall
thereafter be Component Currencies. If, after the Conversion Date of the
relevant currency unit, including, but not limited to, the ECU, a
Conversion Event (other than any event referred to above in this definition
of "Specified Amount") occurs with respect to any Component Currency of
such currency unit and is continuing on the applicable Valuation Date, the
Specified Amount of such Component Currency shall, for purposes of
calculating the Dollar Equivalent of the Currency Unit, be converted into
Dollars at the Market Exchange Rate in effect on the Conversion Date of
such Component Currency.
"Election Date" shall mean the Regular Record Date for the applicable
series of Registered Securities or at least 16 days prior to Maturity, as
the case may be, or such other prior date for any series of Registered
Securities as specified pursuant to Section 301(14) by which the written
election referred to in Section 312(b) may be made.
All decisions and determinations of the Exchange Rate Agent regarding the
Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the Currency
Unit, the Market Exchange Rate and changes in the Specified Amounts as specified
above 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,
the Trustee for the appropriate series of Securities and all Holders of such
Securities denominated or payable in the relevant Currency. The Exchange Rate
Agent shall promptly give written notice to the Company and the Trustee for the
appropriate series of Securities of any such decision or determination.
In the event that the Company determines in good faith that a Conversion
Event has occurred with respect to a Foreign Currency, the Company will
immediately give written notice thereof to the Trustee of the appropriate series
of Securities and to the Exchange Rate Agent (and such Trustee will promptly
thereafter give notice in the manner provided in Section 106 to the affected
Holders) specifying the Conversion Date. In the event the Company so determines
that a Conversion Event has occurred with respect to the ECU or any other
currency unit in which Securities are denominated or payable, the Company will
immediately give written notice thereof to the Trustee of the appropriate series
of Securities and to the Exchange Rate Agent (and such Trustee will promptly
thereafter give notice in the manner provided in Section 106 to the affected
Holders) specifying the Conversion Date and the Specified Amount of each
Component Currency on the Conversion Date. In the event the Company determines
in good faith that any subsequent change in any Component Currency as set forth
in the definition of Specified Amount above has occurred, the
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Company will similarly give written notice to the Trustee of the appropriate
series of Securities and to the Exchange Rate Agent (and such Trustee will
promptly thereafter give notice in the manner provided in Section 106 to the
affected Holders).
The Trustee of the appropriate series of Securities 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 the accuracy or validity of such information
independent of the Company or the Exchange Rate Agent.
SECTION 313. APPOINTMENT AND RESIGNATION OF SUCCESSOR EXCHANGE RATE AGENT.
(a) Unless otherwise specified pursuant to Section 301, if and so long as
the Securities of any series (i) are denominated in a Foreign Currency or (ii)
may be payable in a Foreign Currency, or so long as it is required under any
other provision of this Indenture, then the Company will maintain with respect
to each such series of Securities, or as so required, at least one Exchange Rate
Agent. The Company will cause the Exchange Rate Agent to make the necessary
foreign exchange determinations at the time and in the manner specified pursuant
to Section 301 for the purpose of determining the applicable rate of exchange
and, if applicable, for the purpose of converting the issued Foreign Currency
into the applicable payment Currency for the payment of principal (and premium,
if any) and interest, if any, pursuant to Section 312.
(b) No resignation of the Exchange Rate Agent and no appointment of a
successor Exchange Rate Agent pursuant to this Section shall become effective
until the acceptance of appointment by the successor Exchange Rate Agent as
evidenced by a written instrument delivered to the Company and the Trustee of
the appropriate series of Securities accepting such appointment executed by the
successor Exchange Rate Agent.
(c) If the Exchange Rate Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the Exchange
Rate Agent for any cause, with respect to the Securities of one or more series,
the Company, by or pursuant to a Board Resolution, shall promptly appoint a
successor Exchange Rate Agent or Exchange Rate Agents with respect to the
Securities of that or those series (it being understood that any such successor
Exchange Rate Agent may be appointed with respect to the Securities of one or
more or all of such series and that, unless otherwise specified pursuant to
Section 301, at any time there shall only be one Exchange Rate Agent with
respect to the Securities of any particular series that are originally issued by
the Company on the same date and that are initially denominated and/or payable
in the same Currency).
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SECTION 314. CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall indicate the "CUSIP" numbers of
the Securities in notices of redemption as a convenience to Holders; PROVIDED
that any such notice may state that no representation is made as to the
correctness or accuracy of such numbers either as printed on the Securities or
as contained in any notice of redemption and that reliance may be placed only on
the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
SECTION 315. CERTIFICATION BY A PERSON ENTITLED TO DELIVERY OF BEARER SECURITY.
Whenever any provision of this Indenture or a Security contemplates
that certification be given by a Person entitled to delivery of a Bearer
Security, such certification shall be provided substantially in the form of
Exhibit A-1 and, if applicable, A-2 hereto, with only such changes as shall be
approved by the Company and consented to by the Trustee whose consent shall not
unreasonably be withheld.
SECTION 316. JUDGMENTS.
The Company may provide, pursuant to Section 301, for the Securities
of any series that, to the fullest extent possible under applicable law and
except as may otherwise be specified as contemplated in Section 301, (a) the
obligation, if any, of the Company to pay the principal of (and premium, if any)
and interest on the Securities of any series and any appurtenant coupons in a
Foreign Currency, composite Currency or Dollars (the "Designated Currency") as
may be specified pursuant to Section 301 is of the essence and agrees that
judgments in respect of such Securities shall be given in the Designated
Currency; (b) the obligation of the Company to make payments in the Designated
Currency of the principal of (and premium, if any) and interest on such
Securities and any appurtenant coupons shall notwithstanding any payment in any
other currency (whether pursuant to a judgment or otherwise), be discharged only
to the extent of the amount in the Designated Currency that the Holder receiving
such payment may, in accordance with normal banking procedures, purchase with
the sum paid in such other currency (after any premium and cost of exchange) in
the country of issue of the Designated Currency in the case of Foreign Currency
or Dollars or in the international banking community in the case of a composite
currency on the Business Day immediately following the day of such payment; (c)
if the amount in the Designated Currency that may be purchased falls short of
the amount originally due for any reason, the Company shall pay such additional
amounts needed to compensate for any short fall; and (d) any obligation of the
Company not discharged by such payment shall be due as a separate and
independent obligation and, until discharged as provided herein, shall continue
in full force and effect.
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for and rights to receive
payments of principal (and premium, if any) and interest thereon and any right
to receive additional amounts, as provided in Section 1005), and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated, issued and
delivered and all coupons appertaining thereto (other than (i) coupons
appertaining to Bearer Securities surrendered in exchange for Registered
Securities and maturing after such exchange, surrender of which is not required
or has been waived as provided in Section 305; (ii) Securities which have been
destroyed, lost or stolen and which have been replaced or paid as provided in
Section 306; (iii) coupons appertaining to Bearer Securities called for
redemption or surrendered for repayment and maturing after the relevant
Redemption Date or Repayment Date, as appropriate, surrender of which has been
waived as provided in Section 1106 or 1303; and (iv) Securities 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 1003), have been delivered to the Trustee for
cancellation; or
(B) all such Securities and, in the case of (B) (i) or (ii)
below, any coupons appertaining thereto, not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) if redeemable at the option of the Company, 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 (B) (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust an amount
sufficient to pay and discharge the entire indebtedness on such Securities and
such coupons not
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theretofore delivered to the Trustee for cancellation, for principal (and any
premium , if any) and interest to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated Maturity or
Redemption Date, or any Repayment Dates as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; 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 this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 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 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
(a) Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 or 1504 shall be held
in trust and applied by it, in accordance with the provisions of the Securities,
the coupons 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 for whose payment such money has been deposited
with the Trustee.
(b) If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article Four with respect to the Securities of any series
by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company's obligations under this Indenture and the Securities of such series
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article Four with respect to Securities of such series until such time as
the Trustee or Paying Agent is permitted to apply all money held in trust
pursuant to this Section 402 with respect to Securities of such series in
accordance with this Article Four; provided, however, that if the Company makes
any payment of principal (or premium, if any) or interest on any Security of
such series following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of Securities of such series to receive
payment from the money so held in trust.
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ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
An "Event of Default" with respect to Securities of any series occurs if:
(1) the Company defaults in the payment of any installment of interest
upon any Security of that series or of any coupon appertaining thereto when it
becomes due and payable, and continuance of such default for a period of 30
days, whether or not such payment shall be prohibited by Article Sixteen; or
(2) the Company defaults in the payment of the principal of (or premium,
if any, on) any Security of that series at its Maturity, whether or not such
payment shall be prohibited by Article Sixteen; or
(3) the Company defaults in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series, whether or not such
payment shall be prohibited by Article Sixteen; or
(4) the Company fails to comply with any of its agreements in the
Securities or this Indenture (other than a covenant or warranty a default in
whose performance or whose breach is elsewhere in this Section specifically
dealt with or which has expressly been included in this Indenture solely for the
benefit of series of Securities other than that series), and such failure
continues for 60 days after receipt by the Company of a Notice of Default; or
(5) a decree or order by a court having jurisdiction in the premises shall
have been entered adjudging the Company a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization of the Company under any
Bankruptcy Law, and such decree or order shall have continued undischarged and
unstayed for a period of 60 days; or a decree or order of a court having
jurisdiction in the premises for the appointment of a receiver or liquidator or
trustee or assignee in bankruptcy or insolvency of the Company or of its
property, or for the winding-up or liquidation of its affairs, shall have been
entered, and such decree or order shall have remained in force undischarged and
unstayed for a period of 60 consecutive days; or
(6) the Company shall institute proceedings to be adjudicated a voluntary
bankrupt, or shall consent to the filing of a bankruptcy proceeding against it,
or shall file a petition or answer or consent seeking reorganization under any
Bankruptcy Law, or shall consent to the filing of any such petition, or shall
consent to the appointment of a receiver or liquidator or trustee or assignee in
bankruptcy or insolvency of it or of its property or shall make an assignment
for the benefit of creditors, or shall admit in writing its inability to pay its
debts generally as they become due; or
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(7) any other Event of Default as provided with respect to Securities of
any particular series occurs.
"BANKRUPTCY LAW" means Title 11, United States Code, or any similar Federal
or state law for the relief of debtors. "CUSTODIAN" means any receiver,
trustee, assignee, liquidator, custodian or similar official under any
Bankruptcy Law.
A Default under clause (4) above is not an Event of Default until the
Trustee notifies the Company, or the Holders of at least 25% in principal amount
of the Outstanding Securities for that series notify the Company and the
Trustee, of the Default and the Company does not cure such Default (and such
Default is not waived) within the time specified in clause (4) above after
receipt of such notice. Any such notice must specify the Default, demand that it
be remedied and state that such notice is a Notice of Default.
SECTION 502. ACCELERATION.
If an Event of Default with respect to Securities of any series at the time
Outstanding (other than an Event of Default specified in Section 504(5) or (6))
occurs and is continuing, then in every such case the Trustee by notice to the
Company, or the Holders of at least 25% in principal amount of the Outstanding
Securities of that series by notice to the Company and the Trustee, may declare
the principal amount (or, if any of the Securities of that series are Original
Issue Discount Securities or Indexed Securities, such portion of the principal
amount of such Securities as may be specified in the terms hereof) of all of the
Outstanding Securities of that series to be immediately due and payable. Upon
any such declaration, such principal amount (or specified amount) shall be due
and payable immediately. If an Event of Default specified in Section 501(5) or
(6) occurs and is continuing, the principal amount (or, if any of the Securities
of that series are Original Issue Discount Securities or Indexed Securities,
such portion of the principal amount of such Securities as may be specified in
the terms hereof) of all of the Outstanding Securities of that series shall
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holders of that series. The Holders of a
majority of the principal amount of the Outstanding Securities of that series,
by notice to the Trustee (and without notice to any other Holder of that series)
may rescind an acceleration and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Events of Default have
been cured or waived except nonpayment of the amounts specified in Section
501(1) or (2) that have become due solely as a result of acceleration and if all
amounts due to the Trustee under Section 607 have been paid. No such rescission
shall affect any subsequent Default or impair any right consequent thereto.
SECTION 503. OTHER REMEDIES.
If an Event of Default with respect to Securities of any series at the time
outstanding
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(such Securities being referred to herein as "Defaulted Securities") occurs and
is continuing, the Trustee may pursue any available remedy to collect the
payment of the principal (and premium, if any) and interest, if any, or to
enforce the performance of any provision of the Defaulted Securities or this
Indenture.
The Trustee may maintain a proceeding even if the Trustee does not possess
any of the Defaulted Securities or does not produce any of the Defaulted
Securities in the proceeding. A delay or omission by the Trustee or any Holder
in exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of, or acquiescence in, the
Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative.
SECTION 504. WAIVER OF PAST DEFAULTS.
The Holders of a majority in principal amount of the Outstanding Defaulted
Securities by notice to the Trustee (and without notice to any other Holder),
may waive an existing Default and its consequences except (1) an Event of
Default described in Section 501(1) or (2), or (2) a Default in respect of a
provision that under Section 902 cannot be amended without the consent of each
Holder affected. When a Default is waived, it is deemed cured, but no such
waiver shall extend to any subsequent or other Default or impair any consequent
right. This Section 504 shall be in lieu of Section 316(a)1(B) of the TIA and
such Section 316(a)1(B) is hereby expressly excluded from this Indenture, as
permitted by the TIA.
SECTION 505. CONTROL BY MAJORITY.
The Holders of a majority in principal amount of the Outstanding Securities
of a series may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or of exercising any trust or power
conferred on the Trustee. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture or that the Trustee
determines in good faith is unduly prejudicial to the rights of other Holders of
that series or would involve the Trustee in personal liability unless the
Trustee is offered indemnity satisfactory to it. This Section 505 shall be in
lieu of Section 316(a)1(A) of the TIA and such Section 316(a)1(A) is hereby
expressly excluded from this Indenture, as permitted by the TIA.
SECTION 506. LIMITATION ON SUITS.
A Holder may not pursue any remedy with respect to this Indenture or the
Securities of a series or any related coupons unless:
(1) the Holder has previously given to the Trustee written notice
stating that an Event of Default is continuing;
(2) the Holders of at least 25% in principal amount of the
Outstanding
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Securities of that series make a written request to the Trustee to pursue
the remedy;
(3) such Holder or Holders offer to the Trustee reasonable security
or indemnity against any loss, liability or expense satisfactory to the
Trustee;
(4) the Trustee does not comply with the request within 60 days after
receipt of the notice, the request and the offer of security or indemnity;
and
(5) the Holders of a majority in principal amount of the Outstanding
Securities of that series do not give the Trustee a direction inconsistent
with the request during such 60-day period.
A Holder of any Outstanding Securities of any series may not use this
Indenture to prejudice the rights of any other Holder of Outstanding Securities
of the same series or to obtain a preference or priority over any other Holder
of Outstanding Securities of the same series.
SECTION 507. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, but subject to
Article Sixteen, the right of any Holder to receive payment of the principal
(and premium, if any) or interest, if any, in respect of the Securities held by
such Holder, on or after the Stated Maturity or to bring suit for the
enforcement of any such payment on or after such Stated Maturity shall not be
impaired or affected adversely without the consent of each such Holder.
SECTION 508. COLLECTION SUIT BY TRUSTEE.
If an Event of Default described in Section 501(1), (2) or (3) occurs and
is continuing, the Trustee may recover judgment in its own name and as trustee
of an express trust against the Company for the whole amount owing with respect
to the Defaulted Securities and the amounts provided for in Section 607;
subject, however, to Article Sixteen.
SECTION 509. 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 of a series or the property of the Company or of such other obligor
or their creditors, the Trustee (irrespective of whether the principal (and
premium, if any) or interest, if any, in respect of the Securities of that
series shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of any such amount) shall be entitled
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and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of the principal
(or in the case of Original Issue Discount Securities or Indexed
Securities, such portion of the principal as may be provided in the terms
thereof) (and premium, if any) or interest, if any, 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
(b) 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
similar official in any such judicial proceeding is hereby authorized by each
Holder of Securities of that series 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 of Securities of that series, to pay 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 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 510. PRIORITIES.
If the Trustee collects any money pursuant to this Article Five in respect
of a series of Securities, it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 607;
SECOND: to holders of Senior Debt to the extent required by Article
Sixteen;
THIRD: to Holders for amounts due and unpaid on the Securities of
that series for the principal (and premium, if any) or interest, if any, as
the case may be, ratably, without preference or priority of any kind,
according to such amounts due and payable on the Securities of that series.
The Holders of each series of Securities denominated in ECU, any other
composite Currency or a Foreign Currency and any matured coupons relating
thereto shall be entitled to receive a ratable portion of the amount
determined by the Exchange Rate Agent by
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converting the principal amount Outstanding of such series of Securities
and matured but unpaid interest on such series of Securities in the
Currency in which such series of Securities is denominated into Dollars at
the Exchange Rate as of the date of declaration of acceleration of the
Maturity of the Securities; and
FOURTH: the balance, if any, to the Company.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 510. At least 15 days before such record date,
the Company shall mail to each Holder and the Trustee a notice that states the
record date, the payment date and amount to be paid.
SECTION 511. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this Indenture
or in any suit against the Trustee for any action taken or omitted by it as
Trustee, a court in its discretion may require the filing by any party litigant
(other than the Trustee) in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 511 does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 507 or a suit by Holders of more than 10% in
principal amount of the Outstanding Securities of that series. This Section 511
shall be in lieu of Section 315(e) of the TIA and such Section 315(e) is hereby
expressly excluded from this Indenture as permitted by the TIA.
Section 512. WAIVER OF STAY, EXTENSION OR USURY 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 or any usury or
other law wherever enacted, now or at any time hereafter in force, which would
prohibit or forgive the Company from paying all or any portion of the principal
(and premium, if any) or any interest on any such amounts, as contemplated
herein, or 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 laws 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.
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ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
The duties and responsibilities of the Trustee shall be as provided by
Section 315 of the Trust Indenture Act and this Indenture. Except during the
continuance of an Event of Default and after the curing or waiving of all such
Events of Default which may have occurred, the Trustee undertakes to perform
such duties and only such duties as are specifically set forth in this
Indenture, and the Trustee shall not be liable except for the performance of
such duties and obligations as are specifically set forth in this Indenture, and
no implied covenants or obligations shall be read into this Indenture against
the Trustee. 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 601.
SECTION 602. NOTICE OF DEFAULTS.
If a default occurs hereunder with respect to Securities of any series, the
Trustee shall give the Holders of Securities of such series notice of such
default as and to the extent provided by Section 315(b) of the Trust Indenture
Act; PROVIDED, HOWEVER, that in the case of any default of the character
specified in Section 501(4) with respect to Securities of such series, no such
notice to Holders shall be given until at least 30 days after the occurrence
thereof. For the purpose of this Section 602, 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 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or other
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, 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 instruction, request or direction of the Company mentioned
herein
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shall be sufficiently evidenced by a Company Request or Company Order and
any resolution of the Board of Directors shall 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 to take any action hereunder, the Trustee (unless
other evidence is herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) before the Trustee acts or refrains from acting, 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 of Securities of any series or any related coupons
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) prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, the Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, Officers' Certificate, or other certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
appraisal, bond, debenture, note, coupon, security, or other paper or
document unless requested in writing so to do by the Holders of not less
than a majority in aggregate principal amount of the Securities then
outstanding; provided that, if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by it
in the making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the
terms of this Indenture, the Trustee may require reasonable indemnity
against such expenses or liabilities as a condition to proceeding; the
reasonable expenses of every such examination shall be paid by the Company
or, if advanced by the Trustee, shall be repaid by the Company upon demand;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys reasonably acceptable to the Company and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder.
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(h) the Trustee shall not be responsible for the computation of any
adjustment to the Conversion Price or for any determination as to whether
an adjustment is required;
(i) the Trustee shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture;
(j) the Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder;
(k) the Trustee shall not be bound to ascertain or inquire as to the
performance or observance of any covenants, conditions, or agreements on
the part of the Company, except as otherwise set forth herein, but the
Trustee may require of the Company full information and advice as to the
performance of the covenants, conditions and agreements contained herein
and shall be entitled in connection herewith to examine the books, records
and premises of the Company;
(l) the permissive rights of the Trustee to do things enumerated in
this Indenture shall not be construed as a duty and the Trustee shall not
be answerable for other than its negligence or willful default; and
(m) except for (i) a default under Section 501(1) or (2) hereof, or
(ii) any other event of which the Trustee has "actual knowledge" and which
event, with the giving of notice or the passage of time or both, would
constitute an Event of Default under this Indenture, the Trustee shall not
be deemed to have notice of any default or event unless specifically
notified in writing of such event by the Company or the Holders of not less
than 25% in aggregate principal amount of the Securities Outstanding; as
used herein, the term "actual knowledge" means the actual fact or statement
of knowing, without any duty to make any investigation with regard thereto.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, and in any coupons, shall be taken as the
statements of the Company, and the Trustee or any Authenticating Agent assumes
no responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities or any
coupons, except that the Trustee represents that it is duly authorized to
execute and deliver this Indenture, authenticate the Securities and perform its
obligations hereunder and that the statements made by it in a Statement of
Eligibility on Form T-1 supplied to the Company are true and accurate, subject
to the qualifications set forth therein. The Trustee or any Authenticating
Agent shall not be accountable for the use or application by the
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Company of Securities or the proceeds thereof.
SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, 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 and coupons and, subject
to Sections 608 and 613, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed to in writing by the Company and the Trustee.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Trustee from time to time, and the Trustee shall be
entitled to, reasonable compensation as the Company and the Trustee shall
from time to time agree in writing 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 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 gross negligence or
willful misconduct; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without gross negligence or willful
misconduct 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 or investigating any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder.
The obligations of the Company under this Section 607 to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances
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and to indemnify and hold harmless the Trustee shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of this
Indenture. As security for the performance of such obligations of the Company,
the Trustee shall have a claim 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 (and premium, if any, on) or interest on particular
Securities, and the Securities are hereby subordinated to such prior claim.
When the Trustee incurs expenses or renders services in connection with an Event
of Default specified in Article Five hereof, the expenses (including reasonable
fees and expenses of its counsel) and the compensation for the service in
connection therewith are intended to constitute expense of administration under
any applicable bankruptcy law.
The Trustee shall give the Company notice of any claim or liability for
which the Trustee might be entitled to indemnification under subparagraph (3) of
this Section 607 within a reasonable amount of time after a trust officer of the
Trustee becomes aware of such claim or liability.
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee has or shall acquire a conflicting interest within the
meaning of Section 310(b) 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 being a trustee under the Indentures, dated as
of September 1, 1989 and September 1, 1993, between the Company and the Trustee.
Nothing herein shall prevent the Trustee from filing with the Commission the
application referred to in the penultimate paragraph of Section 310(b) of the
Trust Indenture Act.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a Person
that is eligible pursuant to Section 310(a) of the Trust Indenture Act to act
as such and has a combined capital and surplus of at least $50,000,000 and its
Corporate Trust Office is in the Borough of Manhattan, The City of New York, New
York or in the City of Chicago, Illinois. The Trustee hereby represents and
warrants that it is currently in compliance and at all times will remain in
compliance with the foregoing requirements of this Section 609. If such 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 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 Affiliate of the Company
shall serve as Trustee hereunder. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 609, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
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SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
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 611.
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 611 shall not have been
delivered to the 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.
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.
If at any time:
(1) the Trustee shall fail to comply with Section 310(b) of the Trust
Indenture Act pursuant to Section 608 hereof after written request therefor
by the Company or by any Holder who has been a bona fide Holder of a
Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by any such
Holder, 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, or
(4) the Trustee shall commence a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or state bankruptcy, insolvency or similar law or shall consent to
the appointment of or taking possession by a receiver, custodian,
liquidator, assignee, trustee, sequestrator (or other similar official) of
the Trustee or its property or affairs, or shall make an assignment for the
benefit of creditors, or shall admit in writing its inability to pay its
debts generally as they become due, or shall take corporate action in
furtherance of any such action,
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then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, or the Trustee,
petition any court of competent jurisdiction for the removal of the Trustee with
respect to all Securities and the appointment of a successor Trustee or
Trustees.
If the Trustee shall resign, be removed or become incapable of acting, or
if a vacancy shall occur in the office of 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 or all of such series
and that at any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the applicable
requirements of Section 611. 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 611, 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 611, 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, or the
Trustee, petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
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 to all Holders of
Securities of such series in the manner provided in 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 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
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
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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.
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 co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; 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.
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 the
first two paragraphs of this Section 611, as the case may be.
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 and under the Trust Indenture Act.
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SECTION 612. 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 of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article and under the Trust Indenture Act, 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 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Securities), the Trustee shall be subject to the
provisions of Section 311(a) of the Trust Indenture Act regarding the collection
of claims against the Company (or any such other obligor), excluding any
creditor relationships described in Section 311(b) of the Trust Indenture Act.
A Trustee who resigned or has been removed shall be subject to Section 311(a) of
the Trust Indenture Act to the extent indicated therein.
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee 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
and exchange, registration of transfer or partial redemption thereof or pursuant
to Section 306, 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 Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. 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
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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 614, 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 an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section 614, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. 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 614, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall mail
written notice of such appointment by first-class mail, postage prepaid, to all
Holders of Securities 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 614.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 607.
If an appointment with respect to one or more series is made pursuant to
this Section 614, 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:
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This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
------------------------------
AS TRUSTEE
BY
------------------------------
AS AUTHENTICATING AGENT
BY
------------------------------
AUTHORIZED OFFICER
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than 15 days after each Regular Record
Date for each series of Securities at the time Outstanding, a list, in such
form as the Trustee may reasonably require, of the names and addresses of
the Holders of Registered Securities of such series as of the preceding
Regular Record Date (or a date to be determined pursuant to Section 301 for
Original Issue Discount Securities), 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 as of a date not more than 15 days prior to the
time such list is furnished;
EXCLUDING from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Registered Holders contained in the most
recent list furnished to the Trustee as provided in Section 701 and the names
and addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished. The Trustee shall preserve
for at least two years the names and addresses
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of Holders of Bearer Securities filed with the Trustee by such Holders.
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 privileges of the Trustee, shall be as provided by Section 312(b) of
the Trust Indenture Act.
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 any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
SECTION 703. REPORTS BY TRUSTEE.
The Trustee shall transmit to Holders such reports concerning the Trustee
and its actions under this Indenture as may be required pursuant to Section 313
of the Trust Indenture Act at the times and in the manner provided pursuant
thereto, if so required.
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 704. REPORTS BY COMPANY.
The Company shall file with the Trustee and the Commission, and transmit to
Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to Section 314(a) of the Trust Indenture
Act at the times and in the manner provided pursuant to the TIA; provided that
any such information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed
with the Trustee within 15 days after the same is so required to be filed with
the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other Person or
convey, transfer or lease all or substantially all of its properties and assets
to any Person, and the Company shall not permit any Person to consolidate with
or merge into the Company or convey, transfer or lease all or substantially all
of its properties and assets to the Company, unless:
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(1) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease all or substantially all of its
properties and assets to any Person, the Person formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, all or substantially
all of the properties and assets of the Company shall be a corporation,
partnership or trust, shall be organized and validly existing under the
laws of the United States of America, any State thereof 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 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 and treating
any indebtedness which becomes an obligation of the Company or any
Subsidiary as a result of such transaction as having been incurred by the
Company or such Subsidiary at the time of 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 happened and be continuing;
(3) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company would
become subject to a mortgage, pledge, lien, security interest or other
encumbrance which would not be permitted by this Indenture, the Company or
such successor Person, as the case may be, shall take such steps as shall
be necessary to effectively secure the Securities equally and ratably with
(or prior to) all indebtedness secured thereby; and
(4) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture comply
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
SECTION 802. SUCCESSOR PERSON SUBSTITUTED.
Upon any consolidation of the Company with, or merger of the Company into
any other Person or any conveyance, transfer or lease of all or substantially
all of the properties and assets of the Company in accordance with Section 801,
the successor Person formed by such consolidation or into which the Company is
merged or to which such conveyance, transfer or lease 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 Person had been
named as the Company herein,
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and thereafter the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities and coupons. The Trustee
shall enter into a supplemental indenture to evidence the succession and
substitution of such successor person and the discharge and release of the
Company.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders of Securities or coupons, the Company,
when authorized by 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 Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities or coupons (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; or
(3) to add any additional Events of Default (and if such Events of Default
are to be applicable to less than all series of Securities, stating that such
Events of Default are expressly being included solely to be applicable to such
series): or
(4) to add to, change or eliminate any of the provisions of this Indenture
to provide that Bearer Securities may be registrable as to principal, to change
or eliminate any restrictions on the payment of principal (or premium, if any)
on Registered Securities or of principal (or premium, if any) or any interest on
Bearer Securities, to permit Bearer Securities to be issued in exchange for
Registered Securities of other authorized denominations or to permit or
facilitate the issuance of Securities in uncertificated form; PROVIDED that any
such action shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material respect; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, PROVIDED that any
such addition, change or elimination (i) shall neither (A) apply to any
Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (B) modify the
rights of the Holder of any such
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Security with respect to such provision or (ii) shall become effective only
when there is no Outstanding Security; or
(6) to secure the Securities pursuant to the requirements of Section
1010 or otherwise; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) 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 611; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture; PROVIDED THAT such action pursuant to this clause (9)
shall not adversely affect the interests of the Holders of Securities of
any series or any appurtenant coupons in any material respect; or
(10) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act.
SECTlON 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than 662/3% in principal amount
of the Outstanding Securities of each series affected by such supplemental
indenture, by Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by 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 premium, if any) or the rate of interest thereon or
[any premium payable upon the redemption thereof, or] repayment thereof, or
change any obligation of the Company to pay additional amounts pursuant to
Section 1005 (except as contemplated by Section 801(1) and permitted by
Section 901(1)) 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 502, or
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change any Place of Payment where, or the Currency in which, any Security
(or premium, if any) or 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 or repayment, on or
after the Redemption Date or Repayment Date, as applicable); or
(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 or reduce the quorum or voting requirements of Section 1404; or
(3) modify any of the provisions of this Section 902, Section 513 or
Section 1010, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each 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 902 and Section 1010, or
the deletion of this proviso, in accordance with the requirements of
Section 611 and 901(8); or
(4) modify any of the provisions of this Indenture relating to the
subordination of the Securities in a manner adverse to the Holders without
the consent of all Holders.
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.
A supplemental indenture may not make any change that adversely affects the
rights under Article Sixteen of any holder of Senior Debt then outstanding
unless the requisite holders of such Senior Debt consent to such change pursuant
to the terms of such Senior Debt.
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 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental
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indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 601) 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 or immunities under this Indenture or otherwise.
SECTlON 904. 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 905. 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 906. 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 bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company or the Trustee 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 to such series.
SECTION 907. NOTICE OF SUPPLEMENTAL INDENTURE.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to Section 902, the Company shall transmit to
the Holders a notice setting forth the substance of such supplemental indenture.
ARTICLE TEN
COVENANTS
Section 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on
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the Securities of that series in accordance with the terms of the Securities,
any appurtenant coupons and this Indenture. Any interest due on Bearer
Securities on or before Maturity, other than additional amounts, if any, payable
as provided in Section 1005 in respect of principal of (or premium, if any, on)
such a Security, shall be payable only upon presentation and surrender of the
several coupons for such interest installments as are evidenced thereby as they
severally mature. Unless otherwise specified with respect to Securities of any
series pursuant to Section 301, at the option of the Company, all payments of
principal may be paid by check to the registered Holder of the Registered
Security or other person entitled thereto against surrender of such Security.
Unless otherwise specified as contemplated by Section 301 with respect to any
series of Securities, any interest due on Bearer Securities on or before
Maturity shall be payable only upon presentation and surrender of the several
coupons for such interest installments as are evidenced thereby as they
severally mature.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series (but, except as
otherwise provided below, unless such Place of Payment is located outside the
United States, not Bearer Securities) 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 Bearer Securities, the Company will
maintain, subject to any laws or regulations applicable thereto, an office or
agency in a Place of Payment for such series which is located outside the United
States where Securities of such series and the related coupons may be presented
and surrendered for payment (including payment of any additional amounts payable
on Securities of such series pursuant to Section 1005); PROVIDED, HOWEVER, that
if the Securities of such series are listed on The Stock Exchange of the United
Kingdom and the Republic of Ireland or the Luxembourg Stock Exchange or any
other stock exchange located outside the United States and such stock exchange
shall so require, the Company will maintain a Paying Agent in London or
Luxembourg or any other required city located outside the United States, as the
case may be, so long as the Securities of such series are listed on such
exchange. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands, 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 1005) at the place
specified for the purpose pursuant to Section 301(5).
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No payment of principal of, (or premium, if any) 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, payment of principal of and any premium and interest denominated in
Dollars (including additional amounts payable in respect thereof) on any Bearer
Security may be made at an office or agency of, and designated by, the Company
located in the United States if (but only if) payment of the full amount of such
principal, premium, interest or additional amounts in Dollars at all offices
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 and the Trustee receives an Opinion of
Counsel that such payment within the United States is legal. Unless otherwise
provided as contemplated by Section 301 with respect to any series of
Securities, at the option of the Holder of any Bearer Security or related
coupon, payment may be made by check in the Currency designated for such payment
pursuant to the terms of such Bearer Security presented or mailed to an address
outside the United States or by transfer to an account in such Currency
maintained by the payee with a bank located outside the United States.
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 each Place of Payment for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST
If the Company, a Subsidiary or any of their respective Affiliates, 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 (or premium,
if any) or interest on any of the Securities of that series, segregate and hold
in trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal (and premium, if any) and 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, prior to each due date of the principal of (or premium, if
any) or interest on any Securities of that series, and any appurtenant coupons,
deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be
held as provided by the Trust Indenture Act, and (unless such Paying Agent is
the Trustee) the Company
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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 1003, that such Paying Agent will (i) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (ii) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series and any appurtenant coupons, and upon the written
request of the Trustee, forthwith pay to the Trustee all sums held in trust by
such Paying Agent for payment in respect of the Securities of that series.
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 (or premium, if any)
or interest on any Security of any series or any related coupons and remaining
unclaimed for two years after such principal (or premium) or interest has become
due and payable shall be paid to the Company on Company Request, or (if then
held by the Company) shall be discharged from such trust; and the Holder of such
Security 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 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, New York, notice
that such money remains unclaimed and that, after a date specified therein,
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.
SECTION 1004. PURCHASE OF SECURITIES BY COMPANY OR SUBSIDIARY.
If and so long as the Securities of a series are listed on The Stock
Exchange of the United Kingdom and the Republic of Ireland and such stock
exchange shall so require, the Company will not, and will not permit any
Subsidiary to, purchase any Securities of that series by private treaty at a
price (exclusive of expenses and accrued interest) which exceeds 120% of the
mean of the nominal quotations of the Securities of that
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series as shown in The Stock Exchange Daily Official List for the last trading
day preceding the date of purchase.
SECTION 1005. PAYMENT OF 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 any series or any
coupon appertaining thereto additional amounts upon the terms and subject to the
conditions provided therein. Whenever in this Indenture there is mentioned, in
any context, the payment of the principal of (or premium, if any) or interest
on, or in respect of, any Security of any series, 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 the terms of such Securities and this Section 1005 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
premium, if any) is made), and at least 10 days prior to each date of payment of
principal (and premium, if any) 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 Officer's Certificate instructing the
Trustee and such Paying Agent or Paying Agents whether such payment of principal
of (and premium, if any) or interest on the Securities of that series shall be
made to Holders of Securities of that series or the related coupons who are
United States Aliens 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, if any, required
by the terms of such Securities and the first paragraph of this Section 1005.
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 1005.
SECTION 1006. STATEMENT BY OFFICERS AS TO DEFAULT.
(a) The Company will deliver to the Trustee, within 120 days after the end
of each
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fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of force provided hereunder), and if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
(b) The Company shall deliver to the Trustee as soon as possible, and in
any event within five days after the Company becomes aware or should reasonably
have become aware of the occurrence of any Default or Event of Default, an
Officers' Certificate specifying such Default or Event of Default, the period of
existence thereof and what action the Company is taking or proposes to take with
respect thereto.
SECTION 1007. EXISTENCE.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; PROVIDED, HOWEVER, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 1008. MAINTENANCE OF PROPERTIES.
The Company will cause all properties used or useful in the conduct of its
business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
settlements and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; PROVIDED, HOWEVER, that
nothing in this Section 1008 shall prevent the Company from discontinuing the
operation or maintenance of any of such properties if such discontinuance is, in
the judgment of the Company, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to
the Holders.
SECTlON 1009. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or discharged, before
the same shall become delinquent, (1) all taxes, assessments and governmental
charges levied or imposed upon the Company or any Subsidiary or upon the income,
profits or property of the Company or any Subsidiary, and (2) all lawful claims
for labor, materials and supplies which, if unpaid, might by law become a lien
upon the property of the Company or any Subsidiary; PROVIDED, HOWEVER, that the
Company shall not be
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required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings.
SECTION 1010. LIMITATION ON LIENS.
The Company will not itself, and will not permit any Domestic Subsidiary
to, incur, issue, assume, or guarantee any notes, bonds, debentures or other
similar evidences of indebtedness for money borrowed (notes, bonds, debentures
or other similar evidences of indebtedness for money borrowed being hereinafter
in this Article called "Debt"), secured by a pledge of, or mortgage or lien on,
any Principal Property of the Company or any Domestic Subsidiary, or any shares
of stock of or Debt of any Domestic Subsidiary (mortgages, pledges and liens
being hereinafter in this Article called "Mortgage" or "Mortgages"), without
effectively providing that the Securities (together with, if the Company shall
so determine, any other Debt of the Company or such Domestic Subsidiary then
existing or thereafter created which is not subordinate to the Securities) shall
be secured equally and ratably with (or 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 Domestic Subsidiaries in respect of sale and leaseback
transactions (as defined in Section 1011) would not exceed 5% of the
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:
(1) Mortgages on property of, or on any shares of stock of or Debt of,
any corporation which Mortgages are existing at the time such corporation
becomes a Domestic Subsidiary or at the time it is merged into or
consolidated with the Company or any Domestic Subsidiary;
(2) Mortgages in favor of the Company or any Domestic Subsidiary;
(3) Mortgages in favor of any governmental body to secure progress,
advance or other payments pursuant to any contract or provision of any
statute;
(4) Mortgages on property, shares of stock or Debt existing at the
time of acquisition thereof (including acquisition through merger or
consolidation);
(5) Mortgages on property, shares of stock or Debt to secure the
payment of all or any part of the purchase price or construction cost
thereof or to secure any Debt incurred prior to, at the time of, or within
180 days after, the acquisition of such property or shares or Debt, the
completion of any construction or the commencement of full operation, for
the purpose of financing all or any part of the purchase price or
construction cost thereof; and
(6) any extension, renewal or replacement (or successive extensions,
renewals
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or replacements), as a whole or in part of any Mortgage referred to in the
foregoing clauses (1) to (5), inclusive; PROVIDED, that such extension,
renewal or replacement Mortgage shall be limited to all or a part of the
same property, shares of stock or Debt that secured the Mortgage extended,
renewed or replaced (plus improvements on such property).
SECTION 1011. LIMITATION ON SALES AND LEASEBACKS.
The Company will not itself, and it will not permit any Domestic Subsidiary
to, enter into any arrangement with any bank, insurance company or other lender
or investor (not including the Company or any Domestic Subsidiary) or to which
any such lender or investor is a party, providing for the leasing by the Company
or a Domestic Subsidiary for a period, including renewals, in excess of three
years of any Principal Property which has been or is to be sold or transferred,
more than 180 days after the completion of construction and commencement of full
operation thereof, by the Company or such Domestic Subsidiary to such lender or
investor or to any person to whom funds have been or are to be advanced by such
lender or investor on the security of such Principal Property (herein referred
to as a "sale and leaseback transaction") unless either
(1) the Company or such Domestic Subsidiary could create Debt secured
by a Mortgage pursuant to Section 1010 on the Principal Property to be
leased in an amount equal to the Attributable Debt with respect to such
sale and leaseback transaction without equally and ratably securing the
Securities, or
(2) the Company within 120 days after the sale or transfer shall have
been made by the Company or by a Domestic Subsidiary, applies an amount not
less than the greater of (i) the net proceeds of the sale of the Principal
Property leased pursuant to such arrangement or (ii) the fair market value
of the Principal Property so leased at the time of entering into such
arrangement (as determined by any two of the following: Vice Chairman of
the Board and Chief Executive Officer, President, any Vice President or
Treasurer) to the retirement of Funded Debt of the Company; PROVIDED, that
the amount to be applied to the retirement of Funded Debt of the Company
shall be reduced by (a) the principal amount of any Securities delivered
within 120 days after such sale to the Trustee for retirement and
cancellation, and (b) the principal amount of Funded Debt, other than
Securities, voluntarily retired by the Company within 120 days after such
sale. Notwithstanding the foregoing, no retirement referred to in this
clause (2) may be effected by payment at maturity or pursuant to any
mandatory sinking fund payment or any mandatory prepayment provision.
SECTION 1012. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Sections 1010 and 1011 with respect to the
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Securities of any series if before the time for such compliance the Holders of
at least a majority in principal amount of the Outstanding Securities of such
series shall, by Act of such Holders, 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.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. 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 301 for Securities of any series) in
accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution. In case of any redemption at the election of the Company of
less than all 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, of
the principal amount of Securities of such series to be redeemed and, if
applicable, of the tenor of the Securities 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.
SECTlON 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
Except as otherwise specified or contemplated by Section 301 for Securities
of any series, if less than all the Securities of any series are to be redeemed
(unless all of the Securities of such series and of a specified tenor 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 thereof) of
the principal amount of Securities of such series of a denomination
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larger than the minimum authorized denomination for Securities of that series
(so long as such method is not prohibited by the rules of any stock exchange on
which the Securities are then listed). If less than all of the Securities of
such series and of a specified tenor 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
and specified tenor not previously called for redemption in accordance with the
preceding sentence.
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.
SECTlON 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in Section 106
not less than 30 nor more than 60 days prior to the Redemption Date, to each
Holder of Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption of
any Securities, the principal amounts) of the particular Securities to be
redeemed,
(4) that, on the Redemption Date, the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) the Place or Places of Payment where such Securities, together in
the case of Bearer Securities with all coupons appertaining thereto, if
any, maturing after the Redemption Date, are to be surrendered for payment
of the Redemption Price and accrued interest, if any,
(6) that the redemption is for a sinking fund, if such is the case,
(7) that Bearer Securities may be surrendered for payment only at
such place
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or places outside of the United States, except as otherwise specified in
Section 1002 and unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the date fixed for
redemption or the amount of any such missing coupon or coupons will be
deducted from the Redemption Price, unless security or indemnity
satisfactory to the Company, the Trustee for such series and any Paying
Agent is furnished,
(8) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject to
redemption on this Redemption Date pursuant to Section 305 or otherwise,
the last date, as determined by the Company, on which such exchanges may be
made, and
(9) the CUSIP number of such Security, if any.
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 and shall be irrevocable.
Failure to give such notice to the Holder of any Security or any defect in
such notice given to the Holder of any Security shall not affect the validity of
the proceedings for any other Security or part thereof.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
Prior to 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 1003) an amount of money in
the Currency in which such Securities are payable 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 1106. 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. Upon surrender of any
such Security for redemption in accordance with said notice, 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 upon
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presentation and surrender of coupons for such interest (at an office or agency
located outside the United States except as otherwise provided in Section 1002)
and PROVIDED FURTHER, that, unless otherwise specified in Section 301,
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 Registered
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 307.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant coupons maturing after the Redemption Date, such Bearer
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 Bearer
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 without
interest thereon; PROVIDED, HOWEVER, that interest represented by coupon
shall be payable only upon presentation and surrender of those coupons at an
office or agency located outside of the United States except as otherwise
provided in Section 1002.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate prescribed therefor in the
Security.
SECTION 1107. SECURITIES REDEEMED IN PART.
Any Registered 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 deliver to the Holder of such Security
without service charge, a new Registered Security or Securities of the same
series and of like tenor, 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.
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ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. 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 301 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 1202. 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 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (1) may deliver Outstanding Securities of a series (other than
any previously called for redemption), together with any unmatured coupons
appertaining to any Bearer Securities of such series, 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 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.
SECTlON 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities (unless a shorter period is satisfactory to the Trustee),
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 1202 and
will also deliver to the Trustee any Securities to be so delivered. Not less
than 30 nor more than 60 days before each such sinking fund
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payment date the Trustee shall select the Securities to be redeemed upon such
sinking fund payment date (unless a shorter period is satisfactory to the
Trustee) in the manner specified in Section 1103 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 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. APPLICABILITY OF ARTICLE.
Securities of any series which are repayable at the option of the Holders
thereof before their Stated Maturity shall be repaid in accordance with their
terms and (except as otherwise specified pursuant to Section 301 for Securities
of such series) in accordance with this Article.
SECTION 1302. REPAYMENT OF SECURITIES.
Each Security which is subject to repayment in whole or in part at the
option of the Holder thereof on a Repayment Date shall, unless otherwise
provided in its terms, be repaid at the applicable Repayment Price together with
interest accrued to such Repayment Date as specified pursuant to Section 301.
SECTION 1303. EXERCISE OF OPTION; NOTICE.
Each Holder desiring to exercise such Holder's option for repayment shall,
as conditions to such repayment, surrender the Security to be repaid in whole or
in part together with written notice of the exercise of such option at any
office or agency of the Company in a Place of Payment, not less than 30 nor more
than 45 days prior to the Repayment Date; PROVIDED, HOWEVER, that surrender of
Bearer Securities together with written notice of exercise of such option shall
be made at an office or agency located outside the United States except as
otherwise provided in Section 1002. Such notice, which shall be irrevocable,
shall specify the principal amount of such Security to be repaid, which shall be
equal to the minimum authorized denomination for such Security or an integral
multiple thereof, and shall identify the Security to be repaid and, in the case
of a partial repayment of the Security, shall specify the denominations of the
Security or Securities of the same series to be issued to the Holder for the
portion of the principal of the Security surrendered which is not to be repaid.
If any Bearer Security surrendered for repayment shall not be accompanied
by all unmatured coupons and all matured coupons in default, such Bearer
Security may be paid after deducting from the Repayment Price an amount equal to
the face amount of
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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 Bearer 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 Repayment Price, such Holder
shall be entitled to receive the amount so deducted without interest thereon;
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 1002.
The Company shall execute and the Trustee shall authenticate and deliver
without service charge to the Holder of any Registered Security so surrendered a
new Registered Security or Securities of the same series, of any authorized
denomination specified in the foregoing notice, in an aggregate principal amount
equal to any portion of the principal of the Registered Security so surrendered
which is not to be repaid.
The Company shall execute and the Trustee shall authenticate and deliver
without service charge to the Holder of any Bearer Security so surrendered a new
Registered Security or Securities or new Bearer Security or Securities (and all
appurtenant unmatured coupons and matured coupons in default) or any combination
thereof of the same series of any authorized denomination or denominations
specified in the foregoing notice, in an aggregate principal amount equal to any
portion of the principal of the Security so surrendered which is not to be paid;
PROVIDED, HOWEVER, that the issuance of a Registered Security therefor shall be
subject to applicable laws and regulations in effect at the time of the
exchange; neither the Company, the Trustee nor the Security Registrar shall
issue Registered Securities for Bearer Securities if it has received an Opinion
of Counsel that as a result of such issuance the Company would suffer adverse
consequences under the United States Federal income tax laws then in effect and
the Company has delivered to the Trustee a Company Order directing the Trustee
not to make such issuances thereafter unless and until the Trustee receives a
subsequent Company Order to the contrary. The Company shall deliver copies of
such Company Order to the Security Registrar.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the repayment of Securities shall relate, in the case
of any Security repaid or to be repaid in part, to the portion of the principal
of such Security which has been or is to be repaid.
SECTION 1304. ELECTION OF REPAYMENT BY REMARKETING ENTITIES.
The Company may elect with respect to Securities of any series which are
repayable at the option of the Holders thereof before their Stated Maturity, at
any time prior to any Repayment Date to designate one or more Remarketing
Entities to purchase, at a price equal to the Repayment Price, Securities of
such series from the
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Holders thereof who give notice and surrender their Securities in accordance
with Section 1303.
SECTION 1305. SECURITIES PAYABLE ON THE REPAYMENT DATE.
Notice of exercise of the option of repayment having been given and the
Securities so to be repaid having been surrendered as aforesaid, such Securities
shall, unless purchased in accordance with Section 1304, on the Repayment Date
become due and payable at the price therein specified and from and after the
Repayment Date such Securities shall cease to bear interest and shall be paid on
the Repayment Date, and the coupons for such interest appertaining to Bearer
Securities so to be repaid, except to the extent provided above, shall be void,
unless the Company shall default in the payment of such price in which case the
Company shall continue to be obligated for the principal amount of such
Securities and shall be obligated to pay interest on such principal amount at
the rate borne by such Securities from time to time until payment in full of
such principal amount.
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1401. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
If Securities of a series are issuable in whole or in part as Bearer
Securities, a meeting of Holders of Securities of such 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
Act 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 issuable as Bearer Securities 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 21 no more than 180 days prior to the date fixed
for the meeting.
(b) In case at any time the Company, 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
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shall not have made the first publication of the notice of such meeting within
21 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; PROVIDED, HOWEVER, that if any action is
to be taken at such meeting with respect to a consent which this Indenture
expressly provides may be given by the Holders of not less than 66 2/3% in
principal amount of the Outstanding Securities of a series, the Persons entitled
to vote 66 2/3% in principal amount of the Outstanding Securities of such
series shall constitute a quorum. 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 the
absence of a quorum in any other case the meeting may be adjourned for a period
of not less than 10 days as determined by the chairperson 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 chairperson of the meeting prior
to the adjournment of such adjourned meeting. Notice of this 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. Notice of the reconvening of
an adjourned meeting shall state expressly the percentage, as provided above, of
the principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by the proviso to Section 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted only by the affirmative vote of the Holders of
majority in
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principal amount of the Outstanding Securities of that series, PROVIDED,
HOWEVER, that, except as limited by the proviso to Section 902, any resolution
with respect to any consent or waiver which this Indenture expressly provides
may be given by the Holders of not less than 66 2/3% 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 only by
the affirmative vote of the Holders of 66 2/3% in principal amount of the
Outstanding Securities of that series; and PROVIDED, FURTHER, that, except as
limited by the proviso to Section 902, any resolution with respect to any
request, demand, authorization, direction, notice, consent, waiver or other Act
which this Indenture expressly provides may be made, given or taken by the
Holders of a specified percentage, which is 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.
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 such 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, in the case of Bearer Securities, 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 holding 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
chairperson 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
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may be, shall in like manner appoint a temporary chairperson. A permanent
chairperson 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 $1.00 principal amount (or the equivalent in
ECU, any other composite currency or a Foreign Currency) of 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 chairperson of the meeting not to be Outstanding.
The chairperson 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 a 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 chairperson of the meeting shall appoint two inspectors of vote 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 triplicate of all votes cast at the meeting. A record, at least in
triplicate, 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 1401. Each copy shall be signed and verified by the
affidavits of the permanent chairperson 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.
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ARTICLE FIFTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1501. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE.
The Company may elect, at its option by Board Resolution at any time, to
have either Section 1502 or Section 1503 applied to the Outstanding Securities
of any series designated pursuant to Section 301 as being defeasible, and any
related coupon, pursuant to this Article Fifteen (hereinafter called a
"Defeasible Series"), upon compliance with the conditions set forth below in
this Article Fifteen.
SECTION 1502. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of the option provided in Section 1501 to have
this Section 1502 applied to the Outstanding Securities of any Defeasible
Series, the Company shall be deemed to have been discharged from its obligations
with respect to the Outstanding Securities of such series and any related
coupons as provided in this Section on and after the date the conditions set
forth in Section 1504 are satisfied (hereinafter called "Defeasance"). For this
purpose, such Defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by the Outstanding Securities of
such series and to have satisfied all its other obligations under the Securities
of such series and this Indenture insofar as the Securities of such series are
concerned (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), subject to the following which shall
survive until otherwise terminated or discharged hereunder (1) the rights of
Holders of Securities of such series to receive, solely from the trust fund
described in Section 1504 and as more fully set forth in such Section, payments
in respect of the principal of (and premium, if any) and interest on such
Securities of such series when payments are due, (2) the Company's obligations
with respect to the Securities of such series under Sections 304, 305, 306,
1002, 1003 and any additional amounts under Section 1005, (3) the rights,
powers, trusts, duties and immunities of the Trustee hereunder and (4) this
Article Fifteen. Subject to compliance with this Article Fifteen, the Company
may exercise its option provided in Section 1501 to have this Section 1502
applied to the Outstanding Securities of any Defeasible Series notwithstanding
the prior exercise of its option provided in Section 1501 to have Section 1503
applied to the Outstanding Securities of such series and any related coupons.
SECTION 1503. COVENANT DEFEASANCE.
Upon the Company's exercise of the option provided in Section 1501 to have
this Section 1503 applied to the Outstanding Securities of any Defeasible Series
and any related coupons, (1) the Company shall be released from its obligations
under Sections 1007 through 1011, inclusive, and Section 801 and (2) the
occurrence of any
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event specified in Sections 501(3), 501(4) (with respect to any of Sections 1007
through 1011, inclusive, and Section 801) and 501(7) shall be deemed not to be
or result in an Event of Default, in each case with respect to the Outstanding
Securities of such series as provided in this Section 1503 on and after the date
the conditions set forth in Section 1504 are satisfied (hereinafter called
"Covenant Defeasance"). For this purpose, such Covenant Defeasance means that
the Company may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such specified Section (to
the extent so specified in the case of Section 501(4)), whether directly or
indirectly by reason of any reference elsewhere herein to any such Section or by
reason of any reference in any such Section to any other provision herein or in
any other document, but the remainder of this Indenture and the Securities of
such series shall be unaffected thereby.
SECTION 1504. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of either Section 1502
or Section 1503 to the Outstanding Securities of any Defeasible Series:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee that satisfies the
requirements contemplated by Section 609 and agree to comply with the
provisions of this Article Fifteen applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of Outstanding Securities of such series, (A) money in an amount
(in such Currency in which such Securities and any coupons appertaining
thereto are then specified as payable at Stated Maturity), (B) U.S.
Government Obligations that through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide,
not later than one day before the due date of any payment, money in an
amount, or (C) a combination thereof, in each case sufficient, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to
pay and discharge, and which shall be applied by the Trustee (or any such
other qualifying Trustee) to pay and discharge, the principal of (and
premium, if any) and interest on the Securities of such series on the
respective Stated Maturities, in accordance with the terms of this
Indenture and the Securities of such series.
(2) In the case of an election under Section 1502, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (A) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the date first set forth hereinabove,
there has been a change in the applicable Federal income tax law, in either
case (A) or (B) to the effect that, and based thereon such opinion shall
confirm that, the Holders of the Outstanding Securities of such series will
not recognize gain or loss for Federal income tax purposes as a result of
the deposit, Defeasance and discharge to be effected with respect to the
Securities of such series and will be subject to Federal income tax
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on the same amount, in the same manner and at the same times as would be
the case if such deposit, Defeasance and discharge were not to occur.
(3) In the case of an election under Section 1503, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities of such series will not recognize
gain or loss for Federal income tax purposes as result of the deposit and
Covenant Defeasance to be effected with respect to the Securities of such
series and will be subject to Federal income tax on the same amount, in the
same manner and at the same times as would be the case if such deposit and
Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an Officers'
Certificate to the effect that the Securities of such series, if then
listed on any securities exchange, will not be delisted as a result of such
deposit.
(5) No Event of Default or event that (after notice of lapse of time
or both) would become an Event of Default shall have occurred and be
continuing at the time of such deposit or, with regard to any Event of
Default or any such event specified in Sections 501(5) and (6), at any time
on or prior to the 90th day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until after
such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee
to have a conflicting interest within the meaning of the Trust Indenture
Act.
(7) Such Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any other agreement
or instrument to which the Company is a party or by which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in the
trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act of 1940, as amended, unless such
trust shall be qualified or exempt from regulation thereunder.
(9) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
SECTION 1505. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section 1003, all money
and U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee or other qualifying trustee (solely for purposes of this Section
1505 and Section 1506, the Trustee and any such other trustee are referred to
collectively as the "Trustee")
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pursuant to Section 1504 in respect of the Securities of any Defeasible Series
and any related coupons shall be held in trust and applied by the Trustee, in
accordance with the provisions of the Securities and the related coupons, if
any, of such series and this Indenture, to the payment, either directly or
through any such Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Holders of Securities of such
series, of all sums due and to become due thereon in respect of principal and
any premium and interest, but money so held in trust need not be segregated from
other funds except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to Section
301, if, after a deposit referred to in Section 1504(a) has been made, (a) the
Holder of a Security in respect of which such deposit was made is entitled to,
and does, elect pursuant to Section 312(b) or the terms of such Security to
receive payment in a Currency other than that in which the deposit pursuant to
Section 1504(a) has been made in respect of such Security, or (b) a Conversion
Event occurs as contemplated in Section 312(d) or 312(e) or by the terms of any
Security in respect of which the deposit pursuant to Section 1504(a) has been
made, the indebtedness represented by such Security and any coupons appertaining
thereto shall be deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal of (and premium, if any) and
interest, if any, on such Security as the same becomes due out of the proceeds
yielded by converting (from time to time as specified below in the case of any
such election) the amount or other property deposited in respect of such
Security into the Currency in which such Security becomes payable as a result of
such election or Conversion Event based on the applicable Market Exchange Rate
for such Currency in effect on the second Business Day prior to each payment
date, except, with respect to a Conversion Event, for such Currency in effect
(as nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1504 or the principal and interest received in
respect thereof other than any such tax, fee or other charge that by law is for
the account of the Holders of Outstanding Securities.
Anything in this Article Fifteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 1504 with respect to Securities of any Defeasible Series that, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof that would then be required to be deposited to
effect an equivalent Defeasance or Covenant Defeasance with respect to the
Securities of such series.
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SECTlON 1506. REINSTATEMENT.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article Fifteen with respect to the Securities of any
series by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company's obligations under this Indenture and the Securities of such series
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article Fifteen with respect to Securities of such series until such time
as the Trustee or Paying Agent is permitted to apply all money held in trust
pursuant to Section 1505 with respect to Securities of such series in accordance
with this Article Fifteen; PROVIDED, HOWEVER, that if the Company makes any
payment of principal of (or premium, if any) or interest on any Security of such
series following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of Securities of such series to receive
such payment from the money so held in trust.
ARTICLE SIXTEEN
SUBORDINATION OF SECURITIES
Section 1601. SECURITIES SUBORDINATE TO SENIOR DEBT.
The Company covenants and agrees, and each Holder of a Security by such
Holder's acceptance thereof likewise covenants and agrees, that, to the extent
and in the manner hereinafter set forth in this Article Sixteen, the
indebtedness represented by the Securities and the payment of the principal of
(and premium, if any) and interest, if any, in respect of each and all of the
Securities are hereby expressly made subordinate and subject in right of payment
to the prior payment in full of all Senior Debt.
SECTION 1602. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
Upon any distribution of assets of the Company in the event of
(a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its
creditors, as such, or to its assets, or
(b) any liquidation, dissolution or other winding up of the Company,
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or
(c) any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Company,
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then and in such event
(1) the holders of Senior Debt shall be entitled to receive payment in
full of all amounts due or to become due on or in respect of all Senior
Debt, or provision shall be made for such payment in cash, before the
Holders of the Securities of a series are entitled to receive any payment
on account of the principal (and premium, if any), or interest, if any, in
respect of the Securities of that series; and
(2) any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, by set-off or
otherwise, to which the Holders or the Trustee would be entitled but for
the provisions of this Article Sixteen, including any such payment or
distribution which may be payable or deliverable by reason of the payment
of any other Debt of the Company being subordinated to the payment of the
Securities of a series, shall be paid by the liquidating trustee or agent
or other person making such payment or distribution, whether a trustee in
bankruptcy, a receiver or liquidating trustee or otherwise, directly to the
holders of Senior Debt or their representative or representatives or to the
trustee or trustees under any indenture under which any instruments
evidencing any of such Senior Debt may have been issued, ratably according
to the aggregate amounts remaining unpaid on account of the principal of
(and premium, if any) and interest on the Senior Debt held or represented
by each, to the extent necessary to make payment in full of all Senior Debt
remaining unpaid, after giving effect to any concurrent payment or
distribution to the holders of such Senior Debt.
In the event that, notwithstanding the foregoing provisions of this Section
1602, the Trustee or the Holder of any Security of a series shall receive any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, including any such payment or
distribution which may be payable or deliverable by reason of the payment of any
other Debt of the Company being subordinated to the payment of the Securities of
that series, before all Senior Debt is paid in full or payment thereof provided
for, and if such fact shall then have been made known to the Trustee, or, as the
case may be, such Holder, then and in such event such payment or distribution
shall be paid over or delivered forthwith to the trustee in bankruptcy,
receiver, liquidating trustee, Custodian, assignee, agent or other person making
payment or distribution of assets of the Company for application to the payment
of all Senior Debt remaining unpaid, to the extent necessary to pay all Senior
Debt in full, after giving effect to any concurrent payment or distribution to
or for the holders of Senior Debt.
For purposes of this Article Sixteen only, the words "CASH, PROPERTY OR
SECURITIES" shall not be deemed to include shares of Capital Stock of the
Company as reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment the payment
of which is subordinated, at least to the extent provided in this Article
Sixteen with respect to the
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Securities of the applicable series, to the payment of all Senior Debt which may
at the time be outstanding; PROVIDED, HOWEVER, that (i) Senior Debt is assumed
by the new corporation, if any, resulting from any such reorganization or
readjustment, and (ii) the rights of the holders of the Senior Debt are not,
without the consent of such holders, altered by such reorganization or
readjustment.
The consolidation of the Company with, or the merger of the Company into,
another person or the liquidation or dissolution of the Company following the
conveyance or transfer of all or substantially all of its assets to another
person upon the terms and conditions set forth in Article Eight shall not be
deemed a dissolution, winding up, liquidation, reorganization, assignment for
the benefit of creditors or marshalling of assets and liabilities of the Company
for the purposes of this Section 1602 if the person formed by such consolidation
or into which the Company is merged or the person which acquires by conveyance
or transfer all or substantially all of the assets of the Company, as the case
may be, shall, as a part of such consolidation, merger, conveyance or transfer,
comply with the conditions set forth in Article Eight.
SECTION 1603. ACCELERATION OF SECURITIES.
In the event that any Securities of a series are declared due and payable
before their Stated Maturity pursuant to Section 502, then and in such event the
Company shall promptly notify holders of Senior Debt of such acceleration. The
Company may not pay the Securities of that series until 120 days have passed
after such acceleration occurs and may thereafter pay the Securities of that
series if this Article Sixteen permits the payment at that time.
In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or the Holder of any Securities prohibited by the
foregoing provisions of this Section 1603, and if such facts then shall have
been known or thereafter shall have been made known to the Trustee as provided
in Section 1610 or such Holder, as the case may be, pursuant to the terms of
this Indenture, then and in such event such payment shall be paid over and
delivered forthwith to the Company by or on behalf of the person holding such
payment for the benefit of the holders of Senior Debt.
The provisions of this Section 1603 shall not apply to any payment with
respect to which Section 1602 would be applicable.
SECTION 1604. DEFAULT ON SENIOR DEBT.
The Company may not make any payment of the principal (and premium, if any)
or interest, if any, in respect of the Securities of a series and may not
acquire any Securities of that series for cash or property if:
(1) a default on Senior Debt occurs and is continuing that permits
holders of
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<PAGE>
such Senior Debt to accelerate its maturity; and
(2) the default is the subject of judicial proceedings or the Company
receives a notice of default thereof from any person who may give such
notice pursuant to the instrument evidencing or document governing such
Senior Debt. If the Company receives any such notice, then a similar notice
received within nine months thereafter relating to the same default on the
same issue of Senior Debt shall not be effective for purposes of this
Section 1604.
The Company may resume payments on the Securities of that series and may
acquire Securities of that series if and when:
(A) the default is cured or waived; or
(B) 120 or more days pass after the receipt by the Company of the
notice described in clause (2) above and the default is not then the
subject of judicial proceedings; and
this Article Sixteen otherwise permits the payment or acquisition at that time.
In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section 1604, and if such fact then shall have been
known or thereafter shall have been made known to the Trustee or such Holder, as
the case may be, pursuant to the terms of this Indenture, then and in such event
such payment shall be paid over and delivered forthwith to the Company by or on
behalf of the person holding such payment for the benefit of the holders of the
Senior Debt.
Nothing contained in this Article Sixteen or elsewhere in this Indenture or
in any of the Securities shall prevent the conversion by a Holder of any
Securities for Capital Stock in accordance with any provisions for conversion of
such Securities for Capital Stock in the event of an occurrence of the events
described in clauses (1) and (2) of this Section 1604.
The provisions of this Section 1604 shall not apply to any payment with
respect to which Section 1602 would be applicable.
SECTION 1605. PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article Sixteen or elsewhere in this Indenture or
in any of the Securities of a series shall prevent (a) the Company, at any time
except during the pendency of any case, proceeding, dissolution, liquidation or
other winding up, assignment for the benefit of creditors or other marshalling
of assets and liabilities of the Company referred to in Section 1602 or under
the conditions described in Section 1603 or 1604, from making payments at any
time of the principal (and premium, if any),
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<PAGE>
or interest, if any, as the case may be, in respect of the Securities of that
series, or (b) the application by the Trustee or the retention by any Holder of
any money deposited with it hereunder to the payment of or on account of the
principal (and premium, if any), or interest, if any, as the case may be, in
respect of the Securities of that series if the Trustee did not have, at the
time provided in the proviso to the first paragraph of Section 1610, notice that
such payment would have been prohibited by the provisions of this Article
Sixteen.
SECTION 1606. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR DEBT.
Subject to the payment in full of all Senior Debt, the Holders of the
Securities of a series shall be subrogated to the extent of the payments or
distributions made to the holders of such Senior Debt pursuant to the provisions
of this Article Sixteen to the rights of the holders of such Senior Debt to
receive payments or distributions of cash, property or securities applicable to
the Senior Debt until the principal (and premium, if any) or interest, if any,
as the case may be, in respect of the Securities of that series shall be paid in
full. For purposes of such subrogation, no payments or distributions to the
holders of the Senior Debt of any cash, property or securities to which the
Holders of the Securities of that series or the Trustee would be entitled except
for the provisions of this Article Sixteen, and no payments pursuant to the
provisions of this Article Sixteen to the Company or to the holders of Senior
Debt by Holders of the Securities of that series or the Trustee, shall, as
between the Company, its creditors other than holders of Senior Debt and the
Holders of the Securities of that series, be deemed to be a payment or
distribution by the Company to or on account of the Senior Debt.
SECTION 1607. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The provisions of this Article Sixteen are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities of each
series, on one hand, and the holders of Senior Debt, on the other hand. Nothing
contained in this Article Sixteen or elsewhere in this Indenture or in the
Securities of a series is intended to or shall
(a) impair, as between the Company and the Holders of the Securities
of that series, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders of the Securities of that series the
principal (and premium, if any) and interest, if any, as the case may be,
in respect of the Securities of that series as and when the same shall
become due and payable in accordance with the terms of the Securities of
that series and this Indenture and which, subject to the rights under this
Article Sixteen of the holders of Senior Debt, is intended to rank equally
with all other general obligations of the Company; or
(b) affect the relative rights against the Company of the Holders of
the Securities of that series and creditors of the Company other than
holders of Senior Debt; or
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<PAGE>
(c) prevent the Trustee or the Holder of any Security of that series
from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this
Article Sixteen of the holders of Senior Debt to receive cash, property or
securities otherwise payable or deliverable to the Trustee or such Holder.
SECTION 1608. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of a Security by such Holder's acceptance thereof authorizes
and directs the Trustee on such Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article Sixteen and appoints the Trustee such Holder's attorney-in-fact for any
and all such purposes.
SECTION 1609. NO WAIVER OF SUBORDINATION PROVISIONS.
No right of any present or future holder of any Senior Debt to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance by
the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be otherwise
charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Debt may, at any time and, from time to time, without the
consent of, or notice to, the Trustee or the Holders of the Securities of that
series, without incurring responsibility to the Holders of the Securities of
that series and without impairing or releasing the subordination provided in
this Article Sixteen or the obligations hereunder of the Holders of the
Securities of that series to the holders of such Senior Debt, do any one or more
of the following: (i) change the manner, place or terms of payment or extend the
time of payment of, or renew or alter, such Senior Debt, or otherwise amend or
supplement in any manner such Senior Debt or any instrument evidencing the same
or any agreement under which such Senior Debt is outstanding; (ii) sell,
exchange, release or otherwise dispose of any property pledged, mortgaged or
otherwise securing such Senior Debt; (iii) release any person liable in any
manner for the collection of such Senior Debt; and (iv) exercise or refrain from
exercising any rights against the Company or any other person.
SECTION 1610. NOTICE TO TRUSTEE.
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by the
Trustee in respect of the Securities of a series. Failure to give such notice
shall not affect the subordination of the Securities of that series to Senior
Debt. Notwithstanding the provisions of this Article Sixteen or any other
provision of this Indenture, the Trustee
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<PAGE>
shall not be charged with knowledge of the existence of any facts which would
prohibit the making of any payment to or by the Trustee in respect of the
Securities of a series, unless and until the Trustee shall have received written
notice thereof at the address specified in Section 101 from the Company or a
holder of Senior Debt or from any trustee or agent therefor; and, prior to the
receipt of any such written notice, the Trustee, subject to the provisions of
Article Six, shall be entitled in all respects to assume that no such facts
exist; PROVIDED, HOWEVER, that if a Trust Officer of the Trustee shall not have
received, at least three Business Days prior to the date upon which by the terms
hereof any such money may become payable for any purpose (including, without
limitation, the payment of the principal (and premium, if any), or interest, if
any, as the case may be, in respect of any Security of that series), the notice
with respect to such money provided for in this Section 1610, then, anything
herein contained to the contrary notwithstanding, the Trustee shall have full
power and authority to receive such money and to apply the same to the purpose
for which such money was received and shall not be affected by any notice to the
contrary which may be received by it within three Business Days prior to such
date.
Subject to the provisions of Article Six, the Trustee shall be entitled to
rely on the delivery to it of a written notice by a person representing himself
to be a holder of Senior Debt (or a trustee or agent on behalf of such holder)
to establish that such notice has been given by a holder of Senior Debt (or a
trustee or agent on behalf of any such holder). In the event that the Trustee
determines in good faith that further evidence is required with respect to the
right of any person as a holder of Senior Debt to participate in any payment or
distribution pursuant to this Article Sixteen, the Trustee may request such
person to furnish evidence to the reasonable satisfaction of the Trustee as to
the amount of Senior Debt held by such person, the extent to which such person
is entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such person under this Article Sixteen, and if such
evidence is not furnished, the Trustee may defer any payment which it may be
required to make for the benefit of such person pursuant to the terms of this
Indenture pending judicial determination as to the right of such person to
receive such payment.
SECTION 1611. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT.
Upon any payment or distribution of assets of the Company referred to in
this Article Sixteen, the Trustee, subject to the provisions of Article Six, and
the Holders of the Securities of a series shall be entitled to rely upon any
order or decree entered by any court of competent jurisdiction in which such
insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution,
winding up or similar case or proceeding is pending, or a certificate of the
trustee in bankruptcy, liquidating trustee, Custodian, receiver, assignee for
the benefit of creditors, agent or other person making such payment or
distribution, delivered to the Trustee or to the Holders of Securities of that
series, for the purpose of ascertaining the persons entitled to participate in
such payment or distribution, the holders of Senior Debt and other indebtedness
of the Company, the amount thereof or payable thereon, the amount or amounts
paid or
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<PAGE>
distributed thereon and all other facts pertinent thereto or to this Article
Sixteen.
SECTION 1612. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR DEBT.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Debt and shall not be liable to any such holders if the Trustee shall in
good faith mistakenly pay over or distribute to Holders of Securities of that
series or to the Company or to any other person cash, property or securities to
which any holders of Senior Debt shall be entitled by virtue of this Article
Sixteen or otherwise. The Trustee shall not be charged with knowledge of the
existence of Senior Debt or of any facts that would prohibit any payment
hereunder unless a Trust Officer of the Trustee shall have received notice to
that effect at the address of the Trustee set forth in Section 101. With respect
to the holders of Senior Debt, the Trustee undertakes to perform or to observe
only such of its covenants or obligations as are specifically set forth in this
Article Sixteen and no implied covenants or obligations with respect to holders
of Senior Debt shall be read into this Indenture against the Trustee.
SECTION 1613. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR DEBT; PRESERVATION OF
TRUSTEE'S RIGHTS.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article Sixteen with respect to any Senior Debt which may at
any time be held by it, to the same extent as any other holder of Senior Debt,
and nothing in this Indenture shall deprive the Trustee of any of its rights as
such holder.
Nothing in this Article Sixteen shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 607.
SECTION 1614. ARTICLE SIXTEEN APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term "Trustee" as
used in this Article Sixteen shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article Sixteen in addition to or in place of the Trustee;
PROVIDED, HOWEVER, that Sections 1610 and 1612 shall not apply to the Company or
any Affiliate of the Company if it or such Affiliate acts as Paying Agent.
101
<PAGE>
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.
MOTOROLA, INC.
By
-------------------------------------
Attest:
- ------------------------------
THE FIRST NATIONAL BANK
OF CHICAGO, as Trustee
By
-------------------------------------
Attest:
- ------------------------------
STATE OF ILLINOIS
COUNTY OF COOK
On the ............... day of ..............., before me personally came
....................., to me known, who, being by me duly sworn, did depose and
say that he is ............................... of Motorola, Inc., 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.
STATE OF ILLINOIS
COUNTY OF COOK
On the ................ day of ................, before me personally
came............................., to me known, who, being by me duly sworn, did
depose and say that he is ................................. of The First
National Bank of Chicago, 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.
102
<PAGE>
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
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 person(s) 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 person(s)"), (ii) are owned by United States persons(s) that are
(a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section 1.165-
12(c)(1)(v) are herein referred to as "financial institutions") purchasing for
their own account or for resale, or (b) United States person(s) who 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 Motorola, Inc. or its agent that such financial institution will comply
with the requirements of Section 165(j)(3)(A), (B) or (C) of the United States
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 United States
Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7), and, in addition, if the
owner 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.
As used herein, "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 (including the
Commonwealth of Puerto Rico).
<PAGE>
A-1-2
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 above-captioned
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 certificate excepts and does not relate to [U.S.$]___________ of such
interest in the above-captioned Securities in respect of which we are not able
to certify and as to which we understand an exchange for an interest in a
permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until
we do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: , 19
------------------------ ---
[To be dated no earlier than the 15th day
prior to (i) the Exchange Date or (ii) the
relevant Interest Payment Date occurring
prior to the Exchange Date, as applicable]
[Name of Person Making Certification]
-------------------------------
(Authorized Signatory)
Name:
Title:
<PAGE>
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND
CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, based solely on written certifications that we
have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, [U.S.$] principal
amount of the above-captioned Securities (i) is owned by person(s) 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
person(s)"), (ii) is owned by United States person(s) that are (a) foreign
branches of United States financial institutions (financial institutions, as
defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v) are herein
referred to as "financial institutions") purchasing for their own account or for
resale, or (b) United States person(s) who 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 financial institution has agreed, on
its own behalf or through its agent, that we may advise Motorola, Inc. or its
agent that such financial institution 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 institution(s) for purposes of resale during the restricted
period (as defined in United States Treasury Regulations Section 1.163-5(c)(2)
(i)(D)(7)), and, to the further effect, that 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.
As used herein, "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 (including the
Commonwealth of Puerto Rico).
<PAGE>
A-2-2
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary Global Security representing the above-captioned Securities excepted
in the above-referenced certificates of Member Organizations and (ii) 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, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: ______________, 19__
[To be dated no earlier than the Exchange
Date or the relevant Interest Payment Date
occurring prior to the Exchange Date, as
applicable]
[Morgan Guaranty Trust Company of
New York, Brussels Office,] as
Operator of the Euroclear System
[Cedel S.A.]
By
------------------------------
<PAGE>
Exhibit 4(f)
MOTOROLA, INC.
Liquid Yield Option-TM- Notes
due _______
(Zero Coupon-Subordinated)
INDENTURE
Dated as of______________, 199__
The First National Bank of Chicago,
as TRUSTEE
- -TM-Trademark of Merrill Lynch & Co., Inc.
<PAGE>
CROSS REFERENCE TABLE(1)
TIA Indenture
Section Section
- ------- ---------
310(a)(1) . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . N.A.
(a)(5) . . . . . . . . . . . . . . . . 7.10
(b) . . . . . . . . . . . . . . . . 7.08; 7.10
(c) . . . . . . . . . . . . . . . . N.A.
311(a) . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . . N.A.
312(a) . . . . . . . . . . . . . . . . 2.05
(b) . . . . . . . . . . . . . . . . 12.03
(c) . . . . . . . . . . . . . . . . 12.03
313(a) . . . . . . . . . . . . . . . . 7.06
(b) . . . . . . . . . . . . . . . . 7.06
(c) . . . . . . . . . . . . . . . . 12.02
(d) . . . . . . . . . . . . . . . . 7.06
314(a) . . . . . . . . . . . . . . . . 4.02;4.03;12.02
(b) . . . . . . . . . . . . . . . . N.A.
(c)(1) . . . . . . . . . . . . . . . . 12.04
(c)(2) . . . . . . . . . . . . . . . . 12.04
(c)(3) . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . . . . 12.05
(f) . . . . . . . . . . . . . . . . 4.04
315(a) . . . . . . . . . . . . . . . . 7.01
(b) . . . . . . . . . . . . . . . . 7.05; 12.02
(c) . . . . . . . . . . . . . . . . 7.01
(d) . . . . . . . . . . . . . . . . 7.01
(e) . . . . . . . . . . . . . . . . 6.11
316(a) (last sentence). . . . . . . . . . . 2.08
(a)(1)(A). . . . . . . . . . . . . . . . 6.05
(a)(1)(B). . . . . . . . . . . . . . . . 6.04
(a)(2) . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . 6.07
(c) . . . . . . . . . . . . . . . . 2.12
317(a)(1) . . . . . . . . . . . . . . . . 6.08
(a)(2) . . . . . . . . . . . . . . . . 6.09
(b) . . . . . . . . . . . . . . . . 2.04
318(a) . . . . . . . . . . . . . . . . 12.01
N.A. means Not Applicable.
- -----------------------------
(1) This Cross Reference Table shall not, for any purpose, be deemed to
be part of the Indenture.
<PAGE>
TABLE OF CONTENTS(1)
Page
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02 Other Definitions . . . . . . . . . . . . . . . . . . . . . 4
SECTION 1.03 Incorporation by Reference of Trust
Indenture Act . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 1.04 Rules of Construction . . . . . . . . . . . . . . . . . . . 5
ARTICLE 2
THE SECURITIES
SECTION 2.01 Form and Dating . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.02 Execution and Authentication. . . . . . . . . . . . . . . . 6
SECTION 2.03 Registrar, Paying Agent and
Conversion Agent. . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.04 Paying Agent to Hold Money and
Securities in Trust . . . . . . . . . . . . . . . . . . . 7
SECTION 2.05 Securityholder Lists. . . . . . . . . . . . . . . . . . . . 8
SECTION 2.06 Transfer and Exchange . . . . . . . . . . . . . . . . . . . 8
SECTION 2.07 Replacement Securities. . . . . . . . . . . . . . . . . . . 9
SECTION 2.08 Outstanding Securities;
Determinations of
Holders' Action . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.09 Temporary Securities. . . . . . . . . . . . . . . . . . . . 11
SECTION 2.10 Cancellation. . . . . . . . . . . . . . . . . . . . . . . . 11
_________________________
(1) This Table of Contents shall not, for any purpose, be deemed to be
part of the Indenture.
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Page
ARTICLE 3
REDEMPTION AND PURCHASES
SECTION 3.01 Right to Redeem; Notices to Trustee . . . . . . . . . . . . 13
SECTION 3.02 Selection of Securities to Be Redeemed. . . . . . . . . . . 13
SECTION 3.03 Notice of Redemption. . . . . . . . . . . . . . . . . . . . 14
SECTION 3.04 Effect of Notice of Redemption. . . . . . . . . . . . . . . 15
SECTION 3.05 Deposit of Redemption Price . . . . . . . . . . . . . . . . 15
SECTION 3.06 Securities Redeemed in Part . . . . . . . . . . . . . . . . 15
SECTION 3.07 Conversion Arrangement on Call
for Redemption. . . . . . . . . . . . . . . . . . . . . . 16
SECTION 3.08 Purchase of Securities at Option
of the Holder . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 3.09 Purchase of Securities at Option
of the Holder upon Change
in Control. . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 3.10 Effect of Purchase Notice or
Change in Control Purchase Notice . . . . . . . . . . . . 27
SECTION 3.11 Deposit of Purchase Price or
Change in Control Purchase Price. . . . . . . . . . . . . 29
SECTION 3.12 Securities Purchased in Part. . . . . . . . . . . . . . . . 29
SECTION 3.13 Covenant to Comply with Securities
Laws Upon Purchase of Securities. . . . . . . . . . . . . 29
SECTION 3.14 Repayment to the Company. . . . . . . . . . . . . . . . . . 29
ARTICLE 4
COVENANTS
SECTION 4.01 Payment of Securities . . . . . . . . . . . . . . . . . . . 30
SECTION 4.02 SEC Reports . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 4.03 Compliance Certificate. . . . . . . . . . . . . . . . . . . 31
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Page
SECTION 4.04 Further Instruments and Acts. . . . . . . . . . . . . . . . 31
SECTION 4.05 Maintenance of Office or Agency . . . . . . . . . . . . . . 31
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01 When Company May Merge or Transfer Assets . . . . . . . . . 32
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default . . . . . . . . . . . . . . . . . . . . . 33
SECTION 6.02 Acceleration. . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 6.03 Other Remedies. . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 6.04 Waiver of Past Defaults . . . . . . . . . . . . . . . . . . 35
SECTION 6.05 Control by Majority . . . . . . . . . . . . . . . . . . . . 35
SECTION 6.06 Limitation on Suits . . . . . . . . . . . . . . . . . . . . 35
SECTION 6.07 Rights of Holders to Receive Payment. . . . . . . . . . . . 36
SECTION 6.08 Collection Suit by Trustee. . . . . . . . . . . . . . . . . 36
SECTION 6.09 Trustee May File Proofs of Claim. . . . . . . . . . . . . . 36
SECTION 6.10 Priorities. . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 6.11 Undertaking for Costs . . . . . . . . . . . . . . . . . . . 38
SECTION 6.12 Waiver of Stay, Extension or Usury Laws . . . . . . . . . . 38
ARTICLE 7
TRUSTEE
SECTION 7.01 Duties of Trustee . . . . . . . . . . . . . . . . . . . . . 38
SECTION 7.02 Rights of Trustee . . . . . . . . . . . . . . . . . . . . . 40
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Page
SECTION 7.03 Individual Rights of Trustee. . . . . . . . . . . . . . . . 40
SECTION 7.04 Trustee's Disclaimer. . . . . . . . . . . . . . . . . . . . 40
SECTION 7.05 Notice of Defaults. . . . . . . . . . . . . . . . . . . . . 40
SECTION 7.06 Reports by Trustee to Holders . . . . . . . . . . . . . . . 41
SECTION 7.07 Compensation and Indemnity. . . . . . . . . . . . . . . . . 41
SECTION 7.08 Replacement of Trustee. . . . . . . . . . . . . . . . . . . 42
SECTION 7.09 Successor Trustee by Merger . . . . . . . . . . . . . . . . 43
SECTION 7.10 Eligibility; Disqualification . . . . . . . . . . . . . . . 43
SECTION 7.11 Preferential Collection of Claims
Against Company . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01 Discharge of Liability
on Securities . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 8.02 Repayment to the Company. . . . . . . . . . . . . . . . . . 44
ARTICLE 9
AMENDMENTS
SECTION 9.01 Without Consent of Holders. . . . . . . . . . . . . . . . . 44
SECTION 9.02 With Consent of Holders . . . . . . . . . . . . . . . . . . 45
SECTION 9.03 Compliance with Trust Indenture Act . . . . . . . . . . . . 46
SECTION 9.04 Revocation and Effect of Consents,
Waivers and Actions . . . . . . . . . . . . . . . . . . . 46
SECTION 9.05 Notation on or Exchange of
Securities. . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 9.06 Trustee to Sign Supplemental
Indentures. . . . . . . . . . . . . . . . . . . . . . . . 47
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<PAGE>
Page
SECTION 9.07 Effect of Supplemental Indentures . . . . . . . . . . . . . 47
ARTICLE 10
SUBORDINATION
SECTION 10.01 Securities Subordinate to Senior
Indebtedness. . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 10.02 Payment Over of Proceeds upon
Dissolution, Etc. . . . . . . . . . . . . . . . . . . . . 48
SECTION 10.03 Acceleration of Securities. . . . . . . . . . . . . . . . . 50
SECTION 10.04 Default on Senior Indebtedness. . . . . . . . . . . . . . . 50
SECTION 10.05 Payment Permitted If No Default . . . . . . . . . . . . . . 52
SECTION 10.06 Subrogation to Rights of Holders
of Senior Indebtedness. . . . . . . . . . . . . . . . . . 52
SECTION 10.07 Provisions Solely to Define
Relative Rights . . . . . . . . . . . . . . . . . . . . . 52
SECTION 10.08 Trustee to Effectuate Subordination . . . . . . . . . . . . 53
SECTION 10.09 No Waiver of Subordination Provisions . . . . . . . . . . . 53
SECTION 10.10 Notice to Trustee . . . . . . . . . . . . . . . . . . . . . 54
SECTION 10.11 Reliance on Judicial Order or
Certificate of Liquidating Agent. . . . . . . . . . . . . 55
SECTION 10.12 Trustee Not Fiduciary for Holders
of Senior Indebtedness. . . . . . . . . . . . . . . . . . 55
SECTION 10.13 Rights of Trustee as Holder of
Senior Indebtedness; Preservation of
Trustee's Rights. . . . . . . . . . . . . . . . . . . . . 56
SECTION 10.14 Article 10 Applicable to Paying Agents. . . . . . . . . . . 56
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ARTICLE 11
CONVERSION
Page
SECTION 11.01 Conversion Privilege. . . . . . . . . . . . . . . . . . . . 56
SECTION 11.02 Conversion Procedure. . . . . . . . . . . . . . . . . . . . 58
SECTION 11.03 Fractional Shares . . . . . . . . . . . . . . . . . . . . . 59
SECTION 11.04 Taxes on Conversion . . . . . . . . . . . . . . . . . . . . 59
SECTION 11.05 Company to Provide Stock. . . . . . . . . . . . . . . . . . 59
SECTION 11.06 Adjustment for Change in Capital Stock. . . . . . . . . . . 60
SECTION 11.07 Adjustment for Rights Issue . . . . . . . . . . . . . . . . 60
SECTION 11.08 Adjustment for Other Distributions. . . . . . . . . . . . . 62
SECTION 11.09 When Adjustment May Be Deferred . . . . . . . . . . . . . . 64
SECTION 11.10 When No Adjustment Required . . . . . . . . . . . . . . . . 64
SECTION 11.11 Notice of Adjustment. . . . . . . . . . . . . . . . . . . . 65
SECTION 11.12 Voluntary Increase. . . . . . . . . . . . . . . . . . . . . 65
SECTION 11.13 Notice of Certain Transactions. . . . . . . . . . . . . . . 65
SECTION 11.14 Reorganization of Company;
Special Distributions . . . . . . . . . . . . . . . . . . 66
SECTION 11.15 Company Determination Final . . . . . . . . . . . . . . . . 67
SECTION 11.16 Trustee's Adjustment Disclaimer . . . . . . . . . . . . . . 67
SECTION 11.17 Simultaneous Adjustments. . . . . . . . . . . . . . . . . . 67
SECTION 11.18 Successive Adjustments. . . . . . . . . . . . . . . . . . . 67
SECTION 11.19 Rights Issued in Respect of Common
Stock Issued Upon Conversion. . . . . . . . . . . . . . . 67
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<PAGE>
ARTICLE 12
MISCELLANEOUS
Page
SECTION 12.01 Trust Indenture Act Controls. . . . . . . . . . . . . . . . 68
SECTION 12.02 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 12.03 Communication by Holders with
Other Holders . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 12.04 Certificate and Opinion as to
Conditions Precedent. . . . . . . . . . . . . . . . . . . 69
SECTION 12.05 Statements Required in Certificate
or Opinion. . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 12.06 Separability Clause . . . . . . . . . . . . . . . . . . . . 70
SECTION 12.07 Rules by Trustee, Paying Agent,
Conversion Agent and Registrar. . . . . . . . . . . . . . 70
SECTION 12.08 Legal Holidays. . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 12.09 Governing Law . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 12.10 No Recourse Against Others. . . . . . . . . . . . . . . . . 70
SECTION 12.11 Successors. . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 12.12 Multiple Originals. . . . . . . . . . . . . . . . . . . . . 70
EXHIBIT A Form of Security
vii
<PAGE>
INDENTURE dated as of ______________,199__ between MOTOROLA, INC., a
Delaware corporation ("COMPANY"), and The First National Bank of Chicago, as
trustee ("Trustee").
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Holders of the Company's Liquid Yield
Option-TM- Notes due _____ (Zero Coupon - Subordinated) ("SECURITIES"):
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"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 or cause the direction of 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.
"BOARD OF DIRECTORS" means either the board of directors of the
Company or any duly authorized committee of such board.
"BUSINESS DAY" means each day of the year on which banking
institutions are not required or authorized to close in the City of New York or
at the principal corporate trust office of the Trustee.
"CAPITAL STOCK" for any corporation means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) capital stock issued by that
corporation.
"COMPANY" means the party named as the "Company" in the first
paragraph of this Indenture until a successor replaces it pursuant to the
applicable provisions of this Indenture and, thereafter, shall mean such
successor. The foregoing sentence shall likewise apply to any subsequent such
successor or successors.
- -----------------------------
- -TM- Trademark of Merrill Lynch & Co., Inc.
1
<PAGE>
"COMPANY REQUEST" or "COMPANY ORDER" means a written request or order
signed in the name of the Company by its Vice Chairman and Chief Executive
Officer, its President or a Vice President, and by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered to the
Trustee.
"DEBT" means with respect to any person at any date, without
duplication, (i) all obligations of such person for borrowed money, (ii) all
obligations of such person evidenced by bonds, debentures, notes or other
similar instruments, (iii) all Debt of others secured by a lien on any asset of
such person, whether or not such Debt is assumed by such person, (iv) all
obligations of such person pursuant to capitalized leases, and (v) all Debt of
others for the payment of which such person is responsible or liable as obligor
or guarantor.
"DEFAULT" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"HOLDER" or "SECURITYHOLDER" means a person in whose name a Security
is registered on the Registrar's books.
"INDENTURE" means this Indenture, as amended or supplemented from time
to time in accordance with the terms hereof.
"ISSUE DATE" of any Security means the date on which the Security was
originally issued or deemed issued as set forth on the face of the Security.
"ISSUE PRICE" of any Security means, in connection with the original
issuance of such Security, the initial issue price at which the Security is sold
as set forth on the face of the Security.
"OFFICER" means the Vice Chairman and Chief Executive Officer, the
President, any Vice Chairman, any Vice President, the Treasurer or the Secretary
or any Assistant Treasurer or Assistant Secretary of the Company.
"OFFICERS' CERTIFICATE" means a written certificate containing the
information specified in Sections 12.04 and 12.05, signed in the name of the
Company by its Vice Chairman and Chief Executive Officer, its President or a
Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary, and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion containing the
information specified in Sections 12.04 and 12.05, from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of, or counsel to,
the Company or the Trustee.
2
<PAGE>
"ORIGINAL ISSUE DISCOUNT" of any Security means the difference between
the Issue Price and the Principal Amount of the Security as set forth on the
face of the Security.
"PERSON" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
or government or any agency or political subdivision thereof.
"PRINCIPAL" or "PRINCIPAL AMOUNT" of a Security means the Principal
Amount due at the Stated Maturity of the Security as set forth on the face of
the Security.
"REDEMPTION DATE" or "REDEMPTION DATE" shall mean the date specified
for redemption of the Securities in accordance with the terms of the Securities
and this Indenture.
"REDEMPTION PRICE" or "REDEMPTION PRICE" shall have the meaning set
forth in paragraph 5 of the Securities.
"SEC" means the Securities and Exchange Commission.
"SECURITIES" means any of the Company's Liquid Yield Option-TM- Notes
due _____ (Zero Coupon-Subordinated), as amended or supplemented from time to
time in accordance with the terms hereof, issued under this Indenture.
"SECURITYHOLDER" or "HOLDER" means a person in whose name a Security
is registered on the Registrar's books.
"STATED MATURITY", when used with respect to any Security, means the
date specified in such Security as the fixed date on which the Principal of such
Security is due and payable.
"SUBSIDIARY" means a corporation of which a majority of the Capital
Stock having voting power under ordinary circumstances to elect a majority of
the board of directors of such corporation is directly or indirectly owned by
(i) the Company, (ii) the Company and one or more Subsidiaries or (iii) one
or more Subsidiaries.
"TIA" means the Trust Indenture Act of 1939, as amended, and as in
effect on the date of this Indenture, except as provided in Section 9.03.
"TRADING DAY" means a day during which trading in securities generally
occurs on the New York Stock Exchange or, if the Common Stock is not listed on
the New York Stock Exchange, on
- -----------------------------
- -TM- Trademark of Merrill Lynch & Co., Inc.
3
<PAGE>
the principal other national or regional securities exchange on which the Common
Stock is then listed or, if the Common Stock is not listed on a national or
regional securities exchange, on the National Association of Securities Dealers
Automated Quotation System or, if the Common Stock is not quoted on the National
Association of Securities Dealers Automated Quotation System, on the principal
other market on which the Common Stock is then traded.
"TRUST OFFICER" means any officer of the Trustee assigned by the
Trustee to administer its corporate trust matters.
"TRUSTEE" means the party named as the "Trustee" in the first
paragraph of this Indenture until a successor replaces it pursuant to the
applicable provisions of this Indenture and, thereafter, shall mean such
successor. The foregoing sentence shall likewise apply to any subsequent such
successor or successors.
SECTION 1.02. OTHER DEFINITIONS.
Term Defined in
Section
-----------
"ASSOCIATE". . . . . . . . . . . . . . . . . . . . 3.09(a)
"AVERAGE QUOTED PRICE" . . . . . . . . . . . . . . 11.01
"BANKRUPTCY LAW" . . . . . . . . . . . . . . . . . 6.01
"BENEFICIAL OWNER" . . . . . . . . . . . . . . . . 3.09(a)
"CASH" . . . . . . . . . . . . . . . . . . . . . . 3.08(b)
"CHANGE IN CONTROL". . . . . . . . . . . . . . . . 3.09(a)
"CHANGE IN CONTROL PURCHASE DATE". . . . . . . . . 3.09(a)
"CHANGE IN CONTROL PURCHASE NOTICE". . . . . . . . 3.09(c)
"CHANGE IN CONTROL PURCHASE PRICE" . . . . . . . . 3.09(a)
"COMMON STOCK" . . . . . . . . . . . . . . . . . . 3.09(a)
"COMPANY NOTICE" . . . . . . . . . . . . . . . . . 3.08(e)
"COMPANY NOTICE DATE". . . . . . . . . . . . . . . 3.08(c)
"CONVERSION AGENT" . . . . . . . . . . . . . . . . 2.03
"CONVERSION DATE". . . . . . . . . . . . . . . . . 11.02
"CONVERSION RATE". . . . . . . . . . . . . . . . . 11.01
"CUSTODIAN". . . . . . . . . . . . . . . . . . . . 6.01
"EVENT OF DEFAULT" . . . . . . . . . . . . . . . . 6.01
"EXCHANGE ACT" . . . . . . . . . . . . . . . . . . 3.08(d)
"EX-DIVIDEND TIME" . . . . . . . . . . . . . . . . 11.01
"EXTRAORDINARY CASH DIVIDEND". . . . . . . . . . . 11.08
"LEGAL HOLIDAY". . . . . . . . . . . . . . . . . . 12.08
"MARKET PRICE" . . . . . . . . . . . . . . . . . . 3.08(d)
"NOTICE OF DEFAULT". . . . . . . . . . . . . . . . 6.01
"OVER-ALLOTMENT OPTION". . . . . . . . . . . . . . 2.02
"PAYING AGENT" . . . . . . . . . . . . . . . . . . 2.03
"PURCHASE DATE". . . . . . . . . . . . . . . . . . 3.08(a)
4
<PAGE>
"PURCHASE NOTICE". . . . . . . . . . . . . . . . . 3.08(a)
"PURCHASE PRICE" . . . . . . . . . . . . . . . . . 3.08(a)
"QUOTED PRICE" . . . . . . . . . . . . . . . . . . 11.01
"REGISTRAR". . . . . . . . . . . . . . . . . . . . 2.03
"RIGHTS" . . . . . . . . . . . . . . . . . . . . . 3.08(d)
"RIGHTS AGREEMENT" . . . . . . . . . . . . . . . . 3.08(d)
"SALE PRICE" . . . . . . . . . . . . . . . . . . . 3.08(d)
"SECURITIES ACT" . . . . . . . . . . . . . . . . . 3.08(d)
"SENIOR INDEBTEDNESS". . . . . . . . . . . . . . . 10.01
"TIME OF DETERMINATION". . . . . . . . . . . . . . 11.01
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"COMMISSION" means the SEC.
