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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of Earliest Event Reported): FEBRUARY 9, 1996
LEGG MASON, INC.
(Exact Name of Registrant as Specified in Its Charter)
MARYLAND 1-8529 52-1200960
(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File No.) Identification No.)
111 SOUTH CALVERT STREET, BALTIMORE, MARYLAND 21202
(Address of Principal Executive Office) (Zip Code)
Registrant's Telephone Number, Including Area Code: (410) 539-0000
NOT APPLICABLE
(Former name or former address, if changed since last report)
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ITEM 5. OTHER EVENTS
On January 11, 1996, Legg Mason, Inc. (the "Company") filed a
registration statement on Form S-3 (File No. 333-00151) (the "Registration
Statement"), relating to $150,000,000 aggregate offering price of debt
securities, which may be convertible into shares of the Company's common stock,
par value $.10 per share, with the Securities and Exchange Commission (the
"SEC"). On February 5, 1996, the Registration Statement was declared effective
by the SEC. The Company has offered for sale $100,000,000 aggregate principal
amount of its 6 1/2% Senior Notes due February 15, 2006 (the "Senior Notes") in
an underwritten public offering through the several underwriters (the
"Underwriters") listed on Schedule I to the Pricing Agreement which is filed as
Exhibit 1.2 hereto. In connection with the foregoing, the Underwriting
Agreement and related Pricing Agreement, the Indenture and the First
Supplemental Indenture with respect to the offering of the Senior Notes are
attached hereto as Exhibits 1.1, 1.2, 4.1 and 4.2, respectively. The form of
the global note representing the Senior Notes is attached hereto as Exhibit
4.3, and the opinions of Rogers & Wells and Theodore S. Kaplan, Esq. are
attached hereto as Exhibits 5.1 and 5.2, respectively.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(c) Exhibits
1.1 Underwriting Agreement dated February 9, 1996 by the Company
1.2 Pricing Agreement dated February 9, 1996 among the Company and
the several Underwriters
4.1 Indenture dated February 9, 1996 for Senior Debt Securities
between the Company and the Trustee
4.2 First Supplemental Indenture dated February 9, 1996 between the
Company and the Trustee.
4.3 Form of Global Note representing $100,000,000 aggregate
principal amount of the Company's 6 1/2% Senior Notes due 2006
5.1 Opinion of Rogers & Wells
5.2 Opinion of Theodore S. Kaplan, Esq.
23.1 Consent of Rogers & Wells (included in Exhibit 5.1)
23.2 Consent of Theodore S. Kaplan, Esq. (included in Exhibit 5.2)
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
LEGG MASON, INC.
By: /s/ Theodore S. Kaplan
--------------------------------
Theodore S. Kaplan
Senior Vice President
Date: February 12, 1996
S-1
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EXHIBIT INDEX
EXHIBIT
1.1 Underwriting Agreement dated February 9, 1996 by the Company
1.2 Pricing Agreement dated February 9, 1996 among the Company and
the several Underwriters
4.1 Indenture dated February 9, 1996 for Senior Debt Securities
between the Company and the Trustee
4.2 First Supplemental Indenture dated February 9, 1996 between the
Company and the Trustee
4.3 Form of Global Note representing $100,000,000 aggregate
principal amount of the Company's 6 1/2% Senior Notes due 2006
5.1 Opinion of Rogers & Wells
5.2 Opinion of Theodore S. Kaplan, Esq.
23.1 Consent of Rogers & Wells (included in Exhibit 5.1)
23.2 Consent of Theodore S. Kaplan, Esq. (included in Exhibit 5.2)
E-1
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LEGG MASON, INC.
(a Maryland corporation)
Debt Securities
UNDERWRITING AGREEMENT
February 9, 1996
To the Underwriters
to be named in the applicable
Pricing Agreement supplemental hereto
Dear Sirs:
Legg Mason, Inc., a Maryland corporation (the "Company"),
proposes to sell up to $150,000,000 aggregate principal amount, or its
equivalent based on the applicable exchange rate at the time of offering, in
such foreign currencies or units of two or more thereof as the Company shall
designate at the time of offering, of its senior debt securities ("Senior Debt
Securities"), and its subordinated debt securities ("Subordinated Debt
Securities," and, together with the Senior Debt Securities, the "Debt
Securities"). Unless otherwise specified in the applicable Pricing Agreement
(as defined below), the Senior Debt Securities are to be issued under an
indenture (the "Senior Indenture") between the Company and The Bank of New
York, as trustee (the "Senior Debt Trustee"). Unless otherwise specified in
the applicable Pricing Agreement, the Subordinated Debt Securities are to be
issued under an indenture (the "Subordinated Indenture") between the Company
and The Bank of New York, as trustee (the "Subordinated Debt Trustee"). The
Senior Indenture and the Subordinated Indenture are collectively referred to
herein as the "Indentures" and the Senior Debt Trustee and the Subordinated
Debt Trustee are collectively referred to herein as the "Trustees." Each issue
of Debt Securities may vary, where applicable, as to aggregate principal
amount, maturity, interest rate or rates and timing of payments thereof,
redemption provisions, conversion provisions and sinking fund requirements, if
any, and any other variable terms which the
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applicable Indenture contemplates may be set forth in the Debt Securities as
issued from time to time. As used herein, "Securities" shall mean the Debt
Securities covered by the applicable Pricing Agreement.
Whenever the Company determines to make an offering of Debt
Securities, it will enter into an agreement (a "Pricing Agreement") providing
for the sale of such 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 Securities or as members of an underwriting
syndicate and any underwriters substituted pursuant to Section 10 hereof). The
Pricing Agreement, which shall be substantially in the form of Exhibit A
hereto, may take the form of an exchange of any standard form of written
telecommunication between you and the Company. The Pricing Agreement relating
to each offering of Securities shall specify such applicable information as is
indicated in Exhibit A hereto. Each offering of Securities will be governed by
this Agreement, as supplemented by the applicable Pricing Agreement, and this
Agreement and such Pricing Agreement shall inure to the benefit of and be
binding upon each Underwriter participating in the offering of such Securities.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-00151) relating to the Debt Securities and the offering thereof from time
to time in accordance with Rule 415 under the Securities Act of 1933 (the "1933
Act") and the rules and regulations thereunder (the "1933 Act Regulations"),
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 respective Indentures have been qualified under the
Trust Indenture Act of 1939 (the "1939 Act") and the rules and regulations of
the Commission thereunder (collectively, the "1939 Act Regulations"). Such
registration statement as amended and the prospectus relating to the sale of
Debt 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 (the "1934 Act"),
the 1933 Act or otherwise, are collectively
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referred to herein as the "Registration Statement" and the "Prospectus,"
respectively; provided, however, that a supplement of the Prospectus
contemplated by Section 3(a) hereof and any term sheet as contemplated by Rule
434 of the 1933 Act Regulations (a "Prospectus Supplement") shall be deemed to
have supplemented the Prospectus only with respect to the offering of
Securities to which it relates.
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" in
the Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be;
and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and include
the filing of any document under the 1934 Act which is or is deemed to be
incorporated by reference in the Registration Statement or the Prospectus, as
the case may be.
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 execution of the
Pricing Agreement (such latter date being hereinafter referred to as the
"Representation Date") as follows:
(i) The Company meets the requirements for use of
Form S-3 under the 1933 Act and at the time the Registration Statement
became effective and as of the applicable Representation Date, the
Registration Statement and the Prospectus complied in all material
respects with the requirements of the 1933 Act, the 1933 Act
Regulations, the 1939 Act and the 1939 Act Regulations, and 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 not misleading. The Prospectus, at the
time the Registration Statement became effective and as of the
applicable Representation Date and at the Closing Time referred to in
Section 2, did not, and will
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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 any
Underwriter expressly for use in the Registration Statement or the
Prospectus (or to that part of the Registration Statement that shall
constitute the Statement of Eligibility under the 1939 Act (Form T-1)
of the respective Trustees).
(ii) The accountants who certified the financial
statements and supporting schedules incorporated in the Registration
Statement are independent public accountants for the Company as
required by the 1933 Act and the 1933 Act Regulations.
(iii) The financial statements, including the notes
thereto, incorporated in the Registration Statement and the Prospectus
present fairly the financial position of the Company and its
consolidated subsidiaries as at the dates indicated and the results of
their operations for the periods specified; except as otherwise stated
in the Registration Statement, said financial statements have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved; and the
supporting schedules incorporated in the Registration Statement
present fairly the information required to be stated therein.
(iv) Since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
except as otherwise stated therein, (A) there has been no material
adverse change in the condition, financial or otherwise, or in the
earnings, affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business, (B) there have been no transactions
entered into by the Company or any of its subsidiaries, other than
those in the ordi-
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nary course of business, that are material to the Company and its
subsidiaries considered as one enterprise and (C) except for
regular quarterly dividends, there has been no dividend or
distribution of any kind declared, paid or made by the Company on
any class of its capital stock.
(v) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Maryland with corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Prospectus or documents incorporated by reference therein; and the
Company is not required to be qualified as a foreign corporation to
transact business in any other jurisdiction.
(vi) Each subsidiary (a "Subsidiary") of the Company has
been duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has
corporate power and authority to own, lease and operate its properties
and to conduct its business as described or incorporated by reference
in the Prospectus and is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which
such qualification is required, except to the extent that the failure
to be so qualified or be in good standing would not have a material
adverse effect on the Subsidiaries taken as a whole. All of the issued
and outstanding capital stock of each Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and is
owned by the Company, directly or through subsidiaries, free and clear
of any mortgage, pledge, lien, encumbrance, claim or equity.
(vii) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus under "Capitalization"
or in documents incorporated therein by reference (except for
subsequent issuances, if any, pursuant to reservations, agreements,
employee benefit plans or the exercise of convertible securities
referred to in the Prospectus or in documents incorporated therein by
reference); the shares of issued and outstanding
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capital stock of the Company have been duly authorized and validly
issued and are fully paid and non-assessable; any shares of the
Company's common stock, par value $.10 per share (the "Common Stock"),
initially issuable upon conversion of Securities that are designated in
a Pricing Agreement as being convertible into Common Stock
("Convertible Debt Securities") have been duly authorized and reserved
for issuance (or will have been so authorized or reserved prior to each
issuance of such Securities), and such shares when issued and delivered
in accordance with the provisions of the Securities and Indenture, will
be validly issued, fully paid and non-assessable and conform to the
description of the Common Stock in the Prospectus.
(viii) The Securities have been duly authorized for
issuance pursuant to this Agreement (or will have been so authorized
prior to each issuance of Securities) and, when executed, issued and
delivered by the Company and authenticated by the Trustee pursuant to
the provisions of the applicable Indenture and this Agreement against
payment of the consideration set forth in the Pricing Agreement, will
have been duly executed, issued and delivered by the Company and will
constitute legal, valid and binding obligations of the Company
entitled to the benefits of the applicable Indenture and enforceable
against the Company in accordance with their terms, except as the
enforcement thereof may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or similar laws now or
hereafter in effect relating to creditors' rights generally and (b)
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity). The Indentures have
been duly authorized by the Company, will be substantially in the
forms heretofore delivered to you and, when duly executed and
delivered by the Company and the Trustees, will constitute legal,
valid and binding obligations of the Company enforceable against the
Company in accordance with their respective terms, except as the
enforcement thereof may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or similar laws now or
hereafter in effect relating to creditors' rights generally and (b)
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general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity). The Securities and
the Indentures conform in all material respects to all statements
relating thereto contained in the Prospectus.
(ix) Neither the Company nor any of the Subsidiaries
is in violation of its charter, or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company or any
of the Subsidiaries is a party or by which it or any of them may be
bound. The execution and delivery of this Agreement, the applicable
Indenture and the Pricing Agreement and the consummation of the
transactions contemplated herein have been, or will be, duly
authorized by all necessary corporate action and do not and will not
conflict with or constitute a breach of, or default under, or result
in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any of the Subsidiaries
pursuant to, any material contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company or any
of the Subsidiaries is a party or by which it or any of them may be
bound, or to which any of the property or assets of the Company or any
of the Subsidiaries is subject, nor will such action result in any
violation of the provisions of the charter or by-laws of the Company
or any applicable law or administrative regulation or any
administrative or court decree and no consent, approval, authorization
or order of any court or governmental authority or agency is required
for the consummation by the Company of the transactions contemplated
by this Agreement, except such as have been obtained under the 1933
Act, the 1933 Act Regulations, the 1939 Act or the 1939 Act
Regulations or state securities or Blue Sky laws in connection with
the purchase and distribution of the Securities by the Underwriters.
(x) The Company and the Subsidiaries own or possess
or have obtained all material governmental licenses, permits, consents,
orders, approvals and other authorizations necessary to lease or own,
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as the case may be, and to operate their respective properties and to
carry on their respective businesses as presently conducted.
(xi) No labor disturbance by the employees of the
Company or any Subsidiary exists or, to the best knowledge of the
Company, is imminent, and the Company is not aware of any existing or
imminent labor disturbance by the employees of any of its principal
suppliers or contractors which might be expected to materially
adversely affect the conduct of the business, operations, financial
condition or income of the Company and the Subsidiaries, considered as
one enterprise.
(xii) There is no action, suit or proceeding before
or by any court or governmental agency or body, domestic or foreign,
now pending, or, to the knowledge of the Company, threatened against
or affecting the Company or any of the Subsidiaries, which is required
to be disclosed in the Registration Statement (other than as disclosed
therein or in documents incorporated therein by reference) and is not
so disclosed, or which might result in any material adverse change in
the condition, financial or otherwise, or in the earnings, affairs or
business prospects of the Company and the Subsidiaries taken as one
enterprise or which might materially and adversely affect the
properties or assets thereof or which might materially or adversely
affect the consummation of this Agreement; all pending legal or
governmental proceedings to which the Company or any Subsidiary is a
party or of which any of their property is the subject which are not
described in the Registration Statement or documents incorporated
therein by reference, including ordinary routine litigation incidental
to the business, are, considered in the aggregate, not material to the
Company and the Subsidiaries taken as one enterprise; and there are no
contracts or documents of the Company or any of the 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.
(xiii) The Company and the Subsidiaries own or
possess, or can acquire on reasonable terms,
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adequate trademarks, service marks and trade names necessary to conduct
the business now operated by them, and neither the Company nor any of
the Subsidiaries has received any notice of infringement of or conflict
with asserted rights of others with respect to any of the foregoing
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in any material adverse
change in the condition, financial or otherwise, or in the earnings,
affairs or business prospects of the Company and the Subsidiaries,
considered as one enterprise.
(xiv) Legg Mason Wood Walker, Incorporated ("LMWW")
and Howard, Weil, Labouisse, Friedrichs Incorporated ("HWLF") have
each been duly registered as a broker dealer under the 1934 Act, and
each is a member of the National Association of Securities Dealers,
Inc. ("NASD"), the Securities Investor Protection Corporation ("SIPC")
and the Stock Exchanges indicated in the documents incorporated by
reference in the Registration Statement; LMWW, Legg Mason Fund
Adviser, Inc. ("LMFA"), Legg Mason Capital Management, Inc. ("LMCM"),
Batterymarch Financial Management, Inc. ("BFM"), Bartlett & Co.
("Bartlett"), Gray, Seifert & Co., Inc. ("GSC"), and Western Asset
Management Company ("WAM") have each been duly registered as an
investment adviser under the Investment Advisers Act of 1940, as
amended (the "Investment Advisers Act"); each of LMWW, HWLF, LMFA,
LMCM, BFM, Bartlett, GSC and WAM is in compliance in all material
respects with all applicable laws, rules, regulations, orders, by-laws
and similar requirements in connection with such registrations and
memberships; and each of LMWW and HWLF is also duly registered,
licensed or qualified as a broker-dealer, and each of LMWW, LMFA,
LMCM, BFM, Bartlett, GSC and WAM is also duly registered, licensed or
qualified as an investment adviser, and is in each case in compliance
in all material respects with all laws, rules, regulations, orders and
similar requirements in connection therewith, in all states in which
the conduct of each of its businesses as presently conducted requires
such registration, licensing or qualification.
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(xv) The Company has not taken and will not take,
directly or indirectly, any action designed to, or which might be
reasonably expected to, cause or result in stabilization or
manipulation of the price of the Securities or, in the case of an
offering of Convertible Debt Securities, the Common Stock.
(xvi) The Company has complied and will comply with
all the provisions of Florida H.B. 1771, codified as Section 517.075 of
the Florida statutes, as contemplated by the regulations promulgated
thereunder relating to issuers doing business with Cuba.
(xvii) The documents (as amended prior to the date
hereof, as the case may be) incorporated or deemed to be 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 under the 1934 Act (the "1934 Act
Regulations"), and, when read together with the other information in
the Prospectus, at the time the Registration Statement and any
amendments thereto become effective and at the Closing Time (as defined
below), will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(b) Any certificate signed by any officer of the
Company and delivered to the Underwriters or to counsel for the Underwriters
shall be deemed a representation and warranty by the Company to each
Underwriter as to the matters covered thereby.
SECTION 2. Purchase and Sale. The several commitments of the
Underwriters to purchase Securities pursuant to any Pricing 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.
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Payment of the purchase price for, and delivery of, the
Securities shall be made at the date, time and location specified in
the applicable Pricing Agreement relating to the Securities, or at such
other date, time and location as shall be agreed upon by the
Representatives (as defined in Section 3 below) and the Company, or as
shall otherwise be provided in Section 10 (such time and date of
payment and delivery being herein called the "Closing Time"). Unless
otherwise specified in the applicable Pricing Agreement, payment shall
be made to the Company by wire transfer of same-day funds at the
Closing Time to an account or accounts designated by the Company
against delivery to the Representatives for the respective accounts of
the Underwriters of the Securities to be purchased by them (unless such
Securities are issuable only in the form of one or more global
Securities registered in the name of a depository or a nominee of a
depository, in which event the Underwriters' interest in such global
certificate shall be noted in a manner satisfactory to the Underwriters
and their counsel). Such Securities shall be in such authorized
denominations and registered in such names as the Representatives may
request in writing at least two business days prior to the applicable
Closing Time. Such Securities, which may be in temporary form, will be
made available for examination and packaging by the Representatives on
or before the first business day prior to Closing Time.
SECTION 3. Covenants of the Company. The Company covenants
with each Underwriter as follows:
(a) Immediately following the execution of each
Pricing Agreement, the Company will prepare a Prospectus Supplement
setting forth the principal amount of Debt Securities covered thereby
and their terms not otherwise specified in the applicable Indenture,
whether the Debt Securities will be Senior Debt Securities or
Subordinated Debt Securities, the names of the Underwriters
participating in the offering and the principal amount of Debt
Securities which each severally has agreed to purchase, the names of
any Underwriters acting as manager or co-managers in connection with
the offering (the "Representatives" which term shall include each
Underwriter in the event that there be no manager or co-manager), the
price at which the Securities are to be purchased by the Underwriters
from the Company, the initial public offering price, the selling
concession and
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reallowance, if any, and such other information as you and the Company deem
appropriate in connection with the offering of the Securities. The Company will
promptly transmit copies of the Prospectus Supplement to the Commission for
filing pursuant to Rule 424 of the 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) The Company will notify the Underwriters
promptly, and confirm the notice in writing, (i) of the effectiveness of any
amendment to the Registration Statement, (ii) of the receipt of any comments
from the Commission with respect to the Registration Statement, the Prospectus
or any Prospectus Supplement, (iii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus or for additional information, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose and (v) 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. The Company
will make every reasonable effort to prevent the issuance of any stop order
and, if any stop order is issued, to obtain the lifting thereof at the earliest
possible moment.
(c) The Company will give the Underwriters notice of
its intention to file or prepare any amendment to the Registration Statement or
any amendment or supplement to the Prospectus, whether pursuant to the 1933
Act, the 1934 Act or otherwise, will furnish the Underwriters with copies of
any such amendment or supplement 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 the Representatives
or counsel to the Underwriters shall reasonably object, unless required to do
so pursuant to the applicable federal securities laws.
(d) The Company will deliver to the Representatives
signed copies of the Registration Statement as initially filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to
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be incorporated by reference therein) and will also deliver to the Underwriters
as many conformed copies of the Registration Statement as initially filed and
of each amendment thereto (without exhibits) as the Underwriters may reasonably
request.
(e) If at any time when the Prospectus is required
by the 1933 Act to be delivered in connection with sales of Securities any
event shall occur or condition exist as a result of which it is necessary, in
the opinion of counsel for the Underwriters, to further 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 to make the
statements therein not misleading in the light of the circumstances existing at
the time it is delivered to a purchaser or if it shall be necessary, in the
view of such counsel, at any such time to amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of the
1934 Act or the 1934 Act Regulations, the Company will promptly prepare and
file with the Commission such amendment or supplement, whether by filing
documents pursuant to the 1934 Act or otherwise, as may be necessary to correct
such untrue statement or omission or make the Registration Statement comply
with such requirements.
(f) The Company will endeavor, in cooperation with
the Underwriters, to qualify the Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions of the United
States as the Representatives may designate and will maintain such
qualification in effect for as long as may be required for the distribution of
the Securities; 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. In each jurisdiction in which the Securities 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 a
period of not less than one year from the effective date of the Registration
Statement.
(g) With respect to each sale of Securities, the
Company will make generally available to its security holders as soon as
practicable, but not later than 60 days after the close of the period covered
there-
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by, an earnings statement (in a form which complies with the provisions of Rule
158 under the 1933 Act Regulations) covering a twelve month period beginning 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.
(h) The Company will use the net proceeds received
by it from the sale of the Securities in the manner specified in the Prospectus
under "Use of Proceeds."
(i) The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act, will file all
documents required to be filed with the Commission pursuant to Section 13, 14
or 15 of the 1934 Act within the time periods required by the 1934 Act and the
1934 Act Regulations.
(j) Between the date of any Pricing Agreement and
the later of termination of any trading restrictions or Closing Time with
respect to the Securities, the Company will not, without your prior written
consent, directly or indirectly, offer to sell, sell, enter into an agreement
to sell, grant any option for the sale of, or otherwise dispose of, any new
issue of debt securities of the Company with a maturity of more than one year,
including additional Debt Securities (except for (i) any debt securities issued
upon exercise of warrants, (ii) any debt securities of the Company denominated
in a currency other than the currency in which the Securities subject to such
Pricing Agreement shall be denominated) or any warrants for the purchase of
debt securities of the Company with a maturity of more than one year. If the
Securities designated in the applicable Pricing Agreement are convertible into
Common Stock, for a period of 90 days from the date of the applicable Pricing
Agreement, the Company will not, without your prior written consent, directly
or indirectly, offer to sell, sell, enter into an agreement to sell, grant any
option for the sale of, or otherwise dispose of, any Common Stock, or security
convertible into or exchangeable for Common Stock, of the Company other than
pursuant to existing employee incentive plans as set forth in the Registration
Statement or documents incorporated by reference therein or in connection with
an acquisition in which the issuance of the securities is exempt from
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<PAGE> 15
registration under the 1933 Act (including resales by the recipients of shares
in any such acquisition).
(k) If any Securities are designated by the
applicable Pricing Agreement to be convertible into Common Stock, the Company
will reserve and keep available at all times, free of preemptive rights, shares
of Common Stock of the Company for the purpose of enabling the Company to
satisfy any obligations to issue shares of its Common stock upon conversion of
the Securities.
