<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 9, 1997
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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COMDISCO, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 36-2687938
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
6111 NORTH RIVER ROAD PHILIP A. HEWES, ESQ.
ROSEMONT, ILLINOIS 60018 SENIOR VICE PRESIDENT/LEGAL AND
(847) 698-3000 SECRETARY
(ADDRESS, INCLUDING ZIP CODE, AND COMDISCO, INC.
TELEPHONE NUMBER, INCLUDING AREA 6111 NORTH RIVER ROAD
CODE, OF REGISTRANT'S PRINCIPAL ROSEMONT, ILLINOIS 60018
EXECUTIVE OFFICES) (847) 698-3000
(NAME, ADDRESS, INCLUDING ZIP CODE,
AND TELEPHONE NUMBER, INCLUDING AREA
CODE, OF AGENT FOR SERVICE)
COPIES TO:
LOLA M. HALE, ESQ. ROBERT J. DONATUCCI, ESQ.
MCBRIDE BAKER & COLES BROWN & WOOD LLP
500 WEST MADISON STREET, 40TH FLOOR ONE WORLD TRADE CENTER
CHICAGO, ILLINOIS 60661 NEW YORK, NEW YORK 10048-0557
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of the Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the Prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED
MAXIMUM PROPOSED
TITLE OF EACH CLASS OF AMOUNT AGGREGATE MAXIMUM AMOUNT OF
SECURITIES TO BE PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED PER UNIT(1) OFFERING PRICE(2) FEE
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<S> <C> <C> <C> <C>
Debt Securities (3)..... $1,500,000,000(4) 100% $1,500,000,000(4) $442,500.00
Common Stock, par value
$0.10 per share (5)....
</TABLE>
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(1) To be determined from time to time by the Registrant in connection with
the issuance by the Registrant of the securities registered hereunder.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 under the Securities Act of 1933.
(3) Subject to note (4) below, there is being registered hereunder an
indeterminate principal amount of Debt Securities as may be sold, from
time to time, or as may be issuable upon exercise or conversion of Debt
Securities registered hereunder. For Debt Securities issued with an
original issue discount, the amount to be registered is calculated as the
original accreted value of such Debt Securities.
(4) In no event will the aggregate offering price of all securities issued
from time to time pursuant to this Registration Statement exceed
$1,500,000,000 (exclusive of accrued interest, if any) or the equivalent
thereof in one or more foreign currencies, foreign currency units or
composite currencies. No separate consideration will be received for Debt
Securities or Common Stock issued upon conversion or exchange of Debt
Securities registered hereunder.
(5) Subject to note (4) above, there is being registered an indeterminate
number of shares of Common Stock as may from time to time be issuable upon
the conversion or exchange of Debt Securities registered hereunder.
Includes the preferred stock purchase rights associated with the Common
Stock which will be issued for no additional consideration.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
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<PAGE>
SUBJECT TO COMPLETION,
PRELIMINARY PROSPECTUS DATED OCTOBER 9, 1998
PROSPECTUS
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LOGO
COMDISCO, INC.
6111 N. River Road
Rosemont, Illinois 60018
(847) 698-3000
We will provide the specific terms of
$1,500,000,000 each series or issue of Debt
Securities we issue in supplements to
this prospectus. You should read this
DEBT SECURITIES prospectus and the supplements
carefully before you invest.
We may offer the securities directly or through underwriters, agents or
dealers. The supplement will designate the terms of that plan of distribution.
"Plan of Distribution" below also provides more information on this topic.
The information in this prospectus is incomplete and may be changed. We may
not sell these securities until a registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an
offer to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted. We may not
use this prospectus to sell Debt Securities unless we also give prospective
investors a prospectus supplement.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSIONHAS APPROVED OR DISAPPROVED OF THESE DEBT SECURITIES OR DETERMINED
IF THIS PROSPECTUS OR ANY ACCOMPANYING PROSPECTUS SUPPLEMENT OR PRICING
SUPPLEMENT IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
October , 1998
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
About This Prospectus.................................................... 3
Where You Can Find More Information...................................... 3
The Company.............................................................. 4
Ratio of Earnings to Fixed Charges....................................... 5
Use of Proceeds.......................................................... 5
Forward Looking Statements............................................... 5
Description of the Debt Securities....................................... 6
Description of the Company's Common Stock................................ 13
Delaware General Corporation Law and the Company's Certificate and
Bylaws.................................................................. 16
Plan of Distribution..................................................... 19
Legal Opinions........................................................... 20
Experts.................................................................. 20
</TABLE>
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission (the "SEC") utilizing a "shelf" registration
process. Under this shelf registration process, we may, over the next two
years, sell the combination of the Debt Securities described in this prospectus
in one or more offerings up to a total dollar amount of $1,500,000,000. This
prospectus provides you with a general description of the securities we may
offer. Each time we sell securities, we will provide a prospectus supplement
that will contain specific information about the terms of that offering. The
prospectus supplement may also add, update or change information contained in
this prospectus. It is important for you to consider the information contained
in this prospectus and any prospectus supplement together with additional
information described under the next heading WHERE YOU CAN FIND MORE
INFORMATION in making your investment decision.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other
information with the SEC. Our SEC filings are available to the public over the
Internet at our web site at http://www.comdisco.com and the SEC's web site at
http://www.sec.gov. You may also read and copy any document we file at the
SEC's public reference rooms in Washington, D.C., New York, New York and
Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference rooms and their copy charges. Our Common
Stock is listed on the New York Stock Exchange. You can also obtain information
about us from the Exchange at 20 Broad Street, New York, New York 10005.
The SEC allows us to "incorporate by reference" the information we file with
them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus, and information that we file later with
the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings made
with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities
Exchange Act of 1934 until we, or our agents, sell all of the Debt Securities.
. Our Annual Report on Form 10-K for the year ended September 30, 1997;
. Our Quarterly Reports on Form 10-Q for the quarters ended December 31,
1997, March 31, 1998 and June 30, 1998;
. Our Current Reports on Form 8-K, filed November 5, 1997 (two reports),
November 6, 1997, November 14, 1997, January 8, 1998, July 22, 1998,
July 24, 1998 and October 9, 1998; and
. The descriptions of the Company's Common Stock and related Common Stock
Purchase Rights included in the registration statements filed under the
Securities Exchange Act of 1934 under File No. 1-7725, including all
amendments or reports filed for the purpose of updating such
description.
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You may request a copy of these filings at no cost, by writing or calling us at
the following address:
Comdisco, Inc.
6111 N. River Road
Rosemont, IL 60018
(847) 698-3000
Attention: Corporate Secretary
You should rely only on the information incorporated by reference or provided
in this prospectus, any prospectus supplement or any pricing supplement. We
have not authorized anyone else to provide you with different information. You
should not assume that the information in this prospectus, any prospectus
supplement or any pricing supplement is accurate as of any date other than the
date on the front of those documents.
THE COMPANY
We are a technology services company. Our purpose as a technology services
company is to discover options that enable our customers to maximize the
business benefits of technology, while reducing technology cost and risk. These
services include:
. asset management;
. continuity;
. network; and
. equipment leasing and remarketing.
We design our services to provide integrated, long-term, cost effective asset
and technological planning, as well as data and voice availability and
recovery, to users of high technology equipment. We operate in one industry
segment, business services.
We provide our customers with available technical, financial and recovery
alternatives, regardless of hardware platform or manufacturer. We work with our
customers to develop strategies governing:
. when to acquire equipment;
. how to track equipment;
. when to upgrade existing equipment; and
. when to order new equipment to take advantage of current technology.
We also provide continuity services for customers' data, voice and network
systems. We also have the ability to act as an outlet for equipment being
displaced.
Our business is diversified by customer, customer type, equipment segments,
geographic location of our customers and maturity of our lease receivables. Our
customers include "Fortune 1000" corporations or companies of a similar size as
well as smaller organizations. We do not depend on any single customer or on
any single source for the purchasing, selling or leasing of equipment, or in
connection with our services.
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Our executive offices are located in the Chicago area, at 6111 North River
Road, Rosemont, Illinois 60018, telephone number (847) 698-3000. At June 30,
1998 we had approximately 2,615 full-time employees.
RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
JUNE 30, FISCAL YEAR ENDED SEPTEMBER 30,
- ---------------- ------------------------------------------------------------------------------
1998 1997 1997 1996 1995 1994 1993
- ---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
1.69 1.66 1.67 1.64 1.55 1.29 1.43
</TABLE>
These computations include the Company and our subsidiaries, and companies in
which we own 50% or less equity. For these ratios, "earnings" is determined by
adding "total fixed charges" (excluding interest capitalized), income taxes,
minority common stockholders equity in net income and amortization of interest
capitalized to income from continuing operations after eliminating equity in
undistributed earnings and adding back losses of companies in which we own at
least 20% but less than 50% equity. For this purpose, "total fixed charges"
consists of (1) interest on all indebtedness and amortization of debt discount
and expense, and (2) an interest factor attributable to rentals.
USE OF PROCEEDS
Unless we tell you otherwise in an accompanying prospectus supplement, we will
use net proceeds from the sale of the Debt Securities for general corporate
purposes. General corporate purposes may include repayment of debt, equipment
acquisitions, additions to working capital and capital expenditures. If we do
not use the net proceeds immediately, we temporarily invest them in short-term
interest-bearing obligations. For current information on our commercial paper
balances and average interest rates, see our most recent Form 10-K and 10-Q or
the prospectus supplement. See WHERE YOU CAN FIND MORE INFORMATION in this
prospectus.
FORWARD-LOOKING STATEMENTS
Some of the statements contained in this prospectus, any prospectus supplements
and any pricing supplements, including information incorporated by reference,
discuss future expectations, contain projections of results of operation or
financial condition or state other forward-looking information. Known and
unknown risks, uncertainties and other factors could cause the actual results
to differ materially from those contemplated by those statements. The forward-
looking information is based on various factors and was derived using numerous
assumptions.
Important factors that may cause the actual results to differ include, without
limitation: (1) the volume of new equipment leases, (2) fair market value
volatility in large systems, (3) changes in customer demand and requirements,
(4) attaining the expected level of remarketing (which will require equipment
for remarketing, appropriate sales force education and incentive and knowledge
of the customer and customer requirements), (5) financial mix of leases
written, (6) new product announcements, (7) continued growth of the
semiconductor industry, (8) trend
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of movement to client/server environment, (9) competition and (10) other risks
detailed in our other filings with the SEC. We do not promise to update
forward-looking information to reflect actual results or changes in assumptions
or other factors that could affect those statements.
DESCRIPTION OF THE DEBT SECURITIES
THE SECURITIES WE MAY OFFER
We may offer unsecured senior or subordinated debt securities in an aggregate
principal amount of up to $1,500,000,000. A prospectus supplement will describe
the specific amounts, prices and terms of any securities we offer.
Throughout this Prospectus:
. the term "Senior Debt Securities" refers to our unsecured senior debt
securities;
. the term "Subordinated Debt Securities" refers to our unsecured
subordinated debt securities; and
. the term "Debt Securities" refers to Senior Debt Securities and
Subordinated Debt Securities.
We also may issue convertible Subordinated Debt Securities that pay no interest
or below-market interest at a substantial discount from their stated principal
amount. We will refer to these convertible Subordinated Debt Securities as
Zero-Coupon Convertibles here and in any prospectus supplement or pricing
supplement.
ISSUANCE OF DEBT SECURITIES UNDER THE INDENTURES
We will issue Debt Securities in one or more series under one or more separate
indentures between us and a U.S. banking institution, as Trustee. We will issue
Senior Debt Securities under a "Senior Indenture" and Subordinated Debt
Securities under a "Subordinated Indenture." Zero Coupon Convertibles will be
issued under a "Zero-Coupon Indenture." We will refer to the Senior Indentures,
the Subordinated Indentures, and the Zero-Coupon Indentures together as
"Indentures" here and in any prospectus supplement or pricing supplement.
We have summarized selected provisions of the Indentures below. The summary is
not complete. You should read the Indentures for provisions that may be
important to you.
We will initially issue Senior Debt Securities under a Senior Indenture dated
as of September 15, 1998, between us and The Fuji Bank and Trust Company, as
Senior Trustee (the "Fuji Senior Indenture"). We have filed the form of the
Fuji Senior Indenture as an exhibit to the registration statement that we filed
with the SEC. We will file the forms of any other Indentures with the SEC at
the time we use them. Capitalized terms used in the summary have the meanings
specified in the Indentures.
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TERMS
We will describe specific terms relating to any new series of Debt Securities
in a prospectus supplement or pricing supplement. These terms will include the
following:
. title of the series and whether they are Senior Debt Securities,
Subordinated Debt Securities or Zero Coupon Convertibles;
. any limit on the total principal amount of the series;
. the price or prices at which we will sell the Debt Securities;
. maturity date or dates;
. the per annum interest rate or rates, if any, on the series and the date
or dates from which any such interest will accrue;
. whether the amount of payments of principal of (and premium, if any) or
interest on the Debt Securities may be determined with reference to any
index, formula or other method, such as one or more currencies,
commodities, equity indices or other indices, and the manner of
determining the amount of such payments;
. the dates on which we will pay interest on the Debt Securities and the
regular record date for determining who is entitled to the interest
payable on any interest payment date;
. the place or places where the principal of (and premium, if any) and
interest on the Debt Securities will be payable;
. any redemption dates, prices, obligations and restrictions;
. any sinking fund or other provisions that would obligate us to
repurchase or otherwise redeem the series;
. the denominations in which the Debt Securities will be issued, if other
than $1,000 and integral multiples of $1,000;
. the currency, currencies or currency unit in which we will pay the
principal of (and premium, if any) or interest, if any, on the Debt
Securities, if not United States dollars;
. provisions, if any, granting special rights to holders of the Debt
Securities upon the occurrence of specified events;
. any deletions from, modifications of or additions to the Events of
Default or our covenants with respect to the applicable series of Debt
Securities, and whether or not such Events of Default or covenants are
consistent with those contained in the Indenture;
. any trustees, authenticating or paying agents, transfer agents or
registrars or other agents with respect to the Debt Securities;
. any conversion or exchange features;
. any special tax implications of the series; and
. any other terms of the series.
None of the Indentures will limit the amount of Debt Securities that we may
issue. We may issue Debt Securities under each Indenture up to the principal
amount that we are authorized to issue by our Board of Directors from time to
time.
Senior Debt Securities will rank equally with all of our other senior and
unsubordinated debt. Subordinated Debt Securities will have a junior position
to all of our Senior Debt as described below under the heading "Subordination"
in this prospectus.
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We may sell Debt Securities at a discount below their stated principal amount,
bearing no interest or interest at a rate which at the time of issuance is
below market rates. We may also sell Debt Securities that are convertible into
or exchangeable for our Common Stock. If we issue these kinds of Debt
Securities, we will provide you with additional information in a prospectus
supplement or pricing supplement.
When we refer here and in any prospectus supplement or pricing supplement to
the principal of and premium, if any, and interest, if any, on Debt Securities,
we also mean to include mention of the payment of additional amounts, if any,
which we are required to pay under the Indenture or the Debt Securities in
respect of certain taxes, assessments or other governmental charges imposed on
the holders of such Debt Securities.
FORM, TRANSFER AND EXCHANGE
We will normally denominate Debt Securities in U.S. dollars and we normally
will pay principal, interest and any premium in U.S. dollars. If we sell Debt
Securities in foreign currencies or foreign currency units or pay the principal
of, premium or any interest on any series of Debt Securities in foreign
currencies or foreign currency units, we will provide you with further
information about those Debt Securities in a prospectus supplement or pricing
supplement.
We will normally issue the Debt Securities in book-entry only form. This means
that one or more permanent global certificates registered in the name of The
Depository Trust Company, New York, New York ("DTC"), or its nominee, will
represent the Debt Securities. We will refer to this form here and in any
prospectus supplement as "book-entry only."