"INDENTURE SECURITIES" means the Securities.
"INDENTURE SECURITY HOLDER" means a Securityholder.
"INDENTURE TO BE QUALIFIED" means this Indenture.
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee.
"OBLIGOR" on the indenture securities means the Company.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
SECTION 1.04. RULES OF CONSTRUCTION. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with generally accepted accounting principles as in effect
from time to time in the United States of America;
(3) "or" is not exclusive;
(4) "including" means including, without limitation; and
5
<PAGE>
(5) words in the singular include the plural, and words in the plural
include the singular.
ARTICLE 2
THE SECURITIES
SECTION 2.01. FORM AND DATING. The Securities and the Trustee's
certificate of authentication shall be substantially in the form of Exhibit A,
which is a part of this Indenture. The Securities may have notations, legends
or endorsements required by law, stock exchange rule or usage (provided that any
such notation, legend or endorsement required by usage is in a form acceptable
to the Company and the Trustee). The Company shall provide any such notations,
legends or endorsements to the Trustee in writing. Each Security shall be dated
the date of its authentication.
SECTION 2.02. EXECUTION AND AUTHENTICATION. The Securities shall be
executed on behalf of the Company by its Vice Chairman and Chief Executive
Officer, its President or one of its Vice Presidents, under its corporate seal
reproduced thereon and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper Officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the Issue Date of such Securities.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein duly
executed by the Trustee by manual signature of an authorized officer, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder.
The Trustee shall authenticate and deliver Securities for original
issue in an aggregate Principal Amount of up to $___,000,000 upon a Company
Order without any further action by the Company; PROVIDED, HOWEVER, that in the
event that the Company sells any Securities pursuant to the Underwriter's over-
allotment option (the "OVER-ALLOTMENT OPTION") granted pursuant to Section ___
of the Underwriting Agreement between the Company and_________________
_____________ dated____________, 199__, then the Trustee shall authenticate and
deliver Securities for original issue in an aggregate Principal Amount of up to
$___,000,000 plus up to
6
<PAGE>
$__ ,000,000 aggregate Principal Amount of Securities sold pursuant to the
Over-Allotment Option upon a Company Order without any further action by the
Company. The aggregate Principal Amount of Securities outstanding at any time
may not exceed the amount set forth in the foregoing sentence, subject to the
proviso set forth therein, except as provided in Section 2.07. The Securities
shall be issued only in registered form without coupons and only in
denominations of $1,000 in Principal Amount and any integral multiple thereof.
SECTION 2.03. REGISTRAR, PAYING AGENT AND CONVERSION AGENT. The
Company shall maintain an office or agency where Securities may be presented for
registration of transfer or for exchange ("REGISTRAR"), an office or agency
where Securities may be presented for purchase or payment ("PAYING AGENT") and
an office or agency where Securities may be presented for conversion
("CONVERSION AGENT"). The Registrar shall keep a register of the Securities and
of their transfer and exchange. The Company may have one or more co-registrars,
one or more additional paying agents and one or more additional conversion
agents. The term Paying Agent includes any additional paying agent. The term
Conversion Agent includes any additional conversion agent.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent, Conversion Agent or co-registrar (if not the Trustee).
The agreement shall implement the provisions of this Indenture that relate to
such agent. The Company shall notify the Trustee and the Holders of the name
and address of any such agent and of any change in the office or agency referred
to in Section 4.05. If the Company fails to maintain a Registrar, Paying Agent
or Conversion Agent, the Trustee shall act as such and shall be entitled to
appropriate compensation therefor pursuant to Section 7.07. The Company or any
Subsidiary or an Affiliate of either of them may act as Paying Agent, Registrar,
Conversion Agent or co-registrar.
The Company initially appoints the Trustee as Registrar, Conversion
Agent and Paying Agent in connection with the Securities.
SECTION 2.04. PAYING AGENT TO HOLD MONEY AND SECURITIES IN TRUST. In
accordance with Section 4.05 and except as otherwise provided herein, prior to
or on each due date of payments in respect of any Security, the Company shall
deposit with the Paying Agent a sum of money or, if permitted by the terms
hereof, securities sufficient to make such payments when so becoming due. The
Company shall require each Paying Agent (other than the Trustee) to agree in
writing that the Paying Agent shall hold in trust for the benefit of
Securityholders or the Trustee all money and securities held by the Paying Agent
for the making of payments in respect of the Securities and shall notify the
Trustee of any
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default by the Company in making any such payment. At any time during the
continuance of any such default, the Paying Agent shall, upon the written
request of the Trustee, forthwith pay to the Trustee all money and securities so
held in trust. If the Company, a Subsidiary or an Affiliate of either of them
acts as Paying Agent, it shall segregate the money and securities held by it as
Paying Agent and hold it as a separate trust fund. The Company at any time may
require a Paying Agent to pay all money and securities held by it to the Trustee
and to account for any funds and securities disbursed by it. Upon doing so, the
Paying Agent shall have no further liability for the money or securities.
SECTION 2.05. SECURITYHOLDER LISTS. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Securityholders. If the Trustee is not the
Registrar, the Company shall cause to be furnished to the Trustee at least
semiannually on __________ and __________ a listing of the names and addresses
of Holders dated within 15 days of the date on which the list is furnished and
at such other times as the Trustee may request in writing a list in such form
and as of such date as the Trustee may reasonably require of the names and
addresses of Securityholders.
SECTION 2.06. TRANSFER AND EXCHANGE. Upon surrender for registration
of transfer of any Security, together with a written instrument of transfer
satisfactory to the Trustee duly executed by the Securityholder or such
Securityholder's attorney duly authorized in writing, at the office or agency of
the Company designated as Registrar or co-registrar pursuant to Section 2.03 or
at the office or agency referred to in Section 4.05, the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Securities of any authorized
denomination or denominations, of a like aggregate Principal Amount. The
Company shall not charge a service charge for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to pay all
taxes, assessments or other governmental charges that may be imposed in
connection with the transfer or exchange of the Securities from the
Securityholder requesting such transfer or exchange.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denomination or denominations, of a like aggregate
Principal Amount, upon surrender of the Securities to be exchanged, together
with a written instrument of transfer satisfactory to the Trustee duly executed
by the Securityholder or such Securityholder's attorney duly authorized in
writing, at such office or agency. Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the
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Securities which the Holder making the exchange is entitled to receive.
The Company shall not be required to make, and the Registrar need not
register, transfers or exchanges of Securities selected for redemption (except,
in the case of Securities to be redeemed in part, the portion thereof not to be
redeemed) or any Securities in respect of which a Purchase Notice or Change in
Control Purchase Notice has been given and not withdrawn by the Holder thereof
in accordance with the terms of this Indenture (except, in the case of
Securities to be purchased in part, the portion thereof not to be purchased) or
any Securities for a period of 15 days before a selection of Securities to be
redeemed.
SECTION 2.07. REPLACEMENT SECURITIES. If (a) any mutilated Security
is surrendered to the Trustee, or (b) the Company and the Trustee receive
evidence to their satisfaction of the destruction, loss or theft of any
Security, and there is delivered to the Company and the Trustee such security or
indemnity as may be required by them to save each of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and upon its
written request the Trustee shall authenticate and deliver, in exchange for any
such mutilated Security or in lieu of any such destroyed, lost or stolen
Security, a new Security of like tenor and Principal Amount, bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, or is about to be purchased by the
Company pursuant to Article 3 hereof, the Company in its discretion may, instead
of issuing a new Security, pay or purchase such Security, as the case may be.
Upon the issuance of any new Securities 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 issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all benefits of this Indenture equally and proportionately with any
and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with
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respect to the replacement or payment of mutilated, destroyed, lost or stolen
Securities.
SECTION 2.08. OUTSTANDING SECURITIES; DETERMINATIONS OF HOLDERS'
ACTION. Securities outstanding at any time are all the Securities authenticated
by the Trustee except for those cancelled by it, those delivered to it for
cancellation, those mutilated, destroyed, lost or stolen Securities for which
the Trustee has authenticated and delivered a new Security in lieu thereof or
which have been paid pursuant to Section 2.07 and those described in this
Section 2.08 as not outstanding. A Security does not cease to be outstanding
because the Company or an Affiliate thereof holds the Security; PROVIDED,
HOWEVER, that in determining whether the Holders of the requisite Principal
Amount of Securities have given or concurred in any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or 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. Subject to the foregoing, only Securities outstanding at the
time of such determination shall be considered in any such determination
(including, without limitation, determinations pursuant to Articles 6 and 9).
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent holds, in accordance with this Indenture, on a
Redemption Date, or on the Business Day following a Purchase Date or a Change in
Control Purchase Date, or on Stated Maturity, money or securities, if permitted
hereunder, sufficient to pay Securities payable on that date, then on and after
that date such Securities shall cease to be outstanding and Original Issue
Discount and interest, if any, on such Securities shall cease to accrue and all
other rights of the Holder shall terminate (other than the right to receive the
applicable Principal Amount, Redemption Price, Purchase Price or Change in
Control Purchase Price, as the case may be, upon delivery of the Security in
accordance with the terms of this Indenture); 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.
If a Security is converted in accordance with Article 11, then from
and after the Conversion Date such Security shall
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cease to be outstanding and Original Issue Discount and interest, if any, shall
cease to accrue on such Security.
SECTION 2.09. TEMPORARY SECURITIES. Pending the preparation of
definitive Securities, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, 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 and with such appropriate insertions, omissions,
substitutions and other variations as the Officers executing such Securities may
determine, as conclusively evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company designated for such purpose pursuant to Section 2.03 or
4.05, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like Principal Amount of
definitive Securities of authorized denominations. Until so exchanged the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
SECTION 2.10. CANCELLATION. All Securities surrendered for payment,
redemption or purchase by the Company pursuant to Article 3, conversion pursuant
to Article 11, or registration of transfer or exchange shall, if surrendered to
any person other than the Trustee, be delivered to the Trustee and shall be
promptly cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and all Securities
so delivered shall be promptly cancelled by the Trustee. The Company may not
issue new Securities to replace Securities it has paid or delivered to the
Trustee for cancellation or that any Holder has converted pursuant to Article
11. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted
by this Indenture. All cancelled Securities held by the Trustee shall be
destroyed by the Trustee in accordance with its standard procedures and evidence
of their destruction delivered to the Company unless the Company directs by
Company Order that the Trustee deliver cancelled Securities to the Company.
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SECTION 2.11. PERSONS DEEMED OWNERS. Prior to due presentment of a
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 Security is
registered as the owner of such Security for the purpose of receiving payment of
Principal of the Security or the payment of the Issue Price plus accrued
Original Issue Discount or any Redemption Price, Purchase Price or Change in
Control Purchase Price in respect thereof, and interest thereon, for the purpose
of conversion 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.
SECTION 2.12. 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 may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such Holders
in person or by an agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Indenture and conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section 2.12.
(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 acknowledgements 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. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything
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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.
(e) If the Company shall solicit from the Holders 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 percentage or amount of
Securities outstanding have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose, the Securities outstanding shall be computed as of such record
date; PROVIDED that no such authorization, agreement or consent by the Holders
of 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.
ARTICLE 3
REDEMPTION AND PURCHASES
SECTION 3.01. RIGHT TO REDEEM; NOTICES TO TRUSTEE. The Company, at
its option, may redeem the Securities for cash in accordance with the provisions
of paragraphs 5 and 7 of the Securities. If the Company elects to redeem
Securities pursuant to paragraph 5 of the Securities, it shall notify the
Trustee in writing of the Redemption Date, the Principal Amount of Securities to
be redeemed and the Redemption Price.
The Company shall give the notice to the Trustee provided for in this
Section 3.01 at least 20 days before the Redemption Date (unless a shorter
notice shall be satisfactory to the Trustee). If fewer than all the Securities
are to be redeemed, the record date relating to such redemption shall be
selected by the Company and given to the Trustee, which record date shall not be
less than 10 days after the date of notice to the Trustee.
SECTION 3.02. SELECTION OF SECURITIES TO BE REDEEMED. If less than
all the Securities are to be redeemed, the Trustee shall select the Securities
to be redeemed pro rata or by lot or by a method the Trustee considers fair and
appropriate (so long as
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such method is not prohibited by the rules of any stock exchange on which the
Securities are then listed). The Trustee shall make the selection not more than
60 days before the Redemption Date from outstanding Securities not previously
called for redemption. The Trustee may select for redemption portions of the
Principal Amount of Securities that have denominations larger than $1,000.
Securities and portions of them the Trustee selects shall be in Principal
Amounts of $1,000 or an integral multiple of $1,000. Provisions of this
Indenture that apply to Securities called for redemption also apply to portions
of Securities called for redemption. The Trustee shall notify the Company
promptly of the Securities or portions of Securities to be redeemed.
If any Security selected for partial redemption is thereafter
surrendered for conversion in part before termination of the conversion right
with respect to the portion of the Security so selected, the converted portion
of such Security shall be deemed (so far as may be), solely for purposes of
determining the aggregate Principal Amount of Securities to be redeemed by the
Company, to be the portion selected for redemption. Securities which have been
converted during a selection of Securities to be redeemed may be treated by the
Trustee as outstanding for the purpose of such selection.
SECTION 3.03. NOTICE OF REDEMPTION. At least 15 days but not more
than 60 days before a Redemption Date, the Company shall mail a notice of
redemption by first-class mail, postage prepaid, to each Holder of Securities to
be redeemed in the manner provided in Section 12.02.
The notice shall identify the Securities to be redeemed and shall
state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the Conversion Rate;
(4) the name and address of the Paying Agent and Conversion Agent and
of the office or agency referred to in Section 4.05;
(5) that Securities called for redemption may be converted at any
time before the close of business on the Redemption Date;
(6) that Holders who want to convert Securities must satisfy the
requirements set forth in paragraph 9 of the Securities;
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(7) that Securities called for redemption must be surrendered to the
Paying Agent or at the office or agency referred to in Section 4.05 to
collect the Redemption Price;
(8) if fewer than all the outstanding Securities are to be redeemed,
the certificate number and Principal Amounts of the particular Securities
to be redeemed; and
(9) that, unless the Company defaults in making such redemption
payment, Original Issue Discount on Securities called for redemption, and
interest, if any, will cease to accrue on and after the Redemption Date.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION. Once notice of
redemption is given, Securities called for redemption become due and payable on
the Redemption Date stated in the notice and at the Redemption Price stated in
the notice except for Securities which are converted in accordance with the
terms of this Indenture.
Upon the later of the Redemption Date or the date such Securities are
surrendered to the Paying Agent or at the office or agency referred to in
Section 4.05, such Securities called for redemption shall be paid at the
Redemption Price stated in the notice.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE. Prior to or on the
Redemption Date, the Company shall deposit with the Paying Agent (or if the
Company or a Subsidiary or an Affiliate of either of them is the Paying Agent,
shall segregate and hold in trust) money sufficient to pay the Redemption Price
of all Securities to be redeemed on that date other than Securities or portions
of Securities called for redemption which prior thereto have been delivered by
the Company to the Trustee for cancellation or have been converted. The Paying
Agent shall as promptly as practicable return to the Company any money, with
interest, if any, thereon (subject to the provisions of Section 7.01(f)), not
required for that purpose because of conversion of Securities pursuant to
Article 11. If such money is then held by the Company or a Subsidiary or an
Affiliate of the Company in trust and is not required for such purpose it shall
be discharged from such trust.
SECTION 3.06. SECURITIES REDEEMED IN PART. Upon surrender of a
Security that is redeemed in part, the Company shall execute and the Trustee
shall authenticate and deliver to the Holder a new Security in an authorized
denomination equal in
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Principal Amount to the unredeemed portion of the Security surrendered.
SECTION 3.07. CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION. In
connection with any redemption of Securities, the Company may arrange for the
purchase and conversion of any Securities called for redemption by an agreement
with one or more investment bankers or other purchasers to purchase such
Securities by paying to the Paying Agent in trust for the Securityholders whose
Securities are to be so purchased, on or before the close of business on the
Redemption Date, an amount that, together with any amounts deposited with the
Trustee by the Company for redemption of such Securities, is not less than the
Redemption Price, together with interest, if any, accrued to the Redemption
Date, of such Securities. Notwithstanding anything to the contrary contained in
this Article 3, the obligation of the Company to pay the Redemption Price of
such Securities, including all accrued interest, if any, shall be deemed to be
satisfied and discharged to the extent such amount is so paid by such
purchasers. If such an agreement is entered into, any Securities not duly
surrendered for conversion by the Holders thereof may, at the option of the
Company, be deemed, to the fullest extent permitted by law, acquired by such
purchasers from such Holders and (notwithstanding anything to the contrary
contained in Article 11) surrendered by such purchasers for conversion, all as
of immediately prior to the close of business on the Redemption Date, subject to
payment of the above amount as aforesaid. The Paying Agent shall hold and pay
to the Holders whose Securities are selected for redemption any such amount paid
to it in the same manner as it would moneys deposited with it by the Company for
the redemption of Securities. Without the Paying Agent's prior written consent,
no arrangement between the Company and such purchasers for the purchase and
conversion of any Securities shall increase or otherwise affect any of the
powers, duties, responsibilities or obligations of the Paying Agent as set forth
in this Indenture, and the Company agrees to indemnify the Paying Agent from,
and hold it harmless against, any loss, liability or expense arising out of or
in connection with any such arrangement for the purchase and conversion of any
Securities between the Company and such purchasers, including the costs and
expenses incurred by the Paying Agent in the defense of any claim or liability
arising out of or in connection with the exercise or performance of any of its
powers, duties, responsibilities or obligations under this Indenture.
SECTION 3.08. PURCHASE OF SECURITIES AT OPTION OF THE HOLDER.
(a) GENERAL. Securities shall be purchased by the Company pursuant
to paragraph 6 of the Securities as of __________
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__, ____ , ________ __, ____ and _________ __, ____ , (each, a "PURCHASE
DATE"), at the purchase price specified therein (each, a "PURCHASE PRICE"), at
the option of the Holder thereof, upon:
(1) delivery to the Paying Agent or to the office or agency referred
to in Section 4.05 by the Holder of a written notice of purchase (a
"PURCHASE NOTICE") at any time from the opening of business on the date
that is 20 Business Days prior to a Purchase Date until the close of
business on such Purchase Date, stating:
(A) the certificate number of the Security which the Holder will
deliver to be purchased,
(B) the portion of the Principal Amount of the Security which
the Holder will deliver to be purchased, which portion must be $1,000
or an integral multiple thereof,
(C) that such Security shall be purchased as of the Purchase
Date pursuant to the terms and conditions specified in paragraph 6 of
the Securities and in this Indenture, and
(D) in the event the Company elects, pursuant to Section
3.08(b), to pay the Purchase Price to be paid as of such Purchase
Date, in whole or in part, in Common Stock but the Purchase Price
shall ultimately be payable to such Holder entirely in cash
because any of the conditions to payment of the Purchase Price in
Common Stock is not satisfied prior to or on the Purchase Date, as set
forth in Section 3.08(d), whether such Holder elects (x) to withdraw
such Purchase Notice as to some or all of the Securities to which such
Purchase Notice relates (stating the Principal Amount and certificate
numbers of the Securities as to which such withdrawal shall relate),
or (y) to receive cash in respect of the entire Purchase Price for all
Securities (or portions thereof) to which such Purchase Notice
relates; and
(2) delivery of such Security prior to, on or after the Purchase Date
(together with all necessary endorsements) at the offices of the Paying
Agent or to the office or agency referred to in Section 4.05, such delivery
being a condition to receipt by the Holder of the Purchase Price therefor;
PROVIDED, HOWEVER, that such Purchase Price shall be so paid pursuant to
this Section 3.08 only if the Security so delivered shall conform in all
respects to the description thereof in the related Purchase Notice.
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If a Holder, in such Holder's Purchase Notice and in any written
notice of withdrawal delivered by such Holder pursuant to the terms of
Section 3.10, fails to indicate such Holder's choice with respect to the
election set forth in clause (D) of Section 3.08(a)(1), such Holder shall be
deemed to have elected to receive cash in respect of the entire Purchase Price
for all Securities subject to such Purchase Notice in the circumstances set
forth in such clause (D).
The Company shall purchase from the Holder thereof, pursuant to this
Section 3.08, a portion of a Security if the Principal Amount of such portion is
$1,000 or an integral multiple of $1,000. Provisions of this Indenture that
apply to the purchase of all of a Security also apply to the purchase of such
portion of such Security.
Any purchase by the Company contemplated pursuant to the provisions of
this Section 3.08 shall be consummated by the delivery of the consideration to
be received by the Holder promptly following the later of the Purchase Date and
the time of delivery of the Security to the Paying Agent in the manner required
by this Section 3.08.
Notwithstanding anything herein to the contrary, any Holder delivering
to the Paying Agent, or the office or agency referred to in Section 4.05, the
Purchase Notice contemplated by this Section 3.08(a) shall have the right at any
time prior to the close of business on the Purchase Date to withdraw such
Purchase Notice by delivery of a written notice of withdrawal to the Paying
Agent or such office or agency in accordance with Section 3.10.
The Paying Agent shall promptly notify the Company of its receipt of
any Purchase Notice or written notice of withdrawal thereof.
(b) COMPANY'S RIGHT TO ELECT MANNER OF PAYMENT OF PURCHASE PRICE.
The Company may elect with respect to any Purchase Date to pay the Purchase
Price in respect of the Securities to be purchased pursuant to Section 3.08(a)
as of such Purchase Date, in U.S. legal tender ("CASH") or Common Stock, or in
any combination of cash and Common Stock, subject to the conditions set forth in
Sections 3.08(c) and (d). The Company shall designate, in the Company Notice
delivered pursuant to Section 3.08(e), whether the Company will purchase the
Securities for cash or Common Stock, or, if a combination thereof, the
percentages of the Purchase Price of Securities in respect of which it will pay
in cash or Common Stock; PROVIDED that the Company will pay cash for fractional
interests in Common Stock. For purposes of determining the existence of
potential fractional interests, all Securities subject to purchase by the
Company held by a Holder shall be considered together (no matter how many
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separate certificates are to be presented). Each Holder whose Securities are
purchased pursuant to this Section 3.08 shall receive the same percentage of
cash or Common Stock in payment of the Purchase Price for such Securities,
except (i) as provided in Section 3.08(d) with regard to the payment of cash in
lieu of fractional interests in Common Stock and (ii) in the event that the
Company is unable to purchase the Securities of a Holder or Holders for Common
Stock because any necessary qualifications or registrations of the Common Stock
under applicable state securities laws cannot be obtained, the Company may
purchase the Securities of such Holder or Holders for cash. The Company may not
change its election with respect to the consideration (or components or
percentages of components thereof) to be paid once the Company has given its
Company Notice to Securityholders except pursuant to this Section 3.08(b) or
Section 3.08(d).
At least two Business Days before the Company Notice Date, the Company
shall deliver an Officers' Certificate to the Trustee specifying:
(i) the manner of payment selected by the Company,
(ii) the information required by Section 3.08(e),
(iii) if the Company elects to pay the Purchase Price, or a specified
percentage thereof, in Common Stock, that the conditions to such manner of
payment set forth in Section 3.08(d) have been or will be complied with,
and
(iv) whether the Company desires the Trustee to give the Company
Notice required by Section 3.08(e).
(c) PURCHASE WITH CASH. At the option of the Company, the Purchase
Price of Securities in respect of which a Purchase Notice pursuant to
Section 3.08(a) has been given, or a specified percentage thereof, may be paid
by the Company with cash equal to the aggregate Purchase Price, or such
specified percentage thereof, as the case may be, of such Securities. If the
Company elects to purchase Securities with cash, a Company Notice as provided in
Section 3.08(e) shall be sent to Holders (and to beneficial owners as required
by applicable law) not less than 20 Business Days prior to the Purchase Date
(the "COMPANY NOTICE DATE").
(d) PAYMENT BY ISSUANCE OF COMMON STOCK. At the option of the
Company, the Purchase Price of Securities in respect of which a Purchase Notice
pursuant to Section 3.08(a) has been given, or a specified percentage thereof,
may be paid by the Company by the issuance of a number of shares of Common Stock
equal to the quotient obtained by dividing (i) the amount of cash to which the
Securityholders would have been entitled had the
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Company elected to pay all or such specified percentage, as the case may be, of
the Purchase Price of such Securities in cash by (ii) the Market Price of a
share of Common Stock, subject to the next succeeding paragraph.
The Company will not issue a fractional share of Common Stock in
payment of the Purchase Price. Instead the Company will pay cash for the
current market value of the fractional share. The current market value of a
fraction of a share shall be determined by multiplying the Market Price by such
fraction and rounding the product to the nearest whole cent. It is understood
that if a Holder elects to have more than one Security purchased, the number of
shares of Common Stock shall be based on the aggregate amount of Securities to
be purchased.
Each share of Common Stock issued upon purchase of Securities pursuant
to Section 3.08(a) shall be entitled to receive the appropriate number of
preferred share purchase rights (the "RIGHTS"), if any, and the certificates
representing the Common Stock issued upon such purchase shall bear such legends,
if any, in each case as provided by and subject to the terms of the Rights
Agreement dated as of November 9, 1988, as amended, between the Company and
Harris Trust and Savings Bank, as Rights Agent (the "RIGHTS AGREEMENT"), as in
effect at the time of such purchase.
If the Company elects to purchase the Securities by the issuance of
shares of Common Stock, a Company Notice as provided in Section 3.08(e) shall be
sent to the Holders (and to beneficial owners as required by applicable law) not
later than the Company Notice Date.
The Company's right to exercise its election to purchase the
Securities pursuant to this Section 3.08 through the issuance of shares of
Common Stock shall be conditioned upon:
(i) the Company's not having given its Company Notice of an election
to pay entirely in cash and its giving of timely Company Notice of election
to purchase all or a specified percentage of the Securities with Common
Stock as provided herein;
(ii) the registration of the shares of Common Stock to be issued in
respect of the payment of the specified percentage of the Purchase Price
under the Securities Act of 1933, as amended (the "SECURITIES ACT") or the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), if
required, unless there exists an applicable exemption to registration; and
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(iii) any necessary qualification or registration under
applicable state securities laws or the availability of an exemption from
such qualification and registration; and
(iv) the receipt by the Trustee of an Officers' Certificate and an
Opinion of Counsel each stating that (A) the terms of the issuance of the
Common Stock are in conformity with this Indenture and (B) the shares of
Common Stock to be issued by the Company in payment of the specified
percentage of the Purchase Price in respect of Securities have been duly
authorized and, when issued and delivered pursuant to the terms of this
Indenture in payment of the specified percentage of the Purchase Price in
respect of Securities, will be validly issued, fully paid and
nonassessable, and, in the case of such Officers' Certificate, stating that
conditions (i), (ii) and (iii) above have been satisfied and, in the case
of such Opinion of Counsel, stating that conditions (ii) and (iii) above
have been satisfied.
Such Officers' Certificate shall also set forth the number of shares of Common
Stock to be issued for each $1,000 Principal Amount of Securities and the Sale
Price of a share of Common Stock on each trading day during the period during
which the Market Price is calculated and ending on the Purchase Date. The
Company may elect to pay in Common Stock only if the information necessary to
calculate the Market Price is reported in a daily newspaper of national
circulation. If such conditions are not satisfied with respect to a Holder or
Holders prior to or on the Purchase Date and the Company elected to purchase the
Securities to be purchased as of such Purchase Date pursuant to this
Section 3.08 through the issuance of shares of Common Stock, the Company shall
pay the entire Purchase Price in respect of such Securities of such Holder or
Holders in cash.
The "MARKET PRICE" means the average of the Sale Price of the Common
Stock for the five trading day period ending on (if the third Business Day prior
to the applicable Purchase Date is a trading day or, if not, then on the last
trading day prior to) the third Business Day prior to the Purchase Date,
appropriately adjusted to take into account the occurrence, during the period
commencing on the first of such trading days during such five trading day period
and ending on such Purchase Date, of any event described in Section 11.06, 11.07
or 11.08; subject, however, to the conditions set forth in Sections 11.09 and
11.10. The "SALE PRICE" of the Common Stock on any date means the closing per
share sale price (or if no closing sale price is reported the average of the bid
and ask prices or, if more than one, in either case, the average of the average
bid and average ask prices) on such date as reported in the composite
transactions for the principal United States securities exchange on which the
Common Stock is traded or,
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if the Common Stock is not listed on a United States national or regional stock
exchange, as reported by the National Association of Securities Dealers
Automated Quotation System.
(e) NOTICE OF ELECTION. Company Notices of election to purchase with
cash, or Common Stock, or any combination thereof, shall be sent to the Holders
(and to beneficial owners as required by applicable law) in the manner provided
in Section 12.02 at the time specified in Section 3.08(c) or (d), as applicable
(a "COMPANY NOTICE"). Such Company Notices shall state the manner of payment
elected and shall contain the following information:
In the event the Company has elected to pay a Purchase Price (or a
specified percentage thereof) with Common Stock, the Company Notice shall:
(1) state that each Holder will receive Common Stock with a Market
Price determined as of a specified date prior to the Purchase Date equal to
such specified percentage of the Purchase Price of the Securities held by
such Holder (except any cash amount to be paid in lieu of fractional
share); and
(2) set forth the method of calculating the Market Price and state
that because the Market Price of Common Stock will be determined prior to
the Purchase Date, Holders will bear the market risk with respect to the
value of the Common Stock to be received from the date such Market Price is
determined to the Purchase Date.
In any case, each Company Notice shall state:
(i) the Purchase Price and the Conversion Rate;
(ii) the name and address of the Paying Agent and the Conversion
Agent and of the office or agency referred to in Section 4.05;
(iii) that Securities as to which a Purchase Notice has been given
may be converted into Common Stock only if the applicable Purchase Notice
has been withdrawn in accordance with the terms of this Indenture;
(iv) that Securities must be surrendered to the Paying Agent or to
the office or agency referred to in Section 4.05 to collect payment;
(v) that the Purchase Price for any Security as to which a Purchase
Notice has been given and not withdrawn will be paid promptly following the
later of the Purchase Date and the time of surrender of such Security as
described in (iv);
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(vi) the procedures the Holder must follow to exercise rights under
Section 3.08 and a brief description of those rights;
(vii) briefly, the conversion rights of the Securities; and
(viii) the procedures for withdrawing a Purchase Notice (including,
without limitation, for a conditional withdrawal pursuant to the terms of
Section 3.08 (a)(1)(D) or Section 3.10).
At the Company's request, the Trustee shall give such Company Notice
in the Company's name and at the Company's expense; PROVIDED, HOWEVER, that, in
all cases, the text of such Company Notice shall be prepared by the Company.
Upon determination of the actual number of shares of Common Stock to
be issued for each $1,000 Principal Amount of Securities, the Company will
publish such determination in a daily newspaper of national circulation.
(f) COVENANTS OF THE COMPANY. All shares of Common Stock delivered
upon purchase of the Securities shall be newly issued shares or treasury shares,
shall be duly authorized, validly issued, fully paid and nonassessable and shall
be free from preemptive rights and free of any lien or adverse claim.
The Company shall use its best efforts to list or cause to have quoted
any shares of Common Stock to be issued on each national securities exchange or
over-the-counter or other domestic market on which the Common Stock is then
listed or quoted.
(g) PROCEDURE UPON PURCHASE. On the Business Day following the
Purchase Date, the Company shall deposit with the Paying Agent cash (in respect
of a cash purchase under Section 3.08(c) or for fractional interests, as
applicable), or shares of Common Stock, or a combination thereof, as applicable,
sufficient to pay the aggregate Purchase Price of the Securities to be purchased
pursuant to this Section 3.08. As soon as practicable after the later of the
Purchase Date and the date such Securities are surrendered to the Paying Agent
or the office or agency referred to in Section 4.05, the Company shall deliver
to each Holder entitled to receive Common Stock, through the Paying Agent, a
certificate for the number of full shares of Common Stock, as applicable,
issuable in payment of such Purchase Price and cash in lieu of any fractional
interests. The person in whose name the certificate for Common Stock is
registered shall be treated as a holder of record of such Common Stock following
the related Purchase Date. Subject to Section 3.08(d), no payment or
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adjustment will be made for dividends on the Common Stock the record date for
which occurred on or prior to the Purchase Date.
(h) TAXES. If a Holder of a Security is paid in Common Stock, the
Company shall pay any documentary, stamp or similar issue or transfer tax due on
such issue of shares of Common Stock. However, the Holder shall pay any such
tax which is due because the Holder requests the shares of Common Stock to be
issued in a name other than the Holder's name. The Paying Agent may refuse to
deliver the certificates representing the Common Stock being issued in a name
other than the Holder's name until the Paying Agent receives a sum sufficient to
pay any tax which will be due because the shares of Common Stock are to be
issued in a name other than the Holder's name. Nothing herein shall preclude
any income tax withholding required by law or regulations.
SECTION 3.09. PURCHASE OF SECURITIES AT OPTION OF THE HOLDER UPON
CHANGE IN CONTROL. (a) If on or prior to ___________ , ___ there shall have
occurred a Change in Control, at the option of the Holder thereof, Securities
shall be purchased by the Company at the purchase price specified in paragraph 6
of the Securities (the "CHANGE IN CONTROL PURCHASE PRICE"), as of the date that
is 35 Business Days after the occurrence of the Change in Control (the "CHANGE
IN CONTROL PURCHASE DATE"), subject to satisfaction by or on behalf of the
Holder of the requirements set forth in Section 3.09(c).
A "CHANGE IN CONTROL" shall be deemed to have occurred at such time as
either of the following events shall occur:
(i) There shall be consummated any consolidation or merger of the
Company in which the Company is not the continuing or surviving corporation
or pursuant to which the Common Stock would be converted into cash,
securities or other property, other than a merger or consolidation of the
Company in which the holders of the Common Stock immediately prior to the
merger or consolidation have the same proportionate ownership, directly or
indirectly, of the common stock of the surviving corporation immediately
after such merger or consolidation as they had of the Common Stock
immediately prior to such merger or consolidation; or
(ii) There is a report filed on Schedule 13D or 14D-1 (or any
successor schedule, form or report) pursuant to the Exchange Act,
disclosing that any person (for the purposes of this Section 3.09 only, as
the term "PERSON" is used in Section 13(d)(3) or Section 14(d)(2) of the
Exchange Act) has become the beneficial owner (as the term "BENEFICIAL
OWNER" is defined under Rule 13d-3 or any successor rule or regulation
promulgated under the Exchange Act) of 50% or more of the then outstanding
shares of Common Stock; PROVIDED,
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HOWEVER, that a person shall not be deemed beneficial owner of, or to own
beneficially, (A) any securities tendered pursuant to a tender or exchange
offer made by or on behalf of such person or any of such person's
Affiliates or Associates until such tendered securities are accepted for
purchase or exchange thereunder, or (B) any securities if such beneficial
ownership (1) arises solely as a result of a revocable proxy delivered in
response to a proxy or consent solicitation made pursuant to the applicable
rules and regulations under the Exchange Act, and (2) is not also then
reportable on Schedule 13D (or any successor schedule) under the Exchange
Act.
Notwithstanding the foregoing provisions of this Section 3.09, a Change in
Control shall not be deemed to have occurred by virtue of the Company, any
Subsidiary, any employee stock ownership plan or any other employee benefit plan
of the Company or any Subsidiary, or any person holding Common Stock for or
pursuant to the terms of any such employee benefit plan, filing or becoming
obligated to file a report under or in response to Schedule 13D or Schedule
14D-1 (or any successor schedule, form or report) under the Exchange Act
disclosing beneficial ownership by it of shares of Common Stock, whether in
excess of 50% or otherwise.
"COMMON STOCK" shall mean the shares of Common Stock, par value $3
per share, of the Company as it exists on the date of this Indenture or any
other shares of Capital Stock of the Company into which the Common Stock shall
be reclassified or changed.
"ASSOCIATE" shall have the meaning ascribed to such term in Rule 12b-2
of the General Rules and Regulations under the Exchange Act, as in effect on the
date hereof.
(b) Within 15 Business Days after the occurrence of a Change in
Control, the Company shall mail a written notice of Change in Control by
first-class mail to the Trustee and to each Holder (and to beneficial owners as
required by applicable law) and shall cause a copy of such notice to be
published in a daily newspaper of national circulation. The notice shall state:
(1) the events causing a Change in Control and the date such Change
in Control is deemed to have occurred for purposes of this Section 3.09;
(2) the date by which the Change in Control Purchase Notice pursuant
to this Section 3.09 must be given;
(3) the Change in Control Purchase Date;
(4) the Change in Control Purchase Price;
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(5) the name and address of the Paying Agent and the Conversion Agent
and the office or agency referred to in Section 4.05;
(6) the Conversion Rate and any adjustments thereto;
(7) that Securities as to which a Change in Control Purchase Notice
has been given may be converted into Common Stock only if the Change in
Control Purchase Notice has been withdrawn in accordance with the terms of
this Indenture;
(8) that Securities must be surrendered to the Paying Agent or the
office or agency referred to in Section 4.05 to collect payment;
(9) that the Change in Control Purchase Price for any Security as to
which a Change in Control Purchase Notice has been duly given and not
withdrawn will be paid promptly following the later of the Change in
Control Purchase Date and the time of surrender of such Security as
described in (8);
(10) the procedures the Holder must follow to exercise rights under
this Section 3.09;
(11) briefly, the conversion rights of the Securities; and
(12) the procedures for withdrawing a Change in Control Purchase
Notice.
(c) A Holder may exercise its rights specified in Section 3.09(a)
upon delivery of a written notice of purchase (a "CHANGE IN CONTROL PURCHASE
NOTICE") to the Paying Agent or to the office or agency referred to in Section
4.05 at any time prior to the close of business on the Change in Control
Purchase Date, stating:
(1) the certificate number of the Security which the Holder will
deliver to be purchased;
(2) the portion of the Principal Amount of the Security which the
Holder will deliver to be purchased, which portion must be $1,000 or an
integral multiple thereof; and
(3) that such Security shall be purchased as of the Change in Control
Purchase Date pursuant to the terms and conditions specified in paragraph 6
of the Securities.
The delivery of such Security to the Paying Agent prior to, on or
after the Change in Control Purchase Date (together with
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all necessary endorsements) at the offices of the Paying Agent or to the office
or agency referred to in Section 4.05 shall be a condition to the receipt by the
Holder of the Change in Control Purchase Price therefor; PROVIDED, HOWEVER, that
such Change in Control Purchase Price shall be so paid pursuant to this
Section 3.09 only if the Security so delivered to the Paying Agent shall conform
in all respects to the description thereof set forth in the related Change in
Control Purchase Notice.
The Company shall purchase from the Holder thereof, pursuant to this
Section 3.09, a portion of a Security if the Principal Amount of such portion is
$1,000 or an integral multiple of $1,000. Provisions of this Indenture that
apply to the purchase of all of a Security also apply to the purchase of such
portion of such Security.
Any purchase by the Company contemplated pursuant to the provisions of
this Section 3.09 shall be consummated by the delivery of the consideration to
be received by the Holder promptly following the later of the Change in Control
Purchase Date and the time of delivery of the Security to the Paying Agent or to
the office or agency referred to in Section 4.05.
Notwithstanding anything herein to the contrary, any Holder delivering
to the Paying Agent or to the office or agency referred to in Section 4.05 the
Change in Control Purchase Notice contemplated by this Section 3.09(c) shall
have the right to withdraw such Change in Control Purchase Notice at any time
prior to the close of business on the Change in Control Purchase Date by
delivery of a written notice of withdrawal to the Paying Agent or to such office
or agency in accordance with Section 3.10.
The Paying Agent shall promptly notify the Company of its receipt of
any Change in Control Purchase Notice or any notice of written withdrawal
thereof.
SECTION 3.10. EFFECT OF PURCHASE NOTICE OR CHANGE IN CONTROL PURCHASE
NOTICE. Upon receipt by the Paying Agent of the Purchase Notice or Change in
Control Purchase Notice specified in Section 3.08(a) or Section 3.09(c), as
applicable, the Holder of the Security in respect of which such Purchase Notice
or Change in Control Purchase Notice, as the case may be, was given shall
(unless such Purchase Notice or Change in Control Purchase Notice is withdrawn
as specified in the following two paragraphs) thereafter be entitled to receive
solely the Purchase Price or Change in Control Purchase Price, as the case may
be, with respect to such Security. Such Purchase Price or Change in Control
Purchase Price shall be paid to such Holder promptly following the later of (x)
the Purchase Date or the Change in Control Purchase Date, as the case may be,
with respect to such Security (provided the conditions in Section 3.08(a) or
Section 3.09(c), as
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applicable, have been satisfied) and (y) the time of delivery of such Security
to the Paying Agent or the office or agency referred to in Section 4.05 by the
Holder thereof in the manner required by Section 3.08(a) and (g) or
Section 3.09(c), as applicable. Securities in respect of which a Purchase
Notice or Change in Control Purchase Notice, as the case may be, has been given
by the Holder thereof may not be converted into shares of Common Stock on or
after the date of the delivery of such Purchase Notice, or Change in Control
Purchase Notice, as the case may be, unless such Purchase Notice or Change in
Control Purchase Notice, as the case may be, has first been validly withdrawn as
specified in the following two paragraphs.
A Purchase Notice or Change in Control Purchase Notice, as the case
may be, may be withdrawn by means of a written notice of withdrawal delivered to
the office of the Paying Agent or the office or agency referred to in Section
4.05 at any time prior to the close of business on the Purchase Date or the
Change in Control Purchase Date, as the case may be, to which it relates
specifying:
(1) the certificate number of the Security in respect of which such
notice of withdrawal is being submitted,
(2) the Principal Amount of the Security with respect to which such
notice of withdrawal is being submitted, and
(3) the Principal Amount, if any, of such Security which remains
subject to the original Purchase Notice or Change in Control Purchase
Notice, as the case may be, and which has been or will be delivered for
purchase by the Company.
A written notice of withdrawal of a Purchase Notice may be in the form
of (i) a conditional withdrawal contained in a Purchase Notice pursuant to the
terms of Section 3.08(a)(1)(D) or (ii) a conditional withdrawal containing the
information set forth in Section 3.08(a)(1)(D) and the preceding paragraph and
contained in a written notice of withdrawal delivered to the Paying Agent as set
forth in the preceding paragraph.
There shall be no purchase of any Securities pursuant to Section 3.08
(other than through the issuance of Common Stock in payment of the Purchase
Price, including cash in lieu of any fractional shares) or 3.09 if there has
occurred (prior to, on or after, as the case may be, the giving, by the Holders
of such Securities, of the required Purchase Notice or Change in Control
Purchase Notice, as the case may be) and is continuing an Event of Default
(other than a default in the payment of the Purchase Price or Change in Control
Purchase Price, as the case may be, with respect to such Securities). The
Paying Agent will promptly
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return to the respective Holders thereof any Securities with respect to which a
Purchase Notice or Change in Control Purchase Notice, as the case may be, has
been withdrawn in compliance with this Indenture.
SECTION 3.11. DEPOSIT OF PURCHASE PRICE OR CHANGE IN CONTROL PURCHASE
PRICE. On or before the Business Day following a Purchase Date or a Change in
Control Purchase Date, as the case may be, the Company shall deposit with the
Trustee or with the Paying Agent (or, if the Company or a Subsidiary or an
Affiliate of either of them is acting as the Paying Agent, shall segregate and
hold in trust as provided in Section 2.04) an amount of cash and/or Common
Stock, if permitted hereunder, sufficient to pay the aggregate Purchase Price or
Change in Control Purchase Price, as the case may be, of all the Securities or
portions thereof which are to be purchased as of such Purchase Date or Change in
Control Purchase Date, as the case may be.
SECTION 3.12. SECURITIES PURCHASED IN PART. Any Security which is to
be purchased only in part shall be surrendered at the office of the Paying Agent
or the office or agency referred to in Section 4.05 (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 such Holder's attorney duly authorized in writing) and the Company
shall execute and the Trustee shall authenticate and deliver to the Holder of
such Security, without service charge, a new Security or Securities, of any
authorized denomination as requested by such Holder in aggregate Principal
Amount equal to, and in exchange for, the portion of the Principal Amount of the
Security so surrendered which is not purchased.
SECTION 3.13. COVENANT TO COMPLY WITH SECURITIES LAWS UPON PURCHASE
OF SECURITIES. In connection with any offer to purchase or purchase of
Securities under Section 3.01, 3.08 or 3.09 hereof, the Company shall (i)
comply with Rule 13e-4 and Rule 14e-1 (which term, as used herein, includes any
successor provision thereto) under the Exchange Act, if applicable, (ii) file
the related Schedule 13E-4 (or any successor schedule, form or report) under the
Exchange Act, if applicable, and (iii) otherwise comply with all Federal and
state securities laws so as to permit the rights and obligations under
Sections 3.01, 3.08 and 3.09 to be exercised in the time and in the manner
specified in Sections 3.01, 3.08 and 3.09.
SECTION 3.14. REPAYMENT TO THE COMPANY. The Trustee and the Paying
Agent shall return to the Company any cash or shares of Common Stock, together
with interest on such cash, if any, or dividends on such shares of Common Stock,
if any, (subject to the provisions of Section 7.01(f)) held by them for the
payment
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of a Purchase Price or Change in Control Purchase Price, as the case may be,
that remain unclaimed as provided in paragraph 13 of the Securities; PROVIDED,
HOWEVER, that to the extent that the aggregate amount of cash or shares of
Common Stock deposited by the Company pursuant to Section 3.11 exceeds the
aggregate Purchase Price or Change in Control Purchase Price, as the case may
be, of the Securities or portions thereof to be purchased, then promptly after
the Business Day following the Purchase Date or Change in Control Purchase Date,
as the case may be, the Trustee shall return any such excess to the Company
together with interest or dividends, if any, thereof (subject to the provisions
of Section 7.01(f)).
ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES. The Company shall promptly make
all payments in respect of the Securities on the dates and in the manner
provided in the Securities or pursuant to this Indenture. Principal Amount,
Issue Price, accrued Original Issue Discount, Redemption Price, Purchase Price,
Change in Control Purchase Price and interest, if any, shall be considered paid
on the applicable date due (which in the case of a Purchase Price or Change in
Control Purchase Price is the Business Day following the applicable Purchase
Date or Change in Control Purchase Date, as the case may be, as set forth in
Sections 3.08 and 3.09, respectively) if on such date the Trustee or the Paying
Agent holds, in accordance with this Indenture, cash or securities, if permitted
hereunder, sufficient to pay all such amounts then due.
The Company shall pay interest on overdue amounts at the rate set
forth in paragraph 1 of the Securities and it shall pay interest on overdue
interest at the same rate compounded semiannually (to the extent that the
payment of such interest shall be legally enforceable), which interest on
overdue interest shall accrue from the date such amounts became overdue. The
accrual of such interest on overdue amounts shall be in lieu of, and not in
addition to, the continued accrual of Original Issue Discount.
SECTION 4.02. SEC REPORTS. The Company shall file with the Trustee
and the SEC, and transmit to Holders, such information, documents and other
reports, and such summaries thereof, as may be required pursuant to the TIA at
the times and in the manner provided pursuant to the TIA; provided that any such
information, documents or reports required to be filed with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within
15 days after the same is so required to be filed with the SEC.
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The Company shall file with the Trustee, within 15 days after it files
such annual and quarterly reports, information, documents and other reports with
the SEC, copies of its annual report and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the SEC may by
rules and regulations prescribe) which the Company is required to file with the
SEC pursuant to Section 13 or 15(d) of the Exchange Act. The Company also shall
comply with the other provisions of TIA Section 314(a).
SECTION 4.03. COMPLIANCE CERTIFICATE. The Company shall deliver to
the Trustee within 120 days after the end of each fiscal year of the Company
(beginning with the fiscal year ending on December 31, ____) an Officers'
Certificate stating whether or not the signers know of any Default that occurred
during such period. If they do, such Officers' Certificate shall describe the
Default and its status.
SECTION 4.04. FURTHER INSTRUMENTS AND ACTS. Upon request of the
Trustee, the Company will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purposes of this Indenture.
SECTION 4.05. MAINTENANCE OF OFFICE OR AGENCY. The Company will
maintain in the Borough of Manhattan, the City of New York, an office or agency
where Securities may be presented or surrendered for payment, where Securities
may be surrendered for registration of transfer, exchange, purchase, redemption
or conversion and where notices and demands to or upon the Company in respect of
the Securities and this Indenture may be served. The office of the Trustee at
First Chicago Trust Company of New York, 14 Wall Street, 8th Floor, New York,
New York 10005, Attention: Corporate Trust Administration, shall be such office
or agency for all of the aforesaid purposes unless the Company shall maintain
some other office or agency for such purposes and shall give prompt written
notice to the Trustee of the location, and any change in the location, of such
other office or agency. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the address of the Trustee set forth in Section 12.02.
The Company may also from time to time designate one or more other
offices or agencies where the Securities 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
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Company of its obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York, for such purposes.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01. WHEN COMPANY MAY MERGE OR TRANSFER ASSETS. The Company
shall not consolidate with or merge with or into any other person or convey,
transfer or lease its properties and assets substantially as an entirety to any
person, unless:
(a) either (1) the Company shall be the continuing corporation or (2)
the person (if other than the Company) formed by such consolidation or into
which the Company is merged or the person which acquires by conveyance,
transfer or lease the properties and assets of the Company substantially as
an entirety (i) shall be a corporation, partnership or trust organized and
validly existing under the laws of the United States or any State thereof
or the District of Columbia and (ii) shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, all of the obligations of the Company
under the Securities and this Indenture;
(b) immediately after giving effect to such transaction and the
assumption contemplated by clause (a) above, no Default shall have occurred
and be continuing; and
(c) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a supplemental
indenture is required in connection with such transaction, such
supplemental indenture, comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been
satisfied.
The successor person formed by such consolidation or into which the
Company is merged or the successor person to which such conveyance, transfer or
lease 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 had been named as the Company herein; and thereafter, except in
the case of (i) a lease of its properties and assets substantially as an
entirety and (ii) obligations the Company may have under a supplemental
indenture pursuant to Section 11.14, the Company shall be discharged and
released from all obligations and covenants under this Indenture and the
Securities. Subject to Section 9.06, the Trustee shall enter into a
supplemental
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indenture to evidence the succession and substitution of such successor person
and discharge and release of the Company.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT. An "EVENT OF DEFAULT" occurs if:
(1) the Company defaults in the payment of the Principal Amount,
Issue Price, accrued Original Issue Discount, Redemption Price, Purchase
Price or a Change in Control Purchase Price (and, with respect to a default
in the payment of a Purchase Price or a Change in Control Purchase Price,
such default continues for a period of three Business Days) on any Security
when the same becomes due and payable at its Stated Maturity, upon
redemption, upon declaration, when due for purchase by the Company or
otherwise, whether or not such payment shall be prohibited by Article 10;
(2) the Company fails to comply with any of its agreements in the
Securities or this Indenture (other than those referred to in clause (1)
above) and such failure continues for 60 days after receipt by the Company
of a Notice of Default;
(3) a decree or order by a court having jurisdiction in the premises
shall have been entered adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization of the
Company under any Bankruptcy Law, and such decree or order shall have
continued undischarged and unstayed for a period of 60 days; or a decree or
order of a court having jurisdiction in the premises for the appointment of
a receiver or liquidator or trustee or assignee in bankruptcy or insolvency
of the Company or of its property, or for the winding-up or liquidation of
its affairs, shall have been entered, and such decree or order shall have
remained in force undischarged and unstayed of a period of 60 days; or
(4) the Company shall institute proceedings to be adjudicated a
voluntary bankrupt, or shall consent to the filing of a bankruptcy
proceeding against it, or shall file a petition or answer or consent
seeking reorganization under any Bankruptcy Law, or shall consent to the
filing of any such petition, or shall consent to the appointment of a
receiver or liquidator or trustee or assignee in bankruptcy or insolvency
of it or of its property or shall make an assignment for the benefit of
creditors, or shall admit in
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writing its inability to pay its debts generally as they become due.
"BANKRUPTCY LAW" means Title 11, United States Code, or any similar
Federal or state law for the relief of debtors. "CUSTODIAN" means any receiver,
trustee, assignee, liquidator, custodian or similar official under any
Bankruptcy Law.
A Default under clause (2) above is not an Event of Default until the
Trustee notifies the Company, or the Holders of at least 25% in aggregate
Principal Amount of the Securities at the time outstanding notify the Company
and the Trustee, of the Default and the Company does not cure such Default (and
such Default is not waived) within the time specified in clause (2) above after
receipt of such notice. Any such notice must specify the Default, demand that
it be remedied and state that such notice is a Notice of Default.
SECTION 6.02. ACCELERATION. If an Event of Default (other than an
Event of Default specified in Section 6.01(3) or (4)) occurs and is continuing,
the Trustee by notice to the Company, or the Holders of at least 25% in
aggregate Principal Amount of the Securities at the time outstanding by notice
to the Company and the Trustee, may declare the Issue Price and accrued Original
Issue Discount to the date of declaration on all the Securities to be
immediately due and payable. Upon such a declaration, such Issue Price and
accrued Original Issue Discount shall be due and payable immediately. If an
Event of Default specified in Section 6.01(3) or (4) occurs and is continuing,
the Issue Price and accrued Original Issue Discount on all the Securities shall
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Securityholders. The Holders of a majority in
aggregate Principal Amount of the Securities at the time outstanding, by notice
to the Trustee (and without notice to any other Securityholder) may rescind an
acceleration and its consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default have been cured or
waived except nonpayment of the Issue Price and accrued original Issue Discount
that have become due solely as a result of acceleration and if all amounts due
to the Trustee under Section 7.07 have been paid. No such rescission shall
affect any subsequent Default or impair any right consequent thereto.
SECTION 6.03. OTHER REMEDIES. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of the Issue Price and accrued Original Issue Discount on the Securities or to
enforce the performance of any provision of the Securities or this Indenture.
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The Trustee may maintain a proceeding even if the Trustee does not
possess any of the Securities or does not produce any of the Securities in the
proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of, or acquiescence in, the
Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative.
SECTION 6.04. WAIVER OF PAST DEFAULTS. The Holders of a majority in
aggregate Principal Amount of the Securities at the time outstanding, by notice
to the Trustee (and without notice to any other Securityholder), may waive an
existing Default and its consequences except (1) an Event of Default described
in Section 6.01(1), (2) a Default in respect of a provision that under
Section 9.02 cannot be amended without the consent of each Securityholder
affected or (3) a Default under Article 11. When a Default is waived, it is
deemed cured, but no such waiver shall extend to any subsequent or other Default
or impair any consequent right. This Section 6.04 shall be in lieu of Section
316(a)1(B) of the TIA and such Section 316(a)1(B) is hereby expressly excluded
from this Indenture, as permitted by the TIA.
SECTION 6.05. CONTROL BY MAJORITY. The Holders of a majority in
aggregate Principal Amount of the Securities at the time outstanding may direct
the time, method and place of conducting any proceeding for any remedy available
to the Trustee or of exercising any trust or power conferred on the Trustee.
However, the Trustee may refuse to follow any direction that conflicts with law
or this Indenture or that the Trustee determines in good faith is unduly
prejudicial to the rights of other Securityholders or would involve the Trustee
in personal liability unless the Trustee is offered indemnity satisfactory to
it. This Section 6.05 shall be in lieu of Section 316(a)1(A) of the TIA and
such Section 316(a)1(A) is hereby expressly excluded from this Indenture, as
permitted by the TIA.
SECTION 6.06. LIMITATION ON SUITS. A Securityholder may not pursue
any remedy with respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice stating that an
Event of Default is continuing;
(2) the Holders of at least 25% in aggregate Principal Amount of the
Securities at the time outstanding make a written request to the Trustee to
pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable security
or indemnity against any loss, liability or expense satisfactory to the
Trustee;
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(4) the Trustee does not comply with the request within 60 days after
receipt of the notice, the request and the offer of security or indemnity;
and
(5) the Holders of a majority in aggregate Principal Amount of the
Securities at the time outstanding do not give the Trustee a direction
inconsistent with the request during such 60-day period.
A Securityholder may not use this Indenture to prejudice the rights of
any other Securityholder or to obtain a preference or priority over any other
Securityholder.
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT. Notwithstanding
any other provision of this Indenture, but subject to Article 10, the right of
any Holder to receive payment of the Principal Amount, Issue Price, accrued
Original Issue Discount, Redemption Price, Purchase Price, Change in Control
Purchase Price or interest, if any, in respect of the Securities held by such
Holder, on or after the respective due dates expressed in the Securities or any
Redemption Date, and to convert the Securities in accordance with Article 11, or
to bring suit for the enforcement of any such payment on or after such
respective dates or the right to convert, shall not be impaired or affected
adversely without the consent of each such Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE. If an Event of Default
described in Section 6.01(1) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
for the whole amount owing with respect to the Securities and the amounts
provided for in Section 7.07.
SECTION 6.09. 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 Amount, Issue Price, accrued
Original Issue Discount, Redemption Price, Purchase Price, Change in Control
Purchase Price or interest, if any, in respect 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 any such amount) shall be entitled and empowered, by
intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of the Principal
Amount, Issue Price, accrued Original Issue
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Discount, Redemption Price, Purchase Price, Change in Control Purchase
Price, or interest, if any, 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
(b) 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
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 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 7.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 6.10. PRIORITIES. If the Trustee collects any money pursuant
to this Article 6, it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to holders of Senior Indebtedness to the extent required by
Article 10;
THIRD: to Securityholders for amounts due and unpaid on the Securities
for the Principal Amount, Issue Price, accrued Original Issue Discount,
Redemption Price, Purchase Price, Change in Control Purchase Price or
interest, if any, as the case may be, ratably, without preference or
priority of any kind, according to such amounts due and payable on the
Securities; and
FOURTH: the balance, if any, to the Company.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 6.10 and
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shall provide the Company at least 20 days notice of such record date. At least
15 days before such record date, the Company shall mail to each Securityholder
and the Trustee a notice that states the record date, the payment date and
amount to be paid.
SECTION 6.11. UNDERTAKING FOR COSTS. In any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant (other than the Trustee) in the suit of
an undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.11 does not apply
to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07 or a suit
by Holders of more than 10% in aggregate Principal Amount of the Securities at
the time outstanding. This Section 6.11 shall be in lieu of Section 315(e) of
the TIA and such Section 315(e) is hereby expressly excluded from this Indenture
as permitted by the TIA.
SECTION 6.12. WAIVER OF STAY, EXTENSION OR USURY 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 or any usury or other law
wherever enacted, now or at any time hereafter in force, which would prohibit or
forgive the Company from paying all or any portion of the Principal Amount,
Issue Price, accrued Original Issue Discount, Redemption Price, Purchase Price
of Change in Control Purchase Price in respect of Securities, or any interest on
any such amounts, as contemplated herein, or which may affect the covenants or
the performance of this Indenture or the Securities; and the Company (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such laws 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 7
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE. (a) If an Event of Default has
occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in its
exercise as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
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(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that are specifically
set forth in this Indenture and no others; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
This Section 7.01(b) shall be in lieu of Section 315(a) of the TIA and
such Section 315(a) is hereby expressly excluded from this Indenture, as
permitted by the TIA.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph (c) does not limit the effect of paragraph (b) of
this Section 7.01;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
Subparagraphs (c)(1), (2) and (3) shall be in lieu of Sections
315(d)(1), 315(d)(2) and 315(d)(3) of the TIA and such Sections 315(d)(1),
315(d)(2) and 315(d)(3) are hereby expressly excluded from this Indenture, as
permitted by the TIA.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.01.
(e) The Trustee may refuse to perform any duty or exercise any right
or power or extend or risk its own funds or otherwise incur any financial
liability unless it receives indemnity satisfactory to it against any loss,
liability or expense.
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(f) Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law.
SECTION 7.02. RIGHTS OF TRUSTEE. Subject to its duties and
responsibilities under the TIA:
(a) The Trustee may rely on any document believed by it to be genuine
and to have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require a
Company Order, an Officers' Certificate or an Opinion of Counsel. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on such Company Order, Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) Subject to the provisions of Section 7.01(c), the Trustee shall
not be liable for any action it takes or omits to take in good faith which it
believes to be authorized or within its rights or powers.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, Registrar, Conversion
Agent or co-registrar may do the same with like rights. However, the Trustee
must comply with Sections 7.10 and 7.11.
SECTION 7.04. TRUSTEE'S DISCLAIMER. The Trustee makes no
representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Company's use of the proceeds
from the Securities, it shall not be responsible for any statement in the
registration statement (other than the Statement of Eligibility under the Trust
Indenture Act of 1939 on Form T-1 attached as an exhibit thereto) for the
Securities under the Securities Act or in the Indenture or the Securities (other
than its certificate of authentication), the acts of any prior Trustee
hereunder, or the determination as to which beneficial owners are entitled to
receive any notices hereunder.
SECTION 7.05. NOTICE OF DEFAULTS. If a Default occurs and is
continuing and if it is known to the Trustee, the Trustee shall give to each
Securityholder notice of the Default within 90
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days after it occurs. Except in the case of a Default described in
Section 6.01(1), the Trustee may withhold the notice if and so long as a
committee of its Trust Officers in good faith determines that withholding the
notice is in the interests of Securityholders. The Trustee shall not give
notice of a Default pursuant to Section 6.01(2) until at least sixty days have
passed since its occurrence. The second sentence of this Section 7.05 shall be
in lieu of the proviso to Section 315(b) of the TIA and such proviso is hereby
expressly excluded from this Indenture, as permitted by the TIA.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS. Within 60 days
after each May 15 beginning with the May 15 following the date of this
Indenture, the Trustee shall mail to each Securityholder a brief report dated as
of such May 15 that complies with TIA Section 313(a), if required by such
Section. The Trustee also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to Securityholders
shall be provided to the Company and shall be filed with the SEC and each stock
exchange on which the Securities are listed. The Company agrees to notify the
Trustee whenever the Securities become listed on any stock exchange and of any
delisting thereof.
SECTION 7.07. COMPENSATION AND INDEMNITY. The Company agrees:
(a) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not (to
the extent permitted by law) be limited by any provision of law in regard
to the compensation of a trustee of an express trust);
(b) to reimburse the Trustee upon its request and, if required by the
Company, submission of reasonable documentation 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, advances 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
(c) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending
itself against any claim or liability in connection with the
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exercise or performance of any of its powers or duties hereunder.
The Trustee shall give the Company notice of any claim or liability
for which the Trustee might be entitled to indemnification under subparagraph
(c) of this Section 7.07 within a reasonable amount of time after a Trust
Officer of the Trustee becomes aware of such claim or liability. To secure the
Company's payment obligations in this Section 7.07, the Trustee shall have a
lien prior to the Securities on all money or property held or collected by the
Trustee, except that held in trust to pay the Issue Price, accrued Original
Issue Discount, Redemption Price, Purchase Price, Change in Control Purchase
Price or interest, if any, as the case may be, on particular Securities.
The Company's payment obligations pursuant to this Section 7.07 shall
survive the discharge of this Indenture. When the Trustee incurs expenses after
the occurrence of a Default specified in Section 6.01(3) or (4), the expenses
are intended to constitute expenses of administration under any Bankruptcy Law.
SECTION 7.08. REPLACEMENT OF TRUSTEE. The Trustee may resign by so
notifying the Company; PROVIDED, HOWEVER, no such resignation shall be effective
until a successor Trustee has accepted its appointment pursuant to this
Section 7.08. The Holders of a majority in aggregate Principal Amount of the
Securities at the time outstanding may remove the Trustee by so notifying the
Trustee and may appoint a successor Trustee (subject to the consent of the
Company, such consent not to be unreasonably withheld). The Company shall
remove the Trustee if:
(1) the Trustee fails to comply with, or ceases to be eligible under,
Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or public officer takes charge of the Trustee or its
property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint, by
resolution of its Board of Directors, a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to
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Securityholders. The retiring Trustee shall promptly transfer all property held
by it as Trustee to the successor Trustee, subject to the lien provided for in
Section 7.07.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in aggregate Principal Amount of the Securities at the
time outstanding may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation, the
resulting, surviving or transferee corporation without any further act shall be
the successor Trustee.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION. If the Trustee has or
shall acquire a conflicting interest within the meaning of the TIA, 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 TIA and this Indenture. To
the extent permitted by the TIA, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under the (i) Indenture dated
as of September 1, 1989, in respect of the Company's Liquid Yield Option-TM-
Notes due 2009 or (ii) Indenture dated as of September 1, 1993, in respect of
the Company's Liquid Yield Option-TM- Notes due 2013, each between the Company
and the Trustee.
The Trustee shall at all times satisfy the requirements of TIA
Sections 310(a)(1) and 310(b). The Trustee hereby represents and warrants that
it is currently in compliance and at all times will remain in compliance with
the requirements of this Section 7.10. The Trustee shall have a combined capital
and surplus of at least $100,000,000 as set forth in its most recent published
annual report of condition. Neither the Company nor any Affiliate of the
Company may serve as Trustee. Nothing herein contained shall prevent the
Trustee from filing with the Commission the application referred to in the
penultimate paragraph of TIA Section 310(b). 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.
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SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01. DISCHARGE OF LIABILITY ON SECURITIES. When (i) the
Company delivers to the Trustee all outstanding Securities (other than
Securities replaced pursuant to Section 2.07) for cancellation or (ii) all
outstanding Securities have become due and payable and the Company deposits with
the Trustee cash and/or Common Stock, as permitted by the terms hereof,
sufficient to pay at Stated Maturity the Principal Amount of all outstanding
Securities (other than Securities replaced pursuant to Section 2.07), and if in
either case the Company pays all other sums payable hereunder by the Company,
then this Indenture shall, subject to Section 7.07, cease to be of further
effect. The Trustee shall join in the execution of a document prepared by the
Company acknowledging satisfaction and discharge of this Indenture on demand of
the Company accompanied by an Officers' Certificate and Opinion of Counsel and
at the cost and expense of the Company.
SECTION 8.02. REPAYMENT TO THE COMPANY. The Trustee and the Paying
Agent shall return to the Company upon written request any money or securities
held by them for the payment of any amount with respect to the Securities that
remains unclaimed for two years, PROVIDED, HOWEVER, that the Trustee or such
Paying Agent, before being required to make any such return, may at the expense
of the Company cause to be published once in a newspaper of general circulation
in the City of New York or mail to each such Holder notice that such money or
securities remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication or mailing, any
unclaimed money or securities then remaining will be returned to the Company.
After return to the Company, Holders entitled to the money or securities must
look to the Company for payment as general creditors unless an applicable
abandoned property law designates another person.
ARTICLE 9
AMENDMENTS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS. The Company and the
Trustee may amend this Indenture or the Securities without the consent of any
Securityholder:
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(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article 5 or Section 11.14;
(3) to provide for uncertificated Securities in addition to
certificated Securities so long as such uncertificated Securities are in
registered form for purposes of the Internal Revenue Code of 1986, as
amended;
(4) to make any change that does not adversely affect the rights of
any Securityholder;
(5) to make any change to comply with the TIA, or any amendment
thereto, or to comply with any requirement of the SEC in connection with
the qualification of the Indenture under the TIA or any amendment thereof;
(6) to add to the covenants or obligations of the Company hereunder
or to surrender any right, power or option herein conferred upon the
Company; or
(7) to provide for Securities which are exchangeable for any
securities of any Person and the terms and conditions upon which such
Securities will be so exchangeable; provided, however, that no such
amendment shall be made subsequent to the issuance of Securities under this
Indenture, unless such amendment is approved in accordance with Section
9.02.
SECTION 9.02. WITH CONSENT OF HOLDERS. With the written consent of
the Holders of at least a majority in aggregate Principal Amount of the
Securities at the time outstanding, the Company and the Trustee may amend this
Indenture or the Securities. However, without the consent of each
Securityholder affected, an amendment or supplement to this Indenture or the
Securities may not:
(1) make any change to the Principal Amount of Securities whose
Holders must consent to an amendment;
(2) make any change to the rate of accrual in connection with
Original Issue Discount, reduce the rate of interest referred to in
paragraph 1 of the Securities or extend the time for payment of Original
Issue Discount or interest, if any, on any Security;
(3) reduce the Principal Amount or the Issue Price of or extend the
Stated Maturity of any Security;
(4) reduce the Redemption Price, Purchase Price or Change in Control
Purchase Price of any Security;
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(5) make any Security payable in money or securities other than that
stated in the Security;
(6) make any change in Article 10 that adversely affects the rights
of any Securityholder;
(7) make any change in Section 6.04, Section 6.07 or this
Section 9.02, except to increase any such percentage;
(8) make any change that adversely affects the right to convert any
Security; or
(9) make any change that adversely affects the right to require the
Company to purchase the Securities in accordance with the terms thereof and
this Indenture.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
An amendment under this Section 9.02 or Section 9.01 may not make any
change that adversely affects the rights under Article 10 of any holder of
Senior Indebtedness then outstanding unless the requisite holders of such Senior
Indebtedness consent to such change pursuant to the terms of such Senior
Indebtedness.
After an amendment under this Section 9.02 becomes effective, the
Company shall mail to each Holder a notice briefly describing the amendment.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT. Every supplemental
indenture executed pursuant to this Article shall comply with the TIA as then in
effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS, WAIVERS AND ACTIONS.
Until an amendment, waiver or other action becomes effective, a consent to it
or any other action by a Holder of a Security hereunder is a continuing consent
by the Holder and every subsequent Holder of that Security or portion of the
Security that evidences the same obligation as the consenting Holder's Security,
even if notation of the consent, waiver or action is not made on the Security.
However, any such Holder or subsequent Holder may revoke the consent, waiver or
action as to such Holder's Security or portion of the Security if the Trustee
receives the notice of revocation before the date the amendment, waiver or
action becomes effective. After an amendment, waiver or action becomes
effective, it shall bind every Securityholder.
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SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES. Securities
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 so
modified as to conform, in the opinion of the Trustee and the Board of
Directors, 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.
SECTION 9.06. TRUSTEE TO SIGN SUPPLEMENTAL INDENTURES. The Trustee
shall sign any supplemental indenture authorized pursuant to this Article 9 if
the amendment does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may, but need not, sign such
supplemental indenture. In signing such amendment the Trustee shall be entitled
to receive, and (subject to the provisions of Section 7.01) shall be fully
protected in relying upon, an Officers' Certificate and an Opinion of Counsel
stating that such amendment is authorized or permitted by this Indenture.
SECTION 9.07. 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.
ARTICLE 10
SUBORDINATION
SECTION 10.01. SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS. The
Company covenants and agrees, and each Holder of a Security by such Holder's
acceptance thereof likewise covenants and agrees, that, to the extent and in the
manner hereinafter set forth in this Article 10, the indebtedness represented by
the Securities and the payment of the Principal Amount, Issue Price, accrued
Original Issue Discount, Redemption Price, Purchase Price, Change in Control
Purchase Price and interest, if any, in respect of each and all of the
Securities are hereby expressly made subordinate and subject in right of payment
to the prior payment in full of all Senior Indebtedness.
"SENIOR INDEBTEDNESS" means the principal of (and premium, if any) and
interest on (including interest accruing after the filing of a petition
initiating any proceeding pursuant to any Bankruptcy Law) and other amounts due
on or in connection with any Debt incurred, assumed or guaranteed by the
Company, whether outstanding on the date of the Indenture or thereafter
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incurred, assumed or guaranteed and all renewals, extensions and refundings of
any such Debt; PROVIDED, HOWEVER, that the following will not constitute Senior
Indebtedness: (a) any Debt if the instrument creating the same or evidencing the
same or pursuant to which the same is outstanding expressly provides (i) that
such Debt shall not be senior in right of payment to the Securities, or (ii)
that such Debt shall be subordinated to any other Debt of the Company, unless
such instrument expressly provides that such Debt shall be senior in right of
payment to the Securities; (b) Debt of the Company in respect of the Securities;
(c) Debt of the Company in respect of the Company's Liquid Yield Option-TM-
Notes due 2009 (the "2009 LYONs") and the Company's Liquid Yield Option-TM-
Notes due 2013 (the "2013 LYONs"); and (d) Debt of the Company in respect of any
extension notes which may be issued by the Company in respect of the 2009 LYONs
(which 2009 LYONs, 2013 LYONs and extension notes shall rank PARI PASSU with the
Securities).
SECTION 10.02. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC. Upon
any distribution of assets of the Company in the event of
(a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its
creditors, as such, or to its assets, or
(b) any liquidation, dissolution or other winding up of the Company,
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or
(c) any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Company,
then and in such event
(1) the holders of Senior Indebtedness shall be entitled to receive
payment in full of all amounts due or to become due on or in respect of all
Senior Indebtedness, or provision shall be made for such payment in cash,
before the Holders of the Securities are entitled to receive any payment on
account of the Principal Amount, Issue Price, accrued Original Issue
Discount, Redemption Price, Purchase Price, Change in Control Purchase
Price or interest, if any, in respect of the Securities; and
- -----------------------------
- -TM- Trademark of Merrill Lynch & Co., Inc.
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(2) any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, by set-off or
otherwise, to which the Holders or the Trustee would be entitled but for
the provisions of this Article 10, including any such payment or
distribution which may be payable or deliverable by reason of the payment
of any other Debt of the Company being subordinated to the payment of the
Securities, shall be paid by the liquidating trustee or agent or other
person making such payment or distribution, whether a trustee in
bankruptcy, a receiver or liquidating trustee or otherwise, directly to the
holders of Senior Indebtedness or their representative or representatives
or to the trustee or trustees under any indenture under which any
instruments evidencing any of such Senior Indebtedness may have been
issued, ratably according to the aggregate amounts remaining unpaid on
account of the principal of, and premium, if any, and interest on the
Senior Indebtedness held or represented by each, to the extent necessary to
make payment in full of all Senior Indebtedness remaining unpaid, after
giving effect to any concurrent payment or distribution to the holders of
such Senior Indebtedness.
In the event that, notwithstanding the foregoing provisions of this
Section 10.02, the Trustee or the Holder of any Security shall receive any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, including any such payment or
distribution which may be payable or deliverable by reason of the payment of any
other Debt of the Company being subordinated to the payment of the Securities,
before all Senior Indebtedness is paid in full or payment thereof provided for,
and if such fact shall then have been made known to the Trustee, or, as the case
may be, such Holder, then and in such event such payment or distribution shall
be paid over or delivered forthwith to the trustee in bankruptcy, receiver,
liquidating trustee, Custodian, assignee, agent or other person making payment
or distribution of assets of the Company for application to the payment of all
Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior
Indebtedness in full, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness.
For purposes of this Article 10 only, the words "CASH, PROPERTY OR
SECURITIES" shall not be deemed to include shares of Capital Stock of the
Company as reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment the payment
of which is subordinated, at least to the extent provided in this Article 10
with respect to the Securities, to the payment of all Senior Indebtedness which
may at the time be outstanding; provided, however, that (i) Senior Indebtedness
is assumed by the new
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corporation, if any, resulting from any such reorganization or readjustment, and
(ii) the rights of the holders of the Senior Indebtedness are not, without the
consent of such holders, altered by such reorganization or readjustment.
The consolidation of the Company with, or the merger of the Company
into, another person or the liquidation or dissolution of the Company following
the conveyance or transfer of all or substantially all of its assets to another
person upon the terms and conditions set forth in Article 5 shall not be deemed
a dissolution, winding up, liquidation, reorganization, assignment for the
benefit of creditors or marshalling of assets and liabilities of the Company for
the purposes of this Section 10.02 if the person formed by such consolidation or
into which the Company is merged or the person which acquires by conveyance or
transfer all or substantially all of the assets of the Company, as the case may
be, shall, as a part of such consolidation, merger, conveyance or transfer,
comply with the conditions set forth in Article 5.
SECTION 10.03. ACCELERATION OF SECURITIES. In the event that any
Securities are declared due and payable before their Stated Maturity pursuant to
Section 6.02, then and in such event the Company shall promptly notify holders
of Senior Indebtedness of such acceleration. The Company may not pay the
Securities until 120 days have passed after such acceleration occurs and may
thereafter pay the Securities if this Article 10 permits the payment at that
time.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Securities prohibited by
the foregoing provisions of this Section 10.03, and if such facts then shall
have been known or thereafter shall have been made known to the Trustee as
provided in Section 10.10 or such Holder, as the case may be, pursuant to the
terms of this Indenture, then and in such event such payment shall be paid over
and delivered forthwith to the Company by or on behalf of the person holding
such payment for the benefit of the holders of Senior Indebtedness.
The provisions of this Section 10.03 shall not apply to any payment
with respect to which Section 10.02 would be applicable.
SECTION 10.04. DEFAULT ON SENIOR INDEBTEDNESS. The Company may not
make any payment of the Principal Amount, Issue Price, accrued Original Issue
Discount, Redemption Price, Purchase Price, Change in Control Purchase Price or
interest, if any, in respect of the Securities and may not acquire any
Securities for cash or property (except as otherwise provided by Article 11 and
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other than for Capital Stock (including cash in lieu of any fractional shares)
of the Company) if:
(1) a default on Senior Indebtedness occurs and is continuing that
permits holders of such Senior Indebtedness to accelerate its maturity; and
(2) the default is the subject of judicial proceedings or the Company
receives a notice of default thereof from any person who may give such
notice pursuant to the instrument evidencing or document governing such
Senior Indebtedness. If the Company receives any such notice, then a
similar notice received within nine months thereafter relating to the same
default on the same issue of Senior Indebtedness shall not be effective for
purposes of this Section 10.04.
The Company may resume payments on the Securities and may acquire
Securities if and when:
(A) the default is cured or waived; or
(B) 120 or more days pass after the receipt by the Company of the
notice described in clause (2) above and the default is not then the
subject of judicial proceedings; and
this Article 10 otherwise permits the payment or acquisition at that time.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section 10.04, and if such fact then shall have
been known or thereafter shall have been made known to the Trustee or such
Holder, as the case may be, pursuant to the terms of this Indenture, then and in
such event such payment shall (to the extent permitted by law) be paid over and
delivered forthwith to the Company by or on behalf of the person holding such
payment for the benefit of the holders of the Senior Indebtedness.
Nothing contained in this Article 10 or elsewhere in this Indenture or
in any of the Securities shall prevent the conversion by a Holder of any
Securities into Common Stock in accordance with the provisions for conversion of
such Securities set forth in this Indenture, including the payment of cash in
lieu of fractional shares of Common Stock in accordance with Article 11, or in
any of such Securities in the event of an occurrence of the events described in
clauses (1) and (2) of this Section 10.04.
The provisions of this Section 10.04 shall not apply to any payment
with respect to which Section 10.02 would be applicable.
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SECTION 10.05. PAYMENT PERMITTED IF NO DEFAULT. Nothing contained in
this Article 10 or elsewhere in this Indenture or in any of the Securities shall
prevent (a) the Company, at any time except during the pendency of any case,
proceeding, dissolution, liquidation or other winding up, assignment for the
benefit of creditors or other marshalling of assets and liabilities of the
Company referred to in Section 10.02 or under the conditions described in
Section 10.03 or 10.04, from making payments at any time of the Principal
Amount, Issue Price, accrued Original Issue Discount, Redemption Price, Purchase
Price, Change in Control Purchase Price or interest, if any, as the case may be,
in respect of the Securities, or (b) the application by the Trustee or the
retention by any Holder of any money deposited with it hereunder to the payment
of or on account of the Principal Amount, Issue Price, accrued Original Issue
Discount, Redemption Price, Purchase Price, Change in Control Purchase Price or
interest, if any, as the case may be, in respect of the Securities if the
Trustee did not have, at the time provided in the proviso to the first paragraph
of Section 10.10, notice that such payment would have been prohibited by the
provisions of this Article 10.
SECTION 10.06. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR
INDEBTEDNESS. Subject to the payment in full of all Senior Indebtedness, the
Holders of the Securities shall be subrogated to the extent of the payments or
distributions made to the holders of such Senior Indebtedness pursuant to the
provisions of this Article 10 (equally and ratably with the holders of all Debt
of the Company which by its express terms is subordinated to Debt of the Company
to substantially the same extent as the Securities are subordinated and is
entitled to like rights of subrogation) to the rights of the holders of such
Senior Indebtedness to receive payments or distributions of cash, property or
securities applicable to the Senior Indebtedness until the Principal Amount,
Issue Price, accrued Original Issue Discount, Redemption Price, Purchase Price,
or Change in Control Purchase Price or interest, if any, as the case may be, in
respect of the Securities shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of the Senior
Indebtedness of any cash, property or securities to which the Holders of the
Securities or the Trustee would be entitled except for the provisions of this
Article 10, and no payments pursuant to the provisions of this Article 10 to the
Company or to the holders of Senior Indebtedness by Holders of the Securities or
the Trustee, shall, as between the Company, its creditors other than holders of
Senior Indebtedness and the Holders of the Securities, be deemed to be a payment
or distribution by the Company to or on account of the Senior Indebtedness.
SECTION 10.07. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS. The
provisions of this Article 10 are and are intended
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solely for the purpose of defining the relative rights of the Holders of the
Securities, on one hand, and the holders of Senior Indebtedness, on the other
hand. Nothing contained in this Article 10 or elsewhere in this Indenture or in
the Securities is intended to or shall
(a) impair, as between the Company and the Holders of the Securities,
the obligation of the Company, which is absolute and unconditional, to pay
to the Holders of the Securities the Principal Amount, Issue Price, accrued
Original Issue Discount, Redemption Price, Purchase Price, Change in
Control Purchase Price, and interest, if any, as the case may be, in
respect of the Securities as and when the same shall become due and payable
in accordance with the terms of the Securities and this Indenture and
which, subject to the rights under this Article 10 of the holders of Senior
Indebtedness, is intended to rank equally with all other general
obligations of the Company; or
(b) affect the relative rights against the Company of the Holders of
the Securities and creditors of the Company other than holders of Senior
Indebtedness; or
(c) prevent the Trustee or the Holder of any Security from exercising
all remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article 10 of the
holders of Senior Indebtedness to receive cash, property or securities
otherwise payable or deliverable to the Trustee or such Holder.
SECTION 10.08. TRUSTEE TO EFFECTUATE SUBORDINATION. Each Holder of a
Security by such Holder's acceptance thereof authorizes and directs the Trustee
on such Holder's behalf to take such action as may be necessary or appropriate
to effectuate the subordination provided in this Article 10 and appoints the
Trustee such Holder's attorney-in-fact for any and all such purposes.
SECTION 10.09. NO WAIVER OF SUBORDINATION PROVISIONS. No right of
any present or future holder of any Senior Indebtedness to enforce subordination
as herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or by any act or failure to
act, in good faith, by any such holder, or by any noncompliance by the Company
with the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and, from time to time,
without the consent of, or notice
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to, the Trustee or the Holders of the Securities, without incurring
responsibility to the Holders of the Securities and without impairing or
releasing the subordination provided in this Article 10 or the obligations
hereunder of the Holders of the Securities to the holders of Senior
Indebtedness, do any one or more of the following: (i) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, Senior
Indebtedness, or otherwise amend or supplement in any manner Senior Indebtedness
or any instrument evidencing the same or any agreement under which Senior
Indebtedness is outstanding; (ii) sell, exchange, release or otherwise dispose
of any property pledged, mortgaged or otherwise securing Senior Indebtedness;
(iii) release any person liable in any manner for the collection of Senior
Indebtedness; and (iv) exercise or refrain from exercising any rights against
the Company or any other person.
SECTION 10.10. NOTICE TO TRUSTEE. The Company shall give prompt
written notice to the Trustee of any fact known to the Company which would
prohibit the making of any payment to or by the Trustee in respect of the
Securities. Failure to give such notice shall not affect the subordination of
the Securities to Senior Indebtedness. Notwithstanding the provisions of this
Article 10 or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof at the address
specified in Section 12.02 from the Company or a holder of Senior Indebtedness
or from any trustee or agent therefor; and, prior to the receipt of any such
written notice, the Trustee, subject to the provisions of Section 7.01, shall be
entitled in all respects to assume that no such facts exist; PROVIDED, HOWEVER,
that if a Trust Officer of the Trustee shall not have received, at least three
Business Days prior to the date upon which by the terms hereof any such money
may become payable for any purpose (including, without limitation, the payment
of the Principal Amount, Issue Price, accrued Original Issue Discount,
Redemption Price, Purchase Price, Change in Control Purchase Price or interest,
if any, as the case may be, in respect of any Security), the notice with respect
to such money provided for in this Section 10.10, then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power and
authority to receive such money and to apply the same to the purpose for which
such money was received and shall not be affected by any notice to the contrary
which may be received by it within three Business Days prior to such date.
Subject to the provisions of Section 7.01, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a person
representing himself to be a holder of Senior Indebtedness (or a trustee or
agent on behalf of such holder) to
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establish that such notice has been given by a holder of Senior Indebtedness (or
a trustee or agent on behalf of any such holder). In the event that the Trustee
determines in good faith that further evidence is required with respect to the
right of any person as a holder of Senior Indebtedness to participate in any
payment or distribution pursuant to this Article 10, the Trustee may request
such person to furnish evidence to the reasonable satisfaction of the Trustee as
to the amount of Senior Indebtedness held by such person, the extent to which
such person is entitled to participate in such payment or distribution and any
other facts pertinent to the rights of such person under this Article 10, and if
such evidence is not furnished, the Trustee may defer any payment which it may
be required to make for the benefit of such person pursuant to the terms of this
Indenture pending judicial determination as to the right of such person to
receive such payment.
SECTION 10.11. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF
LIQUIDATING AGENT. Upon any payment or distribution of assets of the Company
referred to in this Article 10, the Trustee, subject to the provisions of
Section 7.01, and the Holders of the Securities shall be entitled to rely upon
any order or decree entered by any court of competent jurisdiction in which such
insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution,
winding up or similar case or proceeding is pending, or a certificate of the
trustee in bankruptcy, liquidating trustee, Custodian, receiver, assignee for
the benefit of creditors, agent or other person making such payment or
distribution, delivered to the Trustee or to the Holders of Securities, for the
purpose of ascertaining the persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article 10.
SECTION 10.12. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR
INDEBTEDNESS. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders if
the Trustee shall in good faith mistakenly pay over or distribute to Holders of
Securities or to the Company or to any other person cash, property or securities
to which any holders of Senior Indebtedness shall be entitled by virtue of this
Article 10 or otherwise. The Trustee shall not be charged with knowledge of the
existence of Senior Indebtedness or of any facts that would prohibit any payment
hereunder unless a Trust Officer of the Trustee shall have received notice to
that effect at the address of the Trustee set forth in Section 12.02. With
respect to the holders of Senior Indebtedness, the Trustee undertakes to perform
or to observe only such of its covenants or obligations as are specifically set
forth in this Article 10 and
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no implied covenants or obligations with respect to holders of Senior
Indebtedness shall be read into this Indenture against the Trustee.
SECTION 10.13. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS;
PRESERVATION OF TRUSTEE'S RIGHTS. The Trustee in its individual capacity shall
be entitled to all the rights set forth in this Article 10 with respect to any
Senior Indebtedness which may at any time be held by it, to the same extent as
any other holder of Senior Indebtedness, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder.
Nothing in this Article 10 shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 7.07.
SECTION 10.14. ARTICLE 10 APPLICABLE TO PAYING AGENTS. In case at
any time any Paying Agent other than the Trustee shall have been appointed by
the Company and be then acting hereunder, the term "Trustee" as used in this
Article 10 shall in such case (unless the context otherwise requires) be
construed as extending to and including such Paying Agent within its meaning as
fully for all intents and purposes as if such Paying Agent were named in this
Article 10 in addition to or in place of the Trustee; PROVIDED, HOWEVER, that
Sections 10.10 and 10.12 shall not apply to the Company or any Affiliate of the
Company if it or such Affiliate acts as Paying Agent.
ARTICLE 11
CONVERSION
SECTION 11.01. CONVERSION PRIVILEGE. A Holder of a Security may
convert such Security into Common Stock at any time during the period stated in
paragraph 9 of the Securities. The number of shares of Common Stock issuable
upon conversion of a Security per $1,000 of Principal Amount thereof (the
"CONVERSION RATE") shall be that set forth in paragraph 9 in the Securities,
subject to adjustment as herein set forth.
A Holder may convert a portion of the Principal Amount of a Security
if the portion is $1,000 or an integral multiple of $1,000. Provisions of this
Indenture that apply to conversion of all of a Security also apply to conversion
of a portion of a Security.
"QUOTED PRICE" means the last reported per share sales price (or, if
no sales price is reported, the average of the bid and ask prices or, if more
than one in either case, the average of the average bid and average ask prices)
on such day of the Common Stock on the New York Stock Exchange or, in the event
shares of Common Stock are not listed on the New York Stock Exchange, such
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other national or regional stock exchange upon which the Common Stock is listed,
or, if the shares of Common Stock are not listed on a national or regional stock
exchange, as quoted on the National Association of Securities Dealers Automated
Quotation System or by the National Quotation Bureau Incorporated. In the
absence of one or more such quotations, the Company shall be entitled to
determine the Quoted Price on the basis of such quotations as it considers
appropriate.
"AVERAGE QUOTED PRICE" means the average of the Quoted Prices of the
Common Stock for the shorter of
(i) 30 consecutive trading days ending on the last full trading day
prior to the Time of Determination with respect to the rights, warrants or
options or distribution in respect of which the Average Quoted Price is
being calculated, or
(ii) the period (x) commencing on the date next succeeding the first
public announcement of (a) the issuance of rights, warrants or options or
(b) the distribution, in each case, in respect of which the Average Quoted
Price is being calculated and (y) proceeding through the last full trading
day prior to the Time of Determination with respect to the rights, warrants
or options or distribution in respect of which the Average Quoted Price is
being calculated, or
(iii) the period, if any, (x) commencing on the date next succeeding
the Ex-Dividend Time with respect to the next preceding (a) issuance of
rights, or warrants or options or (b) distribution, in each case, for which
an adjustment is required by the provisions of Section 11.06(4), 11.07 or
11.08 and (y) proceeding through the last full trading day prior to the
Time of Determination with respect to the rights, warrants or options or
distribution in respect of which the Average Quoted Price is being
calculated.
In the event that the Ex-Dividend Time (or in the case of a
subdivision, combination or reclassification, the effective date with respect
thereto) with respect to a dividend, subdivision, combination or
reclassification to which Section 11.06(1), (2), (3) or (5) applies occurs
during the period applicable for calculating "Average Quoted Price" pursuant to
the definition in the preceding sentence, "Average Quoted Price" shall be
calculated for such period in a manner determined by the Board of Directors to
reflect the impact of such dividend, subdivision, combination or
reclassification on the Quoted Price of the Common Stock during such period.
"TIME OF DETERMINATION" means the time and date of the earlier of (i)
the determination of stockholders entitled to receive rights, warrants or
options or a distribution, in each
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case, to which Sections 11.07 and 11.08 apply and (ii) the time ("EX-DIVIDEND
TIME") immediately prior to the commencement of "ex-dividend" trading for such
rights, warrants or options or distribution on the New York Stock Exchange or
such other national or regional exchange or market on which the Common Stock is
then listed or quoted.
SECTION 11.02. CONVERSION PROCEDURE. To convert a Security a Holder
must satisfy the requirements in paragraph 9 of the Securities. The date on
which the Holder satisfies all those requirements is the conversion date (the
"CONVERSION DATE"). As soon as practicable after the Conversion Date, the
Company shall deliver to the Holder, through the Conversion Agent, a certificate
for the number of full shares of Common Stock issuable upon the conversion and
cash in lieu of any fractional share determined pursuant to Section 11.03. The
person in whose name the certificate is registered shall be treated as a
stockholder of record on and after the Conversion Date; PROVIDED, HOWEVER, that
no surrender of a Security on any date when the stock transfer books of the
Company shall be closed shall be effective to constitute the person or persons
entitled to receive the shares of Common Stock upon such conversion as the
record holder or holders of such shares of Common Stock on such date, but such
surrender shall be effective to constitute the person or persons entitled to
receive such shares of Common Stock as the record holder or holders thereof for
all purposes at the close of business on the next succeeding day on which such
stock transfer books are open; PROVIDED, FURTHER, that such conversion shall be
at the Conversion Rate in effect on the date that such Security shall have been
surrendered for conversion, as if the stock transfer books of the Company had
not been closed. Upon conversion of a Security, such person shall no longer be
a Holder of such Security.
No payment or adjustment will be made for dividends on or other
distribution with respect to any Common Stock except as provided in this Article
11. On conversion of a Security, that portion of accrued Original Issue
Discount attributable to the period from the Issue Date of the Security to the
Conversion Date with respect to the converted Security shall not be cancelled,
extinguished or forfeited, but rather shall be deemed to be paid in full to the
Holder thereof through delivery of the Common Stock (together with the cash
payment, if any, in lieu of fractional shares) in exchange for the Security
being converted pursuant to the provisions hereof.
If the Holder converts more than one Security at the same time, the
number of shares of Common Stock issuable upon the conversion shall be based on
the total Principal Amount of the Securities converted.
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Upon surrender of a Security that is converted in part, the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder, a
new Security in an authorized denomination equal in Principal Amount to the
unconverted portion of the Security surrendered.
If the last day on which a Security may be converted is a Legal
Holiday in a place where a Conversion Agent is located, the Security may be
surrendered to that Conversion Agent on the next succeeding day that is not a
Legal Holiday.
SECTION 11.03. FRACTIONAL SHARES. The Company will not issue a
fractional share of Common Stock upon conversion of a Security. Instead, the
Company will deliver cash for the current market value of the fractional share.
The current market value of a fractional share shall be determined to the
nearest 1/1000th of a share by multiplying the Quoted Price, on the last trading
day prior to the Conversion Date, of a full share by the fractional amount and
rounding the product to the nearest whole cent.
SECTION 11.04. TAXES ON CONVERSION. If a Holder converts a Security,
the Company shall pay any documentary, stamp or similar issue or transfer tax
due on the issue of shares of Common Stock upon the conversion. However, the
Holder shall pay any such tax which is due because the Holder requests the
shares to be issued in a name other than the Holder's name. The Conversion
Agent may refuse to deliver the certificates representing the Common Stock being
issued in a name other than the Holder's name until the Conversion Agent
receives a sum sufficient to pay any tax which will be due because the shares
are to be issued in a name other than the Holder's name. Nothing herein shall
preclude any tax withholding required by law or regulations.
SECTION 11.05. COMPANY TO PROVIDE STOCK. The Company shall, prior to
issuance of any Securities hereunder, and from time to time as may be necessary,
reserve out of its authorized but unissued Common Stock a sufficient number of
shares of Common Stock to permit the conversion of the Securities for shares of
Common Stock.
All shares of Common Stock delivered upon conversion of the Securities
shall be newly issued shares or treasury shares, shall be duly and validly
issued and fully paid and nonassessable and shall be free from preemptive rights
and free of any lien or adverse claim.
The Company will endeavor promptly to comply with all Federal and
state securities laws regulating the offer and delivery of shares of Common
Stock upon conversion of Securities, if any, and will list or cause to have
quoted such shares of
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Common Stock on each national securities exchange or in the over-the-counter
market or such other market on which the Common Stock is then listed or quoted.