SECTION 4. Payment of Expenses. The Company will pay all
expenses incident to the performance of its obligations under this Agreement,
including (i) the printing and filing of the Registration Statement as
originally filed and of each amendment thereto, (ii) the printing of this
Agreement and each Pricing Agreement covered below, (iii) the preparation,
issuance and delivery of the certificates for the Securities to the
Underwriters, (iv) the fees and disbursements of the Company's counsel and
accountants, (v) the qualification of the Securities under securities laws in
accordance with the provisions of Section 3(f) hereof, 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 and any
Legal Investment Survey, (vi) the printing and delivery to the Underwriters in
quantities as hereinabove stated of copies of the Registration Statement as
originally filed and of each amendment thereto, of any preliminary prospectus,
and of the Prospectus and any amendments or supplements thereto, (vii) the fees
and expenses of the applicable Trustee, (viii) the printing and delivery to the
Underwriters of copies of the Blue Sky Survey, the applicable Indenture and any
Legal Investment Survey, (ix) the fees charged by the rating agencies in
connection with the rating of the Securities, (x) the fee of the National
Association of Securities Dealers, Inc. and (xi) the fees and expenses, if any,
incurred in connection with the listing of the Securities on the New York Stock
Exchange or any other national exchange.
If a Pricing Agreement is terminated by the Representatives in
accordance with the provisions of Section 5 or Section 9(a)(i) hereof, the
Company shall reimburse the Underwriters named in such Pricing Agreement for
all of their out-of-pocket expenses, including
15
<PAGE> 16
the reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The
obligations of the Underwriters to purchase Securities pursuant to any Pricing
Agreement are subject to the accuracy of the representations and warranties of
the Company herein contained, to the accuracy of the statements of the
Company's officers made in any certificate furnished pursuant to the provisions
hereof, to the performance by the Company of all of its covenants and other
obligations hereunder and to the following further conditions:
(a) At the applicable Closing Time (i) no stop order
suspending the effectiveness of the Registration Statement shall have been
issued under the 1933 Act, and no proceedings under the 1933 Act therefor
shall have been initiated or threatened by the Commission, and (ii) the rating
assigned by any nationally recognized securities rating agency to any debt
securities, preferred stock or other obligations of the Company as of the date
of the applicable Pricing Agreement shall not have been lowered since the
execution of such Pricing Agreement and no notice shall have been given of any
intended or potential down-grading or of any review for a possible change that
does not indicate the direction of the possible change, in the rating accorded
any of the Company's securities by any "nationally recognized statistical
rating organization," as such term is defined for purposes of Rule 436(g)(2)
under the 1933 Act.
(b) At Closing Time the Underwriters shall have
received:
(1) The favorable opinion, dated as of Closing Time,
of Theodore S. Kaplan, General Counsel of the Company, in form and
substance reasonably satisfactory to counsel for the Underwriters, to
the effect that:
(i) The Company has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of the State of Maryland.
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<PAGE> 17
(ii) The Company has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement.
(iii) To the best of his knowledge and
information, the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in
which the conduct of its business requires such qualification and the
failure to so qualify would not have a material adverse effect on the
Company.
(iv) The authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectus under
"Capitalization" or in documents incorporated therein by reference
(except for subsequent issuances, if any, pursuant to reservations,
agreements, employee benefit plans or the exercise of convertible
securities referred to in the Prospectus or in documents incorporated
therein by reference), and the shares of issued and outstanding Common
Stock have been duly authorized and validly issued and are fully paid
and nonassessable.
(v) The Securities, including any Securities
in global form, are in the form contemplated by the applicable
Indenture and have been duly authorized for issuance and sale to the
Underwriters by all necessary corporate action. The Securities have
been duly executed, issued and delivered by the Company and, when
authenticated as specified in the applicable Indenture and delivered
against payment pursuant to this Agreement, as supplemented by the
applicable Pricing Agreement, will be legal, valid and binding
obligations of the Company entitled to the benefits of the applicable
Indenture and enforceable against the Company in accordance with their
terms, except as the enforcement thereof may be limited by (a)
bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or similar laws now or hereafter in effect relating to
creditors' rights generally, (b) general principles of equity
(regardless of whether enforceability is considered in a proceeding at
law or in equity) and (c) requirements that a claim (or a foreign
currency judgment in respect of such claim)
17
<PAGE> 18
be converted into United States dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law. The
definitive Securities in bearer form issuable in exchange for any
global Security, when duly executed, authenticated, issued and
delivered in exchange for such global Security as specified in the
applicable Indenture, will be valid and binding obligations of the
Company, enforceable in accordance with their terms, except as the
enforcement thereof may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or similar laws now or
hereafter in effect relating to creditors' rights generally, (b)
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity) and (c) requirements
that a claim (or a foreign currency 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. The
applicable Indenture has been duly authorized, executed and delivered
by the Company, is substantially in the form heretofore delivered to
you and, when duly executed and delivered by the applicable Trustee,
will constitute a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except
as the enforcement thereof may be limited by (a) bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or similar
laws now or hereafter in effect relating to creditors' rights
generally and (b) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity).
(vi) Each principal Subsidiary of the
Company set forth on Schedule II to the applicable Pricing Agreement
(the "Principal Subsidiaries") has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and, to the best
of his knowledge, is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in
which the conduct of its
18
<PAGE> 19
business requires such qualification and the failure to so qualify
would have a material adverse effect on such Principal Subsidiary.
All of the issued and outstanding capital stock of each Principal
Subsidiary has been duly authorized and validly issued, and is fully
paid and nonassessable, and all of such capital stock is, to the best
of his knowledge and information, owned by the Company, directly or
through subsidiaries, free and clear of any pledge, lien, encumbrance,
claim or equity.
(vii) LMWW and HWLF have each been duly
registered as a broker-dealer under the 1934 Act and each is a member
of the NASD, the SIPC and the Stock Exchanges indicated in the
documents incorporated by reference in the Registration Statement;
LMWW, LMFA, LMCM, BFM, Bartlett, GSC, and WAM have each been duly
registered as an investment adviser under the Investment Advisers Act;
to the best of his knowledge, each of LMWW, HWLF, LMFA, LMCM, BFM,
Bartlett, GSC, and WAM is in compliance in all material respects with
all material applicable laws, rules, regulations, orders, by-laws and
similar requirements in connection with such registrations and
memberships; and to the best of his knowledge, each of LMWW and HWLF
is also duly registered, licensed or qualified as a broker-dealer, and
each of LMWW, LMFA, LMCM, BFM, Bartlett, GSC, and WAM is also duly
registered, licensed or qualified as an investment adviser, and is in
each case in compliance in all material respects with all material
laws, rules, regulations, orders and similar requirements in
connection therewith, in all states in which the conduct of each of
its businesses as presently conducted requires such registration,
licensing or qualification.
(viii) This Agreement and the applicable
Pricing Agreement have been duly authorized, executed and delivered by
the Company.
(ix) At the time the Registration Statement
became effective and at the Representation Date, the Registration
Statement (other than the financial statements and supporting
schedules and any other financial or statistical data included or
incorporated by reference therein, as to which no
19
<PAGE> 20
opinion need be rendered) complied as to form in all material respects
with the applicable requirements of the 1933 Act, the 1933 Act
Regulations, the 1939 Act and the 1939 Act Regulations.
(x) The applicable Indenture and Securities
conform in all materials respects to the description thereof
contained in the Prospectus.
(xi) The Registration Statement is effective
under the 1933 Act and, to the best of his 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.
(xii) The applicable Indenture is qualified
under the 1939 Act.
(xiii) Any shares of Common Stock initially
issuable upon conversion of the Securities will be, when the
Securities are issued, duly and validly authorized and reserved for
issuance, and such shares, when issued and delivered in accordance
with the provisions of the Securities and the applicable Indenture,
will be duly and validly issued and fully paid and non-assessable; the
issuance of such shares upon conversion will not be subject to
preemptive rights; and the Common Stock conforms in all material
respects to the description thereof in the Prospectus.
(xiv) To the best of his knowledge, there
are no legal or governmental proceedings pending or threatened which
are required to be disclosed in the Registration Statement, other than
those disclosed therein or in documents incorporated by reference
therein, and all pending legal or governmental proceedings to which
the Company or any Principal Subsidiary is a party or to which any of
their property is subject which are not described in the Registration
Statement or documents incorporated by reference therein, including
ordinary routine litigation incidental to the business, are considered
in the aggregate, not material.
20
<PAGE> 21
(xv) To the best of his 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 Registration Statement or to be
filed as exhibits thereto other than those described or referred to
therein or filed or incorporated by reference as exhibits thereto, the
descriptions thereof or references thereto are correct, and no default
exists in the due performance or observance of any material
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument so described, referred to, filed or incorporated by
reference.
(xvi) No authorization, approval, consent or
order of any court or governmental agency is required in connection
with the sale of the Securities to the Underwriters, except such as
may be required under the 1933 Act, the 1933 Act Regulations, the 1939
Act, the 1939 Act Regulations or state securities laws or the NYSE;
and, to the best of his knowledge, the execution and delivery of this
Agreement, the Pricing Agreement, the applicable Indenture and the
consummation of the transactions contemplated herein will not conflict
with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of the Principal Subsidiaries
pursuant to, any contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which the Company or any of them is a
party or by which it or any of them may be bound, or to which any of
the property or assets of the Company or any of them is subject; 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 decree.
(xvii) Each document filed pursuant to the
1934 Act (other than the financial statements and supporting schedules
included therein, as to which no opinion need be rendered) and
incorporated or deemed to be incorporated by reference in the
Prospectus complied when so filed as to form in all
21
<PAGE> 22
material respects with the 1934 Act and the 1934 Act Regulations.
In rendering the opinions set forth in this paragraph, Theodore
S. Kaplan may rely on such opinions of counsel as he may reasonably request,
provided that such counsel is reasonably satisfactory to counsel for the
Underwriters and that copies of such opinions are attached to his opinion.
(2) The favorable opinion, dated as of Closing Time,
of Rogers & Wells, counsel for the Company, with respect to the
matters set forth in (i), (v), (viii) through (xiii) and (xvii) of
subsection (b)(1) of this Section. In rendering such opinion, Rogers
& Wells may rely as to the matters set forth in (xvii) of subsection
(b)(1) of this Section and the incorporation of the Company and all
other matters governed by Maryland law upon the opinion of Theodore S.
Kaplan referred to above.
(3) The favorable opinion, dated as of Closing Time,
of Skadden, Arps, Slate, Meagher & Flom, counsel for the Underwriters,
with respect to the matters set forth in (i), (v) and (viii) through
(xiii) of subsection (b)(1) of this Section. In rendering such
opinion, Skadden, Arps, Slate, Meagher & Flom may rely as to the
incorporation of the Company and all other matters governed by
Maryland law upon the opinion of Theodore S. Kaplan referred to above.
(4) In giving their opinions required by subsections
(b)(1), (b)(2) and (b)(3) of this Section, Theodore S. Kaplan, Rogers
& Wells and Skadden, Arps, Slate, Meagher & Flom, respectively, shall
each additionally state that although they are not passing upon, and
do not assume any responsibility for, the accuracy, completeness or
fairness of the statements contained in the Registration Statement and
Prospectus and have not made any independent check or verification
thereof, on the basis of the foregoing (relying as to materiality upon
the opinions of officers and other representatives of the Company)
nothing has come to their respective attention that would lead them to
believe that the Registration Statement, at the time it became effec-
22
<PAGE> 23
tive, 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, 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 (it being understood that none of them
expresses any belief with respect to the financial statements and
related schedules or other financial and statistical data included or
incorporated by reference in the Registration Statement or the
Prospectus or with respect to the Statement of Eligibility on Form T-1
of the Trustee).
(c) At Closing Time, there shall not have been,
since the date of the applicable Pricing Agreement or since the respective
dates as of which information is given in the Registration Statement and the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and the Subsidiaries taken as a whole, whether or not arising in the
ordinary course of business, and the Underwriters shall have received a
certificate of the Chairman of the Board, the President or a Vice President of
the Company and of the chief financial officer or chief accounting officer of
the Company, dated as of Closing Time, to the effect that (i) there has been no
such material adverse change, (ii) the representations and warranties in
Section 1 hereof are true and correct with the same force and effect as though
expressly made at and as of Closing Time, (iii) the Company has complied in all
material respects with all agreements and satisfied all conditions on its part
to be performed or satisfied by it at or prior to Closing Time, and (iv) no
stop order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been initiated or, to the
knowledge of the Company, threatened by the Commission.
(d) The Underwriters shall have received from
Coopers & Lybrand or other independent certified public accountants acceptable
to the Representatives letters dated as of the date of the applicable Pricing
Agreement and as of the date of the applicable Closing
23
<PAGE> 24
Time, respectively, in form and substance reasonably satisfactory to the
Representatives.
(e) At Closing Time, counsel for the Underwriters
shall have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the issuance
and sale of the Securities as herein contemplated 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 Securities as herein contemplated shall be reasonably satisfactory in form
and substance to the Underwriters and their counsel.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, the applicable Pricing
Agreement may be terminated by the Representatives by written notice to the
Company at any time at or prior to Closing Time, and such termination shall be
without liability of any party to any other party except as provided in Section
4 hereof. Notwithstanding any such termination, the provisions of Sections 6,
7, 8 and 13 shall remain in effect.
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 thereto) or the
omission or alleged omission therefrom of a material fact necessary in
order to make the state-
24
<PAGE> 25
ments 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 reasonable fees and disbursements of counsel chosen by the
Underwriters), 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 shall 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
Underwriters expressly for use in the Registration Statement (or any amendment
thereto) or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(b) Each Underwriter severally agrees to indemnify
and hold harmless the Company, each of its directors, each of its 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
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<PAGE> 26
Statement (or any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
expressly for use in the Registration Statement (or any amendment thereto) or
such preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) The Company agrees to indemnify and hold
harmless each Underwriter against any documentary stamp or similar issue tax
and any related interest or penalties on the issue or sale of the Securities to
the Underwriters which are due in the United States of America, the United
Kingdom or any other jurisdiction.
(d) 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. An indemnifying party may participate at its own expense
in the defense of any such action. 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,
except that the Company shall be liable for the fees and expenses of one counsel
representing LMWW and one counsel representing the other Underwriters and the
persons controlling the other Underwriters.
Insofar as this indemnity may permit indemnification for
liabilities under the 1933 Act of any person who is a partner of an Underwriter
or who controls an Underwriter within the meaning of Section 15 of the 1933 Act
and who, at the date of the applicable Pricing Agreement, is a director,
officer or controlling person of the Company, such indemnity agreement is
subject to the undertaking of the Company in the Registration Statement.
SECTION 7. Contribution. In order to provide for just and
equitable contribution in circumstances in
26
<PAGE> 27
which the indemnity agreement provided for in Section 6 hereof is for any reason
held to be unenforceable by the indemnified parties although applicable in
accordance with its terms, the Company and the Underwriters shall contribute to
the aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by said indemnity agreement incurred by the Company and one or more
of the Underwriters, as incurred, in such proportions that the Underwriters are
responsible for that portion represented by the percentage that the underwriting
discount set forth in the applicable Pricing Agreement bears to the initial
public offering price set forth in the applicable Pricing Agreement 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 an Underwriter within the meaning of Section 15 of the 1933
Act shall have the same rights to contribution as such Underwriter, 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, 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 made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Company, and shall survive
delivery of the Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) The Representatives may terminate the applicable
Pricing Agreement, by notice to the Company, at any time at or prior to the
applicable Closing Time (i) if there has been, since the date of the applicable
Pricing Agreement or since the respective dates as of which information is
given in the Registration Statement or documents incorporated by reference
therein, any material adverse change in the condition, financial or other-
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<PAGE> 28
wise, or in the earnings, business affairs or business prospects of the Company
and the Subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or elsewhere or any
outbreak of hostilities or escalation thereof or other calamity or crisis, the
effect of which is such as to make it, in the judgment of the Underwriters,
impracticable to market the Securities or to enforce contracts for the sale of
the Securities, or (iii) if trading in the Common Stock has been suspended by
the Commission, or if trading generally on either the American Stock Exchange or
the New York Stock Exchange has been suspended, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices for securities have been
required, by either of said Exchanges or by order of the Commission or any other
governmental authority, or if a banking moratorium has been declared by either
Federal, New York or Maryland authorities or if a banking moratorium has been
declared by the relevant authorities in the country or countries of origin of
any foreign currency or currencies underlying the Securities.
(b) If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4. Notwithstanding any such termination,
the provisions of Sections 6, 7, 8 and 13 shall remain in effect.
SECTION 10. Default by One or More of the Underwriters. If
one or more of the Underwriters participating in an offering of Securities
shall fail at the applicable Closing Time to purchase the Securities which it
or they are obligated to purchase hereunder and under the applicable Pricing
Agreement (the "Defaulted Securities"), then you, as the Representatives of the
Underwriters, shall use your reasonable efforts to procure within 36 hours
thereafter one or more of the other Underwriters, or any others, to purchase
from the Company such amounts as may be agreed upon and upon the terms set
forth therein and in the applicable Pricing Agreement, the Securities which the
defaulting Underwriter or Underwriters failed to purchase. If during such 36
hours you, as such Representatives, shall not have procured such other
Underwriters, or any others, to purchase the Secu-
28
<PAGE> 29
rities agreed to be purchased by the defaulting Underwriter or Underwriters,
then (a) if the aggregate amount of the Defaulted Securities does not exceed 10%
of the Securities covered by the applicable Pricing Agreement, the other
Underwriters shall be obligated, severally, in proportion to the respective
numbers of Securities which they are obligated to purchase under such Pricing
Agreement, to purchase the Securities which such defaulting Underwriter or
Underwriters failed to purchase, or (b) if the aggregate amount of the Defaulted
Securities exceeds 10% of the Securities covered by the applicable Pricing
Agreement, the Company or you as the Representatives of the Underwriters will
have the right, by written notice given within the next 36-hour period to the
parties to the applicable Pricing Agreement, to terminate the applicable Pricing
Agreement without liability on the part of any nondefaulting Underwriter.
No action pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of the applicable Pricing Agreement, either the non-defaulting
Underwriter or Underwriters, as the case may be, or the Company shall have the
right to postpone the Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangement.
SECTION 11. 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 as set forth in the applicable Pricing
Agreement; notices to the Company shall be directed to it at Legg Mason, Inc.,
111 South Calvert Street, Baltimore, Maryland 21202, attention of Richard J.
Himelfarb, Senior Executive Vice President.
SECTION 12. Parties. This Agreement and each applicable
Pricing Agreement shall each inure to the benefit of and be binding upon the
Underwriters and the Company and their respective successors. Nothing
expressed or mentioned in this Agreement or any such Pricing Agreement is
intended or shall be construed to give
29
<PAGE> 30
any person, firm or corporation, other than the Underwriters and the Company and
their respective successors and the controlling persons and officers and
directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any Pricing Agreement or any provision herein or
therein contained. This Agreement and each applicable Pricing Agreement and all
conditions and provisions hereof and thereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Company and their 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 Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
SECTION 13. Governing Law and Time. This Agreement and the
Pricing Agreement 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 said State. Except as otherwise set forth herein, specified times of day
refer to New York time.
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Very truly yours,
LEGG MASON, INC.
By: /s/ Raymond A. Mason
-----------------------
Name: Raymond A. Mason
Title: President
31
<PAGE> 32
Exhibit A
LEGG MASON, INC.
(a Maryland corporation)
___% Debt Securities due _____
PRICING AGREEMENT
___________, 199_
[Name and address of the
Underwriter(s) or Representative(s)
of the Underwriter(s), if any]
Dear Sirs:
Legg Mason, Inc., a Maryland corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated __________, 1996 (the "Underwriting Agreement"),
to issue and sell to [___________ (the "Underwriter(s)")] [the several
Underwriters listed on Schedule I hereto, for whom ____________ is/are acting
as representative(s) (the "Representative(s)")], the Securities specified
herein (the "Securities"). This agreement is the Pricing Agreement relating to
the Securities referred to in the Underwriting Agreement.
Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Pricing Agreement to the same extent as if such provisions had
been set forth in full herein. Each reference to the Representatives herein
and in the provisions of the Underwriting Agreement so incorporated by
reference shall be deemed to refer to you. Unless otherwise defined herein,
terms defined in the Underwriting Agreement are used herein as therein defined.
The address of the Underwriter(s) referred to in Section 11 of the Under-
A-1
<PAGE> 33
writing Agreement is ______________________, Attention: ______________.
An amendment to the Registration Statement, or the Prospectus
Supplement, as the case may be, relating to the Securities, in the form
heretofore delivered to you is now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in
the Underwriting Agreement incorporated herein by reference, the Company agrees
to issue and to sell to the Underwriters, and the Underwriters agree to
purchase from the Company, at the time and place and at the purchase price to
the Underwriters set forth herein, the aggregate principal amount of
Securities.
Pursuant to Section 2 of the Underwriting Agreement, the
Company agrees with the Underwriters as follows:
Title of Debt Securities:
Whether Senior or Subordinated Debt Securities:
Indenture (if other than as specified in the
Underwriting Agreement):
Principal amount to be issued: $
Current ratings:
Interest rate: % Payable
Date of maturity:
[Currency of Denomination:
Currency of Payment:
Form and Denomination:
Overseas Paying Agent:]
Redemption provisions:
Conversion:
Sinking fund requirements:
[Public offering price: %, plus accrued interest, or
amortized original issue discount, if any,
from , 19 .]
Purchase price: %, plus accrued interest, or amortized
original issue discount, if any, from 19 (payable in
next day funds).
Closing date and location:
This Agreement shall be governed by the laws of the State of
New York.
A-2
<PAGE> 34
------------
If the foregoing is in accordance with your understanding of
the agreement between you and the Company, please sign and return to the
Company a counterpart hereof, whereupon this instrument along with all
counterparts (including the provisions of the Underwriting Agreement
incorporated by reference herein) shall be a binding agreement between the
Underwriter and the Company in accordance with its terms and the terms of the
Underwriting Agreement.
Very truly yours,
LEGG MASON, INC.
By:
--------------
Name:
Title:
Accepted as of the date first above written:
UNDERWRITER(S) or
REPRESENTATIVE(S),
on behalf of the several Underwriters
named in Schedule I hereto
By:
-----------------------------------------
Name:
Title:
A-3
<PAGE> 35
SCHEDULE I
<TABLE>
<CAPTION>
Aggregate
Principal
Amount
Name of Underwriter of Securities
------------------- -------------
<S> <C>
TOTAL..............................................
</TABLE>
A-4
<PAGE> 36
SCHEDULE II
Principal Subsidiaries of the Company
[to be revised at Pricing if necessary]
Legg Mason Wood Walker, Incorporated
Howard Weil Financial Corporation
Howard, Weil, Labouisse, Friedrichs Incorporated
Western Asset Management Company
Legg Mason Real Estate Services, Inc.
Dorman & Wilson, Inc.
Legg Mason Fund Adviser, Inc.
Batterymarch Financial Management, Inc.
Bartlett & Co.
A-5
<PAGE> 1
LEGG MASON, INC.
(a Maryland corporation)
6 1/2% Senior Notes due 2006
PRICING AGREEMENT
February 9, 1996
Legg Mason Wood Walker, Incorporated
111 South Calvert Street
Baltimore, Maryland 21202
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Merrill Lynch, Pierce, Fenner & Smith Incorporated
250 Vesey Street
North Tower
World Financial Center
New York, New York 10281
Dear Sirs:
Legg Mason, Inc., a Maryland corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated February 9, 1996 (the "Underwriting Agreement"),
to issue and sell to Legg Mason Wood Walker, Incorporated, Morgan Stanley & Co.