Alternatively, we may issue the Debt Securities in (1) certificated form
registered in the name of the holder of the Debt Securities, or (2) in bearer
form, with or without coupons attached. We will refer to these forms here and
in any prospectus supplement as "registered" or "bearer," as applicable. If we
issue Debt Securities in registered or bearer form, holders will receive
certificates representing the Debt Securities. We will normally issue Debt
Securities in registered form only in increments of $1,000 and Debt Securities
in bearer form only in increments of $5,000. Debt Securities in bearer form are
subject to other limitations which we will describe in any prospectus
supplement.
You can transfer or exchange Debt Securities in registered form without charge
except for reimbursement of taxes, if any. If we issue a series of Debt
Securities in both bearer and registered form, you may exchange bearer form for
registered form in a similar manner. You can transfer or exchange Debt
Securities at the corporate trust office of the appropriate Trustee or at any
other office or agency maintained by us for such purposes that we identify in
any prospectus supplement.
PAYMENT
We will pay principal, interest and any premium on Debt Securities in book-
entry only form as provided under the heading "Book-Entry Procedures" in this
prospectus.
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We will pay principal, interest and any premium on Debt Securities issued
solely in registered form at the New York, New York corporate trust office of
the appropriate Trustee, or at any other office or agency maintained by us for
such purposes that we identify in any prospectus supplement. We also may, at
our option, pay interest on Debt Securities issued in registered form (1) by
check mailed to the person in whose name the Debt Securities are registered on
days specified in the Indentures or any prospectus supplement or (2) by wire
transfer to such person's U.S. account.
We will make payments on Debt Securities in other forms at a place designated
by us and specified in any prospectus supplement.
If we authorize any other person to make payments on Debt Securities for us, we
will identify them in any prospectus supplement.
EVENTS OF DEFAULT
Unless we tell you otherwise in an accompanying prospectus supplement, "Event
of Default," when used in an Indenture, will mean any of the following:
. a failure to pay the principal or any premium on any Debt Security when
due;
. a failure to deposit any sinking fund payment when due;
. a failure to pay interest or any additional amounts on any Debt Security
for 30 days;
. a failure to perform any other covenant in the Indenture that continues
for 60 days after we have been given written notice of such failure;
. acceleration of a debt (other than any Debt Securities issued under the
Indenture or non-recourse indebtedness) in principal amount more than 5%
of our consolidated worth not rescinded before a judgment is obtained;
or
. certain events in bankruptcy, insolvency or reorganization of the
Company.
An Event of Default for a particular series of Debt Securities does not
necessarily constitute an Event of Default for any other series of Debt
Securities issued under an Indenture. The Trustee may withhold notice to the
holders of Debt Securities of any default (except in the payment of principal
or interest) if it considers such action to be in the best interests of the
holders.
If an Event of Default for any series of Debt Securities occurs and continues,
the Trustee, or the holders of at least 25% in aggregate principal amount of
the Debt Securities of the series, may declare the entire principal of all the
Debt Securities of that series to be due and payable immediately. If this
happens, subject to certain conditions, the holders of a majority of the
aggregate principal amount of the Debt Securities of that series can void the
declaration of acceleration.
Other than its duties in case of a default, a Trustee has no obligation to
exercise any of its rights or powers under any Indenture at the request, order
or direction of any holders, unless the
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holders offer the Trustee reasonable indemnity. If they provide this reasonable
indemnification, the holders of a majority in principal amount of any series of
Debt Securities may direct the time, method and place of conducting any
proceeding or any remedy available to the Trustee, or exercising any power
conferred upon the Trustee, for any series of Debt Securities.
COVENANTS
Under each Indenture, we will:
. pay the principal, interest and any premium on the Debt Securities when
due;
. maintain a place of payment;
. deliver a report to the Trustee at the end of each fiscal year reviewing
our obligations under the Indenture; and
. deposit sufficient funds with any paying agent on or before the due date
for any principal, interest or any premium.
The Indentures will not limit our ability to incur additional debt, unless we
tell you this in any prospectus supplement.
BOOK-ENTRY PROCEDURES
The following discussion pertains to Debt Securities that we issue in book-
entry only form.
We will issue one or more global securities to DTC or its nominee. DTC will
keep a computerized record of its participants (for example, your broker) whose
clients have purchased the Debt Securities. The participant would then keep a
record of its clients who purchased the Debt Securities. A global security may
not be transferred, except that DTC, its nominees and their successors may
transfer an entire global security to one another.
If we use the book-entry only form, we will not issue certificates to
individual holders of the Debt Securities. Beneficial interests in global
securities will be shown on, and transfers of global securities will be made
only through, records maintained by DTC and its participants.
DTC has provided us with the following information: DTC is a limited-purpose
trust company organized under the New York Banking Law, a "banking
organization" within the meaning of the New York Banking Law, a member of the
United States Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code and a "clearing agency"
registered under Section 17A of the Securities Exchange Act of 1934. DTC holds
securities that its participants ("Direct Participants") deposit with DTC. DTC
also facilitates the settlement among Direct Participants of securities
transactions, such as transfers and pledges, in deposited securities through
computerized records for Direct Participants' accounts. This eliminates the
need to exchange certificates. Direct Participants include securities brokers
and dealers, banks, trust companies, clearing corporations and certain other
organizations.
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Other organizations such as securities brokers and dealers, banks and trust
companies that work through a Direct Participant, also use DTC's book-entry
system. The rules that apply to DTC and its participants are on file with the
SEC.
A number of Direct Participants, together with the New York Stock Exchange,
Inc., The American Stock Exchange, Inc. and the National Association of
Securities Dealers, Inc. own DTC.
We will wire principal and interest payments to DTC's nominee. We and the
Trustee will treat DTC's nominee as the owner of the global securities for all
purposes. Accordingly, we and the Trustee will have no direct responsibility or
liability to pay amounts due on the securities to owners of beneficial
interests in the global securities.
It is DTC's current practice, when it receives any payment of principal or
interest, to credit Direct Participants' accounts on the payment date according
to their respective holdings of beneficial interests in the global securities
as shown on DTC's records. In addition, it is DTC's current practice to assign
any consenting or voting rights to Direct Participants whose accounts are
credited with securities on a record date, by using an omnibus proxy. Customary
practices between the participants and owners of beneficial interests, as is
the case with securities held for the account of customers registered in
"street name," will govern payments by participants to owners of beneficial
interests in the global securities, and voting by participants. However, these
payments will be the responsibility of the participants and not of DTC, the
Trustee, or us.
Debt Securities represented by a global security will be exchangeable for Debt
Securities in registered form with the same terms in authorized denominations
only if:
. DTC notifies us that it is unwilling or unable to continue as depository
or if DTC ceases to be a clearing agency registered under applicable law
and we do not appoint a successor depository within 90 days; or
. we instruct the Trustee that the global security is now exchangeable.
SUBORDINATION
Payment of the principal, interest and any premium on the Subordinated Debt
Securities will, when stated in a Subordinated Indenture and the applicable
prospectus supplement, be subordinated and junior in right of payment to the
prior payment in full of all Senior Debt. Under the Indenture, "Senior
Indebtedness" means all notes or other unsecured evidences of our indebtedness,
whether outstanding on the date of the Indenture or created, assumed or
incurred at a later date, for money we borrow (including all indebtedness of
any other person for money borrowed which we guarantee) not expressed to be
subordinate or junior in right of payment to any other or our indebtedness.
Each Subordinated Indenture will provide that we may not pay principal,
interest and any premium on the Subordinated Debt Securities in the event:
. of any insolvency, bankruptcy or similar proceeding involving the
Company or our property; or
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. we fail to pay the principal, interest, any premium or any other amounts
on any Senior Debt when due.
In such event, any payment or distribution under the Subordinated Debt
Securities, whether in cash, securities or other property, which would
otherwise (but for the subordination provisions) be payable or deliverable in
respect of the Subordinated Debt Securities, will be paid or delivered directly
to the holders of Senior Debt in accordance with the priorities then existing
among such holders until all Senior Debt has been paid in full. If any payment
or distribution under the Subordinated Debt Securities is received by any
holder of any Subordinated Debt Securities in contravention of any of the terms
of the Indenture and before all the Senior Debt has been paid in full, such
payment or distribution or security will be received in trust for the benefit
of, and paid over or delivered and transferred to, the holders of the Senior
Debt at the time outstanding in accordance with the priorities then existing
among such holders for application to the payment of all Senior Debt remaining
unpaid to the extent necessary to pay all such Senior Debt in full.