SECTION 11.06. ADJUSTMENT FOR CHANGE IN CAPITAL STOCK. If, after the
Issue Date of the Securities, the Company:
(1) pays a dividend or makes a distribution on its Common Stock in
shares of its Common Stock;
(2) subdivides its outstanding shares of Common Stock into a greater
number of shares;
(3) combines its outstanding shares of Common Stock into a smaller
number of shares;
(4) pays a dividend or makes a distribution on its Common Stock in
shares of its Capital Stock (other than Common Stock or rights, warrants,
or options for its Capital Stock); or
(5) issues by reclassification of its Common Stock any shares of its
Capital Stock (other than rights, warrants, or options for its Capital
Stock),
then the conversion privilege and the Conversion Rate in effect immediately
prior to such action shall be adjusted so that the Holder of a Security
thereafter converted may receive the number of shares of Capital Stock of the
Company which such Holder would have owned immediately following such action if
such Holder had converted the Security immediately prior to such action.
The adjustment shall become effective immediately after the record
date in the case of a dividend or distribution and immediately after the
effective date in the case of a subdivision, combination or reclassification.
If after an adjustment a Holder of a Security upon conversion of such
Security may receive shares of two or more classes or series of Capital Stock of
the Company, the Conversion Rate shall thereafter be subject to adjustment upon
the occurrence of an action taken with respect to any such class or series of
Capital Stock as is contemplated by this Article 11 with respect to the Common
Stock, on terms comparable to those applicable to Common Stock in this Article
11.
SECTION 11.07. ADJUSTMENT FOR RIGHTS ISSUE. If after the Issue Date
of the Securities, the Company distributes any rights, warrants or options to
all holders of its Common Stock entitling them, for a period expiring within 60
days after the record date for such distribution, to purchase shares of Common
60
<PAGE>
Stock at a price per share less than the Quoted Price as of the Time of
Determination, the Conversion Rate shall be adjusted in accordance with the
formula:
R(1) = R x (O + N)
-------------------
(O + (N x P)/M)
where:
R(1) = the adjusted Conversion Rate.
R = the current Conversion Rate.
O = the number of shares of Common Stock outstanding on the record
date for the distribution to which this Section 11.07 is being
applied.
N = the number of additional shares of Common Stock offered pursuant
to the distribution.
P = the offering price per share of the additional shares.
M = the Average Quoted Price, MINUS, in the case of (i) a
distribution to which Section 11.06(4) applies or (ii) a
distribution to which Section 11.08 applies, for which, in each
case, (x) the record date shall occur on or before the record
date for the distribution to which this Section 11.07 applies and
(y) the Ex-Dividend Time shall occur on or after the date of the
Time of Determination for the distribution to which this
Section 11.07 applies, the fair market value (on the record date
for the distribution to which this Section 11.07 applies) of the
(1) Capital Stock of the Company distributed in respect of each
share of Common Stock in such Section 11.06(4) distribution
and
(2) assets of the Company or debt securities or any rights,
warrants or options to purchase securities of the Company
distributed in respect of each share of Common Stock in such
Section 11.08 distribution.
The Board of Directors shall determine fair market values for the purposes
of this Section 11.07.
The adjustment shall become effective immediately after the record
date for the determination of shareholders entitled to receive the rights,
warrants or options to which this Section 11.07 applies.
61
<PAGE>
No adjustment shall be made under this Section 11.07 if the
application of the formula stated above in this Section 11.07 would result in a
value of R(1) that is less than the value of R.
SECTION 11.08. ADJUSTMENT FOR OTHER DISTRIBUTIONS. If, after the
Issue Date of the Securities, the Company distributes to all holders of its
Common Stock any of its assets, or debt securities or any rights, warrants or
options to purchase securities of the Company (including securities or cash, but
excluding (x) distributions of Capital Stock referred to in Section 11.06 and
distributions of rights, warrants or options referred to in Section 11.07 and
(y) cash dividends or other cash distributions that are paid out of consolidated
current net earnings or earnings retained in the business as shown on the books
of the Company unless such cash dividends or other cash distributions are
Extraordinary Cash Dividends) the Conversion Rate shall be adjusted, subject to
the provisions of the last paragraph of this Section 11.08, in accordance with
the formula:
R(1) = R x M
-----
M - F
where:
R(1) = the adjusted Conversion Rate.
R = the current Conversion Rate.
M = the Average Quoted Price, MINUS, in the case of a distribution to
which Section 11.06(4) applies, for which (i) the record date
shall occur on or before the record date for the distribution to
which this Section 11.08 applies and (ii) the Ex-Dividend Time
shall occur on or after the date of the Time of Determination for
the distribution to which this Section 11.08 applies, the fair
market value (on the record date for the distribution to which
this Section 11.08 applies) of any Capital Stock of the Company
distributed in respect of each share of Common Stock in such
Section 11.06(4) distribution.
F = the fair market value (on the record date for the distribution to
which this Section 11.08 applies) of the assets, securities,
rights, warrants or options to be distributed in respect of each
share of Common Stock in the distribution to which this
Section 11.08 is being applied (including, in the case of cash
dividends or other cash distributions giving rise to an
adjustment, all such cash distributed concurrently).
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<PAGE>
The Board of Directors shall determine fair market values for the purposes
of this Section 11.08.
The adjustment shall become effective immediately after the record
date for the determination of shareholders entitled to receive the distribution
to which this Section 11.08 applies.
For purposes of this Section 11.08, the term "EXTRAORDINARY CASH
DIVIDEND" shall mean any cash dividend with respect to the Common Stock the
amount of which, together with the aggregate amount of cash dividends on the
Common Stock to be aggregated with such cash dividend in accordance with the
provisions of this paragraph, equals or exceeds the threshold percentages set
forth in item (i) or (ii) below:
(i) If, upon the date prior to the Ex-Dividend Time with respect to a
cash dividend on the Common Stock, the aggregate amount of such cash
dividend together with the amounts of all cash dividends on the Common
Stock with Ex-Dividend Times occurring in the 85 consecutive day period
ending on the date prior to the Ex-Dividend Time with respect to the cash
dividend to which this provision is being applied equals or exceeds on a
per share basis 12.5% of the average of the Quoted Prices during the period
beginning on the date after the first such Ex-Dividend Time in such period
and ending on the date prior to the Ex-Dividend Time with respect to the
cash dividend to which this provision is being applied (except that if no
other cash dividend has had an Ex-Dividend Time occurring in such period,
the period for calculating the average of the Quoted Prices shall be the
period commencing 85 days prior to the date prior to the Ex-Dividend Time
with respect to the cash dividend to which this provision is being
applied), such cash dividend together with each other cash dividend with an
Ex-Dividend Time occurring in such 85 day period shall be deemed to be an
Extraordinary Cash Dividend and for purposes of applying the formula set
forth above in this Section 11.08, the value of "F" shall be equal to (w)
the aggregate amount of such cash dividend together with the amounts of the
other cash dividends with Ex-Dividend Times occurring in such period MINUS
(x) the aggregate amount of such other cash dividends with Ex-Dividend
Times occurring in such period for which a prior adjustment in the
Conversion Rate was previously made under this Section 11.08.
(ii) If, upon the date prior to the Ex-Dividend Time with respect to
a cash dividend on the Common Stock, the aggregate amount of such cash
dividend together with the amounts of all cash dividends on the Common
Stock with Ex-Dividend Times occurring in the 365 consecutive day period
ending on the date prior to the Ex-Dividend Time with respect to the cash
dividend to which this provision is being applied
63
<PAGE>
equals or exceeds on a per share basis 25% of the average of the Quoted
Prices during the period beginning on the date after the first such Ex-
Dividend Time in such period and ending on the date prior to the Ex-
Dividend Time with respect to the cash dividend to which this provision is
being applied (except that if no other cash dividend has had an Ex-Dividend
Time occurring in such period, the period for calculating the average of
the Quoted Prices shall be the period commencing 365 days prior to the date
prior to the Ex-Dividend Time with respect to the cash dividend to which
this provision is being applied), such cash dividend together with each
other cash dividend with an Ex-Dividend Time occurring in such 365 day
period shall be deemed to be an Extraordinary Cash Dividend and for
purposes of applying the formula set forth above in this Section 11.08, the
value of "F" shall be equal to (y) the aggregate amount of such cash
dividend together with the amounts of the other cash dividends with Ex-
Dividend Times occurring in such period MINUS (z) the aggregate amount of
such other cash dividends with Ex-Dividend Times occurring in such period
for which a prior adjustment in the Conversion Rate was previously made
under this Section 11.08.
In making the determinations required by items (i) and (ii) above, the
amount of cash dividends paid on a per share basis and the average of the Quoted
Prices, in each case during the period specified in item (i) or (ii) above, as
applicable, shall be appropriately adjusted to reflect the occurrence during
such period of any event described in Section 11.06.
In the event that, with respect to any distribution to which this
Section 11.08 would otherwise apply, the difference "M-F" as defined in the
above formula is less than $1.00 or "F" is greater than "M", then the adjustment
provided by this Section 11.08 shall not be made and in lieu thereof the
provisions of Section 11.14 shall apply to such distribution.
SECTION 11.09. WHEN ADJUSTMENT MAY BE DEFERRED. No adjustment in the
Conversion Rate need be made unless the adjustment would require an increase or
decrease of at least 1% in the Conversion Rate. Any adjustments that are not
made shall be carried forward and taken into account in any subsequent
adjustment.
All calculations under this Article 11 shall be made to the nearest
cent or to the nearest 1/1,000th of a share, as the case may be, with one-half
of a cent and 5/10,000ths of a share being rounded upwards.
SECTION 11.10. WHEN NO ADJUSTMENT REQUIRED. No adjustment need be
made for a transaction referred to in Section 11.06, 11.07, 11.08 or 11.14 if
Securityholders are to
64
<PAGE>
participate in the transaction on a basis and with notice that the Board of
Directors determines to be fair and appropriate in light of the basis and notice
on which holders of Common Stock participate in the transaction.
No adjustment need be made for rights to purchase Common Stock
pursuant to a Company plan for reinvestment of dividends or interest or for
rights to purchase Capital Stock pursuant to any future dividend or distribution
which the Company determines to be comparable in purpose and in effect to the
dividend and subsequent distribution of Rights contemplated by the Rights
Agreement.
No adjustment need be made for a change in the par value or no par
value of the Common Stock.
To the extent the Securities become convertible into cash pursuant to
the terms of Section 11.08 or 11.14, no adjustment need be made thereafter as to
the cash. Interest will not accrue on the cash.
SECTION 11.11. NOTICE OF ADJUSTMENT. Whenever the Conversion Rate is
adjusted, the Company shall promptly mail to Securityholders a notice of the
adjustment. The Company shall file with the Trustee and the Conversion Agent
such notice and a certificate from the Company's independent public accountants
briefly stating the facts requiring the adjustment and the manner of computing
it. The certificate shall be conclusive evidence that the adjustment is
correct. Neither the Trustee nor any Conversion Agent shall be under any duty or
responsibility with respect to any such certificate except to exhibit the same
to any Holder desiring inspection thereof.
SECTION 11.12. VOLUNTARY INCREASE. The Company from time to time may
increase the Conversion Rate by any amount for any period of time. Whenever the
Conversion Rate is increased, the Company shall mail to Securityholders and file
with the Trustee and the Conversion Agent a notice of the increase. The Company
shall mail the notice at least 15 days before the date the increased Conversion
Rate takes effect. The notice shall state the increased Conversion Rate and the
period it will be in effect.
A voluntary increase of the Conversion Rate does not change or adjust
the Conversion Rate otherwise in effect for purposes of Section 11.06, 11.07 or
11.08.
SECTION 11.13. NOTICE OF CERTAIN TRANSACTIONS. If:
(1) the Company takes any action that would require an adjustment in
the Conversion Rate pursuant to Section 11.06, 11.07 or 11.08 (unless no
adjustment is to occur pursuant to Section 11.10); or
65
<PAGE>
(2) the Company takes any action that would require a supplemental
indenture pursuant to Section 11.14; or
(3) there is a liquidation or dissolution of the Company;
then the Company shall mail to Securityholders and file with the Trustee and the
Conversion Agent a notice stating the proposed record date for a dividend or
distribution or the proposed effective date of a subdivision, combination,
reclassification, consolidation, merger, binding share exchange, transfer,
liquidation or dissolution. The Company shall file and mail the notice at least
15 days before such date. Failure to file or mail the notice or any defect in
it shall not affect the validity of the transaction.
SECTION 11.14. REORGANIZATION OF COMPANY; SPECIAL DISTRIBUTIONS. If
the Company is a party to a transaction subject to Section 5.01 or a merger or
binding share exchange which reclassifies or changes its outstanding Common
Stock, the person obligated to deliver securities, cash or other assets upon
conversion of Securities shall enter into a supplemental indenture. If the
issuer of securities deliverable upon conversion of Securities is an Affiliate
of the successor Company, that issuer shall join in the supplemental indenture.
The supplemental indenture shall provide that the Holder of a Security
may convert it into the kind and amount of securities, cash or other assets
which such Holder would have received immediately after the consolidation,
merger, binding share exchange or transfer if such Holder had converted the
Security immediately before the effective date of the transaction, assuming (to
the extent applicable) that such Holder (i) was not a constituent person or an
Affiliate of a constituent person to such transaction; (ii) made no election
with respect thereto; and (iii) was treated alike with the plurality of non-
electing Holders. The supplemental indenture shall provide for adjustments
which shall be as nearly equivalent as may be practical to the adjustments
provided for in this Article 11. The successor Company shall mail to
Securityholders a notice briefly describing the supplemental indenture.
If this Section applies, neither Section 11.06 nor 11.07 applies.
If the Company makes a distribution to all holders of its Common Stock
of any of its assets, or debt securities or any rights, warrants or options to
purchase securities of the Company that, but for the provisions of the last
paragraph of Section 11.08, would otherwise result in an adjustment in the
66
<PAGE>
Conversion Rate pursuant to the provisions of Section 11.08, then, from and
after the record date for determining the holders of Common Stock entitled to
receive the distribution, a Holder of a Security that converts such Security in
accordance with the provisions of this Indenture would upon such conversion be
entitled to receive, in addition to the shares of Common Stock into which the
Security is convertible, the kind and amount of securities, cash or other assets
comprising the distribution that such Holder would have received if such Holder
had converted the Security immediately prior to the record date for determining
the holders of Common Stock entitled to receive the distribution.
SECTION 11.15. COMPANY DETERMINATION FINAL. Any determination that
the Company or the Board of Directors must make pursuant to Section 11.03,
11.06, 11.07, 11.08, 11.09, 11.10, 11.14 or 11.17 is conclusive.
SECTION 11.16. TRUSTEE'S ADJUSTMENT DISCLAIMER. The Trustee has no
duty to determine when an adjustment under this Article 11 should be made, how
it should be made or what it should be. The Trustee has no duty to determine
whether a supplemental indenture under Section 11.14 need be entered into or
whether any provisions of any supplemental indenture are correct. The Trustee
shall not be accountable for and makes no representation as to the validity or
value of any securities or assets issued upon conversion of Securities. The
Trustee shall not be responsible for the Company's failure to comply with this
Article 11. Each Conversion Agent shall have the same protection under this
Section 11.16 as the Trustee.
SECTION 11.17. SIMULTANEOUS ADJUSTMENTS. In the event that this
Article 11 requires adjustments to the Conversion Rate under more than one of
Sections 11.06(4), 11.07 or 11.08, and the record dates for the distributions
giving rise to such adjustments shall occur on the same date, then such
adjustments shall be made by applying, first, the provisions of Section 11.06,
second, the provisions of Section 11.08 and, third, the provisions of
Section 11.07.
SECTION 11.18. SUCCESSIVE ADJUSTMENTS. After an adjustment to the
Conversion Rate under this Article 11, any subsequent event requiring an
adjustment under this Article 11 shall cause an adjustment to the Conversion
Rate as so adjusted.
SECTION 11.19. RIGHTS ISSUED IN RESPECT OF COMMON STOCK ISSUED UPON
CONVERSION. Each share of Common Stock issued upon conversion of Securities
pursuant to this Article 11 shall be entitled to receive the appropriate number
of Rights, if any, and the certificates representing the Common Stock issued
upon such conversion shall bear such legends, if any, in each case as provided
by and subject to the terms of the Rights Agreement as in
67
<PAGE>
effect at the time of such conversion. Notwithstanding anything else to the
contrary in this Article 11, there shall not be any adjustment to the conversion
privilege or Conversion Rate as a result of (i) the distribution of separate
certificates representing the Rights, (ii) the occurrence of certain events
entitling holders of Rights to receive, upon exercise thereof, Common Stock of
the Company or Capital Stock of another corporation or (iii) the exercise of
such Rights in accordance with the Rights Agreement.
ARTICLE 12
MISCELLANEOUS
SECTION 12.01. TRUST INDENTURE ACT CONTROLS. If any provision of
this Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 12.02. NOTICES. Any notice or communication shall be in
writing and delivered in person or mailed by first-class mail, postage prepaid,
addressed as follows:
if to the Company:
Motorola, Inc.
1303 East Algonquin Road
Schaumburg, Illinois 60196
Attention: Treasurer, with a copy to Secretary
if to the Trustee:
The First National Bank of Chicago
One First National Plaza
Suite 0126
Chicago, Illinois 60670-0126
Attention: Corporate Trust Administration
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication given to a Securityholder shall be mailed
to the Securityholder, by first class mail, postage prepaid, at the
Securityholder's address as it appears on the registration books of the
Registrar and shall be sufficiently given if so mailed within the time
prescribed.
68
<PAGE>
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not received by the addressee.
If the Company mails a notice or communication to the Securityholders,
it shall mail a copy to the Trustee and each Registrar, Paying Agent, Conversion
Agent or co-registrar.
SECTION 12.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar, the Paying Agent, the
Conversion Agent and anyone else shall have the protection of TIA
Section 312(c).
SECTION 12.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 12.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. Each
Officers' Certificate or Opinion of Counsel with respect to compliance with a
covenant or condition provided for in this Indenture shall include:
(1) a statement that each person making such Officers' Certificate or
Opinion of Counsel has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
Officers' Certificate or Opinion of Counsel are based;
(3) a statement that, in the opinion of each such person, he has made
such examination or investigation as is necessary to enable such person to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
69
<PAGE>
(4) a statement that, in the opinion of such person, such covenant or
condition has been complied with.
SECTION 12.06. 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 12.07. RULES BY TRUSTEE, PAYING AGENT, CONVERSION AGENT AND
REGISTRAR. The Trustee may make reasonable rules for action by or a meeting of
Securityholders. The Registrar, Conversion Agent and the Paying Agent may make
reasonable rules for their functions.
SECTION 12.08. LEGAL HOLIDAYS. A "LEGAL HOLIDAY" is any day other
than a Business Day. If any specified date (including a date for giving notice)
is a Legal Holiday, the action shall be taken on the next succeeding day that is
not a Legal Holiday, and to the extent applicable no Original Issue Discount or
interest, if any, shall accrue for the intervening period.
SECTION 12.09. GOVERNING LAW. The laws of the State of Illinois and
the applicable federal laws of the United States shall govern this Indenture and
the Securities without regard to principles of conflict of laws.
SECTION 12.10. NO RECOURSE AGAINST OTHERS. A director, officer,
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Securities or this Indenture or for
any claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder shall waive and release
all such liability. The waiver and release shall be part of the consideration
for the issue of the Securities.
SECTION 12.11. SUCCESSORS. All agreements of the Company in this
Indenture and the Securities shall bind its successor. All agreements of the
Trustee in this Indenture shall bind its successor.
SECTION 12.12. MULTIPLE ORIGINALS. The parties may sign any number
of copies of this Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement. One signed copy is enough to prove
this Indenture.
70
<PAGE>
IN WITNESS WHEREOF, the undersigned, being duly authorized, have
executed this Indenture on behalf of the respective parties hereto as of the
date first written above.
MOTOROLA, INC.
By
----------------------------
Title: Senior Vice President
Attest: and Treasurer
- ----------------------------
Title: Assistant Secretary
[SEAL]
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By
---------------------------------
Title:
---------------------------
Attest:
- ----------------------------
Title:
---------------------
[SEAL]
71
<PAGE>
EXHIBIT A
[FORM OF FACE OF LYON]
FOR PURPOSES OF SECTIONS 1273 AND 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT WITH RESPECT TO EACH $1,000 OF
PRINCIPAL AMOUNT OF THIS SECURITY IS $_______, THE ISSUE DATE IS ____________,
199__, THE YIELD TO MATURITY IS _____%.
MOTOROLA, INC.
Liquid Yield Option-TM- Note due _____
(Zero Coupon-Subordinated)
No.
Issue Date: ________ __, 199__ Original Issue Discount: $______
Issue Price: $_______ (for each $1,000 Principal
(for each $1,000 Principal Amount)
Amount)
Motorola, Inc., a corporation duly organized and existing under the laws of
the State of Delaware (hereinafter called the "COMPANY"), for value received,
hereby promises to pay to __________ or registered assigns, the Principal Amount
of __________ Dollars ($__________) on _________ __, 20___
This Security shall not bear interest except as specified on the other side
of this Security. Original Issue Discount will accrue as specified on the other
side of this Security. This Security is convertible as specified on the other
side of this Security. All capitalized terms used herein without definition
shall have the respective meanings assigned thereto in the Indenture referred to
on the other side of this Security.
<PAGE>
Additional provisions of this Security are set forth on the other side of
this Security.
IN WITNESS WHEREOF, Motorola, Inc. has caused this instrument to be signed
by its Vice Chairman of the Board and Chief Executive Officer, or its President,
or one of its Vice Presidents, manually or by facsimile, and a facsimile of its
corporate seal to be imprinted hereon and attested by a manual or facsimile
signature of its Secretary or one of its Assistant Secretaries.
Dated: MOTOROLA, INC.
By
---------------------------------
Title:
---------------------------
[SEAL] By
---------------------------------
Title:
---------------------------
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee, certifies that this
is one of the Securities referred
to in the within-mentioned Indenture.
By
---------------------------------
Authorized Officer
Dated:
----------------------------
- -----------------------------
- -TM- Trademark of Merrill Lynch & Co., Inc.
<PAGE>
[FORM OF REVERSE SIDE OF LYON]
Liquid Yield Option-TM- Note due _____
(Zero Coupon-Subordinated)
1. INTEREST
This Security shall not bear interest, except that if the Principal hereof
or any portion of such Principal is not paid when due (whether upon acceleration
pursuant to Section 6.02 of the Indenture, upon the date set for payment of the
Redemption Price pursuant to paragraph 5 hereof, upon the date set for payment
of a Purchase Price or Change in Control Purchase Price pursuant to paragraph 6
hereof or upon the Stated Maturity of this Security), then in each such case the
overdue amount shall bear interest at the rate of _____% per annum, compounded
semiannually (to the extent that the payment of such interest shall be legally
enforceable), which interest shall accrue from the date such overdue amount was
due to the date payment of such amount, including interest thereon, has been
made or duly provided for. All such interest shall be payable on demand. The
accrual of such interest on overdue amounts shall be in lieu of, and not in
addition to, the continued accrual of Original Issue Discount.
Original Issue Discount (the difference between the Issue Price and the
Principal Amount of the Security), in the period during which a Security remains
outstanding, shall accrue at ____% per annum, on a semi-annual bond equivalent
basis using a 360-day year composed of twelve 30-day months, commencing on the
Issue Date of this Security.
2. METHOD OF PAYMENT
Subject to the terms and conditions of the Indenture, the Company will make
payments in respect of the Securities to the persons who are registered Holders
of Securities at the close of business on the Business Day preceding the
Redemption Date or Stated Maturity, as the case may be, or at the close of
business on a Purchase Date, Change in Control Purchase Date or Conversion Date,
as the case may be. Holders must surrender Securities to a Paying Agent to
collect such payments in respect of the Securities. The Company will pay cash
amounts in money of the United States that at the time of payment is legal
tender for payment of public and private debts. However, the Company may make
such cash payments by check payable in such money.
- ----------------------------
- -TM- Trademark of Merrill Lynch & Co., Inc.
<PAGE>
3. PAYING AGENT, CONVERSION AGENT AND REGISTRAR
Initially, The First National Bank of Chicago, as Trustee (the "TRUSTEE"),
will act as Paying Agent, Conversion Agent and Registrar. The Company may
appoint and change any Paying Agent, Conversion Agent, Registrar or co-registrar
without notice, other than notice to the Trustee. The Company or any of its
Subsidiaries or any of their Affiliates may act as Paying Agent, Conversion
Agent, Registrar or co-registrar.
4. INDENTURE.
The Company issued the Securities under an Indenture dated as of _________
__, 199_ (the "INDENTURE"), between the Company and the Trustee. The terms of
the Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended and as in
effect from time to time (the "TIA"). Capitalized terms used herein and not
defined herein have the meanings ascribed thereto in the Indenture. The
Securities are subject to all such terms, and Securityholders are referred to
the Indenture and the TIA for a statement of those terms.
The Securities are general unsecured obligations of the Company limited to
$____,000,000 aggregate Principal Amount (subject to Sections 2.02 and 2.07 of
the Indenture). The Indenture does not limit other Debt of the Company, secured
or unsecured, including Senior Indebtedness.
5. REDEMPTION AT THE OPTION OF THE COMPANY
No sinking fund is provided for the Securities. The Securities are
redeemable as a whole, or from time to time in part, at any time at the option
of the Company at the Redemption Prices set forth below, provided that the
Securities are not redeemable prior to _________ __, _____.
The table below shows Redemption Prices of a Security per $1,000 Principal
Amount on the dates shown below and at Stated Maturity, which prices reflect
accrued Original Issue Discount calculated to each such date. The Redemption
Price of a Security redeemed between such dates would include an additional
amount reflecting the additional Original Issue Discount accrued since the next
preceding date in the table to the actual Redemption Date.
<PAGE>
<TABLE>
<CAPTION>
(1) (2) (3)
Accrued
Original
Issue Redemption
LYON Discount Price
Redemption Date Issue Price At % (1) + (2)
- --------------- ----------- --------- ----------
$ $
<S> <C> <C> <C>
At maturity. . . . . $ $1,000.00
</TABLE>
6. PURCHASE BY THE COMPANY AT THE OPTION OF THE HOLDER
Subject to the terms and conditions of the Indenture, the Company shall
become obligated to purchase, at the option of the Holder, the Securities held
by such Holder on the following Purchase Dates and at the following Purchase
Prices per $1,000 Principal Amount at Stated Maturity of such Securities, upon
delivery of a Purchase Notice containing the information set forth in the
Indenture, from the opening of business on the date that is 20 Business Days
prior to such Purchase Date until the close of business on such Purchase Date
and upon delivery of the Securities to the Paying Agent by the Holder as set
forth in the Indenture. Such Purchase Prices may be paid, at the option of the
Company, in cash or by the issuance and delivery of shares of Common Stock of
the Company, or in any combination thereof.
Purchase Date Purchase Price
- ------------- --------------
. . . . . . . . . . . . . . . . . . . . . $______
. . . . . . . . . . . . . . . . . . . . . ______
. . . . . . . . . . . . . . . . . . . . . ______
At the option of the Holder and subject to the terms and conditions of
the Indenture, the Company shall become obligated to purchase the Securities
held by such Holder 35 Business Days after the occurrence of a Change in Control
of the Company occurring on or prior to _________ , _____ for a Change in
Control Purchase Price equal to the Issue Price plus accrued Original Issue
Discount to the Change in Control Purchase Date, which Change in Control
Purchase Price shall be paid in cash.
Holders have the right to withdraw any Purchase Notice or Change in
Control Purchase Notice, as the case may be, by delivering to the Paying Agent a
written notice of withdrawal in accordance with the provisions of the Indenture.
If cash (and/or securities if permitted under the Indenture)
sufficient to pay a Purchase Price or Change in Control Purchase Price, as the
case may be, of all Securities or portions
<PAGE>
thereof to be purchased as of the Purchase Date or the Change in Control
Purchase Date, as the case may be, is deposited with the Paying Agent on the
Business Day following the Purchase Date or the Change in Control Purchase Date,
as the case may be, Original Issue Discount ceases to accrue on such Securities
(or portions thereof) on and after such date, and the Holder thereof shall have
no other rights as such other than the right to receive the Purchase Price or
Change in Control Purchase Price, as the case may be, upon surrender of such
Security.
7. NOTICE OF REDEMPTION
Notice of redemption will be mailed at least 15 days but not more than
60 days before the Redemption Date to each Holder of Securities to be redeemed
at the Holder's registered address. If money sufficient to pay the Redemption
Price of all Securities (or portions thereof) to be redeemed on the Redemption
Date is deposited with the Paying Agent prior to or on the Redemption Date, on
and after such date Original Issue Discount ceases to accrue on such Securities
or portions thereof. Securities in denominations larger than $1,000 of
Principal Amount may be redeemed in part but only in integral multiples of
$1,000 of Principal Amount.
8. SUBORDINATION
The Securities are subordinated to all existing and future Senior
Indebtedness. To the extent provided in the Indenture, Senior Indebtedness must
be paid before the Securities may be paid. The Indenture does not limit the
present or future amount of Senior Indebtedness the Company may have. The
Company agrees, and each Securityholder by accepting a Security agrees, to the
subordination and authorizes the Trustee to give it effect and appoints the
Trustee as attorney-in-fact for such purpose.
9. CONVERSION
Subject to the next two succeeding sentences, a Holder of a Security
may convert it into Common Stock of the Company at any time before the close of
business on _________ __, 20__. If the Security is called for redemption, the
Holder may convert it at any time before the close of business on the Redemption
Date. The number of shares of Common Stock to be delivered upon conversion of a
Security into Common Stock per $1,000 of Principal Amount shall be equal to the
Conversion Rate then in effect. A Security in respect of which a Holder has
delivered a Purchase Notice or a Change in Control Purchase Notice exercising
the option of such Holder to require the Company to purchase such Security may
be converted only if the notice of exercise is withdrawn in accordance with the
terms of the Indenture.
<PAGE>
The initial Conversion Rate is _________ shares of Common Stock per
$1,000 Principal Amount, subject to adjustment in certain events described in
the Indenture. The Company will deliver cash or a check in lieu of any
fractional share of Common Stock.
To convert a Security a Holder must (1) complete and manually sign the
conversion notice on the back of the Security (or complete and manually sign a
facsimile of such notice) and deliver such notice to the Conversion Agent (or
the office or agency referred to in Section 4.05 of the Indenture), (2)
surrender the Security to a Conversion Agent, (3) furnish appropriate
endorsements and transfer documents if required by the Conversion Agent, the
Company or the Trustee and (4) pay any transfer or similar tax, if required.
A Holder may convert a portion of a Security if the Principal Amount
of such portion is $1,000 or an integral multiple of $1,000. No payment or
adjustment will be made for dividends on the Common Stock except as provided in
the Indenture. On conversion of a Security, that portion of accrued Original
Issue Discount attributable to the period from the Issue Date to the Conversion
Date with respect to the converted Security shall not be cancelled, extinguished
or forfeited, but rather shall be deemed to be paid in full to the Holder
thereof through the delivery of the Common Stock (together with any cash payment
in lieu of fractional shares) in exchange for the Security being converted
pursuant to the terms hereof.
The Conversion Rate will be adjusted for dividends or distributions on
Common Stock payable in Common Stock or other Capital Stock; subdivisions,
combinations or certain reclassifications of Common Stock; distributions to all
holders of Common Stock of certain rights to purchase Common Stock for a period
of 60 days at less than the Quoted Price at the Time of Determination; and
distributions to such holders of assets or debt securities of the Company or
certain rights to purchase securities of the Company (excluding certain cash
dividends or distributions). However, no adjustment need be made if
Securityholders may participate in the transaction or in certain other cases.
The Company from time to time may voluntarily increase the Conversion Rate.
If the Company is a party to a consolidation, merger or binding share
exchange or a transfer of all or substantially all of its assets, or upon
certain distributions described in the Indenture, the right to convert a
Security into Common Stock may be changed into a right to convert it into
securities, cash or other assets of the Company or another person.
<PAGE>
10. CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION
Any Securities called for redemption, unless surrendered for
conversion before the close of business on the Redemption Date, may be deemed to
be purchased from the Holders of such Securities at an amount not less than the
Redemption Price, together with accrued interest, if any, to the Redemption
Date, by one or more investment bankers or other purchasers who may agree with
the Company to purchase such Securities from the Holders and to make payment for
such Securities to the Trustee in trust for such Holders.
11. DENOMINATIONS; TRANSFER; EXCHANGE
The Securities are in registered form, without coupons, in
denominations of $1,000 of Principal Amount and integral multiples of $1,000. A
Holder may transfer or exchange Securities in accordance with the Indenture.
The Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not transfer or exchange
any Securities selected for redemption (except, in the case of a Security to be
redeemed in part, the portion of the Security not to be redeemed) or any
Securities in respect of which a Purchase Notice or Change in Control Purchase
Notice has been given and not withdrawn (except, in the case of a Security to be
purchased in part, the portion of the Security not to be purchased) or any
Securities for a period of 15 days before a selection of Securities to be
redeemed.
12. PERSONS DEEMED OWNERS
The registered Holder of this Security may be treated as the owner of
this Security for all purposes.
13. UNCLAIMED MONEY OR SECURITIES
The Trustee and the Paying Agent shall return to the Company upon
written request any money or securities held by them for the payment of any
amount with respect to the Securities that remains unclaimed for two years,
PROVIDED, HOWEVER, that the Trustee or such Paying Agent, before being required
to make any such return, may at the expense of the Company cause to be published
once in a newspaper of general circulation in the City of New York or mail to
each such Holder notice that such money or securities remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication or mailing, any unclaimed money or securities then
remaining will be returned to the Company. After return to the Company, Holders
entitled to the money or securities must look
<PAGE>
to the Company for payment as general creditors unless an applicable abandoned
property law designates another person.
14. AMENDMENT; WAIVER
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in aggregate Principal Amount of the Securities
at the time outstanding and (ii) certain defaults or noncompliance with certain
provisions may be waived with the written consent of the Holders of a majority
in aggregate Principal Amount of the Securities at the time outstanding.
Subject to certain exceptions set forth in the Indenture, without the consent of
any Securityholder, the Company and the Trustee may amend the Indenture or the
Securities to cure any ambiguity, defect or inconsistency, or to comply with
Article 5 or Section 11.14 of the Indenture, to provide for uncertificated
Securities in addition to or in place of certificated Securities or to make any
change that does not adversely affect the rights of any Securityholder, or to
comply with any requirement of the SEC in connection with the qualification of
the Indenture under the TIA.
15. DEFAULTS AND REMEDIES
Under the Indenture, Events of Default include (i) default in payment
of the Principal Amount, Issue Price, accrued Original Issue Discount,
Redemption Price, Purchase Price (continuing for three Business Days) or Change
in Control Purchase Price (continuing for three Business Days), as the case may
be, in respect of the Securities when the same becomes due and payable; (ii)
failure by the Company to comply with other agreements in the Indenture or the
Securities, subject to notice and lapse of time; and (iii) certain events of
bankruptcy or insolvency. If an Event of Default occurs and is continuing, the
Trustee, or the Holders of at least 25% in aggregate Principal Amount of the
Securities at the time outstanding, may declare all the Securities to be due and
payable immediately. Certain events of bankruptcy or insolvency are Events of
Default which will result in the Securities being declared due and payable
immediately upon the occurrence of such Events of Default.
Securityholders may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may refuse to enforce the Indenture
or the Securities unless it receives reasonable indemnity or security. Subject
to certain limitations, Holders of a majority in aggregate Principal Amount of
the Securities at the time outstanding may direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from Securityholders notice of any
continuing Default (except a
<PAGE>
Default in payment of amounts specified in clause (i) above) if it determines
that withholding notice is in their interests.
16. TRUSTEE DEALINGS WITH THE COMPANY
Subject to certain limitations imposed by the TIA, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with and collect obligations owed
to it by the Company or its Affiliates and may otherwise deal with the Company
or its Affiliates with the same rights it would have if it were not Trustee.
17. NO RECOURSE AGAINST OTHERS
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Security, each
Securityholder waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Securities.
18. AUTHENTICATION
This Security shall not be valid until an authorized officer of the
Trustee manually signs the Trustee's Certificate of Authentication on the other
side of this Security.
19. ABBREVIATIONS
Customary abbreviations may be used in the name of a Securityholder or
an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with right of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
20. GOVERNING LAW
THE LAWS OF THE STATE OF ILLINOIS AND THE APPLICABLE FEDERAL LAWS OF
THE UNITED STATES SHALL GOVERN THE INDENTURE AND THIS SECURITY WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS.
--------------------
The Company will furnish to any Securityholder upon written request
and without charge a copy of the Indenture which has in it the text of this
Security in larger type. Requests may be made to:
Motorola, Inc.
1303 Algonquin Road
Schaumburg, Illinois 60196
Attention: Treasurer
<PAGE>
ASSIGNMENT FORM CONVERSION NOTICE
To assign this Security, fill To convert this Security into
in the form below: Common Stock of the Company,
check the box:
I or we assign and transfer ------
this Security to : :
: :
------------------------- ------
: :
------------------------- To convert only part of this
Security, state the Principal
(Insert assignee's soc. Amount to be converted (which
sec. or tax ID no.) must be $1,000 or an intregal
multiple of $1,000):
______________________________ -----------------------
______________________________ : $ :
______________________________ -----------------------
______________________________
(Print or type assignee's If you want the stock
name, address and zip code) certificate made out in
another person's name, fill in
and irrevocably appoint the form below:
_____________________ agent to ------------------------
transfer this Security on the : :
books of the Company. The ------------------------
agent may substitute another (Insert other person's soc.
to act for him. sec. or tax ID no.)
______________________________
______________________________
______________________________
______________________________
(Print or type other person's
name address and zip code)
- --------------------------------------------------------------------------------
Date:_____________________Your Signature:_______________________*
________________________________________________________________________________
(Sign exactly as your name appears on the other side of this Security)
* Your signature must be guaranteed by a commercial bank or trust company or
by a member or members' organization of the New York Stock Exchange or
American Stock Exchange.
<PAGE>
EXHIBIT 4(g)
[Form of Fixed Rate Redeemable or
Non-Redeemable Senior Security]
MOTOROLA, INC.
_____% Senior Note due
NO. ______________ $ ___________________
MOTOROLA, INC., a corporation duly organized and existing under the laws of
the State of Delaware (herein referred to as the "Company", which term shall
include any successor corporation), for value received, hereby promises to pay
to ___________, or registered assigns, the principal sum of ______________
Dollars on _________________, and to pay interest, if any, thereon from
______________ or from the most recent Interest Payment Date to which interest,
if any, has been paid or duly provided for, semi-annually on _____________ and
__________ in each year, commencing _________________ , at the rate of _______%
per annum, until the principal hereof is paid or duly provided for. Any
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in the Indenture hereinafter referred to, be paid
to the Person in whose name this Note (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the _______ or _________ (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for shall forthwith cease to be
payable to the registered Holder on such Regular Record Date and may either be
paid to the Person in whose name this Note (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee referred to on
the reverse hereof, notice of which shall be given to Holders of Securities of
this series not less than 10 days prior to such Special Record Date, or may be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this series
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in such Indenture.
<PAGE>
Payment of the principal of (and premium, if any) and interest, if any, on
this Note will be made at the office or agency of the Company maintained for
that purpose in the City of Chicago, in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts; PROVIDED, HOWEVER, that at the option of the Company
payment of interest, if any, may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register or
by transfer to an account maintained by the payee inside the United States.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place. This Note is one of a series of
Securities designated _____% Senior Notes due _______.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Note shall
not be entitled to any benefit under the Indenture, or be valid or obligatory
for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed by its Vice Chairman and Chief Executive Officer, President or one of
its Vice Presidents, manually or in facsimile, and a facsimile of its corporate
seal to be imprinted hereon, and attested by a manual or facsimile signature of
its Secretary or one of its Assistant Secretaries.
Dated: _________________________
MOTOROLA, INC.
By ________________________________
Attest:
_____________________________
Secretary
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series referred to in the within-mentioned
Indenture.
--------------------------------------------
as Trustee
By
-----------------------------------------
Authorized Officer
[Reverse of Certificate]
MOTOROLA, INC.
__________% Senior Note due __________
This Note is one of a duly authorized issue of securities of the Company
(herein called the "Securities"), issued and to be issued in one or more series
under an Indenture dated as of ________ , 199__ (herein called the "Indenture")
between the Company and ___________________________________________________, as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture with respect to the series of which this Note is a part), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered.
If an Event of Default, as defined in the Indenture, shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.
[IF APPLICABLE, INSERT-- The Securities of this series may not be redeemed
prior to the date of Maturity.]
<PAGE>
[IF APPLICABLE, INSERT-- The Securities of this series are subject to
redemption [(1)] [IF APPLICABLE. INSERT -- on ________ in any year commencing
with the year ____ and ending with the year _____ through operation of the
sinking fund for this series at a Redemption Price equal to 100% of the
principal amount, [and] (2)] [IF APPLICABLE. INSERT -- at any time [on or after
_______], as a whole or in part, at the election of the Company, at the
following Redemption Prices (expressed as percentages of the principal amount):
If redeemed on or before __________ , ____ %, and if redeemed] during the 12-
month period beginning __________ of the years indicated,
Year Redemption Price Year Redemption Price
- ---- ---------------- ---- ----------------
and thereafter at a Redemption Price equal to _____% of the principal amount,
together in the case of any such redemption [IF APPLICABLE, INSERT -- (whether
through operation of the sinking fund or otherwise)] with accrued interest, if
any, to the Redemption Date; PROVIDED, HOWEVER, that installments of interest on
this Note whose Stated Maturity is on or prior to such Redemption Date will be
payable to the Holder of this Note, or one or more Predecessor Securities, of
record at the close of business on the relevant Record Dates referred to on the
face hereof, all as provided in the Indenture.]
[IF APPLICABLE, INSERT -- The Securities of this series are subject to
redemption (1) on _____________ in any year commencing with the year ______ and
ending with the year _____ through operation of the sinking fund for this series
at the Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table below,
and (2) at any time [on or after _____________], as a whole or in part, at the
election of the Company, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the 12-month period
beginning _________ of
<PAGE>
the years indicated,
REDEMPTION PRICE REDEMPTION PRICE FOR
FOR REDEMPTION REDEMPTION OTHERWISE
THROUGH OPERATION THAN THROUGH OPERATION
YEAR OF THE SINKING FUND OF THE SINKING FUND
- ---- ------------------- ----------------------
and thereafter at a Redemption Price equal to ______ % of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest, if any, to the Redemption
Date; PROVIDED, HOWEVER, that installments of interest on this Note whose
Stated Maturity is on or prior to such Redemption Date will be payable to the
Holder of this Note, or one or more Predecessor Securities, of record at the
close of business on the relevant Record Dates referred to on the face hereof,
all as provided in the Indenture.]
[The sinking fund for this series provides for the redemption on
__________________ in each year, beginning with the year ______ and ending with
the year _______, of [not less than] $ ________ [("mandatory sinking fund") and
not more than $__________] aggregate principal amount of Securities of this
series. [Securities of this series acquired or redeemed by the Company
otherwise than through [mandatory] sinking fund payments may be credited against
subsequent [mandatory] sinking fund payments otherwise required to be made in
the [DESCRIBE ORDER] order in which they become due.]]
[Notice of redemption will be given by mail to Holders of Securities, not
less than 30 nor more than 60 days prior to the date fixed for redemption, all
as provided in the Indenture.]
[In the event of redemption of this Note in part only, a new Security or
Securities of this series for the unredeemed portion hereof shall be issued in
the name of the Holder hereof upon the cancellation hereof.]
[IF APPLICABLE, INSERT-- Subject to and upon compliance with the provisions
of the Indenture and any indenture supplemental thereto, Board Resolution or
Officers' Certificate related hereto, the Holder hereof has the right, at his
option, to [convert] [exchange] this Note into [NAME THE SECURITY] of the
Company at any time before the close of business on _______.]
<PAGE>
[If this Note is called for redemption, the Holder may [convert] [exchange]
it at any time before the close of business on the Redemption Date by delivering
the Note for [conversion] [exchange] in accordance with the redemption notice.]
The initial [conversion] [exchange] price is $________ per [share], subject to
adjustment in certain events as more fully described in the Indenture or the
applicable supplemental indenture, Board Resolution or Officers' Certificate
relating hereto.]
[To [convert][exchange] this Note, a Holder must (1) complete and sign the
[Conversion] [Exchange] Notice as provided herein on the back of the Note, (2)
surrender the Note to the Company at the office or agency of the Company
maintained for that purpose in Chicago, Illinois, (3) furnish appropriate
endorsements and transfer documents if required by the Company and/or the
Trustee, and (4) pay any transfer or similar tax if required.]
[As more fully described in the Indenture or the applicable supplemental
indenture, Board Resolution or Officers' Certificate relating hereto, if the
Company is a party to a consolidation or merger or a transfer of all or
substantially all of its assets, the right to [convert] [exchange] this Note
[into] [for] [Common Stock] may be changed into a right to [convert] [exchange]
it [into] [for] securities, cash or other assets of the Company or another
person.]]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights of the Holders of the
Securities under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of not less than 66-2/3% in principal amount of all
Outstanding Securities of each series affected thereby. The Indenture also
contains provisions permitting the Holders of not less than a majority in
principal amount of the Outstanding Securities of any series, on behalf of the
Holders of all the outstanding Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture. Provisions in the
Indenture also permit the Holders of not less than a majority in principal
amount of the Outstanding Securities of individual series to waive on behalf of
all of the Holders of Securities of such individual series certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of
<PAGE>
this Note shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Security of this series issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note.
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 (and premium, if any) and
interest, if any, on this Note at the times, places and rate, and in the coin or
currency, herein prescribed.
[The Indenture contains provisions that apply to the Securities of this
series for defeasance at any time of (a) the entire indebtedness of the Company
on the Securities of the series of which this Note forms a part and (b) certain
restrictive covenants and the related defaults and Events of Default with
respect to the Securities of the series of which this Note forms a part, upon
compliance by the Company with certain conditions set forth therein.]
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note is registrable in the Security Register of the
Company, upon surrender of this Note for registration of transfer at the office
or agency of the Company in any place where the principal of (and premium, if
any) and interest, if any, on this Note are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or by his
or her attorney duly authorized in writing, and thereupon one or more new
Securities of this series, of any authorized denominations and of a like
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $ ________ and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series of any different authorized denominations, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to
<PAGE>
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Note which are not defined herein but are defined in
the Indenture shall have the meanings assigned to them in the Indenture.
IF APPLICABLE, INSERT THE FOLLOWING:
[CONVERSION] [EXCHANGE] NOTICE
TO MOTOROLA, INC.
The undersigned Holder of this Note hereby irrevocably exercises the option
to [convert] [exchange] this Note, or portion hereof below designated, [into]
[for] [shares] of [name of security] of Motorola, Inc. in accordance with the
terms of the Indenture referred to in this Note, and in accordance with the
applicable supplemental indenture, Board Resolution or Officers' Certificate, as
the case may be, and directs that the [shares] issuable and deliverable upon the
[conversion] [exchange], together with any check in payment for fractional
[shares] and any Notes representing any unconverted principal amount hereof, be
issued and delivered to the Holder hereof unless a name of a person has been
indicated below. If [shares] are to be issued in the name of a person other
than the undersigned, the undersigned Holder will pay all transfer taxes payable
with respect thereto. Any amount required to be paid by the undersigned on
account of interest accompanies this Note.
<PAGE>
Date: ______________________________ ____________________________________
Signature
Fill in for registration of Principal Amount to be converted
shares: (in an integral multiple of $______, if
____________________________________ less than all):
____________________________________
____________________________________ $ ___________________
____________________________________
Please print name
_______________________________________
____________________________________ Social Security or other Taxpayer
Please print address Identification Number
(including zip code)
<PAGE>
EXHIBIT 4(h)
[Form of Fixed Rate Redeemable or
Non-Redeemable Subordinated Security]
MOTOROLA, INC.
_____% Subordinated Note due _____
No. ______________ $__________________
MOTOROLA, INC., a corporation duly organized and existing under the laws of
the State of Delaware (herein referred to as the "Company", which term shall
include any successor corporation), for value received, hereby promises to pay
to ___________________________________________________________________, or
registered assigns, the principal sum of ______________Dollars on__________, and
to pay interest, if any, thereon from _______________ or from the most recent
Interest Payment Date to which interest, if any, has been paid or duly provided
for, semi-annually on ______________ and ______________ in each year, commencing
____________________, at the rate of ____% per annum, until the principal hereof
is paid or duly provided for. Any interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in the
Indenture hereinafter referred to, be paid to the Person in whose name this Note
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the _________ or
____________ (whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date. Any such interest not so punctually paid or duly
provided for shall forthwith cease to be payable to the registered Holder on
such Regular Record Date and may either be paid to the Person in whose name this
Note (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee referred to on the reverse hereof, notice of which shall
be given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or may be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in such Indenture.
<PAGE>
Payment of the principal of (and premium, if any) and interest, if any, on
this Note will be made at the office or agency of the Company maintained for
that purpose in the City of Chicago, in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts; PROVIDED, HOWEVER, that at the option of the Company
payment of interest, if any, may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register or
by transfer to an account maintained by the payee inside the United States.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place. This Note is one of a series of
Securities designated _______% Subordinated Notes due _____.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Note shall
not be entitled to any benefit under the Indenture, or be valid or obligatory
for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed by its Vice Chairman and Chief Executive Officer, President or one of
its Vice Presidents, manually or in facsimile, and a facsimile of its corporate
seal to be imprinted hereon, and attested by a manual or facsimile signature of
its Secretary or one of its Assistant Secretaries.
Dated: _____________________________
MOTOROLA, INC.
By _________________________________________
Attest:
________________________________________________
Secretary
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series referred to in the within-mentioned
Indenture.
_______________________________________________
as Trustee
By ___________________________________________
Authorized Officer
[Reverse of Certificate]
MOTOROLA, INC.
_____% Subordinated Notes due ______
This Note is one of a duly authorized issue of subordinated securities of
the Company (herein called the "Securities"), issued and to be issued in one or
more series under an Indenture dated as of
__________ , 199__ (herein called the "Indenture") between the Company and
_____________________ as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture with respect to the series of
which this Note is a part), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee, the holders of Senior Indebtedness and the Holders of the Securities,
and of the terms upon which the Securities are, and are to be, authenticated and
delivered.
If an Event of Default, as defined in the Indenture, shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.
[IF APPLICABLE, INSERT-- The Securities of this series may not be redeemed
prior to Maturity]
<PAGE>
[IF APPLICABLE INSERT-- The Securities of this series are subject to
redemption [(1)] [IF APPLICABLE. INSERT -- on ____________ in any year
commencing with the year _______ and ending with the year _______ through
operation of the sinking fund for this series at a Redemption Prices equal to
100% of the principal amount, [and (2)] [IF APPLICABLE, INSERT -- at any time
[on or after ________], as a whole or in part, at the election of the Company,
at the following Redemption Prices (expressed as percentages of the principal
amount): If redeemed on or before ________, ________%, and if redeemed] during
the 12-month period beginning _____________ of the years indicated,
Year Redemption Price Year Redemption Price
- ---- ---------------- ---- ----------------
and thereafter at a Redemption Price equal to ____ % of the principal amount,
together in the case of any such redemption [IF APPLICABLE, INSERT -- (whether
through operation of the sinking fund or otherwise)] with accrued interest, if
any, to the Redemption Date; PROVIDED, HOWEVER, that installments of interest on
this Note whose Stated Maturity is on or prior to such Redemption Date will be
payable to the Holder of this Note, or one or more Predecessor Securities, of
record at the close of business on the relevant Record Dates referred to on the
face hereof, all as provided in the Indenture.]
[IF APPLICABLE, INSERT -- The Securities of this series are subject to
redemption (1) on __________ in any year commencing with the year ______ and
ending with the year ___ through operation of the sinking fund for this series
at the Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table below,
and (2) at any time [on or after ______________], as a whole or in part, at the
election of the Company, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund
<PAGE>
(expressed as percentages of the principal amount) set forth in the table below:
If redeemed during the 12-month period beginning ____________ of the years
indicated,
REDEMPTION PRICE REDEMPTION PRICE FOR
FOR REDEMPTION REDEMPTION OTHERWISE
THROUGH OPERATION THAN THROUGH OPERATION
YEAR OF THE SINKING FUND OF THE SINKING FUND
- ---- ------------------- -----------------------
and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise)] with accrued interest, if any, to the Redemption
Date; PROVIDED, HOWEVER, that installments of interest on this Note whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holder of
this Note, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]
[The sinking fund for this series provides for the redemption on
______________ in each year, beginning with the year ____ and ending with the
year _____, of [not less than] $ ________ [("mandatory sinking fund") and not
more than $ ________ aggregate principal amount of Securities of this series.
[Securities of this series acquired or redeemed by the Company otherwise than
through [mandatory] sinking fund payments may be credited against subsequent
[mandatory] sinking fund payments otherwise required to be made in the DESCRIBE
ORDER] order in which they become due.]]
[Notice of redemption will be given by mail to Holders of Securities, not
less than 30 nor more than 60 days prior to the date fixed for redemption, all
as provided in the Indenture.]
[In the event of redemption of this Note in part only, a new Security or
Securities of this series for the unredeemed portion hereof shall be issued in
the name of the Holder hereof upon the cancellation hereof.]
[IF APPLICABLE, INSERT-- Subject to and upon compliance with the provisions
of the Indenture and any indenture supplemental thereto, Board Resolution or
Officers' Certificate related hereto, the Holder hereof has the right, at his
option, to [convert] [exchange] this Note into [NAME THE SECURITY] of the
Company at any time before the close of business on _______.]
<PAGE>
[If this Note is called for redemption, the Holder may [convert] [exchange]
it at any time before the close of business on the Redemption Date by delivering
the Note for [conversion] [exchange] in accordance with the redemption notice.]
The initial [conversion] [exchange] price is $ ________ per [share], subject to
adjustment in certain events as more fully described in the Indenture or the
applicable supplemental indenture, Board Resolution or Officers' Certificate
relating hereto.
[To [convert][exchange] this Note, a Holder must (l) complete and sign the
[Conversion] [Exchange] Notice as provided herein on the back of the Note, (2)
surrender the Note to the Company at the office or agency of the Company
maintained for that purpose in the City of Chicago, (3) furnish appropriate
endorsements and transfer documents if required by the Company and/or the
Trustee, and (4) pay any transfer or similar tax if required.]
[As more fully described in the Indenture or the applicable supplemental
indenture, Board Resolution or Officers' Certificate relating hereto, if the
Company is a party to a consolidation or merger or a transfer of all or
substantially all of its assets, the right to [convert][exchange] this Note
[into] [for] [Common Stock] may be changed into a right to [convert][exchange]
it [into] [for] securities, cash or other assets of the Company or another
person.]]
The indebtedness evidenced by the Securities is, to the extent and in the
manner set forth in the Indenture, expressly subordinated in right of payment to
the prior payment in full of all Senior Indebtedness, and this Note is issued
subject to such provisions of the Indenture. Each Holder of this Note, by
accepting the same, agrees to and shall be bound by such provisions of the
Indenture and authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate such subordination as
provided in the Indenture and appoints the Trustee his attorney-in-fact for any
and all such purposes.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights of the Holders of the
Securities under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of not less than 66-2/3% in principal amount of all
Outstanding Securities of each series affected
<PAGE>
thereby. The Indenture also contains provisions permitting the Holders of not
less than a majority in principal amount of the Outstanding Securities of any
series, on behalf of the Holders of all the Outstanding Securities of such
series, to waive compliance by the Company with certain provisions of the
Indenture. Provisions in the Indenture also permit the Holders of not less than
a majority in principal amount of the Outstanding Securities of individual
series to waive on behalf of all of the Holders of Securities of such individual
series certain past defaults under the Indenture and their consequences. Any
such consent or waiver by the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Security of this series issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Note.
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 (and premium, if any) and
interest, if any, on this Note at the times, places and rate, and in the coin or
currency, herein prescribed.
[The Indenture contains provisions that apply to the Securities of this
series for defeasance at any time of (a) the entire indebtedness of the Company
on the Securities of the series of which this Note forms a part and (b) certain
restrictive covenants and the related defaults and Events of Default with
respect to the Securities of the series of which this Note forms a part, upon
compliance by the Company with certain conditions set forth therein.]
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note is registrable in the Security Register of the
Company, upon surrender of this Note for registration of transfer at the office
or agency of the Company in any place where the principal of (and premium, if
any) and interest, if any, on this Note are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or by his
or her attorney duly authorized in writing, and thereupon one or more new
Securities of this series, of any authorized denominations and of a like
aggregate principal amount, will be issued to the designated transferee or
transferees.
<PAGE>
The Securities of this series are issuable only in registered form without
coupons in denominations of $ and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series of any different authorized denominations,
as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Note which are not defined herein but are defined in
the Indenture shall have the meanings assigned to them in the Indenture.
IF APPLICABLE, INSERT THE FOLLOWING:
[CONVERSION] [EXCHANGE] NOTICE
TO MOTOROLA, INC.
The undersigned Holder of this Note hereby irrevocably exercises the option
to [convert] [exchange] this Note, or portion hereof below designated, [into]
[for] [shares] of [NAME THE SECURITY] of Motorola, Inc. in accordance with the
terms of the Indenture referred to in this Note, and in accordance with the
applicable supplemental indenture, Board Resolution or Officers' Certificate, as
the case may be, and directs that the [shares] issuable and deliverable upon the
[conversion] [exchange], together with any check in payment for fractional
[shares] and any Notes representing any unconverted principal amount hereof, be
issued and delivered to the
<PAGE>
Holder hereof unless a name of a person has been indicated below. If [shares]
are to be issued in the name of a person other than the undersigned, the
undersigned Holder will pay all transfer taxes payable with respect thereto.
Any amount required to be paid by the undersigned on account of interest
accompanies this Note.
Date: _____________________________
Fill in for registration of shares:
___________________________________
___________________________________
___________________________________
___________________________________
Please print name
___________________________________
Please print address
(including zip code)
___________________________________
Signature
Principal Amount to be
converted
(in an integral multiple of
$______, if less than all):
$
___________________________________
___________________________________
Social Security or Other
Taxpayer Identification
Number
<PAGE>
EXHIBIT 4(i)
________________________________________________________________________________
DEBT WARRANT AGREEMENT*
Dated as of _____________ __, 199_
for
_____________________________
between
MOTOROLA, INC.
and
[NAME OF DEBT WARRANT AGENT], as
Debt Warrant Agent
________________________________________________________________________________
*OPTIONS REPRESENTED BY BRACKETED OR BLANK SECTIONS HEREIN SHALL BE DETERMINED
IN CONFORMITY WITH THE APPLICABLE PROSPECTUS SUPPLEMENT OR SUPPLEMENTS
<PAGE>
TABLE OF CONTENTS* PAGE
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I
ISSUANCE OF DEBT WARRANTS AND EXECUTION AND DELIVERY
OF DEBT WARRANT CERTIFICATES
SECTION 1.01. ISSUANCE OF DEBT WARRANTS . . . . . . . . . . . . . . . . 1
SECTION 1.02. FORM AND EXECUTION OF DEBT WARRANT
CERTIFICATES . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 1.03. ISSUANCE AND DELIVERY OF DEBT WARRANT
CERTIFICATES . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 1.04. TEMPORARY DEBT WARRANT CERTIFICATES . . . . . . . . . . . 4
SECTION 1.05. PAYMENT OF TAXES . . . . . . . . . . . . . . . . . . . . . 5
SECTION 1.06. "HOLDER" . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE II
DURATION AND EXERCISE OF DEBT WARRANTS
SECTION 2.01. DURATION OF DEBT WARRANTS . . . . . . . . . . . . . . . . 6
SECTION 2.02. EXERCISE OF DEBT WARRANTS . . . . . . . . . . . . . . . . 6
SECTION 2.03. EXPIRATION DATE . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
OF DEBT WARRANTS
SECTION 3.01. NO RIGHTS AS HOLDER OF UNDERLYING DEBT
SECURITY CONFERRED BY DEBT WARRANTS OR DEBT
WARRANT CERTIFICATES . . . . . . . . . . . . . . . . . . . 8
SECTION 3.02. LOST, STOLEN, DESTROYED OR MUTILATED DEBT
WARRANT CERTIFICATES . . . . . . . . . . . . . . . . . . . 8
_________________
*-The Table of Contents is not part of the Debt Warrant Agreement.
<PAGE>
PAGE
SECTION 3.03. HOLDER OF DEBT WARRANTS MAY ENFORCE RIGHTS . . . . . . . . 9
SECTION 3.04. MERGER, CONSOLIDATION, SALE, TRANSFER OR
CONVEYANCE; RIGHTS AND DUTIES OF SUCCESSOR
CORPORATION . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE IV
EXCHANGE AND TRANSFER OF DEBT WARRANTS
SECTION 4.01. [DEBT WARRANT REGISTER;] EXCHANGE AND
TRANSFER OF DEBT WARRANTS . . . . . . . . . . . . . . . . 10
SECTION 4.02. TREATMENT OF HOLDERS OF DEBT WARRANT
CERTIFICATES . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 4.03. CANCELLATION OF DEBT WARRANT CERTIFICATES . . . . . . . . 12
ARTICLE V
CONCERNING THE DEBT WARRANT AGENT
SECTION 5.01. DEBT WARRANT AGENT . . . . . . . . . . . . . . . . . . . . 12
SECTION 5.02. CONDITIONS OF DEBT WARRANT AGENT'S
OBLIGATIONS . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 5.03. COMPLIANCE WITH APPLICABLE LAWS . . . . . . . . . . . . . 15
SECTION 5.04. RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 5.05. OFFICE . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. SUPPLEMENTS AND AMENDMENTS . . . . . . . . . . . . . . . . 18
SECTION 6.02. NOTICES AND DEMANDS TO THE COMPANY AND
DEBT WARRANT AGENT . . . . . . . . . . . . . . . . . . . . 19
SECTION 6.03. ADDRESSES . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 6.04. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . 19
<PAGE>
PAGE
SECTION 6.05. GOVERNMENTAL APPROVALS . . . . . . . . . . . . . . . . . . 20
SECTION 6.06. PERSONS HAVING RIGHTS UNDER DEBT WARRANT
AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 6.07. DELIVERY OF PROSPECTUS . . . . . . . . . . . . . . . . . . 20
SECTION 6.08. HEADINGS . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 6.09 COUNTERPARTS . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 6.10. INSPECTION OF AGREEMENT . . . . . . . . . . . . . . . . . 21
SECTION 6.11. FURTHER INSTRUMENTS . . . . . . . . . . . . . . . . . . . 21
SECTION 6.12. SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 6.13. WAIVER . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 6.14. TERMINATION . . . . . . . . . . . . . . . . . . . . . . . 21
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
EXHIBIT A . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
<PAGE>
THIS DEBT WARRANT AGREEMENT, dated as of _______________ , between Motorola,
Inc., a Delaware corporation (the "Company"), and
_____________________, a _________________ organized and existing under the laws
of _____________, as warrant agent (the "Debt Warrant Agent").
WHEREAS, the Company has entered into an Indenture dated as of
_______________, 19___ (the "Indenture") with [____________________________
______________________], as trustee (the "Trustee"), providing for the issuance
by the Company from time to time, in one or more series, of debt securities
evidencing its unsecured, [senior] [subordinated] indebtedness (such debt
securities, being referred to as the "Securities"); and
WHEREAS, the Company proposes to issue warrants (the "Debt Warrants")
representing the right to purchase Debt Securities of one or more series (the
"Underlying Debt Securities"); and
WHEREAS, the Company has duly authorized the execution and delivery of this
Debt Warrant Agreement to provide for the issuance of Debt Warrants to be
exercisable at such times and for such prices, and to have such other
provisions, as shall be fixed as hereinafter provided;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE OF DEBT WARRANTS AND EXECUTION AND DELIVERY
OF DEBT WARRANT CERTIFICATES
SECTION 1.01. ISSUANCE OF DEBT WARRANTS. Debt Warrants may be issued from
time to time, together with or separately from any other securities of the
Company (the "Offered Securities"). Prior to the issuance of any Debt Warrants,
there shall be established by or pursuant to a resolution or resolutions duly
adopted by the Company's Board of Directors or by any committee thereof duly
authorized to act with respect thereto (a "Board Resolution"):
(1) The title and aggregate number of such Debt Warrants.
1
<PAGE>
(2) The offering price of such Debt Warrants.
(3) The title, aggregate principal amount, ranking and terms (including any
subordination provisions and conversion or exchange provisions) of the
Underlying Debt Securities that may be purchased upon exercise of such Debt
Warrants.
(4) The principal amount of Underlying Debt Securities that may be
purchased upon exercise of each Debt Warrant and the price, or the manner of
determining the price (the "Debt Warrant Price"), at which such principal amount
may be purchased upon such exercise.
(5) The time or times at which, or period or periods during which, such
Debt Warrants may be exercised, the final date on which such Debt Warrants may
be exercised (the "Expiration Date") and whether the Expiration Date may be
postponed by notice sent by the Company to all Holders of Debt Warrants.
(6) The terms of any right to redeem or accelerate the exercisability of
such Debt Warrants.
(7) Whether the warrant certificates evidencing such Debt Warrants (the
"Debt Warrant Certificates") will be issued in registered or bearer form, and,
if registered, where they may be transferred or exchanged.
(8) Whether such Debt Warrants are to be issued with any (a) Debt
Securities and, if so, the title, aggregate principal amount and terms of any
such Debt Securities and the number of such Debt Warrants to be issued with each
$1,000 principal amount of such Debt Securities (or such other principal amount
of such Debt Securities as is provided for in the Board Resolution) or (b) any
other securities and, if so, the number and terms thereof.
(9) The date, if any, on and after which such Debt Warrants and such Debt
Securities or other securities will be separately transferable (the "Detachable
Date").
(10) Any other terms of such Debt Warrants not inconsistent with the
provisions of this Agreement.
2
<PAGE>
SECTION 1.02. FORM AND EXECUTION OF DEBT WARRANT CERTIFICATES. (a) The Debt
Warrants shall be evidenced by the Debt Warrant Certificates, which shall be
substantially in such form or forms as shall be established by or pursuant to a
Board Resolution. Each Debt Warrant Certificate, whenever issued, shall be dated
the date it is countersigned by the Debt Warrant Agent and may have such
letters, numbers or other identifying marks and such legends or endorsements
printed, lithographed or engraved thereon as are not inconsistent with the
provisions of this Agreement, or as may be required to comply with any law, rule
or regulation or with any rule or regulation of any securities exchange on which
the Debt Warrants may be listed, or to conform to usage, as the officer of the
Company executing the same may approve (such officer's execution thereof to be
conclusive evidence of such approval). Each Debt Warrant Certificate shall
evidence one or more Debt Warrants.
(b) The Debt Warrant Certificates shall be signed in the name and on behalf
of the Company by its Vice Chairman and Chief Executive Officer, President or
any elected Vice President under its corporate seal, and attested by its
Secretary or an Assistant Secretary. Such signatures may be manual or facsimile
signatures of the present or any future holder of any such office and may be
imprinted or otherwise reproduced on the Debt Warrant Certificates. The seal of
the Company may be in the form of a facsimile thereof and may be impressed,
affixed, imprinted or otherwise reproduced on the Debt Warrant Certificates.
(c) No Debt Warrant Certificate shall be valid for any purpose, and no Debt
Warrant evidenced thereby shall be deemed issued or exercisable, until such Debt
Warrant Certificate has been countersigned by the manual or facsimile signature
of the Debt Warrant Agent. Such signature by the Debt Warrant Agent upon any
Debt Warrant Certificate executed by the Company shall be conclusive evidence
that the Debt Warrant Certificate so countersigned has been duly issued
hereunder.
(d) In case any officer of the Company who shall have signed any Debt
Warrant Certificate either manually or by facsimile signature shall cease to be
such officer before the Debt Warrant Certificate so signed shall have been
countersigned and delivered by the Debt Warrant Agent, such Debt Warrant
Certificate nevertheless may be countersigned and
3
<PAGE>
delivered as though the person who signed such Debt Warrant Certificate had not
ceased to be such officer of the Company; and any Debt Warrant Certificate may
be signed on behalf of the Company by such person as, at the actual date of the
execution of such Debt Warrant Certificate, shall be the proper officer of the
Company, although at the date of the execution of this Agreement such person was
not such an officer.
SECTION 1.03. ISSUANCE AND DELIVERY OF DEBT WARRANT CERTIFICATES. At any
time and from time to time after the execution and delivery of this Agreement,
the Company may deliver Debt Warrant Certificates executed by the Company to the
Debt Warrant Agent for countersignature. Except as provided in the following
sentence, the Debt Warrant Agent shall thereupon countersign and deliver such
Debt Warrant Certificates to or upon the written request of the Company.
Subsequent to the original issuance of a Debt Warrant Certificate evidencing
Debt Warrants, the Debt Warrant Agent shall countersign a new Debt Warrant
Certificate evidencing such Debt Warrants only if such Debt Warrant Certificate
is issued in exchange or substitution for one or more previously countersigned
Debt Warrant Certificates evidencing such Debt Warrants or in connection with
their transfer, as hereinafter provided.
SECTION 1.04. TEMPORARY DEBT WARRANT CERTIFICATES. Pending the preparation
of definitive Debt Warrant Certificates, the Company may execute, and upon the
order of the Company the Debt Warrant Agent shall countersign and deliver,
temporary Debt Warrant Certificates that are printed, lithographed, typewritten,
mimeographed or otherwise produced, substantially of the tenor of the definitive
Debt Warrant Certificates in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officer executing such Debt Warrant Certificates may determine, as evidenced by
such officer's execution of such Debt Warrant Certificates.
If temporary Debt Warrant Certificates are issued, the Company will cause
definitive Debt Warrant Certificates to be prepared without unreasonable delay.
After the preparation of definitive Debt Warrant Certificates, the temporary
Debt Warrant Certificates shall be exchangeable for definitive Debt Warrant
Certificates upon surrender of the temporary Debt Warrant Certificates at the
corporate trust office of the Debt Warrant Agent [or ____________ ], without
charge to the Holder (as
4
<PAGE>
defined in Section 1.06 hereof). Upon surrender for cancellation of any one or
more temporary Debt Warrant Certificates, the Company shall execute and the Debt
Warrant Agent shall countersign and deliver in exchange therefor definitive Debt
Warrant Certificates representing the same aggregate number of Debt Warrants.
Until so exchanged, the temporary Debt Warrant Certificates shall in all
respects be entitled to the same benefits under this Agreement as definitive
Debt Warrant Certificates.
SECTION 1.05. PAYMENT OF TAXES. The Company will pay all stamp and other
similar duties, if any, to which this Agreement or the original issuance of the
Debt Warrants or Debt Warrant Certificates may be subject under the laws of the
United States of America or any state or locality. The Company is not
responsible for the payment of any other taxes.
SECTION 1.06. "HOLDER". The term "Holder" or "Holders", as used herein
with reference to a Debt Warrant Certificate, shall mean [IF REGISTERED DEBT
WARRANTS-- the person or persons in whose name such Debt Warrant Certificate
shall then be registered as set forth in the Debt Warrant Register to be
maintained by the Debt Warrant Agent pursuant to Section 4.01 for that purpose]
[IF BEARER DEBT WARRANTS-- the bearer of such Debt Warrant Certificate] or, in
the case of Debt Warrants that are issued with Debt Securities and cannot then
be transferred separately therefrom, [IF REGISTERED OFFERED SECURITIES AND DEBT
WARRANTS THAT ARE NOT THEN DETACHABLE-- the person or persons in whose name the
related Offered Securities shall be registered as set forth in the security
register to be maintained by the security registrar for such Offered Securities]
[IF BEARER OFFERED SECURITIES AND DEBT WARRANTS THAT ARE NOT THEN DETACHABLE--
the bearer of the certificate representing the related Offered Security], prior
to the Detachable Date. [IF REGISTERED OFFERED SECURITIES AND DEBT WARRANTS THAT
ARE NOT THEN DETACHABLE-- The Company will, or will cause the security registrar
of any such Offered Securities to, make available to the Debt Warrant Agent at
all times (including on and after the Detachable Date, in the case of Debt
Warrants originally issued with Offered Securities and not subsequently
transferred separately therefrom) such information as to holders of Offered
Securities with Debt Warrants attached as may be necessary to keep the Debt
Warrant Register up to date.]
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ARTICLE II
DURATION AND EXERCISE OF DEBT WARRANTS
SECTION 2.01. DURATION OF DEBT WARRANTS. Each Debt Warrant may be exercised
at the time or times, or during the period or periods, provided by or pursuant
to the Board Resolution relating thereto and specified in the Debt Warrant
Certificate evidencing such Debt Warrant. Each Debt Warrant not exercised at or
before 5:00 P.M., New York City time, on its Expiration Date shall become void,
unless such Expiration Date has been postponed by notice sent to all Holders of
Debt Warrants as provided in Section 2.03, and all rights of the Holder of such
Debt Warrant thereunder and under this Agreement shall cease.
SECTION 2.02. EXERCISE OF DEBT WARRANTS.
(a) The Holder of a Debt Warrant shall have the right, at its option, to
exercise such Debt Warrant and, subject to subsection (f) of this Section 2.02,
purchase the principal amount of Underlying Debt Securities provided for therein
at the time or times or during the period or periods referred to in Section 2.01
and specified in the Debt Warrant Certificate evidencing such Debt Warrant.
Except as may be provided in a Debt Warrant Certificate, a Debt Warrant may be
exercised by completing the form of election to purchase set forth on the
reverse side of the Debt Warrant Certificate, by duly executing and delivering
the same, together with payment in full of the Debt Warrant Price in lawful
money of the United States of America, in cash or by certified or official bank
check or by bank wire transfer, or in property, in the manner provided by or
pursuant to the Board Resolution relating thereto and specified in the Debt
Warrant Certificate evidencing such Debt Warrant, to the Debt Warrant Agent.
Except as may be provided in a Debt Warrant Certificate, the date on which such
Debt Warrant Certificate and payment are received by the Debt Warrant Agent as
aforesaid shall be deemed to be the date on which the Debt Warrant is exercised
and the Underlying Debt Securities issued.
(b) Upon the exercise of a Debt Warrant, the Company shall issue, pursuant
to the Indenture, in authorized denominations to or upon the order of the Holder
of such Debt Warrant, the Underlying Debt Securities to which such Holder is
entitled, in the form required under such
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Indenture, registered, in the case of Underlying Debt Securities in registered
form, in such name or names as may be directed by such Holder.
(c) If fewer than all of the Debt Warrants evidenced by a Debt Warrant
Certificate are exercised, the Company shall execute, and an authorized officer
of the Debt Warrant Agent shall countersign and deliver, a new Debt Warrant
Certificate evidencing the number of Debt Warrants remaining unexercised.
(d) The Debt Warrant Agent shall deposit all funds received by it in
payment of the Debt Warrant Price in the account of the Company maintained with
it for such purpose and shall advise the Company by telephone by 5:00 P.M., New
York City time, of each day on which a payment of the Debt Warrant Price for
Debt Warrants is received of the amount so deposited in its account. The Debt
Warrant Agent shall promptly confirm such telephone advice in writing to the
Company.
(e) The Debt Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company and the Trustee of (i) the number of Debt
Warrants of each title exercised as provided herein, (ii) the instructions of
each Holder with respect to delivery of the Underlying Debt Securities to which
such Holder is entitled upon such exercise, (iii) the delivery of Debt Warrant
Certificates evidencing the balance, if any, of the Debt Warrants remaining
unexercised after such exercise, and (iv) such other information as the Company
or the Trustee shall reasonably require. Such notice may be given by telephone
to be promptly confirmed in writing.
(f) The Holder, and not the Company, shall be required to pay any stamp or
other tax or other governmental charge that may be imposed in connection with
any transfer involved in the issuance of the Underlying Debt Securities; and in
the event that any such transfer is involved, the Company shall not be required
to issue any Underlying Debt Securities (and the Holder's purchase of the
Underlying Debt Securities upon the exercise of such Holder's Debt Warrant shall
not be deemed to have been consummated) until such tax or other charge shall
have been paid or it has been established to the Company's satisfaction that no
such tax or other charge is due.
Section 2.03. EXPIRATION DATE. If contemplated by Section 1.01, the
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Company may postpone the Expiration Date by notice sent in accordance with the
provisions of Section 5.04(e) to all Holders of Debt Warrants at least 20 days
before the scheduled Expiration Date. Upon [IF REGISTERED DEBT WARRANTS--
mailing][IF BEARER DEBT WARRANTS-- publication] of such notice, the Expiration
Date for all outstanding Debt Warrants shall be the date specified in such
notice.
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
OF DEBT WARRANTS
SECTION 3.01. NO RIGHTS AS HOLDER OF UNDERLYING DEBT SECURITY CONFERRED BY
DEBT WARRANTS OR DEBT WARRANT CERTIFICATES. No Debt Warrant or Debt Warrant
Certificate shall entitle the Holder to any of the rights of a holder of
Underlying Debt Securities, including, without limitation, the right to receive
the payment of principal of (or premium, if any) or interest, if any, on
Underlying Debt Securities or to enforce any of the covenants in the Indenture.
SECTION 3.02. LOST, STOLEN, DESTROYED OR MUTILATED DEBT WARRANT
CERTIFICATES. Upon receipt by the Company and the Debt Warrant Agent of
evidence reasonably satisfactory to them of the ownership of and the loss,
theft, destruction or mutilation of any, Debt Warrant Certificate and of
indemnity (other than in connection with any mutilated Debt Warrant Certificates
surrendered to the Debt Warrant Agent for cancellation) reasonably satisfactory
to them, the Company shall execute, and the Debt Warrant Agent shall countersign
and deliver, in exchange for or in lieu of each lost, stolen, destroyed or
mutilated Debt Warrant Certificate, a new Debt Warrant Certificate evidencing a
like number of Debt Warrants of the same title. Upon the issuance of a new Debt
Warrant Certificate under this Section, the Company may require the payment of
a sum sufficient to cover any stamp or other similar tax or other governmental
charge that may be imposed in connection therewith and any other expenses
(including the fees and expenses of the Debt Warrant Agent) in connection
therewith. Every substitute Debt Warrant Certificate executed and delivered
pursuant to this Section in lieu of any lost, stolen or destroyed Debt Warrant
Certificate shall represent a contractual obligation of the Company, whether or
not such lost, stolen or destroyed Debt Warrant Certificate
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shall be at any time enforceable by anyone, and shall be entitled to the
benefits of this Agreement equally and proportionately with any and all other
Debt Warrant Certificates, duly executed and delivered hereunder, evidencing
Debt Warrants of the same title. The provisions of this Section are exclusive
and shall preclude (to the extent lawful) all other rights and remedies with
respect to the replacement of lost, stolen, destroyed or mutilated Debt Warrant
Certificates.
SECTION 3.03. HOLDER OF DEBT WARRANTS MAY ENFORCE RIGHTS. Notwithstanding
any of the provisions of this Agreement, a Holder, without the consent of the
Debt Warrant Agent, the Trustee, the holder of any Underlying Debt Securities or
the Holder of any other Debt Warrant, may, on its own behalf and for its own
benefit, enforce, and may institute and maintain any suit, action or proceeding
against the Company to enforce, or otherwise in respect of, its right to
exercise its Debt Warrant or Debt Warrants in the manner provided in this
Agreement and its Debt Warrant Certificate.
SECTION 3.04 MERGER, CONSOLIDATION, SALE, TRANSFER OR CONVEYANCE; RIGHTS
AND DUTIES OF SUCCESSOR CORPORATION.
(a) In case of any merger or consolidation of the Company or a sale,
transfer or conveyance of all or substantially all of its properties and assets
(collectively, an "Organic Change") occurring while any Debt Warrants are
outstanding, in accordance with the terms of the Indenture, and upon any
assumption of the duties and obligations of the Company by the successor
corporation, such successor corporation shall succeed to and be substituted for
the Company, with the same effect as if it had been named herein, and the
Company shall be relieved of any further obligation under this Agreement and the
Debt Warrants and may thereupon or at any time thereafter be dissolved, wound up
or liquidated. Such successor corporation thereupon shall cause to be signed,
and shall issue either in its own name or in the name of the Company, any or all
of the Underlying Debt Securities issuable pursuant to the terms hereof. All the
Underlying Debt Securities so issued shall in all respects have the same legal
rank and benefit under the Indenture as the Underlying Debt Securities
theretofore or thereafter issued in accordance with the terms of this Agreement
and the Indenture.
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In case of any Organic Change, such changes in phraseology and form (but
not in substance) may be made in the Underlying Debt Securities and the related
Debt Warrant Certificates thereafter to be issued as may be appropriate.
(b) The Debt Warrant Agent may request a written opinion of legal counsel
reasonably satisfactory to the Debt Warrant Agent as conclusive evidence that
any such merger, consolidation, sale, transfer or conveyance complies with the
provisions of this Section 3.04.
(c) In all other cases, the Company and the Debt Warrant Agent may treat
the registered Holder of a Debt Warrant Certificate as the absolute Holder
thereof for any purpose and as the person entitled to exercise the rights
represented by the Debt Warrants evidenced thereby, any notice to the contrary
notwithstanding.
ARTICLE IV
EXCHANGE AND TRANSFER OF DEBT WARRANTS
Section 4.01. [DEBT WARRANT REGISTER;] EXCHANGE AND TRANSFER OF DEBT
WARRANTS. [IF REGISTERED DEBT WARRANTS - The Debt Warrant Agent shall maintain,
at its corporate trust office [or at ____________], a register (the "Debt
Warrant Register") in which, upon the issuance of Debt Warrants, or on and after
the Detachable Date in the case of Debt Warrants not separately transferable
prior thereto, and, subject to such reasonable regulations as the Debt Warrant
Agent may prescribe, it shall register Debt Warrant Certificates and exchanges
and transfers thereof. The Debt Warrant Register shall be in written form or in
any other form capable of being converted into written form within a reasonable
time.]
Except as provided in the following sentence, upon surrender at the
corporate trust office of the Debt Warrant Agent [or at _________________], Debt
Warrant Certificates may be exchanged for one or more other Debt Warrant
Certificates evidencing the same aggregate number of Debt Warrants of the same
title, or may be transferred in whole or in part. A Debt Warrant Certificate
evidencing Debt Warrants that are not then transferable separately from the
Offered Security with which they were issued may be exchanged or transferred
prior to its Detachable Date only together with
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such Offered Security and only for the purpose of effecting, or in conjunction
with, an exchange or transfer of such Offered Security; and on or prior to the
Detachable Date, [IF REGISTERED OFFERED SECURITIES AND DEBT WARRANTS-- each
exchange or transfer of such Offered Security on the security register of the
Offered Securities shall operate also to exchange or transfer the related Debt
Warrants] [IF BEARER OFFERED SECURITIES AND DEBT WARRANTS-- an exchange or
transfer of possession of the related Offered Security shall operate also to
exchange or transfer the related Debt Warrants]. [IF REGISTERED DEBT WARRANTS
- -- A transfer shall be registered upon surrender of a Debt Warrant Certificate
to the Debt Warrant Agent at its corporate trust office [or at ________________]
for transfer, properly endorsed or accompanied by appropriate instruments of
transfer and written instructions for transfer, all in form satisfactory to the
Company and the Debt Warrant Agent.] Whenever a Debt Warrant Certificate is
surrendered for exchange or transfer, the Debt Warrant Agent shall countersign
and deliver to the person or persons entitled thereto one or more Debt Warrant
Certificates duly executed by the Company, as so requested. The Debt Warrant
Agent shall not be required to effect any exchange or transfer which will result
in the issuance of a Debt Warrant Certificate evidencing a fraction of a Debt
Warrant. All Debt Warrant Certificates issued upon any exchange or transfer of
a Debt Warrant Certificate shall be the valid obligations of the Company,
evidencing the same obligations, and entitled to the same benefits under this
Agreement, as the Debt Warrant Certificate surrendered for such exchange or
transfer.
No service charge shall be made for any exchange or transfer of Debt
Warrants, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any such
exchange or transfer, in accordance with Section 2.02(f) hereof.
SECTION 4.02. TREATMENT OF HOLDERS OF DEBT WARRANT CERTIFICATES. Every
Holder of a Debt Warrant, by accepting the Debt Warrant Certificate evidencing
the same, consents and agrees with the Company, the Debt Warrant Agent and with
every other Holder of Debt Warrants of the same title that the Company and the
Debt Warrant Agent may treat the registered Holder of a Debt Warrant Certificate
(or, if the Debt Warrant Certificate is not then detachable, the Holder of the
related Offered
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Security) as the absolute owner of such Debt Warrant for all purposes and as the
person entitled to exercise the rights represented by such Debt Warrant, any
notice to the contrary notwithstanding.
SECTION 4.03. CANCELLATION OF DEBT WARRANT CERTIFICATES. In the event that
the Company shall purchase, redeem or otherwise acquire any Debt Warrants after
the issuance thereof, the Debt Warrant Certificate or Certificates evidencing
such Debt Warrants shall thereupon be delivered to the Debt Warrant Agent and be
canceled by it. The Debt Warrant Agent shall also cancel any Debt Warrant
Certificate (including any mutilated Debt Warrant Certificate) delivered to it
for exercise, in whole or in part, or for exchange [or transfer] [IF DEBT
WARRANT CERTIFICATES ARE ISSUED IN BEARER FORM--, except that Debt Warrant
Certificates delivered to the Debt Warrant Agent in exchange for Debt Warrant
Certificates of other denominations may be retained by the Debt Warrant Agent
for reissue]. Debt Warrant Certificates so canceled shall be delivered by the
Debt Warrant Agent to the Company from time to time, or disposed of in
accordance with the instructions of the Company.
ARTICLE V
CONCERNING THE DEBT WARRANT AGENT
SECTION 5.01. DEBT WARRANT AGENT. The Company hereby appoints
______________ as Debt Warrant Agent of the Company in respect of the Debt
Warrants and the Debt Warrant Certificates upon the terms and subject to the
conditions set forth herein; and _______________ hereby accepts such
appointment. The Debt Warrant Agent shall have the powers and authority granted
to and conferred upon it hereby and such further powers and authority to act on
behalf of the Company as the Company may hereafter grant to or confer upon it.
All of the terms and provisions with respect to such powers and authority
contained in any Debt Warrant Certificate are subject to and governed by the
terms and provisions hereof.
SECTION 5.02. CONDITIONS OF DEBT WARRANT AGENT'S OBLIGATIONS. The Debt
Warrant Agent accepts its obligations set forth herein upon the terms and
conditions hereof, including the following, to all of which the Company agrees
and to all of which the rights hereunder of the Holders
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shall be subject:
(a) COMPENSATION AND INDEMNIFICATION. The Company agrees to promptly pay
the Debt Warrant Agent the compensation set forth in Exhibit A hereto and to
reimburse the Debt Warrant Agent for reasonable out-of-pocket expenses
(including counsel fees) incurred by the Debt Warrant Agent in connection with
the services rendered hereunder by the Debt Warrant Agent. Except as provided
in Section 5.03, the Company also agrees to indemnify the Debt Warrant Agent
for, and to hold it harmless against, any loss, liability or expense (including
the reasonable costs and expenses of defending against any claim of liability)
incurred without negligence or bad faith on the part of the Debt Warrant Agent
arising out of or in connection with its appointment as Debt Warrant Agent
hereunder.
(b) AGENT FOR THE COMPANY. In acting under this Agreement and in
connection with any Debt Warrant Certificate, the Debt Warrant Agent is acting
solely as agent of the Company and does not assume any obligation or
relationship of agency or trust for or with any Holder.
(C) COUNSEL. The Debt Warrant Agent may consult with counsel reasonably
satisfactory to it, and the advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in accordance with the advice of such counsel.
(d) DOCUMENTS. The Debt Warrant Agent shall be protected and shall incur
no liability for or in respect of any action taken, suffered or omitted by it in
reliance upon any notice, direction, consent, certificate, affidavit, statement
or other paper or document reasonably believed by it to be genuine and to have
been presented or signed by the proper parties.
(e) OFFICER'S CERTIFICATE. Whenever in the performance of its duties
hereunder the Debt Warrant Agent shall reasonably deem it necessary that any
fact or matter be proved or established by the Company prior to taking,
suffering or omitting any action hereunder, the Debt Warrant Agent may (unless
other evidence in respect thereof be herein specifically prescribed), in the
absence of bad faith on its part, rely upon a certificate signed by the Vice
Chairman and Chief Executive Officer, the President, a Vice President, the
Treasurer, an Assistant Treasurer, the Secretary or an
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Assistant Secretary of the Company (an "Officer's Certificate") delivered by the
Company to the Debt Warrant Agent.
(f) ACTIONS THROUGH AGENTS. The Debt Warrant Agent may execute and
exercise any of the rights or powers hereby vested in it or perform any duty
hereunder either itself or by or through its attorneys or agents, and the Debt
Warrant Agent shall not be answerable or accountable for any act, default,
neglect or misconduct of any such attorney or agent or for any loss to the
Company resulting from such neglect or misconduct; provided, however, that
reasonable care shall have been exercised in the selection and continued
employment of such attorneys and agents.
(g) CERTAIN TRANSACTIONS. The Debt Warrant Agent, and any officer,
director or employee thereof, may become the owner of, or acquire any interest
in, any Debt Warrant, with the same rights that he, she or it would have if it
were not the Debt Warrant Agent, and, to the extent permitted by applicable law,
he, she or it may engage or be interested in any financial or other transaction
with the Company and may serve on, or as depositary, trustee or agent for, any
committee or body of holders of Underlying Debt Securities or other obligations
of the Company as if it were not the Debt Warrant Agent. Nothing in this
Agreement shall be deemed to prevent the Debt Warrant Agent from acting as
Trustee under the Indenture.
(h) NO LIABILITY FOR INTEREST. The Debt Warrant Agent shall not be liable
for interest on any monies at any time received by it pursuant to any of the
provisions of this Agreement or of the Debt Warrant Certificates, except as
otherwise agreed with the Company.
(I) NO LIABILITY FOR INVALIDITY. The Debt Warrant Agent shall incur no
liability with respect to the validity of this Agreement (except as to the due
execution hereof by the Debt Warrant Agent) or any Debt Warrant Certificate
(except as to the countersignature thereof by the Debt Warrant Agent).
(J) NO RESPONSIBILITY FOR COMPANY REPRESENTATIONS. The Debt Warrant Agent
shall not be responsible for any of the recitals or representations contained
herein (except as to such statements or recitals as describe the Debt Warrant
Agent or action taken or to be taken
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by it or such statements or recitals known by the Debt Warrant Agent to be false
or misleading) or in any Debt Warrant Certificate (except as to the Debt Warrant
Agent's countersignature on such Debt Warrant Certificate), all of which
recitals and representations are made solely by the Company.
(K) NO IMPLIED OBLIGATIONS. The Debt Warrant Agent shall be obligated to
perform only such duties as are specifically set forth herein, and no other
duties or obligations shall be implied. The Debt Warrant Agent shall not be
under any obligation to take any action hereunder that may subject it to any
expense or liability, the payment of which within a reasonable time is not, in
its reasonable opinion, assured to it. The Debt Warrant Agent shall not be
accountable or under any duty or responsibility for the use by the Company of
any Debt Warrant Certificate countersigned by the Debt Warrant Agent and
delivered by it to the Company pursuant to this Agreement or for the application
by the Company of the proceeds of the issuance or exercise of Debt Warrants.
The Debt Warrant Agent shall have no duty or responsibility in case of any
default by the Company in the performance of its covenants or agreements
contained herein or in any Debt Warrant Certificate or in case of the receipt of
any written demand from a Holder with respect to such default, including,
without limiting the generality of the foregoing, any duty or responsibility to
initiate or attempt to initiate any proceedings at law or otherwise or, except
as provided in Section 6.02 hereof, to make any demand upon the Company.
SECTION 5.03. COMPLIANCE WITH APPLICABLE LAWS. The Debt Warrant Agent
agrees to comply with all applicable federal and state laws imposing obligations
on it in respect of the services rendered by it under this Debt Warrant
Agreement and in connection with the Debt Warrants, including (but not limited
to) the provisions of United States federal income tax laws regarding
information reporting and backup withholding. The Debt Warrant Agent expressly
assumes all liability for its failure to comply with such laws imposing
obligations on it, including (but not limited to) any liability for failure to
comply with any applicable provisions of United States federal income tax laws
regarding information reporting and backup withholding.
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SECTION 5.04. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) The Company agrees, for the benefit of the Holders of Debt Warrants,
that there shall at all times be a Debt Warrant Agent hereunder until all the
Debt Warrants are no longer exercisable.
(b) The Debt Warrant Agent may at any time resign as such by giving written
notice to the Company of such intention on its part, specifying the date on
which such resignation shall become effective; provided that such date shall not
be less than 90 days after the date on which such notice is given, unless the
Company agrees to accept a shorter notice. The Debt Warrant Agent may be removed
at any time by the filing with it of an instrument in writing signed by or on
behalf of the Company and specifying such removal and the date when it shall
become effective. Notwithstanding the two preceding sentences, such resignation
or removal shall take effect only upon the appointment by the Company, as
hereinafter provided, of a successor Debt Warrant Agent (which shall be a bank
or trust company organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under the laws of such jurisdiction to exercise corporate trust powers and
having at the time of its appointment as Debt Warrant Agent a combined capital
and surplus (as set forth in its most recent published report of condition) of
at least $_____________) and the acceptance of such appointment by such
successor Debt Warrant Agent. In the event a successor Debt Warrant Agent has
not been appointed and has not accepted its duties within 90 days of the Debt
Warrant Agent's notice of resignation, the Debt Warrant Agent may apply to any
court of competent jurisdiction for the designation of a successor Debt Warrant
Agent. The obligation of the Company under Section 5.02(a) shall continue to
the extent set forth therein notwithstanding the resignation or removal of the
Debt Warrant Agent.
(c) In case at any time the Debt Warrant Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged a bankrupt or
insolvent, or shall file a petition seeking relief under Title 11 of the United
States Code, as now constituted or hereafter amended, or under any other
applicable federal or state bankruptcy or similar law, or make an assignment for
the benefit of its creditors, or consent to the appointment of a receiver or
custodian for all or any substantial part of
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its property, or shall admit in writing its inability to pay or meet its debts
as they mature, or if a receiver or custodian for it or for all or any
substantial part of its property shall be appointed, or if an order of any court
shall be entered for relief against it under the provisions of Title 11 of the
United States Code, as now constituted or hereafter amended, or under any other
applicable federal or state bankruptcy or similar law, or if any public officer
shall have taken charge or control of the Debt Warrant Agent or of its property
or affairs for the purpose of rehabilitation, conservation or liquidation, a
successor Debt Warrant Agent, qualified as aforesaid, shall be appointed by the
Company by an instrument in writing, filed with the successor Debt Warrant
Agent. Upon the appointment as aforesaid of a successor Debt Warrant Agent and
acceptance by the successor Debt Warrant Agent of such appointment, the Debt
Warrant Agent so superseded shall cease to be Debt Warrant Agent hereunder.
(d) Any successor Debt Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Debt Warrant
Agent, without any further act, deed or conveyance, shall become vested with all
the authority, rights, powers, trusts, immunities, duties and obligations of
such predecessor with like effect as if originally named as Debt Warrant Agent
hereunder, and such predecessor, upon payment of its charges and disbursements
then unpaid, shall thereupon become obligated to transfer, deliver and pay over,
and such successor Debt Warrant Agent shall be entitled to receive, [the Debt
Warrant Register and] all monies, securities and other property on deposit with
or held by such predecessor (together with any books and records relating
thereto), as Debt Warrant Agent hereunder.
(e) The Company shall cause notice of the appointment of any successor Debt
Warrant Agent to be [IF REGISTERED DEBT WARRANTS-- mailed by first class mail,
postage prepaid, to each Holder at its address appearing on the Debt Warrant
Register or, in the case of Debt Warrants that are issued with Offered
Securities and cannot then be transferred separately therefrom, on the security
register for the Offered Securities] [IF BEARER DEBT WARRANTS-- published in an
Authorized Newspaper (as defined in Section 1.01 of the Indenture) in The City
of New York [and in such other city or cities as may be specified by the
Company] at least
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twice within any seven-day period]. Such notice shall set forth the name and
address of the successor Debt Warrant Agent. Failure to give any notice provided
for in this Section 5.04(e), or any defect therein, shall not, however, affect
the legality or validity of the appointment of the successor Debt Warrant Agent.