Incorporated and Merrill Lynch, Pierce, Fenner & Smith Incorporated (the
"Underwriters"), the securities specified herein (the "Securities"). This
agreement is the Pricing Agreement relating to the Securities referred to in
the Underwriting Agreement.
Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Pricing Agreement to the same extent as if such provisions had
been set forth in full herein. Each reference to the
<PAGE> 2
Underwriters herein and in the provisions of the Underwriting Agreement so
incorporated by reference shall be deemed to refer to you. Unless otherwise
defined herein, terms defined in the Underwriting Agreement are used herein as
therein defined. The address of the Underwriters referred to in Section 11 of
the Underwriting Agreement is Morgan Stanley & Co. Incorporated, 1585 Broadway,
2nd Floor, New York, New York 10036, Attention: Managing Director, Debt
Syndicate.
An amendment to the Registration Statement, or the Prospectus
Supplement, as the case may be, relating to the Securities, in the form
heretofore delivered to you is now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in
the Underwriting Agreement incorporated herein by reference, the Company agrees
to issue and to sell to the Underwriters, and the Underwriters agree to
purchase from the Company, at the time and place and at the purchase price to
the Underwriters set forth herein, the aggregate principal amount of
Securities.
Pursuant to Section 2 of the Underwriting Agreement, the
Company agrees with the Underwriters as follows:
<TABLE>
<S> <C>
Title of Debt Securities: 6 1/2% Senior Notes Due 2006
Principal amount to be issued: $100,000,000
Current ratings: BBB (Standard & Poor's);
Baa2 (Moody's)
Interest rate: 6 1/2% Payable February 15
and August 15, commencing
August 15, 1996
Date of maturity: February 15, 2006
Redemption provisions: The Securities are not
redeemable by the Company
prior to maturity
Conversion: None
</TABLE>
2
<PAGE> 3
<TABLE>
<S> <C>
Sinking fund requirements: None
Public offering price: 99.528%, plus accrued
interest, if any, from
February 14, 1996.
Purchase price: 98.878%, plus accrued in-
terest, if any, from Feb-
ruary 14, 1996 (payable
in same-day funds).
Closing date and location: February 14, 1996 at the
offices of Skadden, Arps,
Slate, Meagher & Flom, 919
Third Avenue, New York, New
York 10022
</TABLE>
This Agreement shall be governed by the laws of the State of
New York.
------------
3
<PAGE> 4
If the foregoing is in accordance with your understanding of
the agreement between you and the Company, please sign and return to the
Company a counterpart hereof, whereupon this instrument along with all
counterparts (including the provisions of the Underwriting Agreement
incorporated by reference herein) shall be a binding agreement between the
Underwriters and the Company in accordance with its terms and the terms of the
Underwriting Agreement.
Very truly yours,
LEGG MASON, INC.
By: /s/ Raymond A. Mason
-----------------------
Name: Raymond A. Mason
Title: President
Accepted as of the date first above written:
LEGG MASON WOOD WALKER, INCORPORATED
MORGAN STANLEY & CO. INCORPORATED
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
By LEGG MASON WOOD WALKER, INCORPORATED
By: /s/ Elisabeth N. Spector
-------------------------------
Name: Elisabeth N. Spector
Title: Senior Vice President
By MORGAN STANLEY & CO. INCORPORATED
By: /s/ Michael Rollings
-------------------------------
Name: Michael Rollings
Title: Vice President
4
<PAGE> 5
SCHEDULE I
<TABLE>
<CAPTION>
Aggregate
Principal
Amount of
Name of Underwriter Securities
- ------------------- ----------
<S> <C>
Legg Mason Wood Walker, Incorporated................................ $ 5,000,000
Morgan Stanley & Co. Incorporated................................... 47,500,000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated............................................... 47,500,000
TOTAL............................................................... $100,000,000
</TABLE>
<PAGE> 6
SCHEDULE II
Principal Subsidiaries of the Company
Legg Mason Wood Walker, Incorporated
Howard Weil Financial Corporation
Howard, Weil, Labouisse, Friedrichs Incorporated
Western Asset Management Company
Legg Mason Real Estate Services, Inc.
Dorman & Wilson, Inc.
Legg Mason Fund Adviser, Inc.
Batterymarch Financial Management, Inc.
Bartlett & Co.
<PAGE> 1
LEGG MASON, INC.
TO
THE BANK OF NEW YORK
Trustee
Indenture
Dated as of February 9, 1996
Senior Debt Securities
<PAGE> 2
TABLE OF CONTENTS(1)
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
RECITALS OF THE COMPANY
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2 Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 1.3 Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 1.4 Acts of Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 1.5 Notices, Etc., to Trustee and Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 1.6 Notice to Holders of Securities; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 1.7 Language of Notices, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 1.8 Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 1.9 Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 1.10 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 1.11 Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 1.12 Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 1.13 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 1.14 Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 1.15 Judgment Currency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 1.16 Immunity of Incorporators, Shareholders, Officers, Directors and Employees. . . . . . . . . . . . 15
ARTICLE II
SECURITY FORMS . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 2.1 Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 2.2 Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.3 Securities in Global Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.4 Form of Legend for Book-Entry Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 2.5 Form of Conversion Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
</TABLE>
____________________
(1) NOTE: This table of contents shall not, for any purpose,
be deemed to be a part of the Indenture.
<PAGE> 3
<TABLE>
<S> <C> <C>
ARTICLE III
THE SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 3.1 Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 3.2 Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 3.3 Execution, Authentication, Delivery and Dating . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 3.4 Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 3.5 Registration, Registration of Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Securities and Coupons . . . . . . . . . . . . . . . . . . 30
SECTION 3.7 Payment of Interest; Interest Rights Preserved . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 3.8 Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 3.9 Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 3.10 Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 3.11 Electronic Security Issuance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 3.12 CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE IV
SATISFACTION AND DISCHARGE . . . . . . . . . . . . . . . . . . . . . 35
SECTION 4.1 Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 4.2 Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 4.3 Company's Option to Effect Defeasance or Covenant Defeasance. . . . . . . . . . . . . . . . . . . 37
SECTION 4.4 Discharge and Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 4.5 Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 4.6 Conditions to Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE V
REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 5.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee . . . . . . . . . . . . . . . . . 44
SECTION 5.4 Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 5.5 Trustee May Enforce Claims Without Possession of Securities or Coupons . . . . . . . . . . . . . 45
SECTION 5.6 Application of Money Collected. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 5.7 Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 5.8 Unconditional Right of Holders to Receive Principal, Premium and Interest . . . . . . . . . . . . 47
SECTION 5.9 Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 5.10 Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 5.11 Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C> <C>
SECTION 5.12 Control by Holders of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 5.13 Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 5.14 Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 5.15 Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE VI
THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 6.1 Duties and Responsibilities of the Trustee; During Default; Prior to Default. . . . . . . . . . 49
SECTION 6.2 Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 6.3 Not Responsible for Recitals or Issuance of Securities . . . . . . . . . . . . . . . . . . . . . 52
SECTION 6.4 May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 6.5 Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 6.6 Compensation and Reimbursement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 6.7 Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 6.8 Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 6.9 Disqualification; Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 6.10 Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 6.11 Preferential Collection of Claims Against Company . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 6.12 Merger, Conversion Consolidation or Succession to Business . . . . . . . . . . . . . . . . . . . 56
SECTION 6.13 Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 6.14 Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY . . . . . . . . . . . . . . . 58
SECTION 7.1 Preservation of Information; Communications to Holders . . . . . . . . . . . . . . . . . . . . . 58
SECTION 7.2 Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 7.3. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
ARTICLE VIII
CONSOLIDATION, MERGER, SALE, LEASE,TRANSFER OR OTHER DISPOSITION . . . . . . . . . . . . . 61
SECTION 8.1 Company May Consolidate, Etc. Only on Certain Terms . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 8.2 Successor Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
ARTICLE IX
SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 9.1 Supplemental Indentures Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 9.2 Supplemental Indentures with Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 9.3 Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
</TABLE>
iii
<PAGE> 5
<TABLE>
<S> <C> <C>
SECTION 9.4 Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 9.5 Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 9.6 Reference in Securities to Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . 66
ARTICLE X
COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 10.1 Payment of Principal, Premium and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 10.2 Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 10.3 Money for Securities Payments to Be Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 10.4 Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 10.5 Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 10.6 Purchase of Securities by Company or Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 10.7 Negative Pledge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 10.8 Statement by Officers as to Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 10.9 Calculation of Original Issue Discount. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
ARTICLE XI
REDEMPTION OF SECURITIES . . . . . . . . . . . . . . . . . . . . . 71
SECTION 11.1 Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 11.2 Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 11.3 Selection by Trustee of Securities to Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 11.4 Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 11.5 Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 11.6 Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 11.7 Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
ARTICLE XII
SINKING FUNDS . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 12.1 Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 12.2 Satisfaction of Sinking Fund Payments with Securities . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 12.3 Redemption of Securities for Sinking Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
ARTICLE XIII
MEETINGS OF HOLDERS OF SECURITIES . . . . . . . . . . . . . . . . . . . 76
SECTION 13.1 Purposes for Which Meetings May be Called . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 13.2 Call, Notice and Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 13.3 Persons Entitled to Vote at Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 13.4 Quorum; Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 13.5 Determination of Voting Rights; Conduct and Adjournment of Meetings . . . . . . . . . . . . . . . 78
</TABLE>
iv
<PAGE> 6
<TABLE>
<S> <C>
SECTION 13.6 Counting Votes and Recording Action of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . 79
ARTICLE XIV
CONVERSION OF SECURITIES . . . . . . . . . . . . . . . . . . . . . 80
SECTION 14.1 Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 14.2 Exercise of Conversion Privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 14.3 No Fractional Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 14.4 Adjustment of Conversion Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 14.5 Notice of Certain Corporate Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 14.6 Reservation of Shares of Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 14.7 Payment of Certain Taxes upon Conversion . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 14.8 Nonassessability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 14.9 Effect of Consolidation or Merger on Conversion Privilege . . . . . . . . . . . . . . . . . . . . 83
SECTION 14.10 Duties of Trustee Regarding Conversion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
SECTION 14.11 Repayment of Certain Funds upon Conversion . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGMENT
Exhibit A - Forms of Certification
</TABLE>
v
<PAGE> 7
Reconciliation and tie between this Indenture and the Trust
Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
<S> <C> <C> <C>
Section 310 (a)(1) 6.10
(a)(2) 6.10
(a)(3) Not Applicable
(a)(4) Not Applicable
(b) 6.8, 6.10
Section 311 (a) 6.11
(b) 6.11
Section 312 (a) 7.1
(b) 7.1
(c) 7.1
Section 313 (a) 7.2
(b) 7.2
(c) 7.2
(d) 7.2
Section 314 (a) 7.3
(a)(4) 1.1, 10.8
(b) Not Applicable
(c)(1) 1.2
(c)(2) 1.2
(c)(3) Not Applicable
(d) Not Applicable
(e) 1.2
Section 315 (a) 6.1
(b) 6.14
(c) 6.1
(d) 6.1
(e) 5.14
Section 316 (a) 1.1
(a)(1)(A) 5.2, 5.12
(a)(1)(B) 5.13
(a)(2) Not Applicable
(b) 5.8
(c) 1.4
Section 317 (a)(1) 5.3
(a)(2) 5.4
(b) 10.3
Section 318 (a) 1.8
</TABLE>
vi
<PAGE> 8
Trust Indenture Indenture
Act Section Section
Note: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Indenture.
vii
<PAGE> 9
INDENTURE, dated as of February 9, 1996, between LEGG MASON, INC.,
a corporation duly organized and existing under the laws of the State of
Maryland (herein called the "Company"), having its principal office at 111
South Calvert Street, Baltimore, Maryland 21202, and THE BANK OF NEW YORK, a
New York banking corporation, as Trustee (herein called the "Trustee") .
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time of its
unsecured and unsubordinated debentures, notes or other evidences of
indebtedness (herein called the "Securities"), to be issued in one or more
series as in this Indenture provided; and
WHEREAS, 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 a series thereof,
as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as
well as the singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein,
have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally
accepted accounting principles in the United States of
America, and, except as otherwise herein expressly provided,
the term "generally accepted accounting principles" with
respect to any computation re-
<PAGE> 10
quired or permitted hereunder shall mean such accounting
princi ples as are generally accepted in the United States of
America at the date of such computation; and
(4) The words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole
and not to any particular Article, Section or other
subdivision.
"Act", when used with respect to any Holder of a Security, has the
meaning specified in Section 1.4.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.12 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in the English language
or in an official language of the country of publication, 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 in the form established
pursuant to Section 2.1 which is payable to bearer.
"Board of Directors" 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.
"Book-Entry Security" means a Security bearing the legend specified
in Section 2.4, evidencing all or part of a series of Securities, issued to the
Depository for such series or its nominee, and registered in the name of such
Depository or nominee. Book-Entry Securities shall not be deemed to be
securities in global form for purposes of Sections 2.1 and 2.3 and Article III
of the Indenture.
2
<PAGE> 11
"Business Day", when used with respect to any Place of Payment or
any other particular location referred to in this Indenture or in the
Securities, means each Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions in that Place of Payment or other
location are authorized or obligated by law or executive order to close.
"Cedel S.A." means Cedel Bank, Societe Anonyme, or its successor.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934,
or, if at any time after the execution and delivery of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties on such date.
"Common Depository" has the meaning specified in Section 3.4.
"Common Stock" includes any stock of any class of the Company which
has no preference in respect of dividends or of amounts payable in the event of
any voluntary or involuntary liquidation, dissolution or winding up of the
Company and which is not subject to redemption by the Company.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture 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 Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to
the Trustee.
"Corporate Trust Office" means the principal office of the Trustee
at which at any particular time its corporate trust business shall be
administered and which, at the date hereof, is 101 Barclay Street, Floor 21
West, New York, New York 10286.
"Corporation" means a corporation, association, company,
partnership, joint-stock company or business trust.
"Coupon" means any interest coupon appertaining to a Bearer
Security.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Depository" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Book-Entry
Securities, the clearing agency
3
<PAGE> 12
registered under the Securities Exchange Act of 1934, as amended specified for
that purpose as contemplated by Section 3.1.
"Dollar" or "$" means a dollar or other equivalent unit in such
coin or currency of the United States of America as at the time shall be legal
tender for the payment of public and private debts.
"Euroclear" means the operator of the Euroclear System.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Date" has the meaning specified in Section 3.4.
"Holder", when used with respect to any Security, means in the case
of a Registered Security, the Person in whose name the Security is registered
in the Security Register and in the case of a Bearer Security the bearer
thereof and, when used with respect to any Coupon, means the bearer thereof.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 3.1.
"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.
"Legg Mason Wood Walker" means Legg Mason Wood Walker,
Incorporated, a Maryland corporation, and any successor thereto (whether by
consolidation or merger or by conveyance or transfer of its assets
substantially as an entirety).
"Lien" means any mortgage, pledge, lien, encumbrance, charge or
security interest.
"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, notice of option to
elect repayment or otherwise.
"Officers' Certificate" means a certificate signed by the Company's
Chairman of the Board, its Vice Chairman of the Board, its President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, and delivered to the Trustee.
4
<PAGE> 13
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be reasonably acceptable to the Trustee.
"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 5.2.
"Outstanding", when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) 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 and any Coupons appertaining thereto;
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;
(iii) Securities which have been paid pursuant to Section
3.6 or in exchange for or in lieu of which other Securities
have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which
there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid
obligations of the Company; provided, however, that in
determining whether the Holders of the requisite principal
amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver
hereunder or whether a quorum is present at a meeting of
Holders of Securities (i) the principal amount of an Original
Issue Discount Security that shall be deemed to be
Outstanding shall 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 pursuant to Section
5.2, (ii) the principal amount of a Security denominated in a
foreign currency or currencies shall be the U.S. dollar
equivalent, determined on the date of original issuance of
such Security, of the principal amount (or, in the case of an
Original Issue Discount Security, the U.S. dollar equivalent
on the date of original issuance of such Security of the
amount determined as provided in (i) above) of such Security,
and (iii) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company
or of such other obligor shall be disregarded and deemed not
to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver,
or upon any such determination as to the presence of a
quorum, only Securities which the
5
<PAGE> 14
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; and
(iv) Securities as to which Defeasance has been effected
pursuant to Section 4.4.
"Paying Agent" means any Person authorized by the Company to pay
the principal of and any premium and interest on any Securities or any Coupons
appertaining thereto on behalf of the Company.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, 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, subject to the provisions of Section
10.2, the principal of and any premium and interest on the Securities of that
series are payable as specified as contemplated by Section 3.1.
"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 3.6 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security or a
Security to which a mutilated, destroyed, lost or stolen Coupon appertains
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security or the Security to which the mutilated, destroyed, lost or
stolen Coupon appertains, as the case may be.
"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 established
pursuant to Section 2.1 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 3.1., whether or not such
day is a Business Day.
6
<PAGE> 15
"Responsible Officer", when used with respect to the Trustee, means
the Chairman of the board of directors, the executive committee of the board of
directors, the chairman of the trust committee, the president, any vice
president, the secretary, any assistant secretary, the treasurer, any assistant
treasurer, the cashier, any assistant cashier, any trust officer or assistant
trust officer, the controller or any assistant controller or any other officer
of the Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"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 3.5.
"Special Record Date" for the payment of any Defaulted Interest on
the Registered Securities of any series means a date fixed by the Trustee
pursuant to Section 3.7.
"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 or a Coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder,
and if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"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.
"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 nonresident alien fiduciary of a foreign estate or trust.
7
<PAGE> 16
"U.S. Government Obligations" means direct obligations of the
United States for the payment of which its full faith and credit is pledged, or
obligations of a person controlled or supervised by and acting as an agency or
instrumentality of the United States and 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 Obligations or a specific
payment of principal of or interest on any such U.S. Government Obligations
held by such custodian for the account of the holder of such 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 Obligations or the specific payment of principal of or interest
on the U.S. Government Obligations evidenced by such depository receipt.
"Voting Security" means securities of the class or classes having
general voting power under ordinary circumstances to elect at least a majority
of the board of directors, managers or trustees of such corporation, provided
that, for the purposes hereof, securities which carry only the right to vote
conditionally on the happening of an event shall not be considered Voting
Securities whether or not such event shall have happened.
"Yield to Maturity" means the yield to maturity on a series of
Securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with accepted financial practice.
SECTION 1.2 Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion by or on behalf of the Company with
respect to compliance with a condition or covenant provided for in this
Indenture, except for certificates provided for in Section 10.8, 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;
8
<PAGE> 17
(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, in the opinion of each such
individual, such condition or covenant has been complied
with.
SECTION 1.3 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.
9
<PAGE> 18
SECTION 1.4 Acts of Holders.
(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 agent duly appointed in writing. If Securities of a series are issuable as
Bearer Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given or taken by Holders of such series may, alternatively, be embodied in and
evidenced by the record of Holders of Securities of such series voting in favor
thereof, either in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of Article XIII, 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 or
record or both are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments and any such record
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or instruments
and so voting at any such meeting. Proof of execution of any such instrument or
of a writing appointing any such agent or proxy, or of the holding by any
Person of a Security, shall be sufficient for any purpose of this Indenture and
(subject to Section 6.1) 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 13.6.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. 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 principal amount and serial numbers of Registered
Securities held by any Person, and the date of holding the same, shall be
proved by the Security Register.
(d) The principal amount and serial numbers of Bearer Securities
held by any Person, and the date of holding the same, may be proved by the
production of such Bearer Securities or by a certificate executed, 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 therein
described; or such facts may be
10
<PAGE> 19
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 principal amount and
serial numbers of Bearer Securities held by any Person, and the date of holding
the same, may also be proved in any other manner which the Trustee deems
sufficient.
(e) 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 or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
(f) With respect to the Securities of any Series, upon receipt by
the Trustee of (i) any written notice directing the time, method or place of
conducting any proceeding or exercising any trust or power pursuant to Section
5.12 with respect to Securities of such series or (ii) any written demand,
request or notice with respect to any matter on which the Holders of Securities
of such series are entitled to act under this Indenture, in each case from
Holders of less than, or proxies representing less than, the requisite
principal amount of Outstanding Securities or such series entitled to give such
demand, request or notice, the Trustee shall establish a record date for
determining Holders of Outstanding Securities of such series entitled to join
in such demand, request or notice, which record date shall be the close of
business on the day the Trustee received such demand, request or notice. The
Holders on such record date, or their duly designated proxies, and only such
Persons, shall be entitled to join in such demand, request or notice whether or
not such Holders remain Holders after such record date; provided, however, that
unless the Holders of the requisite principal amount of Outstanding Securities
of such series shall have joined in such demand, request or notice prior to the
day which is the ninetieth day after such record date, such demand, request or
notice shall automatically and without further action by any Holder be canceled
and of no further effect. Nothing in this paragraph shall prevent a Holder, or
a proxy of a Holder, from giving, (i) after the expiration of such 90-day
period, a new demand, request or notice identical to a demand, request or
notice which has been canceled pursuant to the proviso to the preceding
sentence or (ii) during any such 90-day period, a new demand, request or notice
which has been canceled pursuant to the proviso to the preceding sentence or
(iii) during any such 90-day period, a new demand, request or notice contrary
to or different from such demand, request or notice, in either of which events
a new record date shall be established pursuant to the provisions of this
clause.
(g) The Company may set any day as the record date for the purpose
of determining the Holders of Outstanding Securities of any series entitled to
give or take any request, demand,
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authorization, direction, notice, consent, waiver or other action provided or
permitted by this Indenture to be given or taken by Holders of Securities of
such series. With regard to any record date set pursuant to this paragraph, the
Holders of Outstanding Securities of the relevant series on such record date
(or their duly appointed agents), and only such Persons, shall be entitled to
give or take the relevant action, whether or not such Holders remain Holders
after such record date. With regard to any action that may be given or taken
hereunder only by Holders of a requisite principal amount of Outstanding
Securities of any series (or their duly appointed agents) and for which a
record date is set pursuant to this paragraph, the Company may, at its option,
set an expiration date after which no such action purported to be given or
taken by any Holder shall be effective hereunder unless given or taken on or
prior to such expiration date by Holders of the requisite principal amount of
Outstanding Securities of such series on such record date (or their duly
appointed agents). On or prior to any expiration date set pursuant to this
paragraph, the Company may, on one or more occasions at its option, extend such
date to any later date. Nothing in this paragraph shall prevent any Holder (or
any duly appointed agent thereof) from giving or taking, after any expiration
date, any action identical to, or, at any time, contrary to or different from,
any action given or taken, or purported to have been given or taken, hereunder
by a Holder on or prior to such date, in which event the Company may set a
record date in respect thereof pursuant to this paragraph. Notwithstanding the
foregoing or the Trust Indenture Act, the Company shall not set a record date
for, and the provisions of this paragraph shall not apply with respect to, any
action to be given or taken by Holders pursuant to Section 5.1, 5.2 or 5.12.
SECTION 1.5 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: Corporate Trust, Trustee
Administration, 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 Indenture, to the attention of its
Treasurer, or at any other address previously furnished in
writing to the Trustee by the Company.