As of June 30, 1998, we had approximately $4.4 billion of Senior Debt
outstanding. Subordinated Indentures will not limit the amount of Senior Debt
that we may incur.
REDEMPTION PROVISIONS, SINKING FUND AND DEFEASANCE
We may redeem some or all of the Debt Securities at our option subject to the
conditions stated in the prospectus supplement relating to that series of Debt
Securities. If a series of Debt Securities is subject to a sinking fund, the
prospectus supplement will describe those terms.
The Indenture permits us to discharge or "defease" certain of our obligations
on any series of Debt Securities at any time. We may defease a certain series
of Debt Securities by depositing with the Trustee sufficient cash or government
securities to pay all sums due on that series of Debt Securities.
CONSOLIDATION, MERGER OR SALE
We may not merge with another company or sell or transfer all or substantially
all of our property to another company unless:
. we are the continuing corporation; or
. the successor corporation or purchaser is a corporation organized under
the laws of the United States, any state within the United States, or
the District of Columbia which expressly assumes:
--payment of principal, interest and any premium on the Debt Securities;
and
--performance and observance of all covenants and conditions in the
Indenture;
and in either case, immediately after the transaction, no Event of Default and
no event which, if notice was given and/or a certain period of time passed,
would become an Event of Default, shall exist.
If we are not the continuing corporation, we will have no further liabilities
or obligations under any Indenture or the Debt Securities.
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<PAGE>
CHANGES TO THE INDENTURE
Holders who own more than 50% in principal amount of the outstanding Debt
Securities of each series affected can agree to change the Indenture. However,
no change can affect your principal or interest payment terms, or the
percentage required to change other terms of the Indenture, without your
consent, as well as the consent of others similarly affected. In addition, no
supplemental indenture may directly or indirectly modify the Indenture in any
manner which might alter the subordination of the outstanding Debt Securities.
We may enter into supplemental indentures for other specified purposes which
would not materially adversely affect your interests, including the creation of
any new series of Debt Securities, without the consent of any holder of Debt
Securities.
CONCERNING THE INITIAL SENIOR TRUSTEE
The Fuji Bank and Trust Company serves as trustee under the Fuji Indenture. Its
principal office is located at Two World Trade Center, New York, New York. We
lease equipment to The Fuji Bank and Trust Company and provide it with business
continuity services. We also have commercial banking relationships with The
Fuji Bank and Trust Company and certain of its affiliates.
DESCRIPTION OF THE COMPANY'S COMMON STOCK
The following statements with respect to the Company's common stock and common
stock purchase rights summarize more detailed provisions of our restated
certificate of incorporation, as amended (the "Certificate of Incorporation"),
and bylaws, as amended (the "Bylaws"), and the Rights Agreement identified
below. The summary is not complete. You should read the Certificate of
Incorporation, the Bylaws and the Rights Agreement for provisions which may be
important to you. We filed each of these documents with the SEC and
incorporated them by reference as exhibits to the registration statement. The
summary also reflects the effect of a May 22, 1998 two-for-one stock split of
our Common Stock.
GENERAL
As of September 30, 1998, our authorized capital stock was 850,000,000 shares.
Those shares consisted of: (a) 100,000,000 shares of preferred stock, none of
which were outstanding; and (b) 750,000,000 shares of common stock, $0.10 par
value ("Common Stock") of which 221,509,066 shares were outstanding.
LISTING
We list our outstanding shares of Common Stock on the New York Stock Exchange
and the Chicago Stock Exchange under the symbol "CDO". We will also list any
additional Common Stock we issue on these exchanges.
DIVIDENDS
Common Stockholders may receive dividends when declared by the Board of
Directors. We may pay dividends in cash, stock or other form.
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<PAGE>
FULLY PAID
All outstanding shares of Common Stock are fully paid and non-assessable. Any
additional Common Stock we issue will also be fully paid and non-assessable.
VOTING RIGHTS
Each share of Common Stock has one vote in the election of directors and other
matters. Common Stockholders have no preemptive or cumulative voting rights.
OTHER RIGHTS
We will notify common Stockholders of any Stockholders' meetings according to
applicable law. If we liquidate, dissolve or wind-up our business, either
voluntarily or not, common Stockholders will share equally in the assets
remaining after we pay our creditors and preferred Stockholders, if any.
TRANSFER AGENTS AND REGISTRARS
We, along with ChaseMellon Stockholder Services, are transfer agent and
registrar for the Common Stock. You may contact us at the address listed on
page 3 or ChaseMellon located in Ridgefield, New Jersey.
PREFERRED STOCK PURCHASE RIGHTS
On November 4, 1997, the Board of Directors of the Company declared a dividend
of one preferred stock purchase right (a "Right") for each outstanding share of
our Common Stock
payable to holders of record as of the close of business on November 17, 1997.
Shares of Common Stock issued after November 17, 1997 and before the
Distribution Date (as defined below) have, or will have, a Right attached. A
Rights Agreement dated as of November 4, 1997 between the Company and
ChaseMellon Stockholder Services, L.L.C., of New York, as Rights Agent,
contains the terms and conditions of the Rights. We have filed a copy of the
Rights Agreement with the SEC. We have listed the Rights on the New York Stock
Exchange.
A Distribution Date will occur upon the earliest of:
. 10 days following a public announcement (the date of such announcement
being the "Stock Acquisition Date") that a person or group has become an
Acquiring Person; or
. the close of business on the 10th business day (or such later date as
the Board of Directors determine) after the date a person or group makes
a tender or exchange offer which if completed would result in such
person or group being the beneficial owner of 15% or more of our
outstanding Common Stock; or
. the close of business on the 10th business day after the Board of
Directors declares a person to be an Adverse Person.
An Acquiring Person generally is a person or group which beneficially owns 15%
or more of our outstanding Common Stock. An Acquiring Person does not include
any person or group who beneficially owned 20% or more of our outstanding
Common Stock on November 17,
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<PAGE>
1997 ("Existing Holder"), until such time as such Existing Holder acquires
beneficial ownership of 30% or more of the outstanding Common Stock. An Adverse
Person is a person or group, other than an Existing Holder, (1) which
beneficially owns 10% or more of our outstanding Common Stock and (2) which the
Board of Directors has determined has interests adverse to those of the Company
(based on requirements set out in the Rights Agreement).
Before the Distribution Date:
. Common Stock certificates will evidence the Rights;
. Rights will transfer with the Common Stock;
. registered holders of the Common Stock will be deemed to hold the
associated Rights; and
. the Rights are not exercisable.
After the Distribution Date:
. the Rights Agent (as defined below) will mail separate certificates
evidencing the Rights to each record holder of our Common Stock as of
the close of business on the Distribution Date;
. each Right will be exercisable to purchase, for $75 (the "Purchase
Price"), one one-thousandth of a share of Series C Junior Participating
Preferred Stock;
. Rights will be transferable separately from the Common Stock; and
. unless directed by the Board of Directors, we will only issue Rights
with shares of Common Stock:
--issued on exercise of stock options or as awards under employee
benefit plans, granted as of the Distribution Date; or
--upon conversion of securities issued after November 17, 1997.
If any person becomes an Acquiring Person or an Adverse Person, each Right
(other than Rights beneficially owned by the Acquiring Person or Adverse Person
and certain affiliated persons) will entitle the holder to purchase, for the
Purchase Price, a number of shares of Common Stock having a market value of
twice the Purchase Price.
If, after any person has become an Acquiring Person or an Adverse Person, (1)
we are involved in a merger or other business combination in which we are not
the surviving company or our Common Stock is exchanged for other securities or
assets, or (2) we sell or otherwise transfers assets or earning power
aggregating more than 50% of our consolidated assets or earning power, then
each Right (other than Rights beneficially owned by the Acquiring Person or
Adverse Person and certain affiliated persons) will entitle the holder to
purchase, for the Purchase Price, a number of shares of common stock of the
other party to such business combination or sale (or in certain circumstances,
an affiliate) having a market value of twice the Purchase Price.