(f) Any corporation into which the Debt Warrant Agent may be merged or
converted, or any corporation with which the Debt Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Debt Warrant Agent shall be a party, or any
corporation to which the Debt Warrant Agent shall sell or otherwise transfer all
or substantially all of its assets and business, shall be the successor Debt
Warrant Agent under this Agreement without the execution or filing of any paper,
the giving of any notice to Holders or any further act on the part of the
parties hereto, provided that such corporation be qualified as aforesaid.
SECTION 5.05. OFFICE. The Company will maintain an office or agency where
Debt Warrant Certificates may be presented for exchange[, transfer] or exercise.
The office initially designated for this purpose shall be the corporate trust
office of the Debt Warrant Agent at __________________________________.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. SUPPLEMENTS AND AMENDMENTS.
(a) The Company and the Debt Warrant Agent may from time to time supplement
or amend this Agreement and the Debt Warrants without the approval of any Holder
in order to cure any ambiguity, to cure, correct or supplement any provision
contained herein or therein that may be defective or inconsistent with any other
provision herein or therein, or to make any other provision in regard to matters
or questions arising hereunder that the Company may deem necessary or desirable
and which will not materially adversely affect the interests of the Holders.
Every Holder of Debt Warrants, whether issued before or after any such
supplement or amendment, shall be bound thereby. Promptly after the
effectiveness of any supplement or amendment that affects the interests
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of the Holders, the Company shall give notice thereof, as provided in Section
5.04(e) hereof, to the Holders affected thereby, setting forth in general terms
the substance of such supplement or amendment.
(b) The Company and the Debt Warrant Agent may modify or amend this
Agreement and the Debt Warrant Certificates with the consent of the Holders of
not fewer than a majority in number of the then outstanding unexercised Debt
Warrants affected by such modification or amendment, for any purpose; PROVIDED,
HOWEVER, that no such modification or amendment that shortens the period of time
during which the Debt Warrants may be exercised, or increases the Debt Warrant
Price (except as provided in this Agreement) or otherwise materially and
adversely affects the exercise rights of the Holders or reduces the percentage
of Holders of outstanding Debt Warrants the consent of which is required for
modification or amendment of this Agreement or the Debt Warrant Certificates,
may be made without the consent of each Holder affected thereby.
SECTION 6.02. NOTICES AND DEMANDS TO THE COMPANY AND DEBT WARRANT AGENT. If
the Debt Warrant Agent shall receive any notice or demand addressed to the
Company by a Holder pursuant to the provisions of this Agreement or a Debt
Warrant Certificate (other than notices relating to the exchange[, transfer] or
exercise of Debt Warrants), the Debt Warrant Agent shall promptly forward such
notice or demand to the Company.
SECTION 6.03. ADDRESSES. Any communications from the Company to the Debt
Warrant Agent with respect to this Agreement shall be directed to
____________________________, Attention: __________________________,
and any communications from the Debt Warrant Agent to the
Company with respect to this Agreement shall be directed to Motorola, Inc., 1303
East Algonquin Road, Schaumburg, Illinois 60196, Attention: Treasurer, with a
copy to the Secretary (or such other address as shall be specified in writing by
the Debt Warrant Agent or by the Company).
SECTION 6.04. GOVERNING LAW. THIS AGREEMENT AND THE DEBT WARRANTS SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
_________________ APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY
WITHIN SUCH STATE WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
19
<PAGE>
SECTION 6.05. GOVERNMENTAL APPROVALS. The Company will from time to time
use all reasonable efforts to obtain and keep effective any and all permits,
consents and approvals of governmental agencies and authorities and the national
securities exchange on which the Debt Warrants may be listed or authorized for
trading and to make all filings under the United States federal and state laws,
which may be or become requisite in connection with the issuance, sale, trading,
transfer or delivery of the Debt Warrants, and the exercise of the Debt
Warrants.
SECTION 6.06. PERSONS HAVING RIGHTS UNDER DEBT WARRANT AGREEMENT. Nothing
in this Agreement, expressed or implied, and nothing that may be inferred from
any of the provisions hereof is intended or shall be construed to confer upon,
or give to, any person or corporation other than the Company, the Debt Warrant
Agent and the Holders any right, remedy or claim under or by reason of this
Agreement or any covenant, condition, stipulation, promise or agreement herein;
and all covenants, conditions, stipulations, promises and agreements herein
shall be for the sole and exclusive benefit of the Company, the Debt Warrant
Agent and their respective successors and the Holders of Debt Warrant
Certificates.
SECTION 6.07. DELIVERY OF PROSPECTUS. The Company will furnish to the Debt
Warrant Agent sufficient copies of a prospectus or prospectuses relating to the
Underlying Debt Securities deliverable upon exercise of any outstanding Debt
Warrants (each a "Prospectus"), and the Debt Warrant Agent agrees to deliver to
the Holder of a Debt Warrant, prior to or concurrently with the delivery of the
Underlying Debt Securities issued upon the exercise thereof, a copy of the
Prospectus relating to such Underlying Debt Securities.
SECTION 6.08. HEADINGS. The descriptive headings of the several Articles
and Sections and the Table of Contents of this Agreement are inserted for
convenience only and shall not control or affect the meaning or construction of
any of the provisions hereof.
SECTION 6.09. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, when a counterpart has been executed by each party hereto, all
such counterparts taken together shall constitute one and the same agreement.
20
<PAGE>
SECTION 6.10. INSPECTION OF AGREEMENT. A copy of this Agreement shall be
available during normal business hours at the office of the Debt Warrant Agent
for inspection by any Holder. The Debt Warrant Agent may require such Holder to
submit its Debt Warrant Certificate for inspection prior to making such copy
available.
SECTION 6.11. FURTHER INSTRUMENTS. The parties shall execute and deliver
any and all such other instruments and shall take any and all such other actions
as may be reasonable or necessary to carry out the intention of this Agreement.
SECTION 6.12. SEVERABILITY. If any provision of this Agreement shall be
held, declared or pronounced void, voidable, invalid, unenforceable or
inoperative for any reason by any court of competent jurisdiction, government
authority or otherwise, such holding, declaration or pronouncement shall not
affect adversely any other provision of this Agreement, which shall otherwise
remain in full force and effect and be enforced in accordance with its terms,
and the effect of such holding, declaration or pronouncement shall be limited to
the territory or jurisdiction in which made.
SECTION 6.13. WAIVER. All the rights and remedies of either party under
this Agreement are cumulative and not exclusive of any other rights and remedies
as provided by law. No delay or failure on the part of either party in the
exercise of any right or remedy arising from a breach of this Agreement shall
operate as a waiver of any subsequent right or remedy arising from a subsequent
breach of this Agreement. The consent of any party where required hereunder to
any act or occurrence shall not be deemed to be a consent to any other action or
occurrence.
SECTION 6.14. TERMINATION. This Agreement shall terminate as of the close
of business on the Expiration Date, or such earlier date upon which all Debt
Warrants shall have been exercised or redeemed, except that the Debt Warrant
Agent shall account to the Company as to all Debt Warrants outstanding and all
cash held by it as of the close of business on the Expiration Date.
21
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement 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.
[Seal] MOTOROLA, INC.
By:
-----------------------------------
Name:
-----------------------------------
Attest: Title:
-----------------------------------
By
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
-----------------------------------------,
as Debt Warrant Agent
[Seal]
By:
-----------------------------------
Attest: Name:
-----------------------------------
Title:
-----------------------------------
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
22
<PAGE>
Exhibit A to Debt Warrant Agreement dated as of ___________, 19
[Compensation of Debt Warrant Agent]
<PAGE>
EXHIBIT 4(j)
________________________________________________________________________________
COMMON STOCK WARRANT AGREEMENT*
Dated as of _____________ , 19____
FOR
[UP TO __________________] COMMON STOCK WARRANTS
EXPIRING __________________ , 19____
between
MOTOROLA, INC.
and
[NAME OF COMMON STOCK WARRANT AGENT], as
Common Stock Warrant Agent
________________________________________________________________________________
* OPTIONS REPRESENTED BY BRACKETED OR BLANK SECTIONS HEREIN SHALL BE
DETERMINED IN CONFORMITY WITH THE APPLICABLE PROSPECTUS SUPPLEMENT OR
SUPPLEMENTS.
<PAGE>
TABLE OF CONTENTS
Page
----
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I
ISSUANCE OF COMMON STOCK WARRANTS AND EXECUTION AND
DELIVERY OF COMMON STOCK WARRANT CERTIFICATES
SECTION 1.01. Issuance of Common Stock Warrants . . . . . . . . . . . . . . 1
SECTION 1.02. Form and Execution of Common
Stock Warrant Certificates. . . . . . . . . . . . . . . . 3
SECTION 1.03. Issuance and Delivery of Common
Stock Warrant Certificates. . . . . . . . . . . . . . . . 4
SECTION 1.04. Temporary Common Stock Warrant
Certificates. . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 1.05. Payment of Taxes. . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 1.06. "Holder". . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE II
DURATION AND EXERCISE OF COMMON STOCK WARRANTS
SECTION 2.01. Duration of Common Stock Warrants . . . . . . . . . . . . . . 6
SECTION 2.02. Exercise of Common Stock Warrants . . . . . . . . . . . . . . 7
SECTION 2.03. Common Stock Warrant Adjustments. . . . . . . . . . . . . . . 9
SECTION 2.04. Reservation of Shares . . . . . . . . . . . . . . . . . . . . 9
________________________________________________________________________________
* The Table of Contents is not a part of the Common Stock Warrant Agreement.
<PAGE>
ARTICLE III
Page
----
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
OF COMMON STOCK WARRANTS
SECTION 3.01. No Rights as Holder of Common
Stock Conferred by Common Stock
Warrants or Common Stock Warrant
Certificates. . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 3.02. Lost, Stolen, Destroyed or Mutilated
Common Stock Warrant Certificates . . . . . . . . . . . . 10
SECTION 3.03. Holders of Common Stock Warrants
May Enforce Rights. . . . . . . . . . . . . . . . . . . . 11
SECTION 3.04. Merger, Consolidation, Sale, Transfer
or Conveyance . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 3.05. Treatment of Holders of Common Stock
Warrant Certificates. . . . . . . . . . . . . . . . . . . 12
ARTICLE IV
EXCHANGE AND TRANSFER OF COMMON STOCK WARRANTS
SECTION 4.01. Common Stock Warrant Register;
Exchange and Transfer of Common
Stock Warrants. . . . . . . . . . . . . . . . . . . . . . 13
SECTION 4.02. Treatment of Holders of Common Stock
Warrants. . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 4.03. Cancellation of Common Stock Warrant
Certificates. . . . . . . . . . . . . . . . . . . . . . . 14
<PAGE>
ARTICLE V
Page
----
CONCERNING THE COMMON STOCK WARRANT AGENT
SECTION 5.01. Common Stock Warrant Agent. . . . . . . . . . . . . . . . . . 15
SECTION 5.02. Conditions of Common Stock Warrant
Agent's Obligations . . . . . . . . . . . . . . . . . . . 15
SECTION 5.03. Compliance with Applicable Laws . . . . . . . . . . . . . . . 18
SECTION 5.04. Resignation and Removal;
Appointment of Successor. . . . . . . . . . . . . . . . . 19
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Supplements and Amendments. . . . . . . . . . . . . . . . . . 21
SECTION 6.02. Notices and Demands to the Company
and Common Stock Warrant Agent. . . . . . . . . . . . . . 22
SECTION 6.03. Addresses for Notices . . . . . . . . . . . . . . . . . . . . 22
SECTION 6.04. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 6.05. Governmental Approvals. . . . . . . . . . . . . . . . . . . . 22
SECTION 6.06. Persons Having Rights Under Common
Stock Warrant Agreement . . . . . . . . . . . . . . . . . 23
SECTION 6.07. Delivery of Prospectus. . . . . . . . . . . . . . . . . . . . 23
SECTION 6.08. Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 6.09. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 6.10. Inspection of Agreement . . . . . . . . . . . . . . . . . . . 24
SECTION 6.11. Further Instruments . . . . . . . . . . . . . . . . . . . . . 24
SECTION 6.12. Severability. . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 6.13. Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 6.14. Termination . . . . . . . . . . . . . . . . . . . . . . . . . 24
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
EXHIBIT A---Common Stock Warrant Agreement Compensation
<PAGE>
This COMMON STOCK WARRANT AGREEMENT, dated as of ___________ ___, 19___,
between Motorola, Inc., a Delaware corporation (the "Company"), and
_______________ , a ___________________ organized and existing under the laws of
_____________, as warrant agent (the "Common Warrant Agent").
WHEREAS, the Company proposes to sell [title of debt securities or common
stock being offered (the "Offered Securities") with] certificates evidencing one
or more warrants (the "Common Stock Warrants" or, individually, a "Common Stock
Warrant") representing the right to purchase shares of the common stock, par
value $3 per share (including the appropriate number of preferred share purchase
rights (the "Rights")), of the Company (together with the associated Rights, the
"Common Stock"); such warrant certificates and other warrant certificates issued
pursuant to this Agreement being herein called the "Common Stock Warrant
Certificates"; and
WHEREAS, the Company has duly authorized the execution and delivery of this
Common Stock Warrant Agreement to provide for the issuance of Common Stock
Warrants to be exercisable at such times and for such prices, and to have such
other provisions, as shall be fixed as hereinafter provided;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE OF COMMON STOCK WARRANTS AND EXECUTION AND
DELIVERY OF COMMON STOCK WARRANT CERTIFICATES
SECTION 1.01. ISSUANCE OF COMMON STOCK WARRANTS. Common Stock Warrants may
be issued from time to time, together with or separately from Offered
Securities. Prior to the issuance of any Common Stock Warrants, there shall be
established by or pursuant to a resolution or resolutions duly adopted by the
Company's Board of Directors or by any committee thereof duly authorized to act
with respect thereto (a "Board Resolution"):
1
<PAGE>
(1) The title and aggregate number of such Common Stock Warrants.
(2) The offering price of such Common Stock Warrants.
(3) The number of shares of Common Stock that may be purchased upon exercise
of each such Common Stock Warrant (the "Warrant Shares"); the price, or the
manner of determining the price (the "Common Stock Warrant Price"), at which
such shares of Common Stock may be purchased upon exercise of such Common Stock
Warrants; if other than cash, the property and manner in which the Common Stock
Warrant Price may be paid; and any minimum number of such Common Stock Warrants
that are exercisable at any one time.
(4) The time or times at which, or period or periods during which, such Common
Stock Warrants may be exercised and the final date on which such Common Stock
Warrants may be exercised (the "Expiration Date").
(5) The terms of any right to redeem such Common Stock Warrants.
(6) The terms of any right of the Company to accelerate the exercisability of
Common Stock Warrants upon the occurrence of certain events.
(7) Where the Common Stock Warrant Certificates may be transferred and
exchanged.
(8) Whether such Common Stock Warrants are to be issued with any Offered
Securities and, if so, the number and terms of any such Offered Securities.
(9) The date, if any, on and after which the Common Stock Warrants and the
Offered Securities will be separately transferable (the "Detachable Date").
(10) Any other terms of such Common Stock Warrants not inconsistent with the
provisions of this Agreement.
2
<PAGE>
SECTION 1.02. FORM AND EXECUTION OF COMMON STOCK WARRANT CERTIFICATES.
(a) The Common Stock Warrants shall be evidenced by the Common Stock
Warrant Certificates, which shall be in registered form and substantially in
such form or forms as shall be established by or pursuant to a Board Resolution.
Each Common Stock Warrant Certificate, whenever issued, shall be dated the date
it is countersigned by the Common Stock Warrant Agent and may have such letters,
numbers or other marks of identification and such legends or endorsements
printed, lithographed or engraved thereon as are not inconsistent with the
provisions of this Agreement, or as may be required to comply with any law, rule
or regulation or with any rule or regulation of any securities exchange on which
the Common Stock or Common Stock Warrants may be listed, or to conform to usage,
as the officer of the Company executing the same may approve (such officer s
execution thereof to be conclusive evidence of such approval). Each Common Stock
Warrant Certificate shall evidence one or more Common Stock Warrants.
(b) The Common Stock Warrant Certificates shall be signed in the name and
on behalf of the Company by its Vice Chairman and Chief Executive Officer,
President or any elected Vice President under its corporate seal, and attested
by its Secretary or an Assistant Secretary. Such signatures may be manual or
facsimile signatures of the present or any future holder of any such office and
may be imprinted or otherwise reproduced on the Common Stock Warrant
Certificates. The seal of the Company may be in the form of a facsimile thereof
and may be impressed, affixed, imprinted or otherwise reproduced on the Common
Stock Warrant Certificates.
(c) No Common Stock Warrant Certificate shall be valid for any purpose, and
no Common Stock Warrant evidenced thereby shall be deemed issued or exercisable,
until such Common Stock Warrant Certificate has been countersigned by the manual
or facsimile signature of the Common Stock Warrant Agent. Such signature by the
Common Stock Warrant Agent upon any Common Stock Warrant Certificate executed by
the Company shall be conclusive evidence that the Common Stock Warrant
Certificate so countersigned has been duly issued hereunder.
3
<PAGE>
(d) In case any officer of the Company who shall have signed any Common
Stock Warrant Certificate either manually or by facsimile signature shall cease
to be such officer before the Common Stock Warrant Certificate so signed shall
have been countersigned and delivered by the Common Stock Warrant Agent, such
Common Stock Warrant Certificate nevertheless may be countersigned and delivered
as though the person who signed such Common Stock Warrant Certificate had not
ceased to be such officer of the Company; and any Common Stock Warrant
Certificate may be signed on behalf of the Company by such person as, at the
actual date of the execution of such Common Stock Warrant Certificate, shall be
the proper officer of the Company, although at the date of the execution of this
Agreement such person was not such an officer.
SECTION 1.03. ISSUANCE AND DELIVERY OF COMMON STOCK WARRANT CERTIFICATES.
At any time and from time to time after the execution and delivery of this
Agreement, the Company may deliver Common Stock Warrant Certificates executed by
the Company to the Common Stock Warrant Agent for countersignature. Except as
provided in the following sentence, the Common Stock Warrant Agent shall
thereupon countersign and deliver such Common Stock Warrant Certificates to or
upon the written request of the Company. Subsequent to the original issuance of
a Common Stock Warrant Certificate evidencing Common Stock Warrants, the Common
Stock Warrant Agent shall countersign a new Common Stock Warrant Certificate
evidencing such Common Stock Warrants only if such Common Stock Warrant
Certificate is issued in exchange or substitution for one or more previously
countersigned Common Stock Warrant Certificates evidencing such Common Stock
Warrants or in connection with their transfer, as hereinafter provided.
SECTION 1.04. TEMPORARY COMMON STOCK WARRANT CERTIFICATES. Pending the
preparation of definitive Common Stock Warrant Certificates, the Company may
execute, and upon the order of the Company the Common Stock Warrant Agent shall
countersign and deliver, temporary Common Stock Warrant Certificates that are
printed, lithographed, typewritten, mimeographed or otherwise produced,
substantially of the tenor of the definitive Common Stock Warrant Certificates
in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and
4
<PAGE>
other variations as the officer executing such Common Stock Warrant Certificates
may determine, as evidenced by his execution of such Common Stock Warrant
Certificates.
If temporary Common Stock Warrant Certificates are issued, the Company will
cause definitive Common Stock Warrant Certificates to be prepared without
unreasonable delay. After the preparation of definitive Common Stock Warrant
Certificates, the temporary Common Stock Warrant Certificates shall be
exchangeable for definitive Common Stock Warrant Certificates upon surrender of
the temporary Common Stock Warrant Certificates at the corporate trust office of
the Common Stock Warrant Agent [or ____________________], without charge to the
Holder (as defined in Section 1.06 hereof). Upon surrender for cancellation of
any one or more temporary Common Stock Warrant Certificates, the Company shall
execute and the Common Stock Warrant Agent shall countersign and deliver in
exchange therefor definitive Common Stock Warrant Certificates representing the
same aggregate number of Common Stock Warrants. Until so exchanged, the
temporary Common Stock Warrant Certificates shall in all respects be entitled to
the same benefits under this Agreement as definitive Common Stock Warrant
Certificates.
SECTION 1.05. PAYMENT OF TAXES. The Company will pay all stamp and other
similar duties, if any, to which this Agreement or the original issuance of the
Common Stock Warrants or Common Stock Warrant Certificates may be subject under
the laws of the United States of America or any state or locality. The Company
is not responsible for the payment of any other taxes.
SECTION 1.06. "HOLDER". The term "Holder" or "Holders" as used herein
with reference to a Common Stock Warrant Certificate shall mean the person or
persons in whose name such Common Stock Warrant Certificate shall then be
registered as set forth in the Common Stock Warrant Register to be maintained by
the Common Stock Warrant Agent pursuant to Section 4.01 for that purpose or, in
the case of Common Stock Warrants that are issued with Offered Securities and
cannot then be transferred separately therefrom, the person or persons in whose
name the related Offered Securities shall be registered as set forth in the
security register for such Offered Securities, prior to the Detachable
5
<PAGE>
Date. In case of Common Stock Warrants that are issued with Offered Securities
and cannot then be transferred separately therefrom, the Company will, or will
cause the security registrar of any such Offered Securities to, make available
to the Common Stock Warrant Agent at all times (including on and after the
Detachable Date, in the case of Common Stock Warrants originally issued with
Offered Securities and not subsequently transferred separately therefrom) such
information as to holders of Offered Securities with Common Stock Warrants
attached thereto as may be necessary to keep the Common Stock Warrant Register
up to date.
ARTICLE II
DURATION AND EXERCISE OF COMMON STOCK WARRANTS
SECTION 2.01. DURATION OF COMMON STOCK WARRANTS. Each Common Stock Warrant
may be exercised at the time or times, or during the period or periods, provided
by or pursuant to the Board Resolution relating thereto and specified in the
Common Stock Warrant Certificate evidencing such Common Stock Warrant. Each
Common Stock Warrant not exercised at or before 5:00 P.M., New York City time,
on its Expiration Date shall become void, and all rights of the Holder of such
Common Stock Warrant thereunder and under this Agreement shall cease, PROVIDED
that the Company reserves the right to, and may, in its sole discretion, at any
time and from time to time, at such time or times as the Company so determines,
extend the Expiration Date of the Common Stock Warrants for such periods of time
as it chooses; FURTHER PROVIDED that in no case may the Expiration Date of the
Common Stock Warrants (as extended) be extended beyond five years from the
original Expiration Date. Whenever the Expiration Date of the Common Stock
Warrants is so extended, the Company shall at least 20 days prior to the then
Expiration Date cause to be mailed to the Common Stock Warrant Agent and the
registered Holders of the Common Stock Warrants in accordance with the
provisions of this Agreement a notice stating that the Expiration Date has been
extended and setting forth the new Expiration Date. No adjustment shall be made
for any dividends on any Common Stock issuable upon exercise of any Common Stock
Warrant.
6
<PAGE>
SECTION 2.02. EXERCISE OF COMMON STOCK WARRANTS.
(a) The Holder of a Common Stock Warrant shall have the right, at its
option, to exercise such Common Stock Warrant and, subject to subsection (f) of
this Section 2.02, purchase the number of shares of Common Stock provided for
therein at the time or times or during the period or periods referred to in
Section 2.01 and specified in the Common Stock Warrant Certificate evidencing
such Common Stock Warrant. No fewer than the minimum number of Common Stock
Warrants as set forth in the Common Stock Warrant Certificate may be exercised
by or on behalf of any one Holder at any one time. Except as may be provided in
a Common Stock Warrant Certificate, a Common Stock Warrant may be exercised by
completing the form of election to purchase set forth on the reverse side of the
Common Stock Warrant Certificate, by duly executing the same, and by delivering
the same, together with payment in full of the Common Stock Warrant Price in
lawful money of the United States of America, in cash or by certified or
official bank check or by bank wire transfer, or in property, in the manner
provided by or pursuant to the Board Resolution relative thereto and specified
in the Common Stock Warrant Certificate evidencing such Common Stock Warrant, to
the Common Stock Warrant Agent. Except as may be provided in a Common Stock
Warrant Certificate, the date on which such Common Stock Warrant Certificate and
payment are received by the Common Stock Warrant Agent as aforesaid shall be
deemed to be the date on which the Common Stock Warrant is exercised and the
relevant shares of Common Stock are issued.
(b) Upon the exercise of a Common Stock Warrant, the Company shall issue,
to or upon the order of the Holder of such Common Stock Warrant, the shares of
Common Stock to which such Holder is entitled, registered, in the case of shares
of Common Stock in registered form, in such name or names as may be directed by
such Holder.
(c) If fewer than all of the Common Stock Warrants evidenced by a Common
Stock Warrant Certificate are exercised, the Company shall execute, and an
authorized officer of the Common Stock Warrant Agent shall countersign and
deliver, a new Common Stock Warrant Certificate evidencing the number of Common
Stock Warrants remaining unexercised.
7
<PAGE>
(d) The Common Stock Warrant Agent shall deposit all funds received by it
in payment of the Common Stock Warrant Price for Common Stock Warrants in the
account of the Company maintained with it for such purpose and shall advise the
Company by telephone by 5:00 P.M., New York City time, of each day on which a
payment of the Common Stock Warrant Price for Common Stock Warrants is received
of the amount so deposited in its account. The Common Stock Warrant Agent shall
promptly confirm such telephone advice in writing to the Company.
(e) The Common Stock Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company of (i) the number of Common Stock Warrants of
each title exercised as provided herein, (ii) the instructions of each Holder of
such Common Stock Warrants with respect to delivery of the Common Stock issued
upon exercise of such Common Stock Warrants to which such Holder is entitled
upon such exercise, and (iii) such other information as the Company shall
reasonably require. Such notice may be given by telephone to be promptly
confirmed in writing.
(f) The Holder, and not the Company, shall be required to pay any stamp or
other tax or other governmental charge that may be imposed in connection with
any transfer involved in the issuance of the Common Stock; and in the event
that any such transfer is involved, the Company shall not be required to issue
any Common Stock (and the Holder's purchase of the shares of Common Stock issued
upon the exercise of such Holder's Common Stock Warrant shall not be deemed to
have been consummated) until such tax or other charge shall have been paid or it
has been established to the Company's satisfaction that no such tax or other
charge is due.
(g) On exercise of the Common Stock Warrants, the Company shall not be
required to deliver fractions of shares of Common Stock; provided, however, that
the Company shall, at its option, either (i) purchase such fraction for an
amount in cash equal to the current value of such fraction computed on the basis
of the closing market price (as quoted on the New York Stock Exchange or, in
case the Common Stock is not listed on the New York Stock Exchange, such other
exchange on which the Common Stock is then listed or admitted for trading) on
the trading day immediately
8
<PAGE>
preceding the day upon which such Common Stock Warrant Certificate was
surrendered for exercise in accordance with Section 2.02 hereof, or (ii) issue
the reserved factional share of Common Stock. By accepting a Common Stock
Warrant Certificate, the Holder thereof expressly waives any right to receive a
Common Stock Warrant Certificate evidencing any fraction of a Common Stock
Warrant or to receive any fractional share of securities upon exercise of a
Common Stock Warrant, except as expressly provided in this Section 2.02(g).
SECTION 2.03. COMMON STOCK WARRANT ADJUSTMENTS. The terms and conditions,
if any, on which the exercise price of and/or the number of Warrant Shares
covered by a Common Stock Warrant are subject to adjustments will be set forth
in the Prospectus Supplement relating thereto and in the applicable Common Stock
Warrant Certificate. Such terms will include the adjustment mechanism for the
exercise price of, and the number of shares of Common Stock covered by, a Common
Stock Warrant, the events requiring such adjustments, the events upon which the
Company may, in lieu of making such adjustments, make proper provisions so that
the Holder, upon exercise of such Holder's Common Stock Warrant, would be
treated as if such Holder had been a holder of the Common Stock received upon
such exercise, prior to the occurrence of such events, and provisions affecting
exercise of the Common Stock Warrants in the event of certain events affecting
the Common Stock.
SECTION 2.04. RESERVATION OF SHARES. The Company covenants that it will at
all times reserve and have available from its authorized shares of Common Stock
such number of shares of Common Stock as shall then be issuable on exercise of
all outstanding Common Stock Warrants. The Company covenants that all shares of
Common Stock issuable upon exercise of the Common Stock Warrants shall be
validly issued, fully paid and nonassessable, and free from all taxes, liens and
charges with respect to the issuance thereof.
9
<PAGE>
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
OF COMMON STOCK WARRANTS
SECTION 3.01. NO RIGHTS AS HOLDER OF COMMON STOCK CONFERRED BY COMMON STOCK
WARRANTS OR COMMON STOCK WARRANT CERTIFICATES. A Holder of a Common Stock
Warrant or Common Stock Warrant Certificate shall have none of the rights of a
holder of Common Stock.
SECTION 3.02. LOST, STOLEN, DESTROYED OR MUTILATED COMMON STOCK WARRANT
CERTIFICATES. Upon receipt by the Company and the Common Stock Warrant Agent of
evidence reasonably satisfactory to them of the ownership of and the loss,
theft, destruction or mutilation of any Common Stock Warrant Certificate and of
indemnity (other than in connection with any mutilated Common Stock Warrant
Certificates surrendered to the Common Stock Warrant Agent for cancellation)
reasonably satisfactory to them, the Company shall execute, and the Common Stock
Warrant Agent shall countersign and deliver, in exchange for or in lieu of each
lost, stolen, destroyed or mutilated Common Stock Warrant Certificate, a new
Common Stock Warrant Certificate evidencing a like number of Common Stock
Warrants of the same title. Upon the issuance of a new Common Stock Warrant
Certificate under this Section, the Company may require the payment of a sum
sufficient to cover any stamp or other similar tax or other governmental charge
that may be imposed in connection therewith and any other expenses (including
the fees and expenses of the Common Stock Warrant Agent) in connection
therewith. Every substitute Common Stock Warrant Certificate executed and
delivered pursuant to this Section in lieu of any lost, stolen or destroyed
Common Stock Warrant Certificate shall represent a contractual obligation of the
Company, whether or not such lost, stolen or destroyed Common Stock Warrant
Certificate shall be at any time enforceable by anyone, and shall be entitled to
the benefits of this Agreement equally and proportionately with any and all
other Common Stock Warrant Certificates, duly executed and delivered 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 of lost,
stolen, destroyed or mutilated Common Stock Warrant Certificates.
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SECTION 3.03. HOLDERS OF COMMON STOCK WARRANTS MAY ENFORCE RIGHTS.
Notwithstanding any of the provisions of this Agreement, any Holder may, without
the consent of the Common Stock Warrant Agent, enforce and may institute and
maintain any suit, action or proceeding against the Company suitable to enforce,
or otherwise in respect of, its right to exercise its Common Stock Warrants as
provided in the Common Stock Warrant Certificates and in this Agreement.
SECTION 3.04. MERGER, CONSOLIDATION, SALE, TRANSFER OR CONVEYANCE. (a) In
case any of the following shall occur while any Common Stock Warrants are
outstanding: (i) any reclassification or change of the outstanding shares of
Common Stock; or (ii) any consolidation or merger to which the Company is party
(other than a consolidation or a merger in which the Company is the continuing
corporation and which does not result in any reclassification of, or change in,
the outstanding shares of Common Stock issuable upon exercise of the Common
Stock Warrants); or (iii) any sale, conveyance or lease to another corporation
of the property of the Company as an entirety or substantially as an entirety;
then the Company shall make, or cause such successor or purchasing corporation
to make, appropriate provision by amendment of this Agreement or otherwise so
that the Holders of the Common Stock Warrants then outstanding shall (i) have
the right at any time thereafter and continuing until the Expiration Date, upon
exercise of such Common Stock Warrants, to receive the kind and amount of shares
of stock and other securities and property receivable upon such a
reclassification, change, consolidation, merger, sale, conveyance or lease
(collectively, an "Organic Change") as would be received by a holder of the
number of shares of Common Stock issuable upon exercise of such Common Stock
Warrant immediately prior to such Organic Change and (ii) have the same rights
and interests immediately after such Organic Change as they had immediately
prior to such Organic Change, including, without limitation, provisions for the
adjustment of the Common Stock Warrant Price and number of Warrant Shares, as
nearly as may be practicable. In the case of a consolidation, merger, sale,
conveyance or lease, the Company shall thereupon be relieved of any further
obligation hereunder or under the Common Stock Warrants, and the Company as the
predecessor corporation may thereupon or at any time thereafter be dissolved,
wound up or liquidated. Such successor or assuming corporation thereupon shall
cause to be signed, and shall issue
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either in its own name or in the name of the Company, any or all of the Common
Stock Warrants issuable hereunder which theretofore shall not have been signed
by the Company, and shall execute and deliver Common Stock in its own name, in
fulfillment of its obligations to deliver Common Stock upon exercise of the
Common Stock Warrants. All the Common Stock Warrants so issued shall in all
respects have the same legal rank and benefit under this Agreement as the Common
Stock Warrants theretofore or thereafter issued in accordance with the terms of
this Agreement as though all of such Common Stock Warrants had been issued at
the date of the execution hereof. In case of any such Organic Change, such
changes in phraseology and form (but not in substance) may be made in the Common
Stock Warrants and the related Common Stock Warrant Certificates thereafter to
be issued as may be appropriate.
(b) The Common Stock Warrant Agent may request a written opinion of legal
counsel reasonably satisfactory to the Common Stock Warrant Agent as conclusive
evidence that any such merger, consolidation, sale, transfer, conveyance or
other disposition of substantially all of the assets of the Company complies
with the provisions of this Section 3.04.
SECTION 3.05. TREATMENT OF HOLDERS OF COMMON STOCK WARRANT CERTIFICATES.
(a) In the event that the Common Stock Warrants are offered together with, and,
prior to the Detachable Date, are not detachable from, Offered Securities, the
Company, the Common Stock Warrant Agent and all other persons may, prior to such
Detachable Date, treat the holder of the Offered Security as the Holder of the
Common Stock Warrant Certificates initially attached thereto for any purpose and
as the person entitled to exercise the rights represented by the Common Stock
Warrants evidenced by such Common Stock Warrant Certificates, any notice to the
contrary notwithstanding. After the Detachable Date and prior to due
presentment of a Common Stock Warrant Certificate for registration of transfer,
the Company and the Common Stock Warrant Agent may treat the registered Holder
of a Common Stock Warrant Certificate as the absolute Holder thereof for any
purpose and as the person entitled to exercise the rights represented by the
Common Stock Warrants evidenced thereby, any notice to the contrary
notwithstanding.
(b) In all other cases, the Company and the Common Stock Warrant
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Agent may treat the registered Holder of a Common Stock Warrant Certificate as
the absolute Holder thereof for any purpose and as the person entitled to
exercise the rights represented by the Common Stock Warrants evidenced thereby,
any notice to the contrary notwithstanding.
ARTICLE IV
EXCHANGE AND TRANSFER OF COMMON STOCK WARRANTS
SECTION 4.01. COMMON STOCK WARRANT REGISTER: EXCHANGE AND TRANSFER OF
COMMON STOCK WARRANTS. The Common Stock Warrant Agent shall maintain, at its
corporate trust office [or at _________________], a register (the "Common Stock
Warrant Register") in which, upon the issuance of Common Stock Warrants, or on
and after the Detachable Date in the case of Common Stock Warrants not
separately transferable prior thereto, and, subject to such reasonable
regulations as the Common Stock Warrant Agent may prescribe, it shall register
Common Stock Warrant Certificates and exchanges and transfers thereof. The
Common Stock Warrant Register shall be in written form or in any other form
capable of being converted into written form within a reasonable time.
Except as provided in the following sentence, upon surrender at the
corporate trust office of the Common Stock Warrant Agent [or at
_____________________] , Common Stock Warrant Certificates may be exchanged for
one or more other Common Stock Warrant Certificates evidencing the same
aggregate number of Common Stock Warrants of the same title, or may be
transferred in whole or in part. A Common Stock Warrant Certificate evidencing
Common Stock Warrants that are not then transferable separately from the Offered
Security with which they were issued may be exchanged or transferred prior to
its Detachable Date only together with such Offered Security and only for the
purpose of effecting, or in conjunction with, an exchange or transfer of such
Offered Security; and on or prior to the Detachable Date, each exchange or
transfer of such Offered Security on the Security Register of the Offered
Securities shall operate also to exchange or transfer the related Common Stock
Warrants. A transfer shall be registered upon surrender of a Common Stock
Warrant Certificate to the Common Stock Warrant Agent at its corporate trust
office [or at _________________________] for transfer, properly endorsed or
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accompanied by appropriate instruments of transfer and written instructions for
transfer, all in form satisfactory to the Company and the Common Stock Warrant
Agent. Whenever a Common Stock Warrant Certificate is surrendered for exchange
or transfer, the Common Stock Warrant Agent shall countersign and deliver to the
person or persons entitled thereto one or more Common Stock Warrant Certificates
duly executed by the Company, as so requested. The Common Stock Warrant Agent
shall not be required to effect any exchange or transfer which will result in
the issuance of a Common Stock Warrant Certificate evidencing a fraction of a
Common Stock Warrant. All Common Stock Warrant Certificates issued upon any
exchange or transfer of a Common Stock Warrant Certificate shall be the valid
obligations of the Company, evidencing the same obligations, and entitled to the
same benefits under this Agreement, as the Common Stock Warrant Certificate
surrendered for such exchange or transfer.
No service charge shall be made for any exchange or transfer of Common
Stock Warrants, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
such exchange or transfer, in accordance with Section 2.02(f) hereof.
SECTION 4.02. TREATMENT OF HOLDERS OF COMMON STOCK WARRANTS. Every Holder
of a Common Stock Warrant, by accepting the Common Stock Warrant Certificate
evidencing the same, consents and agrees with the Company, the Common Stock
Warrant Agent and with every other Holder of Common Stock Warrants of the same
title that the Company and the Common Stock Warrant Agent may treat the Holder
of a Common Stock Warrant Certificate (or, if the Common Stock Warrant
Certificate is not then detachable, the Holder of the related Offered Security)
as the absolute owner of such Common Stock Warrant for all purposes and as the
person entitled to exercise the rights represented by such Common Stock Warrant,
any notice to the contrary notwithstanding.
SECTION 4.03. CANCELLATION OF COMMON STOCK WARRANT CERTIFICATES. In the
event that the Company shall purchase, redeem or otherwise acquire any Common
Stock Warrants after the issuance thereof, the Common Stock Warrant Certificate
or Certificates evidencing such Common Stock
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Warrants shall thereupon be delivered to the Common Stock Warrant Agent and be
canceled by it. The Common Stock Warrant Agent shall also cancel any Common
Stock Warrant Certificate (including any mutilated Common Stock Warrant
Certificate) delivered to it for exercise, in whole or in part, or for exchange
or transfer. Common Stock Warrant Certificates so canceled shall be delivered by
the Common Stock Warrant Agent to the Company from time to time, or disposed of
in accordance with the instructions of the Company.
ARTICLE V
CONCERNING THE COMMON STOCK WARRANT AGENT
SECTION 5.01. COMMON STOCK WARRANT AGENT. The Company hereby appoints
____________________________ as Common Stock Warrant Agent of the Company in
respect of the Common Stock Warrants upon the terms and subject to the
conditions set forth herein; and _______________________ hereby accepts such
appointment. The Common Stock Warrant Agent shall have the powers and authority
granted to and conferred upon it in the Common Stock Warrant Certificates and
hereby and such further powers and authority acceptable to it to act on behalf
of the Company as the Company may hereafter grant to or confer upon it. All of
the terms and provisions with respect to such powers and authority contained in
the Common Stock Warrant Certificates are subject to and governed by the terms
and provisions hereof.
SECTION 5.02. CONDITIONS OF COMMON STOCK WARRANT AGENT'S OBLIGATIONS. The
Common Stock Warrant Agent accepts its obligations set forth herein upon the
terms and conditions hereof, including the following, to all of which the
Company agrees and to all of which the rights hereunder of the Holders shall be
subject:
(a) COMPENSATION AND INDEMNIFICATION. The Company agrees to promptly pay
the Common Stock Warrant Agent the compensation set forth in Exhibit A hereto
and to reimburse the Common Stock Warrant Agent for reasonable out-of-pocket
expenses (including counsel fees) incurred by the Common Stock Warrant Agent in
connection with the services rendered hereunder by the Common Stock Warrant
Agent. Except as provided in
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Section 5.03, the Company also agrees to indemnify the Common Stock Warrant
Agent for, and to hold it harmless against, any loss, liability or expense
(including the reasonable costs and expenses of defending against any claim of
liability) incurred without negligence or bad faith on the part of the Common
Stock Warrant Agent arising out of or in connection with its appointment as
Common Stock Warrant Agent hereunder.
(b) AGENT FOR THE COMPANY. In acting under this Agreement and in
connection with any Common Stock Warrant Certificate, the Common Stock Warrant
Agent is acting solely as agent of the Company and does not assume any
obligation or relationship of agency or trust for or with any Holder.
(C) COUNSEL. The Common Stock Warrant Agent may consult with counsel
reasonably satisfactory to it, and the advice of such counsel shall be full and
complete authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in accordance with the advice of
such counsel.
(d) DOCUMENTS. The Common Stock Warrant Agent shall be protected and shall
incur no liability for or in respect of any action taken, suffered or omitted by
it in reliance upon any notice, direction, consent, certificate, affidavit,
statement or other paper or document reasonably believed by it to be, genuine
and to have been presented or signed by the proper parties.
(e) OFFICER'S CERTIFICATE. Whenever in the performance of its duties
hereunder the Common Stock Warrant Agent shall reasonably deem it necessary that
any fact or matter be proved or established by the Company prior to taking,
suffering or omitting any action hereunder, the Common Stock Warrant Agent may
(unless other evidence in respect thereof be herein specifically prescribed), in
the absence of bad faith on its part, rely upon a certificate signed by the Vice
Chairman and Chief Executive Officer, the President, a Vice President, the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of
the Company (an "Officer's Certificate'') delivered by the Company to the Common
Stock Warrant Agent.
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(f) ACTIONS THROUGH AGENTS. The Common Stock Warrant Agent may execute and
exercise any of the rights or powers hereby vested in it or perform any duty
hereunder either itself or by or through its attorneys or agents, and the Common
Stock Warrant Agent shall not be answerable or accountable for any act, default,
neglect or misconduct of any such attorney or agent or for any loss to the
Company resulting from such neglect or misconduct; provided, however, that
reasonable care shall have been exercised in the selection and continued
employment of such attorneys and agents.
(g) CERTAIN TRANSACTIONS. The Common Stock Warrant Agent, and any officer,
director or employee thereof, may become the owner of, or acquire any interest
in, any Common Stock Warrant, with the same rights that he, she or it would have
if it were not the Common Stock Warrant Agent, and, to the extent permitted by
applicable law, he, she or it may engage or be interested in any financial or
other transaction with the Company and may serve on, or as depositary, trustee
or agent for, any committee or body of holders of securities or other
obligations of the Company as if it were not the Common Stock Warrant Agent.
(h) NO LIABILITY FOR INTEREST. The Common Stock Warrant Agent shall not
be liable for interest on any monies at any time received by it pursuant to any
of the provisions of this Agreement or of the Common Stock Warrant Certificates,
except as otherwise agreed with the Company.
(i) NO LIABILITY FOR INVALIDITY. The Common Stock Warrant Agent shall incur
no liability with respect to the validity of this Agreement (except as to the
due execution hereof by the Common Stock Warrant Agent) or any Common Stock
Warrant Certificate (except as to the countersignature thereof by the Common
Stock Warrant Agent).
(j) NO RESPONSIBILITY FOR COMPANY REPRESENTATIONS. The Common Stock Warrant
Agent shall not be responsible for any of the recitals or representations
contained herein (except as to such statements or recitals as describe the
Common Stock Warrant Agent or action taken or to be taken by it or such
statements or recitals known by the Common Stock Warrant Agent to be false or
misleading) or in any Common Stock Warrant Certificate (except as to the Common
Stock Warrant Agent's
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countersignature on such Common Stock Warrant Certificate), all of which
recitals and representations are made solely by the Company.
(k) NO IMPLIED OBLIGATIONS. The Common Stock Warrant Agent shall be
obligated to perform only such duties as are specifically set forth herein, and
no other duties or obligations shall be implied. The Common Stock Warrant Agent
shall not be under any obligation to take any action hereunder that may subject
it to any expense or liability, the payment of which within a reasonable time is
not, in its reasonable opinion, assured to it. The Common Stock Warrant Agent
shall not be accountable or under any duty or responsibility for the use by the
Company of any Common Stock Warrant Certificate countersigned by the Common
Stock Warrant Agent and delivered by it to the Company pursuant to this
Agreement or for the application by the Company of the proceeds of the issuance
or exercise of Common Stock Warrants. The Common Stock Warrant Agent shall have
no duty or responsibility in case of any default by the Company in the
performance of its covenants or agreements contained herein or in any Common
Stock Warrant Certificate or in case of the receipt of any written demand from a
Holder with respect to such default, including, without limiting the generality
of the foregoing, any duty or responsibility to initiate or attempt to initiate
any proceedings at law or otherwise or, except as provided in Section 6.02
hereof, to make any demand upon the Company.
SECTION 5.03. COMPLIANCE WITH APPLICABLE LAWS. The Common Stock Warrant
Agent agrees to comply with all applicable federal and state laws imposing
obligations on it in respect of the services rendered by it under this Common
Stock Warrant Agreement and in connection with the Common Stock Warrants,
including (but not limited to) the provisions of United States federal income
tax laws regarding information reporting and backup withholding. The Common
Stock Warrant Agent expressly assumes all liability for its failure to comply
with any such laws imposing obligations on it, including (but not limited to)
any liability for failure to comply with any applicable provisions of United
States federal income tax laws regarding information reporting and backup
withholding.
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SECTION 5.04. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) The Company agrees, for the benefit of the Holders of the Common Stock
Warrants, that there shall at all times be a Common Stock Warrant Agent
hereunder until all the Common Stock Warrants are no longer exercisable.
(b) The Common Stock Warrant Agent may at any time resign as such agent by
giving written notice to the Company of such intention on its part, specifying
the date on which its desired resignation shall become effective, subject to the
appointment of a successor Common Stock Warrant Agent and acceptance of such
appointment by such successor Common Stock Warrant Agent, as hereinafter
provided. The Common Stock Warrant Agent hereunder may be removed at any time
by the filing with it of an instrument in writing signed by or on behalf of the
Company and specifying such removal and the date when it shall become effective.
Notwithstanding the two preceding sentences, such resignation or removal shall
take effect upon the appointment by the Company, as hereinafter provided, of a
successor Common Stock Warrant Agent (which shall be a banking institution
organized under the laws of the United States of America, any State thereof or
the District of Columbia, and having an office or an agent's office south of
Chambers Street in the Borough of Manhattan, The City of New York) and the
acceptance of such appointment by such successor Common Stock Warrant Agent. In
the event a successor Common Stock Warrant Agent has not been appointed and has
not accepted its duties within 90 days of the Common Stock Warrant Agent's
notice of resignation, the Common Stock Warrant Agent may apply to any court of
competent jurisdiction for the designation of a successor Common Stock Warrant
Agent. The obligation of the Company under Section 5.02(a) shall continue to
the extent set forth therein notwithstanding the resignation or removal of the
Common Stock Warrant Agent.
(c) In case at any time the Common Stock Warrant Agent shall resign, or
shall be removed, or shall become incapable of acting, or shall be adjudged
bankrupt or insolvent, or shall file a petition seeking relief under Title 11 of
the United States Code, as now constituted or hereafter amended, or under any
other applicable federal or state bankruptcy or similar law, or shall make an
assignment for the benefit of its creditors,
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or shall consent to the appointment of a receiver or custodian of all or any
substantial part of its property, or shall admit in writing its inability to pay
or meet its debts as they mature, or if a receiver or custodian for it or for
all or any substantial part of its property shall be appointed, or if an order
of any court shall be entered for relief against it under the provisions of
Title 11 of the United States Code, as now constituted or hereafter amended, or
under any other applicable federal or state bankruptcy or similar law, or if any
public officer shall have taken charge or control of the Common Stock Warrant
Agent or of its property or affairs, for the purpose of rehabilitation,
conservation or liquidation, a successor Common Stock Warrant Agent, qualified
as aforesaid, shall be appointed by the Company by an instrument in writing,
filed with the successor Common Stock Warrant Agent. Upon the appointment as
aforesaid of a successor Common Stock Warrant Agent and acceptance by the latter
of such appointment, the Common Stock Warrant Agent so superseded shall cease to
be Common Stock Warrant Agent hereunder.
(d) Any successor Common Stock Warrant Agent appointed hereunder shall
execute, acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment hereunder, and thereupon such successor
Common Stock Warrant Agent, without any further act, deed or conveyance, shall
become vested with all the authority, rights, powers, trusts, immunities, duties
and obligations of such predecessor with like effect as if originally named as
Common Stock Warrant Agent hereunder, and such predecessor, upon payment of its
charges and disbursements then unpaid, shall thereupon become obligated to
transfer, deliver and pay over, and such successor Common Stock Warrant Agent
shall be entitled to receive all moneys, securities and other property on
deposit with or held by such predecessor (together with any books and records
relating thereto), as Common Stock Warrant Agent hereunder.
(e) The Company shall cause notice of the appointment of any successor
Common Stock Warrant Agent to be mailed by first class mail, postage prepaid, to
each Holder at its address appearing on the Common Stock Warrant Register. Such
notice shall set forth the name and address of the successor Common Stock
Warrant Agent. Failure to give any notice provided for in this Section 5.04(e),
or any defect therein, shall not,
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however, affect the legality or validity of the appointment of the successor
Common Stock Warrant Agent.
(f) Any corporation into which the Common Stock Warrant Agent hereunder may
be merged or converted or any corporation with which the Common Stock Warrant
Agent may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Common Stock Warrant Agent shall be a
party, or any corporation to which the Common Stock Warrant Agent shall sell or
otherwise transfer all or substantially all of the assets and business of the
Common Stock Warrant Agent, provided that it shall be qualified as aforesaid,
shall be the successor Common Stock Warrant Agent under this Agreement without
the execution or filing of any paper or any further act on the part of any of
the parties hereto.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. SUPPLEMENTS AND AMENDMENTS.
(a) This Agreement and the Common Stock Warrants may be supplemented or
amended by the Company and the Common Stock Warrant Agent, without the consent
of the Holders of Common Stock Warrants, for the purpose of curing any
ambiguity, or of curing, correcting or supplementing any defective or
inconsistent provision contained herein or therein or in any other manner which
the Company may deem to be necessary or desirable and which will not materially
adversely affect the interests of the Holders of the Common Stock Warrants.
Every Holder of Common Stock Warrants, whether issued before or after any such
supplement or amendment, shall be bound thereby. Promptly after the
effectiveness of any supplement or amendment that affects the interests of the
Holders, the Company shall give notice thereof, as provided in Section 5.04(e)
hereof, to the Holders affected thereby, setting forth in general terms the
substance of such supplement or amendment.
(b) The Company and the Common Stock Warrant Agent may modify or amend this
Agreement and the Common Stock Warrant Certificates with
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the consent of the Holders of not fewer than a majority in number of the then
outstanding unexercised Common Stock Warrants affected by such modification or
amendment, for any purpose; PROVIDED, HOWEVER, that no such modification or
amendment that shortens the period of time during which the Common Stock
Warrants may be exercised, or increases the Common Stock Warrant Price (except
as provided in this Agreement) or otherwise materially and adversely affects the
exercise rights of the Holders or reduces the percentage of Holders of
outstanding Common Stock Warrants the consent of which is required for
modification or amendment of this Agreement or the Common Stock Warrants, may be
made without the consent of each Holder affected thereby.
SECTION 6.02. NOTICES AND DEMANDS TO THE COMPANY AND COMMON STOCK WARRANT
AGENT. If the Common Stock Warrant Agent shall receive any notice or demand
addressed to the Company by any Holder pursuant to the provisions of the Common
Stock Warrant Certificates, the Common Stock Warrant Agent shall promptly
forward such notice or demand to the Company.
SECTION 6.03. ADDRESSES FOR NOTICES. Any communications from the Company
to the Common Stock Warrant Agent with respect to this Agreement shall be
addressed to [name of Common Stock Warrant Agent], [__________________________,
______________], Attention: [Corporate Trust Department]; any communications
from the Common Stock Warrant Agent to the Company with respect to this
Agreement shall be addressed to Motorola, Inc., 1303 East Algonquin Road,
Schaumburg, Illinois 60196, Attention: Treasurer (with a copy to the
Secretary); or such other addresses as shall be specified in writing by the
Common Stock Warrant Agent or by the Company.
SECTION 6.04. GOVERNING LAW. THIS AGREEMENT AND THE COMMON STOCK WARRANTS
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
___________ APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN
SUCH STATE WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
SECTION 6.05. GOVERNMENTAL APPROVALS. The Company will from time to time
use all reasonable efforts to obtain and keep effective any and all
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permits, consents and approvals of governmental agencies and authorities and the
national securities exchange on which the Common Stock Warrants may be listed or
authorized for trading and to make all filings under the United States federal
and state laws, which may be or become requisite in connection with the
issuance, sale, trading, transfer or delivery of the Common Stock Warrants, and
the exercise of the Common Stock Warrants.
SECTION 6.06. PERSONS HAVING RIGHTS UNDER COMMON STOCK WARRANT AGREEMENT.
Nothing in this Agreement, expressed or implied, and nothing that may be
inferred from any of the provisions hereof is intended, or shall be construed,
to confer upon, or give to, any person or corporation other than the Company,
the Common Stock Warrant Agent and the Holders any right, remedy or claim under
or by reason of this Agreement or of any covenant, condition, stipulation,
promise or agreement herein; and all covenants, conditions, stipulations,
promises and agreements herein contained shall be for the sole and exclusive
benefit of the Company and the Common Stock Warrant Agent and their successors
and of the Holders of Common Stock Warrant Certificates.
SECTION 6.07. DELIVERY OF PROSPECTUS. The Company will furnish to the
Common Stock Warrant Agent sufficient copies of a prospectus or prospectuses
relating to the Common Stock deliverable upon exercise of any outstanding Common
Stock Warrants (each a "Prospectus"), and the Common Stock Warrant Agent agrees
to deliver to the Holder of a Common Stock Warrant, prior to or concurrently
with the delivery of the Common Stock issued upon the exercise thereof, a copy
of the Prospectus relating to such Common Stock.
SECTION 6.08. HEADINGS. The descriptive headings of the several Articles
and Sections and the Table of Contents of this Agreement are for convenience
only and shall not control or affect the meaning or construction of any of the
provisions hereof.
SECTION 6.09. COUNTERPARTS. This Agreement may be executed by the parties
hereto in any number of counterparts, each of which when so executed and
delivered shall be deemed to be an original; but all such counterparts shall
together constitute but one and the same instrument.
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SECTION 6.10. INSPECTION OF AGREEMENT. A copy of this Agreement shall be
available during normal business hours at the principal corporate trust office
of the Common Stock Warrant Agent, for inspection by any Holder of Common Stock
Warrants. The Common Stock Warrant Agent may require such Holder to submit its
Common Stock Warrant Certificate for inspection prior to making such copy
available.
SECTION 6.11. FURTHER INSTRUMENTS. The parties shall execute and deliver
any and all such other instruments and shall take any and all such other actions
as may be reasonable or necessary to carry out the intention of this Agreement.
SECTION 6.12. SEVERABILITY. If any provision of this Agreement shall be
held, declared or pronounced void, voidable, invalid, unenforceable or
inoperative for any reason by any court of competent jurisdiction, government
authority or otherwise, such holding, declaration or pronouncement shall not
affect adversely any other provision of this Agreement, which shall otherwise
remain in full force and effect and be enforced in accordance with its terms,
and the effect of such holding, declaration or pronouncement shall be limited to
the territory or jurisdiction in which made.
SECTION 6.13. WAIVER. All the rights and remedies of either party under
this Agreement are cumulative and not exclusive of any other rights and remedies
as provided by law. No delay or failure on the part of either party in the
exercise of any right or remedy arising from a breach of this Agreement shall
operate as a waiver of any subsequent right or remedy arising from a subsequent
breach of this Agreement. The consent of any party where required hereunder to
any act or occurrence shall not be deemed to be a consent to any other action or
occurrence.
SECTION 6.14. TERMINATION. This Agreement shall terminate as of the close
of business on the Expiration Date, or such earlier date upon which all Common
Stock Warrants shall have been exercised or redeemed, except that the Common
Stock Warrant Agent shall account to the Company as to all Common Stock Warrants
outstanding and all cash held by it as of the close of business on the
Expiration Date.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement 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.
MOTOROLA, INC.
[Seal] By
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
Attest:
By
-------------------------------
Name:
-------------------------------
Title:
-------------------------------
--------------------------------------, as
Common Stock Warrant Agent
[Seal] By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
Attest:
By:
------------------------
Name:
------------------------
Title:
------------------------
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Exhibit A
to
Common Stock Warrant Agreement dated as of ___________ , 19____
[Compensation of Common Stock Warrant Agent]
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COMMON STOCK COMMON STOCK
M000000
INCORPORATED UNDER THE LAWS THIS CERTIFICATE IS TRANSFERABLE IN
OF THE STATE OF DELAWARE THE CITY OF NEW YORK OR IN CHICAGO
MOTOROLA, INC.
SEE REVERSE FOR
CERTAIN DEFINITIONS
THIS CERTIFIES THAT CUSIP 620076 10 9
SPECIMEN
IS THE OWNER OF
FULL-PAID AND NON-ASSESSABLE COMMON SHARES OF THE PAR VALUE OF $ 3 EACH
OF MOTOROLA, INC. TRANSFERABLE ON THE BOOKS OF THE CORPORATION BY THE HOLDER
HEREOF IN PERSON OR BY DULY AUTHORIZED ATTORNEY UPON SURRENDER OF THIS
CERTIFICATE PROPERLY ENDORSED. THIS CERTIFICATE IS NOT VALID UNTIL
COUNTERSIGNED BY THE TRANSFER AGENT AND REGISTERED BY THE REGISTRAR.
WITNESS THE CORPORATE SEAL OF SAID CORPORATION AND THE SIGNATURES OF ITS
DULY AUTHORIZED OFFICERS.
[SEAL]
COUNTERSIGNED AND REGISTERED:
HARRIS TRUST AND SAVINGS BANK
(CHICAGO)
TRANSFER AGENT AND REGISTRAR
BY
AUTHORIZED SIGNATURE
SECRETARY VICE CHAIRMAN OF THE BOARD
AND CHIEF EXECUTIVE OFFICER
<PAGE>
MOTOROLA, INC.
The Corporation will furnish without charge to each stockholder who so
requests, the powers, designations, preferences and relative, participating,
optional or other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences and/or
rights. Such request should be sent to the Secretary of the Corporation at its
executive office, or to its Transfer Agent named on the face of this
certificate.
The following abbreviations, when used in the inscription on the face of this
certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -as tenants in common UNIF GIFT MIN ACT- CUSTODIAN
----- ------
TEN ENT -as tenants by the entireties (Cust) (Minor)
under Uniform Gifts to Minors
JT TEN -as joint tenants with right of survivorship ACT _____________
(State)
and not as tenants in common
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, HEREBY SELL, ASSIGN AND TRANSFER UNTO
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- ------------------------------------------
- --------------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------SHARES
OF THE CAPITAL STOCK REPRESENTED BY THE WITHIN CERTIFICATE, AND DO HEREBY
IRREVOCABLY CONSTITUTE AND APPOINT
- -------------------------------------------------------------------ATTORNEY TO
TRANSFER THE SAID STOCK ON THE BOOKS OF THE WITHIN NAMED CORPORATION WITH FULL
POWER OF SUBSTITUTION IN THE PREMISES
DATED
-----------------------------
------------------------------------------------------
THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH
THE NAME AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN
EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR
ANY CHANGE WHATEVER
This certificate also evidences and entitles the holder hereof to certain Rights
as set forth in a Rights Agreement between Motorola, Inc. and Harris Trust and
Savings Bank dated as of November 9, 1988 and amended as of August 7, 1990 (the
"Rights Agreement"), the terms of which are hereby incorporated herein by
reference and a copy of which is on file at the principal executive offices of
Motorola Inc. Under certain circumstances, as set forth in the Rights Agreement,
such Rights will be evidenced by separate certificates and will no longer be
evidenced by this certificate Motorola Inc. will mail to the holder of this
certificate a copy of the Rights Agreement without charge promptly following
receipt of a written request therefor. Under certain circumstances, Rights
beneficially owned by Acquiring Persons as defined in the Rights Agreement and
any subsequent holder of such Rights, may become null and void.
- --------------------------------------------------------------------------------
THIS SPACE MUST NOT BE COVERED IN ANY WAY
<PAGE>
Exhibit 4(l)
FORM OF WARRANT CERTIFICATE*
(Face of Warrant Certificate)
[Form of Legend if Offered Securities Prior to ________________, this
warrant
with Warrants that are not immediately Certificate cannot be transferred or
detachable. exchanged unless attached to a [Title
of Offered Securities].]
[Form of Legend if Warrants are not Prior to ________________, Warrants
immediately exercisable. evidenced by this Warrant Certificate
cannot be exercised.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE
WARRANT AGENT AS PROVIDED HEREIN
MOTOROLA, INC.
WARRANTS TO PURCHASE
COMMON STOCK
VOID AFTER 5 P.M., NEW YORK CITY TIME, ON ___________________________
No. _____________________ _____________________ Warrants
This certifies that ________________ or registered assigns is the
registered owner of the above indicated number of Warrants, each Warrant
entitling such owner (if Offered Securities with Warrants that are not
immediately detachable --. subject to the registered owner qualifying as a
"holder" of this Warrant Certificate, as hereinafter defined] to purchase, at
any time [after 5 P.M. New York City time, on ______________________ and] on or
before 5 P.M., New York City time, on _____________________, _______________
shares of Common Stock (the "Warrant Securities"), of Motorola, Inc. (the
"Company") on the following basis: [during the period from ____________,
through and including ____________________, each Warrant shall entitle the
holder thereof, subject to the provisions of the Warrant Agreement under which
these Warrants are issued, to purchase from the Company the number of Warrant
Securities stated above in this Warrant Certificate at the exercise price of
$________, during the period from ___________, through and including
____________,] the exercise price of each Warrant will be ____________ (the
"Warrant Price"), subject to [insert adjustment terms and conditions]. Other
than as provided above, no adjustment shall be made for any dividends
- ---------------
* For Common Stock
<PAGE>
on any Warrant Securities issuable upon exercise of any Warrant. The holder may
exercise the Warrants evidenced hereby by providing certain information set
forth on the back hereof and by paying in full [in lawful money of the United
States of America] [in cash or by certified check or official bank check or by
bank wire transfer, in each case, [by bank wire transfer] in [immediately
available] [next-day] funds, the Warrant Price for each Warrant exercised to the
Warrant Agent (as hereinafter defined) and by surrendering this Warrant
Certificate, with the purchase form on the back hereof duly executed, at the
corporate trust office of [name of Warrant Agent], or its successor as warrant
agent (the "Warrant Agent"), [or ___________], which is, on the date hereof, at
the address specified on the reverse hereof, and upon compliance with and
subject to the conditions set forth herein and in the Warrant Agreement (as
hereinafter defined).
The term "holder" as used herein shall mean (if Offered Securities
with Warrants that are not immediately detachable --, prior to _______ ( the
"Detachable Date"), the registered owner of the Company's [title of Offered
Securities] to which this Warrant Certificate is initially attached and after
such Detachable Date,] the person in whose name at the time of this Warrant
Certificate shall be registered upon the books to be maintained by the Warrant
Agent for that purpose pursuant to Section 4.01 of the Warrant Agreement.
Any whole number of Warrants evidenced by this Warrant Certificate may
be exercised to purchase Warrant Securities in registered form. Upon any
exercise of fewer than all of the Warrants evidenced by this Warrant
Certificate, there shall be issued to the holder hereof a new Warrant
Certificate evidencing the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance with the
Common Stock Warrant Agreement dated as of __________________ (the "Warrant
Agreement") by and between the Company and the Warrant Agent and is subject to
the terms and provisions contained in the Warrant Agreement, to all of which
terms and provisions the holder of this Warrant Certificate consents by
acceptance hereof. Copies of the Warrant Agreement are on file at the above-
mentioned office of the Warrant Agent [and at ___________________].
[If Offered Securities with Warrants that are not immediately
detachable -- Prior to _________________, this Warrant Certificate may be
exchanged or transferred only together with the [Title of Offered Securities]
(the "Offered Securities") to which this Warrant Certificate was initially
attached, and only for the purpose of effecting, or in conjunction with, an
exchange or transfer of such Offered Security. After such date, transfer] [if
Offered Securities with Warrants that are immediately detachable -- Transfer] of
this Warrant Certificate may be registered when this Warrant Certificate is
surrendered at the corporate trust office of the Warrant Agent [or
_____________] by the registered
A-2
<PAGE>
owner or such owner's assigns, in person or by an attorney duly authorized in
writing, in the manner and subject to the limitations provided in the Warrant
Agreement.)
[If Offered Securities with Warrants that are not immediately
detachable -- Except as provided in the immediately preceding paragraph, after]
[If Offered Securities with Warrants which are immediately detachable or Warrant
alone -- After] countersignature by the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant Certificate may be
exchanged at the corporate trust office of the Warrant Agent [or
_________________] for Warrant Certificates representing the same aggregate
number of Warrants.
This Warrant Certificate shall not entitle the holder hereof to any of
the rights of a holder of the Warrant Securities, including, without limitation,
the right to receive payments of dividends or distributions, if any, on the
Warrant Securities or to exercise any voting rights.
This Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
Dated as of ____________________.
MOTOROLA, INC.
By: ______________________________
Attest:
By: ____________________________
Countersigned:
________________________________
As Warrant Agent
By:_____________________________
Authorized Signature
A-3
<PAGE>
[REVERSE OF WARRANT CERTIFICATE]
INSTRUCTIONS FOR EXERCISE OF WARRANT
To exercise the Warrants evidenced hereby, the holder of this Warrant
Certificate must pay in United States dollars [in cash or by certified check or
official bank check or by bank wire transfer] [by bank wire transfer] in
[immediately available] [next-day] funds the Warrant Price in full for each of
the Warrants exercised to [insert name of Warrant Agent] [Corporate Trust
Department] [insert address of Warrant Agent], Attn. _____________________ [or
_________________], which [payment] [wire transfer] must specify the name of the
holder and the number of Warrants exercised by such holder. In addition, such
holder must complete the information required below and present this Warrant
Certificate in person or by mail (certified or registered mail is recommended)
to the Warrant Agent at the appropriate address set forth below. This Warrant
Certificate, completed and duly executed, must be received by the Warrant Agent
within five business days of the [payment] [wire transfer].
TO BE EXECUTED UPON EXERCISE OF WARRANT
The undersigned hereby irrevocably elects to exercise _____ Warrants,
evidenced by this Warrant Certificate, to purchase ___ shares of Common Stock
(the "Warrant Securities") of Motorola, Inc. and represents that the undersigned
has tendered payment for such Warrant Securities in Dollars [in cash or by
certified check or official bank check or by bank wire transfer, in each case]
[by bank wire transfer] in [immediately available] [next-day] funds to the order
of Motorola, Inc., c/o [insert name and address of Warrant Agent], in the amount
of __________ in [insert name and address of Warrant Agent] in the amount of
_________ in accordance with the terms hereof. The undersigned requests that
said amount of Warrant Securities be in fully registered form in the authorized
denominations, registered in such names and delivered all as specified in
accordance with the instructions set forth below.
A-4
<PAGE>
If the number of Warrants exercised is less than all of the Warrants
evidenced hereby, the undersigned requests that a new Warrant Certificate
representing the remaining Warrants evidenced hereby be issued and delivered to
the undersigned unless otherwise specified in the instruction below.
Dated: ________________________ Name ___________________________
- ------------------------------- Address ________________________
(Insert Social Security or Other ________________________
Identifying Number of Holder) (Signature must conform in all respects
Signature Guaranteed to name of holder as specified on the
- ------------------------------- of this Warrant Certificate and must
bear a signature guarantee by a bank,
trust company or member broker of the
New York Stock Exchange)
The Warrants evidenced hereby may be exercised at the following
addresses:
By hand at ____________________________________________________________
____________________________________________________________
____________________________________________________________
By mail at ____________________________________________________________
____________________________________________________________
____________________________________________________________
[Instructions as to form and delivery of Warrant Securities
and, if applicable, Warrant Certificates evidencing
unexercised Warrants -- complete as appropriate.]
A-5
<PAGE>
ASSIGNMENT
[FORM OF ASSIGNMENT TO BE EXECUTED IF HOLDER
DESIRES TO TRANSFER WARRANTS EVIDENCED HEREBY]
FOR VALUE RECEIVED ____________________________ hereby sells, assigns
and transfers unto
________________________________ _______________________________
(Please print name) (Please insert social security or
other identifying number)
________________________________
(Address)
________________________________
(City, including zip code)
the warrants represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint ______________ as Attorney to transfer said
Warrant Certificate on the books of the Warrant Agent with full power of
substitution in the premises.
Dated:
_______________________________
Signature
(Signature must conform in all respects to name of
holder as specified on the face of this Warrant
Certificate and must bear a signature guarantee by
a bank, trust company or member broker of the New
York Stock Exchange)
Signature Guaranteed
________________________________
A-6
<PAGE>
Exhibit 4(m)
FORM OF WARRANT CERTIFICATE*
(Face of Warrant Certificate)
[Form of Legend if Offered Securities Prior to , this warrant
with Warrants that are not immediately Certificate cannot be transferred or
detachable. exchanged unless attached to a [Title
of Offered Securities].]
[Form of Legend if Warrants are not Prior to , Warrants
immediately exercisable. evidenced by this Warrant Certificate
cannot be exercised.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE
WARRANT AGENT AS PROVIDED HEREIN
MOTOROLA, INC.
WARRANTS TO PURCHASE
[TITLE OF WARRANT SECURITIES]
VOID AFTER 5 P.M., NEW YORK CITY TIME, ON ___________________________
No. _____________________ _____________________ Warrants
This certifies that [ or registered assigns is the
registered] [the bearer hereof is the] owner of the above indicated number of
Warrants, each Warrant entitling such owner (if Offered Securities with Warrants
that are not immediately detachable --. subject to the [bearer] [registered
owner] qualifying as a "holder" of this Warrant Certificate, as hereinafter
defined] to purchase, at any time [after 5 P.M. New York City time, on
and] on or before 5 P.M., New York City time, on , $
principal amount of [Title of Warrant Securities] (the "Warrant Securities"), of
Motorola, Inc. (the "Company") issued and to be issued under the Indenture (as
hereinafter defined), on the following basis: [during the period from
, through and including , each Warrant shall entitle the holder
thereof, subject to the provisions of the Warrant Agreement under which these
Warrants are issued, to purchase from the Company the principal amount of
Warrant Securities stated above in this Warrant Certificate at the exercise
price of $ , plus [accrued amortization of the original issue discount]
[accrued interest] from _________________; [during the period from
, through and including , the exercise price of each Warrant
will be ________________
- ---------------
* For Debt Securities
<PAGE>
any, from the most recent date from which interest shall have been paid on the
plus [accrued amortization, if any, of the original issue discount] [accrued
interest], if Warrant Securities or, if no interest shall have been paid on the
Warrant Securities, from ______________;] [in each case, the original issue
discount will be amortized at a __ percent annual rate, computed on an annual
basis using the "interest method and using a 360-day year consisting of twelve
30-day months] (the "Warrant Price"). [The original issue discount for each
__________ principal amount of Warrant Securities is ___________.] The holder
may exercise the Warrants evidenced hereby by providing certain information set
forth on the back hereof and by paying in full [in lawful money of the United
States of America] [applicable currency] [in cash or by certified check or
official bank check or by bank wire transfer, in each case, [by bank wire
transfer] in [immediately available] [next-day] funds, the Warrant Price for
each Warrant exercised to the Warrant Agent (as hereinafter defined) and by
surrendering this Warrant Certificate, with the purchase form on the back hereof
duly executed, at the corporate trust office of [name of Warrant Agent], or its
successor as warrant agent (the "Warrant Agent"), [or ___________], which is, on
the date hereof, at the address specified on the reverse hereof, and upon
compliance with and subject to the conditions set forth herein and in the
Warrant Agreement (as hereinafter defined).
The term "holder" as used herein shall mean (if Offered Securities
with Warrants that are not immediately detachable --, prior to _______ ( the
"Detachable Date"), the registered owner of the Company's [title of Offered
Securities] to which this Warrant Certificate is initially attached and after
such Detachable Date,] [the bearer of this Warrant Certificate] [the person in
whose name at the time of this Warrant Certificate shall be registered upon the
books to be maintained by the Warrant Agent for that purpose pursuant to Section
4.01 of the Warrant Agreement].
Any whole number of Warrants evidenced by this Warrant Certificate may
be exercised to purchase Warrant Securities in [registered] [bearer] form in
denominations of ______________ and any integral multiples thereof. Upon any
exercise of fewer than all of the Warrants evidenced by this Warrant
Certificate, there shall be issued to the holder hereof a new Warrant
Certificate evidencing the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance with the
Debt Warrant Agreement dated as of __________________ (the "Warrant Agreement")
by and between the Company and the Warrant Agent and is subject to the terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions the holder of this Warrant Certificate consents by acceptance hereof.
Copies of the Warrant Agreement are on file at the above-mentioned office of the
Warrant Agent [and at ___________________].
A-2
<PAGE>
[If Offered Securities with Warrants that are not immediately
detachable -- Prior to _________________, this Warrant Certificate may be
exchanged or transferred only together with the [Title of Offered Securities]
(the "Offered Securities") to which this Warrant Certificate was initially
attached, and only for the purpose of effecting, or in conjunction with, an
exchange or transfer of such Offered Security. After such date, transfer] [if
Offered Securities with Warrants that are immediately detachable -- Transfer]
[If registered Warrants - of this Warrant Certificate shall be effected by
delivery and the Company and the Warrant Agent [or _____________] for Warrant
Certificates representing the same aggregate number of warrants.
This Warrant Certificate shall not entitle the holder hereof to any of
the rights of a holder of the Warrant Securities, including, without limitation,
the right to receive payments of principal of, premium, if any, or interest, if
any, on the Warrant Securities or to enforce any of the covenants of the
Indenture.
This Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
Dated as of ____________________.
MOTOROLA, INC.
By: ______________________________
Attest:
By: ____________________________
Countersigned:
________________________________
As Warrant Agent
By: ____________________________
Authorized Signature
A-3
<PAGE>
[REVERSE OF WARRANT CERTIFICATE]
INSTRUCTIONS FOR EXERCISE OF WARRANT
To exercise the Warrants evidenced hereby, the holder of this Warrant
Certificate must pay in United States dollars [applicable currency] [in cash or
by certified check or official bank check or by bank wire transfer] [by bank
wire transfer] in [immediately available] [next-day] funds the Warrant Price in
full for each of the Warrants exercised to [insert name of Warrant Agent]
[Corporate Trust Department] [insert address of Warrant Agent] [Corporate Trust
Department] [insert address of Warrant Agent], Attn. _____________________ [or
_________________], which [payment] [wire transfer] must specify the name of the
holder and the number of Warrants exercised by such holder. In addition, such
holder must complete the information required below [including the applicable
certification with respect to Warrant Securities in bearer form), and present
this Warrant Certificate in person or by mail (certified or registered mail is
recommended) to the Warrant Agent at the appropriate address set forth below.
This Warrant Certificate, completed and duly executed, must be received by the
Warrant Agent within five business days of the [payment] [wire transfer].
TO BE EXECUTED UPON EXERCISE OF WARRANT
The undersigned hereby irrevocably elects to exercise _____ Warrants,
evidenced by this Warrant Certificate, to purchase ___ principal amount of the
[Title of Warrant Securities] (the "Warrant Securities") of Motorola, Inc. and
represents that the undersigned has tendered payment for such Warrant Securities
in Dollars [applicable currency] [in cash or by certified check or official bank
check or by bank wire transfer, in each case] [by bank wire transfer] in
[immediately available] [next-day] funds to the order of Motorola, Inc., c/o
[insert name and address of Warrant Agent], in the amount of __________ in
[insert name and address of Warrant Agent] in the amount of _________ in
accordance with the terms hereof. The undersigned requests that said amount of
Warrant Securities be in [bearer] [fully registered] form in the authorized
denominations, registered in such names and delivered all as specified in
accordance with the instructions set forth below. [However, unless otherwise
designated by the Company, Warrant Securities in bearer form shall be delivered
to or upon the order of the holder of such Warrant Certificate only outside the
United States and its possessions.]
A-4
<PAGE>
If the number of Warrants exercised is less than all of the Warrants
evidenced hereby, the undersigned requests that a new Warrant Certificate
representing the remaining Warrants evidenced hereby be issued and delivered to
the undersigned unless otherwise specified in the instruction below.
Dated: ________________________ Name ___________________________
- ------------------------------- Address ________________________
(Insert Social Security or Other ________________________
Identifying Number of Holder) (Signature must conform in all respects
Signature Guaranteed to name of holder as specified on the
- ------------------------------- of this Warrant Certificate and must
bear a signature guarantee by a bank,
trust company or member broker of the
New York Stock Exchange)
The Warrants evidenced hereby may be exercised at the following
addresses:
By hand at ____________________________________________________________
____________________________________________________________
____________________________________________________________
By mail at ____________________________________________________________
____________________________________________________________
____________________________________________________________
[Instructions as to form and delivery of Warrant Securities
and, if applicable, Warrant Certificates evidencing
unexercised Warrants -- complete as appropriate.]
A-5
<PAGE>
[IF REGISTERED WARRANTS] - ASSIGNMENT
[FORM OF ASSIGNMENT TO BE EXECUTED IF HOLDER
DESIRES TO TRANSFER WARRANTS EVIDENCED HEREBY]
FOR VALUE RECEIVED ____________________________ hereby sells, assigns
and transfers unto
________________________________ _______________________________
(Please print name) (Please insert social security or
other identifying number)
________________________________
(Address)
________________________________
(City, including zip code)
the warrants represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint ______________ as Attorney to transfer said
Warrant Certificate on the books of the Warrant Agent with full power of
substitution in the premises.
Dated:
_______________________________
Signature
(Signature must conform in all respects to name of
holder as specified on the face of this Warrant
Certificate and must bear a signature guarantee by
a bank, trust company or member broker of the New
York Stock Exchange)
Signature Guaranteed
________________________________
A-6
<PAGE>
Exhibit 5
August ___, 1994
Motorola, Inc.
1303 E. Algonquin Road
Schaumburg, Illinois 60196
Ladies and Gentlemen:
I am a Senior Corporate Counsel at Motorola Inc. (the "Corporation") and,
as such, I have acted as counsel for the Corporation in the preparation of a
Registration Statement on Form S-3 (the "Registration Statement") being filed
with the Securities and Exchange Commission under the Securities Act of 1933, a
amended, (the "Securities Act") in connection with the proposed offer and sale
of the following securities (the "Securities") of the Corporation having an
aggregate initial offering price of up to $800,000,000: (i) senior debt
securities generally in the form filed as Exhibit 4(g) to the Registration
Statement, with appropriate insertions (the "Senior Debt Securities"), (ii)
subordinated debt securities generally in the forms filed as Exhibit 4(h) and as
an attachment to Exhibit 4(f) to the Registration Statement, with appropriate
insertions (the "Subordinated Debt Securities"), and together with the Senior
Debt Securities, (the "Debt Securities"), (iii) common stock, par value $3 per
share (the "Common Stock") of the Corporation and (iv) warrants to purchase Debt
Securities or Common Stock (collectively, the "Warrants"). The Securities may
be offered separately or as part of units with other Securities, in separate
series, in amounts, at prices, and on terms to be set forth in the prospectus
and one or more supplements to the prospectus (collectively, the "Prospectus")
constituting a part of the Registration Statement, and in the Registration
Statement.
The Senior Debt Securities are to be issued under one or more indentures
generally in the form filed as Exhibit 4(d) to the Registration Statement, with
appropriate insertions (the "Senior Indenture") to be entered into by the
Corporation and a trustee or trustees to be named by the Corporation. The
Subordinated Debt Securities are to be issued under one or more indentures
generally in the forms filed as Exhibits 4(e) and 4(f) to the Registration
Statement, with appropriate insertions (the "Subordinated Indentures") to be
entered into by the Corporation and a trustee or trustees named by the
Corporation. The Warrants are to be issued under warrant agreements generally
in the forms filed as Exhibits 4(i) and 4(j) to the Registration Statement, with
appropriate insertions (the "Warrant Agreements") to be entered into by the
Corporation and warrant agents to be named by the Corporation.
Certain terms of the Securities to be issued by the Corporation from time
to time will be approved by the Board of Directors of the Corporation or a
committee thereof or certain authorized officers of the Corporation as part of
the corporate action taken and to be taken (the "Corporate Proceedings") in
connection with issuance of
<PAGE>
Motorola, Inc.
August ___, 1994
Page 2
the Securities. I have examined or am otherwise familiar with the Restated
Certificate of Incorporation, as amended, of the Corporation, the Bylaws of the
Corporation, as amended, the Registration statement, such of the Corporate
Proceedings as have occurred as of the date hereof, and such other documents,
records, and instruments as I have deemed necessary or appropriate for the
purposes of this option.
Based on the foregoing, I am of the opinion that: (i) upon the execution
and delivery by the Corporation of the Senior Indenture or one of the
Subordinated Indentures, as the case may be, and the execution and delivery of
the applicable Warrant Agreement, the completion of all required Corporate
Proceedings, and the execution, issuance, and delivery, and the authentication
by a duly appointed trustee, of the Senior Debt Securities and Subordinated Debt
Securities and the Warrants, respectively, pursuant to such Senior Indenture or
Subordinated Indenture or Warrant Agreement, as the case may be, will become
valid and binding instruments, and any Debt Securities issuable thereunder will
be legal, valid, and binding obligations of the Corporation, and any Common
Stock (assuming completion of the action referred to in clause (ii) below)
issuable thereunder will be duly and validly authorized and issued, fully paid,
and nonassessable; and (ii) upon the authorization of issuance of the Common
Stock, the completion of all required Corporate Proceedings, and the execution,
issuance, and delivery of the Common Stock, the Common Stock will be duly and
validly authorized and issued, fully paid, and nonassessable; except in each
case as enforcement of provisions of such instruments and agreement may be
limited by bankruptcy or other laws of general application affecting the
enforcement of creditors' rights and by general equity principles. The
foregoing opinion assumes that (i) the consideration designated in the
application affecting Corporate Proceedings for any Common Stock shall have been
received by the Corporation in accordance with applicable law; (ii) the Senior
Indenture or the Subordinated Indenture, and any Warrant Agreement shall have
been duly authorized, executed, and delivered by all parties thereto other than
the Corporation; (iii) the Registration Statement shall have become effective
under the Securities Act; and (iv) the applicable Senior Indenture or
Subordinated Indenture shall have become duly qualified under the Trust
Indenture Act of 1939, as amended.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to being named in the Prospectus included therein
under the caption "Legal Opinions" with respect to the matters stated therein.
Very truly yours,
James K. Markey
Senior Corporate Counsel
JKM/sb
<PAGE>
FORM OF OPINION RE CERTAIN TAX MATTERS
[The final form of this opinion will be filed pursuant to a Current
Report on Form 8-K or a post-effective amendment to the Registration Statement
in the event that Liquid Yield Option-TM- Notes are issued pursuant to the
Registration Statement.]
_______________, 199__
Motorola, Inc.
1303 East Algonquin Road
Schaumburg, Illinois 60196
Re: Motorola, Inc.
Registration Statement on Form S-3
----------------------------------
Ladies and Gentlemen:
We have acted as counsel to Motorola, Inc., a Delaware corporation
(the "Company"), in connection with (i) the proposed issuance and sale by the
Company of $__________ aggregate principal amount at maturity of Liquid Yield
Option-TM- Notes due _____ (the "LYONs"-TM-) under an indenture (the
"Indenture") between the Company and ____________________, as trustee, and (ii)
the Company's Registration Statement on Form S-3 with respect to such issuance
and sale filed with the Securities and Exchange Commission on October __, 1994
(the "Registration Statement").
We are generally familiar with the proceedings to date in connection
with the proposed issuance and sale of the LYONs and in order to express the
opinion hereinafter stated, (a) we have examined copies of the form of the
Indenture (and the form of the LYON which is a part thereof) filed as an exhibit
to the Registration Statement, and (b) we have examined such other records and
documents and such matters of law, and we have satisfied ourselves as to such
matters of fact, as we have considered relevant for purposes of this opinion.
The opinion set forth in this letter is based upon the applicable
provisions of the Internal Revenue Code of 1986, as amended, Treasury
regulations promulgated and proposed thereunder, current positions of the
Internal Revenue Service (the "IRS") contained in published Revenue Rulings and
Revenue Procedures, current administrative positions of the IRS and existing
judicial decisions. No tax rulings will be sought from the IRS with respect to
any of the matters discussed herein.
<PAGE>
Motorola, Inc.
___________________, 199__
Page 2
Based on the foregoing, the information in the Registration Statement
under the caption "Certain Tax Aspects," while not purporting to discuss all
possible income tax matters relating to the LYONs, to the extent that it
constitutes a summary of Federal income tax matters relating to the LYONs, is
correct in all material aspects.
We consent to the use of this opinion as an exhibit to the
Registration Statement and further consent to the reference to our firm as
special Federal income tax counsel to the Company under the caption "Legal
Matters" in the Registration Statement and the prospectus which forms a part
thereof.
Very truly yours,
<PAGE>
EXECUTION COUNTERPART
-----------------------
-----------------------
MOTOROLA, INC.
MOTOROLA CREDIT CORPORATION
------------------
CREDIT AGREEMENT
Dated as of September 21, 1994
------------------
$500,000,000
------------------
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
CITIBANK, N.A.
THE FIRST NATIONAL BANK OF CHICAGO
HARRIS TRUST AND SAVINGS BANK,
as Co-Agents
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Agent
-----------------------
-----------------------
<PAGE>
TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which it is
attached but is inserted for convenience of reference only.
Page
----
Section 1. Definitions and Accounting Matters . . . . . . . . . . . . . . . 1
1.01 Certain Defined Terms . . . . . . . . . . . . . . . . . . . . . . 1
1.02 Accounting Terms and Determinations . . . . . . . . . . . . . . . 13
1.03 Classes and Types of Loans. . . . . . . . . . . . . . . . . . . . 14
Section 2. Commitments, Loans, Notes and Prepayments. . . . . . . . . . . . 14
2.01 Syndicated Loans. . . . . . . . . . . . . . . . . . . . . . . . . 14
2.02 Borrowings of Syndicated Loans. . . . . . . . . . . . . . . . . . 14
2.03 Money Market Loans. . . . . . . . . . . . . . . . . . . . . . . . 15
2.04 Changes of Commitments. . . . . . . . . . . . . . . . . . . . . . 20
2.05 Facility Fee. . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.06 Lending Offices . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.07 Several Obligations; Remedies Independent . . . . . . . . . . . . 20
2.08 Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.09 Optional Prepayments. . . . . . . . . . . . . . . . . . . . . . . 21
2.10 Increase in Commitments . . . . . . . . . . . . . . . . . . . . . 22
2.11 Extension of Commitment Termination Date. . . . . . . . . . . . . 22
Section 3. Payments of Principal and Interest . . . . . . . . . . . . . . . 24
3.01 Repayment of Loans. . . . . . . . . . . . . . . . . . . . . . . . 24
3.02 Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 4. Payments; Pro Rata Treatment; Computations; Etc. . . . . . . . . 25
4.01 Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
4.02 Pro Rata Treatment. . . . . . . . . . . . . . . . . . . . . . . . 26
4.03 Computations. . . . . . . . . . . . . . . . . . . . . . . . . . . 27
4.04 Minimum Amounts . . . . . . . . . . . . . . . . . . . . . . . . . 27
4.05 Certain Notices . . . . . . . . . . . . . . . . . . . . . . . . . 27
4.06 Non-Receipt of Funds by the Agent . . . . . . . . . . . . . . . . 28
4.07 Sharing of Payments, Etc. . . . . . . . . . . . . . . . . . . . . 29
Section 5. Yield Protection, Etc. . . . . . . . . . . . . . . . . . . . . . 30
5.01 Additional Costs. . . . . . . . . . . . . . . . . . . . . . . . . 30
5.02 Limitation on Types of Loans. . . . . . . . . . . . . . . . . . . 33
5.03 Illegality. . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
5.04 Treatment of Affected Loans . . . . . . . . . . . . . . . . . . . 34
5.05 Compensation. . . . . . . . . . . . . . . . . . . . . . . . . . . 34
CREDIT AGREEMENT
<PAGE>
Page
----
5.06 U.S. Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
5.07 Replacement of Banks. . . . . . . . . . . . . . . . . . . . . . . 36
Section 6. Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . 37
6.01 Initial Loan. . . . . . . . . . . . . . . . . . . . . . . . . . . 37
6.02 Initial and Subsequent Loans. . . . . . . . . . . . . . . . . . . 38
Section 7. Representations and Warranties . . . . . . . . . . . . . . . . . 38
7.01 Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . 38
7.02 Financial Condition . . . . . . . . . . . . . . . . . . . . . . . 39
7.03 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
7.04 No Breach . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
7.05 Action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
7.06 Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
7.07 Use of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . 40
7.08 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
7.09 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
7.10 Investment Company Act. . . . . . . . . . . . . . . . . . . . . . 41
7.11 Public Utility Holding Company Act. . . . . . . . . . . . . . . . 41
7.12 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . 41
7.13 Subsidiaries, Etc.. . . . . . . . . . . . . . . . . . . . . . . . 41
7.14 Operating Agreement . . . . . . . . . . . . . . . . . . . . . . . 42
Section 8. Covenants of the Company . . . . . . . . . . . . . . . . . . . . 42
8.01 Financial Statements, Etc.. . . . . . . . . . . . . . . . . . . . 42
8.02 Existence, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . 45
8.03 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
8.04 Prohibition of Fundamental Changes. . . . . . . . . . . . . . . . 46
8.05 Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . 47
8.06 Limitation on Sales and Leasebacks. . . . . . . . . . . . . . . . 48
8.07 Net Worth . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
8.08 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . 49
8.09 Special Obligations Relating to Motorola Credit . . . . . . . . . 49
Section 9. Events of Default. . . . . . . . . . . . . . . . . . . . . . . . 50
Section 10. The Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
10.01 Appointment, Powers and Immunities . . . . . . . . . . . . . . . 53
10.02 Reliance by Agent. . . . . . . . . . . . . . . . . . . . . . . . 54
10.03 Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
10.04 Rights as a Bank . . . . . . . . . . . . . . . . . . . . . . . . 54
10.05 Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . 55
10.06 Non-Reliance on Agent and Other Banks. . . . . . . . . . . . . . 55
10.07 Failure to Act . . . . . . . . . . . . . . . . . . . . . . . . . 55
10.08 Resignation or Removal of Agent. . . . . . . . . . . . . . . . . 56
10.09 Co-Agents. . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
CREDIT AGREEMENT
<PAGE>
Section 11. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . 56
11.01 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
11.02 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
11.03 Expenses, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . 57
11.04 Amendments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . 58
11.05 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . 58
11.06 Assignments and Participations . . . . . . . . . . . . . . . . . 58
11.07 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
11.08 Captions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
11.09 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . 61
11.10 Governing Law; Submission to Jurisdiction. . . . . . . . . . . . 61
11.11 Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . 61
11.12 Treatment of Certain Information; Confidentiality. . . . . . 61
11.13 Termination of Existing Lines of Credit. . . . . . . . . . . . . 62
SCHEDULE I - Material Domestic Subsidiaries
EXHIBIT A-1 - Form of Syndicated Note
EXHIBIT A-2 - Form of Money Market Note
EXHIBIT B - Form of Opinion of Counsel to
the Borrowers
EXHIBIT C - Form of Opinion of Special New York
Counsel to Chase
EXHIBIT D - Form of Money Market Quote Request
EXHIBIT E - Form of Money Market Quote
EXHIBIT F - Form of Confidentiality Agreement
EXHIBIT G - Form of Notice of Assignment
CREDIT AGREEMENT
<PAGE>
CREDIT AGREEMENT dated as of September 21, 1994, between:
MOTOROLA, INC., a corporation duly organized and validly existing
under the laws of the State of Delaware (the "COMPANY");
MOTOROLA CREDIT CORPORATION, a corporation duly organized and validly
existing under the laws of the State of Delaware ("MOTOROLA CREDIT", and
together with the Company, the "BORROWERS");
Each of the lenders that is a signatory hereto identified under the
caption "BANKS" on the signature pages hereto or that, pursuant to Section
2.10 hereof or Section 11.06(b) hereof, shall become a "Bank" hereunder
(individually, a "BANK" and, collectively, the "BANKS"); and
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION), a national banking
association, as agent for the Banks (in such capacity, together with its
successors in such capacity, the "AGENT").
The Borrowers have requested that the Banks make loans to each of them
in an aggregate principal amount not exceeding $500,000,000 at any one time
outstanding as to both of them combined and the Banks are prepared to make such
loans upon the terms and conditions hereof. Accordingly, the parties hereto
agree as follows:
Section 1. DEFINITIONS AND ACCOUNTING MATTERS.
1.01 CERTAIN DEFINED TERMS. As used herein, the following terms
shall have the following meanings (all terms defined in this Section 1.01 or in
other provisions of this Agreement in the singular to have the same meanings
when used in the plural and VICE VERSA):
"APPLICABLE LENDING OFFICE" shall mean, for each Bank and for each
Type of Loan, the "Lending Office" of such Bank (or of an affiliate of such
Bank) designated for such Type of Loan on the signature pages hereof or such
other office of such Bank (or of an affiliate of such Bank) as such Bank may
from time to time specify to the Agent and the Company as the office by which
its Loans of such Type are to be made and maintained.
"APPLICABLE MARGIN" shall mean, with respect to (a) Syndicated Loans
that are Eurodollar Loans, 0.16% per annum and (b) Syndicated Loans that are
Base Rate Loans, 0.0% per annum; provided that, during any period when the
aggregate principal amount of all Loans outstanding is greater than or
CREDIT AGREEMENT
<PAGE>
- 2 -
equal to 50% of the aggregate amount of the Commitments, the Applicable Margin
for Eurodollar Loans and Base Rate Loans shall be increased by an amount equal
to 0.050%.
"ATTRIBUTABLE DEBT" shall mean, as to any particular lease under which
any Person is at the time liable, at any date as of which the amount thereof is
to be determined, the total net amount of rent required to be paid by such
Person under such lease during the remaining term thereof, discounted from the
respective due dates thereof to such date at the rate per annum borne by the
Senior Securities compounded annually. 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.
"BANKRUPTCY CODE" shall mean the Federal Bankruptcy Code of 1978, as
amended from time to time.
"BASE RATE" shall mean, for any day, a rate per annum equal to the
higher of (a) the Federal Funds Rate for such day plus 1/2 of 1% and (b) the
Prime Rate for such day. Each change in any interest rate provided for herein
based upon the Base Rate resulting from a change in the Base Rate shall take
effect at the time of such change in the Base Rate.
"BASE RATE LOANS" shall mean Syndicated Loans that bear interest at
rates based upon the Base Rate.
"BASLE ACCORD" shall mean the proposals for risk-based capital
framework described by the Basle Committee on Banking Regulations and
Supervisory Practices in its paper entitled "International Convergence of
Capital Measurement and Capital Standards" dated July 1988, as amended, modified
and supplemented and in effect from time to time or any replacement thereof.
"BUSINESS DAY" shall mean any day (a) on which commercial banks are
not authorized or required to close in New York City and (b) if such day relates
to the giving of notices or quotes in connection with a LIBOR Auction or to a
borrowing of, a payment or prepayment of principal of or interest on, or the
Interest Period for, a Eurodollar Loan or a LIBOR Market Loan or a notice by the
Company with respect to any such borrowing, payment, prepayment or Interest
Period, also on which dealings in Dollar deposits are carried out in the London
interbank market.
CREDIT AGREEMENT
<PAGE>
- 3 -
"CAPITAL LEASE OBLIGATIONS" shall mean, for any Person, all
obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) Property to the extent such
obligations are required to be classified and accounted for as a capital lease
on a balance sheet of such Person under GAAP, and, for purposes of this
Agreement, the amount of such obligations shall be the capitalized amount
thereof, determined in accordance with GAAP.
"CHASE" shall mean The Chase Manhattan Bank (National Association).