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SECTION 1.6 Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of Securities of any event:
(1) such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed, first-class
postage prepaid, to each Holder of a Registered Security
affected by such event, at the address of such Holder as it
appears in the Security Register, not earlier than the
earliest date, and not later than the latest date, prescribed
for the giving of such notice; and
(2) such notice shall be sufficiently given to Holders of
Bearer Securities if published in an Authorized Newspaper in
The City of New York, The City of London and in such other
city or cities as may be specified in such Securities on a
Business Day at least twice, the first such publication to be
not earlier than the earliest date, and not later than the
latest date, prescribed for the giving of such notice.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice to
Holders of Registered Securities by mail, then such notification as shall be
made with the approval of the Trustee shall constitute sufficient notice to
such Holders for every purpose hereunder. 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 mailed to any particular Holder of a
Registered Security shall affect the sufficiency of such notice with respect to
other Holders of Registered Securities or the sufficiency of any notice to
Holders of Bearer Securities given as provided herein.
In case by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any other cause
it shall be impracticable to publish any notice to Holders of Bearer Securities
as provided above, then such notification 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 any notice to Holders of Registered
Securities given as provided herein.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders of Securities shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
SECTION 1.7 Language of Notices, Etc.
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Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of
the country of publication.
SECTION 1.8 Conflict with Trust Indenture Act.
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by, or with another provision
(an "incorporated provision") included in this Indenture by operation of
Sections 310 to 318, inclusive, of the Trust Indenture Act, such imposed duties
of incorporated provision shall control.
SECTION 1.9 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 1.10 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 1.11 Separability Clause.
In case any provision in this Indenture or 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 1.12 Benefits of Indenture.
Nothing in this Indenture or the Securities or Coupons, express or
implied, shall give to any Person, other than the parties hereto, any
Authenticating Agent, any Paying Agent, any Securities Registrar and their
successors hereunder and the Holders of Securities and Coupons, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
SECTION 1.13 Governing Law.
This Indenture and the Securities and Coupons shall be governed by
and construed in accordance with the laws of the State of New York without
regard to conflicts of laws.
SECTION 1.14 Legal Holidays.
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In any case where any Interest Payment Date, Redemption Date,
sinking fund payment date, Maturity or Stated 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 in 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, or at the Stated Maturity, provided that no interest shall
accrue on the amount so payable for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the case may be, to such
succeeding Business Day.
SECTION 1.15 Judgment Currency.
The Company agrees, to the fullest extent that it may effectively
do so under applicable law, that (a) if for the purpose of obtaining judgment
in any court it is necessary to convert the sum due on the Securities of any
series from the currency in which such sum is payable in accordance with the
terms of such Securities (the "Required Currency") into a currency in which a
judgment will be rendered (the "Judgment Currency"), the rate of exchange used
shall be the rate at which in accordance with normal banking procedures the
Trustee could purchase in The City of New York the Required Currency with the
Judgment Currency on the New York Banking Day preceding that on which a final
unappealable judgment is rendered and (b) its obligations under this Indenture
to make payments in the Required Currency (i) shall not be discharged or
satisfied by any tender, or any recovery pursuant to any judgment (whether or
not entered in accordance with subsection (a)), in any currency other than the
Required Currency, except to the extent that such tender or recovery shall
result in the actual receipt, by the payee, of the full amount of the Required
Currency expressed to be payable in respect of such payments, (ii) shall be
enforceable as an alternative or additional cause of action for the purpose of
recovering in the Required Currency the amount, if any, by which such actual
receipt shall fall short of the full amount of the Required Currency so
expressed to be payable and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture. For purposes of the
foregoing, "New York Banking Day" means any day except a Saturday, Sunday or a
legal holiday in The City of New York or a day on which banking institutions in
The City of New York are authorized or required by law or executive order to
close.
SECTION 1.16 Immunity of Incorporators, Shareholders, Officers, Directors
and Employees.
No recourse under or upon any obligation, covenant or agreement of
this Indenture, or of any Security, or for any claim based thereon or otherwise
in respect thereof, shall be had against any incorporator, shareholder,
officer, director or employee, as such, past, present or future, of the Company
or of any successor corporation, either directly or through the Company,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of
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any assessment or penalty or otherwise; it being expressly understood that this
Indenture and the obligations issued hereunder are solely corporate obligations
of the Company, and that no such personal liability whatever shall attach to,
or is or shall be incurred by, the incorporators, shareholders, officers,
directors or employees, as such, of the Company or of any successor
corporation, or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations or agreements contained in
this Indenture or in any of the Securities or implied therefrom; and that any
and all such personal liability, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against,
every such incorporator, shareholder, officer, director or employee, as such,
because of the creation of the indebtedness hereby authorized, or under of by
reason of the obligations or agreements contained in this Indenture or in any
of the Securities or implied therefrom, are hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issue of such Securities.
All payments of interest and other amounts, if any, to be made by
the Trustee hereunder shall be made only from the money deposited with the
Trustee and only to the extent that the Trustee shall have sufficient income or
proceeds to make such payments in accordance with the terms of this Indenture,
and each holder hereof, by its acceptance of a Security, agrees that it will
look solely to the income and proceeds deposited with the Trustee to the extent
available for distribution to the holder hereof as provided and that the
Trustee is not personally liable in any manner to the holder hereof for any
amounts payable or any liability under this Indenture or any Security.
ARTICLE II
SECURITY FORMS
SECTION 2.1 Forms Generally.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related Coupons shall be in such 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 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 temporary Securities of any series are issued
in global form as permitted by Section 3.4, the form thereof shall be
established as provided in the preceding sentence. If the forms of Securities
or Coupons of any series (or any such temporary global Security) are
established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the
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Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 3.3 for the
authentication and delivery of such Securities (or any such temporary global
Security) or Coupons.
Unless otherwise specified as contemplated by Section 3.1, Bearer
Securities shall have interest Coupons attached.
The definitive Securities and Coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities or
Coupons, as evidenced by their execution of such Securities or Coupons.
SECTION 2.2 Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication 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.
The Bank of New York,
As Trustee
By
Authorized Signatory
SECTION 2.3 Securities in Global Form.
If Securities of a series are issuable in global form, as specified
as contemplated by Section 3.1, then, notwithstanding clause (12) of Section
3.1 and the provisions of Section 3.2, any such Security shall represent such
of the Outstanding Securities of such series as shall be specified therein and
may provide that it shall represent the aggregate amount of Outstanding
Securities from time to time endorsed thereon and that the aggregate amount of
Outstanding Securities represented thereby may from time to time be reduced to
reflect exchanges. Any endorsement of a Security in global form to reflect the
amount, or any increase or decrease in the amount, of Outstanding Securities
represented thereby shall be made by the Trustee in such manner and upon
instructions given by such Person or Persons as shall be specified therein or
in the Company Order to be delivered to the Trustee pursuant to Section 3.3 or
Section 3.4. Subject to the provisions of Section 3.3 and, if appli cable,
Section 3.4, 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 3.3 or 3.4 has been, or simultaneously is, delivered, any
instructions by the Company with respect to endorsement or delivery or
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redelivery of a Security in global form shall be in writing but need not comply
with Section 1.2 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 3.3 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 1.2 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 3.3.
Notwithstanding the provisions of Sections 2.1 and 3.7, unless
otherwise specified as contemplated by Section 3.1, payment of principal of and
any premium and interest on any Security in permanent global form shall be made
to the Person or Persons specified therein.
Notwithstanding the provisions of Section 3.8 and except as
provided in the preceding paragraph, the Company, the Trustee and any agent of
the Company and the Trustee shall treat a Person as the Holder of such
principal amount of Outstanding Securities represented by a permanent global
Security as shall be specified in a written statement of the Holder of such
permanent global Security or, in the case of a permanent global Security in
bearer form, of Euroclear or Cedel S.A. which is provided to the Trustee by
such Person.
SECTION 2.4 Form of Legend for Book-Entry Securities.
Any Book-Entry Security authenticated and delivered hereunder shall
bear a legend in substantially the following form:
"This Security is a Book-Entry Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a Depository
or a nominee of a Depository. This Security is exchangeable for Securities
registered in the name of a Person other than the Depository or its nominee
only in the limited circumstances described in the Indenture, and no transfer
of this Security (other than a transfer of this Security as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository) may be registered except
in such limited circumstances."
SECTION 2.5 Form of Conversion Notice.
The form of conversion notice for the conversion of Securities into
shares of Common Stock or other securities of the Company shall be in
substantially the form included with the applicable form of Securities as shall
be established pursuant to Section 2.1 hereinabove.
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ARTICLE III
THE SECURITIES
SECTION 3.1 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 3.3,
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:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other
series of Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 3.4, 3.5, 3.6, 9.6 or 11.7 and
except for any Securities which, pursuant to Section 3.3, are
deemed never to have been authenticated and delivered
hereunder);
(3) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities or both, whether any
Securities of the series are to be issuable initially in
temporary global form and whether any Securities of the
series are to be issuable in permanent global form with or
without Coupons and, if so, whether beneficial owners of
interests in any such permanent global Security may exchange
such interests for Securities of such series and of like
tenor of any authorized form and denomination and the
circumstances under which any such exchanges may occur, if
other than in the manner provided in Section 3.5;
(4) the Person to whom any interest on any Registered
Security of the series shall be payable, if other than the
Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, the
manner in which, or the Person to whom, any interest on any
Bearer Security of the series shall be payable, if otherwise
than upon presentation and surrender of the Coupons
appertaining thereto as they severally mature, and the extent
to which, or the manner in which, any interest payable on a
temporary global Security on an Interest Payment Date will be
paid if other than in the manner provided in Section 3.4;
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(5) 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 of the series is payable;
(6) the rate or rates at which the Securities of the series
shall bear interest, if any, or the formula pursuant to which
such rate or rates shall be determined, the date or dates
from which any such interest shall accrue, the Interest
Payment Dates on which any such interest shall be payable,
and the Regular Record Date for any interest payable on any
Registered Securities on any Interest Payment Date and the
basis upon which interest shall be calculated if other than
that of a 360-day year consisting of twelve 30-day months;
(7) the place or places where, subject to the provisions of
Sections 11.4 and 10.2, the principal of and any premium and
interest 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 conversion or exchange, 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 of Bearer Securities pursuant to Section 1.6 will be
published;
(8) the period or periods within which, the price or prices
at which and the terms and conditions upon which Securities
of the series may be redeemed, in whole or in part, at the
option of the Company;
(9) the period or periods within which, the price or prices
at which and the terms and conditions upon which Securities
of the series may be redeemed, in whole or in part, or such
terms and conditions as shall be set forth in an Officers'
Certificate or supplemental indenture;
(10) the obligation, if any, of the Company to redeem, repay
or purchase Securities of the series, or particular
Securities within the series, pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof,
and the period or periods within which, the price or prices
at which and the terms and conditions upon which such
Securities shall be redeemed, repaid or purchased, in whole
or in part, pursuant to such obligation;
(11) the terms of any right to convert or exchange
Securities of the series, either at the option of the Holder
thereof or the Company, into or for shares of Common Stock of
the Company or other securities or property, including
without limitation the period or periods within which and the
price or prices (including adjustments thereto) at which any
Securities of the series shall be converted or exchanged, in
whole or in part;
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(12) 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
denomination or denominations in which any Bearer Securities
of the series shall be issuable, if other than the
denomination of $5,000;
(13) the currency or currencies, including composite
currencies, in which payment of the principal of and any
premium and interest on the Securities of the series shall be
payable if other than the currency of the United States of
America;
(14) if the principal of and any premium or interest on the
Securities of the series are to be payable, at the election
of the Company or a Holder thereof, in a currency or
currencies, including composite currencies, other than that
or those in which the Securities are stated to be payable,
the currency or currencies in which payment of the principal
of and any premium and interest on Securities of such series
as to which such election is made shall be payable, and the
periods within which and the terms and conditions upon which
such election is to be made;
(15) if the amount of payments of principal of and any
premium or interest on the Securities of the series may be
determined with reference to an index, the manner in which
such amounts shall be determined;
(16) if other than the principal amount thereof, the portion
of the principal amount of any Securities of the series which
shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 5.2;
(17) the Person who shall be the Security Registrar, if
other than the Trustee;
(18) whether the Securities of the series shall be issued
upon original issuance in whole or in part in the form of one
or more Book-Entry Securities and, in such case, (a) the
Depository with respect to such Book-Entry Security or
Securities; and (b) the circumstances under which any such
Book-Entry Security may be exchanged for Securities
registered in the name of, and any transfer of such
Book-Entry Security may be registered to, a Person other than
such Depository or its nominee, if other than as set forth in
Section 3.5;
(19) if the provisions of Section 4.4 or 4.5 are applicable
to the Securities of such series;
(20) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of
such events as may be specified;
(21) any deletions from, modifications of or additions to
the Events of Default or covenants of the Company with
respect to Securities of the series, whether or not
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such Events of Default or covenants are consistent with the
Events of Default or covenants set forth herein;
(22) whether and under what conditions additional amounts
will be payable to Holders of Securities of the series
pursuant to Section 10.4; and
(23) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and the Coupons appertaining to
any Bearer Securities of such series shall be substantially identical except,
in the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to the Board Resolution referred to above
and (subject to Section 3.3) set forth in, or determined in the manner provided
in, the Officers' Certificate referred to above or in any such indenture
supplemental hereto. Not all Securities of any one series need be issued at
the same time, and, unless otherwise provided, a series may be reopened for
issuances of additional Securities of such series.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Officers' Certificate setting forth the
terms, or the manner of determining the terms, of the series.
SECTION 3.2 Denominations.
Unless otherwise provided as contemplated by Section 3.1 with
respect to any series of Securities, any Registered Securities of a series
shall be issuable in denominations of $1,000 and any integral multiple thereof
and any Bearer Securities of a series shall be issuable in the denomination of
$5,000.
SECTION 3.3 Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its President or one of
its Vice Presidents, under its corporate seal reproduced thereon attested by
its Secretary or one of its Assistant Secre taries. The signature of any of
these officers on the Securities may be manual or facsimile. Coupons shall bear
the facsimile signature of the Treasurer of the Company.
Securities and 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 authen-
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tication and delivery of such Securities or did not hold such offices at the
date of such Securities.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities of any series, together
with any Coupons appertaining thereto executed by the Company to the Trustee
for authentication, together with a Company Order for the authentication and
delivery of such Securities, and 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 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 specified in such Security as to
certain tax matters in respect of United States citizens, 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 global Security first becomes
exchangeable for such Bearer Security in accordance with the terms of such
temporary global Security and this Indenture. If any Security shall be
represented by a permanent global Bearer Security, then, for purposes of this
Section and Section 3.4, 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 3.6, 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 and indenture supplement 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 forms or terms of the Securities of the series and any
related Coupons have been established in or pursuant to one or more Board
Resolutions as permitted by Sections 2.1 and 3.1, 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 6.1) shall be fully protected in relying upon, an Opinion
of Counsel stating:
(a) that such forms have been established in conformity with
the provisions of this Indenture;
(b) that such terms, or the manner of determining such
terms, have been established in conformity with the
provisions of this Indenture;
(c) that such Securities, together with any Coupons
appertaining thereto, when authenticated and delivered by the
Trustee and issued by the Company in the man-
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<PAGE> 32
ner 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, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general
applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles; and
(d) that all applicable laws and requirements in respect of
the execution and delivery by the Company of such Securities
have been complied with.
If such forms or terms have been so established, the Trustee shall
not be required to authenticate such Securities if the issue or 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.
Notwithstanding the provisions of Section 3.1 and of the two
preceding paragraphs, 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 3.1 or the Company Order and
Opinion of Counsel otherwise required pursuant to such preceding paragraphs 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.
Each Registered Security shall be dated the date of its
authentication; and each Bearer Security shall be dated as of the date of
original issuance of the first Security of such series to be issued.
No Security or Coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security, or the Security to which such Coupon appertains, 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. 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 3.9 together with a written
statement (which need not comply with Section 1.2 and need not be accompanied
by an Opinion of Counsel) stating that such Security has never been issued and
sold by the Company, for all purposes of this Indenture such Security shall be
deemed never to have been authenticated and delivered hereunder and shall never
be entitled to the benefits of this Indenture.
SECTION 3.4 Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities
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<PAGE> 33
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 or Coupons may determine, as
evidenced by their execution of such Securities or Coupons. In the case of any
series issuable as Bearer Securities, such temporary Securities may be in
global form. A temporary Bearer Security shall be delivered only in compliance
with the conditions set forth in Section 3.3.
Except in the case of temporary Securities in global form (which
shall be exchanged in accordance with the provisions of the following
paragraphs), if temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company maintained pursuant to Section
10.2 in a Place of Payment for such series for the purpose of exchanges of
Securities of such series, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities of any series (accompanied
by any unmatured Coupons appertaining thereto) the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like
aggregate principal amount of definitive Securities of the same series and of
like tenor of authorized denominations; provided, however, that no definitive
Bearer Security shall be delivered in exchange for a temporary Registered
Security.
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 or common depositary (the
"Common Depositary"), for the benefit of Euroclear and Cedel S.A., 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 of that series, 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 Secu rity shall be
surrendered by the Common Depositary to the Trustee, as the Company's agent for
such purpose, to be exchanged, in whole or from time to time in part, for
definitive Securities of such series without charge and the Trustee shall
authenticate and deliver, in exchange for each portion of such temporary global
Security, a like 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; provided, however, that, unless
otherwise specified in such temporary global Security, upon such presentation
by the Common 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 tempo-
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<PAGE> 34
rary global Security held for its account then to be exchanged and a
certificate dated the Exchange Date or a subsequent date and signed by Cedel
S.A. as to the portion of such temporary global Security held for its account
then to be exchanged, each in the form or in such form as shall be specified in
such Security. 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 3.1, and, if any
combination thereof is so specified, as requested by the beneficial owner
thereof; provided, however, 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 3.3.
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 S.A., as the case may be, to request such exchange on his
behalf and delivers to Euroclear or Cedel S.A., as the case may be, a
certificate in such form as shall be specified in such Security, dated no
earlier than 15 days prior to the Exchange Date, copies of which certificate
shall be available from the offices of Euroclear and Cedel S.A., 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 in the
event that such Person does not take delivery of such definitive Securities in
person at the offices of Euroclear or Cedel S.A. 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 3.1, 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 S.A. on such Interest Payment Date upon delivery by Euroclear and
Cedel S.A. to the Trustee of a certificate or certificates in such form as
shall be specified in such Security, for credit with out further interest on or
after such Interest Payment Date to the respective accounts of the Persons who
are the beneficial owners of such temporary global Security on such Interest
Payment Date and who have each delivered to Euroclear or Cedel S.A., as the
case may be, a certificate in such form as shall be specified in such Security.
Any interest so received by Euroclear and Cedel S.A. and not paid as herein
provided shall be returned to the Trustee immediately prior to the expiration
of two years after such Interest Payment Date in order to be repaid to the
Company in accordance with Section 10.3.
SECTION 3.5 Registration, Registration of Transfer and Exchange.
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<PAGE> 35
The Company shall cause to be kept at an office or agency to be
maintained by the Company in accordance with Section 10.2 a register (the
"Security Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Registered
Securities and the registration of transfers of Registered Securities. The
Trustee is hereby appointed "Security Registrar" for the purpose of registering
Registered Securities and transfers of Registered Securities as herein
provided.
Upon due surrender for registration of transfer of any Registered
Security of any series at the office or agency of the Company maintained
pursuant to Section 10.2 for such purpose in a Place of Payment for such
series, 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 denominations
and of a like aggregate principal amount and tenor.
At the option of the Holder, Registered Securities of any series
may be exchanged for other Registered Securities of the same series of any
authorized denominations and of a like aggregate principal amount and tenor,
upon surrender of the Securities to be exchanged at any such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive. Registered Securities
may not be exchanged for Bearer Securities.
At the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon
surrender of the Bearer Securities to be exchanged at any such office or
agency, with all unmatured Coupons, and all matured Coupons in default
appertaining thereto. If the Holder of a Bearer Security is unable to produce
any such unmatured Coupon or Coupons or matured Coupon or Coupons in default,
such exchange may be effected if the Bearer Securities are accompanied by
payment in funds acceptable to the Company in an amount equal to the face
amount of such missing Coupon or Coupons, or the surrender of such missing
Coupon or Coupons may be waived by the Company and the Trustee if there is
furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such
Securities 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 10.2, interest represented by Coupons shall be
payable only upon presentation and surrender of those Coupons at an office or
agency located outside the United States. Notwithstanding the foregoing, in
case a Bearer Security of any series is surrendered at any such office or
agency in exchange for a Registered Security of the same series and like tenor
after the close of business at such office or agency on (i) any Regular Record
Date and before the opening of business at such office or agency on the
relevant Interest Payment Date, or (ii) any Special Record Date and before the
opening of business at such office or agency on the related proposed date for
payment of Defaulted Interest, such Bearer Security shall be surrendered
without the Coupon relating to
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<PAGE> 36
such Interest Payment Date or proposed date for 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.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 3.1, any permanent global Security shall be
exchangeable only as provided in this paragraph. If the beneficial owners of
interests in a permanent global Security are entitled to exchange such
interests for Securities of such series and of like tenor and principal amount
of another authorized form and denomination, as specified as contemplated by
Section 3.1, then without unnecessary delay but in any event not later than the
earliest date on which such interests may be so exchanged, the Company shall
deliver to the Trustee definitive Securities of that series in aggregate
principal amount equal to the principal amount of such permanent global
Security, executed by the Company. On or after the earliest date on which such
interests may be so exchanged, such permanent global Security shall be
surrendered by the Common Depositary or such other depositary or Common
Depositary as shall be specified in the Company Order with respect thereto to
the Trustee, as the Company's agent for such purpose, to be exchanged, in whole
or from time to time in part, for definitive Securities of such series without
charge and the Trustee shall authenticate and deliver, in exchange for each
portion of such permanent global Security, a like aggregate principal amount of
definitive Securities of the same series of authorized denominations and of
like tenor as the portion of such permanent global Security to be exchanged
which, unless the Securities of the series are not issuable both as Bearer
Securities and as Registered Securities, as specified as contemplated by
Section 3.1, shall be in the form of Bearer Securities or Registered
Securities, or any combination thereof, as shall be specified by the beneficial
owner thereof; provided, however, that no Bearer Security delivered in exchange
for a portion of a permanent global Security shall be mailed or otherwise
delivered to any location in the United States. If a Registered Security is
issued in exchange for any portion of a permanent global Security after the
close of business at the office or agency where such exchange occurs on (i) any
Regular Record Date and before the opening of business at such office or agency
on the relevant Interest Payment Date, or (ii) any Special Record Date and
before the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, interest or Defaulted Interest, as the
case may be, will not be payable on such Interest Payment Date or proposed date
for payment, as the case may be, in respect of such Registered Security, but
will be payable on such Interest Payment Date or proposed date for payment, as
the case may be, only to the Person to whom interest in respect of such portion
of such permanent global Security is payable in accordance with the provisions
of this Indenture.
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All Securities issued upon any registration of transfer or exchange
of Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration
of transfer or for exchange shall (if so required by the Company or the Trustee
or any transfer agent) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar or any transfer agent duly executed, by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 3.4, 9.6 or 11.7 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before any selection of Securities of that
series to be redeemed and ending at the close of business on (A) if Securities
of the series are issuable only as Registered Securities, the day of the
mailing of the relevant notice of redemption and (B) if Securities of the
series are issuable as Bearer Securities, the day of the first publication of
the relevant notice of redemption or, if Securities of the series are also
issuable as Registered Securities and there is no publication, the mailing of
the relevant notice of redemption, (ii) to register the transfer of or exchange
any Registered Security so selected for redemption, in whole or in part, except
the unredeemed portion of any Security being redeemed in part, or (iii) to
exchange any Bearer Security so selected for redemption except that such a
Bearer Security may be exchanged for a Registered Security of that series and
like tenor, provided that such Registered Security shall be simultaneously
surrendered for redemption.