At any time after any person has become an Acquiring Person or an Adverse
Person, the Board of Directors may exchange all or part of the Rights (other
than Rights beneficially owned by an
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<PAGE>
Acquiring Person or Adverse Person and certain affiliated persons) for shares
of Common Stock at an exchange ratio of one share of Common Stock per Right.
The Board of Directors may redeem all of the Rights at a price of $.005 per
Right at any time prior to the close of business on the 15th day after the
Stock Acquisition Date.
The Rights have certain antitakeover effects. The Rights will cause substantial
dilution to a person or group that attempts to acquire us without conditioning
the offer on a substantial number of Rights being acquired. Accordingly, the
existence of the Rights may deter certain acquirors from making takeover
proposals or tender offers. However, the Rights are not intended to prevent a
takeover. Rather, they are designed to enhance the ability of the Board of
Directors to negotiate with an acquiror on behalf of all of the stockholders.
In addition, the Rights should not interfere with a proxy contest.
The Rights will expire on November 17, 2007, unless earlier exchanged or
redeemed.
DELAWARE GENERAL CORPORATION LAW AND THE COMPANY'S
CERTIFICATE AND BYLAWS
GENERAL
We are a Delaware corporation subject to the Delaware General Corporation Law
(the "DGCL"). Provisions of the DGCL, in addition to provisions of our
Certificate of Incorporation and Bylaws, address corporate governance issues,
including the rights of stockholders. Some of these provisions could hinder
management changes while others could have an anti-takeover effect.
We have summarized the key provisions below. The descriptions are not complete.
You should read the actual provisions of our Certificate of Incorporation and
Bylaws and the DGCL.
BUSINESS COMBINATIONS
The DGCL and our Certificate of Incorporation generally require that at least
50% our outstanding Common Stock vote to approve any merger, share exchange or
sale of substantially all of our assets.
Under the DGCL, we generally may not engage in a business combination with any
stockholder that beneficially owns (together with affiliates and associates)
15% or more of our outstanding Common Stock (for these purposes an "interested
stockholder") for three years after such stockholder becomes an interested
stockholder. This prohibition does not apply if :
. the Board of Directors approves the business combination or the
transaction that results in the stockholder becoming an interested
stockholder stock before the stockholder becomes an interested
stockholder;
. the interested stockholder owns at least 85% of our outstanding Common
Stock (other than Common Stock held by our employee directors and
certain employee stock plans) upon completion of the transaction by
which the stockholder becomes an interested stockholder; or
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<PAGE>
. the Board of Directors and 66 2/3% of our outstanding Common Stock not
owned by the interested stockholder vote to approve the business
combination.
Our Certificate of Incorporation requires that at least 66 2/3% of our
outstanding Common Stock not owned by a "substantial stockholder" vote to
approve certain business combinations and certain other transactions with a
substantial stockholder unless certain minimum price and procedural
requirements are met. A substantial stockholder is defined as any person or
entity that acquires at least 10% of our outstanding Common Stock, excluding
any member of the Board of Directors as of September 30, 1985, or any of our
employee benefit plans. Such super-majority approval is not required if:
. the business combination is solely between us and another corporation in
which we own 50% or more stock and a substantial stockholder owns none,
or
. all following conditions are satisfied:
(1)holders of Common Stock receive consideration with a cash or fair
market value not less than the higher of
--the highest per share price paid by such substantial stockholder in
acquiring any Common Stock, or
--the highest per share market price of our Common Stock during the
three-month period before the date of the proxy statement described in
clause (3) below or, if none, the six-month period before the business
combination is consummated;
(2)after becoming a substantial stockholder and before the business
combination is consummated
--such substantial stockholder has not acquired any newly issued shares
of capital stock from us except proportionately as a stockholder or
upon compliance with our Certificate of Incorporation; and
--such substantial stockholder has not received the benefit (except
proportionately as a stockholder) of any loans or other financial
assistance provided by us, or made any major change in our equity
capital structure; and
(3)if such proposal otherwise requires stockholder approval, a proxy
statement meeting the requirements of the Exchange Act shall be mailed to
our stockholders for the purpose of soliciting stockholder approval of
such business combination.
BOARD OF DIRECTORS
Members of our Board of Directors serve staggered three year terms. This means
we elect only one-third of our directors in each year.
STOCKHOLDER PROPOSALS AND DIRECTOR NOMINATIONS
Our stockholders can submit stockholder proposals and nominate candidates for
the Board of Directors if the stockholders follow advance notice procedures
described in our Bylaws.
To nominate directors, stockholders must submit a written notice to our
corporate secretary not less than 120 days nor more than 150 days before the
first anniversary of the date of the mailing
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<PAGE>
of the proxy statement for our last annual meeting. The notice must include the
name and address of the Stockholder and of the nominee, a description of any
arrangements between the stockholder and the nominee, information about the
nominee required by the SEC, the written consent of the nominee to serve as a
director and other information.
Stockholders must submit proposals to our corporate secretary not less than 120
days and more than 150 days before the first anniversary of the date of the
mailing of the proxy statement for our last annual meeting. The notice must
include:
. a description of the proposal;
. the reasons for presenting the proposal at the annual meeting;
. the text of any resolutions to be presented;
. the stockholder's name and address and number of shares held; and
. any material interest of the stockholder in the proposal.
We may reject director nominations and stockholder proposals that are late or
that do not include all required information. This could prevent stockholders
from bringing certain matters before an annual or special meeting, including
making nominations for directors.
MEETINGS OF STOCKHOLDERS
Our Certificate of Incorporation and Bylaws do not permit any of our
stockholders to call a special meeting, regardless of the percentage of voting
stock held by such stockholders. Nor can our stockholders call a special
meeting by written consent.
These provisions could have the effect of delaying until the next annual
stockholders' meeting stockholder actions that holders of a majority of our
Common Stock favor.
INDEMNIFICATION OF DIRECTORS
We indemnify our officers and directors to the fullest extent permitted under
Delaware law against all liabilities incurred in connection with their service
to us.
LIMITATION OF LIABILITY OF DIRECTORS
Our Certificate of Incorporation provides that our directors will not be
personally liable for monetary damages to us for breaches of their fiduciary
duty as directors, unless they:
. violated their duty of loyalty to us or our stockholders;
. acted in bad faith;
. knowingly or intentionally violated the law;
. authorized illegal dividends or redemptions; or
. derived an improper personal benefit from their action as directors.
This provision applies only to claims against directors arising out of their
role as directors and not in any other capacity (such as an officer or
employee). Directors remain liable for violations of the federal securities
laws and we retain the right to pursue legal remedies other than monetary
damages, such as an injunction or rescission for breach of the director's duty
of care.
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PLAN OF DISTRIBUTION
We may sell any series of Debt Securities:
. through underwriters or dealers;
. through agents; or
. directly to one or more purchasers.
The prospectus supplement will include:
. the initial public offering price;
. the names of any underwriters, dealers or agents;
. the purchase price of the Debt Securities;
. our proceeds from the sale of the Debt Securities;
. any underwriting discounts or agency fees and other underwriters' or
agents' compensation; and
. any discounts or concessions allowed or reallowed or paid to dealers.
If we use underwriters in the sale, they will buy the Debt Securities for their
own account. The underwriters may then resell the Debt Securities in one or
more transactions at a fixed public offering price or at varying prices
determined at the time of sale.
The obligations of the underwriters to purchase the Debt Securities will be
subject to certain conditions. The underwriters will be obligated to purchase
all the Debt Securities offered if they purchase any Debt Securities. Any
initial public offering price and any discounts or concessions allowed or re-
allowed or paid to dealers may be changed from time to time.
If we use agents in the sale, they will use their reasonable best efforts to
solicit purchases for the period of their appointment.
If we sell directly no underwriters or agents would be involved.
We are not making an offer of Debt Securities in any state that does not permit
such an offer.