"CLASS" shall have the meaning assigned to such term in Section 1.03
hereof.
"CODE" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"COMMITMENT" shall mean, as to each Bank, the obligation of such Bank
to make Syndicated Loans pursuant to Section 2.01 hereof in an aggregate
principal amount at any one time outstanding up to but not exceeding the amount
set opposite such Bank's name on the signature pages hereof under the caption
"Commitment" (as the same may at any time or from time to time be reduced
pursuant to Section 2.04 hereof or increased pursuant to Section 2.10 or Section
11.06(b) hereof).
"COMMITMENT TERMINATION DATE" shall mean the date 364 days after the
date hereof, as the same may be extended pursuant to Section 2.11 hereof;
PROVIDED that, if such date is not a Business Day, the Commitment Termination
Date shall be the next preceding Business Day.
"CONSOLIDATED NET TANGIBLE ASSETS" shall mean the aggregate amount of
assets (less applicable reserves and other properly deductible items) after
deducting therefrom (a) all current liabilities (excluding any constituting
Funded Debt by reason of their being renewable or extendible) and (b) all
goodwill, trade names, trademarks, patents, unamortized debt discount and
expense 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.
"DEBT" shall mean Indebtedness evidenced by notes, bonds, debentures
or similar evidences of indebtedness for borrowed money.
"DEFAULT" shall mean an Event of Default or an event that with notice
or lapse of time or both would become an Event of Default.
CREDIT AGREEMENT
<PAGE>
- 4 -
"DOLLARS" and "$" shall mean lawful money of the United States of
America.
"DOMESTIC SUBSIDIARY" shall mean (i) Motorola Credit and (ii) any
other Subsidiary of the Company, except any such Subsidiary (x) that neither
transacts any substantial portion of its business nor regularly maintains any
substantial portion of its fixed assets within the United States of America or
(y) which is engaged primarily in financing the operations of the Company or its
Subsidiaries outside the United States of America.
"ENVIRONMENTAL LAWS" shall mean any and all present and future
Federal, state, local and foreign laws, rules or regulations, and any orders or
decrees, in each case as now or hereafter in effect, relating to the regulation
or protection of the environment or to emissions, discharges, releases or
threatened releases of pollutants, contaminants, chemicals or toxic or hazardous
substances or wastes into the indoor or outdoor environment, including, without
limitation, ambient air, soil, surface water, ground water, wetlands, land or
subsurface strata, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, chemicals or toxic or hazardous substances or wastes.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA AFFILIATE" shall mean any corporation or trade or business that
is a member of any group of organizations (i) described in Section 414(b) or (c)
of the Code of which the Company is a member and (ii) solely for purposes of
potential liability under Section 302(c)(11) of ERISA and Section 412(c)(11) of
the Code and the lien created under Section 302(f) of ERISA and Section 412(n)
of the Code, described in Section 414(m) or (o) of the Code of which the Company
is a member.
"EURODOLLAR LOANS" shall mean Syndicated Loans that bear interest at
rates based on rates referred to in the definition of "Fixed Base Rate" in this
Section 1.01.
"EURODOLLAR RATE" shall mean, for any Eurodollar Loan for the Interest
Period therefor, a rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) determined by the Agent to be equal to the Fixed Base Rate for such
Loan for such Interest Period divided by 1 minus the Reserve Requirement (if
any) for such Loan for such Interest Period.
"EVENT OF DEFAULT" shall have the meaning assigned to such term in
Section 9 hereof.
CREDIT AGREEMENT
<PAGE>
- 5 -
"FEDERAL FUNDS RATE" shall mean, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day, PROVIDED that (a) if the day for which such rate is to
be determined is not a Business Day, the Federal Funds Rate for such day shall
be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day and (b) if such rate is not so
published for any Business Day, the Federal Funds Rate for such Business Day
shall be the average rate charged to Chase on such Business Day on such
transactions as determined by the Agent.
"FIXED BASE RATE" shall mean, with respect to any Fixed Rate Loan for
the Interest Period therefor:
(a) the rate per annum (rounded upwards, if necessary, to the nearest
1/16 of 1%) appearing on the Reuters Screen LIBO Page (or such other page
as may replace that page in that service) at approximately 11:00 a.m.
London time (or as soon thereafter as practicable) two Business Days prior
to the first day of the Interest Period for such Loan as the London
Interbank Offered Rate for Dollar deposits having a term comparable to such
Interest Period and in an amount of $1,000,000 or more; or
(b) if such rate does not appear on the Reuters Screen LIBO Page or,
if said page shall cease to be publicly available or if the information
contained on said page, in the reasonable judgment of the Majority Banks,
shall cease accurately to reflect the rate offered by leading banks in the
London interbank market ("LONDON INTERBANK OFFERED RATE") (as reported by
any publicly available source of similar market data selected by the
Majority Banks that, in the reasonable judgment of the Majority Banks,
accurately reflects the London Interbank Offered Rate), the Fixed Base Rate
shall mean, with respect to any Fixed Rate Loan for any Interest Period,
the arithmetic mean, as determined by the Agent, of the rate per annum
(rounded upwards, if necessary, to the nearest 1/16 of 1%) quoted by each
Reference Bank at approximately 11:00 a.m. London time (or as soon
thereafter as practicable) two Business Days prior to the first day of the
Interest Period for such Loan for the offering by such Reference Bank to
leading banks in the London interbank market of Dollar deposits having a
term comparable to such Interest Period and in an amount comparable to the
principal amount of the Fixed Rate Loan to be made by such Reference Bank
(or its Applicable Lending Office, as the case may be)
CREDIT AGREEMENT
<PAGE>
- 6 -
for such Interest Period; provided that (i) if any Reference Bank is not
participating in any Eurodollar Loan, the Fixed Base Rate for such Loan
shall be determined by reference to the amount of the Loan which such
Reference Bank would have made had it been participating in such Loans,
(ii) in determining the Fixed Base Rate with respect to any LIBOR Market
Loan, each Reference Bank shall be deemed to have made a LIBOR Market Loan
in an amount equal to $1,000,000, (iii) each Reference Bank agrees to use
its best efforts to furnish timely information to the Agent for purposes of
determining the Fixed Base Rate and (iv) if any Reference Bank does not
furnish such timely information for determination of the Fixed Base Rate,
the Agent shall determine such interest rate on the basis of timely
information furnished by the remaining Reference Banks.
"FIXED RATE LOANS" shall mean Eurodollar Loans and, for the purposes
of the definitions of "Fixed Base Rate" and "Interest Period" in this
Section 1.01 and in Section 5 hereof, LIBOR Market Loans.
"FUNDED DEBT" shall mean all Debt having a maturity of more than 12
months from the date of the most recent balance sheet of the Company and its
consolidated Subsidiaries or having a maturity of less than 12 months but by its
terms being renewable or extendible beyond 12 months from the date of such
balance sheet at the option of the borrower.
"GAAP" shall mean generally accepted accounting principles applied on
a basis consistent with those that, in accordance with the last sentence of
Section 1.02(a) hereof, are to be used in making the calculations for purposes
of determining compliance with this Agreement.
"GUARANTEE" shall mean a guarantee, an endorsement, a contingent
agreement to purchase or to furnish funds for the payment or maintenance of, or
otherwise to be or become contingently liable under or with respect to, the
Indebtedness, other obligations, net worth, working capital or earnings of any
Person, or a guarantee of the payment of dividends or other distributions upon
the stock or equity interests of any Person, or an agreement to purchase, sell
or lease (as lessee or lessor) Property, products, materials, supplies or
services primarily for the purpose of enabling a debtor to make payment of such
debtor's obligations or an agreement to assure a creditor against loss, and
including, without limitation, causing a bank or other financial institution to
issue a letter of credit or other similar instrument for the benefit of another
Person, but excluding endorsements for collection or deposit in the ordinary
course of business. The terms "GUARANTEE" and "GUARANTEED" used as a verb shall
have a correlative meaning.
CREDIT AGREEMENT
<PAGE>
- 7 -
"INDEBTEDNESS" shall mean, for any Person: (a) obligations created,
issued or incurred by such Person for borrowed money (whether by loan, the
issuance and sale of debt securities or the sale of Property to another Person
subject to an understanding or agreement, contingent or otherwise, to repurchase
such Property from such Person); (b) obligations of such Person to pay the
deferred purchase or acquisition price of Property or services, other than trade
accounts payable (other than for borrowed money) arising, and accrued expenses
incurred, in the ordinary course of business; (c) Indebtedness of others secured
by a Lien on the Property of such Person, whether or not the respective
indebtedness so secured has been assumed by such Person; (d) obligations of such
Person in respect of letters of credit or similar instruments issued or accepted
by banks and other financial institutions for account of such Person (other than
import letters of credit and import banker's acceptances arising in the ordinary
course of such Person's business); (e) Capital Lease Obligations of such Person;
and (f) Indebtedness of others Guaranteed by such Person.
"INTEREST PERIOD" shall mean:
(a) with respect to any Eurodollar Loan, the period commencing on the
date such Eurodollar Loan is made and ending on the numerically
corresponding day in the first, second, third or sixth calendar month
thereafter, as the relevant Borrower may select as provided in Section 4.05
hereof, except that each Interest Period that commences on the last
Business Day of a calendar month (or on any day for which there is no
numerically corresponding day in the appropriate subsequent calendar month)
shall end on the last Business Day of the appropriate subsequent calendar
month;
(b) With respect to any Set Rate Loan, the period commencing on the
date such Set Rate Loan is made and ending on any Business Day not less
than seven and not more than 180 days thereafter, as the relevant Borrower
may select as provided in Section 2.03(b) hereof;
(c) With respect to any LIBOR Market Loan, the period commencing on
the date such LIBOR Market Loan is made and ending on the numerically
corresponding day in the first, second, third or sixth calendar month
thereafter, as the relevant Borrower may select as provided in
Section 2.03(b) hereof, except that each Interest Period that commences on
the last Business Day of a calendar month (or any day for which there is no
numerically corresponding day in the appropriate subsequent calendar month)
shall end on the last Business Day of the appropriate subsequent calendar
month; and
CREDIT AGREEMENT
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(d) with respect to any Base Rate Loan, the period commencing on the
date such Base Rate Loan is made and ending on the earlier of the first
Quarterly Date thereafter or the Commitment Termination Date.
Notwithstanding the foregoing: (i) if any Interest Period for any Loan would
otherwise end after the Commitment Termination Date in existence at the time
such Interest Period is selected, such Interest Period shall not be available
hereunder; (ii) each Interest Period that would otherwise end on a day that is
not a Business Day shall end on the next succeeding Business Day (or, in the
case of an Interest Period for a Fixed Rate Loan, if such next succeeding
Business Day falls in the next succeeding calendar month, on the next preceding
Business Day); and (iii) notwithstanding clauses (i) and (ii) above, no Interest
Period for any Fixed Rate Loan shall have a duration of less than one month and,
if the Interest Period for any Fixed Rate Loan would otherwise be a shorter
period, such Interest Period shall not be available hereunder.
"LIBO MARGIN" shall have the meaning assigned to such term in
Section 2.03(c)(ii)(C) hereof.
"LIBO RATE" shall mean, for any LIBOR Market Loan, a rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) determined by the
Agent to be equal to the rate of interest specified in the definition of "Fixed
Base Rate" in this Section 1.01 for the Interest Period for such Loan divided by
1 minus the Reserve Requirement (if any) for such Loan for such Interest Period.
"LIBOR AUCTION" shall mean a solicitation of Money Market Quotes
setting forth LIBO Margins based on the LIBO Rate pursuant to Section 2.03
hereof.
"LIBOR MARKET LOANS" shall mean Money Market Loans interest rates on
which are determined on the basis of LIBO Rates pursuant to a LIBOR Auction.
"LIEN" shall mean, with respect to any Property, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
Property. For purposes of this Agreement, a Person shall be deemed to own
subject to a Lien any Property that it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement (other than an operating lease)
relating to such Property.
"LOANS" shall mean Syndicated Loans and Money Market Loans.
CREDIT AGREEMENT
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"MAJORITY BANKS" shall mean Banks having more than 50% of the
aggregate amount of the Commitments or, if the Commitments shall have
terminated, Banks holding more than 50% of the aggregate unpaid principal amount
of the Loans.
"MARGIN STOCK" shall mean "margin stock" within the meaning of
Regulations U and X.
"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect on (a)
the financial condition of the Company and its Subsidiaries taken as a whole or
(b) the validity or enforceability of this Agreement or of the Notes.
"MATERIAL DOMESTIC SUBSIDIARY" shall mean, at any time, (i) Motorola
Credit and (ii) any other Domestic Subsidiary of the Company that as of such
time meets the definition of a "significant subsidiary" contained as of the date
hereof in Regulation S-X of the SEC.
"MONEY MARKET BORROWING" shall have the meaning assigned to such term
in Section 2.03(b) hereof.
"MONEY MARKET LOAN LIMIT" shall have the meaning assigned to such term
in Section 2.03(c)(ii) hereof.
"MONEY MARKET LOANS" shall mean the loans provided for by Section 2.03
hereof.
"MONEY MARKET NOTES" shall mean the promissory notes provided for by
Section 2.08(b) hereof and all promissory notes delivered in substitution or
exchange therefor, in each case as the same shall be modified and supplemented
and in effect from time to time.
"MONEY MARKET QUOTE" shall mean an offer in accordance with
Section 2.03(c) hereof by a Bank to make a Money Market Loan with one single
specified interest rate.
"MONEY MARKET QUOTE REQUEST" shall have the meaning assigned to such
term in Section 2.03(b) hereof.
"MULTIEMPLOYER PLAN" shall mean a multiemployer plan defined as such
in Section 3(37) of ERISA to which contributions have been made by the Company
or any ERISA Affiliate and that is covered by Title IV of ERISA.
"NET WORTH" shall mean, as at any date, the amount of total
stockholders' equity for the Company and its consolidated Subsidiaries
(determined on a consolidated basis without duplication in accordance with
GAAP).
CREDIT AGREEMENT
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"NOTES" shall mean the Syndicated Notes and the Money Market Notes.
"OPERATING AGREEMENT" shall mean the Operating Agreement dated as of
January 1, 1992 between the Company and Motorola Credit, as such agreement
shall, subject to Section 8.09 hereof, be modified and supplemented and in
effect from time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"PERSON" shall mean any individual, corporation, company, voluntary
association, partnership, joint venture, trust, unincorporated organization or
government (or any agency, instrumentality or political subdivision thereof).
"PLAN" shall mean an employee benefit or other plan established or
maintained by the Company or any ERISA Affiliate and that is covered by Title IV
of ERISA, other than a Multiemployer Plan.
"POST-DEFAULT RATE" shall mean, in respect of any principal of any
Loan or any other amount under this Agreement or any Note that is not paid when
due (whether at stated maturity, by acceleration, by optional or mandatory
prepayment or otherwise), a rate per annum equal to 2% PLUS the Base Rate as in
effect from time to time (PROVIDED that, if the amount so in default is
principal of a Fixed Rate Loan or a Money Market Loan and the due date thereof
is a day other than the last day of such Interest Period therefor, the "Post-
Default Rate" for such principal shall be, for the period from and including
such due date to but excluding the last day of such Interest Period, 2% PLUS the
interest rate for such Loan as provided in Section 3.02 hereof and, thereafter,
the rate provided for above in this definition).
"PRIME RATE" shall mean the rate of interest from time to time
announced by Chase at the Principal Office as its prime commercial lending rate.
"PRINCIPAL OFFICE" shall mean the principal office of Chase, located
on the date hereof at 1 Chase Manhattan Plaza, New York, New York 10081.
"PRINCIPAL PROPERTY" shall mean any single parcel of real estate,
manufacturing plant or warehouse owned or leased by the Company or any Domestic
Subsidiary which is located within the United States of America and the gross
book value (without deduction of any depreciation reserves) of which on the date
as
CREDIT AGREEMENT
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of which the determination is being made exceeds 1% of Consolidated Net Tangible
Assets, other than any such manufacturing plant or warehouse or portion thereof
(a) which is a pollution control or other facility financed by obligations
issued by a State or local government unit and described in Section 141(a),
142(a)(5), 142(a)(6) or 144(a) of the Code, or any successor provision thereof,
or (b) which, in the opinion of the board of directors of the Company or any
duly authorized committee thereof, is not of material importance to the total
business conducted by the Company and its Subsidiaries as an entirety.
"PROPERTY" shall mean any right or interest in or to property of any
kind whatsoever, whether real, personal or mixed and whether tangible or
intangible.
"QUARTERLY DATES" shall mean the last Business Day of March, June,
September and December in each year, the first of which shall be the first such
day after the date hereof.
"REFERENCE BANKS" shall mean Chase, Citibank, N.A., The First National
Bank of Chicago and Harris Trust and Savings Bank (or their respective
Applicable Lending Offices, as the case may be).
"REGULATIONS A, D, U AND X" shall mean, respectively, Regulations A,
D, U and X of the Board of Governors of the Federal Reserve System (or any
successor), as the same may be modified and supplemented and in effect from time
to time.
"REGULATORY CHANGE" shall mean, with respect to any Bank, any change
after the date hereof in Federal, state or foreign law or regulations
(including, without limitation, Regulation D) or the adoption or making after
such date of any interpretation, directive or request applying to a class of
banks including such Bank of or under any Federal, state or foreign law or
regulations (whether or not having the force of law and whether or not failure
to comply therewith would be unlawful) by any court or governmental or monetary
authority charged with the interpretation or administration thereof.
"RESERVE REQUIREMENT" shall mean, for the Interest Period for any
Eurodollar Loan or LIBOR Market Loan, the average maximum rate at which reserves
(including, without limitation, any marginal, supplemental or emergency
reserves) are required to be maintained during such Interest Period under
Regulation D by member banks of the Federal Reserve System in New York City with
deposits exceeding one billion Dollars against "Eurocurrency liabilities" (as
such term is used in Regulation D). Without limiting the effect of the
foregoing, the Reserve Requirement shall include any other reserves required to
be maintained by
CREDIT AGREEMENT
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such member banks by reason of any Regulatory Change with respect to (i) any
category of liabilities that includes deposits by reference to which the Fixed
Base Rate for Eurodollar Loans or LIBOR Market Loans (as the case may be) is to
be determined as provided in the definition of "Fixed Base Rate" in this
Section 1.01 or (ii) any category of extensions of credit or other assets that
includes Eurodollar Loans or LIBOR Market Loans.
"SEC" shall mean the Securities and Exchange Commission or any
governmental authority succeeding to its principal functions.
"SENIOR INDENTURE" shall mean the Indenture dated as of October 1,
1991 between the Company and Harris Trust and Savings Bank, as trustee, as such
indenture shall be modified and supplemented and in effect from time to time.
"SENIOR SECURITIES" shall mean the Securities issued pursuant to the
Senior Indenture.
"SET RATE" shall have the meaning assigned to such term in
Section 2.03(c)(ii)(D) hereof.
"SET RATE AUCTION" shall mean a solicitation of Money Market Quotes
setting forth Set Rates pursuant to Section 2.03 hereof.
"SET RATE LOANS" shall mean Money Market Loans the interest rates on
which are determined on the basis of Set Rates pursuant to a Set Rate Auction.
"SUBSIDIARY" shall mean, with respect to any Person, any corporation,
partnership or other entity of which at least a majority of the securities or
other ownership interests having by the terms thereof ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions of such corporation, partnership or other entity (irrespective of
whether or not at the time securities or other ownership interests of any other
class or classes of such corporation, partnership or other entity shall have or
might have voting power by reason of the happening of any contingency) is at the
time directly or indirectly owned or controlled by such Person or one or more
Subsidiaries of such Person or by such Person and one or more Subsidiaries of
such Person.
"SYNDICATED LOANS" shall mean the loans provided for by Section 2.01
hereof, which may be Base Rate Loans and/or Eurodollar Loans.
CREDIT AGREEMENT
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"SYNDICATED NOTES" shall mean the promissory notes provided for by
Section 2.08(a) hereof and all promissory notes delivered in substitution or
exchange thereof, in each case as the same shall be modified and supplemented
and in effect from time to time.
"TYPE" shall have the meaning assigned to such term in Section 1.03
hereof.
"WHOLLY OWNED SUBSIDIARY" shall mean, with respect to any Person, any
corporation, partnership or other entity of which all of the equity securities
or other ownership interests (other than, in the case of a corporation or other
similar legal entity, directors' qualifying shares or shares held by residents
of the jurisdiction in which such corporation or other similar legal entity is
organized as required by the law of such jurisdiction) are directly or
indirectly owned or controlled by such Person or one or more Wholly Owned
Subsidiaries of such Person or by such Person and one or more Wholly Owned
Subsidiaries of such Person.
1.02 ACCOUNTING TERMS AND DETERMINATIONS.
(a) Except as otherwise expressly provided herein, all accounting
terms used herein shall be interpreted, and all financial statements and
certificates and reports as to financial matters required to be delivered to the
Banks hereunder shall (unless otherwise disclosed to the Banks in writing at the
time of delivery thereof in the manner described in subsection (b) below) be
prepared, in accordance with generally accepted accounting principles applied on
a basis consistent with those used in the preparation of the latest financial
statements furnished to the Banks hereunder (which, prior to the delivery of the
first financial statements under Section 8.01 hereof, shall mean the audited
financial statements as at December 31, 1993 referred to in Section 7.02
hereof). All calculations made for the purposes of determining compliance with
this Agreement shall (except as otherwise expressly provided herein) be made by
application of generally accepted accounting principles applied on a basis
consistent with those used in the preparation of the latest annual or quarterly
financial statements furnished to the Banks pursuant to Section 8.01 hereof (or,
prior to the delivery of the first financial statements under Section 8.01
hereof, used in the preparation of the audited financial statements as at
December 31, 1993 referred to in Section 7.02 hereof) unless (i) the Company
shall have objected to determining such compliance on such basis at the time of
delivery of such financial statements or (ii) the Majority Banks shall so object
in writing within 30 days after delivery of such financial statements, in either
of which events such calculations shall be made on a basis consistent with those
used in the preparation of the latest financial statements as to which such
objection shall
CREDIT AGREEMENT
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not have been made (which, if objection is made in respect of the first
financial statements delivered under Section 8.01 hereof, shall mean the audited
financial statements referred to in Section 7.02 hereof).
(b) The Company shall deliver to the Banks at the same time as the
delivery of any annual or quarterly financial statement under Section 8.01
hereof (i) a description in reasonable detail of any material variation between
the application of accounting principles employed in the preparation of such
statement and the application of accounting principles employed in the
preparation of the next preceding annual or quarterly financial statements as to
which no objection has been made in accordance with the last sentence of
subsection (a) above and (ii) reasonable estimates of the difference between
such statements arising as a consequence thereof.
1.03 CLASSES AND TYPES OF LOANS. Loans hereunder are distinguished
by "Class" and by "Type". The "Class" of a Loan refers to whether such Loan is
a Money Market Loan or a Syndicated Loan, each of which constitutes a Class.
The "Type" of a Loan refers to whether such Loan is a Base Rate Loan, a
Eurodollar Loan, a Set Rate Loan or a LIBOR Market Loan, each of which
constitutes a Type. Loans may be identified by both Class and Type.
Section 2. COMMITMENTS, LOANS, NOTES AND PREPAYMENTS.
2.01 SYNDICATED LOANS. Each Bank severally agrees, on the terms and
conditions of this Agreement, to make loans to the Borrowers in Dollars during
the period from and including the date hereof to but not including the
Commitment Termination Date in an aggregate principal amount as to both
Borrowers at any one time outstanding up to but not exceeding the amount of the
Commitment of such Bank as in effect from time to time. Subject to the terms
and conditions of this Agreement, during such period either Borrower may borrow,
repay and reborrow the amount of the Commitments; PROVIDED that no more than six
separate Interest Periods in respect of Eurodollar Loans from each Bank may be
outstanding at any one time.
2.02 BORROWINGS OF SYNDICATED LOANS. The relevant Borrower shall
give the Agent notice of each borrowing hereunder as provided in Section 4.05
hereof. Not later than 1:00 p.m. New York time on the date specified for each
borrowing of Syndicated Loans hereunder, each Bank shall make available the
amount of the Syndicated Loan or Loans to be made by it on such date to the
Agent, at account number NYAO-DI-900-9-000002 maintained by the Agent with Chase
at the Principal Office, in immediately available funds, for account of the
relevant Borrower. The amount so received by the Agent shall, subject to the
terms and
CREDIT AGREEMENT
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conditions of this Agreement, be made available to the relevant Borrower by
depositing the same, in immediately available funds, in an account of the
relevant Borrower maintained with Chase at the Principal Office designated by
the Company.
2.03 MONEY MARKET LOANS.
(a) In addition to borrowings of Syndicated Loans, at any time prior
to the Commitment Termination Date each Borrower may, as set forth in this
Section 2.03, request the Banks to make offers to make Money Market Loans to
such Borrower in Dollars. The Banks may, but shall have no obligation to, make
such offers and such Borrower may, but shall have no obligation to, accept any
such offers in the manner set forth in this Section 2.03. Money Market Loans
may be LIBOR Market Loans or Set Rate Loans (each a "Type" of Money Market
Loan), PROVIDED that:
(i) there may be no more than fifteen different Interest Periods for
both Syndicated Loans and Money Market Loans outstanding at the same time
(for which purpose Interest Periods described in different lettered clauses
of the definition of the term "Interest Period" shall be deemed to be
different Interest Periods even if they are coterminous); and
(ii) the aggregate principal amount of all Money Market Loans,
together with the aggregate principal amount of all Syndicated Loans, at
any one time outstanding shall not exceed the aggregate amount of the
Commitments at such time.
(b) When either Borrower wishes to request offers to make Money
Market Loans, such Borrower shall give the Agent (which shall promptly notify
the Banks) notice (a "MONEY MARKET QUOTE REQUEST") so as to be received no later
than 11:00 a.m. New York time on (x) the fourth Business Day prior to the date
of borrowing proposed therein, in the case of a LIBOR Auction or (y) the
Business Day next preceding the date of borrowing proposed therein, in the case
of a Set Rate Auction (or, in any such case, such other time and date as such
Borrower and the Agent, with the consent of the Majority Banks, may agree).
Offers to make Money Market Loans may be requested for up to six different
Interest Periods in a single notice (for which purpose Interest Periods in
different lettered clauses of the definition of the term "Interest Period" shall
be deemed to be different Interest Periods even if they are coterminous);
PROVIDED that the request for each separate Interest Period shall be deemed to
be a separate Money Market Quote Request for a separate borrowing (a "MONEY
MARKET BORROWING"). Each such notice shall be substantially in the form of
Exhibit D hereto and shall specify as to each Money Market Borrowing:
CREDIT AGREEMENT
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(i) the name of the Borrower and the proposed date of such borrowing,
which shall be a Business Day;
(ii) the aggregate amount of such Money Market Borrowing, which shall
be at least $20,000,000 (or a larger multiple of $1,000,000) but shall not
cause the limits specified in Section 2.03(a) hereof to be violated;
(iii) the duration of the Interest Period applicable thereto;
(iv) whether the Money Market Quotes requested for a particular
Interest Period are seeking quotes for LIBOR Market Loans or Set Rate
Loans; and
(v) if the Money Market Quotes requested are seeking quotes for Set
Rate Loans, the date on which the Money Market Quotes are to be submitted
if it is before the proposed date of borrowing (the date on which such
Money Market Quotes are to be submitted is called the "QUOTATION DATE").
Except as otherwise provided in this Section 2.03(b), no Money Market Quote
Request shall be given within five Business Days (or such lesser number of days
as the Agent may agree) of any other Money Market Quote Request.
(c) (i) Each Bank may submit one or more Money Market Quotes, each
constituting an offer to make a Money Market Loan in response to any Money
Market Quote Request; PROVIDED that, if the Borrower's request under
Section 2.03(b) hereof specified more than one Interest Period, such Bank
may make a single submission containing one or more Money Market Quotes for
each such Interest Period. Each Money Market Quote must be submitted to
the Agent not later than (x) 2:00 p.m. New York time on the fourth Business
Day prior to the proposed date of borrowing, in the case of a LIBOR Auction
or (y) 10:00 a.m. New York time on the Quotation Date, in the case of a Set
Rate Auction (or, in any such case, such other time and date as the Company
and the Agent, with the consent of the Majority Banks, may agree); PROVIDED
that any Money Market Quote may be submitted by Chase (or its Applicable
Lending Office) only if Chase (or such Applicable Lending Office) notifies
the Company of the terms of the offer contained therein not later than
(x) 1:00 p.m. New York time on the fourth Business Day prior to the
proposed date of borrowing, in the case of a LIBOR Auction or (y) 9:45 a.m.
New York time on the Quotation Date, in the case of a Set Rate Auction.
Subject to Sections 5.02(b), 5.03, 6.02 and 9 hereof, any Money Market
Quote so made shall be irrevocable except with
CREDIT AGREEMENT
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the consent of the Agent given on the instructions of the relevant
Borrower.
(ii) Each Money Market Quote shall be substantially in the form of
Exhibit E hereto and shall specify:
(A) the name of the Borrower and the proposed date of borrowing
and the Interest Period therefor;
(B) the principal amount of the Money Market Loan for which each
such offer is being made, which principal amount shall be at least
$5,000,000 (or a larger multiple of $1,000,000); PROVIDED that the
aggregate principal amount of all Money Market Loans for which a Bank
submits Money Market Quotes (x) may be greater or less than the
Commitment of such Bank but (y) may not exceed the principal amount of
the Money Market Borrowing for a particular Interest Period for which
offers were requested;
(C) in the case of a LIBOR Auction, the margin above or below
the applicable LIBO Rate (the "LIBO MARGIN") offered for each such
Money Market Loan, expressed as a percentage (rounded to the nearest
1/10,000th of 1%) to be added to or subtracted from the applicable
LIBO Rate;
(D) in the case of a Set Rate Auction, the rate of interest per
annum (rounded to the nearest 1/10,000th of 1%) offered for each such
Money Market Loan (the "SET RATE"); and
(E) the identity of the quoting Bank.
Unless otherwise agreed by the Agent and the relevant Borrower, no Money
Market Quote shall contain qualifying, conditional or similar language or
propose terms other than or in addition to those set forth in the
applicable Money Market Quote Request and, in particular, no Money Market
Quote may be conditioned upon acceptance by the Company of all (or some
specified minimum) of the principal amount of the Money Market Loan for
which such Money Market Quote is being made, PROVIDED that the submission
by any Bank containing more than one Money Market Quote may be conditioned
on the relevant Borrower not accepting offers contained in such submission
that would result in such Bank making Money Market Loans pursuant thereto
in excess of a specified amount (the "MONEY MARKET LOAN LIMIT").
(d) The Agent shall (x) in the case of a Set Rate Auction, as
promptly as practicable after the Money Market Quote
CREDIT AGREEMENT
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is submitted (but in any event not later than 10:15 a.m. New York time on the
Quotation Date) or (y) in the case of a LIBOR Auction, by 4:00 p.m. New York
time on the day a Money Market Quote is submitted, notify the relevant Borrower
of the terms (i) of any Money Market Quote submitted by a Bank that is in
accordance with Section 2.03(c) hereof and (ii) of any Money Market Quote that
amends, modifies or is otherwise inconsistent with a previous Money Market Quote
submitted by such Bank with respect to the same Money Market Quote Request. Any
such subsequent Money Market Quote shall be disregarded by the Agent unless such
subsequent Money Market Quote is submitted solely to correct a manifest error in
such former Money Market Quote. The Agent's notice to the relevant Borrower
shall specify (A) the aggregate principal amount of the Money Market Borrowing
for which offers have been received and (B) the respective principal amounts and
LIBO Margins or Set Rates, as the case may be, so offered by each Bank
(identifying the Bank that made each Money Market Quote).
(e) Not later than 11:00 a.m. New York time on (x) the third Business
Day prior to the proposed date of borrowing, in the case of a LIBOR Auction or
(y) the Quotation Date, in the case of a Set Rate Auction (or, in any such case,
such other time and date as the relevant Borrower and the Agent, with the
consent of the Majority Banks, may agree), the relevant Borrower shall notify
the Agent of its acceptance or nonacceptance of the offers so notified to it
pursuant to Section 2.03(d) hereof (which notice shall specify the aggregate
principal amount of offers from each Bank for each Interest Period that are
accepted, it being understood that the failure of the relevant Borrower to give
such notice by such time shall constitute nonacceptance) and the Agent shall
promptly notify each affected Bank. The notice from the Agent shall also
specify the aggregate principal amount of offers for each Interest Period that
were accepted and the lowest and highest LIBO Margins and Set Rates that were
accepted for each Interest Period. The relevant Borrower may accept any Money
Market Quote in whole or in part (PROVIDED that any Money Market Quote accepted
in part shall be at least $5,000,000 or a larger multiple of $1,000,000);
PROVIDED that:
(i) the aggregate principal amount of each Money Market Borrowing may
not exceed the applicable amount set forth in the related Money Market
Quote Request;
(ii) the aggregate principal amount of each Money Market Borrowing
shall be at least $20,000,000 (or a larger multiple of $1,000,000) but
shall not cause the limits specified in Section 2.03(a) hereof to be
violated;
(iii) acceptance of offers may, subject to clause (v) below, be made
only in ascending order of LIBO Margins or
CREDIT AGREEMENT
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Set Rates, as the case may be, in each case beginning with the lowest rate
so offered;
(iv) the Company may not accept any offer where the Agent has advised
the Company that such offer fails to comply with Section 2.03(c)(ii) hereof
or otherwise fails to comply with the requirements of this Agreement
(including, without limitation, Section 2.03(a) hereof); and
(v) the aggregate principal amount of each Money Market Borrowing
from any Bank may not exceed any applicable Money Market Loan Limit of such
Bank.
If offers are made by two or more Banks with the same LIBO Margins or Set Rates,
as the case may be, for a greater aggregate principal amount than the amount in
respect of which offers are accepted for the related Interest Period, the
principal amount of Money Market Loans in respect of which such offers are
accepted shall be allocated by the relevant Borrower among such Banks as nearly
as possible (in amounts of at least $5,000,000 or larger multiples of
$1,000,000) in proportion to the aggregate principal amount of such offers.
Determinations by the relevant Borrower of the amounts of Money Market Loans
shall be conclusive in the absence of manifest error.
(f) Any Bank whose offer to make any Money Market Loan has been
accepted in accordance with the terms and conditions of this Section 2.03 shall,
not later than 1:00 p.m. New York time on the date specified for the making of
such Loan, make the amount of such Loan available to the Agent at account number
NYAO-DI-900-9-000002 maintained by the Agent with Chase at the Principal Office
in immediately available funds, for account of the relevant Borrower. The
amount so received by the Agent shall, subject to the terms and conditions of
this Agreement, be made available to the relevant Borrower on such date by
depositing the same, in immediately available funds, in an account of the
relevant Borrower maintained with Chase at the Principal Office designated by
the relevant Borrower.
(g) Except for the purpose and to the extent expressly stated in
Sections 2.04(b) hereof, the amount of any Money Market Loan made by any Bank
shall not constitute a utilization of such Bank's Commitment.
(h) The relevant Borrower shall pay to the Agent a fee of $3,000 each
time such Borrower gives a Money Market Quote Request to the Agent.
CREDIT AGREEMENT
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2.04 CHANGES OF COMMITMENTS.
(a) The aggregate amount of the Commitments shall be automatically
reduced to zero on the Commitment Termination Date.
(b) The Company shall have the right at any time or from time to time
(i) so long as no Syndicated Loans or Money Market Loans are outstanding, to
terminate the Commitments and (ii) to reduce the aggregate unused amount of the
Commitments (for which purpose use of the Commitments shall be deemed to include
the aggregate principal amount of all Money Market Loans); PROVIDED that (x) the
Company shall give notice of each such termination or reduction as provided in
Section 4.05 hereof and (y) each partial reduction shall be in an aggregate
amount at least equal to $25,000,000 (or a larger multiple of $1,000,000).
(c) The Commitments once terminated or reduced may not be reinstated.
2.05 FACILITY FEE. The Company shall pay to the Agent for account of
each Bank a facility fee on the daily average amount of such Bank's Commitment
(whether used or unused), for the period from and including the date hereof to
but not including the earlier of the date such Commitment is terminated and the
Commitment Termination Date, at a rate per annum equal to 0.05%. Accrued
facility fee shall be payable on each Quarterly Date and on the earlier of the
date the Commitments are terminated and the Commitment Termination Date.
2.06 LENDING OFFICES. The Loans of each Type made by each Bank shall
be made and maintained at such Bank's Applicable Lending Office for Loans of
such Type.
2.07 SEVERAL OBLIGATIONS; REMEDIES INDEPENDENT. The failure of any
Bank to make any Loan to be made by it on the date specified therefor shall not
relieve any other Bank of its obligation to make its Loan on such date, but
neither any Bank nor the Agent shall be responsible for the failure of any other
Bank to make a Loan to be made by such other Bank, and (except as otherwise
provided in Section 4.06 hereof) no Bank shall have any obligation to the Agent
or any other Bank for the failure by such Bank to make any Loan required to be
made by such Bank. The amounts payable by either Borrower at any time hereunder
and under the Notes to each Bank shall be a separate and independent debt and
each Bank shall be entitled to protect and enforce its rights arising out of
this Agreement and the Notes, and it shall not be necessary for any other Bank
or the Agent to consent to, or be joined as an additional party in, any
proceedings for such purposes.
CREDIT AGREEMENT
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2.08 NOTES.
(a) The Syndicated Loans made by each Bank to each Borrower shall be
evidenced by a single promissory note of such Borrower substantially in the form
of Exhibit A-1 hereto, dated the date hereof, payable to such Bank in a
principal amount equal to the amount of its Commitment as originally in effect
and otherwise duly completed.
(b) The Money Market Loans made by any Bank to each Borrower shall be
evidenced by a single promissory note of such Borrower substantially in the form
of Exhibit A-2 hereto, dated the date hereof, payable to such Bank and otherwise
duly completed.
(c) The date, amount, Type, interest rate and duration of Interest
Period of each Loan of each Class made by each Bank to each Borrower, and each
payment made on account of the principal thereof, shall be recorded by such Bank
on its books and, prior to any transfer of the Note evidencing the Loans of such
Class held by it, endorsed by such Bank on the schedule attached to such Note or
any continuation thereof; PROVIDED that the failure of such Bank to make any
such recordation or endorsement shall not affect the obligations of such
Borrower to make a payment when due of any amount owing hereunder or under such
Note in respect of such Loans.
(d) Except as otherwise provided in the last sentence of this clause
(d), no Bank shall be entitled to have its Notes substituted or exchanged for
any reason, or subdivided for promissory notes of lesser denominations, except
in connection with (x) a permitted assignment of all or any portion of such
Bank's Commitment, Loans and Notes pursuant to Section 11.06(b) hereof or (y) an
increase in such Bank's Commitment pursuant to Sections 2.10 or 2.11 hereof.
In addition, any Syndicated Loans or Money Market Loans made by any
Additional Bank (as defined in Section 2.10 hereof) and any Additional
Commitment Bank (as defined in Section 2.11 hereof) shall each be evidenced by a
single promissory note of each Borrower, substantially in the forms of Exhibits
A-1 and A-2 hereto, respectively, dated the effective date of such Banks'
Commitment, and otherwise complying with paragraphs (a) and (b) above,
respectively.
2.09 OPTIONAL PREPAYMENTS. Subject to Sections 4.04 and 5.05 hereof,
Syndicated Loans may be prepaid at any time or from time to time, PROVIDED that,
the Company shall give the Agent notice of each such prepayment as provided in
Section 4.05 hereof (and, upon the date specified in any such notice of
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prepayment, the amount to be prepaid shall become due and payable hereunder).
Money Market Loans may not be prepaid.
2.10 INCREASE IN COMMITMENTS. The Company shall have the right at
any time to increase the aggregate Commitments hereunder by an aggregate amount
less than or equal to $125,000,000 by adding to this Agreement one or more other
banks (which may include any Bank (with the consent of such Bank), each such
bank an "ADDITIONAL BANK") with the approval of the Agent (which approval shall
not be unreasonably withheld), each of which Additional Banks shall have entered
into an agreement in form and substance satisfactory to the Company and the
Agent pursuant to which such Additional Bank shall undertake a Commitment (if
any such Additional Bank is a Bank, its Commitment shall be in addition to such
Bank's Commitment hereunder) which such Commitment shall be in an amount at
least equal to $10,000,000 or a larger multiple of $1,000,000, and upon the
effectiveness of such agreement (the date of the effectiveness of any such
agreement being hereinafter referred to as the "INCREASED COMMITMENT DATE") such
Additional Bank shall thereupon become a "Bank" for all purposes of this
Agreement.
Notwithstanding the foregoing, the increase in the aggregate Commitments
hereunder pursuant to this Section 2.10 shall not be effective unless:
(i) the Company shall have given the Agent notice of any such
increase at least 3 Business Days prior to any such Increased Commitment
Date;
(ii) no Default shall have occurred and be continuing as of the date
of the notice referred to in the foregoing clause (i) or on the Increased
Commitment Date;
(iii) no Loans shall be outstanding hereunder and no notice of
borrowing shall have been given, in each case, on and as of any such
Increased Commitment Date; and
(iv) there shall have been no reduction of the Commitments pursuant to
Section 2.04(b) hereof on or prior to any such Increased Commitment Date.
2.11 EXTENSION OF COMMITMENT TERMINATION DATE.
(a) The Company may, by notice to the Agent (which shall promptly
deliver a copy to each of the Banks) not less than 60 days and not more than 90
days prior to the Commitment Termination Date then in effect hereunder (the
"EXISTING COMMITMENT TERMINATION DATE"), request that the Banks extend the
Commitment Termination Date for an additional 364 days from the Consent Date (as
defined below). Each Bank, acting in its sole
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discretion, shall, by notice to the Agent (which shall promptly notify the
Company) given on the date (and, subject to the proviso below, only on the date)
30 days prior to the Existing Commitment Termination Date (PROVIDED, if such
date is not a Business Day, then such notice shall be given on the next
succeeding Business Day) (the "CONSENT DATE"), advise the Agent (which shall
promptly notify the Company) whether or not such Bank agrees to such extension;
PROVIDED that, if such Bank gives notice of its consent to such extension prior
to the Consent Date, such Bank may revoke such notice by giving a subsequent
notice to the Agent (which shall promptly notify the Company) at any time prior
to the Consent Date; PROVIDED FURTHER that, each Bank that determines not to
extend the Commitment Termination Date (a "NON-EXTENDING BANK") shall notify the
Agent (which shall promptly notify the Company) of such fact promptly after such
determination (but in any event no later than the Consent Date) and any Bank
that does not advise the Agent on or before the Consent Date shall be deemed to
be a Non-extending Bank. The election of any Bank to agree to such extension
shall not obligate any other Bank to agree.
(b) The Company shall have the right on or before the Existing
Commitment Termination Date to replace each Non-extending Bank with one or more
other banks (which may include any Bank, each prior to the Existing Commitment
Termination Date an "ADDITIONAL COMMITMENT BANK") with the approval of the Agent
(which approval shall not be unreasonably withheld), each of which Additional
Commitment Banks shall have entered into an agreement in form and substance
satisfactory to the Company and the Agent pursuant to which such Additional
Commitment Bank shall, effective as of the Existing Commitment Termination Date,
undertake a Commitment (if any such Additional Commitment Bank is a Bank, its
Commitment shall be in addition to such Bank's Commitment hereunder on such
date).
(c) If (and only if) Banks holding Commitments that, together with
the additional Commitments of the Additional Commitment Banks that will become
effective on the Existing Commitment Termination Date, aggregate at least 75% of
the aggregate amount of the Commitments (not including the additional
Commitments of the Additional Commitment Banks) on the Consent Date shall have
agreed to extend the Existing Commitment Termination Date, then, effective as of
the Existing Commitment Termination Date, the Existing Commitment Termination
Date shall be extended to the date falling 364 days after the Consent Date
(PROVIDED, if such date is not a Business Day, then such Commitment Termination
Date as so extended shall be the next preceding Business Day) and each
Additional Commitment Bank shall thereupon become a "Bank" for all purposes of
this Agreement.
CREDIT AGREEMENT
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Notwithstanding the foregoing, the extension of the Existing Commitment
Termination Date shall not be effective with respect to any Bank unless:
(i) no Default shall have occurred and be continuing on each of the
date of the notice requesting such extension, the Consent Date and the
Existing Commitment Termination Date;
(ii) each of the representations and warranties of the Company in
Section 7 hereof shall be true and correct on and as of each of the date of
the notice requesting such extension, the Consent Date and the Existing
Commitment Termination Date with the same force and effect as if made on
and as of each such date (or, if any such representation or warranty is
expressly stated to have been made as of a specific date, as of such
specific date); and
(iii) each Non-extending Bank shall have been paid in full by the
Company all amounts owing to such Bank hereunder on or before the Existing
Commitment Termination Date.
Even if the Existing Commitment Termination Date is extended as aforesaid, the
Commitment of each Non-extending Bank shall terminate on the Existing Commitment
Termination Date.
Section 3. PAYMENTS OF PRINCIPAL AND INTEREST.
3.01 REPAYMENT OF LOANS. Each Borrower hereby promises to pay to the
Agent for account of each Bank the principal of each Loan made by such Bank to
such Borrower, and each Loan shall mature, on the last day of the Interest
Period therefor.
3.02 INTEREST. Each Borrower hereby promises to pay to the Agent for
account of each Bank interest on the unpaid principal amount of each Loan made
by such Bank to such Borrower for the period from and including the date of such
Loan to but excluding the date such Loan shall be paid in full, at the following
rates per annum:
(a) if such Loan is a Base Rate Loan, the Base Rate (as in effect
from time to time) PLUS the Applicable Margin;
(b) if such Loan is a Eurodollar Loan, the Eurodollar Rate for such
Loan for the Interest Period therefor PLUS the Applicable Margin;
(c) if such Loan is a LIBOR Market Loan, the LIBO Rate for such Loan
for the Interest Period therefor PLUS (or
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MINUS) the LIBO Margin quoted by the Bank making such Loan in accordance
with Section 2.03 hereof; and
(d) if such Loan is a Set Rate Loan, the Set Rate for such Loan for
the Interest Period therefor quoted by the Bank making such Loan in
accordance with Section 2.03 hereof.
Notwithstanding the foregoing, each Borrower hereby promises to pay to the Agent
for account of each Bank interest at the applicable Post-Default Rate on any
principal of any Loan made by such Bank to such Borrower and on any other amount
payable by such Borrower hereunder or under the Notes of such Borrower held by
such Bank to or for account of such Bank, that shall not be paid in full when
due (whether at stated maturity, by acceleration, by mandatory prepayment or
otherwise), for the period from and including the due date thereof to but
excluding the date the same is paid in full. Accrued interest on each Loan
shall be payable (i) on the last day of the Interest Period therefor and, if
such Interest Period is longer than three months (in the case of a Eurodollar
Loan or a LIBOR Market Loan), at three-month intervals following the first day
of such Interest Period, and (ii) in the case of any Loan, upon the payment or
prepayment thereof (but only on the principal amount so paid or prepaid), except
that interest payable at the Post-Default Rate shall be payable from time to
time on demand. Promptly after the determination of any interest rate provided
for herein or any change therein, the Agent shall give notice thereof to the
Banks to which such interest is payable and to the relevant Borrower.
Section 4. PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC.
4.01 PAYMENTS.
(a) Except to the extent otherwise provided herein, all payments of
principal, interest, facility fees, and other amounts to be made by either
Borrower under this Agreement and the Notes, shall be made in Dollars, in
immediately available funds, without deduction, set-off or counterclaim, to the
Agent at account number NYAO-DI-900-9-000002 maintained by the Agent with Chase
at the Principal Office, not later than 1:00 p.m. New York time on the date on
which such payment shall become due (each such payment made after such time on
such due date to be deemed to have been made on the next succeeding Business
Day), PROVIDED that if a new Loan is to be made by any Bank to either Borrower
on a date such Borrower is to repay any principal of an outstanding Loan of such
Bank to such Borrower, such Bank shall apply the proceeds of such new Loan to
the payment of the principal to be repaid and only an amount equal to the
difference between the principal to be borrowed and the principal to be
CREDIT AGREEMENT
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repaid shall be made available by such Bank to
the Agent as provided in Section 2.02 hereof or paid by such Borrower to the
Agent pursuant to this Section 4.01, as the case may be.
(b) Any Bank for whose account any such payment is to be made may
(but shall not be obligated to) debit the amount of any such payment that is not
made by such time to any ordinary deposit account of the relevant Borrower with
such Bank (with notice to the Company and the Agent).
(c) Each Borrower shall, at the time of making each payment under
this Agreement or any Note for account of any Bank, specify to the Agent (which
shall so notify the intended recipient(s) thereof) the Loans or other amounts
payable by such Borrower hereunder to which such payment is to be applied (and
in the event that such Borrower fails to so specify, or if an Event of Default
has occurred and is continuing, the Agent may distribute such payment to the
Banks for application in such manner as it or the Majority Banks, subject to
Section 4.02 hereof, may determine to be appropriate).
(d) Each payment received by the Agent under this Agreement or any
Note for account of any Bank shall be paid by the Agent promptly to such Bank,
in immediately available funds, for account of such Bank's Applicable Lending
Office for the Loan or other obligation in respect of which such payment is
made.
(e) If the due date of any payment under this Agreement or any Note
would otherwise fall on a day that is not a Business Day, such date shall be
extended to the next succeeding Business Day, and interest shall be payable for
any principal so extended for the period of such extension.
4.02 PRO RATA TREATMENT. Except to the extent otherwise provided
herein: (a) each borrowing of Syndicated Loans of a particular Type from the
Banks under Section 2.01 hereof shall be made from the Banks, each payment of
facility fee under Section 2.05 hereof shall be made for account of the Banks,
and each termination or reduction of the amount of the Commitments under
Section 2.04 hereof shall be applied to the respective Commitments of the Banks,
pro rata according to the amounts of their respective Commitments;
(b) Eurodollar Loans having the same Interest Period shall (other than as
provided in Section 5.04 hereof) be allocated pro rata among the Banks according
to the amounts of their respective Commitments; (c) each payment or prepayment
of principal of Syndicated Loans by the relevant Borrower shall be made for
account of the Banks pro rata in accordance with the respective unpaid principal
amounts of the Syndicated Loans held by them; and (d) each payment of interest
on Syndicated Loans by the relevant Borrower shall be made for account of the
Banks pro rata in accordance
CREDIT AGREEMENT
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with the
amounts of interest on such Loans then due and payable to the respective Banks.
4.03 COMPUTATIONS. Interest on Money Market Loans and Eurodollar
Loans, and facility fee, shall be computed on the basis of a year of 360 days
and actual days elapsed (including the first day but excluding the last day)
occurring in the period for which payable and interest on Base Rate Loans shall
be computed on the basis of a year of 365 or 366 days, as the case may be, and
actual days elapsed (including the first day but excluding the last day)
occurring in the period for which payable. Notwithstanding the foregoing, for
each day that the Base Rate is calculated by reference to the Federal Funds
Rate, interest on Base Rate Loans shall be computed on the basis of a year of
360 days and actual days elapsed.
4.04 MINIMUM AMOUNTS. Each borrowing and partial prepayment of
principal of Syndicated Loans shall be in an aggregate amount at least equal to
$10,000,000 or a larger multiple of $1,000,000 (borrowings or prepayments of
Syndicated Loans of different Types or, in the case of Eurodollar Loans, having
different Interest Periods at the same time hereunder to be deemed separate
borrowings and prepayments for purposes of the foregoing, one for each Type or
Interest Period), PROVIDED that the aggregate principal amount of Eurodollar
Loans having the same Interest Period shall be in an amount at least equal to
$20,000,000 or a larger multiple of $5,000,000 and, if any Eurodollar Loans
would otherwise be in a lesser principal amount for any period, such Loans shall
be Base Rate Loans during such period.
4.05 CERTAIN NOTICES. Except as otherwise provided in Section 2.03
hereof with respect to Money Market Loans, notices by the Company to the Agent
of terminations or reductions of the Commitments and of borrowings and optional
prepayments of Loans, of Types of Loans and of the duration of Interest Periods
shall be irrevocable and shall be effective only if received by the Agent not
later than 10:00 a.m. New York time on the number of Business Days prior to the
date of the relevant termination, reduction, borrowing or prepayment or the
first day of such Interest Period specified below:
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Number of
Business
Notice Days Prior
------ ----------
Termination or reduction
of Commitments 3
Borrowing or prepayment of
Base Rate Loans same day
Borrowing or prepayment of,
or duration of Interest
Period for, Eurodollar Loans 3
Each such notice of termination or reduction shall specify the amount of the
Commitments to be terminated or reduced. Each such notice of borrowing or
optional prepayment shall specify the Syndicated Loans to be borrowed or prepaid
and the amount (subject to Section 4.04 hereof) and Type of each Loan to be
borrowed or prepaid and the date of borrowing or optional prepayment (which
shall be a Business Day). The Agent shall promptly notify the Banks of the
contents of each such notice.
4.06 NON-RECEIPT OF FUNDS BY THE AGENT. Unless the Agent shall have
been notified by a Bank or either Borrower (the "PAYOR") prior to the date on
which the Payor is to make payment to the Agent of (in the case of a Bank) the
proceeds of a Loan to be made by such Bank hereunder or (in the case of either
Borrower) a payment to the Agent for account of one or more of the Banks
hereunder (such payment being herein called the "REQUIRED PAYMENT"), which
notice shall be effective upon receipt, that the Payor does not intend to make
the Required Payment to the Agent, the Agent may assume that the Required
Payment has been made and may, in reliance upon such assumption (but shall not
be required to), make the amount thereof available to the intended recipient(s)
on such date; and, if the Payor has not in fact made the Required Payment to the
Agent, the recipient(s) of such payment shall, on demand, repay to the Agent the
amount so made available together with interest thereon in respect of each day
during the period commencing on the date (the "ADVANCE DATE") such amount was so
made available by the Agent until the date the Agent recovers such amount at a
rate per annum equal to the Federal Funds Rate for such day and, if such
recipient(s) shall fail promptly to make such payment, the Agent shall be
entitled to recover such amount, on demand, from the Payor, together with
interest as aforesaid, PROVIDED that if neither the recipient(s) nor the Payor
shall return the Required Payment to the Agent within three Business Days of the
Advance Date, then, retroactively to the Advance Date, the Payor and the
recipient(s) shall each be obligated to pay interest on the Required Payment as
follows:
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(i) if the Required Payment shall represent a payment to be made by
such Borrower to the Banks, such Borrower and the recipient(s) shall each
be obligated retroactively to the Advance Date to pay interest in respect
of the Required Payment at the Post-Default Rate (without duplication of
the obligation of such Borrower under Section 3.02 hereof to pay interest
on the Required Payment at the Post-Default Rate), it being understood that
the return by the recipient(s) of the Required Payment to the Agent shall
not limit such obligation of such Borrower under said Section 3.02 to pay
interest at the Post-Default Rate in respect of the Required Payment, and
(ii) if the Required Payment shall represent proceeds of a Loan to be
made by the Banks to either Borrower, the Payor and such Borrower shall
each be obligated retroactively to the Advance Date to pay interest in
respect of the Required Payment pursuant to Section 3.02 hereof, it being
understood that the return by such Borrower of the Required Payment to the
Agent shall not limit any claim such Borrower may have against the Payor in
respect of such Required Payment.
4.07 SHARING OF PAYMENTS, ETC.
(a) Each Borrower agrees that, in addition to (and without limitation
of) any right of set-off, banker's lien or counterclaim a Bank may otherwise
have, each Bank shall be entitled, at its option (to the fullest extent
permitted by law), to set off and apply any deposit (general or special, time or
demand, provisional or final), or other indebtedness, held by it for the credit
or account of such Borrower at any of its offices, in Dollars or in any other
currency, against any principal of or interest on any of such Bank's Loans or
any other amount payable to such Bank hereunder, that is not paid when due
(regardless of whether such deposit or other indebtedness is then due to such
Borrower), in which case it shall promptly notify such Borrower and the Agent
thereof, PROVIDED that such Bank's failure to give such notice shall not affect
the validity thereof.
(b) If any Bank shall obtain from either Borrower payment of any
principal of or interest on any Loan of any Class owing to it or payment of any
other amount under this Agreement through the exercise of any right of set-off,
banker's lien or counterclaim or similar right or otherwise (other than from the
Agent as provided herein), and, as a result of such payment, such Bank shall
have received a greater percentage of the principal of or interest on the Loans
of such Class or such other amounts then due hereunder by such Borrower to such
Bank than the percentage received by any other Bank, it shall promptly purchase
from such other Banks participations in (or, if and to the extent specified
CREDIT AGREEMENT
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by such Bank, direct interests in) the Loans of such Class or such other
amounts, respectively, owing to such other Banks (or in interest due thereon, as
the case may be) in such amounts, and make such other adjustments from time to
time as shall be equitable, to the end that all the Banks shall share the
benefit of such excess payment (net of any expenses that may be incurred by such
Bank in obtaining or preserving such excess payment) pro rata in accordance with
the unpaid principal of and/or interest on the Loans of such Class or such other
amounts, respectively, owing to each of the Banks. To such end all the Banks
shall make appropriate adjustments among themselves (by the resale of
participations sold or otherwise) if such payment is rescinded or must otherwise
be restored.
(c) Each Borrower agrees that any Bank so purchasing such a
participation (or direct interest) may exercise all rights of set-off, banker's
lien, counterclaim or similar rights with respect to such participation as fully
as if such Bank were a direct holder of Loans or other amounts (as the case may
be) owing to such Bank in the amount of such participation.
(d) Nothing contained herein shall require any Bank to exercise any
such right or shall affect the right of any Bank to exercise, and retain the
benefits of exercising, any such right with respect to any other indebtedness or
obligation of either Borrower. If, under any applicable bankruptcy, insolvency
or other similar law, any Bank receives a secured claim in lieu of a set-off to
which this Section 4.07 applies, such Bank shall, to the extent practicable,
exercise its rights in respect of such secured claim in a manner consistent with
the rights of the Banks entitled under this Section 4.07 to share in the
benefits of any recovery on such secured claim.
Section 5. YIELD PROTECTION, ETC.
5.01 ADDITIONAL COSTS.
(a) Each Borrower shall pay (but without duplication) directly to
each Bank from time to time such amounts as such Bank may determine to be
necessary to compensate such Bank for any costs that such Bank determines are
attributable to its making or maintaining of any Fixed Rate Loans to such
Borrower or its obligation to make any Fixed Rate Loans to such Borrower
hereunder, or any reduction in any amount receivable by such Bank hereunder in
respect of any of such Loans or such obligation (such increases in costs and
reductions in amounts receivable being herein called "ADDITIONAL COSTS"),
resulting from any Regulatory Change that:
(i) shall subject any Bank (or its Applicable Lending Office for any
of such Loans) to any tax, duty or other
CREDIT AGREEMENT
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charge in respect of such Loans or its Notes or changes the basis of
taxation of any amounts payable to such Bank under this Agreement or its
Notes in respect of any of such Loans (excluding changes in the rate of tax
on the overall net income of such Bank or of such Applicable Lending Office
by the jurisdiction in which such Bank has its principal office or such
Applicable Lending Office); or
(ii) imposes or modifies any reserve, special deposit or similar
requirements (other than the Reserve Requirement utilized in the
determination of the Eurodollar Rate or LIBO Rate, as the case may be, for
such Loan) relating to any extensions of credit or other assets of, or any
deposits with or other liabilities of, such Bank (including, without
limitation, any of such Loans or any deposits referred to in the definition
of "Fixed Base Rate" in Section 1.01 hereof), or any commitment of such
Bank (including, without limitation, the Commitment of such Bank
hereunder); or
(iii) imposes any other condition affecting this Agreement or its Notes
(or any of such extensions of credit or liabilities) or its Commitment.
If any Bank requests compensation from either Borrower under this
Section 5.01(a), the Company may, by notice to such Bank (with a copy to the
Agent), suspend the obligation of such Bank thereafter to make Eurodollar Loans
until the Regulatory Change giving rise to such request ceases to be in effect
(in which case the provisions of Section 5.04 hereof shall be applicable),
PROVIDED that such suspension shall not affect the right of such Bank to receive
the compensation so requested.
(b) Without limiting the effect of the provisions of paragraph (a) of
this Section 5.01, in the event that, by reason of any Regulatory Change, any
Bank either (i) incurs Additional Costs based on or measured by the excess above
a specified level of the amount of a category of deposits or other liabilities
of such Bank that includes deposits by reference to which the interest rate on
Eurodollar Loans is determined as provided in this Agreement or a category of
extensions of credit or other assets of such Bank that includes Eurodollar Loans
or (ii) becomes subject to restrictions on the amount of such a category of
liabilities or assets that it may hold, then, if such Bank so elects by notice
to the Company (with a copy to the Agent), the obligation of such Bank to make
Eurodollar Loans hereunder shall be suspended until such Regulatory Change
ceases to be in effect (in which case the provisions of Section 5.04 hereof
shall be applicable).
(c) Without limiting the effect of the foregoing provisions of this
Section 5.01 (but without duplication), the
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Company shall pay directly to each Bank from time to time on request such
amounts as such Bank may determine to be necessary to compensate such Bank (or,
without duplication, the bank holding company of which such Bank is a
subsidiary) for any costs that it determines are attributable to the maintenance
by such Bank (or any Applicable Lending Office or such bank holding company),
pursuant to any law or regulation or any interpretation, directive or request
(whether or not having the force of law and whether or not failure to comply
therewith would be unlawful) of any court or governmental or monetary authority
(i) following any Regulatory Change or (ii) implementing any risk-based capital
guideline or other requirement (whether or not having the force of law and
whether or not the failure to comply therewith would be unlawful) hereafter
issued by any government or governmental or supervisory authority implementing
at the national level the Basle Accord, of capital in respect of its Commitment
or Loans (such compensation to include, without limitation, an amount equal to
any reduction of the rate of return on assets or equity of such Bank (or any
Applicable Lending Office or such bank holding company) to a level below that
which such Bank (or any Applicable Lending Office or such bank holding company)
could have achieved but for such law, regulation, interpretation, directive or
request).
(d) Each Bank shall notify the Company of any event occurring after
the date hereof entitling such Bank to compensation under paragraph (a) or (c)
of this Section 5.01 as promptly as practicable, but in any event within 45
days, after such Bank obtains actual knowledge thereof; PROVIDED that (i) if any
Bank fails to give such notice within 45 days after it obtains actual knowledge
of such an event, such Bank shall, with respect to compensation payable pursuant
to this Section 5.01 in respect of any costs resulting from such event, only be
entitled to payment under this Section 5.01 for costs incurred from and after
the date 45 days prior to the date that such Bank does give such notice and
(ii) each Bank will designate a different Applicable Lending Office for the
Loans of such Bank affected by such event if such designation will avoid the
need for, or reduce the amount of, such compensation and will not, in the sole
opinion of such Bank, be disadvantageous to such Bank, except that such Bank
shall have no obligation to designate an Applicable Lending Office located in
the United States of America. Each Bank will furnish to the Company a
certificate setting forth the basis and amount of each request by such Bank for
compensation under paragraph (a) or (c) of this Section 5.01. Determinations
and allocations by any Bank for purposes of this Section 5.01 of the effect of
any Regulatory Change pursuant to paragraph (a) or (b) of this Section 5.01, or
of the effect of capital maintained pursuant to paragraph (c) of this
Section 5.01, on its costs or rate of return of maintaining Loans or its
obligation to make Loans, or on amounts receivable by it
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in respect of Loans, and of the amounts required to compensate such Bank under
this Section 5.01, shall be conclusive, PROVIDED that such determinations and
allocations are made on a reasonable basis.
5.02 LIMITATION ON TYPES OF LOANS. Anything herein to the contrary
notwithstanding, if, on or prior to the determination of any Fixed Base Rate for
any Interest Period pursuant to clause (b) of the definition of "Fixed Base
Rate" in Section 1.01 hereof:
(a) the Agent determines, which determination shall be conclusive,
that quotations of interest rates for the relevant deposits referred to in
clause (b) of the definition of "Fixed Base Rate" in Section 1.01 hereof
are not being provided in the relevant amounts or for the relevant
maturities for purposes of determining rates of interest for either Type of
Fixed Rate Loans as provided herein; or
(b) the Majority Banks determine (or any Bank that has outstanding a
Money Market Quote with respect to a LIBOR Market Loan determines), which
determination shall be conclusive, and notify (or notifies, as the case may
be) the Agent that the relevant rates of interest referred to in clause (b)
of the definition of "Fixed Base Rate" in Section 1.01 hereof upon the
basis of which the rate of interest for Eurodollar Loans (or LIBOR Market
Loans, as the case may be) for such Interest Period is to be determined are
not likely adequately to cover the cost to such Banks (or to such quoting
Bank) of making or maintaining Eurodollar Loans (or such LIBOR Market Loan,
as the case may be) for such Interest Period;
then the Agent shall give the Company and each Bank prompt notice thereof and,
so long as such condition remains in effect, the Banks (or such quoting Bank)
shall be under no obligation to make additional Eurodollar Loans (or such LIBOR
Market Loan, as the case may be).
5.03 ILLEGALITY. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Bank or its Applicable
Lending Office to honor its obligation to make or maintain Eurodollar Loans or
LIBOR Market Loans hereunder (and, in the sole opinion of such Bank, the
designation of a different Applicable Lending Office would either not avoid such
unlawfulness or would be disadvantageous to such Bank), then such Bank shall
promptly notify the Company thereof (with a copy to the Agent) and such Bank's
obligation to make Eurodollar Loans shall be suspended until such time as such
Bank may again make and maintain Eurodollar Loans (in which case the provisions
of
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Section 5.04 hereof shall be applicable), and such Bank shall no longer be
obligated to make any LIBOR Market Loan that it has offered to make.
5.04 TREATMENT OF AFFECTED LOANS. If the obligation of any Bank to
make a particular Type of Fixed Rate Loans shall be suspended pursuant to
Section 5.01 or 5.03 hereof, then, unless and until such Bank gives notice as
provided below that the circumstances specified in Section 5.01 or 5.03 hereof
that gave rise to such suspension no longer exist, all Loans that would
otherwise be made by such Bank as Eurodollar Loans shall be made instead as Base
Rate Loans.
5.05 COMPENSATION. Each Borrower shall pay to the Agent for account
of each Bank, upon the request of such Bank through the Agent, such amount or
amounts as shall be sufficient (in the reasonable opinion of such Bank) to
compensate it for any loss, cost or expense that such Bank reasonably determines
is attributable to:
(a) any payment, mandatory or optional prepayment of a Fixed Rate
Loan or a Set Rate Loan made by such Bank to such Borrower for any reason
(including, without limitation, the acceleration of the Loans pursuant to
Section 9 hereof) on a date other than the last day of the Interest Period
for such Loan; or
(b) any failure by such Borrower for any reason (including, without
limitation, the failure of any of the conditions precedent specified in
Section 6 hereof to be satisfied) to borrow a Fixed Rate Loan or a Set Rate
Loan (with respect to which, in the case of a Money Market Loan, such
Borrower has accepted a Money Market Quote) from such Bank on the date for
such borrowing specified in the relevant notice of borrowing given pursuant
to Section 2.02 or 2.03(b) hereof.
Without limiting the effect of the preceding sentence, such compensation shall
include an amount equal to the excess, if any, of (i) the amount of interest
that otherwise would have accrued on the principal amount so paid, prepaid or
not borrowed for the period from the date of such payment, prepayment or failure
to borrow to the last day of the then current Interest Period for such Loan (or,
in the case of a failure to borrow, the Interest Period for such Loan that would
have commenced on the date specified for such borrowing) at the applicable rate
of interest for such Loan provided for herein over (ii) the amount of interest
that otherwise would have accrued on such principal amount at a rate per annum
equal to the interest component of the amount such Bank would have bid in the
London interbank market (if such Loan is a Eurodollar Loan or a LIBOR Market
Loan) or the
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United States secondary certificate of deposit market (if such Loan is a Set
Rate Loan) for Dollar deposits of leading banks in amounts comparable to such
principal amount and with maturities comparable to such period (as reasonably
determined by such Bank), or if such Bank shall cease to make such bids, the
equivalent rate, as reasonably determined by such Bank, derived from the Reuters
Screen LIBO Page or other publicly available source as described in the
definition of "Fixed Base Rate" in Section 1.01 hereof).
5.06 U.S. TAXES.
(a) Each Borrower agrees to pay to each Bank that is not a
U.S. Person such additional amounts as are necessary in order that the net
payment of any amount due to such non-U.S. Person hereunder, after deduction for
or withholding in respect of any U.S. Taxes imposed with respect to such payment
(or in lieu thereof, payment of such U.S. Taxes by such non-U.S. Person), will
not be less than the amount stated herein to be then due and payable, PROVIDED
that the foregoing obligation to pay such additional amounts shall not apply:
(i) to any payment to any Bank hereunder unless such Bank is, on the
date hereof (or on the date it becomes a Bank hereunder as provided in
Section 11.06(b) hereof) and on the date of any change in the Applicable
Lending Office of such Bank, either entitled to submit a Form 1001
(relating to such Bank and entitling it to a complete exemption from
withholding on all interest to be received by it hereunder in respect of
the Loans) or Form 4224 (relating to all interest to be received by such
Bank hereunder in respect of the Loans), or
(ii) to any U.S. Taxes imposed solely by reason of the failure by such
non-U.S. Person to comply with applicable certification, information,
documentation or other reporting requirements concerning the nationality,
residence, identity or connections with the United States of America of
such non-U.S. Person if such compliance is required by statute or
regulation of the United States of America as a precondition to relief or
exemption from such U.S. Taxes.
For the purposes of this Section 5.06(a), (A) "U.S. PERSON" shall mean a
citizen, national or resident of the United States of America, a corporation,
partnership or other entity created or organized in or under any laws of the
United States of America or any State thereof, or any estate or trust that is
subject to United States Federal income taxation regardless of the source of its
income, (B) "U.S. TAXES" shall mean any present or future tax, assessment or
other charge or levy imposed by or on behalf of the United States of America or
any taxing authority thereof
CREDIT AGREEMENT
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or therein, (C) "FORM 1001" shall mean Form 1001 (Ownership, Exemption, or
Reduced Rate Certificate) of the Department of the Treasury of the United States
of America and (D) "FORM 4224" shall mean Form 4224 (Exemption from Withholding
of Tax on Income Effectively Connected with the Conduct of a Trade or Business
in the United States) of the Department of the Treasury of the United States of
America (or in relation to either such Form such successor and related forms as
may from time to time be adopted by the relevant taxing authorities of the
United States of America to document a claim to which such Form relates). Each
of the Forms referred to in the foregoing clauses (C) and (D) shall include such
successor and related forms as may from time to time be adopted by the relevant
taxing authorities of the United States of America to document a claim to which
such Form relates.
(b) Within 30 days after paying any amount to the Agent or any Bank
from which it is required by law to make any deduction or withholding, and
within 30 days after it is required by law to remit such deduction or
withholding to any relevant taxing or other authority, the Company (on its own
behalf and on behalf of Motorola Credit) shall deliver to the Agent for delivery
to such non-U.S. Person evidence satisfactory to such Person of such deduction,
withholding or payment (as the case may be).
5.07 REPLACEMENT OF BANKS. If any Bank requests compensation
pursuant to Section 5.01 or 5.06 hereof, or any Bank's obligation to make Loans
of any Type shall be suspended pursuant to Section 5.01 or 5.03 hereof (any such
Bank requesting such compensation, or whose obligations are so suspended, being
herein called a "REQUESTING BANK"), the Company, upon three Business Days'
notice to the Agent given when no Default shall have occurred and be continuing,
may require that such Requesting Bank transfer all of its right, title and
interest under this Agreement and such Requesting Bank's Notes to any bank or
other financial institution identified by the Company that is satisfactory to
the Agent (a) if such bank or other financial institution (a "PROPOSED BANK")
agrees to assume all of the obligations of such Requesting Bank hereunder, and
to purchase all of such Requesting Bank's Loans hereunder for consideration
equal to the aggregate outstanding principal amount of such Requesting Bank's
Loans, together with interest thereon to the date of such purchase, and
satisfactory arrangements are made for payment to such Requesting Bank of all
other amounts payable hereunder to such Requesting Bank on or prior to the date
of such transfer (including any fees accrued hereunder and any amounts that
would be payable under Section 5.05 hereof as if all of such Requesting Bank's
Loans were being prepaid in full on such date) and (b) if such Requesting Bank
has requested compensation pursuant to Section 5.01 or 5.06 hereof, such
Proposed Bank's aggregate requested compensation, if any, pursuant to said
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Section 5.01 or 5.06 with respect to such Requesting Bank's Loans is lower than
that of the Requesting Bank. Subject to the provisions of Section 11.06(b)
hereof, such Proposed Bank shall be a "Bank" for all purposes hereunder.
Without prejudice to the survival of any other agreement of the Borrowers
hereunder the agreements of the Borrowers contained in Sections 5.01, 5.06
and 11.03 (without duplication of any payments made to such Requesting Bank by
the Company or the Proposed Bank) shall survive for the benefit of such
Requesting Bank under this Section 5.07 with respect to the time prior to such
replacement.
Section 6. CONDITIONS PRECEDENT.
6.01 INITIAL LOAN. The obligation of any Bank to make its initial
Loan hereunder is subject to the condition precedent that the Agent shall have
received the following documents (with, in the case of clauses (a), (b) and (c)
below, sufficient copies for each Bank), each of which shall be satisfactory to
the Agent (and to the extent specified below, to each Bank) in form and
substance:
(a) CORPORATE DOCUMENTS. Certified copies of the charter and by-laws
of each Borrower and of all corporate authority for such Borrower
(including, without limitation, board of director resolutions and evidence
of the incumbency and specimen signature of officers) with respect to the
execution, delivery and performance of this Agreement and the Notes and
each other document to be delivered by such Borrower from time to time in
connection herewith and with the Loans hereunder (and each of the Agent and
each Bank may conclusively rely on such certificate of incumbency until it
receives notice in writing from such Borrower to the contrary).
(b) OPINIONS OF COUNSEL TO THE BORROWERS. An opinion, dated the date
hereof, of James K. Markey, Senior Corporate Counsel, substantially in the
form of Exhibit B hereto and covering such other matters as the Agent or
any Bank may reasonably request (and each Borrower hereby instructs such
counsel to deliver such opinion to the Banks and the Agent).
(c) OPINION OF SPECIAL NEW YORK COUNSEL TO CHASE. An opinion, dated
the date hereof, of Milbank, Tweed, Hadley & McCloy, special New York
counsel to Chase, substantially in the form of Exhibit C hereto (and Chase
hereby instructs such counsel to deliver such opinion to the Banks).
(d) NOTES. The Notes, duly completed and executed by each Borrower
for each Bank.
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(e) OTHER DOCUMENTS. Such other documents as the Agent or any Bank
or special New York counsel to Chase may reasonably request.
6.02 INITIAL AND SUBSEQUENT LOANS. The obligation of any Bank to
make any Loan (including any Money Market Loan and such Bank's initial
Syndicated Loan) to either Borrower upon the occasion of each borrowing
hereunder is subject to the further conditions precedent that, both immediately
prior to the making of such Loan and also after giving effect thereto and to the
intended use thereof:
(a) no Event of Default (and, if such borrowing will increase the
outstanding aggregate principal amount of the Loans of any Bank hereunder,
no Default) shall have occurred and be continuing; and
(b) the representations and warranties made by the Company in
Section 7 hereof (other than (i) the last sentence of paragraphs (a) and
(b) of Section 7.02 hereof and (ii) Section 7.03 hereof) shall be true and
complete on and as of the date of the making of such Loan with the same
force and effect as if made on and as of such date (or, if any such
representation or warranty is expressly stated to have been made as of a
specific date, as of such specific date).
Each notice of borrowing by either Borrower hereunder shall constitute a
certification by such Borrower to the effect set forth in the preceding sentence
(both as of the date of such notice and as of the date of such borrowing).
Section 7. REPRESENTATIONS AND WARRANTIES. The Company represents
and warrants to the Agent and the Banks that:
7.01 CORPORATE EXISTENCE. Each of the Company and its Material
Domestic Subsidiaries: (a) is a corporation, partnership or other entity duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization; (b) has all requisite corporate or other
power, and has all material governmental licenses, authorizations, consents and
approvals necessary to own its assets and carry on its business as now being or
as proposed to be conducted with, in the case of the Company's Material Domestic
Subsidiaries (other than Motorola Credit) only, such exceptions as are not
reasonably likely (either individually or in the aggregate) to have a Material
Adverse Effect; and (c) is qualified to do business and is in good standing in
all jurisdictions in which the nature of the business conducted by it makes such
qualification necessary and where failure so to qualify could reasonably be
likely to
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(either individually or in the aggregate) have a Material Adverse Effect.
7.02 FINANCIAL CONDITION.
(a) The Company has heretofore furnished to each of the Banks the
consolidated balance sheet of the Company and its consolidated Subsidiaries as
at December 31, 1993 and the related statements of consolidated earnings,
stockholders' equity and cash flows of the Company and its consolidated
Subsidiaries for the fiscal year ended on said date, with the opinion thereon of
KPMG Peat Marwick, and the unaudited consolidated balance sheet of the Company
and its Subsidiaries as at the end of the second fiscal quarter of the Company's
1994 fiscal year and the related statements of consolidated earnings,
stockholders' equity and cash flows of the Company and its consolidated
Subsidiaries for the six-month period ended on such date. All such financial
statements present fairly, in all material respects, the financial condition of
the Company and its consolidated Subsidiaries as at said dates and the results
of their operations for the fiscal year and six-month period ended on said dates
(subject, in the case of such financial statements as at the end of such fiscal
quarter to normal year-end audit adjustments), all in conformity with generally
accepted accounting principles. Since December 31, 1993, there has been no
material adverse change in the consolidated business, operations or financial
condition taken as a whole of the Company and its consolidated Subsidiaries from
that set forth in said financial statements as at said date.
(b) Motorola Credit has heretofore furnished to each of the Banks the
balance sheet of Motorola Credit as at December 31, 1993 and the related
statements of earnings and retained earnings and cash flows of Motorola Credit
for the fiscal year ended on such date, with an opinion thereon of KPMG Peat
Marwick. All such financial statements present fairly, in all material
respects, the financial condition of Motorola Credit and the results of its
operations and its cash flows for the fiscal year ended on said date in
conformity with generally accepted accounting principles. Since December 31,
1993, there has been no material adverse change in the business, operations or
financial condition of Motorola Credit from that set forth in said financial
statements as at said date.
7.03 LITIGATION. Except as disclosed in the Company's Report on Form
10-K filed with the SEC for the fiscal year ended December 31, 1993 or in the
Company's Reports on Form 10-Q filed with the SEC for the first and second
fiscal quarters of the Company's 1994 fiscal year, each of which have been
delivered to the Banks prior to the date hereof, there are no legal or arbitral
proceedings, or any proceedings by or before any
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governmental or regulatory authority or agency, now pending or (to the knowledge
of the Company) threatened against the Company or any of its Subsidiaries that,
if adversely determined (either individually or in the aggregate) could
reasonably be likely to have a Material Adverse Effect.
7.04 NO BREACH. None of the execution and delivery of this Agreement
and the Notes, the consummation of the transactions herein contemplated or
compliance with the terms and provisions hereof will conflict with or result in
a breach of, or require any consent under, the charter or by-laws of either
Borrower, or any applicable law or regulation, or any agreement or instrument to
which the Company or any of its Material Domestic Subsidiaries is a party, or by
which any of them or any of their Property is bound or to which any of them is
subject, or constitute a default under any such agreement or instrument.
7.05 ACTION. Each Borrower has all necessary corporate power,
authority and legal right to execute, deliver and perform its obligations under
this Agreement and the Notes; the execution, delivery and performance by such
Borrower of this Agreement and the Notes made by it have been duly authorized by
all necessary corporate action on its part; and this Agreement has been duly and
validly executed and delivered by each Borrower and constitutes, and each of the
Notes made by it when executed and delivered for value will constitute, its
legal, valid and binding obligation, enforceable against such Borrower in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws of general
applicability affecting the enforcement of creditors' rights.
7.06 APPROVALS. No authorizations, approvals or consents of, and no
filings or registrations with, any governmental or regulatory authority or
agency, or any securities exchange, are necessary for the execution, delivery or
performance by either Borrower of this Agreement or the Notes made by it or for
the legality, validity or enforceability hereof or thereof.
7.07 USE OF CREDIT. No part of the proceeds of the Loans hereunder
will be used to buy or carry any Margin Stock.
7.08 ERISA. Each of the Company and the ERISA Affiliates has
fulfilled its obligations under the minimum funding standards of ERISA and the
Code with respect to each Plan and is in compliance in all material respects
with the presently applicable provisions of ERISA and the Code with respect to
each Plan, and has no existing liability (other than to make PBGC premium
payments and Plan funding payments as they fall due) to the PBGC or any Plan or
Multi-Employer Plan.
CREDIT AGREEMENT
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7.09 TAXES. The Company and its Domestic Subsidiaries have filed all
Federal income tax returns and all other material tax returns that are required
to be filed by them and have paid all taxes due pursuant to such returns or
pursuant to any assessment received by the Company or any of its Domestic
Subsidiaries, except for any such tax being contested in good faith and by
proper proceedings and against which adequate reserves are being maintained.
The charges, accruals and reserves on the books of the Company and its Domestic
Subsidiaries in respect of taxes and other governmental charges are, in the
opinion of the Company, adequate.
7.10 INVESTMENT COMPANY ACT. Neither the Company nor any of its
Subsidiaries is an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended.
7.11 PUBLIC UTILITY HOLDING COMPANY ACT. Neither the Company nor any
of its Subsidiaries is a "holding company", or an "affiliate" of a "holding
company" or a "subsidiary company" of a "holding company", within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
7.12 ENVIRONMENTAL MATTERS. Each of the Company and its Material
Domestic Subsidiaries has obtained all environmental, health and safety permits,
licenses and other authorizations required under all Environmental Laws to carry
on its business as now being or as proposed to be conducted, except to the
extent failure to have any such permit, license or authorization would not
(either individually or in the aggregate) have a Material Adverse Effect.
7.13 SUBSIDIARIES, ETC. Set forth in Schedule I hereto is a complete
and correct list of all of the Material Domestic Subsidiaries of the Company as
of the date hereof together with, for each such Subsidiary, (i) the jurisdiction
of organization of such Subsidiary, (ii) each Person holding ownership interests
in such Subsidiary and (iii) the nature of the ownership interests held by each
such Person and the percentage of ownership of such Subsidiary represented by
such ownership interests. Except as disclosed in Schedule I hereto, each of the
Company and its Material Domestic Subsidiaries owns, free and clear of Liens,
and has the unencumbered right to vote, all outstanding ownership interests in
each Person shown to be held by it in Schedule I hereto. None of the Material
Domestic Subsidiaries of the Company is, on the date hereof, subject to any
indenture, agreement, instrument or other arrangement that, directly or
indirectly, prohibits or restrains, or has the effect of prohibiting or
restraining, or imposes materially adverse conditions upon, the incurrence or
payment of Indebtedness, the granting of Liens, the declaration or payment of
dividends, the
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making of loans, advances or investments or the sale, assignment, transfer or
other disposition of Property.
7.14 OPERATING AGREEMENT. The Borrowers have heretofore furnished to
each of the Banks a true and complete copy of the Operating Agreement as in
effect on the date hereof. None of the execution and delivery of the Operating
Agreement, the consummation of the transactions therein contemplated or
compliance with the terms and provisions thereof conflict with or result in a
breach of, or require any consent under, the charter or by-laws of either
Borrower, or any applicable law or regulation, or any agreement or instrument to
which the Company or any of its Material Domestic Subsidiaries is a party, or by
which any of them or any of their Property is bound or to which any of them is
subject, or constitute a default under any such agreement or instrument; each
Borrower has all necessary corporate power, authority and legal right to
execute, deliver and perform its obligations under the Operating Agreement; the
execution, delivery and performance by each Borrower of the Operating Agreement
have been duly authorized by all necessary corporate action on its part; and the
Operating Agreement has been duly and validly executed and delivered by each
Borrower and constitutes its legal, valid and binding obligations, enforceable
against such Borrower in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws of general applicability affecting the enforcement of
creditors' rights; and no authorization, approvals or consents, and no filings
or registrations with, any governmental or regulatory authority or agency, or
any securities exchange, are necessary for the execution, delivery or
performance by either Borrower of the Operating Agreement or for the legality,
validity or enforceability thereof.
Section 8. COVENANTS OF THE COMPANY. The Company covenants and
agrees with the Banks and the Agent that, so long as any Commitment or Loan is
outstanding and until payment in full of all amounts payable by either Borrower
hereunder:
8.01 FINANCIAL STATEMENTS, ETC. The Company shall deliver to each of
the Banks:
(a) as soon as available and in any event within 60 days after the
end of each of the first three quarterly fiscal periods of each fiscal year
of the Company, statements of consolidated earnings, stockholders' equity
and cash flows of the Company and its consolidated Subsidiaries for such
period and for the period from the beginning of the respective fiscal year
to the end of such period, and the related consolidated balance sheet of
the Company and its consolidated Subsidiaries as at the end of
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such period, setting forth in each case in comparative form the
corresponding figures for the corresponding periods in the preceding fiscal
year (except that, in the case of such balance sheet, such comparison shall
be to the last day of the prior fiscal year), accompanied by a certificate
of a senior financial officer of the Company, which certificate shall state
that said financial statements present fairly, in all material respects,
the financial condition and results of operations of the Company and its
consolidated Subsidiaries in each case in conformity with generally
accepted accounting principles as at the end of, and for, such period
(subject to normal year-end audit adjustments) (it being understood that
delivery to the Banks of the Company's Report on Form 10-Q filed with the
SEC shall satisfy the requirements of this Section 8.01(a) so long as the
information required to be contained in such Report is substantially the
same as that required under this clause (a));
(b) as soon as available and in any event within 120 days after the
end of each fiscal year of the Company, statements of consolidated
earnings, stockholders' equity and cash flows of the Company and its
consolidated Subsidiaries for such fiscal year and the related consolidated
balance sheet of the Company and its consolidated Subsidiaries as at the
end of such fiscal year, setting forth in each case in comparative form the
corresponding figures for the preceding fiscal year, and accompanied by an
opinion thereon of KPMG Peat Marwick, which opinion shall state that said
financial statements present fairly, in all material respects, the
financial condition and results of operations of the Company and its
consolidated Subsidiaries as at the end of, and for, such fiscal year in
conformity with generally accepted accounting principles (it being
understood that delivery to the Banks of the Company's Report on Form 10-K
filed with the SEC shall satisfy the requirements of this Section 8.01(b)
so long as the information required to be contained in such Report is
substantially the same as that required under this clause (b));
(c) as soon as available and in any event within 120 days after the
end of each fiscal year of Motorola Credit, statements of earnings and
retained earnings and cash flows of Motorola Credit for such fiscal year
and the related balance sheet of Motorola Credit as at the end of such
fiscal year, setting forth in each case in comparative form the
corresponding figures for the preceding fiscal year, and accompanied by an
opinion thereon of KPMG Peat Marwick, which opinion shall state that said
financial statements present fairly, in all material respects, the
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financial condition of Motorola Credit and the results of its operations
and its cash flows for the fiscal year ended on said date in conformity
with generally accepted accounting principles.
(d) as soon as available and in any event within 60 days after the
end of each of the first three quarterly fiscal periods of each fiscal year
of Motorola Credit, statements of earnings and retained earnings and cash
flows of Motorola Credit for such period and for the period from the
beginning of the respective fiscal year to the end of such period, and the
related balance sheet of Motorola Credit as at the end of such period,
setting forth in each case in comparative form the corresponding figures
for the corresponding periods in the preceding fiscal year (except that, in
the case of such balance sheet, such comparison shall be to the last day of
the prior fiscal year), accompanied by a certificate of a senior financial
officer of Motorola Credit, which certificate shall state that said
financial statements present fairly, in all material respects, the
financial condition of Motorola Credit and the results of its operations
and its cash flows, in each case in conformity with generally accepted
accounting principles as at the end of, and for, such period (subject to
normal year-end audit adjustments);
(e) promptly upon their becoming available, copies of all
registration statements and regular periodic reports on Forms 10-K, 10-Q
and 8-K that the Company shall have filed with the SEC (to the extent not
already delivered to the Banks pursuant to clauses (a) and (b) above);
(f) promptly upon the mailing thereof to the shareholders of the
Company generally, copies of all financial statements, reports and proxy
statements so mailed;
(g) promptly after the Company knows or has reason to believe that
any Default has occurred, a notice of such Default (and stating that such
notice is a "Notice of Default") describing the same in reasonable detail
and, together with such notice or as soon thereafter as possible, a
description of the action that the Company has taken or proposes to take
with respect thereto; and
(h) from time to time such other information regarding the condition,
financial or otherwise, of the Company or any of its Subsidiaries as any
Bank (through the Agent) or the Agent may reasonably request.
CREDIT AGREEMENT
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The Company will furnish to each Bank, at the time it furnishes each set of
financial statements pursuant to paragraph (a) or (b) above, a certificate of a
senior financial officer of the Company to the effect that no Default has
occurred and is continuing (or, if any Default has occurred and is continuing,
describing the same in reasonable detail and describing the action that the
Company has taken or proposes to take with respect thereto).
8.02 EXISTENCE, ETC. The Company will, and will cause each of its
Material Domestic Subsidiaries to:
(a) preserve and maintain its legal existence and all of its material
rights, privileges, licenses and franchises (PROVIDED that nothing in this
Section 8.02 shall prohibit any transaction expressly permitted under
Section 8.04 hereof);
(b) comply with the requirements of all applicable laws, rules,
regulations and orders of governmental or regulatory authorities if failure
to comply with such requirements is reasonably likely (either individually
or in the aggregate) to have a Material Adverse Effect;
(c) pay and discharge all taxes, assessments and governmental charges
or levies imposed on it or on its income or profits or on any of its
Property prior to the date on which penalties attach thereto, except for
any such tax, assessment, charge or levy the payment of which is being
contested in good faith and by proper proceedings and against which, in the
opinion of the Company, adequate reserves are being maintained;
(d) maintain all of its Properties used or useful in its business in
good working order and condition, ordinary wear and tear excepted, PROVIDED
that, nothing in this Section 8.02(d) shall prevent the Company or any of
its Material Domestic Subsidiaries from discontinuing such maintenance if
such discontinuance is, in the judgment of the Company, desirable in the
conduct of its business and the business of any of its Material Domestic
Subsidiaries and not disadvantageous in any material respect to the Banks;
and
(e) subject to U.S. Government restrictions, permit representatives
of any Bank or the Agent, during normal business hours and upon reasonable
notice, to examine or inspect any of its Properties, and to discuss its
business and affairs with its officers, all to the extent reasonably
requested by such Bank or the Agent (as the case may be) so long as any
such examination or inspection shall not
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unreasonably interfere with the operations of the Company and its Material
Domestic Subsidiaries.
8.03 INSURANCE. The Company will, and will cause each of its
Material Domestic Subsidiaries to, maintain insurance with financially sound and
reputable insurance companies (or through self-insurance programs so long as
such self-insurance is administered in accordance with sound business
practices), and with respect to Property and risks of a character usually
maintained by corporations engaged in the same or similar business similarly
situated, against loss, damage and liability of the kinds and in the amounts
customarily maintained by such corporations.
8.04 PROHIBITION OF FUNDAMENTAL CHANGES. (a) Neither Borrower shall
consolidate with or merge into any other Person or convey, transfer or lease its
Property substantially as an entirety to any Person, and neither Borrower shall
permit any Person to consolidate with or merge into such Borrower or convey,
transfer or lease its Property substantially as an entirety to such Borrower,
unless:
(i) in case such Borrower shall consolidate with or merge into
another Person or convey, transfer or lease its Property substantially as
an entirety to any Person, the Person formed by such consolidation or into
which such Borrower is merged or the Person which acquires by conveyance or
transfer, or which leases, the Property of such Borrower substantially as
an entirety shall be a corporation, partnership or trust, shall be
organized and validly existing under the laws of the United States of
America, any State thereof or the District of Columbia and shall expressly
assume, by an instrument in writing, executed and delivered to the Agent in
form satisfactory to the Majority Banks, the due and punctual payment of
the principal of, and interest on the Notes made by such Borrower, and all
other amounts payable by such Borrower to the Banks hereunder and the
performance or observance of every covenant of this Agreement on the part
of such Borrower to be performed or observed;
(ii) immediately after giving effect to such transaction and treating
any Indebtedness which becomes an obligation of such Borrower or any
Subsidiary of such Borrower or any other successor Person as a result of
such transaction as having been incurred by such Borrower or such
Subsidiary or such successor Person at the time of such transaction, no
Default shall have happened and be continuing;
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(iii) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, Property of such Borrower would become
subject to a Lien which would not be permitted by this Agreement, such
Borrower or such successor Person, as the case may be, shall take such
steps as shall be necessary effectively to secure the payment of principal
of, and interest on the Loans and the Notes of such Borrower, and all other
amounts payable by such Borrower to the Banks hereunder equally and ratably
with (or prior to) all Debt secured thereby; and
(iv) such Borrower has delivered to the Agent a certificate of a
senior officer of such Borrower and a written opinion of counsel (who may
be counsel to the Company and who shall be acceptable to the Majority
Banks), each stating that such consolidation, merger, conveyance, transfer
or lease and all conditions precedent herein provided for relating to such
transaction have been complied with.
(b) Upon any consolidation of either Borrower with, or merger of
either Borrower into any other Person or any conveyance, transfer or lease of
the Property of either Borrower substantially as an entirety in accordance with
clause (i) above, the successor Person formed by such consolidation or into
which such Borrower is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, such Borrower under this Agreement with the same effect as if such
successor Person had been named as such Borrower herein, and thereafter, except
in the case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Agreement and the Notes made by it.
8.05 LIMITATION ON LIENS. The Company will not itself, and will not
permit any Domestic Subsidiary to, incur, issue, assume, or guarantee any Debt
secured by any Lien on any Principal Property of the Company or any Domestic
Subsidiary, or any shares of stock of or Debt of any Domestic Subsidiary without
effectively providing that all amounts payable by the Borrowers to the Banks
hereunder (together with, if the Company shall so determine, any other Debt of
the Company or such Domestic Subsidiary then existing or thereafter created
which is not subordinate to the payment of principal of, and interest on the
Loans and the Notes), and all other amounts payable by the Borrowers to the
Banks hereunder shall be secured equally and ratably with (or 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 Domestic Subsidiaries in respect of
Sale and Leaseback Transactions (as defined in
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Section 8.06 hereof) would not exceed 5% of the 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) Liens on Property (including any shares of stock or Debt) of, any
corporation on which Liens are existing at the time such corporation
becomes a Domestic Subsidiary or at the time it is merged into or
consolidated with the Company or any Domestic Subsidiary;
(b) Liens in favor of the Company or any Domestic Subsidiary;
(c) Liens in favor of any governmental body to secure progress,
advance or other payments pursuant to any contract or provision of any
statute;
(d) Liens on Property (including shares of stock or Debt) existing at
the time of acquisition thereof (including acquisition through merger or
consolidation);
(e) Liens on Property (including shares of stock or Debt) to secure
the payment of all or any part of the purchase price or construction cost
thereof or to secure any Debt incurred prior to, at the time of, or within
180 days after, the acquisition of such Property, the completion of any
construction or the commencement of full operation, for the purpose of
financing all or any part of the purchase price or construction cost
thereof; and
(f) any extension, renewal or replacement (or successive extensions,
renewals or replacements), as a whole or in part, of any Lien referred to
in the foregoing clauses (a) to (e), inclusive; PROVIDED, that such
extension, renewal or replacement Lien shall be limited to all or a part of
the same Property secured the Lien extended, renewed or replaced (plus
improvements on such Property).