Notwithstanding the foregoing and except as otherwise specified or
contemplated by Section 3.1, any Book-Entry Security shall be exchangeable
pursuant to this Section 3.5 or Sections 3.4, 9.6 and 11.7 for Securities
registered in the name of, and a transfer of a Book-Entry Security or any
series may be registered to, any Person other than the Depository for such
Security or its nominee only if (i) such Depository notifies the Company that
it is unwilling or unable to continue as Depository for such Book-Entry
Security or if at any time such Depository ceases to be a clearing agency
registered under the Securities Exchange Act of 1934, as amended, (ii) the
Company executes and delivers to the Trustee a Company Order that such
Book-Entry Security shall be so exchangeable and the transfer thereof so
registerable or (iii) there shall have occurred and be continuing an Event of
Default, or an event which after notice or lapse of time would be an Event of
Default, with respect to the Securities of such series. Upon the occurrence in
respect of any Book-Entry Security of any series of any one or more of the
conditions specified in clauses (i), (ii) or (iii) or the preced-
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<PAGE> 38
ing sentence or such other conditions as may be specified as contemplated by
Section 3.1 for such series, such Book-Entry Security may be exchanged for
Securities registered in the names of, and the transfer of such Book-Entry
Security may be registered to, such Persons (including Persons other than the
Depository with respect to such series and its nominees) as such Depository
shall direct. Notwithstanding any other provision of this Indenture, any
Security authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, any Book-Entry Security shall also be a Book-Entry
Security and shall bear the legend specified in Section 2.4 except for any
Security authenticated and delivered in exchange for, or upon registration of
transfer of, Book-Entry Security pursuant to the preceding sentence.
Notwithstanding anything in this Indenture or in the terms of
a Security to the contrary, the exchange of Bearer Securities for Registered
Securities will be subject to satisfaction of the provisions of the United
States Federal income tax laws in effect at the time of such exchange. None of
the Company, the Trustee or any Authenticating Agent of the Company or the
Trustee (any of which, other than the Company, shall rely on an Officers'
Certificate and an Opinion of Counsel) shall be required to exchange any Bearer
Security for a Registered Security if as a result thereof and in the Company's
reasonable judgment, the Company would incur adverse consequences under then
applicable United States Federal income tax laws.
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Securities and Coupons.
If any mutilated Security or a Security with a mutilated Coupon
appertaining thereto is surrendered to the Trustee, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a new
Security of the same series and of like tenor and principal amount and bearing
a number not contemporaneously outstanding, with Coupons corresponding to the
Coupons, if any, appertaining to the surrendered Security and such mutilated
Security or a Security with a mutilated Coupon, if any, shall be cancelled by
the Trustee in accordance with the Indenture.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security or Coupon and (ii) such security or in demnity as may be required by
them, then, in the absence of notice to the Company or the Trustee that such
Security or Coupon has been acquired by a bona fide purchaser, the Company
shall, subject to the following paragraph, execute, and the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security or in exchange for the Security to which a destroyed, lost or stolen
Coupon appertains (with all appurtenant Coupons not destroyed, lost or stolen),
a new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding, with Coupons corresponding
to the Coupons, if any, appertaining to such destroyed, lost or stolen Security
or to the Security to which such destroyed, lost or stolen Coupon appertains.
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<PAGE> 39
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, pay such Security or Coupon;
provided, however, that principal of and any premium and interest on Bearer
Securities shall, except as otherwise provided in Section 10.2, be payable only
at an office or agency located outside the United States.
Upon the issuance of any new Security under this Section, the
Company may require 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 any Coupons appertaining
thereto, 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 any Coupons appertaining thereto, or the destroyed, lost or stolen
Coupon shall be at any time enforceable by anyone, and any such new Security
and Coupons, if any, 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 3.7 Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 3.1 with
respect to any series of Securities, interest on any Registered Security which
is payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest; provided, however, that each installment
of interest 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 3.8, to the address of such
Person as it appears on the Security Register or (ii) transfer to an account
maintained by the payee located inside the United States.
Unless otherwise provided as contemplated by Section 3.1 with
respect to the Securities of any series, payment of interest may be made, in
the case of a Bearer Security, by transfer to an account maintained by the
payee with a bank located outside the United States.
Unless otherwise provided as contemplated by Section 3.1, every
permanent global Security will provide that interest, if any, payable on any
Interest Payment Date will be paid to DTC, Euroclear and/or CEDEL, as the case
may be, with respect to that portion of such
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<PAGE> 40
permanent global Security held for its account by Cede & Co. or the Common
Depositary, as the case may be, for the purpose of permitting such party to
credit the interest 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.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at
its election in each case, as provided in Clause (1) and (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,
and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this Clause
provided. Thereupon the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days prior to
the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at
the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage
prepaid, to each Holder of Registered Securities of such
series at the address of such Holder as it appears in the
Security Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid
to the Persons in whose names the Registered Securities of
such series (or their respective Predecessor Securities) are
registered
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at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following Clause
(2); and
(2) The Company may make payment of any Defaulted Interest
on the Registered Securities of any series in any other
lawful manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed,
and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the
proposed payment pursuant to this Clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section
3.5, 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.
In the case of any Security which is converted into Common Stock of
the Company after any Regular Record Date and on or prior to the next
succeeding Interest Payment Date (other than any Security whose Maturity is
prior to such Interest Payment Date), interest whose Stated Maturity is on such
Interest Payment Date shall be payable on such Interest Payment Date
notwithstanding such conversion, and such interest (whether or not punctually
paid or duly provided for) 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 such Regular Record Date. Except as otherwise expressly provided
in the immediately preced ing sentence, in the case of any Security which is
converted, interest whose Stated Maturity is after the date of conversion of
such Security shall not be payable.
SECTION 3.8 Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration
of transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name such Registered Security is
registered as the owner of such Registered Security for the purpose of
receiving payment of principal of (and premium, if any) and (subject to
Sections 3.5 and 3.7) any interest on such Security and for all other purposes
whatsoever, whether or not such Security shall 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.
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 shall 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.
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Except as provided in Section 3.5, owners of beneficial interests
in a Global Security shall not be entitled to have Securities represented by
such Global Security registered in their names, shall not receive or be
entitled to receive physical delivery of Securities in certificated form and
shall not be considered the Holders thereof for any purpose under this
Indenture. Members or participants in the Depository shall have no rights
under this Indenture with respect to any Global Security held on their behalf
by the Depository, and such Depository may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the Holder of such
Global Security under this Indenture. 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 the
Depository, as a Holder, with respect to such Global Security or impair, as
between the Depository and owners of beneficial interests in such Global
Security, the operation of customary practices governing the exercise of the
rights of the Depository (or its nominee) as Holder of such Global Security.
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 or for the delivery to
any member of or participants in the Depository of any notice permitted or
required to be given to the Holders of the Securities under this Indenture.
SECTION 3.9 Cancellation.
All Securities and Coupons surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee. All Registered Securities and matured Coupons so
delivered shall be promptly cancelled by the Trustee. All Bearer Securities and
unmatured Coupons so delivered shall be cancelled. All Bearer Securities and
unmatured Coupons held by the Trustee pending such cancellation or reissuance
shall be deemed to be delivered for cancellation for all purposes of this
Indenture and the Securities. 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. 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, or in the absence of a Company Order, may be destroyed by the Trustee;
provided, however, that the Trustee shall not be required to destroy such
cancelled Securities.
Notwithstanding the foregoing, with respect to any Book-Entry
Security, nothing herein shall prevent the Company, the Trustee or any agent of
the Company or the Trustee, from
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giving effect to any written certification, proxy or other authorization
furnished by a Depository or impair, as between a Depository and holders of
beneficial interests in any Book-Entry Security, the operation of customary
practices governing the exercise of the rights of the Depositary (or its
nominee) as Holder of such Book-Entry Security.
SECTION 3.10 Computation of Interest.
Except as otherwise specified as contemplated by Section 3.1 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 3.11 Electronic Security Issuance.
The Securities may, pursuant to a Board Resolution and Officers'
Certificate complying with Section 3.1 hereof, be issued by means of an
electronic issuance system. Any such Security issuance instructions may specify
the name, address and taxpayer identification number of the Holder, the
principal amount and Maturity of the Security, the interest rate to be borne by
the Security and any other terms not inconsistent with such Board Resolution
and Officers' Certificate. Nothing in this Section 3.11 shall be construed as
prohibiting the Company from issuing Securities by any means not inconsistent
with the provisions of this Indenture.
SECTION 3.12 CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the CUSIP numbers.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 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 any right to receive
additional amounts, as provided in Section 10.4), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when:
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(1) either
(A) all Securities theretofore authenticated and delivered
and all Coupons, if any, appertaining thereto (other than (i)
Coupons appertaining to Bearer Securities surrendered for
exchange for Registered Securities and maturing after such
exchange, whose surrender is not required or has been waived
as provided in Section 3.5, (ii) Securities and Coupons which
have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.6, (iii) Coupons
appertaining to Securities called for redemption and maturing
after the relevant Redemption Date, whose surrender has been
waived as provided in Section 11.6, and (iv) Securities and
Coupons 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 10.3) have been
delivered to the Trustee for cancellation; or
(B) all such Securities and, in the case of (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) are to be called for redemption within one
year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee
in the name, and at the expense, of the Company, and
the Company, in the case of (i), (ii) or (iii) above,
has deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose, an
amount sufficient to pay and discharge the entire
indebtedness on such Securities and Coupons not
theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and
any 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, 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 6.5, the
obligations of the Company to any Authenti-
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cating Agent under Section 6.12 and, if money shall have been deposited with
the Trustee pursuant to clause (1)(B) of this Section, the obligations of the
Trustee under Section 4.2 and the last paragraph of Section 10.3 shall survive.
SECTION 4.2 Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3,
all money and U.S. Government Obligations deposited with the Trustee pursuant
to Section 4.1 or 4.3 and all money received by the Trustee in respect of such
U.S. Government Obligations 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 any interest for whose payment such money and U.S. Government
Obligations has been deposited with or received by the Trustee.
SECTION 4.3 Company's Option to Effect Defeasance or Covenant Defeasance.
If applicable to a particular series of Securities, the Company may
elect, at its option at any time, to have Section 4.4 or Section 4.5 applied to
any such series of Securities or any Securities of such series, as the case may
be, designated pursuant to Section 3.1 as being defeasible pursuant to such
Section 4.4 or 4.5, in accordance with any applicable requirements provided
pursuant to Section 3.1 and upon compliance with the conditions set forth below
in this Article. Any such election shall be evidenced by a Board Resolution or
in another manner specified as contemplated by Section 3.1 for such Securities.
SECTION 4.4 Discharge and Defeasance.
If this Section 4.4 is specified, as contemplated by Section 3.1,
to be applicable to Securities of any series, then notwithstanding Section 4.1
and upon compliance with the applicable conditions set forth in 4.6: (1) the
Company shall be deemed to have paid and discharged the entire indebtedness on
all the Outstanding Securities of any such series ("Defeasance"); and (ii) the
provisions of this Indenture as it relates to such Outstanding Securities shall
no longer be in effect (except as to the rights of Holders of Securities to
receive, solely from the trust fund described in Section 4.6, payment of (x)
the principal of (and premium, if any) and any installment of principal of (and
premium, if any) or interest on such Securities on the Stated Maturity of such
principal (and premium, if any) or installment of principal (and premium, if
any) or interest or upon optional redemption and/or (y) any mandatory sinking
fund payments or analogous payments applicable to the Securities of that series
on that day on which such payments are due and payable in accordance with the
terms of the Indenture and of such Securities, the Company's obligations with
respect to such Securities under Sections 3.4, 3.5, 3.6, 10.2, 10.3, and 10.4
and the rights, powers, trusts, duties and immunities of the Trustee hereunder,
including those under Section 6.7 hereof);
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SECTION 4.5 Covenant Defeasance.
If this Section 4.5 is specified, as contemplated by Section 3.1,
to be applicable to any series of Securities or any Securities of such series,
as the case may be, (1) the Company shall be released from its obligations
under Section 8.1(3) and Sections 10.4 through 10.9, inclusive, and any
covenants provided pursuant to Section 3.1(21), 9.1(2) or 9.1(6) for the
benefit of the Holders of such Securities that pursuant to the terms of such
Securities are defeasible pursuant to this Section 4.5 and (2) the occurrence
of any event specified in Sections 5.1(4) (with respect to any of Section
8.1(3), Sections 10.4 through 10.9, inclusive, and any such covenants provided
pursuant to Section 3.1(21), 9.1(2), or 9.1(6) and 5.1(9) (if pursuant to the
terms of such Securities this Section 4.5 is applicable to any such event
specified in Section 5.1(9)) shall be deemed not to be or result in an Event of
Default, in each case with respect to such Securities as provided in this
Section on and after the date the conditions set forth in Section 4.6 are
satisfied (hereinafter called "Covenant Defeasance"). For this purpose, such
Covenant Defeasance means that, with respect to such Securities, 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 5.1(4) and 5.1(9)), 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 such Securities
shall be unaffected thereby.
SECTION 4.6 Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section
4.4 or Section 4.5 to any applicable series of Securities or any Securities of
such series, as the case may be.
(1) either
(A) with respect to all Outstanding Securities of such
series or such Securities of such Series, as the case may be,
with reference to this Section 4.6, the Company has deposited
or caused to be deposited with the Trustee irrevocably (but
subject to the provisions of Section 4.2 and the last
paragraph of Section 10.3), as trust funds in trust,
specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities, (X) lawful
money of the United States in an amount, or (Y) U.S.
Government Obligations which through the payment of interest
and principal in respect thereof in accordance with their
terms will provide not later than the opening of business on
the due dates of any payment referred to in clause (i) or
(ii) of this subparagraph (1)(A) lawful money of the United
States in an amount, or (Z) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and
discharge (i) the principal of (and premium, if any) and each
installment of principal of (and premium, if any) and
interest on such Securities at the Stated Maturity of such
principal or
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installment of principal or interest or upon optional
redemption and (ii) any mandatory sinking fund payments or
analogous payments applicable to such Securities on the day
on which such payments are due and payable in accordance with
the terms of this Indenture and of such Securities; or
(B) the Company has properly fulfilled such other means of
satisfaction and discharge as is specified, as contemplated
by Section 3.1, to be applicable to the Securities of such
series;
(2) the Company has paid or caused to be paid all other sums
payable with respect to such Securities;
(3) such deposit will not result in a breach or violation
of, or constitute a default under, this Indenture or any
other agreement or instrument to which the Company is a party
or by which it is bound;
(4) no Event of Default or event which with the giving of
notice or lapse of time, or both, would become an Event of
Default with respect to such Securities shall have occurred
and be continuing on the date of such deposit and no Event of
Default under Section 5.1(5) or Section 5.1(6) or event which
with the giving of notice or lapse of time, or both, would
become an Event of Default under Section 5.1(5) or Section
5.1(6) shall have occurred and be continuing on the 91st day
after such date;
(5) in the event of an election to have Section 4.4 apply to
any series of Securities, the Company has delivered to the
Trustee an Opinion of Counsel to the effect that (a) the
Company has received from, or there has been published by,
the Internal Revenue Service a ruling, or (b) since the date
of this Indenture there has been a change in applicable
Federal income tax law, in either case to the effect that,
and based thereon such Opinion of Counsel shall confirm that,
the Holders of Securities of such series will not recognize
income, gain or loss for Federal income tax purposes as a
result of such deposit, defeasance and discharge and will be
subject to Federal income tax on the same amount and in the
same manner and at the same times as would have been the case
if such deposit, defeasance and discharge had not occurred;
(6) in the event of an election to have Section 4.5 apply to
any series of Securities, the Company shall have delivered to
the Trustee an Opinion of Counsel, to the effect that the
Holders of such Securities will not recognize gain or loss
for Federal income tax purposes as a result of the deposit
and Covenant Defeasance to be effected with respect to such
Securities 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;
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(7) if the Securities of that series are then listed on any
domestic or foreign securities exchange, the Company shall
have delivered to the Trustee an Opinion of Counsel to the
effect that such deposit, defeasance and discharge will not
cause such Securities to be desisted; and
(8) 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
Defeasance or Covenant Defeasance with respect to such
Securities of any such series have been complied with and an
Opinion of Counsel to the effect that either (i) as a result
of such deposit and the related exercise of the Company's
option under this Article, registration is not required under
the Investment Company Act of 1940, as amended, by the
Company, the trust funds representing such deposit or the
Trustee or (ii) all necessary registrations under said Act
have been effected.
Any deposits with the Trustee referred to in Section 4.6(1)(A)
above shall be irrevocable and shall be made under the terms of an escrow/trust
agreement in form and substance satisfactory to the Trustee. If any Outstanding
Securities of such series are to be redeemed prior to their Stated Maturity,
whether pursuant to any optional redemption provisions or in accordance with
any mandatory sinking fund requirement, the applicable escrow trust agreement
shall provide therefor and the Company shall make such arrangements as are
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company.
Upon Defeasance with respect to all the Securities of a series, the
terms and conditions of such Securities, including the terms and conditions
with respect thereto set forth in this Indenture, shall no longer be binding
upon, or applicable to, the Company; provided that the Company shall not be
discharged from any payment obligations in respect of Securities which are
deemed not to be Outstanding under clause (iii) of the definition thereof if
such obligations continue to be valid obligations of the Company under
applicable law.
Notwithstanding the cessation, termination and discharge of all
obligations, covenants and agreements (except as provided above in this Section
4.6) of the Company under this Indenture with respect to any series of
Securities, the obligations of the Company to the Trustee under Section 6.5,
and the obligations of the Trustee under Section 4.2 and the last paragraph of
Section 10.3 shall survive with respect to such series of Securities.
Anything in this Article 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 this
Section 4.6 with respect to any Securities which, 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 which would then be required to be deposited to effect the
Defeasance or Covenant Defeasance, as the case may be, with respect to such
Securities.
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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 4.1 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of Outstanding Securities.
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default.
"Event of Default", wherever used herein with respect to Securities
of any series, means any one of the following events which shall have occurred
and be continuing (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) default in the payment of any interest upon or any
additional amounts payable in respect of any Security of that
series 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 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 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) failure by the Company to make any payment at maturity,
including any applicable grace period, in respect of
indebtedness, which term as used herein means obligations
(other than the Securities of such series or non-recourse
obli-
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gations) of, or guaranteed or assumed by, the Company for
borrowed money or evidenced by bonds, debentures, notes or
other similar instruments ("Indebtedness") in an amount in
excess of $10,000,000 or the equivalent thereof in any other
currency or composite currency and such failure shall have
continued for a period of 30 days after written notice
thereof shall have been given by registered or certified
mail, return receipt requested, to the Company by the
Trustee, or to the Company and the Trustee by the Holders of
not less than 25% in aggregate principal amount of the
Outstanding Securities (treated as one class); or
(6) a default with respect to any Indebtedness, which
default results in the acceleration of Indebtedness in an
amount in excess of $10,000,000 or the equivalent thereof in
any other currency or composite currency without such
Indebtedness having been discharged or such acceleration
having been cured, waived, rescinded or annulled for a period
of 30 days after written notice thereof shall have been given
by registered or certified mail, return receipt requested, to
the Company by the Trustee, or to the Company and the Trustee
by the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities (treated as one class);
or
(7) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company
in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or
other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company
under any applicable Federal or State law, or appointing a
custodian, receiver, liquidation, assignee, trustee,
sequestrator or other similar official of the Company or of
any substantial part of their property, or ordering the
winding up or liquidation of its affairs, and the continuance
of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60
consecutive days; or
(8) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any
other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a decree or
order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law
or to the commencement of any bankruptcy or insolvency case
or proceeding against it, or the filing by it of a petition
or answer or consent seeking reorganization or relief under
any applicable Federal or State law, or the consent by it to
the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidation,
assignee, trustee, sequestrator or similar official of the
Company or of any substantial part of their property, or the
making by it of an assign-
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ment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they
become due, or the taking of corporate action by the Company
in furtherance of any such action; or
(9) any other Event of Default provided with respect to
Securities of that series.
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at
the time Outstanding occurs and is continuing, then in 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,
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.
At any time after such a declaration of acceleration with respect
to Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of at least a majority in principal amount
of the Outstanding Securities of that series, by written notice to the Company
and the Trustee, may rescind and annul such declaration and its consequences
if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay,
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise
than by such declaration of acceleration and 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 overdue interest at the rate or rates
prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of
Securities of that series which have become due
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solely by such declaration of acceleration, have been cured
or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair
any right consequent thereon.
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if,
(1) default is made in the payment of any interest on any
Security of any series when such interest becomes due and
payable and such default continues for a period of 30 days,
or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security of any series at the
Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities of that series and any Coupons appertaining thereto,
the whole amount then due and payable on such Securities of that series and
Coupons for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and on the premium, if any, and overdue interest, at the rate or
rates prescribed therefor in such Securities of that series and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Securities
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such
Securities, 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 Coupons appertaining thereto 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.
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SECTION 5.4 Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company or any other obligor upon
the Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal and any premium and interest owing and unpaid in
respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel) and of the Holders of
Securities and Coupons 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, liquidation, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities 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 of Securities and Coupons, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 6.7.
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.
SECTION 5.5 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 Coupons 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
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for the ratable benefit of the Holders of the Securities and Coupons in respect
of which such judgment has been recovered.
SECTION 5.6 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 any
premium or interest, upon presentation of the Securities or Coupons, or both,
as the case may be, and the notation thereon of the payment if only partially
paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 6.7;
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium 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 and Coupons for principal and any
premium and interest, respectively; and
THIRD: To the payment of the remainder, if any, to the
Company.
SECTION 5.7 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 indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to
institute any such proceeding; and
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(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 5.8 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 any premium and
(subject to Section 3.7) interest on such Security, and any additional amounts
contemplated by Section 10.4 in respect of such Security or payment of such
Coupon on the Stated Maturity or Maturities expressed in such Security or
Coupon (or, in the case of redemption, on the Redemption Date) and to institute
suit for the enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder.
SECTION 5.9 Restoration of Rights and Remedies.
If the Trustee or any Holder of a 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 of Securities and Coupons shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 5.10 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 3.6, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders of Securities or Coupons is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.11 Delay or Omission Not Waiver.
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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 of Securities or
Coupons may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders of Securities or Coupons, as the
case may be.
SECTION 5.12 Control by Holders of Securities.
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.
SECTION 5.13 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 Coupons appertaining thereto waive any past
default hereunder with respect to the Securities of such series and its
consequences, except a default
(1) in the payment of the principal of (or premium, if any)
or any interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article IX cannot be modified or amended without the consent
of the Holder of each Outstanding Security of such series
affected.
Upon any such waiver, such default shall cease to exist, 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.
SECTION 5.14 Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security or Coupon by his acceptance thereof shall be deemed to have agreed,
that any court may in its discretion re quire, in any suit for the enforcement
of any right or remedy under this Indenture, or in any
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suit against the Trustee for any action taken, suffered or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees and expenses, against
any party litigant in such suit, having due regard to the merits and good faith
of the claims or defenses made by such party litigant; but the provisions of
this Section shall not apply to any suit instituted by the Company, to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities of any series, or to any suit instituted by any Holder
of any Security or Coupon for the enforcement of the payment of the principal
of or any premium or interest on any Security or the payment of any Coupon on
or after the Stated Maturity or Maturities expressed in such Security or Coupon
(or, in the case of redemption, on or after the Redemption Date).