Underwriters, dealers and agents that participate in the distribution of the
Debt Securities may be underwriters as defined in the Securities Act of 1933.
Any discounts or commissions that we pay them and any profit they receive when
they resell the Debt Securities may be treated as underwriting discounts and
commissions under that Act. We may have agreements with underwriters, dealers
and agents to indemnify them against certain civil liabilities, including
liabilities under the Securities Act of 1933, or to contribute with respect to
payments that they may be required to make.
Underwriters, dealers and agents may be our customers or may engage in
transactions with us or perform services for us in the ordinary course of
business.
Any underwriter may engage in over-allotment, stabilizing transactions, short
covering transactions and penalty bids in accordance with Regulation M under
the Securities Exchange Act of 1934. Over-allotment involves sales in excess of
the offering size, which creates a short position. Stabilizing transactions
permit bids to purchase the underlying security so long as the stabilizing bids
do not exceed a specified maximum. Short covering transactions involve
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<PAGE>
purchases of the securities in the open market after the distribution is
completed to cover short positions. Penalty bids permit the underwriters to
reclaim a selling concession from a dealer when the securities originally sold
by the dealer are purchased in a covering transaction to cover short positions.
Those activities may cause the price of the securities to be higher than it
would otherwise be. If commenced, the underwriters may discontinue those
activities at any time.
LEGAL OPINIONS
Jeremiah M. Fitzgerald, Esq., our Vice President and General Counsel, or
another of our lawyers, will issue an opinion about the legality of the
securities for us. Mr. Fitzgerald owns 61,064 shares of the Company's Common
Stock and holds options granted under the Company's stock option plan to
purchase an additional 110,268 shares of Common Stock. We expect Brown & Wood
LLP, New York, New York to advise any underwriters, agents and dealers.
EXPERTS
KPMG Peat Marwick LLP, independent certified public accountants, audited and
reported on our financial statements and schedules incorporated by reference in
this prospectus and elsewhere in the registration statement. We have
incorporated these documents by reference in reliance upon the authority of
KPMG Peat Marwick LLP as experts in accounting and auditing in giving the
report.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
All dollar amounts in the following tables are estimated other than the
amounts of the registration fee under the Securities Act of 1933.
<TABLE>
<S> <C>
Securities and Exchange Commission filing fee................ $442,500.00
Printing fees and expenses................................... 80,000.00
Auditors' fees and expenses.................................. 50,000.00
Legal fees and expenses...................................... 100,000.00
Blue sky qualification and legal investment survey fees and
expenses (including counsel fees)........................... 15,000.00
Trustee fees and expenses.................................... 30,000.00
Rating Agency fees and expenses.............................. 150,000.00
Miscellaneous................................................ 2,500.00
-----------
Total.................................................... $870,000.00
===========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Subsection (a) of Section 145 of the General Corporation Law of the State of
Delaware (the "DGCL") empowers a corporation to indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the corporation)
by reason of the fact that he is or was a director, officer, employee or agent
of the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
Subsection (b) of Section 145 of the DGCL empowers a corporation to indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, except that no indemnification may be
made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the corporation unless and only to the
extent that the Court of Chancery or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court
of Chancery or such other court shall deem proper.
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Section 145 of the DGCL further provides that to the extent a director or
officer of a corporation has been successful on the merits or otherwise in the
defense of any action, suit or proceeding referred to in subsections (a) and
(b) of Section 145, or in defense of any claim, issue or matter therein, he
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith; that indemnification
provided for by Section 145 shall not be deemed exclusive of any other rights
to which the indemnified party may be entitled; that indemnification provided
for by Section 145 shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of such person's heirs,
executors and administrators; and empowers the corporation to purchase and
maintain insurance on behalf of a director or officer of the corporation
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the corporation
would have the power to indemnify him against such liabilities under Section
145. Article VIII of the by-laws of the Registrant provides, in substance, that
the Registrant will indemnify its directors and officers to the full extent
permitted by Section 145 of the DGCL. Also, as permitted by the DGCL, Article
13 of the Registrant's Restated Certificate of Incorporation eliminates the
personal liability of each director of the Registrant to the Registrant or its
stockholders for monetary damages arising out of or resulting from any breach
of his fiduciary duty as a director, except where such director (i) breached
his duty of loyalty to the Registrant or its stockholders, (ii) failed to act
in good faith or engaged in intentional misconduct or a knowing violation of
the law, (iii) violated Section 174 of the DGCL or (iv) obtained an improper
personal benefit.
The Registrant maintains policies insuring its and its subsidiaries' officers
and directors against certain liabilities for actions taken in such capacities,
including, subject to certain exemptions, liabilities under the Securities Act
of 1933.
Reference is made to the form of Underwriting Agreement filed as Exhibit 1.1
hereto and to the form of Distribution Agreement filed as Exhibit 1.2 hereto
for a description of the indemnification arrangements in connection with any
offering through underwriters or agents of the Securities registered hereby.
Similar indemnification provisions were contained in the underwriting
agreements, distribution agreements and other agreements executed in connection
with prior offerings and sales of securities by the Registrant.
ITEM 16. LIST OF EXHIBITS.
<TABLE>
<CAPTION>
PAGE
NUMBERS
OF EXHIBITS
EXHIBIT FILED
NUMBER EXHIBIT HEREWITH
------- ------- -----------
<C> <S> <C>
1.1 --Form of Underwriting Agreement for Senior Debt
Securities (incorporated by reference to Exhibit 1.1 to
the Registrant's Registration Statement on Form S-3
(Registration No. 33-63823))
1.2 --Form of Distribution Agreement for Senior Debt
Securities (incorporated by reference to Exhibit 1.2 to
the Registrant's Registration Statement on Form S-3
(Registration No. 33-63823))
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
PAGE
NUMBERS
OF EXHIBITS
EXHIBIT FILED
NUMBER EXHIBIT HEREWITH
------- ------- -----------
<C> <S> <C>
4.1 --Form of Senior Debt Indenture dated as of September
15, 1998 between the Registrant and The Fuji Bank and
Trust Company. The form or forms of Senior Debt
Securities with respect to each particular offering
will be filed as an exhibit to a Current Report on
Form 8-K and incorporated herein by reference.
5 --Opinion of Jeremiah M. Fitzgerald, Esq., Vice
President and General Counsel of the Registrant
12 --Statement Regarding Computation of Ratios
(incorporated by reference to Exhibit 12 to the
Registrant's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1998)
23.1 --Consent of KPMG Peat Marwick LLP
23.2 --Consent of Jeremiah M. Fitzgerald (contained in the
opinion filed as Exhibit 5 to this Registration
Statement)
24 --Powers of Attorney of Directors and Officers of the
Registrant (included on signature page)
25 --Statement of Eligibility on Form T-1 of The Fuji Bank
and Trust Company
</TABLE>
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(a) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Securities Act");
(b) to reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Securities and Exchange Commission pursuant
to Rule 424(b) promulgated under the Securities Act if, in the
aggregate, the changes in volume and price represent no more than a
20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the Registration Statement.
(c) to include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement,
or any material change to such information in the Registration
Statement;
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<PAGE>
provided, however, that paragraphs (1)(a) and (1)(b) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), that are incorporated by reference
in the Registration Statement;
(2) that, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof;
(3) to remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering; and
(4) that, for purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act that is incorporated by
reference in the Registration Statement shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described above in Item 15, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE VILLAGE OF ROSEMONT, STATE OF ILLINOIS, ON OCTOBER 8, 1998.
COMDISCO, INC.