8.06 LIMITATION ON SALES AND LEASEBACKS. The Company will not
itself, and it will not permit any Domestic Subsidiary to, enter into any
arrangement with any bank, insurance company or other lender or investor (not
including the Company or any Domestic Subsidiary) or to which any such lender or
investor is a party, providing for the leasing by the Company or a Domestic
Subsidiary for a period, including renewals, in excess of three years of any
Principal Property which has been or is to be sold or transferred, more than
180 days after the completion of construction and commencement of full operation
thereof, by the Company or such Domestic Subsidiary to such lender or investor
or
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to any Person to whom funds have been or are to be advanced by such lender or
investor on the security of such Principal Property (herein referred to as a
"SALE AND LEASEBACK TRANSACTION") unless either:
(a) the Company or such Domestic Subsidiary could create Debt secured
by a Lien pursuant to Section 8.05 on the Principal Property to be leased
in an amount equal to the Attributable Debt with respect to such Sale and
Leaseback Transaction without equally and ratably securing the payment of
the principal of, and interest on the Loans and the Notes, and all other
amounts payable by the Borrowers to the Banks hereunder, or
(b) the Company within 120 days after the sale or transfer shall have
been made by the Company or by a Domestic Subsidiary, applies an amount not
less than the greater of (i) the net proceeds of the sale of the Principal
Property leased pursuant to such arrangement or (ii) the fair market value
of the Principal Property so leased at the time of entering into such
arrangement (as determined by any two of the following: the Chairman of
the Board of the Company, its Vice Chairman of the Board, its President,
any elected Vice President of the Company and its Treasurer) to the
retirement of Funded Debt of the Company; PROVIDED, that the amount to be
applied to the retirement of Funded Debt of the Company shall be reduced by
the principal amount of Funded Debt voluntarily retired by the Company
within 120 days after such sale. Notwithstanding the foregoing, no
retirement referred to in this clause (b) may be effected by payment at
maturity or pursuant to any mandatory sinking fund payment or any mandatory
prepayment provision.
8.07 NET WORTH. The Company will not permit its Net Worth at any
time to be less than 75% of Net Worth as at the last day of the second fiscal
quarter of the Company's 1994 fiscal year.
8.08 USE OF PROCEEDS. The Borrowers will use the proceeds of the
Loans hereunder for general corporate purposes (in compliance with all
applicable legal and regulatory requirements, including, without limitation,
Regulations U and X and the Securities Act of 1933 and the Securities Act of
1934 and the regulations thereunder); PROVIDED that neither the Agent nor any
Bank shall have any responsibility as to the use of any of such proceeds.
8.09 SPECIAL OBLIGATIONS RELATING TO MOTOROLA CREDIT.
(a) The Company agrees for the benefit of the Banks that it shall
make all payments to Motorola Credit in the manner
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and to the extent provided in Section 3.01 of the Operating Agreement.
(b) Neither Borrower shall consent to any modification, supplement or
waiver of Sections 3.01 or 4.01 of the Operating Agreement (or to any defined
terms used in said sections) or to the termination thereof.
Section 9. EVENTS OF DEFAULT. If one or more of the following events
(herein called "EVENTS OF DEFAULT") shall occur and be continuing:
(a) Either Borrower shall: (i) default in the payment of any
principal of any Loan when due (whether at stated maturity or at mandatory
or optional prepayment); or (ii) default in the payment of any interest on
any Loan or any facility fee payable under Section 2.05 hereof and such
default shall continue unremedied for three or more Business Days or (iii)
default in the payment of any other amount payable by it hereunder when due
and such default shall have continued unremedied for fifteen or more days;
or
(b) The Company or any of its Domestic Subsidiaries shall default in
the payment when due (after the expiration of applicable grace periods) of
any principal of or interest on any of its other Indebtedness aggregating
in amount at least equal to 3% of the Net Worth as at the last day of the
most recently completed fiscal quarter of the Company; or any event
specified in any note, agreement, indenture or other document evidencing or
relating to any such Indebtedness shall occur if the effect of such event
is to cause, or (with the giving of any notice or the lapse of time or
both) to permit the holder or holders of such Indebtedness (or a trustee or
agent on behalf of such holder or holders) to cause, such Indebtedness to
become due, or to be prepaid in full (whether by redemption, purchase,
offer to purchase or otherwise), prior to its stated maturity or to have
the interest rate thereon reset to a level so that securities evidencing
such Indebtedness trade at a level specified in relation to the par value
thereof; or
(c) Any representation, warranty or certification made or deemed made
herein (or in any modification or supplement hereto) by either Borrower, or
any certificate furnished to any Bank or the Agent pursuant to the
provisions hereof, shall prove to have been false or misleading as of the
time made or furnished in any material respect; or
(d) Either Borrower shall default in the performance of its
obligations under Sections 8.01(g) and 8.04 through 8.09 hereof
(inclusive); or either Borrower shall default in
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the performance of any of its other obligations in this Agreement and such
default shall continue unremedied for a period of thirty or more days after
notice thereof to the Company by the Agent or any Bank (through the Agent);
or
(e) The Company or any of its Domestic Subsidiaries shall admit in
writing its inability to, or be generally unable to, pay its debts as such
debts become due; or
(f) The Company or any of its Domestic Subsidiaries shall (i) apply
for or consent to the appointment of, or the taking of possession by, a
receiver, custodian, trustee, examiner or liquidator of itself or of all or
a substantial part of its Property, (ii) make a general assignment for the
benefit of its creditors, (iii) commence a voluntary case under the
Bankruptcy Code, (iv) file a petition seeking to take advantage of any
other law relating to bankruptcy, insolvency, reorganization, liquidation,
dissolution, arrangement or winding-up, or composition or readjustment of
debts, (v) fail to controvert in a timely and appropriate manner, or
acquiesce in writing to, any petition filed against it in an involuntary
case under the Bankruptcy Code or (vi) take any corporate action for the
purpose of effecting any of the foregoing; or
(g) A proceeding or case shall be commenced, without the application
or consent of the Company or any of its Domestic Subsidiaries, in any court
of competent jurisdiction, seeking (i) its reorganization, liquidation,
dissolution, arrangement or winding-up, or the composition or readjustment
of its debts, (ii) the appointment of a receiver, custodian, trustee,
examiner, liquidator or the like of the Company or such Subsidiary or of
all or any substantial part of its Property or (iii) similar relief in
respect of the Company or such Subsidiary under any law relating to
bankruptcy, insolvency, reorganization, winding-up, or composition or
adjustment of debts, and such proceeding or case shall continue
undismissed, or an order, judgment or decree approving or ordering any of
the foregoing shall be entered and continue unstayed and in effect, for a
period of 60 or more days; or an order for relief against the Company or
such Subsidiary shall be entered in an involuntary case under the
Bankruptcy Code; or
(h) A final judgment or judgments for the payment of money in excess
of 3% of Net Worth as at the last day of the most recently completed fiscal
quarter of the Company (exclusive of judgment amounts fully covered by
insurance where the insurer has admitted liability in respect of such
judgment) shall be rendered by one or more courts, administrative tribunals
or other bodies having jurisdiction
CREDIT AGREEMENT
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against the Company or any of its Domestic Subsidiaries and the same shall
not be discharged (or provision shall not be made for such discharge), or a
stay of execution thereof shall not be procured, within 60 days from the
date of entry thereof and the Company or the relevant Domestic Subsidiary
shall not, within said period of 60 days, or such longer period during
which execution of the same shall have been stayed, appeal therefrom and
cause the execution thereof to be stayed during such appeal; or
(i) An event or condition shall occur or exist with respect to any
Plan or Multiemployer Plan and, as a result of such event or condition,
together with all other such then existing events or conditions, the
Company or any ERISA Affiliate shall incur or, in the reasonable good faith
opinion of the Majority Banks, shall be reasonably likely to incur a
liability (excluding PBGC premium payments and plan funding payments
resulting from changes in legal requirements and increases in benefits) to
a Plan, a Multiemployer Plan or PBGC (or any combination of the foregoing)
in an amount at least equal to 3% of the Net Worth as at the last day of
the most recently completed fiscal quarter of the Company; or
(j) Motorola Credit shall cease to be a Wholly Owned Subsidiary of
the Company; or
(k) the Operating Agreement shall cease to be in full force and
effect for any reason;
THEREUPON: (1) in the case of an Event of Default other than one referred to in
clause (f) or (g) of this Section 9 with respect to either Borrower (A) the
Agent may (with the consent of the Majority Banks) and, upon request of the
Majority Banks, will, by notice to the Company, terminate the Commitments and
they shall thereupon terminate, and (B) the Agent may (with the consent of Banks
holding more than 50% of the aggregate unpaid principal amount of the Loans)
and, upon request of Banks holding more than 50% of the aggregate unpaid
principal amount of the Loans shall, by notice to the Company declare the
principal amount then outstanding of, and the accrued interest on, the Loans and
all other amounts payable by the Borrowers hereunder and under the Notes
(including, without limitation, any amounts payable under Section 5.05 hereof)
to be forthwith due and payable, whereupon such amounts shall be immediately due
and payable without presentment, demand, protest or other formalities of any
kind, all of which are hereby expressly waived by each Borrower; and (2) in the
case of the occurrence of an Event of Default referred to in clause (f) or (g)
of this Section 9 with respect to either Borrower, the Commitments shall
automatically be terminated and the principal amount then outstanding of, and
the accrued
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interest on, the Loans and all other amounts payable by the Borrowers hereunder
and under the Notes (including, without limitation, any amounts payable under
Section 5.05 hereof) shall automatically become immediately due and payable
without presentment, demand, protest or other formalities of any kind, all of
which are hereby expressly waived by the Borrowers.
Section 10. THE AGENT.
10.01 APPOINTMENT, POWERS AND IMMUNITIES. Each Bank hereby appoints
and authorizes the Agent to act as its agent hereunder with such powers as are
specifically delegated to the Agent by the terms of this Agreement, together
with such other powers as are reasonably incidental thereto. The Agent (which
term as used in this sentence and in Section 10.05 and the first sentence of
Section 10.06 hereof shall include reference to its affiliates and its own and
its affiliates' officers, directors, employees and agents):
(a) shall have no duties or responsibilities except those expressly
set forth in this Agreement, and shall not by reason of this Agreement be a
trustee for any Bank;
(b) shall not be responsible to the Banks for any recitals,
statements, representations or warranties contained in this Agreement, or
in any certificate or other document referred to or provided for in, or
received by any of them under, this Agreement, or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this
Agreement, any Note or any other document referred to or provided for
herein or for any failure by either Borrower to perform any of its
obligations hereunder or thereunder;
(c) shall not be required to initiate or conduct any litigation or
collection proceedings hereunder; and
(d) shall not be responsible for any action taken or omitted to be
taken by it hereunder or under any other document or instrument referred to
or provided for herein or in connection herewith, except for its own gross
negligence or willful misconduct.
The Agent may employ agents and attorneys-in-fact and shall not be responsible
for the negligence or misconduct of any such agents or attorneys-in-fact
selected by it in good faith. The Agent may deem and treat the payee of a Note
as the holder thereof for all purposes hereof unless and until a notice of the
assignment or transfer thereof shall have been filed with the Agent, together
with the consent of the Company to such assignment or transfer (to the extent
provided in Section 11.06(b) hereof).
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10.02 RELIANCE BY AGENT. The Agent shall be entitled to rely upon
any certification, notice or other communication (including, without limitation,
any thereof by telephone, telecopy, telegram or cable) believed by it to be
genuine and correct and to have been signed or sent by or on behalf of the
proper Person or Persons, and upon advice and statements of legal counsel,
independent accountants and other experts selected by the Agent. As to any
matters not expressly provided for by this Agreement, the Agent shall in all
cases be fully protected in acting, or in refraining from acting, hereunder in
accordance with instructions given by the Majority Banks, and such instructions
of the Majority Banks and any action taken or failure to act pursuant thereto
shall be binding on all of the Banks.
10.03 DEFAULTS. The Agent shall not be deemed to have knowledge or
notice of the occurrence of a Default unless the Agent has received notice from
a Bank or the Company specifying such Default and stating that such notice is a
"Notice of Default". In the event that the Agent receives such a notice of the
occurrence of a Default, the Agent shall give prompt notice thereof to the
Banks. The Agent shall (subject to Sections 10.01 and 10.07 hereof) take such
action with respect to such Default as shall be directed by the Majority Banks,
PROVIDED that, unless and until the Agent shall have received such directions,
the Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default as it shall deem advisable in
the best interest of the Banks except to the extent that this Agreement
expressly requires that such action be taken, or not be taken, only with the
consent or upon the authorization of the Majority Banks or all of the Banks.
10.04 RIGHTS AS A BANK. With respect to its Commitment and the Loans
made by it, Chase (and any successor acting as Agent) in its capacity as a Bank
hereunder shall have the same rights and powers hereunder as any other Bank and
may exercise the same as though it were not acting as the Agent, and the term
"Bank" or "Banks" shall, unless the context otherwise indicates, include the
Agent in its individual capacity. Chase (and any successor acting as Agent) and
its affiliates may (without having to account therefor to any Bank) accept
deposits from, lend money to, make investments in and generally engage in any
kind of banking, trust or other business with the Company (and any of its
Subsidiaries or affiliates) as if it were not acting as the Agent, and Chase
(and any other successor acting as Agent) and its affiliates may accept fees and
other consideration from the Company for services in connection with this
Agreement or otherwise without having to account for the same to the Banks.
10.05 INDEMNIFICATION. The Banks agree to indemnify the Agent (to
the extent not reimbursed under Section 11.03
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hereof, but without limiting the obligations of the Company under said
Section 11.03) ratably in accordance with their respective Commitments, for any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind and nature
whatsoever that may be imposed on, incurred by or asserted against the Agent
(including by any Bank) arising out of or by reason of any investigation in or
in any way relating to or arising out of this Agreement or any other documents
contemplated by or referred to herein or the transactions contemplated hereby
(including, without limitation, the costs and expenses that the Company is
obligated to pay under Section 11.03 hereof but excluding (i) unless a Default
has occurred and is continuing, normal administrative costs and expenses
incident to the performance of its agency duties hereunder and (ii) the costs
and expenses of the Agent in connection with the negotiation and preparation of
this Agreement) or the enforcement of any of the terms hereof or of any such
other documents, PROVIDED that no Bank shall be liable for any of the foregoing
to the extent they arise from the gross negligence or willful misconduct of the
party to be indemnified.
10.06 NON-RELIANCE ON AGENT AND OTHER BANKS. Each Bank agrees that
it has, independently and without reliance on the Agent, or any other Bank, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis of the Company and its Subsidiaries and decision to enter
into this Agreement and that it will, independently and without reliance upon
the Agent, or any other Bank, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own analysis and
decisions in taking or not taking action under this Agreement. The Agent shall
not be required to keep itself informed as to the performance or observance by
the Company of this Agreement or any other document referred to or provided for
herein or to inspect the Properties or books of the Company or any of its
Subsidiaries. Except for notices, reports and other documents and information
expressly required to be furnished to the Banks by the Agent hereunder, the
Agent shall not have any duty or responsibility to provide any Bank with any
credit or other information concerning the affairs, financial condition,
operations, business, Properties, liabilities or prospects of the Company or any
of its Subsidiaries (or any of their affiliates) that may come into the
possession of the Agent or any of its affiliates.
10.07 FAILURE TO ACT. Except for action expressly required of the
Agent hereunder, the Agent shall in all cases be fully justified in failing or
refusing to act hereunder unless it shall receive further assurances to its
satisfaction from the Banks of their indemnification obligations under
Section 10.05 hereof against any and all liability and expense that may be
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incurred by it by reason of taking or continuing to take any such action.
10.08 RESIGNATION OR REMOVAL OF AGENT. Subject to the appointment
and acceptance of a successor Agent as provided below, the Agent may resign at
any time by giving notice thereof to the Banks and the Company, and the Agent
may be removed at any time with or without cause by the Majority Banks. Upon
any such resignation or removal, the Majority Banks shall have the right to
appoint a successor Agent. If no successor Agent shall have been so appointed
by the Majority Banks and shall have accepted such appointment within 30 days
after the retiring Agent's giving of notice of resignation or the Majority
Banks' removal of the retiring Agent, then the retiring Agent may, on behalf of
the Banks, appoint a successor Agent, that shall be a bank that has an office in
New York, New York with a combined capital and surplus of at least $500,000,000.
Upon the acceptance of any appointment as Agent hereunder by a successor Agent,
such successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations hereunder. After any
retiring Agent's resignation or removal hereunder as Agent, the provisions of
this Section 10 shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as the Agent.
10.09 CO-AGENTS. The Co-Agents shall not have any obligations or
responsibilities hereunder except in their capacities as Banks hereunder or, in
the case of the Agent, in its capacity as Agent.
Section 11. MISCELLANEOUS.
11.01 WAIVER. No failure on the part of the Agent or any Bank to
exercise and no delay in exercising, and no course of dealing with respect to,
any right, power or privilege under this Agreement or any Note shall operate as
a waiver thereof, nor shall any single or partial exercise of any right, power
or privilege under this Agreement or any Note preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
11.02 NOTICES. All notices, requests and other communications
provided for herein (including, without limitation, any modifications of, or
waivers, requests or consents under, this Agreement) shall be given or made in
writing (including, without limitation, by telecopy), or, with respect to
notices given pursuant to Section 2.03 hereof, by telephone, confirmed in
writing by telecopier by the close of business on
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the day the notice is given, delivered (or telephoned, as the case may be) to
the intended recipient at the "Address for Notices" specified below its name on
the signature pages hereof); or, as to any party, at such other address as shall
be designated by such party in a notice to each other party. Except as
otherwise provided in this Agreement, all such communications shall be deemed to
have been duly given when transmitted by telecopier or personally delivered or,
in the case of a mailed notice, upon receipt, in each case given or addressed as
aforesaid.
11.03 EXPENSES, ETC. The Company agrees to pay or reimburse each of
the Banks and the Agent for: (a) all reasonable out-of-pocket costs and
expenses of the Agent (including, without limitation, the reasonable fees and
expenses of Milbank, Tweed, Hadley & McCloy, special New York counsel to Chase)
in connection with the negotiation or preparation of any modification,
supplement or waiver of any of the terms of this Agreement or any of the Notes
(whether or not consummated); (b) all reasonable out-of-pocket costs and
expenses of the Banks and the Agent (including, without limitation, the
reasonable fees and expenses of legal counsel) in connection with (i) any
Default and any enforcement or collection proceedings resulting therefrom,
including, without limitation, all manner of participation in or other
involvement with (x) bankruptcy, insolvency, receivership, foreclosure, winding
up or liquidation proceedings, (y) judicial or regulatory proceedings and
(z) workout, restructuring or other negotiations or proceedings (whether or not
the workout, restructuring or transaction contemplated thereby is consummated)
and (ii) the enforcement of this Section 11.03; and (c) all transfer, stamp,
documentary or other similar taxes, assessments or charges levied by any
governmental or revenue authority in respect of this Agreement or any of the
Notes or any other document referred to herein.
The Company hereby agrees to indemnify the Agent and each Bank and
their respective directors, officers, employees, attorneys and agents from, and
hold each of them harmless against, any and all losses, liabilities, claims,
damages or expenses incurred by any of them (including, without limitation, any
and all losses, liabilities, claims, damages or expenses incurred by the Agent
to any Bank, whether or not the Agent or any Bank is a party thereto) arising
out of or by reason of any investigation or litigation or other proceedings
(including any threatened investigation or litigation or other proceedings)
relating to the Loans hereunder or any actual or proposed use by the Company or
any of its Subsidiaries of the proceeds of any of the Loans hereunder,
including, without limitation, the reasonable fees and disbursements of counsel
incurred in connection with any such investigation or litigation or other
proceedings (but excluding any such losses, liabilities, claims,
CREDIT AGREEMENT
<PAGE>
- 58 -
damages or expenses incurred by reason of the gross negligence or willful
misconduct of the Person to be indemnified).
11.04 AMENDMENTS, ETC. Except as otherwise expressly provided in
this Agreement, any provision of this Agreement may be modified or supplemented
only by an instrument in writing signed by the Company, Motorola Credit and the
Majority Banks, or by the Company, Motorola Credit and the Agent acting with the
consent of the Majority Banks, and any provision of this Agreement may be waived
by the Majority Banks or by the Agent acting with the consent of the Majority
Banks; PROVIDED that, (a) except as otherwise provided in Sections 2.10 and 2.11
hereof, no modification, supplement or waiver shall, unless by an instrument
signed by all of the Banks or by the Agent acting with the consent of all of the
Banks: (i) increase, or extend the term of the Commitments, or extend the time
or waive any requirement for the reduction or termination of the Commitments,
(ii) extend the date fixed for the payment of principal of or interest on any
Loan or any fee hereunder, (iii) reduce the amount of any such payment of
principal, (iv) reduce the rate at which interest is payable thereon or any fee
is payable hereunder, (v) alter the rights or obligations of either Borrower to
prepay Loans, (vi) alter the terms of this Section 11.04, (vii) modify the
definition of the term "Majority Banks" or modify in any other manner the number
or percentage of the Banks required to make any determinations or waive any
rights hereunder or to modify any provision hereof, or (viii) waive any of the
conditions precedent set forth in Section 6.01 hereof; and (b) any modification
or supplement of Section 10 hereof shall require the consent of the Agent.
11.05 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
11.06 ASSIGNMENTS AND PARTICIPATIONS.
(a) Neither Borrower may assign any of its rights or obligations
hereunder or under the Notes without the prior consent of all of the Banks and
the Agent.
(b) Each Bank may assign any of its Loans, its Notes, and its
Commitment (but only with the consent of the Company and the Agent, each of
which consents shall not be unreasonably withheld); PROVIDED that
(i) no such consent by the Company or the Agent shall be required in
the case of any assignment to another Bank;
(ii) except to the extent the Company and the Agent shall otherwise
consent, any such partial assignment (other
CREDIT AGREEMENT
<PAGE>
- 59 -
than to another Bank) shall be in an amount at least equal to $10,000,000;
(iii) each such assignment by a Bank of its Syndicated Loans,
Syndicated Notes or Commitment shall be made in such manner so that the
same portion of its Syndicated Loans, Syndicated Notes and Commitment is
assigned to the respective assignee; and
(iv) upon each such assignment, the assignor and assignee shall
deliver to the Company and the Agent a Notice of Assignment in the form of
Exhibit G hereto.
Upon execution and delivery by the assignor and the assignee to the Company and
the Agent of such Notice of Assignment, and upon consent thereto by the Company
and the Agent to the extent required above, the assignee shall have, to the
extent of such assignment (unless otherwise consented to by the Company and the
Agent), the obligations, rights and benefits of a Bank hereunder holding the
Commitment and Loans (or portions thereof) assigned to it and specified in such
Notice of Assignment (in addition to the Commitment and Loans, if any,
theretofore held by such assignee) and the assigning Bank shall, to the extent
of such assignment, be released from the Commitment (or portion thereof) so
assigned. Upon each such assignment the assigning Bank shall pay the Agent an
assignment fee of $3,000.
(c) A Bank may sell or agree to sell to one or more other Persons a
participation in all or any part of any Loans held by it, or in its Commitment,
in which event each purchaser of a participation (a "PARTICIPANT") shall not,
except as otherwise provided in Section 4.07(c) hereof, have any rights or
benefits under this Agreement or any Note (the Participant's rights against such
Bank in respect of such participation to be those set forth in the agreements
executed by such Bank in favor of the Participant). All amounts payable by the
Company to any Bank under Section 5 hereof in respect of Loans held by it, and
its Commitment, shall be determined as if such Bank had not sold or agreed to
sell any participations in such Loans and Commitment, and as if such Bank were
funding each of such Loans and Commitment in the same way that it is funding the
portion of such Loans and Commitment in which no participations have been sold.
In no event shall a Bank that sells a participation agree with the Participant
to take or refrain from taking any action hereunder except that such Bank may
agree with the Participant that it will not, without the consent of the
Participant, agree to (i) increase or extend the term, or extend the time or
waive any requirement for the reduction or termination, of such Bank's
Commitment, (ii) extend the date fixed for the payment of principal of or
interest on the related Loan or Loans or any portion of any fee hereunder
payable to the Participant,
CREDIT AGREEMENT
<PAGE>
- 60 -
(iii) reduce the amount of any such payment of principal, (iv) reduce the rate
at which interest is payable thereon, or any fee hereunder payable to the
Participant, to a level below the rate at which the Participant is entitled to
receive such interest or fee, (v) alter the rights or obligations of either
Borrower to prepay the related Loans or (vi) consent to any modification,
supplement or waiver hereof to the extent that the same, under Section 11.04
hereof, requires the consent of each Bank.
(d) In addition to the assignments and participations permitted under
the foregoing provisions of this Section 11.06, any Bank may (without notice to
the Company, the Agent or any other Bank and without payment of any fee) (i)
assign and pledge all or any portion of its Loans and its Notes to any Federal
Reserve Bank as collateral security pursuant to Regulation A and any Operating
Circular issued by such Federal Reserve Bank and (ii) assign all or any portion
of its rights under this Agreement and its Loans and its Notes to an affiliate.
No such assignment shall release the assigning Bank from its obligations
hereunder.
(e) A Bank may furnish any information concerning the Company or any
of its Subsidiaries in the possession of such Bank from time to time to
assignees and participants (including prospective assignees and participants),
subject, however, to the provisions of Section 11.12(b) hereof.
(f) Anything in this Section 11.06 to the contrary notwithstanding,
no Bank may assign or participate any interest in any Loan held by it hereunder
to the Company or any of its affiliates or Subsidiaries without the prior
consent of each Bank.
11.07 SURVIVAL. The obligations of the Borrowers under Sections
5.01, 5.05, 5.06 and 11.03 hereof, and the obligations of the Banks under
Section 10.05 hereof, shall survive the repayment of the Loans and the
termination of the Commitments. In addition, each representation and warranty
made, or deemed to be made by a notice of any Loan, herein or pursuant hereto
shall survive the making of such representation and warranty, and no Bank shall
be deemed to have waived, by reason of making any Loan, any Default that may
arise by reason of such representation or warranty proving to have been false or
misleading, notwithstanding that such Bank or the Agent may have had notice or
knowledge or reason to believe that such representation or warranty was false or
misleading at the time such Loan was made.
11.08 CAPTIONS. The table of contents and captions and section
headings appearing herein are included solely for
CREDIT AGREEMENT
<PAGE>
- 61 -
convenience of reference and are not intended to affect the interpretation of
any provision of this Agreement.
11.09 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
11.10 GOVERNING LAW; SUBMISSION TO JURISDICTION. This Agreement and
the Notes shall be governed by, and construed in accordance with, the law of the
State of New York. Each Borrower hereby submits to the nonexclusive
jurisdiction of the United States District Court for the Southern District of
New York and of any New York state court sitting in New York City for the
purposes of all legal proceedings arising out of or relating to this Agreement
or the transactions contemplated hereby. Each Borrower irrevocably waives, to
the fullest extent permitted by applicable law, any objection that it may now or
hereafter have to the laying of the venue of any such proceeding brought in such
a court and any claim that any such proceeding brought in such a court has been
brought in an inconvenient forum.
11.11 WAIVER OF JURY TRIAL. EACH OF THE BORROWERS, THE AGENT AND THE
BANKS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT, THE NOTES OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
11.12 TREATMENT OF CERTAIN INFORMATION; CONFIDENTIALITY.
(a) The Company acknowledges that from time to time financial
advisory, investment banking and other services may be offered or provided to
the Company or one or more of its Subsidiaries (in connection with this
Agreement or otherwise) by any Bank or by one or more subsidiaries or affiliates
of such Bank and the Company hereby authorizes each Bank to share any
information delivered to such Bank by the Company and its Subsidiaries pursuant
to this Agreement, or in connection with the decision of such Bank to enter into
this Agreement, to any such subsidiary or affiliate, it being understood that
any such subsidiary or affiliate receiving such information shall be bound by
the provisions of paragraph (b) below as if it were a Bank hereunder. Such
authorization shall survive the repayment of the Loans and the termination of
the Commitments.
(b) Each of the Banks and the Agent agrees (on behalf of itself and
each of its affiliates, directors, officers, employees and representatives) to
use reasonable precautions to keep confidential, in accordance with its
customary procedures
CREDIT AGREEMENT
<PAGE>
- 62 -
for handling confidential information of the same nature and in accordance with
safe and sound banking practices, any non-public information supplied to it by
the Company pursuant to this Agreement that is identified by the Company as
being confidential at the time the same is delivered to the Banks or the Agent,
PROVIDED that nothing herein shall limit the disclosure of any such information
(i) to the extent required by statute, rule, regulation or judicial process,
(ii) to counsel for any of the Banks or the Agent, (iii) to bank examiners,
auditors or accountants, (iv) to the Agent or any other Bank (or to Chase
Securities, Inc.), (v) in connection with any litigation to which any one or
more of the Banks or the Agent is a party, (vi) to a subsidiary or affiliate of
such Bank as provided in paragraph (a) above or (vii) to any assignee or
participant (or prospective assignee or participant) so long as such assignee or
participant (or prospective assignee or participant) first executes and delivers
to the respective Bank a Confidentiality Agreement substantially in the form of
Exhibit F hereto. The obligations of any assignee that has executed a
Confidentiality Agreement in the form of Exhibit F hereto shall be superseded by
this Section 11.12 upon the date upon which such assignee becomes a Bank
hereunder pursuant to Section 11.06 hereof.
11.13 TERMINATION OF EXISTING LINES OF CREDIT. On the date of the
execution and delivery of this Agreement, the commitment of each Bank under its
existing line of credit in favor of the Borrowers, if any, (other than cash
management and other service product lines of credit) shall automatically
terminate and all fees payable to such Bank in connection with such existing
line of credit accrued to such date shall be immediately due and payable.
CREDIT AGREEMENT
<PAGE>
- 63 -
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the day and year first above written.
MOTOROLA, INC.
By
-------------------------
Title:
Address for Notices:
Motorola, Inc.
Corporate Offices
1303 East Algonquin Road
Schaumburg, Illinois 60196
Attention: Ann Redpath O'Neal
Telecopier No.: 708-576-4768
Telephone No.: 708-576-5069
MOTOROLA CREDIT CORPORATION
By
-------------------------
Title:
Address for Notices:
Motorola Credit Corporation
Corporate Offices
1303 East Algonquin Road
Schaumburg, Illinois 60196
Attention: Ann Redpath O'Neal
Telecopier No.: 708-576-4768
Telephone No.: 708-576-5069
CREDIT AGREEMENT
<PAGE>
- 64 -
BANKS
COMMITMENT THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
$55,000,000.00
By
-------------------------
Title:
Lending Office for all Loans:
The Chase Manhattan Bank
(National Association)
1 Chase Manhattan Plaza
New York, New York 10081
Address for Notices:
The Chase Manhattan Bank
(National Association)
1 Chase Manhattan Plaza
New York, New York 10081
Attention: Patricia B. Bril
Telecopier No.: 212-552-1457
Telephone No.: 212-552-6233
CREDIT AGREEMENT
<PAGE>
- 65 -
COMMITMENT CITIBANK, N.A.
$55,000,000.00
By
-------------------------
Title:
Lending Office for all Loans:
Citibank, N.A.
399 Park Avenue
New York, NY 10043
Address for Notices:
Citibank, N.A.
399 Park Avenue
New York, NY 10043
Attention: Thomas McGrath
Telecopier No.: 212-593-5919
Telephone No.: 212-593-00541
CREDIT AGREEMENT
<PAGE>
- 66 -
COMMITMENT THE FIRST NATIONAL BANK OF CHICAGO
$55,000,000.00
By
-------------------------
Title:
Lending Office for all Loans:
The First National Bank of Chicago
One First National Plaza,
Suite 0324
Chicago, Illinois 60670
Address for Notices:
The First National Bank of Chicago
One First National Plaza,
Suite 0324
Chicago, Illinois 60670
Attention: Michael W. McCorkle
Telecopier No.: 312-732-3568
Telephone No.: 312-732-1712
CREDIT AGREEMENT
<PAGE>
- 67 -
COMMITMENT HARRIS TRUST AND SAVINGS BANK
$55,000,000.00
By
-------------------------
Title:
Lending Office for all Loans:
Harris Trust and Savings Bank
115 South LaSalle Street
Chicago, IL 60603
Address for Notices:
Harris Trust and Savings Bank
115 South LaSalle Street
Chicago, IL 60603
Attention: Lisa Zahniser
Director
Telecopier No.: 312-750-3702
Telephone No.: 312-750-3734
CREDIT AGREEMENT
<PAGE>
- 68 -
COMMITMENT BANK OF AMERICA NATIONAL
TRUST & SAVINGS ASSOCIATION
$30,000,000.00
By
-------------------------
Title:
Lending Office for all Loans:
Bank of America NT & SA
555 California Street
San Francisco, California 94104
Address for Notices:
Bank of America NT & SA
555 California Street
San Francisco, California 94104
Attention: Peter Tomei
Telecopier No.: 415-622-2514
Telephone No.: 415-622-4581
CREDIT AGREEMENT
<PAGE>
- 69 -
COMMITMENT THE NORTHERN TRUST COMPANY
$25,000,000.00
By
-------------------------
Title:
Lending Office for all Loans:
The Northern Trust Company
50 South LaSalle Street
Chicago, Illinois 60675
Address for Notices:
The Northern Trust Company
50 South LaSalle Street
Chicago, Illinois 60675
Attention: Chicago Division, B-11
John J. Conway
Telecopier No.: 312-630-1566
Telephone No.: 312-444-3118
CREDIT AGREEMENT
<PAGE>
- 70 -
COMMITMENT ABN AMRO BANK N.V.
$20,000,000.00
By
-------------------------
Title:
By
-------------------------
Title:
Lending Office for all Loans:
ABN Amro Bank N.V.
135 South LaSalle Street
Suite 425
Chicago, Illinois 60674-9135
Address for Notices:
ABN Amro Bank N.V.
135 South LaSalle Street
Suite 425
Chicago, Illinois 60674-9135
Attention: Joanna Riopelle
Telecopier No.: 312-606-8425
Telephone No.: 312-443-2955
CREDIT AGREEMENT
<PAGE>
- 71 -
COMMITMENT BARCLAYS BANK PLC
$20,000,000.00
By
-------------------------
Title:
Lending Office for all Loans:
Barclays Bank PLC
75 Wall Street
New York, New York 10265
Address for Notices:
Barclays Bank PLC
222 Broadway
11th Floor
New York, New York 10038
Attention: Philip S.A. Capparis
Technologies Group
Telecopier No.: 212-412-7511
Telephone No.: 212-412-6773
CREDIT AGREEMENT
<PAGE>
- 72 -
COMMITMENT CIBC, INC.
$20,000,000.00
By
-------------------------
Title:
Lending Office for all Loans:
CIBC, Inc.
425 Lexington Avenue
New York, New York 10017
Address for Notices:
CIBC, Inc.
425 Lexington Avenue
New York, New York 10017
Attention: Leslie L. Rogers
Telecopier No.: 212-856-3558
Telephone No.: 212-856-3983
CREDIT AGREEMENT
<PAGE>
- 73 -
COMMITMENT CREDIT LYONNAIS CHICAGO BRANCH
$20,000,000.00
By
-------------------------
Title:
Lending Office for all Loans:
Credit Lyonnais Chicago Branch
227 West Monroe
Chicago, Illinois 60606
Address for Notices:
Credit Lyonnais Chicago Branch
227 West Monroe
Chicago, Illinois 60606
Attention: David L. Payne
Telecopier No.: 312-641-0527
Telephone No.: 312-220-7310
CREDIT AGREEMENT
<PAGE>
- 74 -
COMMITMENT DRESDNER BANK AG, CHICAGO AND
GRAND CAYMAN BRANCHES
$20,000,000.00
By
-------------------------
Title:
By
-------------------------
Title:
Lending Office for all Loans:
Dresdner Bank AG, Chicago and
Grand Cayman Branches
190 South LaSalle Street
Suite 2700
Chicago, Illinois 60603
Address for Notices:
Dresdner Bank AG, Chicago and
Grand Cayman Branches
190 South LaSalle Street
Suite 2700
Chicago, Illinois 60603
Attention: William J. Murray
Telecopier No.: 312-444-1305
Telephone No.: 312-444-1318
CREDIT AGREEMENT
<PAGE>
- 75 -
COMMITMENT SWISS BANK CORPORATION -
CHICAGO BRANCH
$20,000,000.00
By
-------------------------
Title:
By
-------------------------
Title:
Lending Office for all Loans:
Swiss Bank Corporation -
Chicago Branch
141 West Jackson Boulevard
Eighth Floor
Merchant Banking Group
Chicago, Illinois 60604
Address for Notices:
Swiss Bank Corporation -
Chicago Branch
141 West Jackson Boulevard
Eighth Floor
Merchant Banking Group
Chicago, Illinois 60604
Attention: Jolynn Bryant Kelly
Telecopier No.: 312-554-6410
Telephone No.: 312-554-6424
CREDIT AGREEMENT
<PAGE>
- 76 -
COMMITMENT UNION BANK OF SWITZERLAND,
CHICAGO BRANCH
$20,000,000.00
By
-------------------------
Title:
By
-------------------------
Title:
Lending Office for all Loans:
Union Bank of Switzerland,
Chicago Branch
30 South Wacker Drive
40th Floor
Chicago, Illinois 60606
Address for Notices:
Union Bank of Switzerland,
Chicago Branch
30 South Wacker Drive
40th Floor
Chicago, Illinois 60606
Attention: Robert L. Wells
Telecopier No.: 312-993-5530
Telephone No.: 312-993-5446
CREDIT AGREEMENT
<PAGE>
- 77 -
COMMITMENT THE BANK OF TOKYO, LTD.,
CHICAGO BRANCH
$15,000,000.00
By
-------------------------
Title:
Lending Office for all Loans:
The Bank of Tokyo, Ltd.,
Chicago Branch
69 West Washington
Chicago, Illinois 60602
Address for Notices:
The Bank of Tokyo, Ltd.,
Chicago Branch
69 West Washington
Chicago, Illinois 60602
Attention: Wayne Yamanaka
Telecopier No.: 312-236-8268
Telephone No.: 312-236-4974
CREDIT AGREEMENT
<PAGE>
- 78 -
COMMITMENT CHEMICAL BANK
$15,000,000.00
By
-------------------------
Title:
Lending Office for all Loans:
Chemical Bank
270 Park Avenue
New York, New York 10017
Address for Notices:
Chemical Bank
270 Park Avenue
New York, New York 10017
Attention: John J. Huber, III
Telecopier No.: 212-270-2625
Telephone No.: 212-270-1402
CREDIT AGREEMENT
<PAGE>
- 79 -
COMMITMENT THE DAI-ICHI KANGYO BANK, LTD.,
CHICAGO BRANCH
$15,000,000.00
By
-------------------------
Title:
Lending Office for all Loans:
The Dai-Ichi Kangyo Bank, Ltd.,
Chicago Branch
10 South Wacker Drive
Chicago, Illinois 60606
Address for Notices:
The Dai-Ichi Kangyo Bank, Ltd.,
Chicago Branch
10 South Wacker Drive
Chicago, Illinois 60606
Attention: Richard R. Howard
Telecopier No.: 312-876-2011
Telephone No.: 312-715-6369
CREDIT AGREEMENT
<PAGE>
- 80 -
COMMITMENT THE SANWA BANK, LTD.,
CHICAGO BRANCH
$15,000,000.00
By
-------------------------
Title:
Lending Office for all Loans:
The Sanwa Bank, Ltd.
10 South Wacker Drive
Chicago, Illinois 60606
Address for Notices:
The Sanwa Bank, Ltd.
10 South Wacker Drive
Chicago, Illinois 60606
Attention: Ken Eichwald
Telecopier No.: 312-368-6677
Telephone No.: 312-368-3006
CREDIT AGREEMENT
<PAGE>
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COMMITMENT THE SUMITOMO BANK, LIMITED,
CHICAGO BRANCH
$15,000,000.00
By
-------------------------
Title:
Lending Office for all Loans:
The Sumitomo Bank, Limited,
Chicago Branch
233 South Wacker Drive
Suite 4800
Chicago, Illinois 60606-6498
Address for Notices:
The Sumitomo Bank, Limited,
Chicago Branch
233 South Wacker Drive
Suite 4800
Chicago, Illinois 60606-6498
Attention: John Kemper
Telecopier No.: 312-876-6436
Telephone No.: 312-876-7797
CREDIT AGREEMENT
<PAGE>
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COMMITMENT ROYAL BANK OF CANADA
$10,000,000.00
By
-------------------------
Title:
Lending Office for all Loans:
Royal Bank of Canada,
New York Branch
c/o New York Operations Center
Pierrepont Plaza
300 Cadman Plaza West
Brooklyn, New York 11201-2701
Address for Notices:
Royal Bank of Canada,
New York Branch
Pierrepont Plaza
300 Cadman Plaza West
Brooklyn, New York 11201-2701
Attention: Manager,
Loans Administration
Telecopier No.: 718-522-6292/3
Telephone No.: 212-858-7168
with a copy to:
Royal Bank of Canada
Financial Square, 24th Floor
New York, New York 10005-3531
Attention: John P. Page
Telecopier No.: 212-428-6460
Telephone No.: 212-428-6551
CREDIT AGREEMENT
<PAGE>
- 83 -
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Agent
By
-------------------------
Title:
Address for Notices to
Chase as Agent:
The Chase Manhattan Bank
(National Association)
4 Chase Metrotech Center
13th Floor
Brooklyn, New York 11245
Attention: New York Agency
Telecopier No.: (718) 242-6910
Telephone No.: (718) 242-7979
CREDIT AGREEMENT
<PAGE>
Schedule I
Material Domestic Subsidiaries
[Section 7.13]
Motorola Credit a Delaware 100% of the
Corporation corporation issued and
outstanding shares
of capital stock are
owned by the Company
Codex Corporation a Delaware 100% of the
corporation issued and
outstanding shares
of capital stock are
owned by the Company
Motorola Electronica a Delaware approximately 15% of
de Puerto Rico, Inc. corporation the issued and
outstanding shares
of capital stock are
owned by Motorola
International
Capital Corporation
and approximately
85% of the issued
and outstanding
shares of capital
stock are owned
by Motorola
International
Development
Corporation
SCHEDULE I
<PAGE>
EXHIBIT A-1
[Form of Syndicated Note]
PROMISSORY NOTE
$_______________ September 21, 1994
New York, New York
FOR VALUE RECEIVED, [MOTOROLA, INC.] [MOTOROLA CREDIT CORPORATION], a
Delaware corporation (the "BORROWER"), hereby promises to pay to
__________________ (the "BANK"), for account of its respective Applicable
Lending Offices provided for by the Credit Agreement referred to below, at the
principal office of The Chase Manhattan Bank (National Association) at 1 Chase
Manhattan Plaza, New York, New York 10081, the principal sum of _______________
Dollars (or such lesser amount as shall equal the aggregate unpaid principal
amount of the Syndicated Loans made by the Bank to the Borrower under the Credit
Agreement), in lawful money of the United States of America and in immediately
available funds, on the dates and in the principal amounts provided in the
Credit Agreement, and to pay interest on the unpaid principal amount of each
such Syndicated Loan, at such office, in like money and funds, for the period
commencing on the date of such Syndicated Loan until such Syndicated Loan shall
be paid in full, at the rates per annum and on the dates provided in the Credit
Agreement.
The date, amount, Type, interest rate and duration of Interest Period
(if applicable) of each Syndicated Loan made by the Bank to the Borrower, and
each payment made on account of the principal thereof, shall be recorded by the
Bank on its books and, prior to any transfer of this Note, endorsed by the Bank
on the schedule attached hereto or any continuation thereof, PROVIDED that the
failure of the Bank to make any such recordation or endorsement shall not affect
the obligations of the Borrower to make a payment when due of any amount owing
under the Credit Agreement or hereunder in respect of the Syndicated Loans made
by the Bank.
This Note is one of the Syndicated Notes referred to in the Credit
Agreement dated as of September 21, 1994 (as modified and supplemented and in
effect from time to time, the "CREDIT AGREEMENT") between Motorola, Inc.,
Motorola Credit Corporation, the lenders named therein (including the Bank), and
The Chase Manhattan Bank (National Association), as Agent, providing for Loans
in an aggregate principal amount initially not to exceed $500,000,000, and
evidences Syndicated Loans made by the Bank to the Borrower thereunder. Terms
used but not defined in this Note have the respective meanings assigned to them
in the Credit Agreement.
SYNDICATED NOTE
<PAGE>
- 2 -
The Credit Agreement provides for the acceleration of the maturity of
this Note upon the occurrence of certain events and for prepayments of
Syndicated Loans upon the terms and conditions specified therein.
Except as permitted by Section 11.06 of the Credit Agreement, this
Note may not be assigned by the Bank to any other Person.
This Note shall be governed by, and construed in accordance with, the
law of the State of New York.
[MOTOROLA, INC.] [MOTOROLA
CREDIT CORPORATION]
By
-------------------------
Title:
SYNDICATED NOTE
<PAGE>
- 3 -
SCHEDULE OF SYNDICATED LOANS
This Note evidences Syndicated Loans made under the within-described
Credit Agreement to the Borrower, on the dates, in the principal amounts, of the
Types, bearing interest at the rates and having Interest Periods (if applicable)
of the durations set forth below, subject to the payments, Continuations,
Conversions and prepayments of principal set forth below:
Prin-
cipal Maturity Unpaid
Amount Type Date Amount Prin-
Date of of Interest of Paid or cipal Notation
Made Loan Loan Rate Loan Prepaid Amount Made by
- --------- ------ ---- -------- -------- --------- ------ --------
SYNDICATED NOTE
<PAGE>
EXHIBIT A-2
[Form of Money Market Note]
PROMISSORY NOTE
September 21, 1994
New York, New York
FOR VALUE RECEIVED, [MOTOROLA, INC.] [MOTOROLA CREDIT CORPORATION], a
Delaware corporation (the "BORROWER"), hereby promises to pay to
__________________ (the "BANK"), for account of its respective Applicable
Lending Offices provided for by the Credit Agreement referred to below, at the
principal office of The Chase Manhattan Bank (National Association) at 1 Chase
Manhattan Plaza, New York, New York 10081, the aggregate unpaid principal amount
of the Money Market Loans made by the Bank to the Borrower under the Credit
Agreement, in lawful money of the United States of America and in immediately
available funds, on the dates and in the principal amounts provided in the
Credit Agreement, and to pay interest on the unpaid principal amount of each
such Money Market Loan, at such office, in like money and funds, for the period
commencing on the date of such Money Market Loan until such Money Market Loan
shall be paid in full, at the rates per annum and on the dates provided in the
Credit Agreement.
The date, amount, Type, interest rate and maturity date of each Money
Market Loan made by the Bank to the Borrower, and each payment made on account
of the principal thereof, shall be recorded by the Bank on its books and, prior
to any transfer of this Note, endorsed by the Bank on the schedule attached
hereto or any continuation thereof, PROVIDED that the failure of the Bank to
make any such recordation or endorsement shall not affect the obligations of the
Borrower to make a payment when due of any amount owing under the Credit
Agreement or hereunder in respect of the Money Market Loans made by the Bank.
This Note is one of the Money Market Notes referred to in the Credit
Agreement dated as of September 21, 1994 (as modified and supplemented and in
effect from time to time, the "CREDIT AGREEMENT") between Motorola, Inc.,
Motorola Credit Corporation, the lenders named therein (including the Bank), and
The Chase Manhattan Bank (National Association), as Agent, providing for Loans
in an aggregate principal amount initially not to exceed $500,000,000, and
evidences Money Market Loans made by the Bank to the Borrower thereunder. Terms
used but not defined in this Note have the respective meanings assigned to them
in the Credit Agreement.
MONEY MARKET NOTE
<PAGE>
- 2 -
The Credit Agreement provides for the acceleration of the maturity of
this Note upon the occurrence of certain events and for prepayments of Money
Market Loans upon the terms and conditions specified therein.
Except as permitted by Section 11.06 of the Credit Agreement, this
Note may not be assigned by the Bank to any other Person.
This Note shall be governed by, and construed in accordance with, the
law of the State of New York.
[MOTOROLA, INC.] [MOTOROLA
CREDIT CORPORATION]
By
-------------------------
Title:
MONEY MARKET NOTE
<PAGE>
- 3 -
SCHEDULE OF MONEY MARKET LOANS
This Note evidences Money Market Loans made under the within-described
Credit Agreement to the Borrower, on the dates, in the principal amounts, of the
Types, bearing interest at the rates and maturing on the dates set forth below,
subject to the payments and prepayments of principal set forth below:
Principal
Date Amount Type Maturity Amount Unpaid
of of of Interest Date of Paid or Principal Notation
Loan Loan Loan Rate Loan Prepaid Amount Made by
- ---- --------- ---- -------- -------- ------- --------- --------
MONEY MARKET NOTE
<PAGE>
EXHIBIT B
[Form of Opinion of Counsel to the Borrower]
September 21, 1994
To the Banks party to the
Credit Agreement referred to
below and The Chase
Manhattan Bank (National Association), as Agent
Ladies and Gentlemen:
I have acted as counsel to Motorola, Inc. (the "COMPANY") and Motorola
Credit Corporation ("MOTOROLA CREDIT", and together with the Company, the
"BORROWERS"), in connection with (i) the Credit Agreement (the "CREDIT
AGREEMENT") dated as of September 21, 1994, between the Company, Motorola
Credit, the lenders named therein, and The Chase Manhattan Bank (National
Association), as Agent, providing for loans to be made by said lenders to the
Borrowers in an aggregate principal amount initially not to exceed $500,000,000
and (ii) the various other agreements and instruments referred to in the next
following paragraph. Terms defined in the Credit Agreement are used herein as
defined therein. This opinion is being delivered pursuant to Section 6.01(b) of
the Credit Agreement.
In rendering the opinions expressed below, I have examined the
following agreements, instruments and other documents:
(a) the Credit Agreement;
(b) the Notes issued by the Borrowers; and
(c) such corporate records of the Borrowers and such other documents
as I have deemed necessary as a basis for the opinions expressed
below.
The agreements, instruments and other documents referred to in the foregoing
lettered clauses (other than clause (c) above) are collectively referred to as
the "CREDIT DOCUMENTS".
In my examination, I have assumed the genuineness of all signatures,
the authenticity of all documents submitted to me as originals and the
conformity with authentic original documents of all documents submitted to me as
copies. When relevant facts were not independently established, I have relied
upon statements of governmental officials and upon representations made in or
pursuant to the Credit Documents and certificates of appropriate representatives
of the Borrowers.
OPINION OF COUNSEL TO THE BORROWERS
<PAGE>
- 2 -
In rendering the opinions expressed below, I have assumed, with
respect to all of the documents referred to in this opinion letter, that
(except, to the extent set forth in the opinions expressed below, as to the
Borrowers):
(i) such documents have been duly authorized by, have been duly
executed and delivered by, and constitute legal, valid, binding
and enforceable obligations of, all of the parties to such
documents;
(ii) all signatories to such documents have been duly authorized; and
(iii) all of the parties to such documents are duly organized and
validly existing and have the power and authority (corporate or
other) to execute, deliver and perform such documents.
Based upon and subject to the foregoing and subject also to the
comments and qualifications set forth below, and having considered such
questions of law as I have deemed necessary as a basis for the opinions
expressed below, I am of the opinion that:
1. Each Borrower is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware. Each
Material Domestic Subsidiary of the Company is a corporation duly
organized, validly existing and in good standing under the laws of the
respective state indicated opposite its name in Schedule I to the Credit
Agreement.
2. Each Borrower has all requisite corporate power to execute and
deliver, and to perform its obligations under, the Credit Documents to
which such Borrower is party. Each Borrower has all requisite corporate
power to borrow under the Credit Agreement.
3. The execution, delivery and performance by each Borrower of each
Credit Document to which such Borrower is a party, and the borrowings by
such Borrower under the Credit Agreement, have been duly authorized by all
necessary corporate action on the part of such Borrower.
4. Each Credit Document to which any Borrower is a party has been
duly executed and delivered by such Borrower.
5. If the Credit Documents were stated to be governed by and
construed in accordance with the law of the State of Illinois, or if a
court of the State of Illinois were to
OPINION OF COUNSEL TO THE BORROWERS
<PAGE>
- 3 -
apply the law of the State of Illinois to the Credit Documents, each Credit
Document to which any Borrower is a party would nevertheless constitute the
legal, valid and binding obligation of such Borrower, enforceable against
such Borrower in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights of creditors generally and except as
the enforceability of the Credit Documents is subject to the application of
general principles of equity (regardless of whether considered in a
proceeding in equity or at law), including, without limitation, (a) the
possible unavailability of specific performance, injunctive relief or any
other equitable remedy and (b) concepts of materiality, reasonableness,
good faith and fair dealing.
6. No authorization, approval or consent of, and no filing or
registration with, any governmental or regulatory authority or agency of
the United States of America or the State of Illinois is required on the
part of any Borrower for the execution, delivery or performance by such
Borrower of any Credit Document to which such Borrower is a party or for
the borrowings by such Borrower under the Credit Agreement.
7. The execution, delivery and performance by any Borrower of, and
the consummation by such Borrower of the transactions contemplated by, the
Credit Documents do not and will not (a) violate any provision of its
charter or by-laws, (b) violate any applicable law, rule or regulation, (c)
violate any order, writ, injunction or decree of any court or governmental
authority or agency or any arbitral award applicable to such Borrower or
any of the Company's Material Domestic Subsidiaries of which I have
knowledge (after reasonable inquiry) or (d) result in a breach of,
constitute a default under, require any consent under, or result in the
acceleration or required prepayment of any indebtedness pursuant to the
terms of, any agreement or instrument of which I have knowledge (after
reasonable inquiry) to which such Borrower or any of the Company's Material
Domestic Subsidiaries is a party or by which any of them is bound or to
which any of them is subject, or result in the creation or imposition of
any Lien upon any Property of such Borrower pursuant to, the terms of any
such agreement or instrument.
8. Except as disclosed in the Company's Report on Form 10-K filed
with the SEC for fiscal year ended December 31, 1993 and in the Company's
Reports on Form 10-Q filed with the SEC for the first and second fiscal
quarters for the fiscal year 1994, I have no knowledge (after
OPINION OF COUNSEL TO THE BORROWERS
<PAGE>
- 4 -
reasonable inquiry) of any legal or arbitral proceedings, or any
proceedings by or before any governmental or regulatory authority or
agency, pending or threatened against or affecting any Borrower or any of
the Company's Subsidiaries or any of their respective Properties that, if
adversely determined, are likely to have a Material Adverse Effect.
The foregoing opinions are subject to the following comments and
qualifications:
(A) The enforceability of Section 11.03 of the Credit Agreement may
be limited by (i) laws rendering unenforceable indemnification contrary to
Federal or state securities laws and the public policy underlying such laws
and (ii) laws limiting the enforceability of provisions exculpating or
exempting a party, or requiring indemnification of a party for, liability
for its own action or inaction, to the extent the action or inaction
involves gross negligence, recklessness, willful misconduct or unlawful
conduct.
(B) The enforceability of provisions in the Credit Documents to the
effect that terms may not be waived or modified except in writing may be
limited under certain circumstances.
(C) I express no opinion as to (i) the effect of the laws of any
jurisdiction in which any Bank is located (other than the State of
Illinois) that limit the interest, fees or other charges such Bank may
impose, (ii) Section 4.07(c) of the Credit Agreement, (iii) the second
sentence of Section 11.10 of the Credit Agreement, insofar as such sentence
relates to the subject matter jurisdiction of the United States District
Court for the Southern District of New York to adjudicate any controversy
related to the Credit Documents, and (iv) the waiver of inconvenient forum
set forth in Section 11.10 of the Credit Agreement with respect to
proceedings in the United States District Court for the Southern District
of New York.
The foregoing opinions are limited to matters involving the Federal
laws of the United States of America, the Delaware General Corporation Law and
the law of the State of Illinois, and I do not express any opinion as to the
laws of any other jurisdiction.
OPINION OF COUNSEL TO THE BORROWERS
<PAGE>
- 5 -
At the request of my client, this opinion letter is, pursuant to
Section 6.01(b) of the Credit Agreement, provided to you by me in my capacity as
counsel to the Company and may not be relied upon by any Person for any purpose
other than in connection with the transactions contemplated by the Credit
Agreement without, in each instance, my prior written consent.
Very truly yours,
OPINION OF COUNSEL TO THE BORROWERS
<PAGE>
EXHIBIT C
[Form of Opinion of Special New York Counsel to Chase]
September 21, 1994
To the Banks party to the
Credit Agreement referred to
below and The Chase
Manhattan Bank (National Association), as Agent
Ladies and Gentlemen:
We have acted as special New York counsel to The Chase Manhattan Bank
(National Association) ("CHASE") in connection with the Credit Agreement dated
as of September 21, 1994 (the "CREDIT AGREEMENT") between Motorola, Inc. (the
"COMPANY"), Motorola Credit Corporation ("MOTOROLA CREDIT", and together with
the Company, the "BORROWERS"), the lenders named therein, and Chase, as Agent,
providing for loans to be made by said lenders to the Borrowers in an aggregate
principal amount initially not to exceed $500,000,000. Terms defined in the
Credit Agreement are used herein as defined therein. This opinion is being
delivered pursuant to Section 6.01(c) of the Credit Agreement.
In rendering the opinions expressed below, we have examined the
following agreements, instruments and other documents:
(a) the Credit Agreement; and
(b) the Notes (together with the Credit Agreement, the "CREDIT
DOCUMENT").
In our examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals and the
conformity with authentic original documents of all documents submitted to us as
copies. When relevant facts were not independently established, we have relied
upon representations made in or pursuant to the Credit Documents.
In rendering the opinions expressed below, we have assumed, with
respect to all of the documents referred to in this opinion letter, that:
(i) such documents have been duly authorized by, have been duly
executed and delivered by, and (except to the extent set forth in
the opinions below as to the Borrowers) constitute legal, valid,
binding and enforceable obligations of, all of the parties to
such documents;
OPINION OF SPECIAL COUNSEL TO CHASE
<PAGE>
- 2 -
(ii) all signatories to such documents have been duly authorized; and
(iii) all of the parties to such documents are duly organized and
validly existing and have the power and authority (corporate or
other) to execute, deliver and perform such documents.
Based upon and subject to the foregoing and subject also to the
comments and qualifications set forth below, and having considered such
questions of law as we have deemed necessary as a basis for the opinions
expressed below, we are of the opinion that each of the Credit Documents
constitutes the legal, valid and binding obligation of each Borrower party
thereto, enforceable against such Borrower in accordance with its terms, except
as may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting the rights of creditors generally and
except as the enforceability of the Credit Documents is subject to the
application of general principles of equity (regardless of whether considered in
a proceeding in equity or at law), including, without limitation, (a) the
possible unavailability of specific performance, injunctive relief or any other
equitable remedy and (b) concepts of materiality, reasonableness, good faith and
fair dealing.
The foregoing opinions are subject to the following comments and
qualifications:
(A) The enforceability of Section 11.03 of the Credit Agreement may
be limited by (i) laws rendering unenforceable indemnification contrary to
Federal or state securities laws and the public policy underlying such laws
and (ii) laws limiting the enforceability of provisions exculpating or
exempting a party, or requiring indemnification of a party for, liability
for its own action or inaction, to the extent the action or inaction
involves gross negligence, recklessness, willful misconduct or unlawful
conduct.
(B) The enforceability of provisions in the Credit Documents to the
effect that terms may not be waived or modified except in writing may be
limited under certain circumstances.
(C) We express no opinion as to (i) the effect of the laws of any
jurisdiction in which any Bank is located (other than the State of New
York) that limit the interest, fees or other charges such Bank may impose,
(ii) Section 4.07(c) of the Credit Agreement, (iii) the second sentence of
Section 11.10 of the Credit Agreement, insofar as such sentence relates to
the subject matter jurisdiction of the
OPINION OF SPECIAL COUNSEL TO CHASE
<PAGE>
- 3 -
United States District Court for the Southern District of New York to
adjudicate any controversy related to the Credit Documents, and (iv) the
waiver of inconvenient forum set forth in Section 11.10 of the Credit
Agreement with respect to proceedings in the United States District Court
for the Southern District of New York.
The foregoing opinions are limited to matters involving the Federal
laws of the United States of America and the law of the State of New York, and
we do not express any opinion as to the laws of any other jurisdiction.
This opinion letter is, pursuant to Section 6.01(c) of the Credit
Agreement, provided to you by us in our capacity as special New York counsel to
Chase and may not be relied upon by any Person for any purpose other than in
connection with the transactions contemplated by the Credit Agreement without,
in each instance, our prior written consent.
Very truly yours,
CDP/RMG
OPINION OF SPECIAL COUNSEL TO CHASE
<PAGE>
EXHIBIT D
[Form of Money Market Quote Request]
[Date]
To: The Chase Manhattan Bank (National Association), as Agent
From: [Motorola, Inc.] [Motorola Credit Corporation]
Re: Money Market Quote Request
Pursuant to Section 2.03 of the Credit Agreement dated as of
September 21, 1994 (as modified and supplemented and in effect from time to
time, the "CREDIT AGREEMENT") between Motorola, Inc., Motorola Credit
Corporation, the lenders named therein and The Chase Manhattan Bank (National
Association), as Agent, providing for Loans in an aggregate principal amount
initially not to exceed $500,000,000, we hereby give notice that we request
Money Market Quotes for the following proposed Money Market Borrowing(s):
Borrowing Quotation Interest
Date Date[*1] Amount[*2] Type[*3] Period[*4]
- --------- --------- ---------- -------- ----------
The Borrower is [Motorola, Inc.] [Motorola Credit Corporation]. Terms
used herein have the meanings assigned to them in the Credit Agreement.
[MOTOROLA, INC.] [MOTOROLA CREDIT CORPORATION]
By
-------------------------------------------
Title:
- --------------------------
* All numbered footnotes appear on the last page of this Exhibit.
MONEY MARKET QUOTE REQUEST
<PAGE>
- 2 -
- --------------------------
[1] For use if a Set Rate in a Set Rate Auction is requested to be submitted
before the Borrowing Date.
[2] Each amount must be $20,000,000 or a larger multiple of $1,000,000.
[3] Insert either "LIBO Margin" (in the case of LIBOR Market Loans) or "Set
Rate" (in the case of Set Rate Loans).
[4] One, two, three or six months, in the case of a LIBOR Market Loan or, in
the case of a Set Rate Loan, a period of not less than 7 days and no
greater than 180 days after the making of such Set Rate Loan and ending on
a Business Day.
MONEY MARKET QUOTE REQUEST
<PAGE>
EXHIBIT E
[Form of Money Market Quote]
To: The Chase Manhattan Bank (National Association), as Agent
Attention:
Re: Money Market Quote to [Motorola, Inc.] [Motorola Credit Corporation] (the
"BORROWER")
This Money Market Quote is given in accordance with Section 2.03(c) of
the Credit Agreement dated as of September 21, 1994 (as modified and
supplemented and in effect from time to time, the "CREDIT AGREEMENT") between
Motorola, Inc., Motorola Credit Corporation, the lenders named therein, and The
Chase Manhattan Bank (National Association), as Agent, providing for Loans in an
aggregate principal amount initially not to exceed $500,000,000. Terms defined
in the Credit Agreement are used herein as defined therein.
In response to the Borrower's invitation dated __________, 199_, we
hereby make the following Money Market Quote(s) on the following terms:
1. Quoting Bank:
2. Person to contact at Quoting Bank:
3. We hereby offer to make Money Market Loan(s) in the following
principal amount[s], for the following Interest Period(s) and at the
following rate(s):
Borrowing Quotation Interest
Date Date[*1] Amount[*2] Type[*3] Period[*4] Rate[*5]
- --------- --------- ---------- -------- ---------- --------
PROVIDED that the Borrower may not accept offers that would result in the
undersigned making Money Market Loans pursuant hereto in excess of $___________
in the aggregate (the "MONEY MARKET LOAN LIMIT").
- --------------------------
* All numbered footnotes appear on the last page of this Exhibit.
MONEY MARKET QUOTE
<PAGE>
- 2 -
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the Credit Agreement,
irrevocably obligate[s] us to make the Money Market Loan(s) for which any
offer(s) (is/are) accepted, in whole or in part (subject to the third sentence
of Section 2.03(e) of the Credit Agreement and any Money Market Loan Limit
specified above).
Very truly yours,
[NAME OF BANK]
By
-------------------------
Authorized Officer
Dated: __________, ____
- --------------------------
[1] As specified in the related Money Market Quote Request.
[2] The principal amount bid for each Interest Period may not exceed the
principal amount requested. Bids must be made for at least $5,000,000 (or
a larger multiple of $1,000,000).
[3] Indicate "LIBO Margin" (in the case of LIBOR Market Loans) or "Set Rate"
(in the case of Set Rate Loans).
[4] One, two, three or six months, in the case of a LIBOR Market Loan or, in
the case of a Set Rate Loan, a period of no less than 7 days and no greater
than 180 days after the making of such Set Rate Loan and ending on a
Business Day, as specified in the related Money Market Quote Request.
[5] For a LIBOR Market Loan, specify margin over or under the London interbank
offered rate determined for the applicable Interest Period. Specify
percentage (rounded to the nearest 1/10,000 of 1%) and specify whether
"PLUS" or "MINUS". For a Set Rate Loan, specify rate of interest per annum
(rounded to the nearest 1/10,000 of 1%).
MONEY MARKET QUOTE
<PAGE>
EXHIBIT F
[Form of Confidentiality Agreement]
CONFIDENTIALITY AGREEMENT
[Date]
[Insert Name and
Address of Prospective
Participant or Assignee]
Re: Credit Agreement dated as of September 21, 1994 (as modified and
supplemented and in effect from time to time, the "CREDIT
AGREEMENT"), between Motorola, Inc. (the "COMPANY"), Motorola
Credit Corporation, the lenders named therein, and The Chase
Manhattan Bank (National Association), as Agent, providing for
Loans in an aggregate principal amount initially not to exceed
$500,000,000.
Dear Ladies and Gentlemen:
As a Bank party to the Credit Agreement, we have agreed with the
Company pursuant to Section 11.12 of the Credit Agreement to use reasonable
precautions to keep confidential, except as otherwise provided therein, all
non-public information identified by the Company as being confidential at the
time the same is delivered to us pursuant to the Credit Agreement.
As provided in said Section 11.12, we are permitted to provide you, as
a prospective [holder of a participation in the Loans (as defined in the Credit
Agreement)] [assignee Bank], with certain of such non-public information subject
to the execution and delivery by you, prior to receiving such non-public
information, of a Confidentiality Agreement in this form. Such information will
not be made available to you until your execution and return to us of this
Confidentiality Agreement.
Accordingly, in consideration of the foregoing, you agree (on behalf
of yourself and each of your affiliates, directors, officers, employees and
representatives and for the benefit of us and the Company) that (A) such
information will not be used by you except in connection with the proposed
[participation][assignment] mentioned above and (B) you shall use reasonable
precautions, in accordance with your customary procedures for handling
confidential information and in accordance with safe and sound banking
practices, to keep such information confidential, PROVIDED that nothing herein
shall limit the disclosure of any such information (i) to the extent required by
statute, rule, regulation or judicial process, (ii) to your counsel or to
counsel for any of the Banks or the
CONFIDENTIALITY AGREEMENT
<PAGE>
- 2 -
Agent, (iii) to bank examiners, auditors or accountants, (iv) to the Agent or
any other Bank (or to Chase Securities, Inc.), (v) in connection with any
litigation to which you or any one or more of the Banks or the Agent are a
party, (vi) to a subsidiary or affiliate of yours as provided in
Section 11.12(a) of the Credit Agreement or (vii) to any assignee or participant
(or prospective assignee or participant) so long as such assignee or participant
(or prospective assignee or participant) first executes and delivers to you a
Confidentiality Agreement substantially in the form hereof; PROVIDED, FURTHER,
that (x) unless specifically prohibited by applicable law or court order, you
agree, prior to disclosure thereof, to notify the Company of any request for
disclosure of any such non-public information (A) by any governmental agency or
representative thereof (other than any such request in connection with an
examination of your financial condition by such governmental agency) or
(B) pursuant to legal process and (y) that in no event shall you be obligated to
return any materials furnished to you pursuant to this Confidentiality
Agreement.
If you are a prospective assignee, your obligations under this
Confidentiality Agreement shall be superseded by Section 11.12 of the Credit
Agreement on the date upon which you become a Bank under the Credit Agreement
pursuant to Section 11.06 thereof.
Please indicate your agreement to the foregoing by signing as provided
below the enclosed copy of this Confidentiality Agreement and returning the same
to us.
Very truly yours,
[INSERT NAME OF BANK]
By
-------------------------
The foregoing is agreed to
as of the date of this letter.
[INSERT NAME OF PROSPECTIVE
PARTICIPANT OR ASSIGNEE]
By
-------------------------
CONFIDENTIALITY AGREEMENT
<PAGE>
EXHIBIT G
[Form of Notice of Assignment]
NOTICE OF ASSIGNMENT
[Date]
Motorola, Inc.
- -------------------------
- -------------------------
Attention:
-------------
The Chase Manhattan Bank, N.A.,
as Agent
4 Chase Metrotech Center -- 13th Floor
Brooklyn, New York 11245
Attention: New York Agency
Re: Credit Agreement dated as of September 21, 1994 (as modified and
supplemented and in effect from time to time, the "CREDIT
AGREEMENT"), between Motorola, Inc. (the "COMPANY"), Motorola
Credit Corporation, the lenders named therein and The Chase
Manhattan Bank (National Association), as Agent, providing for
Loans in an aggregate principal amount initially not to exceed
$500,000,000.
Dear Ladies and Gentlemen:
We hereby give notice that, effective as of the date hereof, [Name of
Assignor] (the "ASSIGNOR") has assigned its rights and obligations with respect
to % (representing $_____________) of the Assignor's outstanding [Commitment
and] [Loans], representing ____% (representing $_____________) of the aggregate
outstanding [Commitment and] [Loans] (such interest in such rights and
obligations being hereinafter referred to as the "ASSIGNED INTEREST") under the
Credit Agreement to [Name of Assignee] (the "ASSIGNEE"). The Assignee hereby
agrees (i) to become a "Bank" pursuant to Section 11.06(b) of the Credit
Agreement (if not already a Bank under the Credit Agreement) and (ii) agrees to
assume all the obligations of the Assignor thereunder with respect to the
Assigned Interest.
NOTICE OF ASSIGNMENT
<PAGE>
- 2 -
The address for notices, lending office(s) and payment instructions
for the Assignee are as follows:
Address for Notices:
----------------------
----------------------
----------------------
Attention:
Telephone:
Telecopier:
Lending Office for Base Rate Loans:
----------------------
----------------------
----------------------
Lending Office for Loans other than Base Rate Loans:
----------------------
----------------------
----------------------
Payment Instructions:
----------------------
----------------------
----------------------
Please sign and return the enclosed copy of this letter to the
undersigned to indicate your receipt hereof, and your consent to or notice of
(as applicable) the above-mentioned assignment and assumption, and your
agreement to the release of the Assignor from its obligations under the Credit
Agreement with respect to the Assigned Interest. As a condition to the
effectiveness of the above-mentioned assignment and assumption, the Agent shall
have received an assignment fee of $3,000.
Very truly yours,
[NAME OF ASSIGNOR]
By
----------------------------
Title:
[NAME OF ASSIGNEE]
By
----------------------------
Title:
NOTICE OF ASSIGNMENT
<PAGE>
- 3 -
ACKNOWLEDGED OR CONSENTED TO
(AS APPLICABLE):
MOTOROLA, INC.
By
--------------------------
Title:
THE CHASE MANHATTAN BANK, N.A.,
as Agent
By
--------------------------
Title:
NOTICE OF ASSIGNMENT
<PAGE>
EXHIBIT 10(b)
EXECUTION COUNTERPART
---------------------------------------
---------------------------------------
MOTOROLA, INC.
MOTOROLA CREDIT CORPORATION
------------------
CREDIT AGREEMENT
Dated as of September 21, 1994
------------------
$1,000,000,000
------------------
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
CITIBANK, N.A.
THE FIRST NATIONAL BANK OF CHICAGO
HARRIS TRUST AND SAVINGS BANK,
as Co-Agents
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Agent
---------------------------------------
---------------------------------------
<PAGE>
TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which it is
attached but is inserted for convenience of reference only.
Page
----
Section 1. Definitions and Accounting Matters . . . . . . . . . . . . . . . 1
1.01 Certain Defined Terms . . . . . . . . . . . . . . . . . . . . . . 1
1.02 Accounting Terms and Determinations . . . . . . . . . . . . . . . 15
1.03 Classes and Types of Loans. . . . . . . . . . . . . . . . . . . . 16
Section 2. Commitments, Loans, Notes and Prepayments. . . . . . . . . . . . 16
2.01 Syndicated Loans. . . . . . . . . . . . . . . . . . . . . . . . . 16
2.02 Borrowings of Syndicated Loans. . . . . . . . . . . . . . . . . . 16
2.03 Money Market Loans. . . . . . . . . . . . . . . . . . . . . . . . 16
2.04 Changes of Commitments. . . . . . . . . . . . . . . . . . . . . . 21
2.05 Facility Fee. . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.06 Lending Offices . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.07 Several Obligations; Remedies Independent . . . . . . . . . . . . 22
2.08 Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.09 Optional Prepayments. . . . . . . . . . . . . . . . . . . . . . . 23
2.10 Increase in Commitments . . . . . . . . . . . . . . . . . . . . . 23
Section 3. Payments of Principal and Interest . . . . . . . . . . . . . . . 26
3.01 Repayment of Loans. . . . . . . . . . . . . . . . . . . . . . . . 26
3.02 Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 4. Payments; Pro Rata Treatment; Computations; Etc. . . . . . . . . 27
4.01 Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
4.02 Pro Rata Treatment. . . . . . . . . . . . . . . . . . . . . . . . 28
4.03 Computations. . . . . . . . . . . . . . . . . . . . . . . . . . . 28
4.04 Minimum Amounts . . . . . . . . . . . . . . . . . . . . . . . . . 29
4.05 Certain Notices . . . . . . . . . . . . . . . . . . . . . . . . . 29
4.06 Non-Receipt of Funds by the Agent . . . . . . . . . . . . . . . . 29
4.07 Sharing of Payments, Etc. . . . . . . . . . . . . . . . . . . . . 31
Section 5. Yield Protection, Etc. . . . . . . . . . . . . . . . . . . . . . 32
5.01 Additional Costs. . . . . . . . . . . . . . . . . . . . . . . . . 32
5.02 Limitation on Types of Loans. . . . . . . . . . . . . . . . . . . 34
5.03 Illegality. . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
5.04 Treatment of Affected Loans . . . . . . . . . . . . . . . . . . . 35
5.05 Compensation. . . . . . . . . . . . . . . . . . . . . . . . . . . 35
5.06 U.S. Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
CREDIT AGREEMENT
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5.07 Replacement of Banks. . . . . . . . . . . . . . . . . . . . . . . 38
Section 6. Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . 38
6.01 Initial Loan. . . . . . . . . . . . . . . . . . . . . . . . . . . 38
6.02 Initial and Subsequent Loans. . . . . . . . . . . . . . . . . . . 39
Section 7. Representations and Warranties . . . . . . . . . . . . . . . . . 40
7.01 Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . 40
7.02 Financial Condition . . . . . . . . . . . . . . . . . . . . . . . 40
7.03 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
7.04 No Breach . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
7.05 Action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
7.06 Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
7.07 Use of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . 42
7.08 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
7.09 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
7.10 Investment Company Act. . . . . . . . . . . . . . . . . . . . . . 42
7.11 Public Utility Holding Company Act. . . . . . . . . . . . . . . . 42
7.12 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . 43
7.13 Subsidiaries, Etc.. . . . . . . . . . . . . . . . . . . . . . . . 43
7.14 Operating Agreement . . . . . . . . . . . . . . . . . . . . . . . 43
Section 8. Covenants of the Company . . . . . . . . . . . . . . . . . . . . 44
8.01 Financial Statements, Etc.. . . . . . . . . . . . . . . . . . . . 44
8.02 Existence, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . 46
8.03 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
8.04 Prohibition of Fundamental Changes. . . . . . . . . . . . . . . . 47
8.05 Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . 49
8.06 Limitation on Sales and Leasebacks. . . . . . . . . . . . . . . . 50
8.07 Net Worth . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
8.08 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . 51
8.09 Special Obligations Relating to Motorola Credit . . . . . . . . . 51
Section 9. Events of Default. . . . . . . . . . . . . . . . . . . . . . . . 51
Section 10. The Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
10.01 Appointment, Powers and Immunities . . . . . . . . . . . . . . . 54
10.02 Reliance by Agent. . . . . . . . . . . . . . . . . . . . . . . . 55
10.03 Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
10.04 Rights as a Bank . . . . . . . . . . . . . . . . . . . . . . . . 56
10.05 Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . 56
10.06 Non-Reliance on Agent and Other Banks. . . . . . . . . . . . . . 57
10.07 Failure to Act . . . . . . . . . . . . . . . . . . . . . . . . . 57
10.08 Resignation or Removal of Agent. . . . . . . . . . . . . . . . . 57
10.09 Co-Agents. . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
CREDIT AGREEMENT
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Section 11. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . 58
11.01 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
11.02 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
11.03 Expenses, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . 58
11.04 Amendments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . 59
11.05 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . 60
11.06 Assignments and Participations . . . . . . . . . . . . . . . . . 60
11.07 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
11.08 Captions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
11.09 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . 62
11.10 Governing Law; Submission to Jurisdiction. . . . . . . . . . . . 62
11.11 Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . 63
11.12 Treatment of Certain Information; Confidentiality. . . . . . . . 63
11.13 Termination of Existing Lines of Credit. . . . . . . . . . . . . 64
SCHEDULE I - Material Domestic Subsidiaries
EXHIBIT A-1 - Form of Syndicated Note
EXHIBIT A-2 - Form of Money Market Note
EXHIBIT B - Form of Opinion of Counsel to
the Borrowers
EXHIBIT C - Form of Opinion of Special New York
Counsel to Chase
EXHIBIT D - Form of Money Market Quote Request
EXHIBIT E - Form of Money Market Quote
EXHIBIT F - Form of Confidentiality Agreement
EXHIBIT G - Form of Notice of Assignment
CREDIT AGREEMENT
<PAGE>
CREDIT AGREEMENT dated as of September 21, 1994, between:
MOTOROLA, INC., a corporation duly organized and validly existing
under the laws of the State of Delaware (the "COMPANY");
MOTOROLA CREDIT CORPORATION, a corporation duly organized and validly
existing under the laws of the State of Delaware ("MOTOROLA CREDIT", and
together with the Company, the "BORROWERS");
Each of the lenders that is a signatory hereto identified under the
caption "BANKS" on the signature pages hereto or that, pursuant to Section
2.10 hereof or Section 11.06(b) hereof, shall become a "Bank" hereunder
(individually, a "BANK" and, collectively, the "BANKS"); and
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION), a national banking
association, as agent for the Banks (in such capacity, together with its
successors in such capacity, the "AGENT").
The Borrowers have requested that the Banks make loans to each of them
in an aggregate principal amount not exceeding $1,000,000,000 at any one time
outstanding as to both of them combined and the Banks are prepared to make such
loans upon the terms and conditions hereof. Accordingly, the parties hereto
agree as follows:
Section 1. DEFINITIONS AND ACCOUNTING MATTERS.
1.01 CERTAIN DEFINED TERMS. As used herein, the following terms
shall have the following meanings (all terms defined in this Section 1.01 or in
other provisions of this Agreement in the singular to have the same meanings
when used in the plural and VICE VERSA):
"APPLICABLE LENDING OFFICE" shall mean, for each Bank and for each
Type of Loan, the "Lending Office" of such Bank (or of an affiliate of such
Bank) designated for such Type of Loan on the signature pages hereof or such
other office of such Bank (or of an affiliate of such Bank) as such Bank may
from time to time specify to the Agent and the Company as the office by which
its Loans of such Type are to be made and maintained.
"APPLICABLE FACILITY FEE RATE" AND "APPLICABLE MARGIN" shall mean,
during any period when the Rating is at any Rating Level set forth below, with
respect to any facility fee payable hereunder or any Type of Syndicated Loan
outstanding hereunder,
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the percentage set forth below opposite such fee or Type of Syndicated Loan for
such Rating Level:
Rating Rating Rating Rating Rating
Level Level Level Level Level
Fee or Loan I II III IV V
- ----------------------------------------------------------------------
Facility Fee 0.07% 0.075% 0.09% 0.125% 0.20%
- ----------------------------------------------------------------------
Eurodollar
Loans 0.14% 0.165% 0.21% 0.25% 0.40%
- ----------------------------------------------------------------------
Base Rate
Loans 0.0% 0.0% 0.0% 0.0% 0.0%
- ----------------------------------------------------------------------
Notwithstanding the foregoing, the Applicable Margin for Eurodollar Loans and
Base Rate Loans shall be increased by an amount equal to 0.050% during any
period when the aggregate principal amount of all Loans outstanding is greater
than or equal to 50% of the aggregate amount of the Commitments. For the
purposes of this Agreement, any change in the Applicable Facility Rate or
Applicable Margin for any facility fee or any outstanding Syndicated Loans by
reason of a change in the Moody's Rating or the Standard & Poor's Rating shall
become effective on the date of announcement or publication by the respective
Rating Agency of a change in such Rating or, in the absence of such announcement
or publication, on the effective date of such changed rating.
"ATTRIBUTABLE DEBT" shall mean, as to any particular lease under which
any Person is at the time liable, at any date as of which the amount thereof is
to be determined, the total net amount of rent required to be paid by such
Person under such lease during the remaining term thereof, discounted from the
respective due dates thereof to such date at the rate per annum borne by the
Senior Securities compounded annually. 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.
"BANKRUPTCY CODE" shall mean the Federal Bankruptcy Code of 1978, as
amended from time to time.
"BASE RATE" shall mean, for any day, a rate per annum equal to the
higher of (a) the Federal Funds Rate for such day
CREDIT AGREEMENT
<PAGE>
- 3 -
plus 1/2 of 1% and (b) the Prime Rate for such day. Each change in any interest
rate provided for herein based upon the Base Rate resulting from a change in the
Base Rate shall take effect at the time of such change in the Base Rate.
"BASE RATE LOANS" shall mean Syndicated Loans that bear interest at
rates based upon the Base Rate.
"BASLE ACCORD" shall mean the proposals for risk-based capital
framework described by the Basle Committee on Banking Regulations and
Supervisory Practices in its paper entitled "International Convergence of
Capital Measurement and Capital Standards" dated July 1988, as amended, modified
and supplemented and in effect from time to time or any replacement thereof.
"BUSINESS DAY" shall mean any day (a) on which commercial banks are
not authorized or required to close in New York City and (b) if such day relates
to the giving of notices or quotes in connection with a LIBOR Auction or to a
borrowing of, a payment or prepayment of principal of or interest on, or the
Interest Period for, a Eurodollar Loan or a LIBOR Market Loan or a notice by the
Company with respect to any such borrowing, payment, prepayment or Interest
Period, also on which dealings in Dollar deposits are carried out in the London
interbank market.
"CAPITAL LEASE OBLIGATIONS" shall mean, for any Person, all
obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) Property to the extent such
obligations are required to be classified and accounted for as a capital lease
on a balance sheet of such Person under GAAP, and, for purposes of this
Agreement, the amount of such obligations shall be the capitalized amount
thereof, determined in accordance with GAAP.
"CHASE" shall mean The Chase Manhattan Bank (National Association).
"CLASS" shall have the meaning assigned to such term in Section 1.03
hereof.
"CODE" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"COMMITMENT" shall mean, as to each Bank, the obligation of such Bank
to make Syndicated Loans pursuant to Section 2.01 hereof in an aggregate
principal amount at any one time outstanding up to but not exceeding the amount
set opposite such Bank's name on the signature pages hereof under the caption
"Commitment" (as the same may at any time or from time to time be reduced
pursuant to Section 2.04 hereof or increased pursuant to Section 2.10 hereof).
CREDIT AGREEMENT
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- 4 -
"COMMITMENT TERMINATION DATE" shall mean September 21, 1999; PROVIDED
that, if such date is not a Business Day, the Commitment Termination Date shall
be the next preceding Business Day.
"CONSOLIDATED NET TANGIBLE ASSETS" shall mean the aggregate amount of
assets (less applicable reserves and other properly deductible items) after
deducting therefrom (a) all current liabilities (excluding any constituting
Funded Debt by reason of their being renewable or extendible) and (b) all
goodwill, trade names, trademarks, patents, unamortized debt discount and
expense 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.
"DEBT" shall mean Indebtedness evidenced by notes, bonds, debentures
or similar evidences of indebtedness for borrowed money.
"DEFAULT" shall mean an Event of Default or an event that with notice
or lapse of time or both would become an Event of Default.
"DOLLARS" and "$" shall mean lawful money of the United States of
America.
"DOMESTIC SUBSIDIARY" shall mean (i) Motorola Credit and (ii) any
other Subsidiary of the Company, except any such Subsidiary (x) that neither
transacts any substantial portion of its business nor regularly maintains any
substantial portion of its fixed assets within the United States of America or
(y) which is engaged primarily in financing the operations of the Company or its
Subsidiaries outside the United States of America.
"ENVIRONMENTAL LAWS" shall mean any and all present and future
Federal, state, local and foreign laws, rules or regulations, and any orders or
decrees, in each case as now or hereafter in effect, relating to the regulation
or protection of the environment or to emissions, discharges, releases or
threatened releases of pollutants, contaminants, chemicals or toxic or hazardous
substances or wastes into the indoor or outdoor environment, including, without
limitation, ambient air, soil, surface water, ground water, wetlands, land or
subsurface strata, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, chemicals or toxic or hazardous substances or wastes.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time.
CREDIT AGREEMENT
<PAGE>
- 5 -
"ERISA AFFILIATE" shall mean any corporation or trade or business that
is a member of any group of organizations (i) described in Section 414(b) or (c)
of the Code of which the Company is a member and (ii) solely for purposes of
potential liability under Section 302(c)(11) of ERISA and Section 412(c)(11) of
the Code and the lien created under Section 302(f) of ERISA and Section 412(n)
of the Code, described in Section 414(m) or (o) of the Code of which the Company
is a member.
"EURODOLLAR LOANS" shall mean Syndicated Loans that bear interest at
rates based on rates referred to in the definition of "Fixed Base Rate" in this
Section 1.01.
"EURODOLLAR RATE" shall mean, for any Eurodollar Loan for the Interest
Period therefor, a rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) determined by the Agent to be equal to the Fixed Base Rate for such
Loan for such Interest Period divided by 1 minus the Reserve Requirement (if
any) for such Loan for such Interest Period.
"EVENT OF DEFAULT" shall have the meaning assigned to such term in
Section 9 hereof.
"FEDERAL FUNDS RATE" shall mean, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day, PROVIDED that (a) if the day for which such rate is to
be determined is not a Business Day, the Federal Funds Rate for such day shall
be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day and (b) if such rate is not so
published for any Business Day, the Federal Funds Rate for such Business Day
shall be the average rate charged to Chase on such Business Day on such
transactions as determined by the Agent.
"FIXED BASE RATE" shall mean, with respect to any Fixed Rate Loan for
the Interest Period therefor:
(a) the rate per annum (rounded upwards, if necessary, to the nearest
1/16 of 1%) appearing on the Reuters Screen LIBO Page (or such other page
as may replace that page in that service) at approximately 11:00 a.m.
London time (or as soon thereafter as practicable) two Business Days prior
to the first day of the Interest Period for such Loan as the London
Interbank Offered Rate for Dollar deposits having a
CREDIT AGREEMENT
<PAGE>
- 6 -
term comparable to such Interest Period and in an amount of $1,000,000 or
more; or
(b) if such rate does not appear on the Reuters Screen LIBO Page or,
if said page shall cease to be publicly available or if the information
contained on said page, in the reasonable judgment of the Majority Banks,
shall cease accurately to reflect the rate offered by leading banks in the
London interbank market ("LONDON INTERBANK OFFERED RATE") (as reported by
any publicly available source of similar market data selected by the
Majority Banks that, in the reasonable judgment of the Majority Banks,
accurately reflects the London Interbank Offered Rate), the Fixed Base Rate
shall mean, with respect to any Fixed Rate Loan for any Interest Period,
the arithmetic mean, as determined by the Agent, of the rate per annum
(rounded upwards, if necessary, to the nearest 1/16 of 1%) quoted by each
Reference Bank at approximately 11:00 a.m. London time (or as soon
thereafter as practicable) two Business Days prior to the first day of the
Interest Period for such Loan for the offering by such Reference Bank to
leading banks in the London interbank market of Dollar deposits having a
term comparable to such Interest Period and in an amount comparable to the
principal amount of the Fixed Rate Loan to be made by such Reference Bank
(or its Applicable Lending Office, as the case may be) for such Interest
Period; provided that (i) if any Reference Bank is not participating in any
Eurodollar Loan, the Fixed Base Rate for such Loan shall be determined by
reference to the amount of the Loan which such Reference Bank would have
made had it been participating in such Loans, (ii) in determining the Fixed
Base Rate with respect to any LIBOR Market Loan, each Reference Bank shall
be deemed to have made a LIBOR Market Loan in an amount equal to
$1,000,000, (iii) each Reference Bank agrees to use its best efforts to
furnish timely information to the Agent for purposes of determining the
Fixed Base Rate and (iv) if any Reference Bank does not furnish such timely
information for determination of the Fixed Base Rate, the Agent shall
determine such interest rate on the basis of timely information furnished
by the remaining Reference Banks.
"FIXED RATE LOANS" shall mean Eurodollar Loans and, for the purposes
of the definitions of "Fixed Base Rate" and "Interest Period" in this
Section 1.01 and in Section 5 hereof, LIBOR Market Loans.
"FUNDED DEBT" shall mean all Debt having a maturity of more than 12
months from the date of the most recent balance sheet of the Company and its
consolidated Subsidiaries or having a maturity of less than 12 months but by its
terms being
CREDIT AGREEMENT
<PAGE>
- 7 -
renewable or extendible beyond 12 months from the date of such balance sheet at
the option of the borrower.
"GAAP" shall mean generally accepted accounting principles applied on
a basis consistent with those that, in accordance with the last sentence of
Section 1.02(a) hereof, are to be used in making the calculations for purposes
of determining compliance with this Agreement.
"GUARANTEE" shall mean a guarantee, an endorsement, a contingent
agreement to purchase or to furnish funds for the payment or maintenance of, or
otherwise to be or become contingently liable under or with respect to, the
Indebtedness, other obligations, net worth, working capital or earnings of any
Person, or a guarantee of the payment of dividends or other distributions upon
the stock or equity interests of any Person, or an agreement to purchase, sell
or lease (as lessee or lessor) Property, products, materials, supplies or
services primarily for the purpose of enabling a debtor to make payment of such
debtor's obligations or an agreement to assure a creditor against loss, and
including, without limitation, causing a bank or other financial institution to
issue a letter of credit or other similar instrument for the benefit of another
Person, but excluding endorsements for collection or deposit in the ordinary
course of business. The terms "GUARANTEE" and "GUARANTEED" used as a verb shall
have a correlative meaning.
"INDEBTEDNESS" shall mean, for any Person: (a) obligations created,
issued or incurred by such Person for borrowed money (whether by loan, the
issuance and sale of debt securities or the sale of Property to another Person
subject to an understanding or agreement, contingent or otherwise, to repurchase
such Property from such Person); (b) obligations of such Person to pay the
deferred purchase or acquisition price of Property or services, other than trade
accounts payable (other than for borrowed money) arising, and accrued expenses
incurred, in the ordinary course of business; (c) Indebtedness of others secured
by a Lien on the Property of such Person, whether or not the respective
indebtedness so secured has been assumed by such Person; (d) obligations of such
Person in respect of letters of credit or similar instruments issued or accepted
by banks and other financial institutions for account of such Person (other than
import letters of credit and import banker's acceptances arising in the ordinary
course of such Person's business); (e) Capital Lease Obligations of such Person;
and (f) Indebtedness of others Guaranteed by such Person.
"INTEREST PERIOD" shall mean:
(a) with respect to any Eurodollar Loan, the period commencing on the
date such Eurodollar Loan is made and
CREDIT AGREEMENT
<PAGE>
- 8 -
ending on the numerically corresponding day in the first, second, third or
sixth calendar month thereafter, as the relevant Borrower may select as
provided in Section 4.05 hereof, except that each Interest Period that
commences on the last Business Day of a calendar month (or on any day for
which there is no numerically corresponding day in the appropriate
subsequent calendar month) shall end on the last Business Day of the
appropriate subsequent calendar month;
(b) With respect to any Set Rate Loan, the period commencing on the
date such Set Rate Loan is made and ending on any Business Day not less
than seven and not more than 180 days thereafter, as the relevant Borrower
may select as provided in Section 2.03(b) hereof;
(c) With respect to any LIBOR Market Loan, the period commencing on
the date such LIBOR Market Loan is made and ending on the numerically
corresponding day in the first, second, third or sixth calendar month
thereafter, as the relevant Borrower may select as provided in
Section 2.03(b) hereof, except that each Interest Period that commences on
the last Business Day of a calendar month (or any day for which there is no
numerically corresponding day in the appropriate subsequent calendar month)
shall end on the last Business Day of the appropriate subsequent calendar
month; and
(d) with respect to any Base Rate Loan, the period commencing on the
date such Base Rate Loan is made and ending on the earlier of the first
Quarterly Date thereafter or the Commitment Termination Date.
Notwithstanding the foregoing: (i) if any Interest Period for any Loan would
otherwise end after the Commitment Termination Date in existence at the time
such Interest Period is selected, such Interest Period shall not be available
hereunder; (ii) each Interest Period that would otherwise end on a day that is
not a Business Day shall end on the next succeeding Business Day (or, in the
case of an Interest Period for a Fixed Rate Loan, if such next succeeding
Business Day falls in the next succeeding calendar month, on the next preceding
Business Day); and (iii) notwithstanding clauses (i) and (ii) above, no Interest
Period for any Fixed Rate Loan shall have a duration of less than one month and,
if the Interest Period for any Fixed Rate Loan would otherwise be a shorter
period, such Interest Period shall not be available hereunder.
"LIBO MARGIN" shall have the meaning assigned to such term in
Section 2.03(c)(ii)(C) hereof.
CREDIT AGREEMENT
<PAGE>
- 9 -
"LIBO RATE" shall mean, for any LIBOR Market Loan, a rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) determined by the
Agent to be equal to the rate of interest specified in the definition of "Fixed
Base Rate" in this Section 1.01 for the Interest Period for such Loan divided by
1 minus the Reserve Requirement (if any) for such Loan for such Interest Period.
"LIBOR AUCTION" shall mean a solicitation of Money Market Quotes
setting forth LIBO Margins based on the LIBO Rate pursuant to Section 2.03
hereof.
"LIBOR MARKET LOANS" shall mean Money Market Loans interest rates on
which are determined on the basis of LIBO Rates pursuant to a LIBOR Auction.
"LIEN" shall mean, with respect to any Property, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
Property. For purposes of this Agreement, a Person shall be deemed to own
subject to a Lien any Property that it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement (other than an operating lease)
relating to such Property.
"LOANS" shall mean Syndicated Loans and Money Market Loans.
"MAJORITY BANKS" shall mean Banks having more than 50% of the
aggregate amount of the Commitments or, if the Commitments shall have
terminated, Banks holding more than 50% of the aggregate unpaid principal amount
of the Loans.
"MARGIN STOCK" shall mean "margin stock" within the meaning of
Regulations U and X.
"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect on (a)
the financial condition of the Company and its Subsidiaries taken as a whole or
(b) the validity or enforceability of this Agreement or of the Notes.
"MATERIAL DOMESTIC SUBSIDIARY" shall mean, at any time, (i) Motorola
Credit and (ii) any other Domestic Subsidiary of the Company that as of such
time meets the definition of a "significant subsidiary" contained as of the date
hereof in Regulation S-X of the SEC.
"MONEY MARKET BORROWING" shall have the meaning assigned to such term
in Section 2.03(b) hereof.
CREDIT AGREEMENT
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"MONEY MARKET LOAN LIMIT" shall have the meaning assigned to such term
in Section 2.03(c)(ii) hereof.
"MONEY MARKET LOANS" shall mean the loans provided for by Section 2.03
hereof.
"MONEY MARKET NOTES" shall mean the promissory notes provided for by
Section 2.08(b) hereof and all promissory notes delivered in substitution or
exchange therefor, in each case as the same shall be modified and supplemented
and in effect from time to time.
"MOODY'S" shall mean Moody's Investors Service, Inc. or any successor
thereto.
"MOODY'S RATING" shall mean, as of any date of determination thereof,
the rating most recently published by Moody's relating to the unsecured,
unguaranteed senior long term debt securities of the Company then outstanding.
"MONEY MARKET QUOTE" shall mean an offer in accordance with
Section 2.03(c) hereof by a Bank to make a Money Market Loan with one single
specified interest rate.