SECTION 5.15 Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law and covenants that it will not hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE VI
THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee; During Default; Prior
to Default.
With respect to the Holders of any series of Securities issued
hereunder, the Trustee, prior to the occurrence of an Event of Default with
respect to the Securities of a particular series and after the curing or
waiving of all Events of Default which may have occurred with respect to such
series, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default with
respect to the Securities of a series has occurred (which has not been cured or
waived), the Trustee shall exercise with respect to such series of Securities
such of the rights and powers vested in it by this Indenture, and shall use the
same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
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No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own wilful misconduct, except that:
(a) prior to the occurrence of an Event of Default with respect
to the Securities of any series and after the curing or waiving of all such
Events of Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with respect
to the Securities of any series shall be determined solely by
the express provisions of this Indenture, and the Trustee
shall not be liable except for the performance of such duties
and obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee,
the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon any statements, certificates or opinions
furnished to the Trustee and conforming to the requirements
of this Indenture; but in the case of any such statements,
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of
this Indenture;
(b) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders pursuant to Section 5.12 relating to the time, method
and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under this
Indenture.
No provision of this Indenture shall 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.
SECTION 6.2 Certain Rights of Trustee.
Subject to the provisions of the Trust Indenture Act:
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(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, Coupon,
other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or
Company Order or as otherwise expressly provided herein and
any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection
and the 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) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note,
Coupon, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the
Company, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or
by or through agents or attorneys 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.
SECTION 6.3 Not Responsible for Recitals or Issuance of Securities.
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The recitals contained herein and in the Securities (except the
Trustee's certificate 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 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 its
Statement of Eligibility on Form T-1 supplied to the Company are true and
accurate. 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 6.4 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 Section 6.8 and 6.10, 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 6.5 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 in writing with the Company.
SECTION 6.6 Compensation and Reimbursement..
The Company agrees:
(1) to pay to the Trustee or any predecessor Trustee from
time to time such compensation as shall be agreed to between
the Company and the Trustee for all services rendered by it
hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee or any predecessor 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 compensation
and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as
may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee and any predecessor Trustee
for, and to hold it harmless against, any and all loss,
damage, claim, liability or expense, including taxes (other
than taxes based on the income of the Trustee) incurred
without negligence or bad faith on its part, arising out of
or in connection with the acceptance
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or administration of the trust or trusts hereunder, including
the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance
of any of its powers or duties hereunder.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 5.1(7) or Section 5.1(8), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination of
this Indenture.
SECTION 6.7 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.8.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 6.8 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.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to the Trustee
and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 310(b) of
the Trust Indenture Act after written request therefor by the
Company or by any Holder of a Security 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 6.9
and Section 310(a) of the Trust Indenture Act 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, then, in any such case, (i) the
Company by a Board Resolution may remove the Trustee with
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respect to all Securities, or (ii) subject to Section 5.14
any Holder of a Security 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, 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.
(e) 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 6.8. 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
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 6.8, 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 of Securities of
that series and accepted appointment in the manner required by Section 6.8, any
Holder of a Security who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
in the manner provided in Section 1.6. 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 6.8 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and
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trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which (l) 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 as 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.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 6.9 Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
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SECTION 6.10 Corporate Trustee Required; Eligibility.
There shall be at all times a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000. 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. 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 hereunder specified in this
Article.
SECTION 6.11 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 the Trust Indenture Act regarding the collection
of claims against the Company (or any such other obligor).
SECTION 6.12 Merger, Conversion Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 6.13 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 au thenticate Securities of such series issued upon
original issue or upon exchange, registration of transfer or partial redemption
thereof or pursuant to Section 3.6, 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 accept-
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able to the Company. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of such Authenticating Agent, shall continue to be an
Authenticating Agent provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or such Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The 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, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall promptly give notice
of such appointment to all Holders of Securities pursuant to Section 1.6. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
The Bank of New York,
As Trustee
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By
Authenticating Agent
By
Authorized Signatory
If all of the Securities of a series may not be originally issued
at one time, and if the Company has an Affiliate eligible to be appointed as an
Authenticating Agent hereunder or the Trustee does not have an office capable
of authenticating Securities upon original issuance located in a Place of
Payment where the Company wishes to have Securities of such series
authenticated upon original issuance, the Trustee, if so requested by the
Company in writing (which writing need not comply with Section 1.2 and need not
be accompanied by an Opinion of Counsel), shall appoint in accordance with this
Section an Authenticating Agent (which if so requested by the Company, shall be
such Affiliate of the Company) having an office in a Place of Payment
designated by the Company with respect to such series of Securities.
SECTION 6.14. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any
series, the Trustee shall, within 90 days of such occurrence, give the Holders
of Securities of such series notice of such default known to it as and to the
extent provided by the Trust Indenture Act; provided, however, that in the case
of any default of the character specified in Section 5.1(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,
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.
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of Securities (i)
contained in the most recent list furnished to the Trustee as provided in
Section 312(a) of the Trust Indenture Act, (ii) received by the Trustee in its
capacity as Security Registrar and (iii) filed with it within the two preceding
years pursuant to Section 313(c)(2) of the Trust Indenture Act. The Trustee may
(i) destroy any list furnished to it as provided in Section 312(a) of the Trust
Indenture Act upon receipt
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of a new list so furnished, (ii) destroy any information received by it as
Paying Agent (if so acting) hereunder upon delivering to itself as Trustee, not
earlier than March 20 or September 20 of each year, a list containing the names
and addresses of the Holders of Securities obtained from such information since
the delivery of the next previous list, if any, (iii) destroy any list
delivered to itself as Trustee which was compiled from information received by
it as Paying Agent (if so acting) hereunder upon the receipt of a new list so
delivered and (iv) destroy not earlier than two years after filing, any
information filed with it pursuant to Section 313(c)(2) of the Trust Indenture
Act. For purposes of Section 312(a) of the Trust Indenture Act, the term
"stated intervals" shall mean January 15 and July 15.
(b) If three or more Holders of Securities (herein referred to as
"applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Security for a period of
at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other Holders
of Securities with respect to their rights under this Indenture or under the
Securities and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee
shall, within five business days after the receipt of such application, at its
election, either
(i) afford such applicants access to the information
preserved at the time by the Trustee in accordance with
Section 7.1(a), or
(ii) inform such applicants as to the approximate number of
Holders of Securities whose names and addresses appear in the
information preserved at the time by the Trustee in
accordance with Section 7.1(a), and as to the approximate
cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of Securities whose name and address appears in
the information preserved at the time by the Trustee in accordance with Section
7.1(a) a copy of the form of proxy or other communication which is specified in
such request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment of the
reasonable expenses of mailing, unless within five days after such tender the
Trustee shall mail to such applicants and file with the Commission, together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be contrary to the best
interest of the Holders of Securities or would be in violation of applicable
law. Such written statement shall specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the objections specified in
the written statement so filed, shall enter an order refusing to sustain any of
such objections or if after the entry of an order sustaining one or more of
such objections, the Commission shall find, after notice and opportunity for
hearing that all the objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail copies of such material to all such
Holders of Securities
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with reasonable promptness after the entry of such order and the renewal of
such tender; otherwise the Trustee shall be relieved of any obligation or duty
to such applicants respecting their application.
(c) Every Holder of Securities or Coupons, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders of Securities in accordance with Section 7.1(b),
regardless of the source from which such information was derived and that the
Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 7.1(b).
SECTION 7.2 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 the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
If required by Section 313(a) of the Trust Indenture Act, the Trustee shall,
within sixty days after each May 15 following the date of this Indenture
deliver to Holders a report, dated as of such May 15, which complies with the
provisions of such Section 313(a).
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 promptly notify the Trustee when any Securities are listed on any stock
exchange or market center.
SECTION 7.3. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company
is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other reports
(or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange
Act; or, if the Company is not required to file information,
documents or reports pursuant to either of such Sections, then it
shall file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13
of the Exchange Act in respect of a security listed and registered
on a national securities exchange as may be prescribed from time to
time in such rules and regulations;
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(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports
required to be filed with respect to compliance by the Company with
the conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations; and
(3) transmit to all Holders, in the manner and to the extent
provided in Trust Indenture Act Section 313(c), within 30 days
after the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the
Company pursuant to paragraphs (1) and (2) of this Section as may
be required by rules and regulations prescribed from time to time
by the Commission.
Delivery of such reports, information and documents to the Trustee
is for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
ARTICLE VIII
CONSOLIDATION, MERGER, SALE, LEASE,
TRANSFER OR OTHER DISPOSITION
SECTION 8.1 Company May Consolidate, Etc. Only on Certain Terms.
The Company shall not consolidate with or merge with or into any
other Person or sell, lease, transfer or otherwise dispose of its assets
substantially as an entirety to any Person, and the Company shall not permit
any Person to consolidate with or merge with or into the Company or to sell,
lease, transfer or otherwise dispose of its assets substantially as an entirety
to the Company, unless:
(1) either the Company shall be the continuing corporation,
or, in case the Company shall consolidate with or merge with
or into another Person or sell, lease, transfer or otherwise
dispose of its assets substantially as an entirety to any
Person, the Person formed by such consolidation or into which
the Company is merged or the Person which acquires by sale,
lease, transfer or otherwise, the assets of the Company
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 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
any premium and interest (including all additional amounts,
if any, payable pursuant to Section 10.4) on all the
Securities and the performance
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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 a 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 sale, lease, transfer or other disposition of the 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 effectively to 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, sale, lease, transfer or
other disposition 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 8.2 Successor Substituted.
Upon any consolidation or merger of the Company with or into any
other Person or any sale, lease, transfer or other disposition of the assets of
the Company substantially as an entirety in accordance with Section 8.1, the
successor Person formed by such consolidation or into which the Company is
merged or to which sale, lease, transfer or other disposition is made shall
assume the obligations of the Company on the Securities and under this
Indenture with the same effect as if such successor Person had been named as
the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under
this Indenture and the Securities and Coupons.
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ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 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 (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 for the benefit of less than all
series of Securities, stating that such Events of Default are
expressly being included solely for the benefit of such
series); or
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be
registerable as to principal, to change or eliminate any
restrictions on the payment of principal of or any premium or
interest on Bearer Securities, to permit Bearer Securities to
be issued in exchange for Registered Securities, to permit
Bearer Securities to be issued in exchange for Bearer
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 change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall
become effective only when there is no Security Outstanding
of any series created prior to the execution of such
supplemental indenture which is entitled to the benefit of
such provision; or
(6) to secure the Securities pursuant to the requirements of
Section 10.7 or otherwise; or
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(7) to establish the form or terms of Securities of any
series and any related Coupons as permitted by Sections 2.1
and 3.1; or
(8) to evidence and provide for the acceptance of
appointment thereunder by a successor Trustee with respect to
the Securities of one or more series and to add to or change
any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the
requirements of Section 6.8(b); or
(9) to make provision with respect to the conversion rights
of Holders pursuant to the requirements of Article XIV,
including providing for the conversion of the Securities into
any security or property (other than the Common Stock of the
Company); or
(10) 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 shall not adversely affect the
interests of the Holders of Securities of any series or any
related Coupons in any material respect.
SECTION 9.2 Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of 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 and any related Coupons under this
Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Security affected
thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or
reduce the principal amount thereof or the rate of interest
thereon or any premium payable upon the redemption thereof,
or change any obligation of the Company to pay additional
amounts pursuant to Section 10.4 (except as contemplated by
Section 8.1(1) and permitted by Section 9.1(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 5.2
or change the coin or currency in which any Security or any
premium 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, on or after the Redemption Date), or
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(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
certain defaults hereunder and their consequences provided
for in this Indenture, or reduce the requirements of Section
13.4 for quorum or voting, or
(3) change any obligation of the Company to maintain an
office or agency in the places and for the purposes specified
in Section 10.2, or
(4) modify any of the provisions of this Section or Section
5.13, 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 of a Security or Coupon with respect to changes
in the references to "the Trustee" and concomitant changes in
this Section or the deletion of this proviso, in accordance
with the requirements of Sections 6.8(b) and 9.1(8), or
(5) make any change that adversely affects the right to
convert any Security as provided in Article XIV or pursuant
to Section 3.1 (except as permitted by Section 9.1) or
decrease the conversion rate or increase the conversion price
of any such Security.
A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been included solely
for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of Securities
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 9.3 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 6.1) 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.
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SECTION 9.4 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 and of any Coupons appertaining thereto shall be bound
thereby.
SECTION 9.5 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act of 1939, as
amended, in effect on such date.
SECTION 9.6 Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE X
COVENANTS
SECTION 10.1 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 or cause to be paid the
principal of and any premium and interest on the Securities of that series in
accordance with the terms of the Securities, any Coupons appertaining thereto
and this Indenture. Unless otherwise specified as contemplat ed by Section 3.1
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
outside the United States of the several Coupons for such interest installments
as are evidenced thereby as they severally mature.
SECTION 10.2 Maintenance of Office or Agency.
If Securities of a series are issuable only as Registered
Securities, the Company will maintain in each Place of Payment for such series
an office or agency where Securities of that series may be presented or
surrendered for payment, where Securities of that series may
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be surrendered for registration of transfer, exchange, or conversion 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 (A) in The City of New York, an
office or agency where any Registered Securities of that series may be
presented or surrendered for payment, where any Registered Securities of that
series may be surrendered for registration of transfer, where Securities of
that series may be surrendered for conversion or exchange, where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served and where Bearer Securities of that series and
related Coupons may be presented or surrendered for payment in the
circumstances described in the following paragraph (and not otherwise), (B)
subject to any laws or regulations applicable thereto, in a Place of Payment
for that series which is located outside the United States, an office or agency
where Securities of that series and related Coupons may be presented and
surrendered for payment (including payment of any additional amounts payable on
Securities of that series pursuant to Section 10.4); provided, however, that if
the Securities of that series are listed 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 and such stock exchange shall
so require, the Company will maintain a Paying Agent for the Securities of that
series in London, Luxembourg or any other required city located outside the
United States, as the case may be, so long as the Securities of that series are
listed on such exchange, and (C) subject to any laws or regulations applicable
thereto in a Place of Payment for that series located outside the United States
an office or agency where any Registered Securities of that series may be
surrendered for registration of transfer, where Securities of that series may
be surrendered for conversion 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. The Company will give prompt notice to the Trustee and to the
Holders as provided in Sections 1.5 and 1.6, respectively, of the location and
any change in the location, of any such office or agency. If at any time the
Company shall fail to maintain any such required office or agency in respect of
any series of Securities or shall fail to furnish the Trustee with the address
thereof, such presentations and surrenders of Securities of that series may be
made and notices and demands may be made or served at the Corporate Trust
Office of the Trustee, 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 10.4) at the office of the Trustee for such series located outside
the United States, and the Company hereby appoints the same as its agent to
receive such respective presentations, surrenders, notices and demands.
No payment of principal, premium or interest on Bearer Securities
shall be made at any office or agency of the Company in the United States or by
check mailed to any address in the United States or by transfer to any account
maintained with a bank located in the United States; provided, however, that if
the Securities of a series are denominated and payable in Dollars, payment of
principal of and any premium and interest on any Bearer Security (including any
additional amounts payable on Securities of such series pursuant to Section
10.4) shall be made at the office of the Company's Paying Agent in The City of
New York, if (but
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only if) payment in Dollars of the full amount of such principal, premium,
interest or additional amounts, as the case may be, at all offices or agencies
outside the United States maintained for the purpose by the Company in
accordance with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in accordance with the requirements set forth above for Securities of
any series for such purposes. The Company will give prompt written notice to
the Trustee and the Holders of any such designation or rescission and of any
change in the location of any such other office or agency.
SECTION 10.3 Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of and any premium 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 any premium or interest so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure 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 and
any premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay the principal and any premium or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its action or
failure to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of and any premium or interest on Securities of
that series in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company
(or any other obligor upon the Securities of that series) in
the making of any payment of principal of and any premium or
interest on the Securities of that series; and
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(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of and any
premium or interest on any Security of any series and remaining unclaimed for
two years after such principal and any 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 or any Coupon appertaining thereto 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 an Authorized Newspaper in each Place of Payment, 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 10.4 Additional Amounts.
If the Securities of a series provide for the payment of additional
amounts, the Company will pay to the Holder of any Security of such series or
any Coupon appertaining thereto additional amounts as provided therein.
Whenever in this Indenture there is mentioned, in any context, the payment of
the principal of or any premium or interest on, or in respect of any Security
of any series or payment of any related Coupon or the net proceeds received on
the sale or exchange of any Security of any series, such mention shall be
deemed to include mention of the payment of additional amounts provided for in
this Section to the extent that, in such context additional amounts are, were
or would be payable in respect thereof pursuant to the provisions of this
Section and express mention of the payment of additional amounts (if
applicable) in any provisions hereof shall not be construed as excluding
additional amounts in those provisions hereof where such express mention is not
made.
If the Securities of a series provide for the payment of additional
amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a
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payment of principal and any premium is made), and at least 10 days prior to
each date of payment of principal and any premium or interest if there has been
any change with respect to the matters set forth in the below-mentioned
Officers' Certificate, the Company will furnish the Trustee and the Company's
principal Paying Agent or Paying Agents, if other than the Trustee, with an
Officers' Certificate instructing the Trustee and such Paying Agent or Paying
Agents whether such payment of principal of and any premium or interest on the
Securities of that series shall be made to Holders of Securities of that series
or any related Coupons who are United States Aliens without withholding for or
on account of any tax assessment or other governmental charge described in the
Securities of that series. If any such withholding shall be required, then such
Officers' Certificate shall specify by country the amount, if any, required to
be withheld on such payments to such Holders of Securities or Coupons and the
Company will pay to the Trustee or such Paying Agent the additional amounts
required by this Section. The Company covenants to indemnify the Trustee and
any Paying Agent for, and to hold them harmless against, any loss, liability or
expense reasonably incurred without negligence or willful misconduct 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.
SECTION 10.5 Existence.
Subject to Article VIII, 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 10.6 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 of its
Subsidiaries 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 10.7 Negative Pledge.
Neither the Company nor any successor corporation will, or will
permit any Subsidiary (as hereinafter defined) to, create, assume, incur or
guarantee any indebtedness for borrowed money secured by a pledge, lien or
other encumbrance (except for Permitted Liens, as hereinafter defined) on the
Voting Securities of Legg Mason Wood Walker, unless the Company shall cause the
Securities to be secured equally and ratably with (or, at the Company's option,
prior to) any indebtedness secured thereby. "Subsidiary" means any
corporation, part-
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nership or other entity of which at the time of determination the Company owns
or controls directly or indirectly more than 50% of the shares of Voting
Securities or equivalent interest. "Permitted Liens" means liens for taxes or
assessments or governmental charges or levies not then due and delinquent or
the validity of which is being contested in good faith or which are less than
$1,000,000 in amount, liens created by or resulting from any litigation or
legal proceeding which is currently being contested in good faith by
appropriate proceedings or which involves claims of less than $1,000,000,
deposits to secure (or in lieu of) surety, stay, appeal or customs bonds and
such other liens as the Board of Directors of the Company determines do not
materially detract from or interfere with the present value or control of the
Voting Securities subject thereto or affected thereby.
SECTION 10.8 Statement by Officers as to Default.
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 signed by its principal executive officer, principal
financial officer or principal accounting officer stating whether or not to the
best knowledge of the signer thereof the Company is in default in the
performance and observance of any of the terms, provisions and conditions of
this Indenture, and if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which they may have knowledge.
SECTION 10.9 Calculation of Original Issue Discount.
The Company shall file with the Trustee promptly at the end of each
calendar year a written notice specifying the amount of original issue discount
(including daily rates and accrual periods) accrued on Outstanding Securities
as of the end of such year.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 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 3.1 for Securities of any
series) in accordance with this Article.
SECTION 11.2 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by an Officers' Certificate. In the case of any redemption at the
election of the Company, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and
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of the principal amount of Securities of such series to be redeemed. In the
case of any redemption of Securities (i) prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, or (ii) pursuant to an election of the Company
which is subject to a condition specified in the terms of such Securities, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction or condition.
SECTION 11.3 Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series and of like 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 of like tenor 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 Registered Securities of
such series of a denomination larger than the minimum authorized denomination
for Securities of that series. If so specified in the Securities of a series,
partial redemptions must be in an amount not less than $1,000,000 principal
amount of Securities.
If any Security selected for partial redemption is converted 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) to be the portion selected for redemption. Securities
(or portions thereof) which have been converted during a selection of
Securities to be redeemed shall be treated by the Trustee as Outstanding for
the purpose of such selection. In any case where more than one Security is
registered in the same name, the Trustee in its discretion may treat the
aggregate principal amount so registered as if it were represented by one
Security.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 11.4 Notice of Redemption.
Notice of redemption shall be given in the manner provided in
Section 1.6 to the Holders of Securities to be redeemed not less than 30 nor
more than 60 days prior to the Redemption Date.
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Any notice that is mailed to Holders of Registered Securities in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the Holder receives the notice.
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, the principal amounts) of the
particular Securities to be redeemed, and a statement to the
effect that on or after the Redemption Date upon surrender of
such Security a new Security in the principal amount equal to
the unredeemed portion will be issued;
(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 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;
(6) that the redemption is for a sinking fund, if such is
the case; and
(7) if applicable, the conversion rate or price, the date on
which the right to convert the Securities to be redeemed will
terminate and the place or places where such Securities may
be surrendered for conversion.
A notice of redemption published as contemplated by Section 1.6
need not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's request, by
the Trustee in the name and at the expense of the Company.
SECTION 11.5 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 10.3) an amount of
money 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.
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If any Security called for redemption is converted into Common
Stock of the Company, any money deposited with the Trustee or with any Paying
Agent or so segregated and held in trust for the redemption of such Security
shall (subject to any right of the Holder of such Security or any Predecessor
Security to receive interest as provided in the last paragraph of Section 3.7)
be paid to the Company upon Company Request or, if then held by the Company,
shall be discharged from such trust.
SECTION 11.6 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities
so to be redeemed shall on the Redemption Date become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest and the Coupons for such
interest appertaining to any Bearer Securities so to be redeemed except to the
extent provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice together with all Coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price together with accrued interest to
the Redemption Date; provided, however, that installments of interest on Bearer
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only at an office or agency located outside the United States (except
as otherwise provided in Section 10.2) and, unless otherwise specified as
contemplated by Section 3.1, only upon presentation and surrender of Coupons
for such interest; and provided, further, that, unless otherwise specified as
contemplated by Section 3.1, installments of interest on Registered Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 3.7.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing Coupons, or the surrender of such
missing Coupon or Coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save
each of them and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to the Trustee or any Paying Agent any such missing
Coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted;
provided, however, that interest represented by Coupons shall be payable only
at an office or agency located outside the United States (except as otherwise
provided in Section 10.2) and unless otherwise specified as contemplated by
Section 3.1 only upon presentation and surrender of those Coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
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SECTION 11.7 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.
ARTICLE XII
SINKING FUNDS
SECTION 12.1 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 3.1 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 12.2. 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 12.2 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 in the case of any
Bearer Securities of such series with all unmatured Coupons appertaining
thereto, 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
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for redemption through operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly.
SECTION 12.3 Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for
any series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 12.2 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 45 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 11.3 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 11.4. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in
the manner stated in Sections 11.6 and 11.7.
ARTICLE XIII
MEETINGS OF HOLDERS OF SECURITIES
SECTION 13.1 Purposes for Which Meetings May be Called.