/s/ Jack Slevin
By-------------------------------
Jack Slevin, President
POWER OF ATTORNEY AND SIGNATURES
EACH PERSON WHOSE SIGNATURE APPEARS BELOW CONSTITUTES AND APPOINTS JACK
SLEVIN, JOHN J. VOSICKY AND WILLIAM N. PONTIKES, OR ANY ONE OF THEM, EACH WITH
FULL POWER OF SUBSTITUTION AND RESUBSTITUTION, SUCH PERSON'S TRUE AND LAWFUL
ATTORNEY-IN-FACT AND AGENT, IN SUCH PERSON'S NAME AND ON SUCH PERSON'S BEHALF,
IN ANY AND ALL CAPACITIES, TO SIGN ANY AND ALL AMENDMENTS TO THIS REGISTRATION
STATEMENT, INCLUDING ANY POST-EFFECTIVE AMENDMENTS, AND TO SIGN ANY RELATED
REGISTRATION STATEMENT, AND ANY AND ALL AMENDMENTS TO SUCH REGISTRATION
STATEMENT, FILED PURSUANT TO RULE 462(B) OF THE SECURITIES ACT OF 1933, AND TO
FILE THE SAME, WITH ALL EXHIBITS THERETO AND OTHER DOCUMENTS IN CONNECTION
THEREWITH, WITH THE SECURITIES AND EXCHANGE COMMISSION.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE CAPACITIES AND
ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Jack Slevin President, Chief
- ------------------------------------ Executive Officer,
(Jack Slevin) Chairman of the Board
and Director (Principal
Executive Officer)
/s/ John J. Vosicky Executive Vice October 8, 1998
- ------------------------------------ President/Chief
(John J. Vosicky) Financial Officer and
Director (Principal
Financial Officer)
/s/ David J. Keenan Senior Vice President
- ------------------------------------ and Controller
(David J. Keenan) (Principal Accounting
Officer)
/s/ Robert A. Bardagy Director
- ------------------------------------
(Robert A. Bardagy)
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ C. Keith Hartley Director
- ------------------------------------
(C. Keith Hartley)
/s/ Harry M. Jansen Kraemer, Jr. Director
- ------------------------------------
(Harry M. Jansen Kraemer, Jr.)
/s/ Carolyn L. Murphy Director
- ------------------------------------
(Carolyn L. Murphy)
/s/ Thomas H. Patrick Director
- ------------------------------------
(Thomas H. Patrick)
/s/ William N. Pontikes Director October 8, 1998
- ------------------------------------
(William N. Pontikes)
/s/ Nicholas K. Pontikes Director
- ------------------------------------
(Nicholas K. Pontikes)
/s/ Rick Kash Director
- ------------------------------------
(Rick Kash)
/s/ Alan J. Andreini Director
- ------------------------------------
(Alan J. Andreini)
/s/ Philip A. Hewes Director
- ------------------------------------
(Philip A. Hewes)
</TABLE>
II-6
<PAGE>
EXHIBIT 4.1
-----------
--------------------------------------------------------
--------------------------------------------------------
COMDISCO, INC.
To
THE FUJI BANK AND TRUST COMPANY, as Trustee
---------------------------
INDENTURE
---------------------------
Dated as of September 15, 1998
Senior Debt Securities
--------------------------------------------------------
--------------------------------------------------------
<PAGE>
COMDISCO, INC.
Reconciliation and tie between Trust Indenture Act of
1939, as amended and Indenture dated as of
September 15, 1998
<TABLE>
<CAPTION>
Trust Indenture Act Section Indenture Section
- --------------------------- -----------------
<S> <C>
(s)310(a)(1)..............................................................................608
(a)(2)............................................................................608
(a)(3)............................................................................Not Applicable
(a)(4)............................................................................Not Applicable
(b)...............................................................................608, 609
(c)...............................................................................Not Applicable
(s)311(a).................................................................................612(a), (c)
(b)...............................................................................612(b), (c)
(c)...............................................................................Not Applicable
(b)(2)............................................................................703(a)(2), 703(b)
(c)...............................................................................Not Applicable
(s)312(a).................................................................................701, 702(a)
(b)...............................................................................702(b)
(c)...............................................................................702(c)
(s)313(a).................................................................................703(a)
(b)(1)............................................................................Not Applicable
(b)(2)............................................................................703(b)
(c)...............................................................................703(c)
(d)...............................................................................703(d)
(s)314(a).................................................................................704
(b)...............................................................................Not Applicable
(c)(1)............................................................................102
(c)(2)............................................................................102
(c)(3)............................................................................Not Applicable
(d)...............................................................................Not Applicable
(e)...............................................................................102
(f)...............................................................................Not Applicable
(s)315(a).................................................................................601
(b)...............................................................................602, 703(a)(6)
(c)...............................................................................602
(d)...............................................................................603
(e)...............................................................................514
(s)316(a)(last sentence)..................................................................101
(a)(1)(A).........................................................................502, 512
(a)(1)(B).........................................................................13
(a)(2)............................................................................Not Applicable
(b)...............................................................................508
(c)...............................................................................104(e)
(s)317(a)(1)..............................................................................503
(a)(2)............................................................................504
(b)...............................................................................1003
(s)318(a).................................................................................108
(c)...............................................................................108
</TABLE>
- ---------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of this Indenture.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Parties..................................................................... 1
Recitals.................................................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions................................................... 1
Act......................................................................... 2
Additional Amounts.......................................................... 2
Affiliate................................................................... 2
Authenticating Agent........................................................ 2
Authorized Newspaper....................................................... 2
Bearer Security............................................................ 2
Board of Directors......................................................... 2
Board Resolution........................................................... 2
Business Day............................................................... 2
Commission................................................................. 2
Company.................................................................... 3
Company Request and Company Order.......................................... 3
Consolidated Assets........................................................ 3
Corporate Trust Office..................................................... 3
Corporation................................................................ 3
Coupon..................................................................... 3
Defaulted Interest......................................................... 3
Depositary................................................................. 3
Dollars or $............................................................... 3
Event of Default........................................................... 3
Holder..................................................................... 3
Indenture.................................................................. 3
Interest................................................................... 4
Interest Payment Date...................................................... 4
</TABLE>
-i-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
Lien....................................................................... 4
Maturity................................................................... 4
Officers' Certificate...................................................... 4
Opinion of Counsel......................................................... 4
Original Issue Discount Security........................................... 4
Outstanding................................................................ 5
Paying Agent............................................................... 5
Person..................................................................... 5
Place of Payment........................................................... 5
Predecessor Security....................................................... 6
Property................................................................... 6
Redemption Date............................................................ 6
Redemption Price........................................................... 6
Registered Security........................................................ 6
Regular Record Date........................................................ 6
Responsible Officer........................................................ 6
Security or Securities..................................................... 6
Security Register and Security Registrar................................... 6
Special Record Date........................................................ 6
Stated Maturity............................................................ 6
Subsidiary................................................................. 7
Trustee.................................................................... 7
Trust Indenture Act........................................................ 7
United States.............................................................. 7
United States Alien........................................................ 7
Vice President............................................................. 7
Voting Stock............................................................... 7
SECTION 102. Compliance Certificates and Opinions......................... 7
SECTION 103. Form of Documents Delivered to Trustee....................... 8
SECTION 104. Acts of Holders.............................................. 8
SECTION 105. Notices, etc., to Trustee and Company........................ 10
</TABLE>
-ii-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 106. Notice to Holders of Securities; Waiver...................... 11
SECTION 107. Language of Notices, etc..................................... 11
SECTION 108. Conflict with Trust Indenture Act............................ 12
SECTION 109. Effect of Headings and Table of Contents..................... 12
SECTION 110. Successors and Assigns....................................... 12
SECTION 111. Separability Clause.......................................... 12
SECTION 112. Benefits of Indenture........................................ 12
SECTION 113. Governing Law................................................ 12
SECTION 114. Legal Holidays............................................... 12
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.............................................. 13
SECTION 202. Form of Trustee's Certificate of Authentication.............. 13
SECTION 203. Securities in Global Form.................................... 13
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series......................... 14
SECTION 302. Denominations................................................ 17
SECTION 303. Execution, Authentication, Delivery and Dating............... 17
SECTION 304. Temporary Securities......................................... 19