"MONEY MARKET QUOTE REQUEST" shall have the meaning assigned to such
term in Section 2.03(b) hereof.
"MULTIEMPLOYER PLAN" shall mean a multiemployer plan defined as such
in Section 3(37) of ERISA to which contributions have been made by the Company
or any ERISA Affiliate and that is covered by Title IV of ERISA.
"NET WORTH" shall mean, as at any date, the amount of total
stockholders' equity for the Company and its consolidated Subsidiaries
(determined on a consolidated basis without duplication in accordance with
GAAP).
"NOTES" shall mean the Syndicated Notes and the Money Market Notes.
"OPERATING AGREEMENT" shall mean the Operating Agreement dated as of
January 1, 1992 between the Company and Motorola Credit, as such agreement
shall, subject to Section 8.09 hereof, be modified and supplemented and in
effect from time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
CREDIT AGREEMENT
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"PERSON" shall mean any individual, corporation, company, voluntary
association, partnership, joint venture, trust, unincorporated organization or
government (or any agency, instrumentality or political subdivision thereof).
"PLAN" shall mean an employee benefit or other plan established or
maintained by the Company or any ERISA Affiliate and that is covered by Title IV
of ERISA, other than a Multiemployer Plan.
"POST-DEFAULT RATE" shall mean, in respect of any principal of any
Loan or any other amount under this Agreement or any Note that is not paid when
due (whether at stated maturity, by acceleration, by optional or mandatory
prepayment or otherwise), a rate per annum equal to 2% PLUS the Base Rate as in
effect from time to time (PROVIDED that, if the amount so in default is
principal of a Fixed Rate Loan or a Money Market Loan and the due date thereof
is a day other than the last day of such Interest Period therefor, the "Post-
Default Rate" for such principal shall be, for the period from and including
such due date to but excluding the last day of such Interest Period, 2% PLUS the
interest rate for such Loan as provided in Section 3.02 hereof and, thereafter,
the rate provided for above in this definition).
"PRIME RATE" shall mean the rate of interest from time to time
announced by Chase at the Principal Office as its prime commercial lending rate.
"PRINCIPAL OFFICE" shall mean the principal office of Chase, located
on the date hereof at 1 Chase Manhattan Plaza, New York, New York 10081.
"PRINCIPAL PROPERTY" shall mean any single parcel of real estate,
manufacturing plant or warehouse owned or leased by the Company or any Domestic
Subsidiary which is located within the United States of America and the gross
book value (without deduction of any depreciation reserves) of which on the date
as of which the determination is being made exceeds 1% of Consolidated Net
Tangible Assets, other than any such manufacturing plant or warehouse or portion
thereof (a) which is a pollution control or other facility financed by
obligations issued by a State or local government unit and described in Section
141(a), 142(a)(5), 142(a)(6) or 144(a) of the Code, or any successor provision
thereof, or (b) which, in the opinion of the board of directors of the Company
or any duly authorized committee thereof, is not of material importance to the
total business conducted by the Company and its Subsidiaries as an entirety.
CREDIT AGREEMENT
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"PROPERTY" shall mean any right or interest in or to property of any
kind whatsoever, whether real, personal or mixed and whether tangible or
intangible.
"QUARTERLY DATES" shall mean the last Business Day of March, June,
September and December in each year, the first of which shall be the first such
day after the date hereof.
"RATING" shall mean the Moody's Rating or the Standard & Poor's
Rating.
"RATING AGENCY" shall mean either Moody's or Standard & Poor's.
"RATING LEVEL" shall mean any of Rating Level I, Rating Level II,
Rating Level III, Rating Level IV and Rating Level V. For the purposes of this
Agreement, whenever a Rating Level is stated to be higher or lower than another
Rating Level, the terms "higher" and "lower" shall be determined on the basis
that the highest Rating Level is Rating Level I and the lowest Rating Level is
Rating Level V.
"RATING LEVEL I" shall mean (a) no Event of Default has occurred and
is continuing and (b) the Moody's Rating is at or above Aa2 or the Standard &
Poor's Rating is at or above AA; "RATING LEVEL II" shall mean (a) no Event of
Default has occurred and is continuing, (b) the Moody's Rating is at or above A1
or the Standard & Poor's Rating is at or above A+ and (c) Rating Level I is not
in effect; "RATING LEVEL III" shall mean (a) no Event of Default has occurred
and is continuing, (b) the Moody's Rating is at or above A3 or the Standard &
Poor's Rating is at or above A- and (c) neither Rating Level I nor Rating Level
II is in effect; "RATING LEVEL IV" shall mean (a) no Event of Default has
occurred and is continuing, (b) the Moody's Rating is at or above Baa2 or the
Standard & Poor's Rating is at or above BBB and (c) neither Rating Level I nor
Rating Level II nor Rating Level III is in effect; and "RATING LEVEL V" shall
mean none of Rating Level I, Rating Level II, Rating Level III or Rating Level
IV is in effect; PROVIDED that, (A) if the Moody's Rating and the Standard &
Poor's Rating fall into different Rating Levels and one of such Ratings is no
more than one Rating Level lower than the other of such Ratings, then the
applicable Rating Level shall be the higher of such Ratings, (B) if the Moody's
Rating and the Standard & Poor's Rating fall into different Rating Levels and
one of such Ratings is two or more Rating Levels lower than the other of such
Ratings, then the applicable Rating Level shall be determined by reference to a
hypothetical Rating that would fall into the Rating Level that is one lower than
the Rating Level into which the higher of such Ratings falls and (C)
notwithstanding the foregoing clauses (A) and (B), if the Moody's Rating is
equal to or below Ba1 or (y) the Standard & Poor's
CREDIT AGREEMENT
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Rating is equal to or below BB+, the applicable Rating Level shall be Rating
Level V.
"REFERENCE BANKS" shall mean Chase, Citibank, N.A., The First National
Bank of Chicago and Harris Trust and Savings Bank (or their respective
Applicable Lending Offices, as the case may be).
"REGULATIONS A, D, U AND X" shall mean, respectively, Regulations A,
D, U and X of the Board of Governors of the Federal Reserve System (or any
successor), as the same may be modified and supplemented and in effect from time
to time.
"REGULATORY CHANGE" shall mean, with respect to any Bank, any change
after the date hereof in Federal, state or foreign law or regulations
(including, without limitation, Regulation D) or the adoption or making after
such date of any interpretation, directive or request applying to a class of
banks including such Bank of or under any Federal, state or foreign law or
regulations (whether or not having the force of law and whether or not failure
to comply therewith would be unlawful) by any court or governmental or monetary
authority charged with the interpretation or administration thereof.
"RESERVE REQUIREMENT" shall mean, for the Interest Period for any
Eurodollar Loan or LIBOR Market Loan, the average maximum rate at which reserves
(including, without limitation, any marginal, supplemental or emergency
reserves) are required to be maintained during such Interest Period under
Regulation D by member banks of the Federal Reserve System in New York City with
deposits exceeding one billion Dollars against "Eurocurrency liabilities" (as
such term is used in Regulation D). Without limiting the effect of the
foregoing, the Reserve Requirement shall include any other reserves required to
be maintained by such member banks by reason of any Regulatory Change with
respect to (i) any category of liabilities that includes deposits by reference
to which the Fixed Base Rate for Eurodollar Loans or LIBOR Market Loans (as the
case may be) is to be determined as provided in the definition of "Fixed Base
Rate" in this Section 1.01 or (ii) any category of extensions of credit or other
assets that includes Eurodollar Loans or LIBOR Market Loans.
"SEC" shall mean the Securities and Exchange Commission or any
governmental authority succeeding to its principal functions.
"SENIOR INDENTURE" shall mean the Indenture dated as of October 1,
1991 between the Company and Harris Trust and Savings Bank, as trustee, as such
indenture shall be modified and supplemented and in effect from time to time.
CREDIT AGREEMENT
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"SENIOR SECURITIES" shall mean the Securities issued pursuant to the
Senior Indenture.
"SET RATE" shall have the meaning assigned to such term in
Section 2.03(c)(ii)(D) hereof.
"SET RATE AUCTION" shall mean a solicitation of Money Market Quotes
setting forth Set Rates pursuant to Section 2.03 hereof.
"SET RATE LOANS" shall mean Money Market Loans the interest rates on
which are determined on the basis of Set Rates pursuant to a Set Rate Auction.
"STANDARD & POOR'S" small mean Standard & Poor's Ratings Group, a
division of McGraw-Hill, Inc., or any successor thereto.
"STANDARD AND POOR'S RATING" shall mean, as of any date of
determination thereof, the rating most recently published by Standard & Poor's
relating to the unsecured, unguaranteed senior long term debt securities of the
Company then outstanding.
"SUBSIDIARY" shall mean, with respect to any Person, any corporation,
partnership or other entity of which at least a majority of the securities or
other ownership interests having by the terms thereof ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions of such corporation, partnership or other entity (irrespective of
whether or not at the time securities or other ownership interests of any other
class or classes of such corporation, partnership or other entity shall have or
might have voting power by reason of the happening of any contingency) is at the
time directly or indirectly owned or controlled by such Person or one or more
Subsidiaries of such Person or by such Person and one or more Subsidiaries of
such Person.
"SYNDICATED LOANS" shall mean the loans provided for by Section 2.01
hereof, which may be Base Rate Loans and/or Eurodollar Loans.
"SYNDICATED NOTES" shall mean the promissory notes provided for by
Section 2.08(a) hereof and all promissory notes delivered in substitution or
exchange thereof, in each case as the same shall be modified and supplemented
and in effect from time to time.
"TYPE" shall have the meaning assigned to such term in Section 1.03
hereof.
CREDIT AGREEMENT
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"WHOLLY OWNED SUBSIDIARY" shall mean, with respect to any Person, any
corporation, partnership or other entity of which all of the equity securities
or other ownership interests (other than, in the case of a corporation or other
similar legal entity, directors' qualifying shares or shares held by residents
of the jurisdiction in which such corporation or other similar legal entity is
organized as required by the law of such jurisdiction) are directly or
indirectly owned or controlled by such Person or one or more Wholly Owned
Subsidiaries of such Person or by such Person and one or more Wholly Owned
Subsidiaries of such Person.
1.02 ACCOUNTING TERMS AND DETERMINATIONS.
(a) Except as otherwise expressly provided herein, all accounting
terms used herein shall be interpreted, and all financial statements and
certificates and reports as to financial matters required to be delivered to the
Banks hereunder shall (unless otherwise disclosed to the Banks in writing at the
time of delivery thereof in the manner described in subsection (b) below) be
prepared, in accordance with generally accepted accounting principles applied on
a basis consistent with those used in the preparation of the latest financial
statements furnished to the Banks hereunder (which, prior to the delivery of the
first financial statements under Section 8.01 hereof, shall mean the audited
financial statements as at December 31, 1993 referred to in Section 7.02
hereof). All calculations made for the purposes of determining compliance with
this Agreement shall (except as otherwise expressly provided herein) be made by
application of generally accepted accounting principles applied on a basis
consistent with those used in the preparation of the latest annual or quarterly
financial statements furnished to the Banks pursuant to Section 8.01 hereof (or,
prior to the delivery of the first financial statements under Section 8.01
hereof, used in the preparation of the audited financial statements as at
December 31, 1993 referred to in Section 7.02 hereof) unless (i) the Company
shall have objected to determining such compliance on such basis at the time of
delivery of such financial statements or (ii) the Majority Banks shall so object
in writing within 30 days after delivery of such financial statements, in either
of which events such calculations shall be made on a basis consistent with those
used in the preparation of the latest financial statements as to which such
objection shall not have been made (which, if objection is made in respect of
the first financial statements delivered under Section 8.01 hereof, shall mean
the audited financial statements referred to in Section 7.02 hereof).
(b) The Company shall deliver to the Banks at the same time as the
delivery of any annual or quarterly financial statement under Section 8.01
hereof (i) a description in reasonable detail of any material variation between
the
CREDIT AGREEMENT
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application of accounting principles employed in the preparation of such
statement and the application of accounting principles employed in the
preparation of the next preceding annual or quarterly financial statements as to
which no objection has been made in accordance with the last sentence of
subsection (a) above and (ii) reasonable estimates of the difference between
such statements arising as a consequence thereof.
1.03 CLASSES AND TYPES OF LOANS. Loans hereunder are distinguished
by "Class" and by "Type". The "Class" of a Loan refers to whether such Loan is
a Money Market Loan or a Syndicated Loan, each of which constitutes a Class.
The "Type" of a Loan refers to whether such Loan is a Base Rate Loan, a
Eurodollar Loan, a Set Rate Loan or a LIBOR Market Loan, each of which
constitutes a Type. Loans may be identified by both Class and Type.
Section 2. COMMITMENTS, LOANS, NOTES AND PREPAYMENTS.
2.01 SYNDICATED LOANS. Each Bank severally agrees, on the terms and
conditions of this Agreement, to make loans to the Borrowers in Dollars during
the period from and including the date hereof to but not including the
Commitment Termination Date in an aggregate principal amount as to both
Borrowers at any one time outstanding up to but not exceeding the amount of the
Commitment of such Bank as in effect from time to time. Subject to the terms
and conditions of this Agreement, during such period either Borrower may borrow,
repay and reborrow the amount of the Commitments; PROVIDED that no more than six
separate Interest Periods in respect of Eurodollar Loans from each Bank may be
outstanding at any one time.
2.02 BORROWINGS OF SYNDICATED LOANS. The relevant Borrower shall
give the Agent notice of each borrowing hereunder as provided in Section 4.05
hereof. Not later than 1:00 p.m. New York time on the date specified for each
borrowing of Syndicated Loans hereunder, each Bank shall make available the
amount of the Syndicated Loan or Loans to be made by it on such date to the
Agent, at account number NYAO-DI-900-9-000002 maintained by the Agent with Chase
at the Principal Office, in immediately available funds, for account of the
relevant Borrower. The amount so received by the Agent shall, subject to the
terms and conditions of this Agreement, be made available to the relevant
Borrower by depositing the same, in immediately available funds, in an account
of the relevant Borrower maintained with Chase at the Principal Office
designated by the Company.
2.03 MONEY MARKET LOANS.
(a) In addition to borrowings of Syndicated Loans, at any time prior
to the Commitment Termination Date each Borrower
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may, as set forth in this Section 2.03, request the Banks to make offers to make
Money Market Loans to such Borrower in Dollars. The Banks may, but shall have
no obligation to, make such offers and such Borrower may, but shall have no
obligation to, accept any such offers in the manner set forth in this
Section 2.03. Money Market Loans may be LIBOR Market Loans or Set Rate Loans
(each a "Type" of Money Market Loan), PROVIDED that:
(i) there may be no more than fifteen different Interest Periods for
both Syndicated Loans and Money Market Loans outstanding at the same time
(for which purpose Interest Periods described in different lettered clauses
of the definition of the term "Interest Period" shall be deemed to be
different Interest Periods even if they are coterminous); and
(ii) the aggregate principal amount of all Money Market Loans,
together with the aggregate principal amount of all Syndicated Loans, at
any one time outstanding shall not exceed the aggregate amount of the
Commitments at such time.
(b) When either Borrower wishes to request offers to make Money
Market Loans, such Borrower shall give the Agent (which shall promptly notify
the Banks) notice (a "MONEY MARKET QUOTE REQUEST") so as to be received no later
than 11:00 a.m. New York time on (x) the fourth Business Day prior to the date
of borrowing proposed therein, in the case of a LIBOR Auction or (y) the
Business Day next preceding the date of borrowing proposed therein, in the case
of a Set Rate Auction (or, in any such case, such other time and date as such
Borrower and the Agent, with the consent of the Majority Banks, may agree).
Offers to make Money Market Loans may be requested for up to six different
Interest Periods in a single notice (for which purpose Interest Periods in
different lettered clauses of the definition of the term "Interest Period" shall
be deemed to be different Interest Periods even if they are coterminous);
PROVIDED that the request for each separate Interest Period shall be deemed to
be a separate Money Market Quote Request for a separate borrowing (a "MONEY
MARKET BORROWING"). Each such notice shall be substantially in the form of
Exhibit D hereto and shall specify as to each Money Market Borrowing:
(i) the name of the Borrower and the proposed date of such borrowing,
which shall be a Business Day;
(ii) the aggregate amount of such Money Market Borrowing, which shall
be at least $20,000,000 (or a larger multiple of $1,000,000) but shall not
cause the limits specified in Section 2.03(a) hereof to be violated;
CREDIT AGREEMENT
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(iii) the duration of the Interest Period applicable thereto;
(iv) whether the Money Market Quotes requested for a particular
Interest Period are seeking quotes for LIBOR Market Loans or Set Rate
Loans; and
(v) if the Money Market Quotes requested are seeking quotes for Set
Rate Loans, the date on which the Money Market Quotes are to be submitted
if it is before the proposed date of borrowing (the date on which such
Money Market Quotes are to be submitted is called the "QUOTATION DATE").
Except as otherwise provided in this Section 2.03(b), no Money Market Quote
Request shall be given within five Business Days (or such lesser number of days
as the Agent may agree) of any other Money Market Quote Request.
(c) (i) Each Bank may submit one or more Money Market Quotes, each
constituting an offer to make a Money Market Loan in response to any Money
Market Quote Request; PROVIDED that, if the Borrower's request under
Section 2.03(b) hereof specified more than one Interest Period, such Bank
may make a single submission containing one or more Money Market Quotes for
each such Interest Period. Each Money Market Quote must be submitted to
the Agent not later than (x) 2:00 p.m. New York time on the fourth Business
Day prior to the proposed date of borrowing, in the case of a LIBOR Auction
or (y) 10:00 a.m. New York time on the Quotation Date, in the case of a Set
Rate Auction (or, in any such case, such other time and date as the Company
and the Agent, with the consent of the Majority Banks, may agree); PROVIDED
that any Money Market Quote may be submitted by Chase (or its Applicable
Lending Office) only if Chase (or such Applicable Lending Office) notifies
the Company of the terms of the offer contained therein not later than
(x) 1:00 p.m. New York time on the fourth Business Day prior to the
proposed date of borrowing, in the case of a LIBOR Auction or (y) 9:45 a.m.
New York time on the Quotation Date, in the case of a Set Rate Auction.
Subject to Sections 5.02(b), 5.03, 6.02 and 9 hereof, any Money Market
Quote so made shall be irrevocable except with the consent of the Agent
given on the instructions of the relevant Borrower.
(ii) Each Money Market Quote shall be substantially in the form of
Exhibit E hereto and shall specify:
(A) the name of the Borrower and the proposed date of borrowing
and the Interest Period therefor;
CREDIT AGREEMENT
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(B) the principal amount of the Money Market Loan for which each
such offer is being made, which principal amount shall be at least
$5,000,000 (or a larger multiple of $1,000,000); PROVIDED that the
aggregate principal amount of all Money Market Loans for which a Bank
submits Money Market Quotes (x) may be greater or less than the
Commitment of such Bank but (y) may not exceed the principal amount of
the Money Market Borrowing for a particular Interest Period for which
offers were requested;
(C) in the case of a LIBOR Auction, the margin above or below
the applicable LIBO Rate (the "LIBO MARGIN") offered for each such
Money Market Loan, expressed as a percentage (rounded to the nearest
1/10,000th of 1%) to be added to or subtracted from the applicable
LIBO Rate;
(D) in the case of a Set Rate Auction, the rate of interest per
annum (rounded to the nearest 1/10,000th of 1%) offered for each such
Money Market Loan (the "SET RATE"); and
(E) the identity of the quoting Bank.
Unless otherwise agreed by the Agent and the relevant Borrower, no Money
Market Quote shall contain qualifying, conditional or similar language or
propose terms other than or in addition to those set forth in the
applicable Money Market Quote Request and, in particular, no Money Market
Quote may be conditioned upon acceptance by the Company of all (or some
specified minimum) of the principal amount of the Money Market Loan for
which such Money Market Quote is being made, PROVIDED that the submission
by any Bank containing more than one Money Market Quote may be conditioned
on the relevant Borrower not accepting offers contained in such submission
that would result in such Bank making Money Market Loans pursuant thereto
in excess of a specified amount (the "MONEY MARKET LOAN LIMIT").
(d) The Agent shall (x) in the case of a Set Rate Auction, as
promptly as practicable after the Money Market Quote is submitted (but in any
event not later than 10:15 a.m. New York time on the Quotation Date) or (y) in
the case of a LIBOR Auction, by 4:00 p.m. New York time on the day a Money
Market Quote is submitted, notify the relevant Borrower of the terms (i) of any
Money Market Quote submitted by a Bank that is in accordance with
Section 2.03(c) hereof and (ii) of any Money Market Quote that amends, modifies
or is otherwise inconsistent with a previous Money Market Quote submitted by
such Bank with respect to the same Money Market Quote Request. Any such
CREDIT AGREEMENT
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subsequent Money Market Quote shall be disregarded by the Agent unless such
subsequent Money Market Quote is submitted solely to correct a manifest error in
such former Money Market Quote. The Agent's notice to the relevant Borrower
shall specify (A) the aggregate principal amount of the Money Market Borrowing
for which offers have been received and (B) the respective principal amounts and
LIBO Margins or Set Rates, as the case may be, so offered by each Bank
(identifying the Bank that made each Money Market Quote).
(e) Not later than 11:00 a.m. New York time on (x) the third Business
Day prior to the proposed date of borrowing, in the case of a LIBOR Auction or
(y) the Quotation Date, in the case of a Set Rate Auction (or, in any such case,
such other time and date as the relevant Borrower and the Agent, with the
consent of the Majority Banks, may agree), the relevant Borrower shall notify
the Agent of its acceptance or nonacceptance of the offers so notified to it
pursuant to Section 2.03(d) hereof (which notice shall specify the aggregate
principal amount of offers from each Bank for each Interest Period that are
accepted, it being understood that the failure of the relevant Borrower to give
such notice by such time shall constitute nonacceptance) and the Agent shall
promptly notify each affected Bank. The notice from the Agent shall also
specify the aggregate principal amount of offers for each Interest Period that
were accepted and the lowest and highest LIBO Margins and Set Rates that were
accepted for each Interest Period. The relevant Borrower may accept any Money
Market Quote in whole or in part (PROVIDED that any Money Market Quote accepted
in part shall be at least $5,000,000 or a larger multiple of $1,000,000);
PROVIDED that:
(i) the aggregate principal amount of each Money Market Borrowing may
not exceed the applicable amount set forth in the related Money Market
Quote Request;
(ii) the aggregate principal amount of each Money Market Borrowing
shall be at least $20,000,000 (or a larger multiple of $1,000,000) but
shall not cause the limits specified in Section 2.03(a) hereof to be
violated;
(iii) acceptance of offers may, subject to clause (v) below, be made
only in ascending order of LIBO Margins or Set Rates, as the case may be,
in each case beginning with the lowest rate so offered;
(iv) the Company may not accept any offer where the Agent has advised
the Company that such offer fails to comply with Section 2.03(c)(ii) hereof
or otherwise fails to comply with the requirements of this Agreement
(including, without limitation, Section 2.03(a) hereof); and
CREDIT AGREEMENT
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(v) the aggregate principal amount of each Money Market Borrowing
from any Bank may not exceed any applicable Money Market Loan Limit of such
Bank.
If offers are made by two or more Banks with the same LIBO Margins or Set Rates,
as the case may be, for a greater aggregate principal amount than the amount in
respect of which offers are accepted for the related Interest Period, the
principal amount of Money Market Loans in respect of which such offers are
accepted shall be allocated by the relevant Borrower among such Banks as nearly
as possible (in amounts of at least $5,000,000 or larger multiples of
$1,000,000) in proportion to the aggregate principal amount of such offers.
Determinations by the relevant Borrower of the amounts of Money Market Loans
shall be conclusive in the absence of manifest error.
(f) Any Bank whose offer to make any Money Market Loan has been
accepted in accordance with the terms and conditions of this Section 2.03 shall,
not later than 1:00 p.m. New York time on the date specified for the making of
such Loan, make the amount of such Loan available to the Agent at account number
NYAO-DI-900-9-000002 maintained by the Agent with Chase at the Principal Office
in immediately available funds, for account of the relevant Borrower. The
amount so received by the Agent shall, subject to the terms and conditions of
this Agreement, be made available to the relevant Borrower on such date by
depositing the same, in immediately available funds, in an account of the
relevant Borrower maintained with Chase at the Principal Office designated by
the relevant Borrower.
(g) Except for the purpose and to the extent expressly stated in
Sections 2.04(b) hereof, the amount of any Money Market Loan made by any Bank
shall not constitute a utilization of such Bank's Commitment.
(h) The relevant Borrower shall pay to the Agent a fee of $3,000 each
time such Borrower gives a Money Market Quote Request to the Agent.
2.04 CHANGES OF COMMITMENTS.
(a) The aggregate amount of the Commitments shall be automatically
reduced to zero on the Commitment Termination Date.
(b) The Company shall have the right at any time or from time to time
(i) so long as no Syndicated Loans or Money Market Loans are outstanding, to
terminate the Commitments and (ii) to reduce the aggregate unused amount of the
Commitments (for which purpose use of the Commitments shall be deemed to include
the aggregate principal amount of all Money Market Loans); PROVIDED that (x) the
Company shall give notice of each
CREDIT AGREEMENT
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such termination or reduction as provided in Section 4.05 hereof and (y) each
partial reduction shall be in an aggregate amount at least equal to $25,000,000
(or a larger multiple of $1,000,000).
(c) The Commitments once terminated or reduced may not be reinstated.
2.05 FACILITY FEE. The Company shall pay to the Agent for account of
each Bank a facility fee on the daily average amount of such Bank's Commitment
(whether used or unused), for the period from and including the date hereof to
but not including the earlier of the date such Commitment is terminated and the
Commitment Termination Date, at a rate per annum equal to the Applicable
Facility Fee Rate. Accrued facility fee shall be payable on each Quarterly Date
and on the earlier of the date the Commitments are terminated and the Commitment
Termination Date.
2.06 LENDING OFFICES. The Loans of each Type made by each Bank shall
be made and maintained at such Bank's Applicable Lending Office for Loans of
such Type.
2.07 SEVERAL OBLIGATIONS; REMEDIES INDEPENDENT. The failure of any
Bank to make any Loan to be made by it on the date specified therefor shall not
relieve any other Bank of its obligation to make its Loan on such date, but
neither any Bank nor the Agent shall be responsible for the failure of any other
Bank to make a Loan to be made by such other Bank, and (except as otherwise
provided in Section 4.06 hereof) no Bank shall have any obligation to the Agent
or any other Bank for the failure by such Bank to make any Loan required to be
made by such Bank. The amounts payable by either Borrower at any time hereunder
and under the Notes to each Bank shall be a separate and independent debt and
each Bank shall be entitled to protect and enforce its rights arising out of
this Agreement and the Notes, and it shall not be necessary for any other Bank
or the Agent to consent to, or be joined as an additional party in, any
proceedings for such purposes.
2.08 NOTES.
(a) The Syndicated Loans made by each Bank to each Borrower shall be
evidenced by a single promissory note of such Borrower substantially in the form
of Exhibit A-1 hereto, dated the date hereof, payable to such Bank in a
principal amount equal to the amount of its Commitment as originally in effect
and otherwise duly completed.
(b) The Money Market Loans made by any Bank to each Borrower shall be
evidenced by a single promissory note of such Borrower substantially in the form
of Exhibit A-2 hereto, dated
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the date hereof, payable to such Bank and otherwise duly completed.
(c) The date, amount, Type, interest rate and duration of Interest
Period of each Loan of each Class made by each Bank to each Borrower, and each
payment made on account of the principal thereof, shall be recorded by such Bank
on its books and, prior to any transfer of the Note evidencing the Loans of such
Class held by it, endorsed by such Bank on the schedule attached to such Note or
any continuation thereof; PROVIDED that the failure of such Bank to make any
such recordation or endorsement shall not affect the obligations of such
Borrower to make a payment when due of any amount owing hereunder or under such
Note in respect of such Loans.
(d) Except as otherwise provided in the last sentence of this clause
(d), no Bank shall be entitled to have its Notes substituted or exchanged for
any reason, or subdivided for promissory notes of lesser denominations, except
in connection with (x) a permitted assignment of all or any portion of such
Bank's Commitment, Loans and Notes pursuant to Section 11.06(b) hereof or (y) an
increase in such Bank's Commitment pursuant to Section 2.10 hereof.
In addition, any Syndicated Loans or Money Market Loans made by any
Additional Bank (as defined in Section 2.10 hereof) shall each be evidenced by a
single promissory note of each Borrower, substantially in the forms of Exhibits
A-1 and A-2 hereto, respectively, dated the effective date of such Banks'
Commitment, and otherwise complying with paragraphs (a) and (b) above,
respectively.
2.09 OPTIONAL PREPAYMENTS. Subject to Sections 4.04 and 5.05 hereof,
Syndicated Loans may be prepaid at any time or from time to time, PROVIDED that,
the Company shall give the Agent notice of each such prepayment as provided in
Section 4.05 hereof (and, upon the date specified in any such notice of
prepayment, the amount to be prepaid shall become due and payable hereunder).
Money Market Loans may not be prepaid.
2.10 INCREASE IN COMMITMENTS. The Company shall have the right at
any time to increase the aggregate Commitments hereunder by an aggregate amount
less than or equal to $250,000,000 by adding to this Agreement one or more other
banks (which may include any Bank (with the consent of such Bank), each such
bank an "ADDITIONAL BANK") with the approval of the Agent (which approval shall
not be unreasonably withheld), each of which Additional Banks shall have entered
into an agreement in form and substance satisfactory to the Company and the
Agent pursuant to which such Additional Bank shall undertake a Commitment (if
any such Additional Bank is a Bank, its Commitment
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shall be in addition to such Bank's Commitment hereunder) which such Commitment
shall be in an amount at least equal to $10,000,000 or a larger multiple of
$1,000,000, and upon the effectiveness of such agreement (the date of the
effectiveness of any such agreement being hereinafter referred to as the
"INCREASED COMMITMENT DATE") such Additional Bank shall thereupon become a
"Bank" for all purposes of this Agreement.
Notwithstanding the foregoing, the increase in the aggregate Commitments
hereunder pursuant to this Section 2.10 shall not be effective unless:
(i) the Company shall have given the Agent notice of any such
increase at least 3 Business Days prior to any such Increased Commitment
Date;
(ii) no Default shall have occurred and be continuing as of the date
of the notice referred to in the foregoing clause (i) or on the Increased
Commitment Date;
(iii) no Loans shall be outstanding hereunder and no notice of
borrowing shall have been given, in each case, on and as of any such
Increased Commitment Date; and
(iv) there shall have been no reduction of the Commitments pursuant to
Section 2.04(b) hereof on or prior to any such Increased Commitment Date.
Section 3. PAYMENTS OF PRINCIPAL AND INTEREST.
3.01 REPAYMENT OF LOANS. Each Borrower hereby promises to pay to the
Agent for account of each Bank the principal of each Loan made by such Bank to
such Borrower, and each Loan shall mature, on the last day of the Interest
Period therefor.
3.02 INTEREST. Each Borrower hereby promises to pay to the Agent for
account of each Bank interest on the unpaid principal amount of each Loan made
by such Bank to such Borrower for the period from and including the date of such
Loan to but excluding the date such Loan shall be paid in full, at the following
rates per annum:
(a) if such Loan is a Base Rate Loan, the Base Rate (as in effect
from time to time) PLUS the Applicable Margin;
(b) if such Loan is a Eurodollar Loan, the Eurodollar Rate for such
Loan for the Interest Period therefor PLUS the Applicable Margin;
CREDIT AGREEMENT
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(c) if such Loan is a LIBOR Market Loan, the LIBO Rate for such Loan
for the Interest Period therefor PLUS (or MINUS) the LIBO Margin quoted by
the Bank making such Loan in accordance with Section 2.03 hereof; and
(d) if such Loan is a Set Rate Loan, the Set Rate for such Loan for
the Interest Period therefor quoted by the Bank making such Loan in
accordance with Section 2.03 hereof.
Notwithstanding the foregoing, each Borrower hereby promises to pay to the Agent
for account of each Bank interest at the applicable Post-Default Rate on any
principal of any Loan made by such Bank to such Borrower and on any other amount
payable by such Borrower hereunder or under the Notes of such Borrower held by
such Bank to or for account of such Bank, that shall not be paid in full when
due (whether at stated maturity, by acceleration, by mandatory prepayment or
otherwise), for the period from and including the due date thereof to but
excluding the date the same is paid in full. Accrued interest on each Loan
shall be payable (i) on the last day of the Interest Period therefor and, if
such Interest Period is longer than three months (in the case of a Eurodollar
Loan or a LIBOR Market Loan), at three-month intervals following the first day
of such Interest Period, and (ii) in the case of any Loan, upon the payment or
prepayment thereof (but only on the principal amount so paid or prepaid), except
that interest payable at the Post-Default Rate shall be payable from time to
time on demand. Promptly after the determination of any interest rate provided
for herein or any change therein, the Agent shall give notice thereof to the
Banks to which such interest is payable and to the relevant Borrower.
Section 4. PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC.
4.01 PAYMENTS.
(a) Except to the extent otherwise provided herein, all payments of
principal, interest, facility fees, and other amounts to be made by either
Borrower under this Agreement and the Notes, shall be made in Dollars, in
immediately available funds, without deduction, set-off or counterclaim, to the
Agent at account number NYAO-DI-900-9-000002 maintained by the Agent with Chase
at the Principal Office, not later than 1:00 p.m. New York time on the date on
which such payment shall become due (each such payment made after such time on
such due date to be deemed to have been made on the next succeeding Business
Day), PROVIDED that if a new Loan is to be made by any Bank to either Borrower
on a date such Borrower is to repay any principal of an outstanding Loan of such
Bank to such Borrower, such Bank shall apply the proceeds of such new Loan to
the payment of the
CREDIT AGREEMENT
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principal to be repaid and only an amount equal to the difference between the
principal to be borrowed and the principal to be repaid shall be made available
by such Bank to the Agent as provided in Section 2.02 hereof or paid by such
Borrower to the Agent pursuant to this Section 4.01, as the case may be.
(b) Any Bank for whose account any such payment is to be made may
(but shall not be obligated to) debit the amount of any such payment that is not
made by such time to any ordinary deposit account of the relevant Borrower with
such Bank (with notice to the Company and the Agent).
(c) Each Borrower shall, at the time of making each payment under
this Agreement or any Note for account of any Bank, specify to the Agent (which
shall so notify the intended recipient(s) thereof) the Loans or other amounts
payable by such Borrower hereunder to which such payment is to be applied (and
in the event that such Borrower fails to so specify, or if an Event of Default
has occurred and is continuing, the Agent may distribute such payment to the
Banks for application in such manner as it or the Majority Banks, subject to
Section 4.02 hereof, may determine to be appropriate).
(d) Each payment received by the Agent under this Agreement or any
Note for account of any Bank shall be paid by the Agent promptly to such Bank,
in immediately available funds, for account of such Bank's Applicable Lending
Office for the Loan or other obligation in respect of which such payment is
made.
(e) If the due date of any payment under this Agreement or any Note
would otherwise fall on a day that is not a Business Day, such date shall be
extended to the next succeeding Business Day, and interest shall be payable for
any principal so extended for the period of such extension.
4.02 PRO RATA TREATMENT. Except to the extent otherwise provided
herein: (a) each borrowing of Syndicated Loans of a particular Type from the
Banks under Section 2.01 hereof shall be made from the Banks, each payment of
facility fee under Section 2.05 hereof shall be made for account of the Banks,
and each termination or reduction of the amount of the Commitments under
Section 2.04 hereof shall be applied to the respective Commitments of the Banks,
pro rata according to the amounts of their respective Commitments;
(b) Eurodollar Loans having the same Interest Period shall (other than as
provided in Section 5.04 hereof) be allocated pro rata among the Banks according
to the amounts of their respective Commitments; (c) each payment or prepayment
of principal of Syndicated Loans by the relevant Borrower shall be made for
account of the Banks pro rata in accordance with the respective unpaid principal
amounts of the Syndicated Loans held by them; and (d) each
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payment of interest on Syndicated Loans by the relevant Borrower shall be made
for account of the Banks pro rata in accordance with the amounts of interest on
such Loans then due and payable to the respective Banks.
4.03 COMPUTATIONS. Interest on Money Market Loans and Eurodollar
Loans, and facility fee, shall be computed on the basis of a year of 360 days
and actual days elapsed (including the first day but excluding the last day)
occurring in the period for which payable and interest on Base Rate Loans shall
be computed on the basis of a year of 365 or 366 days, as the case may be, and
actual days elapsed (including the first day but excluding the last day)
occurring in the period for which payable. Notwithstanding the foregoing, for
each day that the Base Rate is calculated by reference to the Federal Funds
Rate, interest on Base Rate Loans shall be computed on the basis of a year of
360 days and actual days elapsed.
4.04 MINIMUM AMOUNTS. Each borrowing and partial prepayment of
principal of Syndicated Loans shall be in an aggregate amount at least equal to
$10,000,000 or a larger multiple of $1,000,000 (borrowings or prepayments of
Syndicated Loans of different Types or, in the case of Eurodollar Loans, having
different Interest Periods at the same time hereunder to be deemed separate
borrowings and prepayments for purposes of the foregoing, one for each Type or
Interest Period), PROVIDED that the aggregate principal amount of Eurodollar
Loans having the same Interest Period shall be in an amount at least equal to
$20,000,000 or a larger multiple of $5,000,000 and, if any Eurodollar Loans
would otherwise be in a lesser principal amount for any period, such Loans shall
be Base Rate Loans during such period.
4.05 CERTAIN NOTICES. Except as otherwise provided in Section 2.03
hereof with respect to Money Market Loans, notices by the Company to the Agent
of terminations or reductions of the Commitments and of borrowings and optional
prepayments of Loans, of Types of Loans and of the duration of Interest Periods
shall be irrevocable and shall be effective only if received by the Agent not
later than 10:00 a.m. New York time on the number of Business Days prior to the
date of the relevant termination, reduction, borrowing or prepayment or the
first day of such Interest Period specified below:
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Number of
Business
Notice Days Prior
------ ----------
Termination or reduction
of Commitments 3
Borrowing or prepayment of
Base Rate Loans same day
Borrowing or prepayment of,
or duration of Interest
Period for, Eurodollar Loans 3
Each such notice of termination or reduction shall specify the amount of the
Commitments to be terminated or reduced. Each such notice of borrowing or
optional prepayment shall specify the Syndicated Loans to be borrowed or prepaid
and the amount (subject to Section 4.04 hereof) and Type of each Loan to be
borrowed or prepaid and the date of borrowing or optional prepayment (which
shall be a Business Day). The Agent shall promptly notify the Banks of the
contents of each such notice.
4.06 NON-RECEIPT OF FUNDS BY THE AGENT. Unless the Agent shall have
been notified by a Bank or either Borrower (the "PAYOR") prior to the date on
which the Payor is to make payment to the Agent of (in the case of a Bank) the
proceeds of a Loan to be made by such Bank hereunder or (in the case of either
Borrower) a payment to the Agent for account of one or more of the Banks
hereunder (such payment being herein called the "REQUIRED PAYMENT"), which
notice shall be effective upon receipt, that the Payor does not intend to make
the Required Payment to the Agent, the Agent may assume that the Required
Payment has been made and may, in reliance upon such assumption (but shall not
be required to), make the amount thereof available to the intended recipient(s)
on such date; and, if the Payor has not in fact made the Required Payment to the
Agent, the recipient(s) of such payment shall, on demand, repay to the Agent the
amount so made available together with interest thereon in respect of each day
during the period commencing on the date (the "ADVANCE DATE") such amount was so
made available by the Agent until the date the Agent recovers such amount at a
rate per annum equal to the Federal Funds Rate for such day and, if such
recipient(s) shall fail promptly to make such payment, the Agent shall be
entitled to recover such amount, on demand, from the Payor, together with
interest as aforesaid, PROVIDED that if neither the recipient(s) nor the Payor
shall return the Required Payment to the Agent within three Business Days of the
Advance Date, then, retroactively to the Advance Date, the Payor and the
recipient(s) shall each be obligated to pay interest on the Required Payment as
follows:
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(i) if the Required Payment shall represent a payment to be made by
such Borrower to the Banks, such Borrower and the recipient(s) shall each
be obligated retroactively to the Advance Date to pay interest in respect
of the Required Payment at the Post-Default Rate (without duplication of
the obligation of such Borrower under Section 3.02 hereof to pay interest
on the Required Payment at the Post-Default Rate), it being understood that
the return by the recipient(s) of the Required Payment to the Agent shall
not limit such obligation of such Borrower under said Section 3.02 to pay
interest at the Post-Default Rate in respect of the Required Payment, and
(ii) if the Required Payment shall represent proceeds of a Loan to be
made by the Banks to either Borrower, the Payor and such Borrower shall
each be obligated retroactively to the Advance Date to pay interest in
respect of the Required Payment pursuant to Section 3.02 hereof, it being
understood that the return by such Borrower of the Required Payment to the
Agent shall not limit any claim such Borrower may have against the Payor in
respect of such Required Payment.
4.07 SHARING OF PAYMENTS, ETC.
(a) Each Borrower agrees that, in addition to (and without limitation
of) any right of set-off, banker's lien or counterclaim a Bank may otherwise
have, each Bank shall be entitled, at its option (to the fullest extent
permitted by law), to set off and apply any deposit (general or special, time or
demand, provisional or final), or other indebtedness, held by it for the credit
or account of such Borrower at any of its offices, in Dollars or in any other
currency, against any principal of or interest on any of such Bank's Loans or
any other amount payable to such Bank hereunder, that is not paid when due
(regardless of whether such deposit or other indebtedness is then due to such
Borrower), in which case it shall promptly notify such Borrower and the Agent
thereof, PROVIDED that such Bank's failure to give such notice shall not affect
the validity thereof.
(b) If any Bank shall obtain from either Borrower payment of any
principal of or interest on any Loan of any Class owing to it or payment of any
other amount under this Agreement through the exercise of any right of set-off,
banker's lien or counterclaim or similar right or otherwise (other than from the
Agent as provided herein), and, as a result of such payment, such Bank shall
have received a greater percentage of the principal of or interest on the Loans
of such Class or such other amounts then due hereunder by such Borrower to such
Bank than the percentage received by any other Bank, it shall promptly purchase
from such other Banks participations in (or, if and to the extent specified
CREDIT AGREEMENT
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by such Bank, direct interests in) the Loans of such Class or such other
amounts, respectively, owing to such other Banks (or in interest due thereon, as
the case may be) in such amounts, and make such other adjustments from time to
time as shall be equitable, to the end that all the Banks shall share the
benefit of such excess payment (net of any expenses that may be incurred by such
Bank in obtaining or preserving such excess payment) pro rata in accordance with
the unpaid principal of and/or interest on the Loans of such Class or such other
amounts, respectively, owing to each of the Banks. To such end all the Banks
shall make appropriate adjustments among themselves (by the resale of
participations sold or otherwise) if such payment is rescinded or must otherwise
be restored.
(c) Each Borrower agrees that any Bank so purchasing such a
participation (or direct interest) may exercise all rights of set-off, banker's
lien, counterclaim or similar rights with respect to such participation as fully
as if such Bank were a direct holder of Loans or other amounts (as the case may
be) owing to such Bank in the amount of such participation.
(d) Nothing contained herein shall require any Bank to exercise any
such right or shall affect the right of any Bank to exercise, and retain the
benefits of exercising, any such right with respect to any other indebtedness or
obligation of either Borrower. If, under any applicable bankruptcy, insolvency
or other similar law, any Bank receives a secured claim in lieu of a set-off to
which this Section 4.07 applies, such Bank shall, to the extent practicable,
exercise its rights in respect of such secured claim in a manner consistent with
the rights of the Banks entitled under this Section 4.07 to share in the
benefits of any recovery on such secured claim.
Section 5. YIELD PROTECTION, ETC.
5.01 ADDITIONAL COSTS.
(a) Each Borrower shall pay (but without duplication) directly to
each Bank from time to time such amounts as such Bank may determine to be
necessary to compensate such Bank for any costs that such Bank determines are
attributable to its making or maintaining of any Fixed Rate Loans to such
Borrower or its obligation to make any Fixed Rate Loans to such Borrower
hereunder, or any reduction in any amount receivable by such Bank hereunder in
respect of any of such Loans or such obligation (such increases in costs and
reductions in amounts receivable being herein called "ADDITIONAL COSTS"),
resulting from any Regulatory Change that:
(i) shall subject any Bank (or its Applicable Lending Office for any
of such Loans) to any tax, duty or other
CREDIT AGREEMENT
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charge in respect of such Loans or its Notes or changes the basis of
taxation of any amounts payable to such Bank under this Agreement or its
Notes in respect of any of such Loans (excluding changes in the rate of tax
on the overall net income of such Bank or of such Applicable Lending Office
by the jurisdiction in which such Bank has its principal office or such
Applicable Lending Office); or
(ii) imposes or modifies any reserve, special deposit or similar
requirements (other than the Reserve Requirement utilized in the
determination of the Eurodollar Rate or LIBO Rate, as the case may be, for
such Loan) relating to any extensions of credit or other assets of, or any
deposits with or other liabilities of, such Bank (including, without
limitation, any of such Loans or any deposits referred to in the definition
of "Fixed Base Rate" in Section 1.01 hereof), or any commitment of such
Bank (including, without limitation, the Commitment of such Bank
hereunder); or
(iii) imposes any other condition affecting this Agreement or its Notes
(or any of such extensions of credit or liabilities) or its Commitment.
If any Bank requests compensation from either Borrower under this
Section 5.01(a), the Company may, by notice to such Bank (with a copy to the
Agent), suspend the obligation of such Bank thereafter to make Eurodollar Loans
until the Regulatory Change giving rise to such request ceases to be in effect
(in which case the provisions of Section 5.04 hereof shall be applicable),
PROVIDED that such suspension shall not affect the right of such Bank to receive
the compensation so requested.
(b) Without limiting the effect of the provisions of paragraph (a) of
this Section 5.01, in the event that, by reason of any Regulatory Change, any
Bank either (i) incurs Additional Costs based on or measured by the excess above
a specified level of the amount of a category of deposits or other liabilities
of such Bank that includes deposits by reference to which the interest rate on
Eurodollar Loans is determined as provided in this Agreement or a category of
extensions of credit or other assets of such Bank that includes Eurodollar Loans
or (ii) becomes subject to restrictions on the amount of such a category of
liabilities or assets that it may hold, then, if such Bank so elects by notice
to the Company (with a copy to the Agent), the obligation of such Bank to make
Eurodollar Loans hereunder shall be suspended until such Regulatory Change
ceases to be in effect (in which case the provisions of Section 5.04 hereof
shall be applicable).
(c) Without limiting the effect of the foregoing provisions of this
Section 5.01 (but without duplication), the
CREDIT AGREEMENT
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Company shall pay directly to each Bank from time to time on request such
amounts as such Bank may determine to be necessary to compensate such Bank (or,
without duplication, the bank holding company of which such Bank is a
subsidiary) for any costs that it determines are attributable to the maintenance
by such Bank (or any Applicable Lending Office or such bank holding company),
pursuant to any law or regulation or any interpretation, directive or request
(whether or not having the force of law and whether or not failure to comply
therewith would be unlawful) of any court or governmental or monetary authority
(i) following any Regulatory Change or (ii) implementing any risk-based capital
guideline or other requirement (whether or not having the force of law and
whether or not the failure to comply therewith would be unlawful) hereafter
issued by any government or governmental or supervisory authority implementing
at the national level the Basle Accord, of capital in respect of its Commitment
or Loans (such compensation to include, without limitation, an amount equal to
any reduction of the rate of return on assets or equity of such Bank (or any
Applicable Lending Office or such bank holding company) to a level below that
which such Bank (or any Applicable Lending Office or such bank holding company)
could have achieved but for such law, regulation, interpretation, directive or
request).
(d) Each Bank shall notify the Company of any event occurring after
the date hereof entitling such Bank to compensation under paragraph (a) or (c)
of this Section 5.01 as promptly as practicable, but in any event within 45
days, after such Bank obtains actual knowledge thereof; PROVIDED that (i) if any
Bank fails to give such notice within 45 days after it obtains actual knowledge
of such an event, such Bank shall, with respect to compensation payable pursuant
to this Section 5.01 in respect of any costs resulting from such event, only be
entitled to payment under this Section 5.01 for costs incurred from and after
the date 45 days prior to the date that such Bank does give such notice and
(ii) each Bank will designate a different Applicable Lending Office for the
Loans of such Bank affected by such event if such designation will avoid the
need for, or reduce the amount of, such compensation and will not, in the sole
opinion of such Bank, be disadvantageous to such Bank, except that such Bank
shall have no obligation to designate an Applicable Lending Office located in
the United States of America. Each Bank will furnish to the Company a
certificate setting forth the basis and amount of each request by such Bank for
compensation under paragraph (a) or (c) of this Section 5.01. Determinations
and allocations by any Bank for purposes of this Section 5.01 of the effect of
any Regulatory Change pursuant to paragraph (a) or (b) of this Section 5.01, or
of the effect of capital maintained pursuant to paragraph (c) of this
Section 5.01, on its costs or rate of return of maintaining Loans or its
obligation to make Loans, or on amounts receivable by it
CREDIT AGREEMENT
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in respect of Loans, and of the amounts required to compensate such Bank under
this Section 5.01, shall be conclusive, PROVIDED that such determinations and
allocations are made on a reasonable basis.
5.02 LIMITATION ON TYPES OF LOANS. Anything herein to the contrary
notwithstanding, if, on or prior to the determination of any Fixed Base Rate for
any Interest Period pursuant to clause (b) of the definition of "Fixed Base
Rate" in Section 1.01 hereof:
(a) the Agent determines, which determination shall be conclusive,
that quotations of interest rates for the relevant deposits referred to in
clause (b) of the definition of "Fixed Base Rate" in Section 1.01 hereof
are not being provided in the relevant amounts or for the relevant
maturities for purposes of determining rates of interest for either Type of
Fixed Rate Loans as provided herein; or
(b) the Majority Banks determine (or any Bank that has outstanding a
Money Market Quote with respect to a LIBOR Market Loan determines), which
determination shall be conclusive, and notify (or notifies, as the case may
be) the Agent that the relevant rates of interest referred to in clause (b)
of the definition of "Fixed Base Rate" in Section 1.01 hereof upon the
basis of which the rate of interest for Eurodollar Loans (or LIBOR Market
Loans, as the case may be) for such Interest Period is to be determined are
not likely adequately to cover the cost to such Banks (or to such quoting
Bank) of making or maintaining Eurodollar Loans (or such LIBOR Market Loan,
as the case may be) for such Interest Period;
then the Agent shall give the Company and each Bank prompt notice thereof and,
so long as such condition remains in effect, the Banks (or such quoting Bank)
shall be under no obligation to make additional Eurodollar Loans (or such LIBOR
Market Loan, as the case may be).
5.03 ILLEGALITY. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Bank or its Applicable
Lending Office to honor its obligation to make or maintain Eurodollar Loans or
LIBOR Market Loans hereunder (and, in the sole opinion of such Bank, the
designation of a different Applicable Lending Office would either not avoid such
unlawfulness or would be disadvantageous to such Bank), then such Bank shall
promptly notify the Company thereof (with a copy to the Agent) and such Bank's
obligation to make Eurodollar Loans shall be suspended until such time as such
Bank may again make and maintain Eurodollar Loans (in which case the provisions
of
CREDIT AGREEMENT
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Section 5.04 hereof shall be applicable), and such Bank shall no longer be
obligated to make any LIBOR Market Loan that it has offered to make.
5.04 TREATMENT OF AFFECTED LOANS. If the obligation of any Bank to
make a particular Type of Fixed Rate Loans shall be suspended pursuant to
Section 5.01 or 5.03 hereof, then, unless and until such Bank gives notice as
provided below that the circumstances specified in Section 5.01 or 5.03 hereof
that gave rise to such suspension no longer exist, all Loans that would
otherwise be made by such Bank as Eurodollar Loans shall be made instead as Base
Rate Loans.
5.05 COMPENSATION. Each Borrower shall pay to the Agent for account
of each Bank, upon the request of such Bank through the Agent, such amount or
amounts as shall be sufficient (in the reasonable opinion of such Bank) to
compensate it for any loss, cost or expense that such Bank reasonably determines
is attributable to:
(a) any payment, mandatory or optional prepayment of a Fixed Rate
Loan or a Set Rate Loan made by such Bank to such Borrower for any reason
(including, without limitation, the acceleration of the Loans pursuant to
Section 9 hereof) on a date other than the last day of the Interest Period
for such Loan; or
(b) any failure by such Borrower for any reason (including, without
limitation, the failure of any of the conditions precedent specified in
Section 6 hereof to be satisfied) to borrow a Fixed Rate Loan or a Set Rate
Loan (with respect to which, in the case of a Money Market Loan, such
Borrower has accepted a Money Market Quote) from such Bank on the date for
such borrowing specified in the relevant notice of borrowing given pursuant
to Section 2.02 or 2.03(b) hereof.
Without limiting the effect of the preceding sentence, such compensation shall
include an amount equal to the excess, if any, of (i) the amount of interest
that otherwise would have accrued on the principal amount so paid, prepaid or
not borrowed for the period from the date of such payment, prepayment or failure
to borrow to the last day of the then current Interest Period for such Loan (or,
in the case of a failure to borrow, the Interest Period for such Loan that would
have commenced on the date specified for such borrowing) at the applicable rate
of interest for such Loan provided for herein over (ii) the amount of interest
that otherwise would have accrued on such principal amount at a rate per annum
equal to the interest component of the amount such Bank would have bid in the
London interbank market (if such Loan is a Eurodollar Loan or a LIBOR Market
Loan) or the
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United States secondary certificate of deposit market (if such Loan is a Set
Rate Loan) for Dollar deposits of leading banks in amounts comparable to such
principal amount and with maturities comparable to such period (as reasonably
determined by such Bank), or if such Bank shall cease to make such bids, the
equivalent rate, as reasonably determined by such Bank, derived from the Reuters
Screen LIBO Page or other publicly available source as described in the
definition of "Fixed Base Rate" in Section 1.01 hereof).
5.06 U.S. TAXES.
(a) Each Borrower agrees to pay to each Bank that is not a
U.S. Person such additional amounts as are necessary in order that the net
payment of any amount due to such non-U.S. Person hereunder, after deduction for
or withholding in respect of any U.S. Taxes imposed with respect to such payment
(or in lieu thereof, payment of such U.S. Taxes by such non-U.S. Person), will
not be less than the amount stated herein to be then due and payable, PROVIDED
that the foregoing obligation to pay such additional amounts shall not apply:
(i) to any payment to any Bank hereunder unless such Bank is, on the
date hereof (or on the date it becomes a Bank hereunder as provided in
Section 11.06(b) hereof) and on the date of any change in the Applicable
Lending Office of such Bank, either entitled to submit a Form 1001
(relating to such Bank and entitling it to a complete exemption from
withholding on all interest to be received by it hereunder in respect of
the Loans) or Form 4224 (relating to all interest to be received by such
Bank hereunder in respect of the Loans), or
(ii) to any U.S. Taxes imposed solely by reason of the failure by such
non-U.S. Person to comply with applicable certification, information,
documentation or other reporting requirements concerning the nationality,
residence, identity or connections with the United States of America of
such non-U.S. Person if such compliance is required by statute or
regulation of the United States of America as a precondition to relief or
exemption from such U.S. Taxes.
For the purposes of this Section 5.06(a), (A) "U.S. PERSON" shall mean a
citizen, national or resident of the United States of America, a corporation,
partnership or other entity created or organized in or under any laws of the
United States of America or any State thereof, or any estate or trust that is
subject to United States Federal income taxation regardless of the source of its
income, (B) "U.S. TAXES" shall mean any present or future tax, assessment or
other charge or levy imposed by or on behalf of the United States of America or
any taxing authority thereof
CREDIT AGREEMENT
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or therein, (C) "FORM 1001" shall mean Form 1001 (Ownership, Exemption, or
Reduced Rate Certificate) of the Department of the Treasury of the United States
of America and (D) "FORM 4224" shall mean Form 4224 (Exemption from Withholding
of Tax on Income Effectively Connected with the Conduct of a Trade or Business
in the United States) of the Department of the Treasury of the United States of
America (or in relation to either such Form such successor and related forms as
may from time to time be adopted by the relevant taxing authorities of the
United States of America to document a claim to which such Form relates). Each
of the Forms referred to in the foregoing clauses (C) and (D) shall include such
successor and related forms as may from time to time be adopted by the relevant
taxing authorities of the United States of America to document a claim to which
such Form relates.
(b) Within 30 days after paying any amount to the Agent or any Bank
from which it is required by law to make any deduction or withholding, and
within 30 days after it is required by law to remit such deduction or
withholding to any relevant taxing or other authority, the Company (on its own
behalf and on behalf of Motorola Credit) shall deliver to the Agent for delivery
to such non-U.S. Person evidence satisfactory to such Person of such deduction,
withholding or payment (as the case may be).
5.07 REPLACEMENT OF BANKS. If any Bank requests compensation
pursuant to Section 5.01 or 5.06 hereof, or any Bank's obligation to make Loans
of any Type shall be suspended pursuant to Section 5.01 or 5.03 hereof (any such
Bank requesting such compensation, or whose obligations are so suspended, being
herein called a "REQUESTING BANK"), the Company, upon three Business Days'
notice to the Agent given when no Default shall have occurred and be continuing,
may require that such Requesting Bank transfer all of its right, title and
interest under this Agreement and such Requesting Bank's Notes to any bank or
other financial institution identified by the Company that is satisfactory to
the Agent (a) if such bank or other financial institution (a "PROPOSED BANK")
agrees to assume all of the obligations of such Requesting Bank hereunder, and
to purchase all of such Requesting Bank's Loans hereunder for consideration
equal to the aggregate outstanding principal amount of such Requesting Bank's
Loans, together with interest thereon to the date of such purchase, and
satisfactory arrangements are made for payment to such Requesting Bank of all
other amounts payable hereunder to such Requesting Bank on or prior to the date
of such transfer (including any fees accrued hereunder and any amounts that
would be payable under Section 5.05 hereof as if all of such Requesting Bank's
Loans were being prepaid in full on such date) and (b) if such Requesting Bank
has requested compensation pursuant to Section 5.01 or 5.06 hereof, such
Proposed Bank's aggregate requested compensation, if any, pursuant to said
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Section 5.01 or 5.06 with respect to such Requesting Bank's Loans is lower than
that of the Requesting Bank. Subject to the provisions of Section 11.06(b)
hereof, such Proposed Bank shall be a "Bank" for all purposes hereunder.
Without prejudice to the survival of any other agreement of the Borrowers
hereunder the agreements of the Borrowers contained in Sections 5.01, 5.06
and 11.03 (without duplication of any payments made to such Requesting Bank by
the Company or the Proposed Bank) shall survive for the benefit of such
Requesting Bank under this Section 5.07 with respect to the time prior to such
replacement.
Section 6. CONDITIONS PRECEDENT.
6.01 INITIAL LOAN. The obligation of any Bank to make its initial
Loan hereunder is subject to the condition precedent that the Agent shall have
received the following documents (with, in the case of clauses (a), (b) and (c)
below, sufficient copies for each Bank), each of which shall be satisfactory to
the Agent (and to the extent specified below, to each Bank) in form and
substance:
(a) CORPORATE DOCUMENTS. Certified copies of the charter and by-laws
of each Borrower and of all corporate authority for such Borrower
(including, without limitation, board of director resolutions and evidence
of the incumbency and specimen signature of officers) with respect to the
execution, delivery and performance of this Agreement and the Notes and
each other document to be delivered by such Borrower from time to time in
connection herewith and with the Loans hereunder (and each of the Agent and
each Bank may conclusively rely on such certificate of incumbency until it
receives notice in writing from such Borrower to the contrary).
(b) OPINIONS OF COUNSEL TO THE BORROWERS. An opinion, dated the date
hereof, of James K. Markey, Senior Corporate Counsel, substantially in the
form of Exhibit B hereto and covering such other matters as the Agent or
any Bank may reasonably request (and each Borrower hereby instructs such
counsel to deliver such opinion to the Banks and the Agent).
(c) OPINION OF SPECIAL NEW YORK COUNSEL TO CHASE. An opinion, dated
the date hereof, of Milbank, Tweed, Hadley & McCloy, special New York
counsel to Chase, substantially in the form of Exhibit C hereto (and Chase
hereby instructs such counsel to deliver such opinion to the Banks).
(d) NOTES. The Notes, duly completed and executed by each Borrower
for each Bank.
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(e) OTHER DOCUMENTS. Such other documents as the Agent or any Bank
or special New York counsel to Chase may reasonably request.
6.02 INITIAL AND SUBSEQUENT LOANS. The obligation of any Bank to
make any Loan (including any Money Market Loan and such Bank's initial
Syndicated Loan) to either Borrower upon the occasion of each borrowing
hereunder is subject to the further conditions precedent that, both immediately
prior to the making of such Loan and also after giving effect thereto and to the
intended use thereof:
(a) no Event of Default (and, if such borrowing will increase the
outstanding aggregate principal amount of the Loans of any Bank hereunder,
no Default) shall have occurred and be continuing; and
(b) the representations and warranties made by the Company in
Section 7 hereof (other than (i) the last sentence of paragraphs (a) and
(b) of Section 7.02 hereof and (ii) Section 7.03 hereof) shall be true and
complete on and as of the date of the making of such Loan with the same
force and effect as if made on and as of such date (or, if any such
representation or warranty is expressly stated to have been made as of a
specific date, as of such specific date).
Each notice of borrowing by either Borrower hereunder shall constitute a
certification by such Borrower to the effect set forth in the preceding sentence
(both as of the date of such notice and as of the date of such borrowing).
Section 7. REPRESENTATIONS AND WARRANTIES. The Company represents
and warrants to the Agent and the Banks that:
7.01 CORPORATE EXISTENCE. Each of the Company and its Material
Domestic Subsidiaries: (a) is a corporation, partnership or other entity duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization; (b) has all requisite corporate or other
power, and has all material governmental licenses, authorizations, consents and
approvals necessary to own its assets and carry on its business as now being or
as proposed to be conducted with, in the case of the Company's Material Domestic
Subsidiaries (other than Motorola Credit) only, such exceptions as are not
reasonably likely (either individually or in the aggregate) to have a Material
Adverse Effect; and (c) is qualified to do business and is in good standing in
all jurisdictions in which the nature of the business conducted by it makes such
qualification necessary and where failure so to qualify could reasonably be
likely to
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(either individually or in the aggregate) have a Material Adverse Effect.
7.02 FINANCIAL CONDITION.
(a) The Company has heretofore furnished to each of the Banks the
consolidated balance sheet of the Company and its consolidated Subsidiaries as
at December 31, 1993 and the related statements of consolidated earnings,
stockholders' equity and cash flows of the Company and its consolidated
Subsidiaries for the fiscal year ended on said date, with the opinion thereon of
KPMG Peat Marwick, and the unaudited consolidated balance sheet of the Company
and its Subsidiaries as at the end of the second fiscal quarter of the Company's
1994 fiscal year and the related statements of consolidated earnings,
stockholders' equity and cash flows of the Company and its consolidated
Subsidiaries for the six-month period ended on such date. All such financial
statements present fairly, in all material respects, the financial condition of
the Company and its consolidated Subsidiaries as at said dates and the results
of their operations for the fiscal year and six-month period ended on said dates
(subject, in the case of such financial statements as at the end of such fiscal
quarter to normal year-end audit adjustments), all in conformity with generally
accepted accounting principles. Since December 31, 1993, there has been no
material adverse change in the consolidated business, operations or financial
condition taken as a whole of the Company and its consolidated Subsidiaries from
that set forth in said financial statements as at said date.
(b) Motorola Credit has heretofore furnished to each of the Banks the
balance sheet of Motorola Credit as at December 31, 1993 and the related
statements of earnings and retained earnings and cash flows of Motorola Credit
for the fiscal year ended on such date, with an opinion thereon of KPMG Peat
Marwick. All such financial statements present fairly, in all material
respects, the financial condition of Motorola Credit and the results of its
operations and its cash flows for the fiscal year ended on said date in
conformity with generally accepted accounting principles. Since December 31,
1993, there has been no material adverse change in the business, operations or
financial condition of Motorola Credit from that set forth in said financial
statements as at said date.
7.03 LITIGATION. Except as disclosed in the Company's Report on Form
10-K filed with the SEC for the fiscal year ended December 31, 1993 or in the
Company's Reports on Form 10-Q filed with the SEC for the first and second
fiscal quarters of the Company's 1994 fiscal year, each of which have been
delivered to the Banks prior to the date hereof, there are no legal or arbitral
proceedings, or any proceedings by or before any
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governmental or regulatory authority or agency, now pending or (to the knowledge
of the Company) threatened against the Company or any of its Subsidiaries that,
if adversely determined (either individually or in the aggregate) could
reasonably be likely to have a Material Adverse Effect.
7.04 NO BREACH. None of the execution and delivery of this Agreement
and the Notes, the consummation of the transactions herein contemplated or
compliance with the terms and provisions hereof will conflict with or result in
a breach of, or require any consent under, the charter or by-laws of either
Borrower, or any applicable law or regulation, or any agreement or instrument to
which the Company or any of its Material Domestic Subsidiaries is a party, or by
which any of them or any of their Property is bound or to which any of them is
subject, or constitute a default under any such agreement or instrument.
7.05 ACTION. Each Borrower has all necessary corporate power,
authority and legal right to execute, deliver and perform its obligations under
this Agreement and the Notes; the execution, delivery and performance by such
Borrower of this Agreement and the Notes made by it have been duly authorized by
all necessary corporate action on its part; and this Agreement has been duly and
validly executed and delivered by each Borrower and constitutes, and each of the
Notes made by it when executed and delivered for value will constitute, its
legal, valid and binding obligation, enforceable against such Borrower in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws of general
applicability affecting the enforcement of creditors' rights.
7.06 APPROVALS. No authorizations, approvals or consents of, and no
filings or registrations with, any governmental or regulatory authority or
agency, or any securities exchange, are necessary for the execution, delivery or
performance by either Borrower of this Agreement or the Notes made by it or for
the legality, validity or enforceability hereof or thereof.
7.07 USE OF CREDIT. No part of the proceeds of the Loans hereunder
will be used to buy or carry any Margin Stock.
7.08 ERISA. Each of the Company and the ERISA Affiliates has
fulfilled its obligations under the minimum funding standards of ERISA and the
Code with respect to each Plan and is in compliance in all material respects
with the presently applicable provisions of ERISA and the Code with respect to
each Plan, and has no existing liability (other than to make PBGC premium
payments and Plan funding payments as they fall due) to the PBGC or any Plan or
Multi-Employer Plan.
CREDIT AGREEMENT
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7.09 TAXES. The Company and its Domestic Subsidiaries have filed all
Federal income tax returns and all other material tax returns that are required
to be filed by them and have paid all taxes due pursuant to such returns or
pursuant to any assessment received by the Company or any of its Domestic
Subsidiaries, except for any such tax being contested in good faith and by
proper proceedings and against which adequate reserves are being maintained.
The charges, accruals and reserves on the books of the Company and its Domestic
Subsidiaries in respect of taxes and other governmental charges are, in the
opinion of the Company, adequate.
7.10 INVESTMENT COMPANY ACT. Neither the Company nor any of its
Subsidiaries is an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended.
7.11 PUBLIC UTILITY HOLDING COMPANY ACT. Neither the Company nor any
of its Subsidiaries is a "holding company", or an "affiliate" of a "holding
company" or a "subsidiary company" of a "holding company", within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
7.12 ENVIRONMENTAL MATTERS. Each of the Company and its Material
Domestic Subsidiaries has obtained all environmental, health and safety permits,
licenses and other authorizations required under all Environmental Laws to carry
on its business as now being or as proposed to be conducted, except to the
extent failure to have any such permit, license or authorization would not
(either individually or in the aggregate) have a Material Adverse Effect.
7.13 SUBSIDIARIES, ETC. Set forth in Schedule I hereto is a complete
and correct list of all of the Material Domestic Subsidiaries of the Company as
of the date hereof together with, for each such Subsidiary, (i) the jurisdiction
of organization of such Subsidiary, (ii) each Person holding ownership interests
in such Subsidiary and (iii) the nature of the ownership interests held by each
such Person and the percentage of ownership of such Subsidiary represented by
such ownership interests. Except as disclosed in Schedule I hereto, each of the
Company and its Material Domestic Subsidiaries owns, free and clear of Liens,
and has the unencumbered right to vote, all outstanding ownership interests in
each Person shown to be held by it in Schedule I hereto. None of the Material
Domestic Subsidiaries of the Company is, on the date hereof, subject to any
indenture, agreement, instrument or other arrangement that, directly or
indirectly, prohibits or restrains, or has the effect of prohibiting or
restraining, or imposes materially adverse conditions upon, the incurrence or
payment of Indebtedness, the granting of Liens, the declaration or payment of
dividends, the
CREDIT AGREEMENT
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making of loans, advances or investments or the sale, assignment, transfer or
other disposition of Property.
7.14 OPERATING AGREEMENT. The Borrowers have heretofore furnished to
each of the Banks a true and complete copy of the Operating Agreement as in
effect on the date hereof. None of the execution and delivery of the Operating
Agreement, the consummation of the transactions therein contemplated or
compliance with the terms and provisions thereof conflict with or result in a
breach of, or require any consent under, the charter or by-laws of either
Borrower, or any applicable law or regulation, or any agreement or instrument to
which the Company or any of its Material Domestic Subsidiaries is a party, or by
which any of them or any of their Property is bound or to which any of them is
subject, or constitute a default under any such agreement or instrument; each
Borrower has all necessary corporate power, authority and legal right to
execute, deliver and perform its obligations under the Operating Agreement; the
execution, delivery and performance by each Borrower of the Operating Agreement
have been duly authorized by all necessary corporate action on its part; and the
Operating Agreement has been duly and validly executed and delivered by each
Borrower and constitutes its legal, valid and binding obligations, enforceable
against such Borrower in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws of general applicability affecting the enforcement of
creditors' rights; and no authorization, approvals or consents, and no filings
or registrations with, any governmental or regulatory authority or agency, or
any securities exchange, are necessary for the execution, delivery or
performance by either Borrower of the Operating Agreement or for the legality,
validity or enforceability thereof.
Section 8. COVENANTS OF THE COMPANY. The Company covenants and
agrees with the Banks and the Agent that, so long as any Commitment or Loan is
outstanding and until payment in full of all amounts payable by either Borrower
hereunder:
8.01 FINANCIAL STATEMENTS, ETC. The Company shall deliver to each of
the Banks:
(a) as soon as available and in any event within 60 days after the
end of each of the first three quarterly fiscal periods of each fiscal year
of the Company, statements of consolidated earnings, stockholders' equity
and cash flows of the Company and its consolidated Subsidiaries for such
period and for the period from the beginning of the respective fiscal year
to the end of such period, and the related consolidated balance sheet of
the Company and its consolidated Subsidiaries as at the end of
CREDIT AGREEMENT
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such period, setting forth in each case in comparative form the
corresponding figures for the corresponding periods in the preceding fiscal
year (except that, in the case of such balance sheet, such comparison shall
be to the last day of the prior fiscal year), accompanied by a certificate
of a senior financial officer of the Company, which certificate shall state
that said financial statements present fairly, in all material respects,
the financial condition and results of operations of the Company and its
consolidated Subsidiaries in each case in conformity with generally
accepted accounting principles as at the end of, and for, such period
(subject to normal year-end audit adjustments) (it being understood that
delivery to the Banks of the Company's Report on Form 10-Q filed with the
SEC shall satisfy the requirements of this Section 8.01(a) so long as the
information required to be contained in such Report is substantially the
same as that required under this clause (a));
(b) as soon as available and in any event within 120 days after the
end of each fiscal year of the Company, statements of consolidated
earnings, stockholders' equity and cash flows of the Company and its
consolidated Subsidiaries for such fiscal year and the related consolidated
balance sheet of the Company and its consolidated Subsidiaries as at the
end of such fiscal year, setting forth in each case in comparative form the
corresponding figures for the preceding fiscal year, and accompanied by an
opinion thereon of KPMG Peat Marwick, which opinion shall state that said
financial statements present fairly, in all material respects, the
financial condition and results of operations of the Company and its
consolidated Subsidiaries as at the end of, and for, such fiscal year in
conformity with generally accepted accounting principles (it being
understood that delivery to the Banks of the Company's Report on Form 10-K
filed with the SEC shall satisfy the requirements of this Section 8.01(b)
so long as the information required to be contained in such Report is
substantially the same as that required under this clause (b));
(c) as soon as available and in any event within 120 days after the
end of each fiscal year of Motorola Credit, statements of earnings and
retained earnings and cash flows of Motorola Credit for such fiscal year
and the related balance sheet of Motorola Credit as at the end of such
fiscal year, setting forth in each case in comparative form the
corresponding figures for the preceding fiscal year, and accompanied by an
opinion thereon of KPMG Peat Marwick, which opinion shall state that said
financial statements present fairly, in all material respects, the
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financial condition of Motorola Credit and the results of its operations
and its cash flows for the fiscal year ended on said date in conformity
with generally accepted accounting principles.
(d) as soon as available and in any event within 60 days after the
end of each of the first three quarterly fiscal periods of each fiscal year
of Motorola Credit, statements of earnings and retained earnings and cash
flows of Motorola Credit for such period and for the period from the
beginning of the respective fiscal year to the end of such period, and the
related balance sheet of Motorola Credit as at the end of such period,
setting forth in each case in comparative form the corresponding figures
for the corresponding periods in the preceding fiscal year (except that, in
the case of such balance sheet, such comparison shall be to the last day of
the prior fiscal year), accompanied by a certificate of a senior financial
officer of Motorola Credit, which certificate shall state that said
financial statements present fairly, in all material respects, the
financial condition of Motorola Credit and the results of its operations
and its cash flows, in each case in conformity with generally accepted
accounting principles as at the end of, and for, such period (subject to
normal year-end audit adjustments);
(e) promptly upon their becoming available, copies of all
registration statements and regular periodic reports on Forms 10-K, 10-Q
and 8-K that the Company shall have filed with the SEC (to the extent not
already delivered to the Banks pursuant to clauses (a) and (b) above);
(f) promptly upon the mailing thereof to the shareholders of the
Company generally, copies of all financial statements, reports and proxy
statements so mailed;
(g) promptly after the Company knows or has reason to believe that
any Default has occurred, a notice of such Default (and stating that such
notice is a "Notice of Default") describing the same in reasonable detail
and, together with such notice or as soon thereafter as possible, a
description of the action that the Company has taken or proposes to take
with respect thereto; and
(h) from time to time such other information regarding the condition,
financial or otherwise, of the Company or any of its Subsidiaries as any
Bank (through the Agent) or the Agent may reasonably request.
CREDIT AGREEMENT
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The Company will furnish to each Bank, at the time it furnishes each set of
financial statements pursuant to paragraph (a) or (b) above, a certificate of a
senior financial officer of the Company to the effect that no Default has
occurred and is continuing (or, if any Default has occurred and is continuing,
describing the same in reasonable detail and describing the action that the
Company has taken or proposes to take with respect thereto).
8.02 EXISTENCE, ETC. The Company will, and will cause each of its
Material Domestic Subsidiaries to:
(a) preserve and maintain its legal existence and all of its material
rights, privileges, licenses and franchises (PROVIDED that nothing in this
Section 8.02 shall prohibit any transaction expressly permitted under
Section 8.04 hereof);
(b) comply with the requirements of all applicable laws, rules,
regulations and orders of governmental or regulatory authorities if failure
to comply with such requirements is reasonably likely (either individually
or in the aggregate) to have a Material Adverse Effect;
(c) pay and discharge all taxes, assessments and governmental charges
or levies imposed on it or on its income or profits or on any of its
Property prior to the date on which penalties attach thereto, except for
any such tax, assessment, charge or levy the payment of which is being
contested in good faith and by proper proceedings and against which, in the
opinion of the Company, adequate reserves are being maintained;
(d) maintain all of its Properties used or useful in its business in
good working order and condition, ordinary wear and tear excepted, PROVIDED
that, nothing in this Section 8.02(d) shall prevent the Company or any of
its Material Domestic Subsidiaries from discontinuing such maintenance if
such discontinuance is, in the judgment of the Company, desirable in the
conduct of its business and the business of any of its Material Domestic
Subsidiaries and not disadvantageous in any material respect to the Banks;
and
(e) subject to U.S. Government restrictions, permit representatives
of any Bank or the Agent, during normal business hours and upon reasonable
notice, to examine or inspect any of its Properties, and to discuss its
business and affairs with its officers, all to the extent reasonably
requested by such Bank or the Agent (as the case may be) so long as any
such examination or inspection shall not
CREDIT AGREEMENT
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unreasonably interfere with the operations of the Company and its Material
Domestic Subsidiaries.
8.03 INSURANCE. The Company will, and will cause each of its
Material Domestic Subsidiaries to, maintain insurance with financially sound and
reputable insurance companies (or through self-insurance programs so long as
such self-insurance is administered in accordance with sound business
practices), and with respect to Property and risks of a character usually
maintained by corporations engaged in the same or similar business similarly
situated, against loss, damage and liability of the kinds and in the amounts
customarily maintained by such corporations.
8.04 PROHIBITION OF FUNDAMENTAL CHANGES. (a) Neither Borrower shall
consolidate with or merge into any other Person or convey, transfer or lease its
Property substantially as an entirety to any Person, and neither Borrower shall
permit any Person to consolidate with or merge into such Borrower or convey,
transfer or lease its Property substantially as an entirety to such Borrower,
unless:
(i) in case such Borrower shall consolidate with or merge into
another Person or convey, transfer or lease its Property substantially as
an entirety to any Person, the Person formed by such consolidation or into
which such Borrower is merged or the Person which acquires by conveyance or
transfer, or which leases, the Property of such Borrower substantially as
an entirety shall be a corporation, partnership or trust, shall be
organized and validly existing under the laws of the United States of
America, any State thereof or the District of Columbia and shall expressly
assume, by an instrument in writing, executed and delivered to the Agent in
form satisfactory to the Majority Banks, the due and punctual payment of
the principal of, and interest on the Notes made by such Borrower, and all
other amounts payable by such Borrower to the Banks hereunder and the
performance or observance of every covenant of this Agreement on the part
of such Borrower to be performed or observed;
(ii) immediately after giving effect to such transaction and treating
any Indebtedness which becomes an obligation of such Borrower or any
Subsidiary of such Borrower or any other successor Person as a result of
such transaction as having been incurred by such Borrower or such
Subsidiary or such successor Person at the time of such transaction, no
Default shall have happened and be continuing;
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(iii) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, Property of such Borrower would become
subject to a Lien which would not be permitted by this Agreement, such
Borrower or such successor Person, as the case may be, shall take such
steps as shall be necessary effectively to secure the payment of principal
of, and interest on the Loans and the Notes of such Borrower, and all other
amounts payable by such Borrower to the Banks hereunder equally and ratably
with (or prior to) all Debt secured thereby; and
(iv) such Borrower has delivered to the Agent a certificate of a
senior officer of such Borrower and a written opinion of counsel (who may
be counsel to the Company and who shall be acceptable to the Majority
Banks), each stating that such consolidation, merger, conveyance, transfer
or lease and all conditions precedent herein provided for relating to such
transaction have been complied with.
(b) Upon any consolidation of either Borrower with, or merger of
either Borrower into any other Person or any conveyance, transfer or lease of
the Property of either Borrower substantially as an entirety in accordance with
clause (i) above, the successor Person formed by such consolidation or into
which such Borrower is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, such Borrower under this Agreement with the same effect as if such
successor Person had been named as such Borrower herein, and thereafter, except
in the case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Agreement and the Notes made by it.
8.05 LIMITATION ON LIENS. The Company will not itself, and will not
permit any Domestic Subsidiary to, incur, issue, assume, or guarantee any Debt
secured by any Lien on any Principal Property of the Company or any Domestic
Subsidiary, or any shares of stock of or Debt of any Domestic Subsidiary without
effectively providing that all amounts payable by the Borrowers to the Banks
hereunder (together with, if the Company shall so determine, any other Debt of
the Company or such Domestic Subsidiary then existing or thereafter created
which is not subordinate to the payment of principal of, and interest on the
Loans and the Notes), and all other amounts payable by the Borrowers to the
Banks hereunder shall be secured equally and ratably with (or 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 Domestic Subsidiaries in respect of
Sale and Leaseback Transactions (as defined in
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Section 8.06 hereof) would not exceed 5% of the 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) Liens on Property (including any shares of stock or Debt) of, any
corporation on which Liens are existing at the time such corporation
becomes a Domestic Subsidiary or at the time it is merged into or
consolidated with the Company or any Domestic Subsidiary;
(b) Liens in favor of the Company or any Domestic Subsidiary;
(c) Liens in favor of any governmental body to secure progress,
advance or other payments pursuant to any contract or provision of any
statute;
(d) Liens on Property (including shares of stock or Debt) existing at
the time of acquisition thereof (including acquisition through merger or
consolidation);
(e) Liens on Property (including shares of stock or Debt) to secure
the payment of all or any part of the purchase price or construction cost
thereof or to secure any Debt incurred prior to, at the time of, or within
180 days after, the acquisition of such Property, the completion of any
construction or the commencement of full operation, for the purpose of
financing all or any part of the purchase price or construction cost
thereof; and
(f) any extension, renewal or replacement (or successive extensions,
renewals or replacements), as a whole or in part, of any Lien referred to
in the foregoing clauses (a) to (e), inclusive; PROVIDED, that such
extension, renewal or replacement Lien shall be limited to all or a part of
the same Property secured the Lien extended, renewed or replaced (plus
improvements on such Property).
8.06 LIMITATION ON SALES AND LEASEBACKS. The Company will not
itself, and it will not permit any Domestic Subsidiary to, enter into any
arrangement with any bank, insurance company or other lender or investor (not
including the Company or any Domestic Subsidiary) or to which any such lender or
investor is a party, providing for the leasing by the Company or a Domestic
Subsidiary for a period, including renewals, in excess of three years of any
Principal Property which has been or is to be sold or transferred, more than
180 days after the completion of construction and commencement of full operation
thereof, by the Company or such Domestic Subsidiary to such lender or investor
or
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to any Person to whom funds have been or are to be advanced by such lender or
investor on the security of such Principal Property (herein referred to as a
"SALE AND LEASEBACK TRANSACTION") unless either:
(a) the Company or such Domestic Subsidiary could create Debt secured
by a Lien pursuant to Section 8.05 on the Principal Property to be leased
in an amount equal to the Attributable Debt with respect to such Sale and
Leaseback Transaction without equally and ratably securing the payment of
the principal of, and interest on the Loans and the Notes, and all other
amounts payable by the Borrowers to the Banks hereunder, or
(b) the Company within 120 days after the sale or transfer shall have
been made by the Company or by a Domestic Subsidiary, applies an amount not
less than the greater of (i) the net proceeds of the sale of the Principal
Property leased pursuant to such arrangement or (ii) the fair market value
of the Principal Property so leased at the time of entering into such
arrangement (as determined by any two of the following: the Chairman of
the Board of the Company, its Vice Chairman of the Board, its President,
any elected Vice President of the Company and its Treasurer) to the
retirement of Funded Debt of the Company; PROVIDED, that the amount to be
applied to the retirement of Funded Debt of the Company shall be reduced by
the principal amount of Funded Debt voluntarily retired by the Company
within 120 days after such sale. Notwithstanding the foregoing, no
retirement referred to in this clause (b) may be effected by payment at
maturity or pursuant to any mandatory sinking fund payment or any mandatory
prepayment provision.
8.07 NET WORTH. The Company will not permit its Net Worth at any
time to be less than 75% of Net Worth as at the last day of the second fiscal
quarter of the Company's 1994 fiscal year.
8.08 USE OF PROCEEDS. The Borrowers will use the proceeds of the
Loans hereunder for general corporate purposes (in compliance with all
applicable legal and regulatory requirements, including, without limitation,
Regulations U and X and the Securities Act of 1933 and the Securities Act of
1934 and the regulations thereunder); PROVIDED that neither the Agent nor any
Bank shall have any responsibility as to the use of any of such proceeds.
8.09 SPECIAL OBLIGATIONS RELATING TO MOTOROLA CREDIT.
(a) The Company agrees for the benefit of the Banks that it shall
make all payments to Motorola Credit in the manner
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and to the extent provided in Section 3.01 of the Operating Agreement.
(b) Neither Borrower shall consent to any modification, supplement or
waiver of Sections 3.01 or 4.01 of the Operating Agreement (or to any defined
terms used in said sections) or to the termination thereof.
Section 9. EVENTS OF DEFAULT. If one or more of the following events
(herein called "EVENTS OF DEFAULT") shall occur and be continuing:
(a) Either Borrower shall: (i) default in the payment of any
principal of any Loan when due (whether at stated maturity or at mandatory
or optional prepayment); or (ii) default in the payment of any interest on
any Loan or any facility fee payable under Section 2.05 hereof and such
default shall continue unremedied for three or more Business Days or (iii)
default in the payment of any other amount payable by it hereunder when due
and such default shall have continued unremedied for fifteen or more days;
or
(b) The Company or any of its Domestic Subsidiaries shall default in
the payment when due (after the expiration of applicable grace periods) of
any principal of or interest on any of its other Indebtedness aggregating
in amount at least equal to 3% of the Net Worth as at the last day of the
most recently completed fiscal quarter of the Company; or any event
specified in any note, agreement, indenture or other document evidencing or
relating to any such Indebtedness shall occur if the effect of such event
is to cause, or (with the giving of any notice or the lapse of time or
both) to permit the holder or holders of such Indebtedness (or a trustee or
agent on behalf of such holder or holders) to cause, such Indebtedness to
become due, or to be prepaid in full (whether by redemption, purchase,
offer to purchase or otherwise), prior to its stated maturity or to have
the interest rate thereon reset to a level so that securities evidencing
such Indebtedness trade at a level specified in relation to the par value
thereof; or
(c) Any representation, warranty or certification made or deemed made
herein (or in any modification or supplement hereto) by either Borrower, or
any certificate furnished to any Bank or the Agent pursuant to the
provisions hereof, shall prove to have been false or misleading as of the
time made or furnished in any material respect; or
(d) Either Borrower shall default in the performance of its
obligations under Sections 8.01(g) and 8.04 through 8.09 hereof
(inclusive); or either Borrower shall default in
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the performance of any of its other obligations in this Agreement and such
default shall continue unremedied for a period of thirty or more days after
notice thereof to the Company by the Agent or any Bank (through the Agent);
or
(e) The Company or any of its Domestic Subsidiaries shall admit in
writing its inability to, or be generally unable to, pay its debts as such
debts become due; or
(f) The Company or any of its Domestic Subsidiaries shall (i) apply
for or consent to the appointment of, or the taking of possession by, a
receiver, custodian, trustee, examiner or liquidator of itself or of all or
a substantial part of its Property, (ii) make a general assignment for the
benefit of its creditors, (iii) commence a voluntary case under the
Bankruptcy Code, (iv) file a petition seeking to take advantage of any
other law relating to bankruptcy, insolvency, reorganization, liquidation,
dissolution, arrangement or winding-up, or composition or readjustment of
debts, (v) fail to controvert in a timely and appropriate manner, or
acquiesce in writing to, any petition filed against it in an involuntary
case under the Bankruptcy Code or (vi) take any corporate action for the
purpose of effecting any of the foregoing; or
(g) A proceeding or case shall be commenced, without the application
or consent of the Company or any of its Domestic Subsidiaries, in any court
of competent jurisdiction, seeking (i) its reorganization, liquidation,
dissolution, arrangement or winding-up, or the composition or readjustment
of its debts, (ii) the appointment of a receiver, custodian, trustee,
examiner, liquidator or the like of the Company or such Subsidiary or of
all or any substantial part of its Property or (iii) similar relief in
respect of the Company or such Subsidiary under any law relating to
bankruptcy, insolvency, reorganization, winding-up, or composition or
adjustment of debts, and such proceeding or case shall continue
undismissed, or an order, judgment or decree approving or ordering any of
the foregoing shall be entered and continue unstayed and in effect, for a
period of 60 or more days; or an order for relief against the Company or
such Subsidiary shall be entered in an involuntary case under the
Bankruptcy Code; or
(h) A final judgment or judgments for the payment of money in excess
of 3% of Net Worth as at the last day of the most recently completed fiscal
quarter of the Company (exclusive of judgment amounts fully covered by
insurance where the insurer has admitted liability in respect of such
judgment) shall be rendered by one or more courts, administrative tribunals
or other bodies having jurisdiction
CREDIT AGREEMENT
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against the Company or any of its Domestic Subsidiaries and the same shall
not be discharged (or provision shall not be made for such discharge), or a
stay of execution thereof shall not be procured, within 60 days from the
date of entry thereof and the Company or the relevant Domestic Subsidiary
shall not, within said period of 60 days, or such longer period during
which execution of the same shall have been stayed, appeal therefrom and
cause the execution thereof to be stayed during such appeal; or
(i) An event or condition shall occur or exist with respect to any
Plan or Multiemployer Plan and, as a result of such event or condition,
together with all other such then existing events or conditions, the
Company or any ERISA Affiliate shall incur or, in the reasonable good faith
opinion of the Majority Banks, shall be reasonably likely to incur a
liability (excluding PBGC premium payments and plan funding payments
resulting from changes in legal requirements and increases in benefits) to
a Plan, a Multiemployer Plan or PBGC (or any combination of the foregoing)
in an amount at least equal to 3% of the Net Worth as at the last day of
the most recently completed fiscal quarter of the Company; or
(j) Motorola Credit shall cease to be a Wholly Owned Subsidiary of
the Company; or
(k) the Operating Agreement shall cease to be in full force and
effect for any reason;
THEREUPON: (1) in the case of an Event of Default other than one referred to in
clause (f) or (g) of this Section 9 with respect to either Borrower (A) the
Agent may (with the consent of the Majority Banks) and, upon request of the
Majority Banks, will, by notice to the Company, terminate the Commitments and
they shall thereupon terminate, and (B) the Agent may (with the consent of Banks
holding more than 50% of the aggregate unpaid principal amount of the Loans)
and, upon request of Banks holding more than 50% of the aggregate unpaid
principal amount of the Loans shall, by notice to the Company declare the
principal amount then outstanding of, and the accrued interest on, the Loans and
all other amounts payable by the Borrowers hereunder and under the Notes
(including, without limitation, any amounts payable under Section 5.05 hereof)
to be forthwith due and payable, whereupon such amounts shall be immediately due
and payable without presentment, demand, protest or other formalities of any
kind, all of which are hereby expressly waived by each Borrower; and (2) in the
case of the occurrence of an Event of Default referred to in clause (f) or (g)
of this Section 9 with respect to either Borrower, the Commitments shall
automatically be terminated and the principal amount then outstanding of, and
the accrued
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interest on, the Loans and all other amounts payable by the Borrowers hereunder
and under the Notes (including, without limitation, any amounts payable under
Section 5.05 hereof) shall automatically become immediately due and payable
without presentment, demand, protest or other formalities of any kind, all of
which are hereby expressly waived by the Borrowers.
Section 10. THE AGENT.
10.01 APPOINTMENT, POWERS AND IMMUNITIES. Each Bank hereby appoints
and authorizes the Agent to act as its agent hereunder with such powers as are
specifically delegated to the Agent by the terms of this Agreement, together
with such other powers as are reasonably incidental thereto. The Agent (which
term as used in this sentence and in Section 10.05 and the first sentence of
Section 10.06 hereof shall include reference to its affiliates and its own and
its affiliates' officers, directors, employees and agents):
(a) shall have no duties or responsibilities except those expressly
set forth in this Agreement, and shall not by reason of this Agreement be a
trustee for any Bank;
(b) shall not be responsible to the Banks for any recitals,
statements, representations or warranties contained in this Agreement, or
in any certificate or other document referred to or provided for in, or
received by any of them under, this Agreement, or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this
Agreement, any Note or any other document referred to or provided for
herein or for any failure by either Borrower to perform any of its
obligations hereunder or thereunder;
(c) shall not be required to initiate or conduct any litigation or
collection proceedings hereunder; and
(d) shall not be responsible for any action taken or omitted to be
taken by it hereunder or under any other document or instrument referred to
or provided for herein or in connection herewith, except for its own gross
negligence or willful misconduct.
The Agent may employ agents and attorneys-in-fact and shall not be responsible
for the negligence or misconduct of any such agents or attorneys-in-fact
selected by it in good faith. The Agent may deem and treat the payee of a Note
as the holder thereof for all purposes hereof unless and until a notice of the
assignment or transfer thereof shall have been filed with the Agent, together
with the consent of the Company to such assignment or transfer (to the extent
provided in Section 11.06(b) hereof).
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10.02 RELIANCE BY AGENT. The Agent shall be entitled to rely upon
any certification, notice or other communication (including, without limitation,
any thereof by telephone, telecopy, telegram or cable) believed by it to be
genuine and correct and to have been signed or sent by or on behalf of the
proper Person or Persons, and upon advice and statements of legal counsel,
independent accountants and other experts selected by the Agent. As to any
matters not expressly provided for by this Agreement, the Agent shall in all
cases be fully protected in acting, or in refraining from acting, hereunder in
accordance with instructions given by the Majority Banks, and such instructions
of the Majority Banks and any action taken or failure to act pursuant thereto
shall be binding on all of the Banks.
10.03 DEFAULTS. The Agent shall not be deemed to have knowledge or
notice of the occurrence of a Default unless the Agent has received notice from
a Bank or the Company specifying such Default and stating that such notice is a
"Notice of Default". In the event that the Agent receives such a notice of the
occurrence of a Default, the Agent shall give prompt notice thereof to the
Banks. The Agent shall (subject to Sections 10.01 and 10.07 hereof) take such
action with respect to such Default as shall be directed by the Majority Banks,
PROVIDED that, unless and until the Agent shall have received such directions,
the Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default as it shall deem advisable in
the best interest of the Banks except to the extent that this Agreement
expressly requires that such action be taken, or not be taken, only with the
consent or upon the authorization of the Majority Banks or all of the Banks.
10.04 RIGHTS AS A BANK. With respect to its Commitment and the Loans
made by it, Chase (and any successor acting as Agent) in its capacity as a Bank
hereunder shall have the same rights and powers hereunder as any other Bank and
may exercise the same as though it were not acting as the Agent, and the term
"Bank" or "Banks" shall, unless the context otherwise indicates, include the
Agent in its individual capacity. Chase (and any successor acting as Agent) and
its affiliates may (without having to account therefor to any Bank) accept
deposits from, lend money to, make investments in and generally engage in any
kind of banking, trust or other business with the Company (and any of its
Subsidiaries or affiliates) as if it were not acting as the Agent, and Chase
(and any other successor acting as Agent) and its affiliates may accept fees and
other consideration from the Company for services in connection with this
Agreement or otherwise without having to account for the same to the Banks.
10.05 INDEMNIFICATION. The Banks agree to indemnify the Agent (to
the extent not reimbursed under Section 11.03
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hereof, but without limiting the obligations of the Company under said
Section 11.03) ratably in accordance with their respective Commitments, for any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind and nature
whatsoever that may be imposed on, incurred by or asserted against the Agent
(including by any Bank) arising out of or by reason of any investigation in or
in any way relating to or arising out of this Agreement or any other documents
contemplated by or referred to herein or the transactions contemplated hereby
(including, without limitation, the costs and expenses that the Company is
obligated to pay under Section 11.03 hereof but excluding (i) unless a Default
has occurred and is continuing, normal administrative costs and expenses
incident to the performance of its agency duties hereunder and (ii) the costs
and expenses of the Agent in connection with the negotiation and preparation of
this Agreement) or the enforcement of any of the terms hereof or of any such
other documents, PROVIDED that no Bank shall be liable for any of the foregoing
to the extent they arise from the gross negligence or willful misconduct of the
party to be indemnified.
10.06 NON-RELIANCE ON AGENT AND OTHER BANKS. Each Bank agrees that
it has, independently and without reliance on the Agent, or any other Bank, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis of the Company and its Subsidiaries and decision to enter
into this Agreement and that it will, independently and without reliance upon
the Agent, or any other Bank, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own analysis and
decisions in taking or not taking action under this Agreement. The Agent shall
not be required to keep itself informed as to the performance or observance by
the Company of this Agreement or any other document referred to or provided for
herein or to inspect the Properties or books of the Company or any of its
Subsidiaries. Except for notices, reports and other documents and information
expressly required to be furnished to the Banks by the Agent hereunder, the
Agent shall not have any duty or responsibility to provide any Bank with any
credit or other information concerning the affairs, financial condition,
operations, business, Properties, liabilities or prospects of the Company or any
of its Subsidiaries (or any of their affiliates) that may come into the
possession of the Agent or any of its affiliates.