If Securities of a series are issuable 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 action
provided by this Indenture to be made, given or taken by Holders of Securities
of such series.
SECTION 13.2 Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 13.1, 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 1.6, not less than
21 nor more than 180 days prior to the date fixed for the meeting (or, in the
case of a meeting of Holders with respect to Securities of a series all or part
of which are represented by a Book-Entry Security, not less than 20 nor more
than 40 days).
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(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 25% 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 13.1, 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 13.3 Persons Entitled to Vote at Meetings.
Upon the calling of a meeting of Holders with respect to the
Securities of a series all or part of which are represented by a Book-Entry
Security, a record date shall be established for determining Holders of
Outstanding Securities of such series entitled to vote at such meeting, which
record date shall be the close of business on the day the notice of the meeting
of Holders is given in accordance with Section 13.2. The Holders on such record
date, and their designated proxies, and only such Persons, shall be entitled to
vote at any meeting of Holders. To be entitled to vote at any meeting of
Holders a Person shall (a) be a Holder of one or more Outstanding Securities or
(b) be a Person appointed by an instrument in writing as proxy by a Holder of
one or more Securities; provided, however, that in the case of any meeting of
Holders with respect to the Securities of a series all or part of which are
represented by a Book-Entry Security, only Holders, or their designated
proxies, of record on the record date established pursuant to Section 13.3
hereof shall be entitled to vote at such meeting. The only Persons who shall be
entitled to be present or to speak at any meeting of Holders shall be the
Persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 13.4 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 or waiver which this
Indenture expressly provides may be given by the Holders of a specified
percentage in aggregate principal amount of Outstanding Securities of a series
that is less or greater than a majority in principal amount of the Outstanding
Securities of a series, then, with respect to such action (and only such
action) the Persons entitled to vote such lesser or greater percentage 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 any other case the meeting may
be adjourned for a period of not less than 10 days as determined by the
chairman of the meeting prior to the adjournment of
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such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such adjourned meeting. Notice of the reconvening of any adjourned meeting
shall be given as provided in Section 13.2 (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. Notwithstanding the foregoing, no meeting of Holders with
respect to Securities of any Series which is represented in whole or in part by
a Book-Entry Security, shall be adjourned to a date more than 90 days after the
record date for such meeting unless the Trustee shall send out a new notice of
meeting and establish, in accordance with Section 13.3, a new record date for
Holders entitled to vote at such meeting.
Except as limited by the proviso to Section 9.2, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum
is present as aforesaid may be adopted by the affirmative vote of the Holders
of a majority in principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to Section 9.2 any
resolution with respect to any consent or waiver which this Indenture expressly
provides may be given by the Holders of a specified percentage in aggregate
principal amount of Outstanding Securities of a series that is less or greater
than a majority in principal amount of the Outstanding Securities of a series
may be adopted at a meeting or an adjourned meeting duly convened and at which
a quorum is present as aforesaid only 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 13.5 Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of a series in regard to proof of the holding
of Securities of such series and of the appointment of proxies and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section
1.4 and the appointment of any proxy shall be proved in the manner specified in
Section 1.4 or by having the signature of the person executing the proxy
witnessed or guaranteed by any trust company, bank or banker authorized by
Section 1.4 to certify to the holding of Bearer Securities. Such regulations
may provide
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that written instruments appointing proxies, regular on their face, may be
presumed valid and genuine without the proof specified in Section 1.4 or other
proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 13.2(b), in
which case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting shall be elected
by vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each $ 1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 13.2 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 13.6 Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 13.2 and, if
applicable, Section 13.4. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE XIV
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CONVERSION OF SECURITIES
SECTION 14.1 Applicability of Article.
The provisions of this Article shall be applicable to the
Securities of any series which are convertible into shares of Common Stock of
the Company, and the issuance of such shares of Common Stock upon the
conversion of such Securities, except as otherwise specified as contemplated by
Section 3.1 for the Securities of such series. The terms and provisions
applicable to the conversion of Securities of any series into securities of the
Company (other than Common Stock) shall, if applicable, be set forth in an
Officers' Certificate or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of such series in accordance with
Section 3.1.
SECTION 14.2 Exercise of Conversion Privilege.
In order to exercise a conversion privilege, the Holder of a
Security of a series with such a privilege shall surrender such Security to the
Company at the office or agency maintained for that purpose pursuant to Section
10.2, accompanied by written notice to the Company that the Holder elects to
convert such Security or a specified portion thereof. Such notice shall also
state, if different from the name and address of such Holder, the name or names
(with address) in which the certificate or certificates for shares of Common
Stock which shall be issuable on such conversion shall be issued. Securities
surrendered for conversion shall (if so required by the Company or the Trustee)
be duly endorsed by or accompanied by instruments of transfer in forms
satisfactory to the Company and the Trustee duly executed by the registered
Holder or its attorney duly authorized in writing; and Securities so
surrendered for conversion during the period from the close of business on any
Regular Record Date to the opening of business on the next succeeding Interest
Payment Date (excluding Securities or portions thereof called for redemption
during such period) shall also be accompanied by payment in funds acceptable to
the Company of an amount equal to the interest payable on such Interest Payment
Date on the principal amount of such Security then being converted, and such
interest shall be payable to such registered Holder notwithstanding the
conversion of such Security, subject to the provisions of Section 3.7 relating
to the payment of Defaulted Interest by the Company. As promptly as practicable
after the receipt of such notice and of any payment required pursuant to a
Board Resolution and, subject to Section 3.1, set forth, or determined in the
manner provided, in an Officers' Certificate, or established in one or more
indentures supplemental hereto setting forth the terms of such series of
Security, and the surrender of such Security in accordance with such reasonable
regulations as the Company may prescribe, the Company shall issue and shall
deliver, at the office or agency at which such Security is surrendered, to such
Holder or on its written order, a certificate or certificates for the number of
full shares of Common Stock issuable upon the conversion of such Security (or
specified portion thereof), in accordance with the provisions of such Board
Resolution, Officers' Certificate or supplemental indenture, and cash as
provided therein in respect of any fractional share of such Common Stock
otherwise issuable upon such conver-
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sion. Such conversion shall be deemed to have been effected immediately prior
to the close of business on the date on which such notice and such payment, if
required, shall have been received in proper order for conversion by the
Company and such Security shall have been surrendered as aforesaid (unless such
Holder shall have so surrendered such Security and shall have instructed the
Company to effect the conversion on a particular date following such surrender
and such Holder shall be entitled to convert such Security on such date, in
which case such conversion shall be deemed to be effected immediately prior to
the close of business on such date) and at such time the rights of the Holder
of such Security as such Security Holder shall cease and the person or persons
in whose name or names any certifi cate or certificates for shares of Common
Stock of the Company shall be issuable upon such conversion shall be deemed to
have become the holder or holders of record of the shares represented thereby.
Except as set forth above and subject to the final paragraph of Section 3.7, no
payment or adjustment shall be made upon any conversion on account of any
interest accrued on the Securities surrendered for conversion or on account of
any dividends on the Common Stock of the Company issued upon such conversion.
In the case of any Security which is converted in part only, upon
such conversion the Company shall execute and the Trustee shall authenticate
and deliver to or on the order of the Holder thereof, at the expense of the
Company, a new Security or Securities of the same series, of authorized
denominations, in aggregate principal amount equal to the unconverted portion
of such Security.
SECTION 14.3 No Fractional Shares.
No fractional share of Common Stock of the Company shall be issued
upon conversions of Securities of any series. If more than one Security shall
be surrendered for conversion at one time by the same Holder, the number of
full shares which shall be issuable upon conversion shall be computed on the
basis of the aggregate principal amount of the Securities (or specified
portions thereof to the extent permitted hereby) so surrendered. If, except for
the provisions of this Section 14.3, any Holder of a Security or Securities
would be entitled to a fractional share of Common Stock of the Company upon the
conversion of such Security or Securities, or specified portions thereof, the
Company shall pay to such Holder an amount in cash equal to the current market
value of such fractional share computed, (i) if such Common Stock is listed or
admitted to unlisted trading privileges on a national securities exchange, on
the basis of the last reported sale price regular way on such exchange on the
last trading day prior to the date of conversion upon which such a sale shall
have been effected, or (ii) if such Common Stock is not at the time so listed
or admitted to unlisted trading privileges on a national securities exchange,
on the basis of the average of the bid and asked prices of such Common Stock in
the over-the-counter market, on the last trading day prior to the date of
conversion, as reported by the National Quotation Bureau, Incorporated or
similar organization if the National Quotation Bureau, Incorporated is no
longer reporting such information, or if not so available, the fair market
price as determined by the Board of Directors. For purposes of this Section,
"trading day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
other than any day on which the Common Stock is not
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traded on the New York Stock Exchange, or if the Common Stock is not traded on
the New York Stock Exchange, on the principal exchange or market on which the
Common Stock is traded or quoted.
SECTION 14.4 Adjustment of Conversion Price.
The conversion price of Securities of any series that is
convertible into Common Stock of the Company shall be adjusted for any stock
dividends, stock splits, reclassification, combinations or similar transactions
in accordance with the terms of the supplemental indenture or Board Resolutions
setting forth the terms of the Securities of such series.
Whenever the conversion price is adjusted, the Company shall
compute the adjusted conversion price in accordance with terms of the
applicable Board Resolution or supplemental indenture and shall prepare an
Officers' Certificate setting forth the adjusted conversion price and showing
in reasonable detail the facts upon which such adjustment is based, and such
certificate shall forthwith be filed at each office or agency maintained for
the purpose of conversion of Securities pursuant to Section 10.2 and, if
different, with the Trustee. The Company shall forthwith cause a notice setting
forth the adjusted conversion price to be mailed, first class postage prepaid,
to each Holder of Securities of such series at its address appearing on the
Security Register and to any conversion agent other than the Trustee.
SECTION 14.5 Notice of Certain Corporate Actions.
In case:
(a) the Company shall declare a dividend (or any other
distribution) on its Common Stock payable otherwise than in
cash out of its retained earnings (other than a dividend for
which approval of any shareholders of the Company is
required); or
(b) the Company shall authorize the granting to the holders
of its Common Stock of rights, options or warrants to
subscribe for or purchase any shares of capital stock of any
class or of any other rights (other than any such grant for
which approval of any shareholders of the Company is
required); or
(c) of any reclassification of the Common Stock of the
Company (other than a subdivision or combination of its
outstanding shares of Common Stock) or of any consolidation,
merger or share exchange to which the Company is a party and
for which approval of any shareholders of the Company is
required, or of the sale of all or substantially all of the
assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation
or winding up of the Company;
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<PAGE> 91
then the Company shall cause to be filed with the Trustee, and shall cause to
be mailed to all Holders at their last addresses as they shall appear in the
Security Register, at least 20 days (or 10 days in any case specified in clause
(a) or (b) above) prior to the applicable record date hereinafter specified, a
notice stating (i) the date on which a record is to be taken for the purpose of
such dividend, distribution, rights, options or warrants, or, if a record is
not to be taken, the date as of which the holders of Common Stock of record to
be entitled to such dividend, distribution, rights, options or warrants are to
be determined, or (ii) the date on which such reclassification, consolidation,
merger, share exchange, sale, dissolution, liquidation or winding up is
expected to become effective, and the date as of which it is expected that
holders of Common Stock of record shall be entitled to exchange their shares of
Common Stock for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, share exchange, sale, dissolution,
liquidation or winding up. If at any time the Trustee shall not be the
conversion agent, a copy of such notice shall also forthwith be filed by the
Company with the Trustee.
SECTION 14.6 Reservation of Shares of Common Stock.
The Company shall at all times reserve and keep available, free
from preemptive rights, out of its authorized but unissued Common Stock or
treasury shares, for the purpose of effecting the conversion of Securities, the
full number of shares of Common Stock of the Company then issuable upon the
conversion of all outstanding Securities of any series that has conversion
rights.
SECTION 14.7 Payment of Certain Taxes upon Conversion.
The Company will pay any and all taxes that may be payable in
respect of the issue or delivery of shares of its Common Stock on conversion of
Securities pursuant hereto. The Company shall not, however, be required to pay
any tax which may be payable in respect of any transfer involved in the issue
and delivery of shares of its Common Stock in a name other than that of the
Holder of the Security or Securities to be converted, and no such issue or
delivery shall be made unless and until the person requesting such issue has
paid to the Company the amount of any such tax, or has established, to the
satisfaction of the Company, that such tax has been paid.
SECTION 14.8 Nonassessability.
The Company covenants that all shares of its Common Stock which may
be issued upon conversion of Securities will upon issue in accordance with the
terms hereof be duly and validly issued and fully paid and nonassessable.
SECTION 14.9 Effect of Consolidation or Merger on Conversion Privilege.
In case of any consolidation of the Company with, or merger of the
Company into or with any other Person, or in case of any sale of all or
substantially all of the assets of the
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<PAGE> 92
Company, the Company or the Person formed by such consolidation or the Person
into which the Company shall have been merged or the Person which shall have
acquired such assets, as the case may be, shall execute and deliver to the
Trustee a supplemental indenture providing that the Holder of each Security
then outstanding of any series that is convertible into Common Stock of the
Company shall have the right, which right shall be the exclusive conversion
right thereafter available to said Holder (until the expiration of the
conversion right of such Security), to convert such Security into the kind and
amount of shares of stock or other securities or property (including cash)
receivable upon such consolidation, merger or sale by a holder of the number of
shares of Common Stock of the Company into which such Security might have been
converted immediately prior to such consolidation, merger or sale, subject to
compliance with the other provisions of this Indenture, such Security and such
supplemental indenture. Such supplemental indenture shall provide for
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in such Security. The above provisions of this Section
shall similarly apply to successive consolidations, mergers or sales. It is
expressly agreed and understood that anything in this Indenture to the contrary
notwithstanding, if, pursuant to such merger, consolidation or sale, holders of
outstanding shares of Common Stock of the Company do not receive shares of
common stock of the surviving corporation but receive other securities, cash or
other property or any combination thereof, Holders of Securities shall not have
the right to thereafter convert their Securities into common stock of the
surviving corporation or the corporation which shall have acquired such assets,
but rather, shall have the right upon such conversion to receive the other
securities, cash or other property receivable by a holder of the number of
shares of Common Stock of the Company into which the Securities held by such
holder might have been converted immediately prior to such consolidation,
merger or sale, all as more fully provided in the first sentence of this
Section 14.9. Anything in this Section 14.9 to the contrary notwithstanding,
the provisions of this Section 14.9 shall not apply to a merger or
consolidation of another corporation with or into the Company pursuant to which
both of the following conditions are applicable: (i) the Company is the
surviving corporation and (ii) the outstanding shares of Common Stock of the
Company are not changed or converted into any other securities or property
(including cash) or changed in number or character or reclassified pursuant to
the terms of such merger or consolidation.
As evidence of the kind and amount of shares of stock or other
securities or property (including cash) into which Securities may properly be
convertible after any such consolidation, merger or sale, or as to the
appropriate adjustments of the conversion prices applicable with respect
thereto, the Trustee shall be furnished with and may accept the certificate or
opinion of an independent certified public accountant with respect thereto;
and, in the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely thereon, and shall not be responsible or accountable to any
Holder of Securities for any provision in conformity therewith or approved by
such independent certified accountant which may be contained in said
supplemental indenture.
SECTION 14.10 Duties of Trustee Regarding Conversion.
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<PAGE> 93
Neither the Trustee nor any conversion agent shall at any time be
under any duty or responsibility to any Holder of Securities of any series that
is convertible into Common Stock of the Company to determine whether any facts
exist which may require any adjustment of the conversion price, or with respect
to the nature or extent of any such adjustment when made, or with respect to
the method employed, whether herein or in any supplemental indenture, any
resolutions of the Board of Directors or written instrument executed by one or
more officers of the Company provided to be employed in making the same.
Neither the Trustee nor any conversion agent shall be accountable with respect
to the validity or value (or the kind or amount) of any shares of Common Stock
of the Company, or of any securities or property, which may at any time be
issued or delivered upon the conversion of any Securities and neither the
Trustee nor any conversion agent makes any representation with respect thereto.
Neither the Trustee nor any conversion agent shall be responsible for any
failure of the Company to issue, transfer or deliver any shares of its Common
Stock or stock certificates or other securities or property upon the surrender
of any Security for the purpose of conversion or to comply with any of the
covenants of the Company contained in this Article XIV or in the applicable
supplemental indenture, resolutions of the Board of Directors or written
instrument executed by one or more duly authorized officers of the Company.
All Securities delivered for conversion shall be delivered to the Trustee to be
cancelled by or at the direction of the Trustee, which shall dispose of the
same as provided in Section 3.9.
SECTION 14.11 Repayment of Certain Funds upon Conversion.
Any funds which at any time shall have been deposited by the
Company or on its behalf with the Trustee or any other paying agent for the
purpose of paying the principal of, and premium, if any, and interest, if any,
on any of the Securities (including funds deposited for the sinking fund
referred to in Article III hereof) and which shall not be required for such
purposes because of the conversion of such Securities as provided in this
Article XIV shall after such conversion be repaid to the Company by the Trustee
upon the Company's written request.
* * * * *
This instrument may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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<PAGE> 94
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.
LEGG MASON, INC.
By /s/ Raymond A. Mason
----------------------------
[Seal] Name Raymond A. Mason
Title President
Attest:
/s/ F. James Tennies
- -----------------------
F. James Tennies
Assistant Secretary
THE BANK OF NEW YORK, as Trustee
By /s/ Byron Merino
------------------------------
[Seal] Name Byron Merino
Title Assistant Treasurer
Attest:
/s/ Stephen J. Giurlando
- --------------------------
Stephen J. Giurlando
Assistant Vice President
86
<PAGE> 1
================================================================================
LEGG MASON, INC.
TO
THE BANK OF NEW YORK,
AS TRUSTEE
_______________________
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF FEBRUARY 9, 1996
_______________________
$100,000,000 6 1/2% SENIOR NOTES DUE 2006
_______________________
SUPPLEMENT TO INDENTURE,
DATED AS OF FEBRUARY 9, 1996, BETWEEN
LEGG MASON, INC. AND
THE BANK OF NEW YORK, AS TRUSTEE
================================================================================
<PAGE> 2
FIRST SUPPLEMENTAL INDENTURE, dated as of February 9, 1996,
between LEGG MASON, INC., a Maryland corporation (the "Company"), having its
principal offices at 111 South Calvert Street, Baltimore, Maryland 21202 and
THE BANK OF NEW YORK, a New York banking corporation, as Trustee (the
"Trustee").
RECITALS
WHEREAS, the Company executed and delivered its Indenture (the
"Original Indenture"), dated as of February 9, 1996, to the Trustee to issue
from time to time for its lawful purposes senior debt securities evidencing its
unsecured and unsubordinated indebtedness.
WHEREAS, the Original Indenture provides that by means of a
supplemental indenture, the Company may create one or more series of its debt
securities and establish the form and terms and conditions thereof.
WHEREAS, the Company intends by this Supplemental Indenture to
(i) create a series of debt securities, in an aggregate principal amount of
$100,000,000, entitled "6 1/2% Senior Notes due 2006" (the "Notes"); and (ii)
establish the form and the terms and conditions of the Notes.
WHEREAS, the Board of Directors of the Company, acting through
authority delegated to its Finance Committee, has approved the creation of the
Notes and the form, terms and conditions thereof.
WHEREAS, the consent of Holders to the execution and delivery
of this Supplemental Indenture is not required, and all other actions required
to be taken under the Original Indenture with respect to this Supplemental
Indenture have been taken.
NOW, THEREFORE IT IS AGREED:
2
<PAGE> 3
ARTICLE I
DEFINITIONS, CREATION, FORM AND TERMS AND
CONDITIONS OF THE DEBT SECURITIES
SECTION 1.1 DEFINITIONS. Capitalized terms used in this Supplemental
Indenture and not otherwise defined shall have the meanings ascribed to them in
the Original Indenture. In addition, the following terms shall have the
following meanings to be equally applicable to both the singular and the plural
forms of the terms defined:
"DTC" means The Depository Trust Company.
"GLOBAL NOTE" means a single fully-registered global note in
book-entry form, without coupons, substantially in the form of Exhibit A
attached hereto.
"INDENTURE" means the Original Indenture as supplemented by
this First Supplemental Indenture.
"NOTES" means the Company's 6 1/2% Senior Notes due February
15, 2006, a form of which is attached hereto as Exhibit A.
SECTION 1.2 CREATION OF THE DEBT SECURITIES. In accordance with
Section 3.1 of the Original Indenture, the Company hereby creates the Notes as
a separate series of its debt securities issued pursuant to the Indenture. The
Notes shall be issued in an aggregate principal amount of $100,000,000. This
series of Notes may be reopened for issuances of additional Notes.
SECTION 1.3 FORM OF THE DEBT SECURITIES. The Notes will be
represented by a single fully-registered global note in book-entry form, without
coupons, registered in the name of the nominee of DTC. The Notes shall be in the
form of Exhibit A attached hereto. So long as DTC, or its nominee, is the
registered owner of a Global Note, DTC or its nominee, as the case may be, will
be considered the sole owner or holder of the notes represented by such Global
Note for all purposes under the Indenture. Ownership of beneficial interests in
the Global Note will be shown on, and transfers thereof will be effected only
through, records maintained by DTC (with respect to beneficial interests of
participants) or by participants
3
<PAGE> 4
or persons that hold interests through participants (with respect to beneficial
interests of beneficial owners).
SECTION 1.4 TERMS AND CONDITIONS OF THE DEBT SECURITIES. The Notes
shall be governed by all the terms and conditions of the Original Indenture, as
supplemented by this First Supplemental Indenture, and in particular, the
following provisions shall be terms of the Notes:
(a) Optional Redemption. The Notes may not be redeemed by the
Company prior to the maturity date of such Notes.
(b) Payment of Principal and Interest. Principal and interest
payments on interests represented by the Global Note will be made to DTC or its
nominee, as the case may be, as the registered owner of the Global Note. All
payments of principal and interest in respect of the Notes will be made by the
Company in immediately available funds.
(c) Applicability of Defeasance or Covenant Defeasance. The
provisions of Sections 4.4 and 4.5 of the Original Indenture shall apply to the
Notes.
ARTICLE II
TRUSTEE
SECTION 2.1 TRUSTEE. The Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or the due execution thereof by the Company. The
recitals of fact contained herein shall be taken as the statements solely of
the Company, and the Trustee assumes no responsibility for the correctness
thereof.
ARTICLE III
MISCELLANEOUS PROVISIONS
SECTION 3.1 RATIFICATION OF ORIGINAL INDENTURE. This Supplemental
Indenture is executed and shall be construed as an indenture supplemental to
the Original Indenture, and as supplemented and modified hereby, the Original
Indenture is in all respects ratified and confirmed, and the Original Indenture
and this Supplemental
4
<PAGE> 5
Indenture shall be read, taken and construed as one and the same instrument.
SECTION 3.2 EFFECT OF HEADINGS. The Article and Section headings
herein are for convenience only and shall not affect the construction hereof.
SECTION 3.3 SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Supplemental Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
SECTION 3.4 SEPARABILITY CLAUSE. In case any one or more of the
provisions contained in this Supplemental Indenture shall for any reason be
held to be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 3.5 GOVERNING LAW. This Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of New York,
without regard to conflicts of laws. This Supplemental Indenture is subject to
the provisions of the Trust Indenture Act of 1939, as amended, that are
required to be part of this Supplemental Indenture and shall, to the extent
applicable, be governed by such provisions.