10.07 FAILURE TO ACT. Except for action expressly required of the
Agent hereunder, the Agent shall in all cases be fully justified in failing or
refusing to act hereunder unless it shall receive further assurances to its
satisfaction from the Banks of their indemnification obligations under
Section 10.05 hereof against any and all liability and expense that may be
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incurred by it by reason of taking or continuing to take any such action.
10.08 RESIGNATION OR REMOVAL OF AGENT. Subject to the appointment
and acceptance of a successor Agent as provided below, the Agent may resign at
any time by giving notice thereof to the Banks and the Company, and the Agent
may be removed at any time with or without cause by the Majority Banks. Upon
any such resignation or removal, the Majority Banks shall have the right to
appoint a successor Agent. If no successor Agent shall have been so appointed
by the Majority Banks and shall have accepted such appointment within 30 days
after the retiring Agent's giving of notice of resignation or the Majority
Banks' removal of the retiring Agent, then the retiring Agent may, on behalf of
the Banks, appoint a successor Agent, that shall be a bank that has an office in
New York, New York with a combined capital and surplus of at least $500,000,000.
Upon the acceptance of any appointment as Agent hereunder by a successor Agent,
such successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations hereunder. After any
retiring Agent's resignation or removal hereunder as Agent, the provisions of
this Section 10 shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as the Agent.
10.09 CO-AGENTS. The Co-Agents shall not have any obligations or
responsibilities hereunder except in their capacities as Banks hereunder or, in
the case of the Agent, in its capacity as Agent.
Section 11. MISCELLANEOUS.
11.01 WAIVER. No failure on the part of the Agent or any Bank to
exercise and no delay in exercising, and no course of dealing with respect to,
any right, power or privilege under this Agreement or any Note shall operate as
a waiver thereof, nor shall any single or partial exercise of any right, power
or privilege under this Agreement or any Note preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
11.02 NOTICES. All notices, requests and other communications
provided for herein (including, without limitation, any modifications of, or
waivers, requests or consents under, this Agreement) shall be given or made in
writing (including, without limitation, by telecopy), or, with respect to
notices given pursuant to Section 2.03 hereof, by telephone, confirmed in
writing by telecopier by the close of business on
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the day the notice is given, delivered (or telephoned, as the case may be) to
the intended recipient at the "Address for Notices" specified below its name on
the signature pages hereof); or, as to any party, at such other address as shall
be designated by such party in a notice to each other party. Except as
otherwise provided in this Agreement, all such communications shall be deemed to
have been duly given when transmitted by telecopier or personally delivered or,
in the case of a mailed notice, upon receipt, in each case given or addressed as
aforesaid.
11.03 EXPENSES, ETC. The Company agrees to pay or reimburse each of
the Banks and the Agent for: (a) all reasonable out-of-pocket costs and
expenses of the Agent (including, without limitation, the reasonable fees and
expenses of Milbank, Tweed, Hadley & McCloy, special New York counsel to Chase)
in connection with the negotiation or preparation of any modification,
supplement or waiver of any of the terms of this Agreement or any of the Notes
(whether or not consummated); (b) all reasonable out-of-pocket costs and
expenses of the Banks and the Agent (including, without limitation, the
reasonable fees and expenses of legal counsel) in connection with (i) any
Default and any enforcement or collection proceedings resulting therefrom,
including, without limitation, all manner of participation in or other
involvement with (x) bankruptcy, insolvency, receivership, foreclosure, winding
up or liquidation proceedings, (y) judicial or regulatory proceedings and
(z) workout, restructuring or other negotiations or proceedings (whether or not
the workout, restructuring or transaction contemplated thereby is consummated)
and (ii) the enforcement of this Section 11.03; and (c) all transfer, stamp,
documentary or other similar taxes, assessments or charges levied by any
governmental or revenue authority in respect of this Agreement or any of the
Notes or any other document referred to herein.
The Company hereby agrees to indemnify the Agent and each Bank and
their respective directors, officers, employees, attorneys and agents from, and
hold each of them harmless against, any and all losses, liabilities, claims,
damages or expenses incurred by any of them (including, without limitation, any
and all losses, liabilities, claims, damages or expenses incurred by the Agent
to any Bank, whether or not the Agent or any Bank is a party thereto) arising
out of or by reason of any investigation or litigation or other proceedings
(including any threatened investigation or litigation or other proceedings)
relating to the Loans hereunder or any actual or proposed use by the Company or
any of its Subsidiaries of the proceeds of any of the Loans hereunder,
including, without limitation, the reasonable fees and disbursements of counsel
incurred in connection with any such investigation or litigation or other
proceedings (but excluding any such losses, liabilities, claims,
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damages or expenses incurred by reason of the gross negligence or willful
misconduct of the Person to be indemnified).
11.04 AMENDMENTS, ETC. Except as otherwise expressly provided in
this Agreement, any provision of this Agreement may be modified or supplemented
only by an instrument in writing signed by the Company, Motorola Credit and the
Majority Banks, or by the Company, Motorola Credit and the Agent acting with the
consent of the Majority Banks, and any provision of this Agreement may be waived
by the Majority Banks or by the Agent acting with the consent of the Majority
Banks; PROVIDED that, (a) except as otherwise provided in Section 2.10 hereof,
no modification, supplement or waiver shall, unless by an instrument signed by
all of the Banks or by the Agent acting with the consent of all of the Banks:
(i) increase, or extend the term of the Commitments, or extend the time or waive
any requirement for the reduction or termination of the Commitments, (ii) extend
the date fixed for the payment of principal of or interest on any Loan or any
fee hereunder, (iii) reduce the amount of any such payment of principal,
(iv) reduce the rate at which interest is payable thereon or any fee is payable
hereunder, (v) alter the rights or obligations of either Borrower to prepay
Loans, (vi) alter the terms of this Section 11.04, (vii) modify the definition
of the term "Majority Banks" or modify in any other manner the number or
percentage of the Banks required to make any determinations or waive any rights
hereunder or to modify any provision hereof, or (viii) waive any of the
conditions precedent set forth in Section 6.01 hereof; and (b) any modification
or supplement of Section 10 hereof shall require the consent of the Agent.
11.05 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
11.06 ASSIGNMENTS AND PARTICIPATIONS.
(a) Neither Borrower may assign any of its rights or obligations
hereunder or under the Notes without the prior consent of all of the Banks and
the Agent.
(b) Each Bank may assign any of its Loans, its Notes, and its
Commitment (but only with the consent of the Company and the Agent, each of
which consents shall not be unreasonably withheld); PROVIDED that
(i) no such consent by the Company or the Agent shall be required in
the case of any assignment to another Bank;
(ii) except to the extent the Company and the Agent shall otherwise
consent, any such partial assignment (other
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than to another Bank) shall be in an amount at least equal to $10,000,000;
(iii) each such assignment by a Bank of its Syndicated Loans,
Syndicated Notes or Commitment shall be made in such manner so that the
same portion of its Syndicated Loans, Syndicated Notes and Commitment is
assigned to the respective assignee; and
(iv) upon each such assignment, the assignor and assignee shall
deliver to the Company and the Agent a Notice of Assignment in the form of
Exhibit G hereto.
Upon execution and delivery by the assignor and the assignee to the Company and
the Agent of such Notice of Assignment, and upon consent thereto by the Company
and the Agent to the extent required above, the assignee shall have, to the
extent of such assignment (unless otherwise consented to by the Company and the
Agent), the obligations, rights and benefits of a Bank hereunder holding the
Commitment and Loans (or portions thereof) assigned to it and specified in such
Notice of Assignment (in addition to the Commitment and Loans, if any,
theretofore held by such assignee) and the assigning Bank shall, to the extent
of such assignment, be released from the Commitment (or portion thereof) so
assigned. Upon each such assignment the assigning Bank shall pay the Agent an
assignment fee of $3,000.
(c) A Bank may sell or agree to sell to one or more other Persons a
participation in all or any part of any Loans held by it, or in its Commitment,
in which event each purchaser of a participation (a "PARTICIPANT") shall not,
except as otherwise provided in Section 4.07(c) hereof, have any rights or
benefits under this Agreement or any Note (the Participant's rights against such
Bank in respect of such participation to be those set forth in the agreements
executed by such Bank in favor of the Participant). All amounts payable by the
Company to any Bank under Section 5 hereof in respect of Loans held by it, and
its Commitment, shall be determined as if such Bank had not sold or agreed to
sell any participations in such Loans and Commitment, and as if such Bank were
funding each of such Loans and Commitment in the same way that it is funding the
portion of such Loans and Commitment in which no participations have been sold.
In no event shall a Bank that sells a participation agree with the Participant
to take or refrain from taking any action hereunder except that such Bank may
agree with the Participant that it will not, without the consent of the
Participant, agree to (i) increase or extend the term, or extend the time or
waive any requirement for the reduction or termination, of such Bank's
Commitment, (ii) extend the date fixed for the payment of principal of or
interest on the related Loan or Loans or any portion of any fee hereunder
payable to the Participant,
CREDIT AGREEMENT
<PAGE>
- 60 -
(iii) reduce the amount of any such payment of principal, (iv) reduce the rate
at which interest is payable thereon, or any fee hereunder payable to the
Participant, to a level below the rate at which the Participant is entitled to
receive such interest or fee, (v) alter the rights or obligations of either
Borrower to prepay the related Loans or (vi) consent to any modification,
supplement or waiver hereof to the extent that the same, under Section 11.04
hereof, requires the consent of each Bank.
(d) In addition to the assignments and participations permitted under
the foregoing provisions of this Section 11.06, any Bank may (without notice to
the Company, the Agent or any other Bank and without payment of any fee) (i)
assign and pledge all or any portion of its Loans and its Notes to any Federal
Reserve Bank as collateral security pursuant to Regulation A and any Operating
Circular issued by such Federal Reserve Bank and (ii) assign all or any portion
of its rights under this Agreement and its Loans and its Notes to an affiliate.
No such assignment shall release the assigning Bank from its obligations
hereunder.
(e) A Bank may furnish any information concerning the Company or any
of its Subsidiaries in the possession of such Bank from time to time to
assignees and participants (including prospective assignees and participants),
subject, however, to the provisions of Section 11.12(b) hereof.
(f) Anything in this Section 11.06 to the contrary notwithstanding,
no Bank may assign or participate any interest in any Loan held by it hereunder
to the Company or any of its affiliates or Subsidiaries without the prior
consent of each Bank.
11.07 SURVIVAL. The obligations of the Borrowers under Sections
5.01, 5.05, 5.06 and 11.03 hereof, and the obligations of the Banks under
Section 10.05 hereof, shall survive the repayment of the Loans and the
termination of the Commitments. In addition, each representation and warranty
made, or deemed to be made by a notice of any Loan, herein or pursuant hereto
shall survive the making of such representation and warranty, and no Bank shall
be deemed to have waived, by reason of making any Loan, any Default that may
arise by reason of such representation or warranty proving to have been false or
misleading, notwithstanding that such Bank or the Agent may have had notice or
knowledge or reason to believe that such representation or warranty was false or
misleading at the time such Loan was made.
11.08 CAPTIONS. The table of contents and captions and section
headings appearing herein are included solely for
CREDIT AGREEMENT
<PAGE>
- 61 -
convenience of reference and are not intended to affect the interpretation of
any provision of this Agreement.
11.09 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
11.10 GOVERNING LAW; SUBMISSION TO JURISDICTION. This Agreement and
the Notes shall be governed by, and construed in accordance with, the law of the
State of New York. Each Borrower hereby submits to the nonexclusive
jurisdiction of the United States District Court for the Southern District of
New York and of any New York state court sitting in New York City for the
purposes of all legal proceedings arising out of or relating to this Agreement
or the transactions contemplated hereby. Each Borrower irrevocably waives, to
the fullest extent permitted by applicable law, any objection that it may now or
hereafter have to the laying of the venue of any such proceeding brought in such
a court and any claim that any such proceeding brought in such a court has been
brought in an inconvenient forum.
11.11 WAIVER OF JURY TRIAL. EACH OF THE BORROWERS, THE AGENT AND THE
BANKS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT, THE NOTES OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
11.12 TREATMENT OF CERTAIN INFORMATION; CONFIDENTIALITY.
(a) The Company acknowledges that from time to time financial
advisory, investment banking and other services may be offered or provided to
the Company or one or more of its Subsidiaries (in connection with this
Agreement or otherwise) by any Bank or by one or more subsidiaries or affiliates
of such Bank and the Company hereby authorizes each Bank to share any
information delivered to such Bank by the Company and its Subsidiaries pursuant
to this Agreement, or in connection with the decision of such Bank to enter into
this Agreement, to any such subsidiary or affiliate, it being understood that
any such subsidiary or affiliate receiving such information shall be bound by
the provisions of paragraph (b) below as if it were a Bank hereunder. Such
authorization shall survive the repayment of the Loans and the termination of
the Commitments.
(b) Each of the Banks and the Agent agrees (on behalf of itself and
each of its affiliates, directors, officers, employees and representatives) to
use reasonable precautions to keep confidential, in accordance with its
customary procedures
CREDIT AGREEMENT
<PAGE>
- 62 -
for handling confidential information of the same nature and in accordance with
safe and sound banking practices, any non-public information supplied to it by
the Company pursuant to this Agreement that is identified by the Company as
being confidential at the time the same is delivered to the Banks or the Agent,
PROVIDED that nothing herein shall limit the disclosure of any such information
(i) to the extent required by statute, rule, regulation or judicial process,
(ii) to counsel for any of the Banks or the Agent, (iii) to bank examiners,
auditors or accountants, (iv) to the Agent or any other Bank (or to Chase
Securities, Inc.), (v) in connection with any litigation to which any one or
more of the Banks or the Agent is a party, (vi) to a subsidiary or affiliate of
such Bank as provided in paragraph (a) above or (vii) to any assignee or
participant (or prospective assignee or participant) so long as such assignee or
participant (or prospective assignee or participant) first executes and delivers
to the respective Bank a Confidentiality Agreement substantially in the form of
Exhibit F hereto. The obligations of any assignee that has executed a
Confidentiality Agreement in the form of Exhibit F hereto shall be superseded by
this Section 11.12 upon the date upon which such assignee becomes a Bank
hereunder pursuant to Section 11.06 hereof.
11.13 TERMINATION OF EXISTING LINES OF CREDIT. On the date of the
execution and delivery of this Agreement, the commitment of each Bank under its
existing line of credit in favor of the Borrowers, if any, (other than cash
management and other service product lines of credit) shall automatically
terminate and all fees payable to such Bank in connection with such existing
line of credit accrued to such date shall be immediately due and payable.
CREDIT AGREEMENT
<PAGE>
- 63 -
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the day and year first above written.
MOTOROLA, INC.
By /s/ Gary L. Tooker
-------------------------
Title:
Address for Notices:
Motorola, Inc.
Corporate Offices
1303 East Algonquin Road
Schaumburg, Illinois 60196
Attention: Ann Redpath O'Neal
Telecopier No.: 708-576-4768
Telephone No.: 708-576-5069
MOTOROLA CREDIT CORPORATION
By /s/ Gary L. Tooker
-------------------------
Title:
Address for Notices:
Motorola Credit Corporation
Corporate Offices
1303 East Algonquin Road
Schaumburg, Illinois 60196
Attention: Ann Redpath O'Neal
Telecopier No.: 708-576-4768
Telephone No.: 708-576-5069
CREDIT AGREEMENT
<PAGE>
- 64 -
BANKS
COMMITMENT THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
$110,000,000.00
By
-------------------------
Title:
Lending Office for all Loans:
The Chase Manhattan Bank
(National Association)
1 Chase Manhattan Plaza
New York, New York 10081
Address for Notices:
The Chase Manhattan Bank
(National Association)
1 Chase Manhattan Plaza
New York, New York 10081
Attention: Patricia B. Bril
Telecopier No.: 212-552-1457
Telephone No.: 212-552-6233
CREDIT AGREEMENT
<PAGE>
- 65 -
COMMITMENT CITIBANK, N.A.
$110,000,000.00
By
-------------------------
Title:
Lending Office for all Loans:
Citibank, N.A.
399 Park Avenue
New York, NY 10043
Address for Notices:
Citibank, N.A.
399 Park Avenue
New York, NY 10043
Attention: Thomas McGrath
Telecopier No.: 212-593-5919
Telephone No.: 212-593-0054
CREDIT AGREEMENT
<PAGE>
- 66 -
COMMITMENT THE FIRST NATIONAL BANK OF CHICAGO
$110,000,000.00
By
-------------------------
Title:
Lending Office for all Loans:
The First National Bank of Chicago
One First National Plaza,
Suite 0324
Chicago, Illinois 60670
Address for Notices:
The First National Bank of Chicago
One First National Plaza,
Suite 0324
Chicago, Illinois 60670
Attention: Michael W. McCorkle
Telecopier No.: 312-732-3568
Telephone No.: 312-732-1712
CREDIT AGREEMENT
<PAGE>
- 67 -
COMMITMENT HARRIS TRUST AND SAVINGS BANK
$110,000,000.00
By
--------------------------
Title:
Lending Office for all Loans:
Harris Trust and Savings Bank
115 South LaSalle Street
Chicago, IL 60603
Address for Notices:
Harris Trust and Savings Bank
115 South LaSalle Street
Chicago, IL 60603
Attention: Lisa Zahniser
Director
Telecopier No.: 312-750-3702
Telephone No.: 312-750-3734
CREDIT AGREEMENT
<PAGE>
- 68 -
COMMITMENT BANK OF AMERICA NATIONAL
TRUST & SAVINGS ASSOCIATION
$60,000,000.00
By_________________________
Title:
Lending Office for all Loans:
Bank of America NT & SA
555 California Street
San Francisco, California 94104
Address for Notices:
Bank of America NT & SA
555 California Street
San Francisco, California 94104
Attention: Peter Tomei
Telecopier No.: 415-622-2514
Telephone No.: 415-622-4581
CREDIT AGREEMENT
<PAGE>
- 69 -
COMMITMENT THE NORTHERN TRUST COMPANY
$50,000,000.00
By
-------------------------
Title:
Lending Office for all Loans:
The Northern Trust Company
50 South LaSalle Street
Chicago, Illinois 60675
Address for Notices:
The Northern Trust Company
50 South LaSalle Street
Chicago, Illinois 60675
Attention: Chicago Division, B-11
John J. Conway
Telecopier No.: 312-630-1566
Telephone No.: 312-444-3118
CREDIT AGREEMENT
<PAGE>
- 70 -
COMMITMENT ABN AMRO BANK N.V.
$40,000,000.00
By
-------------------------
Title:
By
-------------------------
Title:
Lending Office for all Loans:
ABN Amro Bank N.V.
135 South LaSalle Street
Suite 425
Chicago, Illinois 60674-9135
Address for Notices:
ABN Amro Bank N.V.
135 South LaSalle Street
Suite 425
Chicago, Illinois 60674-9135
Attention: Joanna Riopelle
Telecopier No.: 312-606-8425
Telephone No.: 312-443-2955
CREDIT AGREEMENT
<PAGE>
- 71 -
COMMITMENT BARCLAYS BANK PLC
$40,000,000.00
By
-------------------------
Title:
Lending Office for all Loans:
Barclays Bank PLC
75 Wall Street
New York, New York 10265
Address for Notices:
Barclays Bank PLC
222 Broadway
11th Floor
New York, New York 10038
Attention: Philip S.A. Capparis
Technologies Group
Telecopier No.: 212-412-7511
Telephone No.: 212-412-6773
CREDIT AGREEMENT
<PAGE>
- 72 -
COMMITMENT CIBC, INC.
$40,000,000.00
By
-------------------------
Title:
Lending Office for all Loans:
CIBC, Inc.
425 Lexington Avenue
New York, New York 10017
Address for Notices:
CIBC, Inc.
425 Lexington Avenue
New York, New York 10017
Attention: Leslie L. Rogers
Telecopier No.: 212-856-3558
Telephone No.: 212-856-3983
CREDIT AGREEMENT
<PAGE>
- 73 -
COMMITMENT CREDIT LYONNAIS CHICAGO BRANCH
$40,000,000.00
By
-------------------------
Title:
Lending Office for all Loans:
Credit Lyonnais Chicago Branch
227 West Monroe
Chicago, Illinois 60606
Address for Notices:
Credit Lyonnais Chicago Branch
227 West Monroe
Chicago, Illinois 60606
Attention: David L. Payne
Telecopier No.: 312-641-0527
Telephone No.: 312-220-7310
CREDIT AGREEMENT
<PAGE>
- 74 -
COMMITMENT DRESDNER BANK AG, CHICAGO AND
GRAND CAYMAN BRANCHES
$40,000,000.00
By
-------------------------
Title:
By
-------------------------
Title:
Lending Office for all Loans:
Dresdner Bank AG, Chicago and
Grand Cayman Branches
190 South LaSalle Street
Suite 2700
Chicago, Illinois 60603
Address for Notices:
Dresdner Bank AG, Chicago and
Grand Cayman Branches
190 South LaSalle Street
Suite 2700
Chicago, Illinois 60603
Attention: William J. Murray
Telecopier No.: 312-444-1305
Telephone No.: 312-444-1318
CREDIT AGREEMENT
<PAGE>
- 75 -
COMMITMENT SWISS BANK CORPORATION -
CHICAGO BRANCH
$40,000,000.00
By
-------------------------
Title:
By
-------------------------
Title:
Lending Office for all Loans:
Swiss Bank Corporation -
Chicago Branch
141 West Jackson Boulevard
Eighth Floor
Merchant Banking Group
Chicago, Illinois 60604
Address for Notices:
Swiss Bank Corporation -
Chicago Branch
141 West Jackson Boulevard
Eighth Floor
Merchant Banking Group
Chicago, Illinois 60604
Attention: Jolynn Bryant Kelly
Telecopier No.: 312-554-6410
Telephone No.: 312-554-6424
CREDIT AGREEMENT
<PAGE>
- 76 -
COMMITMENT UNION BANK OF SWITZERLAND,
CHICAGO BRANCH
$40,000,000.00
By
-------------------------
Title:
By
-------------------------
Title:
Lending Office for all Loans:
Union Bank of Switzerland,
Chicago Branch
30 South Wacker Drive
40th Floor
Chicago, Illinois 60606
Address for Notices:
Union Bank of Switzerland,
Chicago Branch
30 South Wacker Drive
40th Floor
Chicago, Illinois 60606
Attention: Robert L. Wells
Telecopier No.: 312-993-5530
Telephone No.: 312-993-5446
CREDIT AGREEMENT
<PAGE>
- 77 -
COMMITMENT THE BANK OF TOKYO, LTD.,
CHICAGO BRANCH
$30,000,000.00
By
-------------------------
Title:
Lending Office for all Loans:
The Bank of Tokyo, Ltd.,
Chicago Branch
69 West Washington
Chicago, Illinois 60602
Address for Notices:
The Bank of Tokyo, Ltd.,
Chicago Branch
69 West Washington
Chicago, Illinois 60602
Attention: Wayne Yamanaka
Telecopier No.: 312-236-8268
Telephone No.: 312-236-4974
CREDIT AGREEMENT
<PAGE>
- 78 -
COMMITMENT CHEMICAL BANK
$30,000,000.00
By
-------------------------
Title:
Lending Office for all Loans:
Chemical Bank
270 Park Avenue
New York, New York 10017
Address for Notices:
Chemical Bank
270 Park Avenue
New York, New York 10017
Attention: John J. Huber, III
Telecopier No.: 212-270-2625
Telephone No.: 212-270-1402
CREDIT AGREEMENT
<PAGE>
- 79 -
COMMITMENT THE DAI-ICHI KANGYO BANK, LTD.,
CHICAGO BRANCH
$30,000,000.00
By
-------------------------
Title:
Lending Office for all Loans:
The Dai-Ichi Kangyo Bank, Ltd.,
Chicago Branch
10 South Wacker Drive
Chicago, Illinois 60606
Address for Notices:
The Dai-Ichi Kangyo Bank, Ltd.,
Chicago Branch
10 South Wacker Drive
Chicago, Illinois 60606
Attention: Richard R. Howard
Telecopier No.: 312-876-2011
Telephone No.: 312-715-6369
CREDIT AGREEMENT
<PAGE>
- 80 -
COMMITMENT THE SANWA BANK, LTD.,
CHICAGO BRANCH
$30,000,000.00
By
-------------------------
Title:
Lending Office for all Loans:
The Sanwa Bank, Ltd.
10 South Wacker Drive
Chicago, Illinois 60606
Address for Notices:
The Sanwa Bank, Ltd.
10 South Wacker Drive
Chicago, Illinois 60606
Attention: Ken Eichwald
Telecopier No.: 312-368-6677
Telephone No.: 312-368-3006
CREDIT AGREEMENT
<PAGE>
- 81 -
COMMITMENT THE SUMITOMO BANK, LIMITED,
CHICAGO BRANCH
$30,000,000.00
By
-------------------------
Title:
Lending Office for all Loans:
The Sumitomo Bank, Limited,
Chicago Branch
233 South Wacker Drive
Suite 4800
Chicago, Illinois 60606-6498
Address for Notices:
The Sumitomo Bank, Limited,
Chicago Branch
233 South Wacker Drive
Suite 4800
Chicago, Illinois 60606-6498
Attention: John Kemper
Telecopier No.: 312-876-6436
Telephone No.: 312-876-7797
CREDIT AGREEMENT
<PAGE>
- 82 -
COMMITMENT ROYAL BANK OF CANADA
$20,000,000.00
By_________________________
Title:
Lending Office for all Loans:
Royal Bank of Canada,
New York Branch
c/o New York Operations Center
Pierrepont Plaza
300 Cadman Plaza West
Brooklyn, New York 11201-2701
Address for Notices:
Royal Bank of Canada,
New York Branch
Pierrepont Plaza
300 Cadman Plaza West
Brooklyn, New York 11201-2701
Attention: Manager,
Loans Administration
Telecopier No.: 718-522-6292/3
Telephone No.: 212-858-7168
with a copy to:
Royal Bank of Canada
Financial Square, 24th Floor
New York, New York 10005-3531
Attention: John P. Page
Telecopier No.: 212-428-6460
Telephone No.: 212-428-6551
CREDIT AGREEMENT
<PAGE>
- 83 -
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Agent
By
-------------------------
Title:
Address for Notices to
Chase as Agent:
The Chase Manhattan Bank
(National Association)
4 Chase Metrotech Center
13th Floor
Brooklyn, New York 11245
Attention: New York Agency
Telecopier No.: (718) 242-6910
Telephone No.: (718) 242-7979
CREDIT AGREEMENT
<PAGE>
Schedule I
Material Domestic Subsidiaries
[Section 7.13]
Motorola Credit a Delaware 100% of the
Corporation corporation issued and
outstanding shares
of capital stock are
owned by the Company
Codex Corporation a Delaware 100% of the
corporation issued and
outstanding shares
of capital stock are
owned by the Company
Motorola Electronica a Delaware approximately 15% of
de Puerto Rico, Inc. corporation the issued and
outstanding shares
of capital stock are
owned by Motorola
International
Capital Corporation
and approximately
85% of the issued
and outstanding
shares of capital
stock are owned
by Motorola
International
Development
Corporation
SCHEDULE I
<PAGE>
EXHIBIT A-1
[Form of Syndicated Note]
PROMISSORY NOTE
$_______________ September 21, 1994
New York, New York
FOR VALUE RECEIVED, [MOTOROLA, INC.] [MOTOROLA CREDIT CORPORATION], a
Delaware corporation (the "BORROWER"), hereby promises to pay to
__________________ (the "BANK"), for account of its respective Applicable
Lending Offices provided for by the Credit Agreement referred to below, at the
principal office of The Chase Manhattan Bank (National Association) at 1 Chase
Manhattan Plaza, New York, New York 10081, the principal sum of _______________
Dollars (or such lesser amount as shall equal the aggregate unpaid principal
amount of the Syndicated Loans made by the Bank to the Borrower under the Credit
Agreement), in lawful money of the United States of America and in immediately
available funds, on the dates and in the principal amounts provided in the
Credit Agreement, and to pay interest on the unpaid principal amount of each
such Syndicated Loan, at such office, in like money and funds, for the period
commencing on the date of such Syndicated Loan until such Syndicated Loan shall
be paid in full, at the rates per annum and on the dates provided in the Credit
Agreement.
The date, amount, Type, interest rate and duration of Interest Period
(if applicable) of each Syndicated Loan made by the Bank to the Borrower, and
each payment made on account of the principal thereof, shall be recorded by the
Bank on its books and, prior to any transfer of this Note, endorsed by the Bank
on the schedule attached hereto or any continuation thereof, PROVIDED that the
failure of the Bank to make any such recordation or endorsement shall not affect
the obligations of the Borrower to make a payment when due of any amount owing
under the Credit Agreement or hereunder in respect of the Syndicated Loans made
by the Bank.
This Note is one of the Syndicated Notes referred to in the Credit
Agreement dated as of September 21, 1994 (as modified and supplemented and in
effect from time to time, the "CREDIT AGREEMENT") between Motorola, Inc.,
Motorola Credit Corporation, the lenders named therein (including the Bank), and
The Chase Manhattan Bank (National Association), as Agent, providing for Loans
in an aggregate principal amount initially not to exceed $1,000,000,000, and
evidences Syndicated Loans made by the Bank to the Borrower thereunder. Terms
used but not defined in this Note have the respective meanings assigned to them
in the Credit Agreement.
SYNDICATED NOTE
<PAGE>
- 2 -
The Credit Agreement provides for the acceleration of the maturity of
this Note upon the occurrence of certain events and for prepayments of
Syndicated Loans upon the terms and conditions specified therein.
Except as permitted by Section 11.06 of the Credit Agreement, this
Note may not be assigned by the Bank to any other Person.
This Note shall be governed by, and construed in accordance with, the
law of the State of New York.
[MOTOROLA, INC.] [MOTOROLA
CREDIT CORPORATION]
By
-------------------------
Title:
SYNDICATED NOTE
<PAGE>
- 3 -
SCHEDULE OF SYNDICATED LOANS
This Note evidences Syndicated Loans made under the within-described
Credit Agreement to the Borrower, on the dates, in the principal amounts, of the
Types, bearing interest at the rates and having Interest Periods (if applicable)
of the durations set forth below, subject to the payments, Continuations,
Conversions and prepayments of principal set forth below:
Prin-
cipal Maturity Unpaid
Amount Type Date Amount Prin-
Date of of Interest of Paid or cipal Notation
Made Loan Loan Rate Loan Prepaid Amount Made by
- --------- ------ ---- -------- -------- ---------- ------ --------
SYNDICATED NOTE
<PAGE>
EXHIBIT A-2
[Form of Money Market Note]
PROMISSORY NOTE
September 21, 1994
New York, New York
FOR VALUE RECEIVED, [MOTOROLA, INC.] [MOTOROLA CREDIT CORPORATION], a
Delaware corporation (the "BORROWER"), hereby promises to pay to
__________________ (the "BANK"), for account of its respective Applicable
Lending Offices provided for by the Credit Agreement referred to below, at the
principal office of The Chase Manhattan Bank (National Association) at 1 Chase
Manhattan Plaza, New York, New York 10081, the aggregate unpaid principal amount
of the Money Market Loans made by the Bank to the Borrower under the Credit
Agreement, in lawful money of the United States of America and in immediately
available funds, on the dates and in the principal amounts provided in the
Credit Agreement, and to pay interest on the unpaid principal amount of each
such Money Market Loan, at such office, in like money and funds, for the period
commencing on the date of such Money Market Loan until such Money Market Loan
shall be paid in full, at the rates per annum and on the dates provided in the
Credit Agreement.
The date, amount, Type, interest rate and maturity date of each Money
Market Loan made by the Bank to the Borrower, and each payment made on account
of the principal thereof, shall be recorded by the Bank on its books and, prior
to any transfer of this Note, endorsed by the Bank on the schedule attached
hereto or any continuation thereof, PROVIDED that the failure of the Bank to
make any such recordation or endorsement shall not affect the obligations of the
Borrower to make a payment when due of any amount owing under the Credit
Agreement or hereunder in respect of the Money Market Loans made by the Bank.
This Note is one of the Money Market Notes referred to in the Credit
Agreement dated as of September 21, 1994 (as modified and supplemented and in
effect from time to time, the "CREDIT AGREEMENT") between Motorola, Inc.,
Motorola Credit Corporation, the lenders named therein (including the Bank), and
The Chase Manhattan Bank (National Association), as Agent, providing for Loans
in an aggregate principal amount initially not to exceed $1,000,000,000, and
evidences Money Market Loans made by the Bank to the Borrower thereunder. Terms
used but not defined in this Note have the respective meanings assigned to them
in the Credit Agreement.
MONEY MARKET NOTE
<PAGE>
- 2 -
The Credit Agreement provides for the acceleration of the maturity of
this Note upon the occurrence of certain events and for prepayments of Money
Market Loans upon the terms and conditions specified therein.
Except as permitted by Section 11.06 of the Credit Agreement, this
Note may not be assigned by the Bank to any other Person.
This Note shall be governed by, and construed in accordance with, the
law of the State of New York.
[MOTOROLA, INC.] [MOTOROLA
CREDIT CORPORATION]
By
-------------------------
Title:
MONEY MARKET NOTE
<PAGE>
- 3 -
SCHEDULE OF MONEY MARKET LOANS
This Note evidences Money Market Loans made under the within-described
Credit Agreement to the Borrower, on the dates, in the principal amounts, of the
Types, bearing interest at the rates and maturing on the dates set forth below,
subject to the payments and prepayments of principal set forth below:
Principal
Date Amount Type Maturity Amount Unpaid
of of of Interest Date of Paid or Principal Notation
Loan Loan Loan Rate Loan Prepaid Amount Made by
- ---- --------- ---- -------- -------- ------- --------- --------
MONEY MARKET NOTE
<PAGE>
EXHIBIT B
[Form of Opinion of Counsel to the Borrower]
September 21, 1994
To the Banks party to the
Credit Agreement referred to
below and The Chase
Manhattan Bank (National Association), as Agent
Ladies and Gentlemen:
I have acted as counsel to Motorola, Inc. (the "COMPANY") and Motorola
Credit Corporation ("MOTOROLA CREDIT", and together with the Company, the
"BORROWERS"), in connection with (i) the Credit Agreement (the "CREDIT
AGREEMENT") dated as of September 21, 1994, between the Company, Motorola
Credit, the lenders named therein, and The Chase Manhattan Bank (National
Association), as Agent, providing for loans to be made by said lenders to the
Borrowers in an aggregate principal amount initially not to exceed
$1,000,000,000 and (ii) the various other agreements and instruments referred to
in the next following paragraph. Terms defined in the Credit Agreement are used
herein as defined therein. This opinion is being delivered pursuant to
Section 6.01(b) of the Credit Agreement.
In rendering the opinions expressed below, I have examined the
following agreements, instruments and other documents:
(a) the Credit Agreement;
(b) the Notes issued by the Borrowers; and
(c) such corporate records of the Borrowers and such other documents
as I have deemed necessary as a basis for the opinions expressed
below.
The agreements, instruments and other documents referred to in the foregoing
lettered clauses (other than clause (c) above) are collectively referred to as
the "CREDIT DOCUMENTS".
In my examination, I have assumed the genuineness of all signatures,
the authenticity of all documents submitted to me as originals and the
conformity with authentic original documents of all documents submitted to me as
copies. When relevant facts were not independently established, I have relied
upon statements of governmental officials and upon representations made in or
pursuant to the Credit Documents and certificates of appropriate representatives
of the Borrowers.
OPINION OF COUNSEL TO THE BORROWERS
<PAGE>
- 2 -
In rendering the opinions expressed below, I have assumed, with
respect to all of the documents referred to in this opinion letter, that
(except, to the extent set forth in the opinions expressed below, as to the
Borrowers):
(i) such documents have been duly authorized by, have been duly
executed and delivered by, and constitute legal, valid, binding
and enforceable obligations of, all of the parties to such
documents;
(ii) all signatories to such documents have been duly authorized; and
(iii) all of the parties to such documents are duly organized and
validly existing and have the power and authority (corporate or
other) to execute, deliver and perform such documents.
Based upon and subject to the foregoing and subject also to the
comments and qualifications set forth below, and having considered such
questions of law as I have deemed necessary as a basis for the opinions
expressed below, I am of the opinion that:
1. Each Borrower is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware. Each
Material Domestic Subsidiary of the Company is a corporation duly
organized, validly existing and in good standing under the laws of the
respective state indicated opposite its name in Schedule I to the Credit
Agreement.
2. Each Borrower has all requisite corporate power to execute and
deliver, and to perform its obligations under, the Credit Documents to
which such Borrower is party. Each Borrower has all requisite corporate
power to borrow under the Credit Agreement.
3. The execution, delivery and performance by each Borrower of each
Credit Document to which such Borrower is a party, and the borrowings by
such Borrower under the Credit Agreement, have been duly authorized by all
necessary corporate action on the part of such Borrower.
4. Each Credit Document to which any Borrower is a party has been
duly executed and delivered by such Borrower.
5. If the Credit Documents were stated to be governed by and
construed in accordance with the law of the State of Illinois, or if a
court of the State of Illinois were to
OPINION OF COUNSEL TO THE BORROWERS
<PAGE>
- 3 -
apply the law of the State of Illinois to the Credit Documents, each Credit
Document to which any Borrower is a party would nevertheless constitute the
legal, valid and binding obligation of such Borrower, enforceable against
such Borrower in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights of creditors generally and except as
the enforceability of the Credit Documents is subject to the application of
general principles of equity (regardless of whether considered in a
proceeding in equity or at law), including, without limitation, (a) the
possible unavailability of specific performance, injunctive relief or any
other equitable remedy and (b) concepts of materiality, reasonableness,
good faith and fair dealing.
6. No authorization, approval or consent of, and no filing or
registration with, any governmental or regulatory authority or agency of
the United States of America or the State of Illinois is required on the
part of any Borrower for the execution, delivery or performance by such
Borrower of any Credit Document to which such Borrower is a party or for
the borrowings by such Borrower under the Credit Agreement.
7. The execution, delivery and performance by any Borrower of, and
the consummation by such Borrower of the transactions contemplated by, the
Credit Documents do not and will not (a) violate any provision of its
charter or by-laws, (b) violate any applicable law, rule or regulation, (c)
violate any order, writ, injunction or decree of any court or governmental
authority or agency or any arbitral award applicable to such Borrower or
any of the Company's Material Domestic Subsidiaries of which I have
knowledge (after reasonable inquiry) or (d) result in a breach of,
constitute a default under, require any consent under, or result in the
acceleration or required prepayment of any indebtedness pursuant to the
terms of, any agreement or instrument of which I have knowledge (after
reasonable inquiry) to which such Borrower or any of the Company's Material
Domestic Subsidiaries is a party or by which any of them is bound or to
which any of them is subject, or result in the creation or imposition of
any Lien upon any Property of such Borrower pursuant to, the terms of any
such agreement or instrument.
8. Except as disclosed in the Company's Report on Form 10-K filed
with the SEC for fiscal year ended December 31, 1993 and in the Company's
Reports on Form 10-Q filed with the SEC for the first and second fiscal
quarters for the fiscal year 1994, I have no knowledge (after
OPINION OF COUNSEL TO THE BORROWERS
<PAGE>
- 4 -
reasonable inquiry) of any legal or arbitral proceedings, or any
proceedings by or before any governmental or regulatory authority or
agency, pending or threatened against or affecting any Borrower or any of
the Company's Subsidiaries or any of their respective Properties that, if
adversely determined, are likely to have a Material Adverse Effect.
The foregoing opinions are subject to the following comments and
qualifications:
(A) The enforceability of Section 11.03 of the Credit Agreement may
be limited by (i) laws rendering unenforceable indemnification contrary to
Federal or state securities laws and the public policy underlying such laws
and (ii) laws limiting the enforceability of provisions exculpating or
exempting a party, or requiring indemnification of a party for, liability
for its own action or inaction, to the extent the action or inaction
involves gross negligence, recklessness, willful misconduct or unlawful
conduct.
(B) The enforceability of provisions in the Credit Documents to the
effect that terms may not be waived or modified except in writing may be
limited under certain circumstances.
(C) I express no opinion as to (i) the effect of the laws of any
jurisdiction in which any Bank is located (other than the State of
Illinois) that limit the interest, fees or other charges such Bank may
impose, (ii) Section 4.07(c) of the Credit Agreement, (iii) the second
sentence of Section 11.10 of the Credit Agreement, insofar as such sentence
relates to the subject matter jurisdiction of the United States District
Court for the Southern District of New York to adjudicate any controversy
related to the Credit Documents, and (iv) the waiver of inconvenient forum
set forth in Section 11.10 of the Credit Agreement with respect to
proceedings in the United States District Court for the Southern District
of New York.
The foregoing opinions are limited to matters involving the Federal
laws of the United States of America, the Delaware General Corporation Law and
the law of the State of Illinois, and I do not express any opinion as to the
laws of any other jurisdiction.
OPINION OF COUNSEL TO THE BORROWERS
<PAGE>
- 5 -
At the request of my client, this opinion letter is, pursuant to
Section 6.01(b) of the Credit Agreement, provided to you by me in my capacity as
counsel to the Company and may not be relied upon by any Person for any purpose
other than in connection with the transactions contemplated by the Credit
Agreement without, in each instance, my prior written consent.
Very truly yours,
OPINION OF COUNSEL TO THE BORROWERS
<PAGE>
EXHIBIT C
[Form of Opinion of Special New York Counsel to Chase]
September 21, 1994
To the Banks party to the
Credit Agreement referred to
below and The Chase
Manhattan Bank (National Association), as Agent
Ladies and Gentlemen:
We have acted as special New York counsel to The Chase Manhattan Bank
(National Association) ("CHASE") in connection with the Credit Agreement dated
as of September 21, 1994 (the "CREDIT AGREEMENT") between Motorola, Inc. (the
"COMPANY"), Motorola Credit Corporation ("MOTOROLA CREDIT", and together with
the Company, the "BORROWERS"), the lenders named therein, and Chase, as Agent,
providing for loans to be made by said lenders to the Borrowers in an aggregate
principal amount initially not to exceed $1,000,000,000. Terms defined in the
Credit Agreement are used herein as defined therein. This opinion is being
delivered pursuant to Section 6.01(c) of the Credit Agreement.
In rendering the opinions expressed below, we have examined the
following agreements, instruments and other documents:
(a) the Credit Agreement; and
(b) the Notes (together with the Credit Agreement, the "CREDIT
DOCUMENT").
In our examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals and the
conformity with authentic original documents of all documents submitted to us as
copies. When relevant facts were not independently established, we have relied
upon representations made in or pursuant to the Credit Documents.
In rendering the opinions expressed below, we have assumed, with
respect to all of the documents referred to in this opinion letter, that:
(i) such documents have been duly authorized by, have been duly
executed and delivered by, and (except to the extent set forth in
the opinions below as to the Borrowers) constitute legal, valid,
binding and enforceable obligations of, all of the parties to
such documents;
OPINION OF SPECIAL COUNSEL TO CHASE
<PAGE>
- 2 -
(ii) all signatories to such documents have been duly authorized; and
(iii) all of the parties to such documents are duly organized and
validly existing and have the power and authority (corporate or
other) to execute, deliver and perform such documents.
Based upon and subject to the foregoing and subject also to the
comments and qualifications set forth below, and having considered such
questions of law as we have deemed necessary as a basis for the opinions
expressed below, we are of the opinion that each of the Credit Documents
constitutes the legal, valid and binding obligation of each Borrower party
thereto, enforceable against such Borrower in accordance with its terms, except
as may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting the rights of creditors generally and
except as the enforceability of the Credit Documents is subject to the
application of general principles of equity (regardless of whether considered in
a proceeding in equity or at law), including, without limitation, (a) the
possible unavailability of specific performance, injunctive relief or any other
equitable remedy and (b) concepts of materiality, reasonableness, good faith and
fair dealing.
The foregoing opinions are subject to the following comments and
qualifications:
(A) The enforceability of Section 11.03 of the Credit Agreement may
be limited by (i) laws rendering unenforceable indemnification contrary to
Federal or state securities laws and the public policy underlying such laws
and (ii) laws limiting the enforceability of provisions exculpating or
exempting a party, or requiring indemnification of a party for, liability
for its own action or inaction, to the extent the action or inaction
involves gross negligence, recklessness, willful misconduct or unlawful
conduct.
(B) The enforceability of provisions in the Credit Documents to the
effect that terms may not be waived or modified except in writing may be
limited under certain circumstances.
(C) We express no opinion as to (i) the effect of the laws of any
jurisdiction in which any Bank is located (other than the State of New
York) that limit the interest, fees or other charges such Bank may impose,
(ii) Section 4.07(c) of the Credit Agreement, (iii) the second sentence of
Section 11.10 of the Credit Agreement, insofar as such sentence relates to
the subject matter jurisdiction of the
OPINION OF SPECIAL COUNSEL TO CHASE
<PAGE>
- 3 -
United States District Court for the Southern District of New York to
adjudicate any controversy related to the Credit Documents, and (iv) the
waiver of inconvenient forum set forth in Section 11.10 of the Credit
Agreement with respect to proceedings in the United States District Court
for the Southern District of New York.
The foregoing opinions are limited to matters involving the Federal
laws of the United States of America and the law of the State of New York, and
we do not express any opinion as to the laws of any other jurisdiction.
This opinion letter is, pursuant to Section 6.01(c) of the Credit
Agreement, provided to you by us in our capacity as special New York counsel to
Chase and may not be relied upon by any Person for any purpose other than in
connection with the transactions contemplated by the Credit Agreement without,
in each instance, our prior written consent.
Very truly yours,
CDP/RMG
OPINION OF SPECIAL COUNSEL TO CHASE
<PAGE>
EXHIBIT D
[Form of Money Market Quote Request]
[Date]
To: The Chase Manhattan Bank (National Association), as Agent
From: [Motorola, Inc.] [Motorola Credit Corporation]
Re: Money Market Quote Request
Pursuant to Section 2.03 of the Credit Agreement dated as of
September 21, 1994 (as modified and supplemented and in effect from time to
time, the "CREDIT AGREEMENT") between Motorola, Inc., Motorola Credit
Corporation, the lenders named therein and The Chase Manhattan Bank (National
Association), as Agent, providing for Loans in an aggregate principal amount
initially not to exceed $1,000,000,000, we hereby give notice that we request
Money Market Quotes for the following proposed Money Market Borrowing(s):
Borrowing Quotation Interest
Date Date[*1] Amount[*2] Type[*3] Period[*4]
- --------- --------- ---------- -------- ----------
The Borrower is [Motorola, Inc.] [Motorola Credit Corporation]. Terms
used herein have the meanings assigned to them in the Credit Agreement.
[MOTOROLA, INC.] [MOTOROLA CREDIT CORPORATION]
By
-------------------------------------------
Title:
- --------------------------
* All numbered footnotes appear on the last page of this Exhibit.
MONEY MARKET QUOTE REQUEST
<PAGE>
- 2 -
- --------------------------
[1] For use if a Set Rate in a Set Rate Auction is requested to be submitted
before the Borrowing Date.
[2] Each amount must be $20,000,000 or a larger multiple of $1,000,000.
[3] Insert either "LIBO Margin" (in the case of LIBOR Market Loans) or "Set
Rate" (in the case of Set Rate Loans).
[4] One, two, three or six months, in the case of a LIBOR Market Loan or, in
the case of a Set Rate Loan, a period of not less than 7 days and no
greater than 180 days after the making of such Set Rate Loan and ending on
a Business Day.
MONEY MARKET QUOTE REQUEST
<PAGE>
EXHIBIT E
[Form of Money Market Quote]
To: The Chase Manhattan Bank (National Association), as Agent
Attention:
Re: Money Market Quote to [Motorola, Inc.] [Motorola Credit Corporation] (the
"BORROWER")
This Money Market Quote is given in accordance with Section 2.03(c) of
the Credit Agreement dated as of September 21, 1994 (as modified and
supplemented and in effect from time to time, the "CREDIT AGREEMENT") between
Motorola, Inc., Motorola Credit Corporation, the lenders named therein, and The
Chase Manhattan Bank (National Association), as Agent, providing for Loans in an
aggregate principal amount initially not to exceed $1,000,000,000. Terms
defined in the Credit Agreement are used herein as defined therein.
In response to the Borrower's invitation dated __________, 199_, we
hereby make the following Money Market Quote(s) on the following terms:
1. Quoting Bank:
2. Person to contact at Quoting Bank:
3. We hereby offer to make Money Market Loan(s) in the following
principal amount[s], for the following Interest Period(s) and at the
following rate(s):
Borrowing Quotation Interest
Date Date[*1] Amount[*2] Type[*3] Period[*4] Rate[*5]
- --------- --------- ---------- -------- ---------- --------
PROVIDED that the Borrower may not accept offers that would result in the
undersigned making Money Market Loans pursuant hereto in excess of $___________
in the aggregate (the "MONEY MARKET LOAN LIMIT").
- --------------------------
* All numbered footnotes appear on the last page of this Exhibit.
MONEY MARKET QUOTE
<PAGE>
- 2 -
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the Credit Agreement,
irrevocably obligate[s] us to make the Money Market Loan(s) for which any
offer(s) (is/are) accepted, in whole or in part (subject to the third sentence
of Section 2.03(e) of the Credit Agreement and any Money Market Loan Limit
specified above).
Very truly yours,
[NAME OF BANK]
By
-------------------------
Authorized Officer
Dated: __________, ____
- --------------------------
[1] As specified in the related Money Market Quote Request.
[2] The principal amount bid for each Interest Period may not exceed the
principal amount requested. Bids must be made for at least $5,000,000 (or
a larger multiple of $1,000,000).
[3] Indicate "LIBO Margin" (in the case of LIBOR Market Loans) or "Set Rate"
(in the case of Set Rate Loans).
[4] One, two, three or six months, in the case of a LIBOR Market Loan or, in
the case of a Set Rate Loan, a period of no less than 7 days and no greater
than 180 days after the making of such Set Rate Loan and ending on a
Business Day, as specified in the related Money Market Quote Request.
[5] For a LIBOR Market Loan, specify margin over or under the London interbank
offered rate determined for the applicable Interest Period. Specify
percentage (rounded to the nearest 1/10,000 of 1%) and specify whether
"PLUS" or "MINUS". For a Set Rate Loan, specify rate of interest per annum
(rounded to the nearest 1/10,000 of 1%).
MONEY MARKET QUOTE
<PAGE>
EXHIBIT F
[Form of Confidentiality Agreement]
CONFIDENTIALITY AGREEMENT
[Date]
[Insert Name and
Address of Prospective
Participant or Assignee]
Re: Credit Agreement dated as of September 21, 1994 (as modified and
supplemented and in effect from time to time, the "CREDIT
AGREEMENT"), between Motorola, Inc. (the "COMPANY"), Motorola
Credit Corporation, the lenders named therein, and The Chase
Manhattan Bank (National Association), as Agent, providing for
Loans in an aggregate principal amount initially not to exceed
$1,000,000,000.
Dear Ladies and Gentlemen:
As a Bank party to the Credit Agreement, we have agreed with the
Company pursuant to Section 11.12 of the Credit Agreement to use reasonable
precautions to keep confidential, except as otherwise provided therein, all
non-public information identified by the Company as being confidential at the
time the same is delivered to us pursuant to the Credit Agreement.
As provided in said Section 11.12, we are permitted to provide you, as
a prospective [holder of a participation in the Loans (as defined in the Credit
Agreement)] [assignee Bank], with certain of such non-public information subject
to the execution and delivery by you, prior to receiving such non-public
information, of a Confidentiality Agreement in this form. Such information will
not be made available to you until your execution and return to us of this
Confidentiality Agreement.
Accordingly, in consideration of the foregoing, you agree (on behalf
of yourself and each of your affiliates, directors, officers, employees and
representatives and for the benefit of us and the Company) that (A) such
information will not be used by you except in connection with the proposed
[participation][assignment] mentioned above and (B) you shall use reasonable
precautions, in accordance with your customary procedures for handling
confidential information and in accordance with safe and sound banking
practices, to keep such information confidential, PROVIDED that nothing herein
shall limit the disclosure of any such information (i) to the extent required by
statute, rule, regulation or judicial process, (ii) to your counsel or to
counsel for any of the Banks or the
CONFIDENTIALITY AGREEMENT
<PAGE>
- 2 -
Agent, (iii) to bank examiners, auditors or accountants, (iv) to the Agent or
any other Bank (or to Chase Securities, Inc.), (v) in connection with any
litigation to which you or any one or more of the Banks or the Agent are a
party, (vi) to a subsidiary or affiliate of yours as provided in
Section 11.12(a) of the Credit Agreement or (vii) to any assignee or participant
(or prospective assignee or participant) so long as such assignee or participant
(or prospective assignee or participant) first executes and delivers to you a
Confidentiality Agreement substantially in the form hereof; PROVIDED, FURTHER,
that (x) unless specifically prohibited by applicable law or court order, you
agree, prior to disclosure thereof, to notify the Company of any request for
disclosure of any such non-public information (A) by any governmental agency or
representative thereof (other than any such request in connection with an
examination of your financial condition by such governmental agency) or
(B) pursuant to legal process and (y) that in no event shall you be obligated to
return any materials furnished to you pursuant to this Confidentiality
Agreement.
If you are a prospective assignee, your obligations under this
Confidentiality Agreement shall be superseded by Section 11.12 of the Credit
Agreement on the date upon which you become a Bank under the Credit Agreement
pursuant to Section 11.06 thereof.
Please indicate your agreement to the foregoing by signing as provided
below the enclosed copy of this Confidentiality Agreement and returning the same
to us.
Very truly yours,
[INSERT NAME OF BANK]
By
-------------------------
The foregoing is agreed to
as of the date of this letter.
[INSERT NAME OF PROSPECTIVE
PARTICIPANT OR ASSIGNEE]
By
-------------------------
CONFIDENTIALITY AGREEMENT
<PAGE>
EXHIBIT G
[Form of Notice of Assignment]
NOTICE OF ASSIGNMENT
[Date]
Motorola, Inc.
- -------------------------
- -------------------------
Attention:
-------------
The Chase Manhattan Bank, N.A.,
as Agent
4 Chase Metrotech Center -- 13th Floor
Brooklyn, New York 11245
Attention: New York Agency
Re: Credit Agreement dated as of September 21, 1994 (as modified and
supplemented and in effect from time to time, the "CREDIT
AGREEMENT"), between Motorola, Inc. (the "COMPANY"), Motorola
Credit Corporation, the lenders named therein and The Chase
Manhattan Bank (National Association), as Agent, providing for
Loans in an aggregate principal amount initially not to exceed
$1,000,000,000.
Dear Ladies and Gentlemen:
We hereby give notice that, effective as of the date hereof, [Name of
Assignor] (the "ASSIGNOR") has assigned its rights and obligations with respect
to % (representing $_____________) of the Assignor's outstanding [Commitment
and] [Loans], representing ____% (representing $_____________) of the aggregate
outstanding [Commitment and] [Loans] (such interest in such rights and
obligations being hereinafter referred to as the "ASSIGNED INTEREST") under the
Credit Agreement to [Name of Assignee] (the "ASSIGNEE"). The Assignee hereby
agrees (i) to become a "Bank" pursuant to Section 11.06(b) of the Credit
Agreement (if not already a Bank under the Credit Agreement) and (ii) agrees to
assume all the obligations of the Assignor thereunder with respect to the
Assigned Interest.
NOTICE OF ASSIGNMENT
<PAGE>
- 2 -
The address for notices, lending office(s) and payment instructions
for the Assignee are as follows:
Address for Notices:
----------------------
----------------------
----------------------
Attention:
Telephone:
Telecopier:
Lending Office for Base Rate Loans:
----------------------
----------------------
----------------------
Lending Office for Loans other than Base Rate Loans:
----------------------
----------------------
----------------------
Payment Instructions:
----------------------
----------------------
----------------------
Please sign and return the enclosed copy of this letter to the
undersigned to indicate your receipt hereof, and your consent to or notice of
(as applicable) the above-mentioned assignment and assumption, and your
agreement to the release of the Assignor from its obligations under the Credit
Agreement with respect to the Assigned Interest. As a condition to the
effectiveness of the above-mentioned assignment and assumption, the Agent shall
have received an assignment fee of $3,000.
Very truly yours,
[NAME OF ASSIGNOR]
By
----------------------------
Title:
[NAME OF ASSIGNEE]
By
----------------------------
Title:
NOTICE OF ASSIGNMENT
<PAGE>
- 3 -
ACKNOWLEDGED OR CONSENTED TO
(AS APPLICABLE):
MOTOROLA, INC.
By
--------------------------
Title:
THE CHASE MANHATTAN BANK, N.A.,
as Agent
By
--------------------------
Title:
NOTICE OF ASSIGNMENT
<PAGE>
EXHIBIT 12
<TABLE>
<CAPTION>
MOTOROLA, INC.
RATIO OF EARNINGS TO FIXED CHARGES
Six Months Ended Years Ended December 31,
-------------------------------------------------------------------------------------------------
July 2, July 3,
(In Millions) 1994 1993 1993 1992 1991 1990 1989
-------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Pretax Income(1) $1,062 $613 $1,481 $809 $614 $665 $643
Capitalized interest (0) -- -- (1) (4) (7) (3)
Fixed charges 142 124 254 269 241 237 234
(as calculated below)
-------------------------------------------------------------------------------------------------
Earnings(2) $1,204 $737 $1,735 $1,077 $851 $895 $874
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
Fixed charges:
Interest expense $105 $103 $203 $219 $194 $193 $192
Rent expense interest factor 37 21 51 50 47 44 42
-------------------------------------------------------------------------------------------------
Total fixed charges(3) $142 $124 $254 $269 $241 $237 $234
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
Ratio of earnings to
fixed charges 8.5 5.9 6.8 4.0 3.5 3.8 3.7
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
<FN>
(1)-After adjustments required by Item 503 (d)(3)(ii), (iii) and (iv) of
SEC Regulation S-K.
(2)-As defined in Item 503 (d)(3) of SEC Regulation S-K.
(3)-As defined in Item 503 (d)(4)(i) of SEC Regulation S-K.
</TABLE>
<PAGE>
Exhibit 23 (b)
ACCOUNTANTS' CONSENT
The Board of Directors and Stockholders
of Motorola, Inc.:
We consent to incorporation by reference in the registration statement on Form
S-3 (No. x-xxxxx) of Motorola, Inc. of our reports dated January 13, 1994,
relating to the consolidated balance sheets of Motorola, Inc. and consolidated
subsidiaries as of December 31, 1993 and 1992 and the related statements of
consolidated earnings, stockholders' equity and cash flows and related schedules
for each of the five years in the three-year period ended December 31, 1993,
which reports appear in the 1993 annual report on Form 10-K of Motorola, Inc.
and to the references to our firms under the heading "Experts" in the
prospectus.
Chicago, Illinois
October 17, 1994
<PAGE>
EXHIBIT 24
MOTOROLA, INC.
POWER OF ATTORNEY
KNOW ALL PEOPLE BY THESE PRESENTS, that the undersigned officer of
Motorola, Inc., a Delaware corporation, does hereby make, constitute and appoint
Gary L. Tooker, Christopher B. Galvin and Carl F. Koenemann, and each or any one
of them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such officer of Motorola,
Inc. to a Registration Statement or Registration Statements, on Form S-3 or
other applicable form, and all amendments, including post-effective amendments,
thereto, to be filed by Motorola, Inc. with the Securities and Exchange
Commission in connection with the registration under the Securities Act of 1933,
as amended, of Motorola, Inc. debt and equity securities, and other securities
related thereto, in an aggregate amount not to exceed $800,000,000 proposed to
be sold thereunder, and to file the same, with all exhibits thereto and other
supporting documents, with such Commission, granting unto said
attorneys-in-fact, and each of them, full power and authority to do and perform
any and all acts necessary or incidental to the performance and execution of the
powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this ____ day of August, 1994.
/s/ Carl F. Koenemann
---------------------
Carl F. Koenemann
Executive Vice President
and Chief Financial Officer
<PAGE>
EXHIBIT 24
MOTOROLA, INC.
POWER OF ATTORNEY
KNOW ALL PEOPLE BY THESE PRESENTS, that the undersigned officer and
director of Motorola, Inc., a Delaware corporation, does hereby make, constitute
and appoint Gary L. Tooker, Christopher B. Galvin and Carl F. Koenemann, and
each or any one of them, the undersigned's true and lawful attorneys-in-fact,
with power of substitution, for the undersigned and in the undersigned's name,
place and stead, to sign and affix the undersigned's name as such director
and/or officer of Motorola, Inc. to a Registration Statement or Registration
Statements, on Form S-3 or other applicable form, and all amendments, including
post-effective amendments, thereto, to be filed by Motorola, Inc. with the
Securities and Exchange Commission in connection with the registration under the
Securities Act of 1933, as amended, of Motorola, Inc. debt and equity
securities, and other securities related thereto, in an aggregate amount not to
exceed $800,000,000 proposed to be sold thereunder, and to file the same, with
all exhibits thereto and other supporting documents, with such Commission,
granting unto said attorneys-in-fact, and each of them, full power and authority
to do and perform any and all acts necessary or incidental to the performance
and execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this ____ day of August, 1994.
/s/ John F. Mitchell
---------------------
John F. Mitchell
<PAGE>
EXHIBIT 24
MOTOROLA, INC.
POWER OF ATTORNEY
KNOW ALL PEOPLE BY THESE PRESENTS, that the undersigned director of
Motorola, Inc., a Delaware corporation, does hereby make, constitute and appoint
Gary L. Tooker, Christopher B. Galvin and Carl F. Koenemann, and each or any one
of them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director of Motorola,
Inc. to a Registration Statement or Registration Statements, on Form S-3 or
other applicable form, and all amendments, including post-effective amendments,
thereto, to be filed by Motorola, Inc. with the Securities and Exchange
Commission in connection with the registration under the Securities Act of 1933,
as amended, of Motorola, Inc. debt and equity securities, and other securities
related thereto, in an aggregate amount not to exceed $800,000,000 proposed to
be sold thereunder, and to file the same, with all exhibits thereto and other
supporting documents, with such Commission, granting unto said attorneys-in-
fact, and each of them, full power and authority to do and perform any and all
acts necessary or incidental to the performance and execution of the powers
herein expressly granted.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this 2nd day of August, 1994.
/s/ Erich Bloch
---------------------
Erich Bloch
<PAGE>
EXHIBIT 24
MOTOROLA, INC.
POWER OF ATTORNEY
KNOW ALL PEOPLE BY THESE PRESENTS, that the undersigned officer and
director of Motorola, Inc., a Delaware corporation, does hereby make, constitute
and appoint Gary L. Tooker, Christopher B. Galvin and Carl F. Koenemann, and
each or any one of them, the undersigned's true and lawful attorneys-in-fact,
with power of substitution, for the undersigned and in the undersigned's name,
place and stead, to sign and affix the undersigned's name as such director
and/or officer of Motorola, Inc. to a Registration Statement or Registration
Statements, on Form S-3 or other applicable form, and all amendments, including
post-effective amendments, thereto, to be filed by Motorola, Inc. with the
Securities and Exchange Commission in connection with the registration under the
Securities Act of 1933, as amended, of Motorola, Inc. debt and equity
securities, and other securities related thereto, in an aggregate amount not to
exceed $800,000,000 proposed to be sold thereunder, and to file the same, with
all exhibits thereto and other supporting documents, with such Commission,
granting unto said attorneys-in-fact, and each of them, full power and authority
to do and perform any and all acts necessary or incidental to the performance
and execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this ____ day of August, 1994.
/s/ Robert W. Galvin
---------------------
Robert W. Galvin
<PAGE>
EXHIBIT 24
MOTOROLA, INC.
POWER OF ATTORNEY
KNOW ALL PEOPLE BY THESE PRESENTS, that the undersigned officer and
director of Motorola, Inc., a Delaware corporation, does hereby make, constitute
and appoint Gary L. Tooker, Christopher B. Galvin and Carl F. Koenemann, and
each or any one of them, the undersigned's true and lawful attorneys-in-fact,
with power of substitution, for the undersigned and in the undersigned's name,
place and stead, to sign and affix the undersigned's name as such director
and/or officer of Motorola, Inc. to a Registration Statement or Registration
Statements, on Form S-3 or other applicable form, and all amendments, including
post-effective amendments, thereto, to be filed by Motorola, Inc. with the
Securities and Exchange Commission in connection with the registration under the
Securities Act of 1933, as amended, of Motorola, Inc. debt and equity
securities, and other securities related thereto, in an aggregate amount not to
exceed $800,000,000 proposed to be sold thereunder, and to file the same, with
all exhibits thereto and other supporting documents, with such Commission,
granting unto said attorneys-in-fact, and each of them, full power and authority
to do and perform any and all acts necessary or incidental to the performance
and execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this 2nd day of August, 1994.
/s/ Gary L. Tooker
---------------------
Gary L. Tooker
<PAGE>
EXHIBIT 24
MOTOROLA, INC.
POWER OF ATTORNEY
KNOW ALL PEOPLE BY THESE PRESENTS, that the undersigned director of
Motorola, Inc., a Delaware corporation, does hereby make, constitute and appoint
Gary L. Tooker, Christopher B. Galvin and Carl F. Koenemann, and each or any one
of them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director of Motorola,
Inc. to a Registration Statement or Registration Statements, on Form S-3 or
other applicable form, and all amendments, including post-effective amendments,
thereto, to be filed by Motorola, Inc. with the Securities and Exchange
Commission in connection with the registration under the Securities Act of 1933,
as amended, of Motorola, Inc. debt and equity securities, and other securities
related thereto, in an aggregate amount not to exceed $800,000,000 proposed to
be sold thereunder, and to file the same, with all exhibits thereto and other
supporting documents, with such Commission, granting unto said attorneys-in-
fact, and each of them, full power and authority to do and perform any and all
acts necessary or incidental to the performance and execution of the powers
herein expressly granted.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this ____ day of August, 1994.
/s/ Donald R. Jones
---------------------
Donald R. Jones
<PAGE>
EXHIBIT 24
MOTOROLA, INC.
POWER OF ATTORNEY
KNOW ALL PEOPLE BY THESE PRESENTS, that the undersigned director of
Motorola, Inc., a Delaware corporation, does hereby make, constitute and appoint
Gary L. Tooker, Christopher B. Galvin and Carl F. Koenemann, and each or any one
of them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director of Motorola,
Inc. to a Registration Statement or Registration Statements, on Form S-3 or
other applicable form, and all amendments, including post-effective amendments,
thereto, to be filed by Motorola, Inc. with the Securities and Exchange
Commission in connection with the registration under the Securities Act of 1933,
as amended, of Motorola, Inc. debt and equity securities, and other securities
related thereto, in an aggregate amount not to exceed $800,000,000 proposed to
be sold thereunder, and to file the same, with all exhibits thereto and other
supporting documents, with such Commission, granting unto said attorneys-in-
fact, and each of them, full power and authority to do and perform any and all
acts necessary or incidental to the performance and execution of the powers
herein expressly granted.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this 1st day of August, 1994.
/s/ Wallace C. Doud
---------------------
Wallace C. Doud
<PAGE>
EXHIBIT 24
MOTOROLA, INC.
POWER OF ATTORNEY
KNOW ALL PEOPLE BY THESE PRESENTS, that the undersigned director of
Motorola, Inc., a Delaware corporation, does hereby make, constitute and appoint
Gary L. Tooker, Christopher B. Galvin and Carl F. Koenemann, and each or any one
of them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director of Motorola,
Inc. to a Registration Statement or Registration Statements, on Form S-3 or
other applicable form, and all amendments, including post-effective amendments,
thereto, to be filed by Motorola, Inc. with the Securities and Exchange
Commission in connection with the registration under the Securities Act of 1933,
as amended, of Motorola, Inc. debt and equity securities, and other securities
related thereto, in an aggregate amount not to exceed $800,000,000 proposed to
be sold thereunder, and to file the same, with all exhibits thereto and other
supporting documents, with such Commission, granting unto said attorneys-in-
fact, and each of them, full power and authority to do and perform any and all
acts necessary or incidental to the performance and execution of the powers
herein expressly granted.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this 2nd day of August, 1994.
/s/ Gardiner L. Tucker
---------------------
Gardiner L. Tucker
<PAGE>
EXHIBIT 24
MOTOROLA, INC.
POWER OF ATTORNEY
KNOW ALL PEOPLE BY THESE PRESENTS, that the undersigned director of
Motorola, Inc., a Delaware corporation, does hereby make, constitute and appoint
Gary L. Tooker, Christopher B. Galvin and Carl F. Koenemann, and each or any one
of them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director of Motorola,
Inc. to a Registration Statement or Registration Statements, on Form S-3 or
other applicable form, and all amendments, including post-effective amendments,
thereto, to be filed by Motorola, Inc. with the Securities and Exchange
Commission in connection with the registration under the Securities Act of 1933,
as amended, of Motorola, Inc. debt and equity securities, and other securities
related thereto, in an aggregate amount not to exceed $800,000,000 proposed to
be sold thereunder, and to file the same, with all exhibits thereto and other
supporting documents, with such Commission, granting unto said attorneys-in-
fact, and each of them, full power and authority to do and perform any and all
acts necessary or incidental to the performance and execution of the powers
herein expressly granted.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this ____ day of August, 1994.
/s/ Walter E. Massey
---------------------
Walter E. Massey
<PAGE>
EXHIBIT 24
MOTOROLA, INC.
POWER OF ATTORNEY
KNOW ALL PEOPLE BY THESE PRESENTS, that the undersigned director of
Motorola, Inc., a Delaware corporation, does hereby make, constitute and appoint
Gary L. Tooker, Christopher B. Galvin and Carl F. Koenemann, and each or any one
of them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director of Motorola,
Inc. to a Registration Statement or Registration Statements, on Form S-3 or
other applicable form, and all amendments, including post-effective amendments,
thereto, to be filed by Motorola, Inc. with the Securities and Exchange
Commission in connection with the registration under the Securities Act of 1933,
as amended, of Motorola, Inc. debt and equity securities, and other securities
related thereto, in an aggregate amount not to exceed $800,000,000 proposed to
be sold thereunder, and to file the same, with all exhibits thereto and other
supporting documents, with such Commission, granting unto said attorneys-in-
fact, and each of them, full power and authority to do and perform any and all
acts necessary or incidental to the performance and execution of the powers
herein expressly granted.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this ____ day of August, 1994.
/s/ David R. Clare
---------------------
David R. Clare
<PAGE>
EXHIBIT 24
MOTOROLA, INC.
POWER OF ATTORNEY
KNOW ALL PEOPLE BY THESE PRESENTS, that the undersigned director of
Motorola, Inc., a Delaware corporation, does hereby make, constitute and appoint
Gary L. Tooker, Christopher B. Galvin and Carl F. Koenemann, and each or any one
of them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director of Motorola,
Inc. to a Registration Statement or Registration Statements, on Form S-3 or
other applicable form, and all amendments, including post-effective amendments,
thereto, to be filed by Motorola, Inc. with the Securities and Exchange
Commission in connection with the registration under the Securities Act of 1933,
as amended, of Motorola, Inc. debt and equity securities, and other securities
related thereto, in an aggregate amount not to exceed $800,000,000 proposed to
be sold thereunder, and to file the same, with all exhibits thereto and other
supporting documents, with such Commission, granting unto said attorneys-in-
fact, and each of them, full power and authority to do and perform any and all
acts necessary or incidental to the performance and execution of the powers
herein expressly granted.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this ____ day of August, 1994.
/s/ William J. Weisz
---------------------
William J. Weisz
<PAGE>
EXHIBIT 24
MOTOROLA, INC.
POWER OF ATTORNEY
KNOW ALL PEOPLE BY THESE PRESENTS, that the undersigned officer and
director of Motorola, Inc., a Delaware corporation, does hereby make, constitute
and appoint Gary L. Tooker, Christopher B. Galvin and Carl F. Koenemann, and
each or any one of them, the undersigned's true and lawful attorneys-in-fact,
with power of substitution, for the undersigned and in the undersigned's name,
place and stead, to sign and affix the undersigned's name as such director
and/or officer of Motorola, Inc. to a Registration Statement or Registration
Statements, on Form S-3 or other applicable form, and all amendments, including
post-effective amendments, thereto, to be filed by Motorola, Inc. with the
Securities and Exchange Commission in connection with the registration under the
Securities Act of 1933, as amended, of Motorola, Inc. debt and equity
securities, and other securities related thereto, in an aggregate amount not to
exceed $800,000,000 proposed to be sold thereunder, and to file the same, with
all exhibits thereto and other supporting documents, with such Commission,
granting unto said attorneys-in-fact, and each of them, full power and authority
to do and perform any and all acts necessary or incidental to the performance
and execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this ____ day of August, 1994.
/s/ Christopher B. Galvin
-------------------------
Christopher B. Galvin
<PAGE>
EXHIBIT 24
MOTOROLA, INC.
POWER OF ATTORNEY
KNOW ALL PEOPLE BY THESE PRESENTS, that the undersigned director of
Motorola, Inc., a Delaware corporation, does hereby make, constitute and appoint
Gary L. Tooker, Christopher B. Galvin and Carl F. Koenemann, and each or any one
of them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director of Motorola,
Inc. to a Registration Statement or Registration Statements, on Form S-3 or
other applicable form, and all amendments, including post-effective amendments,
thereto, to be filed by Motorola, Inc. with the Securities and Exchange
Commission in connection with the registration under the Securities Act of 1933,
as amended, of Motorola, Inc. debt and equity securities, and other securities
related thereto, in an aggregate amount not to exceed $800,000,000 proposed to
be sold thereunder, and to file the same, with all exhibits thereto and other
supporting documents, with such Commission, granting unto said attorneys-in-
fact, and each of them, full power and authority to do and perform any and all
acts necessary or incidental to the performance and execution of the powers
herein expressly granted.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this ____ day of August, 1994.
/s/ B. Kenneth West
---------------------
B. Kenneth West
<PAGE>
EXHIBIT 24
MOTOROLA, INC.
POWER OF ATTORNEY
KNOW ALL PEOPLE BY THESE PRESENTS, that the undersigned director of
Motorola, Inc., a Delaware corporation, does hereby make, constitute and appoint
Gary L. Tooker, Christopher B. Galvin and Carl F. Koenemann, and each or any one
of them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director of Motorola,
Inc. to a Registration Statement or Registration Statements, on Form S-3 or
other applicable form, and all amendments, including post-effective amendments,
thereto, to be filed by Motorola, Inc. with the Securities and Exchange
Commission in connection with the registration under the Securities Act of 1933,
as amended, of Motorola, Inc. debt and equity securities, and other securities
related thereto, in an aggregate amount not to exceed $800,000,000 proposed to
be sold thereunder, and to file the same, with all exhibits thereto and other
supporting documents, with such Commission, granting unto said attorneys-in-
fact, and each of them, full power and authority to do and perform any and all
acts necessary or incidental to the performance and execution of the powers
herein expressly granted.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this ____ day of August, 1994.
/s/ John T. Hickey
---------------------
John T. Hickey
<PAGE>
EXHIBIT 24
MOTOROLA, INC.
POWER OF ATTORNEY
KNOW ALL PEOPLE BY THESE PRESENTS, that the undersigned director of
Motorola, Inc., a Delaware corporation, does hereby make, constitute and appoint
Gary L. Tooker, Christopher B. Galvin and Carl F. Koenemann, and each or any one
of them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director of Motorola,
Inc. to a Registration Statement or Registration Statements, on Form S-3 or
other applicable form, and all amendments, including post-effective amendments,
thereto, to be filed by Motorola, Inc. with the Securities and Exchange
Commission in connection with the registration under the Securities Act of 1933,
as amended, of Motorola, Inc. debt and equity securities, and other securities
related thereto, in an aggregate amount not to exceed $800,000,000 proposed to
be sold thereunder, and to file the same, with all exhibits thereto and other
supporting documents, with such Commission, granting unto said attorneys-in-
fact, and each of them, full power and authority to do and perform any and all
acts necessary or incidental to the performance and execution of the powers
herein expressly granted.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this ____ day of August, 1994.
/s/ Samuel C. Scott III
-----------------------
Samuel C. Scott III
<PAGE>
EXHIBIT 24
MOTOROLA, INC.
POWER OF ATTORNEY
KNOW ALL PEOPLE BY THESE PRESENTS, that the undersigned director of
Motorola, Inc., a Delaware corporation, does hereby make, constitute and appoint
Gary L. Tooker, Christopher B. Galvin and Carl F. Koenemann, and each or any one
of them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director of Motorola,
Inc. to a Registration Statement or Registration Statements, on Form S-3 or
other applicable form, and all amendments, including post-effective amendments,
thereto, to be filed by Motorola, Inc. with the Securities and Exchange
Commission in connection with the registration under the Securities Act of 1933,
as amended, of Motorola, Inc. debt and equity securities, and other securities
related thereto, in an aggregate amount not to exceed $800,000,000 proposed to
be sold thereunder, and to file the same, with all exhibits thereto and other
supporting documents, with such Commission, granting unto said attorneys-in-
fact, and each of them, full power and authority to do and perform any and all
acts necessary or incidental to the performance and execution of the powers
herein expressly granted.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this ____ day of August, 1994.
/s/ Thomas J. Murrin
---------------------
Thomas J. Murrin
<PAGE>
EXHIBIT 24
MOTOROLA, INC.
POWER OF ATTORNEY
KNOW ALL PEOPLE BY THESE PRESENTS, that the undersigned director of
Motorola, Inc., a Delaware corporation, does hereby make, constitute and appoint
Gary L. Tooker, Christopher B. Galvin and Carl F. Koenemann, and each or any one
of them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director of Motorola,
Inc. to a Registration Statement or Registration Statements, on Form S-3 or
other applicable form, and all amendments, including post-effective amendments,
thereto, to be filed by Motorola, Inc. with the Securities and Exchange
Commission in connection with the registration under the Securities Act of 1933,
as amended, of Motorola, Inc. debt and equity securities, and other securities
related thereto, in an aggregate amount not to exceed $800,000,000 proposed to
be sold thereunder, and to file the same, with all exhibits thereto and other
supporting documents, with such Commission, granting unto said attorneys-in-
fact, and each of them, full power and authority to do and perform any and all
acts necessary or incidental to the performance and execution of the powers
herein expressly granted.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this ____ day of August, 1994.
/s/ Ann P. Jones
---------------------
Ann P. Jones
<PAGE>
EXHIBIT
MOTOROLA, INC.
POWER OF ATTORNEY
OF DIRECTOR AND/OR OFFICER
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or officer
of MOTOROLA, INC., a Delaware corporation, does hereby make, constitute and
appoint GARY L. TOOKER, CHRISTOPHER B. GALVIN AND CARL F. KOENEMANN, and each or
any one of them, the undersigned's true and lawful attorneys-in-fact, with power
of substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director and/or officer
of such Corporation to a Registration Statement or Registration Statements, on
Form S-3 or other applicable form, and all amendments, including post-effective
amendments, thereto, to be filed by such Corporation with the Securities and
Exchange Commission, Washington, D.C., in connection with the registration under
the Securities Act of 1933, as amended, of debt and equity securities, and other
securities related thereto, in an aggregate amount not to exceed $800,000,000
proposed to be sold by such Corporation, and to file the same, with all exhibits
thereto and other supporting documents, with such Commission, granting unto said
attorneys-in-fact, and each of them, full power and authority to do and perform
any and all acts necessary or incidental to the performance and execution of the
powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney this
day of August, 1994.
____________________________
David A. Christensen
<PAGE>
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)_____________________
HARRIS TRUST AND SAVINGS BANK
(Name of trustee)
Illinois 36-1194448
(State of Incorporation) (I.R.S. Employer Identification No.)
111 West Monroe Street; Chicago, Illinois 60603
(Address of principal executive offices)
Carolyn C. Potter, Harris Trust and Savings Bank,
111 West Monroe Street, Chicago, Illinois, 60603
312-461-2531
(Name, address and telephone number for agent for service)
MOTOROLA, INC.
(Name of obligor)
Delaware 36-1115800
(State of Incorporation) (I.R.S. Employer Identification No.)
1303 East Algonquin Road
Schaumburg, Illinois 60196
(Address of principal executive offices)
Debt Securities
(Title of indenture securities)
1
<PAGE>
1. GENERAL INFORMATION. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Commissioner of Banks and Trust Companies, State of Illinois,
Springfield, Illinois; Chicago Clearing House Association, 164
West Jackson Boulevard, Chicago, Illinois; Federal Deposit
Insurance Corporation, Washington, D.C.; The Board of Governors
of the Federal Reserve System, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Harris Trust and Savings Bank is authorized to exercise corporate
trust powers.
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.
3. thru 15.
NO RESPONSE NECESSARY
16. LIST OF EXHIBITS.
1. A copy of the articles of association of the Trustee is now in effect
which includes the authority of the trustee to commence business and
to exercise corporate trust powers.
A copy of the Certificate of Merger dated April 1, 1972 between Harris
Trust and Savings Bank, HTS Bank and Harris Bankcorp, Inc. which
constitutes the articles of association of the Trustee as now in
effect and includes the authority of the Trustee to commence business
and to exercise corporate trust powers was filed in connection with
the Registration Statement of Louisville Gas and Electric Company,
File No. 2-44295, and is incorporated herein by reference.
2. A copy of the existing by-laws of the Trustee.
A copy of the existing by-laws of the Trustee was filed in connection
with the Registration Statement of Hillenbrand Industries, Inc., File
No. 33-44086, and is incorporated herein by reference.
3. The consents of the Trustee required by Section 321(b) of the Act.
(included as Exhibit A on page 2 of this statement)
4. A copy of the latest report of condition of the Trustee published
pursuant to law or the requirements of its supervising or examining
authority.
(included as Exhibit B on page 3 of this statement)
2
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee,
HARRIS TRUST AND SAVINGS BANK, a corporation organized and existing under the
laws of the State of Illinois, has duly caused this statement of eligibility to
be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Chicago, and State of Illinois, on the 15th day of August, 1994.
HARRIS TRUST AND SAVINGS BANK
By: /s/ Carolyn C. Potter
----------------------------------
Carolyn C. Potter
Assistant Vice President
EXHIBIT A
The consents of the trustee required by Section 321(b) of the Act.
Harris Trust and Savings Bank, as the Trustee herein named, hereby consents that
reports of examinations of said trustee by Federal and State authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
request therefor.
HARRIS TRUST AND SAVINGS BANK
By: /s/ Carolyn C. Potter
----------------------------------
Carolyn C. Potter
Assistant Vice President
3
<PAGE>
EXHIBIT B
Attached is a true and correct copy of the statement of condition of Harris
Trust and Savings Bank as of June 30, 1994, as published in accordance with a
call made by the State Banking Authority and by the Federal Reserve Bank of the
Seventh Reserve District.
[LOGO] HARRIS BANK
Harris Trust and Savings Bank
111 West Monroe Street
Chicago, Illinois 60603
of Chicago, Illinois, And Foreign and Domestic Subsidiaries, at the close of
business on June 30, 1994, a state banking institution organized and operating
under the banking laws of this State and a member of the Federal Reserve System.
Published in accordance with a call made by the Commissioner of Banks and Trust
Companies of the State of Illinois and by the Federal Reserve Bank of this
District.
Bank's Transit Number 71000288
<TABLE>
<CAPTION>
THOUSANDS
ASSETS OF DOLLARS
<S> <C> <C>
CASH AND BALANCES DUE FROM DEPOSITORY INSTITUTIONS:
NON-INTEREST BEARING BALANCES AND CURRENCY AND COIN . . . . . . . . . . . . . . . . . $926,673
INTEREST BEARING BALANCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $686,713
SECURITIES:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. HELD-TO-MATURITY SECURITIES $731,783
B. AVAILABLE-FOR-SALE SECURITIES $1,502,220
FEDERAL FUNDS SOLD AND SECURITIES PURCHASED UNDER AGREEMENTS TO RESELL IN
DOMESTIC OFFICES OF THE BANK AND OF ITS EDGE AND AGREEMENT
SUBSIDIARIES, AND IN IBF'S:
FEDERAL FUNDS SOLD. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $421,221
SECURITIES PURCHASED UNDER AGREEMENTS TO RESELL . . . . . . . . . . . . . . . . . . . $74,156
LOANS AND LEASE FINANCING RECEIVABLES:
LOANS AND LEASES, NET OF UNEARNED INCOME. . . . . . . . . . . . . . . . . . . . . . . $6,081,473
LESS: ALLOWANCE FOR LOAN AND LEASE LOSSES . . . . . . . . . . . . . . . . . . . . . . $92,307
------------------
LOANS AND LEASES, NET OF UNEARNED INCOME, ALLOWANCE, AND RESERVE
(ITEM 4.A MINUS 4.B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $5,989,166
ASSETS HELD IN TRADING ACCOUNTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $355,239
PREMISES AND FIXED ASSETS (INCLUDING CAPITALIZED LEASES) . . . . . . . . . . . . . . . . . $137,238
OTHER REAL ESTATE OWNED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $1,831
INVESTMENTS IN UNCONSOLIDATED SUBSIDIARIES AND ASSOCIATED COMPANIES. . . . . . . . . . . . $566
CUSTOMER'S LIABILITY TO THIS BANK ON ACCEPTANCES OUTSTANDING . . . . . . . . . . . . . . . $71,652
INTANGIBLE ASSETS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $28,142
OTHER ASSETS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $546,710
-------------------------------
TOTAL ASSETS $11,473,310
-------------------------------
-------------------------------
LIABILITIES
DEPOSITS:
IN DOMESTIC OFFICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $4,793,158
NON-INTEREST BEARING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $2,586,164
INTEREST BEARING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $2,206,994
IN FOREIGN OFFICES, EDGE AND AGREEMENT SUBSIDIARIES, AND IBF'S. . . . . . . . . . . . . $2,498,415
4
<PAGE>
NON-INTEREST BEARING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $36,675
INTEREST BEARING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $2,461,740
FEDERAL FUNDS PURCHASED AND SECURITIES SOLD UNDER AGREEMENTS TO REPURCHASE IN DOMESTIC
OFFICES OF THE BANK AND OF ITS EDGE AND AGREEMENT SUBSIDIARIES, AND IN IBF'S:
FEDERAL FUNDS PURCHASED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $472,955
SECURITIES SOLD UNDER AGREEMENTS TO REPURCHASE. . . . . . . . . . . . . . . . . . . . . $1,540,788
TRADING LIABILITIES
OTHER BORROWED MONEY:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. WITH ORIGINAL MATURITY OF ONE YEAR OR LESS $431,252
B. WITH ORIGINAL MATURITY OF MORE THAN ONE YEAR $15,163
BANK'S LIABILITY ON ACCEPTANCES EXECUTED AND OUTSTANDING $71,652
SUBORDINATED NOTES AND DEBENTURES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . $235,000
OTHER LIABILITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $421,949
-------------------------------
TOTAL LIABILITIES $10,780,089
-------------------------------
-------------------------------
EQUITY CAPITAL
COMMON STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $100,000
SURPLUS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $275,000
A. UNDIVIDED PROFITS AND CAPITAL RESERVES. . . . . . . . . . . . . . . . . . . . . . . . . $321,267
B. NET UNREALIZED HOLDING GAINS (LOSSES) ON AVAILABLE-FOR-SALE SECURITIES $3,046
-------------------------------
TOTAL EQUITY CAPITAL $693,221
-------------------------------
-------------------------------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK, AND EQUITY CAPITAL. . . . . . . . . . . . $11,473,310
-------------------------------
-------------------------------
</TABLE>
I, David H. Charney, Vice President 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.
DAVID H. CHARNEY
7/29/1994
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 prepare in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and the
Commissioner of Banks and Trust Companies of the State of Illinois and is true
and correct.
ALAN G. McNALLY,
DONALD S. HUNT,
DARYL F. GRISHAM,
Directors.
STATE OF ILLINOIS, COUNTY OF COOK, ss:
Sworn to and subscribed before me this 29th day of July, 1994. My
commission expires April 22, 1996.
DIANALYNN GIRTEN
5
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(B)(2) _____
_________________________________
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
___________________________________
MOTOROLA, INC.
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE 33-1115800
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
1303 EAST ALGONQUIN ROAD
SCHAUMBURG, ILLINOIS 60196
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
DEBT SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE>
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate
trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A
PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
2
<PAGE>
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the
United States of America, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto
duly authorized, all in the City of Chicago and State of Illinois, on
the ___________ day of ______________________, 1994.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE,
BY /S/ R. D. MANELLA
R. D. MANELLA
VICE PRESIDENT
*Exhibits 1, 2, 3, and 4 are herein incorporated by reference to
Exhibits bearing identical numbers in Item 12 of the Form T-1 of The
First National Bank of Chicago, filed as Exhibit 26(b) to the
Registration Statement on Form S-3 of Dow Capital B.V. and The Dow
Chemical Company, filed with the Securities and Exchange Commission on
June 3, 1991 (Registration No. 33-36314).
3
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
__________________________________, 1994
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between Motorola, Inc. and
The First National Bank of Chicago, the undersigned, in accordance with Section
321(b) of the Trust Indenture Act of 1939, as amended, hereby consents that the
reports of examinations of the undersigned, made by Federal or State authorities
authorized to make such examinations, may be furnished by such authorities to
the Securities and Exchange Commission upon its request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
BY: /S/ R. D. MANELLA
R. D. MANELLA
VICE PRESIDENT
4
<PAGE>
EXHIBIT 7
A copy of the latest report of conditions of the trustee published
pursuant to law or the requirements of its supervising or examining
authority.
5
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: The First National Bank of Chicago Call Date: 3/31/94 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Suite 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR MARCH 31, 1994
All schedules are to be reported in thousands of dollars. Unless otherwise indicated, report the amount
outstanding of the last business day of the quarter.
SCHEDULE RC--BALANCE SHEET
C400 --
DOLLAR AMOUNTS IN ------------ ----
THOUSANDS RCFD BIL MIL THOU
----------------- ---- ------------
<S> <C> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RCA-A):
a. Noninterest-bearing balances and currency and coin(1) . . . . . . 0081 3,199,527 1.a.
b. Interest-bearing balances(2) . . . . . . . . . . . . . . . . . . . 0071 7,574,509 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) . . . . 1754 125,951 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D) . . . 1773 318,814 2.b.
3. Federal funds sold and securities purchased under agreements to
resell in domestic offices of the bank and its Edge and Agreement
subsidiaries, and in IBFs:
a. Federal Funds sold . . . . . . . . . . . . . . . . . . . . . . . . 0276 2,711,748 3.a.
b. Securities purchased under agreements to resell . . . . . . . . . 0277 695,723 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 2122 13,613,912 4.a.
b. LESS: Allowance for loan and lease losses . . . . . . . . . . . . RCFD 3123 352,027 4.b.
c. LESS: Allocated transfer risk reserve . . . . . . . . . . . . . . RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c) . . . . . . . . . . . . . . . 2125 13,261,885 4.d.
5. Assets held in trading accounts . . . . . . . . . . . . . . . . . . . 3545 8,561,533 5.
6. Premises and fixed assets (including capitalized leases) . . . . . . 2145 478,470 6.
7. Other real estate owned (from Schedule RC-M) . . . . . . . . . . . . 2150 95,399 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) . . . . . . . . . . . . . . . . . . . 2130 6,434 8.
9. Customers' liability to this bank on acceptances outstanding . . . . 2155 452,815 9.
10. Intangible assets (from Schedule RC-M) . . . . . . . . . . . . . . . 2143 140,023 10.
11. Other assets (from Schedule RC-F) . . . . . . . . . . . . . . . . . 2160 1,048,744 11.
12. Total assets (sum of items 1 through 11) . . . . . . . . . . . . . . 2170 38,671,575 12.
<FN>
__________________
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held in trading accounts.
</TABLE>
6
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: The First National Bank of Chicago Call Date: 3/31/94 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Suite 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
SCHEDULE RC-CONTINUED
DOLLAR AMOUNTS IN
THOUSANDS BIL MIL THOU
----------------- ------------
<S> <C> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1) . . . . . . . . . . . . . . . . . . RCON 2200 14,309,869 13.a.
(1) Noninterest-bearing(1) . . . . . . . . . . . . . . . . . . . RCON 6631 5,980,761 13.a.(1)
(2) Interest-bearing . . . . . . . . . . . . . . . . . . . . . . RCON 6636 8,329,108 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II) . . . . . . . . . . . . . . . RCFN 2200 9,813,189 13.b.
(1) Noninterest bearing . . . . . . . . . . . . . . . . . . . . RCFN 6631 374,630 13.b.(1)
(2) Interest-bearing RCFN 6636 9,438,559 13.b.(2)
14. Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of
its Edge and Agreement subsidiaries, and in IBFs:
a. Federal funds purchased . . . . . . . . . . . . . . . . . . . . RCFD 0278 580,252 14.a.
b. Securities sold under agreements to repurchase . . . . . . . . . RCFD 0279 1,543,995 14.b.
15. a. Demand notes issued to the U.S. Treasury . . . . . . . . . . . . RCON 2840 102,941 15.a.
b. Trading Liabilities . . . . . . . . . . . . . . . . . . . . . . RCFD 3548 5,353,511 15.b.
16. Other borrowed money:
a. With original maturity of one year or less . . . . . . . . . . . RCFD 2332 1,590,728 16.a.
b. With original maturity of more than one year . . . . . . . . . . RCFD 2333 254,470 16.b.
17. Mortgage indebtedness and obligations under capitalized
leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 2910 267,000 17.
18. Bank's liability on acceptance executed and outstanding . . . . . . RCFD 2920 452,815 18.
19. Subordinated notes and debentures . . . . . . . . . . . . . . . . . RCFD 3200 1,175,000 19.
20. Other liabilities (from Schedule RC-G) . . . . . . . . . . . . . . RCFD 2930 549,976 20.
21. Total liabilities (sum of items 13 through 20) . . . . . . . . . . RCFD 2948 35,993,746 21.
22. Limited-Life preferred stock and related surplus . . . . . . . . . RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus . . . . . . . . . . . RCFD 3838 0 23.
24. Common stock . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock) . . . . . RCFD 3839 2,254,940 25.
26. a. Undivided profits and capital reserves . . . . . . . . . . . . . RCFD 3632 222,981 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 8434 (8) 26.b.
27. Cumulative foreign currency translation adjustments . . . . . . . . RCFD 3284 (942) 27.
28. Total equity capital (sum of items 23 through 27) . . . . . . . . . RCFD 3210 2,677,829 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28) . . . . . . . . . . . . . . . RCFD 3300 38,671,575 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the most comprehensive level of auditing
work performed for the bank by independent external Number
-------------------
auditors as of any date during 1993 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 6724 2 M.1.
-------------------
1 = Independent audit of the bank conducted in accordance 4.= Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
<FN>
___________________
(1) Includes total demand deposits and noninterest-bearing time and savings deposits.
</TABLE>
7
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<MULTIPLIER> 1,000,000,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1994
<PERIOD-START> JAN-01-1994
<PERIOD-END> JUL-02-1994
<CASH> 683
<SECURITIES> 301
<RECEIVABLES> 3,168
<ALLOWANCES> 103
<INVENTORY> 2,372
<CURRENT-ASSETS> 7,767
<PP&E> 10,935
<DEPRECIATION> 4,713
<TOTAL-ASSETS> 15,456
<CURRENT-LIABILITIES> 5,615
<BONDS> 1,216
<COMMON> 0
0
0
<OTHER-SE> 7,208
<TOTAL-LIABILITY-AND-EQUITY> 15,456
<SALES> 10,132
<TOTAL-REVENUES> 0
<CGS> 6,287
<TOTAL-COSTS> 8,347<F1>
<OTHER-EXPENSES> 672<F2>
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 75
<INCOME-PRETAX> 1,038
<INCOME-TAX> 373
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 665
<EPS-PRIMARY> 1.14
<EPS-DILUTED> 1.14
<FN>
<F1>TOTAL COST INCLUDES Cost of Goods Sold and Selling, General, and Administrative
Expense.
<F2>OTHER EXPENSE INCLUDES Depreciation Expense.
</FN>
</TABLE>