SECTION 3.6 COUNTERPARTS. This Supplemental Indenture may be
executed in any number of counterparts, and each of such counterparts shall for
all purposes be deemed to be an original, but all such counterparts shall
together constitute one and the same instrument.
5
<PAGE> 6
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the date first above written.
LEGG MASON, INC.
By: /s/ Raymond A. Mason
-----------------------------
Name: Raymond A. Mason
Title: Chairman of the Board,
President and Chief
Executive Officer
Attest:
/s/ F. James Tennies
- --------------------------
Name: F. James Tennies
Title: Assistant Secretary
THE BANK OF NEW YORK,
as Trustee
By:/s/ Byron Merino
------------------------------
Name: Byron Merino
Title: Assistant Treasurer
Attest:
/s/ Stephen J. Giurlando
- -------------------------------
Name: Stephen J. Giurlando
Title: Assistant Vice President
6
<PAGE> 7
Exhibit A
REGISTERED REGISTERED NO. R-1
U.S. $100,000,000 CUSIP NO.: 524901 AC 9
THIS SECURITY IS A BOOK-ENTRY SECURITY WITHIN THE MEANING OF
THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITORY OR A NOMINEE OF A DEPOSITORY. THIS SECURITY IS EXCHANGEABLE FOR
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS
NOMINEES ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO
TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY
THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY
TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED
EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE COMPANY (AS DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE REGISTERED FORM, THIS CERTIFICATE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC
TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY.
LEGG MASON, INC.
6 1/2% SENIOR NOTES DUE 2006
Legg Mason, Inc., a corporation duly organized and existing
under the laws of Maryland (herein called
<PAGE> 8
the "Company", which term includes any successor Person under the Senior
Indenture hereinafter referred to), for value received, hereby promises to pay
to Cede & Co., or registered assigns, the principal sum of One Hundred Million
United States Dollars (U.S. $100,000,000) on February 15, 2006 (the "Maturity
Date"), at the office or agency of the Company referred to below, and to pay
interest thereon semi-annually in arrears on February 15 and August 15 of each
year, commencing August 15, 1996 (each such date an "Interest Payment Date"),
at the rate of 6 1/2% per annum, until the principal hereof is paid or duly
provided for.
The principal of this Note payable on the Maturity Date will
be paid against presentation and surrender of this Note at the office or agency
of the Company maintained for that purpose in The Borough of Manhattan, The
City of New York. The Company hereby initially designates the Corporate Trust
Office of the Trustee in the City of New York as the office to be maintained by
it where Notes may be presented for payment, registration of transfer, or
exchange and where notices or demands to or upon the Company in respect of the
Notes or the Senior Indenture referred to in the succeeding pages hereof may be
served.
Interest on this Note will accrue from the most recent payment
date to which interest has been paid or duly provided for, or if no interest
has been paid or duly provided for, from February 14, 1996, until the principal
hereof has been paid or duly made available for payment. Interest will be
computed on the basis of a 360-day year consisting of twelve 30-day months.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Senior Indenture, be paid to the
Person in whose name this Note (or one or more predecessor Notes) is registered
at the close of business on the first day of the month in which such Interest
Payment Date occurs (whether or not a Business Day) (each such date a "Record
Date"), which shall be the February 1 or August 1, as the case may be, next
preceding such Interest Payment Date. If any Interest Payment Date or the
Maturity Date falls on a day that is not a Business Day (as defined below), the
required payment of interest or principal or both, as the case may be, will be
made on the next Business Day with the same force and effect as if it were made
on the date
A-2
<PAGE> 9
such payment was due and no interest will accrue on the amount so payable for
the period from and after such Interest Payment Date or the Maturity Date, as
the case may be. "Business Day" means any day, other than a Saturday or a
Sunday, on which banking institutions in The City of New York are open for
business.
Payments of principal and interest in respect of this Note
will be made by wire transfer of immediately available funds in such coin or
currency of the United states of America as at the time of payment is legal
tender for the payment of public and private debts.
Reference is made to the further provisions of this
certificate set forth on the succeeding pages hereof, which further provisions
shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly
executed by or on behalf of The Bank of New York, the Trustee under the Senior
Indenture, or its successor thereunder, by the manual signature of one of its
authorized signatories, this Security shall not be entitled to any benefit
under the Senior Indenture, or be valid or obligatory for any purpose.
A-3
<PAGE> 10
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed
under its corporate seal.
Dated: February 14, 1996
LEGG MASON, INC.
as Issuer
By: [Specimen]
----------
Name:
Title:
[Seal]
Attest: [Specimen]
--------------------
Authorized Signatory
A-4
<PAGE> 11
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
As Trustee
By: [Specimen]
--------------------
Authorized Signatory
Dated: February 14, 1996
A-5
<PAGE> 12
This Security is one of the duly authorized debt securities of
the Company (herein called the "Securities" and individually a "Security")
issued or to be issued in one or more series under an indenture dated as of
February 9, 1996 (herein called the "Senior Indenture") between the Company and
The Bank of New York, as trustee (herein called the "Trustee", which term
includes any successor trustee under the Senior Indenture), to which Senior
Indenture and all indentures supplemental thereto reference is hereby made for
a statement of the respective rights, limitations of rights, duties,
obligations 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. This Security is a registered global
note of a series designated as the 6 1/2% Senior Notes Due 2006, limited in
aggregate principal amount to $100,000,000.
If an Event of Default with respect to Securities of this
series 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 Senior Indenture.
The Securities of this series are not subject to any sinking
fund and are not subject to redemption prior to maturity.
The Senior Indenture contains provisions for defeasance at any
time of (a) the entire indebtedness of the Company on this Security and (b)
certain restrictive covenants and the related Events of Default, upon
compliance by the Company with certain conditions set forth therein, which
provisions apply to this Security.
The Senior Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
all series to be affected under the Senior Indenture at any time by the Company
and the Trustee with the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of all series affected
thereby (voting as one class). The Senior Indenture also contains provisions
permitting the Holders of not less than specified percentages in
A-6
<PAGE> 13
aggregate principal amount of the Outstanding Securities of all series
affected, on behalf of the Holders of all the Securities of such series, to
waive certain past defaults under the Senior Indenture and their consequences.
Any such consent or waiver by or on behalf of the Holder of this Security shall
be conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Securities 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 Security or other such Securities.
As set forth in, and subject to, the provisions of the Senior
Indenture, no Holder of any Security of this series will have any right to
institute any proceeding with respect to the Senior Indenture or for any remedy
thereunder, unless such Holder shall have previously given to the Trustee
written notice of a continuing Event of Default with respect to this series,
the Holders of not less that 25% in aggregate principal amount of the
Outstanding Securities of each series affected (treated as a single class)
shall have made written request, and offered reasonable indemnity, to the
Trustee to institute such proceeding as trustee, and the Trustee shall not have
received from the Holders of a majority in aggregate principal amount of the
Outstanding Securities of each series affected (with all such series voting as
a single class) a direction inconsistent with such request and shall have
failed to institute such proceeding within 60 days; provided however, that such
limitations do not apply to a suit instituted by the Holder hereof for the
enforcement of payment of the principal of or interest on this Security on or
after the respective due dates expressed herein.
No reference herein to the Senior Indenture and no provision
of this Security or of the Senior Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional, to pay the
principal of and interest on this Security at the times, place, and rate, and
in the coin or currency, herein prescribed.
The Trustee has been appointed registrar of the Securities,
and the Trustee will maintain at its office in the Borough of Manhattan, The
City of New York, a register for the registration and transfer of Securities.
As provided in the Senior Indenture and subject to cer-
A-7
<PAGE> 14
tain limitations therein set forth, this Security may be transferred at the
aforesaid office of the Trustee upon surrender of this Security for
cancellation and thereupon the Company shall execute and the Trustee shall
authenticate and deliver in the name of the transferee or transferees, in
exchange therefor, a new Security or Securities having identical terms and
provisions and having a like aggregate principal amount in authorized
denomination.
The Securities of this series are issuable only in registered
form without coupons in denominations of $1,000 and any integral multiple
thereof. As provided in the Senior Indenture and subject to certain
limitations therein set forth, the Securities of this series are exchangeable
for a like aggregate principal amount of Securities of this series and of a
different authorized denomination, as requested by the Holder surrendering the
same.
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 payable in
connection therewith.
Subject to the provisions of the Senior Indenture, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the absolute owner hereof
for all purposes, whether or not this Security be overdue, and none of the
Company, the Trustee or any agent of the Company or the Trustee shall be
affected by notice to the contrary.
If at any time, (i) the Depository is unwilling, unable or
ineligible to continue as Depository and a successor Depository is not
appointed by the Company within 90 days, or (ii) the Company determines that
the Securities shall no longer be represented by a global Security or
Securities, then the Company will execute and the Trustee will authenticate and
deliver Securities in definitive registered form, in authorized denominations,
and in an aggregate principal amount equal to the principal amount of this
Security in exchange for this Security. Such Securities in definitive
registered form shall be registered in such names and issued in such authorized
A-8
<PAGE> 15
denominations as the Depository, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Securities to the Persons in whose names such Securities are
so registered.
This Security shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to conflict
of laws.
Capitalized terms used herein which are not otherwise defined
shall have the respective meanings assigned to them in the Senior Indenture and
all indentures supplemental thereto relating to this Security.
A-9
<PAGE> 1
REGISTERED REGISTERED NO. R-1
U.S. $100,000,000 CUSIP NO.: 524901 AC 9
THIS SECURITY IS A BOOK-ENTRY SECURITY WITHIN THE MEANING OF
THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITORY OR A NOMINEE OF A DEPOSITORY. THIS SECURITY IS EXCHANGEABLE FOR
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS
NOMINEES ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO
TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY
THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY
TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED
EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE COMPANY (AS DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE REGISTERED FORM, THIS CERTIFICATE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC
TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY.
LEGG MASON, INC.
6 1/2% SENIOR NOTES DUE 2006
Legg Mason, Inc., a corporation duly organized and existing
under the laws of Maryland (herein called the "Company", which term includes
any successor Person under the Senior Indenture hereinafter referred to), for
value received, hereby promises to pay to Cede & Co., or
<PAGE> 2
registered assigns, the principal sum of One Hundred Million United States
Dollars (U.S. $100,000,000) on February 15, 2006 (the "Maturity Date"), at the
office or agency of the Company referred to below, and to pay interest thereon
semi-annually in arrears on February 15 and August 15 of each year, commencing
August 15, 1996 (each such date an "Interest Payment Date"), at the rate of 6
1/2% per annum, until the principal hereof is paid or duly provided for.
The principal of this Note payable on the Maturity Date will
be paid against presentation and surrender of this Note at the office or agency
of the Company maintained for that purpose in The Borough of Manhattan, The
City of New York. The Company hereby initially designates the Corporate Trust
Office of the Trustee in the City of New York as the office to be maintained by
it where Notes may be presented for payment, registration of transfer, or
exchange and where notices or demands to or upon the Company in respect of the
Notes or the Senior Indenture referred to in the succeeding pages hereof may be
served.
Interest on this Note will accrue from the most recent payment
date to which interest has been paid or duly provided for, or if no interest
has been paid or duly provided for, from February 14, 1996, until the principal
hereof has been paid or duly made available for payment. Interest will be
computed on the basis of a 360-day year consisting of twelve 30-day months.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Senior Indenture, be paid to the
Person in whose name this Note (or one or more predecessor Notes) is registered
at the close of business on the first day of the month in which such Interest
Payment Date occurs (whether or not a Business Day) (each such date a "Record
Date"), which shall be the February 1 or August 1, as the case may be, next
preceding such Interest Payment Date. If any Interest Payment Date or the
Maturity Date falls on a day that is not a Business Day (as defined below), the
required payment of interest or principal or both, as the case may be, will be
made on the next Business Day with the same force and effect as if it were made
on the date such payment was due and no interest will accrue on the amount so
payable for the period from and after such Interest Payment Date or the
Maturity Date, as the case
2
<PAGE> 3
may be. "Business Day" means any day, other than a Saturday or a Sunday, on
which banking institutions in The City of New York are open for business.
Payments of principal and interest in respect of this Note
will be made by wire transfer of immediately available funds in such coin or
currency of the United states of America as at the time of payment is legal
tender for the payment of public and private debts.
Reference is made to the further provisions of this
certificate set forth on the succeeding pages hereof, which further provisions
shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly
executed by or on behalf of The Bank of New York, the Trustee under the Senior
Indenture, or its successor thereunder, by the manual signature of one of its
authorized signatories, this Security shall not be entitled to any benefit
under the Senior Indenture, or be valid or obligatory for any purpose.
3
<PAGE> 4
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed
under its corporate seal.
Dated: February 14, 1996
LEGG MASON, INC.
as Issuer
By: [Specimen]
----------
Name:
Title:
[Seal]
Attest: [Specimen]
--------------------
Authorized Signatory
4
<PAGE> 5
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
As Trustee
By: [Specimen]
--------------------
Authorized Signatory
Dated: February 14, 1996
5
<PAGE> 6
This security is one of the duly authorized debt securities of
the Company (herein called the "Securities" and individually a "Security")
issued or to be issued in one or more series under an indenture dated as of
February 9, 1996 (herein called the "Senior Indenture") between the Company and
The Bank of New York, as trustee (herein called the "Trustee", which term
includes any successor trustee under the Senior Indenture), to which Senior
Indenture and all indentures supplemental thereto reference is hereby made for
a statement of the respective rights, limitations of rights, duties,
obligations 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. This Security is a registered global
note of a series designated as the 6 1/2% Senior Notes Due 2006, limited in
aggregate principal amount to $100,000,000.
If an Event of Default with respect to Securities of this
series 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 Senior Indenture.
The Securities of this series are not subject to any sinking
fund and are not subject to redemption prior to maturity.
The Senior Indenture contains provisions for defeasance at any
time of (a) the entire indebtedness of the Company on this Security and (b)
certain restrictive covenants and the related Events of Default, upon
compliance by the Company with certain conditions set forth therein, which
provisions apply to this Security.
The Senior Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
all series to be affected under the Senior Indenture at any time by the Company
and the Trustee with the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of all series affected
thereby (voting as one class). The Senior Indenture also contains provisions
permitting the Holders of not less than specified percentages in
6
<PAGE> 7
aggregate principal amount of the Outstanding Securities of all series
affected, on behalf of the Holders of all the Securities of such series, to
waive certain past defaults under the Senior Indenture and their consequences.
Any such consent or waiver by or on behalf of the Holder of this Security shall
be conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Securities 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 Security or other such Securities.
As set forth in, and subject to, the provisions of the Senior
Indenture, no Holder of any Security of this series will have any right to
institute any proceeding with respect to the Senior Indenture or for any remedy
thereunder, unless such Holder shall have previously given to the Trustee
written notice of a continuing Event of Default with respect to this series,
the Holders of not less that 25% in aggregate principal amount of the
Outstanding Securities of each series affected (treated as a single class)
shall have made written request, and offered reasonable indemnity, to the
Trustee to institute such proceeding as trustee, and the Trustee shall not have
received from the Holders of a majority in aggregate principal amount of the
Outstanding Securities of each series affected (with all such series voting as
a single class) a direction inconsistent with such request and shall have
failed to institute such proceeding within 60 days; provided however, that such
limitations do not apply to a suit instituted by the Holder hereof for the
enforcement of payment of the principal of or interest on this Security on or
after the respective due dates expressed herein.
No reference herein to the Senior Indenture and no provision
of this Security or of the Senior Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional, to pay the
principal of and interest on this Security at the times, place, and rate, and
in the coin or currency, herein prescribed.
The Trustee has been appointed registrar of the Securities,
and the Trustee will maintain at its office in the Borough of Manhattan, The
City of New York, a register for the registration and transfer of Securities.
As provided in the Senior Indenture and subject to cer-
7
<PAGE> 8
tain limitations therein set forth, this Security may be transferred at the
aforesaid office of the Trustee upon surrender of this Security for
cancellation and thereupon the Company shall execute and the Trustee shall
authenticate and deliver in the name of the transferee or transferees, in
exchange therefor, a new Security or Securities having identical terms and
provisions and having a like aggregate principal amount in authorized
denomination.
The Securities of this series are issuable only in registered
form without coupons in denominations of $1,000 and any integral multiple
thereof. As provided in the Senior Indenture and subject to certain
limitations therein set forth, the Securities of this series are exchangeable
for a like aggregate principal amount of Securities of this series and of a
different authorized denomination, as requested by the Holder surrendering the
same.
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 payable in
connection therewith.
Subject to the provisions of the Senior Indenture, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the absolute owner hereof
for all purposes, whether or not this Security be overdue, and none of the
Company, the Trustee or any agent of the Company or the Trustee shall be
affected by notice to the contrary.
If at any time, (i) the Depository is unwilling, unable or
ineligible to continue as Depository and a successor Depository is not
appointed by the Company within 90 days, or (ii) the Company determines that
the Securities shall no longer be represented by a global Security or
Securities, then the Company will execute and the Trustee will authenticate and
deliver Securities in definitive registered form, in authorized denominations,
and in an aggregate principal amount equal to the principal amount of this
Security in exchange for this Security. Such Securities in definitive
registered form shall be registered in such names and issued in such authorized
8
<PAGE> 9
denominations as the Depository, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Securities to the Persons in whose names such Securities are
so registered.
This Security shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to conflict
of laws.
Capitalized terms used herein which are not otherwise defined
shall have the respective meanings assigned to them in the Senior Indenture and
all indentures supplemental thereto relating to this Security.
9
<PAGE> 1
Exhibit 5.1
ROGERS & WELLS
200 Park Avenue
New York, New York 10166
February 9, 1996
Legg Mason, Inc.
111 South Calvert Street
Baltimore, Maryland 21202
Ladies and Gentlemen:
We have acted as special counsel for Legg Mason, Inc., a
Maryland corporation (the "Company"), in connection with the preparation and
filing with the Securities and Exchange Commission under the Securities Act of
1933, as amended, of a registration statement on Form S-3 (as the same may be
amended or supplemented from time to time, the "Registration Statement"),
including the Prospectus included therein at the time the Registration
Statement was declared effective and the Prospectus Supplement, dated February
9, 1996 (together, the "Prospectus"), with respect to the issuance thereunder
of $100,000,000 aggregate principal amount of the Company's 6 1/2% Senior Notes
due 2006 (the "Securities").
The Securities are being issued under an indenture, dated as
of February 9, 1996, between the Company, as issuer, and The Bank of New York,
as trustee (the "Trustee"), in substantially the form included in the
Registration Statement as Exhibit 4(a), as supplemented by the supplemental
indenture, dated as of February 9, 1996, between the Company and the Trustee
(together, the "Indenture").
In so acting, we have examined the Registration Statement, the
Indenture and the Company's articles of incorporation, as amended. We have
also examined and relied as to factual matters upon the representations,
warranties and other statements contained in originals, or copies certified or
otherwise identified to our satisfaction, of such records, documents,
certificates and other instruments as in our judgment are necessary or
appropriate to enable us to render the opinions expressed below. In such
examination, we have assumed the genuineness of all signatures, the
authenticity of all documents, certificates and instruments submitted to us as
originals and the conformity with originals of all documents submitted to us as
copies.
Our opinions expressed below are limited to the law of the
State of New York and the federal law of the United States, and we do not
express any opinion herein concerning any other law
<PAGE> 2
except to the extent set forth in the next sentence. In giving the opinions set
forth in paragraphs (1) and (2) below with regard to certain matters governed by
the law of the State of Maryland, we have relied, with his permission, upon the
opinion of Theodore S. Kaplan, General Counsel of the Company, of even date
herewith, subject to the qualifications and assumptions set forth in such
opinion.
Based upon the foregoing, and having regard for such legal
considerations as we have deemed relevant, we are of the opinion that:
1. The Company is a corporation validly existing and in
good standing under the laws of the State of
Maryland.
2. The Indenture has been duly executed by a duly
authorized officer of the Company, and when executed
by a duly authorized officer of the Company, the
Securities will have been duly authorized by the
Company.
3. When (a) the Securities have been duly executed and
issued in accordance with the provisions of the
Indenture (including the provisions of the Indenture
regarding establishment of the form of Securities),
(b) the Securities have been authenticated by the
Trustee and (c) the Securities have been delivered
for due consideration in the manner and on the terms
described in the Prospectus, as supplemented by the
Prospectus Supplement, the Securities will have been
validly issued and will constitute valid and binding
obligations of the Company enforceable against the
Company in accordance with their respective terms and
entitled to the benefits of the Indenture, subject to
(i) the effect of any applicable bankruptcy,
insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting creditors'
rights generally and (ii) the effect of general
principles of equity (regardless of whether
considered in a proceeding in equity or at law).
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the reference to us under the heading
"Legal Matters" contained in the Prospectus.
Very truly yours,
/s/ Rogers & Wells
------------------
Rogers & Wells
2
<PAGE> 1
Exhibit 5.2
Legg Mason, Inc.
111 South Calvert Street
Baltimore, Maryland 21202
February 9, 1996
Legg Mason, Inc.
111 South Calvert Street
Baltimore, Maryland 21202
Ladies and Gentlemen:
You have requested me, as General Counsel of Legg Mason, Inc.
(the "Company"), to render my opinion in connection with the preparation and
filing with the Securities and Exchange Commission under the Securities Act of
1933, as amended, of a registration statement on Form S-3 (as the same may be
amended or supplemented from time to time, the "Registration Statement"),
including the Prospectus included therein at the time the Registration
Statement was declared effective and the Prospectus Supplement, dated February
9, 1996 (together, the "Prospectus"), with respect to the issuance thereunder
of $100,000,000 aggregate principal amount of the Company's 6 1/2% Senior Notes
due 2006 (the "Securities").
The Securities are being issued under an indenture, dated as
of February 9, 1996, between the Company, as issuer, and The Bank New York, as
trustee (the "Trustee"), in substantially the form included in the Registration
Statement as Exhibit 4(a), as supplemented by the supplemental indenture, dated
as of February 9, 1996, between the Company and the Trustee (together, the
"Indenture").
I am familiar with the Company's articles of incorporation and
by-laws, as amended to date, and have examined the originals, or copies
certified or otherwise identified to my satisfaction, of corporate records of
the Company, statutes and other instruments and documents as the basis for the
opinions expressed herein. I am, or someone under my supervision is, familiar
with the Indenture and the Securities.
Based upon the foregoing, and having regard for such legal
considerations as I have deemed relevant, I am of the opinion that:
1. The Company is a corporation validly existing and in
good standing under the laws of the State of Maryland.
2. The Indenture has been duly executed by a duly
authorized officer of the Company, and when executed by a duly authorized
officer of the Company, the Securities will have been duly authorized by the
Company.
<PAGE> 2
I am admitted to practice in the State of Maryland. The
opinions set forth herein are limited to matters of the General Corporation Law
of the State of Maryland. I am furnishing this opinion solely for your benefit
and, as to certain matters of Maryland law, for the benefit of your counsel,
Rogers & Wells and of counsel for the underwriters in one or more offerings
under the Registration Statement, Skadden, Arps, Slate, Meagher & Flom. It may
not be relied upon by any other person without my express written consent.
I hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the use of my name therein and in the
Prospectus. In giving this consent, I do not admit that I am within the
category of persons whose consent is required by Section 7 of the Securities
Act of 1933.
Very truly yours,
/s/ Theodore S. Kaplan
----------------------
Theodore S. Kaplan
General Counsel