SECTION 305. Registration, Transfer and Exchange.......................... 20
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities............. 23
SECTION 307. Payment of Interest; Interest Rights Preserved............... 24
SECTION 308. Persons Deemed Owners........................................ 25
SECTION 309. Cancellation................................................. 26
SECTION 310. Computation of Interest...................................... 26
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture...................... 27
SECTION 402. Application of Trust Money................................... 28
</TABLE>
-iii-
<PAGE>
<TABLE>
<CAPTION>
Page
----
ARTICLE FIVE
REMEDIES
<S> <C>
SECTION 501. Events of Default.................................................................. 28
SECTION 502. Acceleration of Maturity; Rescission and Annulment................................. 30
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.................... 31
SECTION 504. Trustee May File Proofs of Claim................................................... 31
SECTION 505. Trustee May Enforce Claims without Possession of Securities or Coupons............. 32
SECTION 506. Application of Money Collected..................................................... 32
SECTION 507. Limitation on Suits................................................................ 33
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest.......... 33
SECTION 509. Restoration of Rights and Remedies................................................. 33
SECTION 510. Rights and Remedies Cumulative..................................................... 34
SECTION 511. Delay or Omission Not Waiver....................................................... 34
SECTION 512. Control by Holders of Securities................................................... 34
SECTION 513. Waiver of Past Defaults............................................................ 34
SECTION 514. Undertaking for Costs.............................................................. 35
SECTION 515. Waiver of Stay or Extension Laws................................................... 35
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities................................................ 35
SECTION 602. Notice of Defaults................................................................. 36
SECTION 603. Certain Rights of Trustee.......................................................... 36
SECTION 604. Not Responsible for Recitals or Issuance of Securities............................. 37
SECTION 605. May Hold Securities................................................................ 37
SECTION 606. Money Held in Trust................................................................ 37
SECTION 607. Compensation and Reimbursement..................................................... 37
SECTION 608. Corporate Trustee Required; Eligibility............................................ 38
SECTION 609. Resignation and Removal; Appointment of Successor.................................. 38
SECTION 610. Acceptance of Appointment by Successor............................................. 40
SECTION 611. Merger, Conversion, Consolidation or Succession to Business........................ 41
SECTION 612. Preferential Collection of Claims Against Company.................................. 41
</TABLE>
-iv-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 613. Appointment of Authenticating Agent................................................................ 41
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.......................................... 43
SECTION 702. Preservation of Information; Communications to Holders............................................. 43
SECTION 703. Reports by Trustee................................................................................. 45
SECTION 704. Reports by the Company............................................................................. 45
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Company and Sales, Leases and Conveyances
Permitted Subject to Certain Conditions.......................................................................... 46
SECTION 802. Rights and Duties of Successor Corporation......................................................... 46
SECTION 803. Officers' Certificate and Opinion of Counsel....................................................... 47
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of Holders................................................. 47
SECTION 902. Supplemental Indentures with Consent of Holders.................................................... 48
SECTION 903. Execution of Supplemental Indentures............................................................... 49
SECTION 904. Effect of Supplemental Indentures.................................................................. 49
SECTION 905. Conformity with Trust Indenture Act................................................................ 49
SECTION 906. Reference in Securities to Supplemental Indenture.................................................. 49
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and Interest................................................ 50
SECTION 1002. Maintenance of Office or Agency.................................................................... 50
SECTION 1003. Money for Securities Payments To Be Held in Trust.................................................. 51
SECTION 1004. Additional Amounts................................................................................. 52
SECTION 1005. Statement as to Compliance; Notice of Certain Defaults............................................. 53
SECTION 1006. Waiver of Certain Covenants........................................................................ 53
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article........................................................................... 53
</TABLE>
-v-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 1102. Election to Redeem; Notice to Trustee.............................................................. 53
SECTION 1103. Selection by Trustee of Securities to be Redeemed.................................................. 54
SECTION 1104. Notice of Redemption............................................................................... 54
SECTION 1105. Deposit of Redemption Price........................................................................ 55
SECTION 1106. Securities Payable on Redemption Date.............................................................. 55
SECTION 1107. Securities Redeemed in Part........................................................................ 56
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article........................................................................... 56
SECTION 1202. Satisfaction of Sinking Fund Payments With Securities.............................................. 57
SECTION 1203. Redemption of Securities for Sinking Fund.......................................................... 57
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article........................................................................... 58
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1401. Purposes for Which Meetings May Be Called.......................................................... 58
SECTION 1402. Call, Notice and Place of Meetings................................................................. 58
SECTION 1403. Persons Entitled to Vote at Meetings............................................................... 59
SECTION 1404. Quorum; Action..................................................................................... 59
SECTION 1405. Determination of Voting Rights; Conduct and Adjournment of Meetings................................ 60
SECTION 1406. Counting Votes and Recording Action of Meetings.................................................... 60
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
SECTION 1501. Securities in Foreign Currencies................................................................... 61
SECTION 1502. Payments in Substitute Currencies.................................................................. 61
</TABLE>
-vi-
<PAGE>
INDENTURE, dated as of September 15, 1998, between Comdisco, Inc., a
Delaware corporation (hereinafter called the "Company"), having its principal
office at 6111 North River Road, Rosemont, Illinois 60018, and The Fuji Bank and
Trust Company, a New York State trust company (hereinafter called the
"Trustee"), having its principal office in New York, New York.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured and
unsubordinated debentures, notes or other evidences of indebtedness (hereinafter
called the "Securities"), unlimited as to principal amount, to bear such rates
of interest, to mature at such time or times, to be issued in one or more series
and to have such other provisions as shall be fixed as hereinafter provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the premises and the purchase of the
Securities by the Holders thereof, and the sum of one dollar duly paid by the
Company to the Trustee, the receipt of which is hereby acknowledged, it is
mutually covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Securities or of series thereof, as follows:
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted at the date of such computation; and
-1-
<PAGE>
(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 Holders has the meaning specified
in Section 104.
"Additional Amounts" means any additional amounts which are required by
a Security or by or pursuant to a Board Resolution, under circumstances
specified therein, to be paid by the Company in respect of certain taxes imposed
on certain Holders and which are owing to such Holders.
"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 the meanings correlative to
the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 613 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in an official language of
the country of publication or in the English language, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security in the form established pursuant
to Section 201 which is payable to bearer.
"Board of Directors" means 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.
"Business Day", with respect to any Place of Payment means each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions or trust companies in the Place of Payment are authorized or
obligated by law to close, except as may otherwise be provided in the form of
Securities of any particular series pursuant to the provisions of this
Indenture.
"Commission" means the Securities and Exchange Commission, as
constituted from time to time, created under the Securities Exchange Act of
1934, or if at any time after the execution of this instrument such Commission
is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
-2-
<PAGE>
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by the Chairman, the Vice
Chairman, the President, a Vice President or the Treasurer, and by a Vice
President, an Assistant Treasurer, the Secretary or an Assistant Secretary of
the Company, and delivered to the Trustee.
"Consolidated Assets" means the amount of all assets which under
general accepted accounting principles as in effect on the date of such balance
sheet, would appear on a consolidated balance sheet of the Company and its
Subsidiaries (after deducting related depreciation, amortization, unearned
finance charges, allowance for credit losses, and other valuation reserves), but
shall not include goodwill, unamortized debt discount and expenses, corporate
organization expense, patents and trademarks.
"Corporate Trust Office" means the principal office of the Trustee, at
which at any particular time its corporate trust business shall be administered,
which office at the date of original execution of this Indenture is located at
Two World Trade Center, New York, New York 10048.
"Corporation" includes corporations, associations, companies and
business trusts.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more global
Securities, the Person designated as Depositary by the Company pursuant to
Section 301 until a successor Depositary shall have been appointed pursuant to
Section 305, and thereafter 'Depositary' shall mean or include each Person who
is then a Depositary hereunder, and if at any time there is more than one such
Person, 'Depositary' as used with respect to the Securities of any such series
shall mean the Depositary with respect to the Securities of that series.
"Dollars" or "$" or any similar reference shall mean the currency of
the United States, except as may otherwise be provided in the form of Securities
of any particular series pursuant to the provisions of this Indenture.
"Event of Default" has the meaning specified in Section 501.
"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 301; provided, however, that, if at any time more than
one Person is acting as
-3-
<PAGE>
Trustee under this instrument due to the appointment of one or more separate
Trustees for any one or more separate series of Securities pursuant to Section
609(e), "Indenture" shall mean, with respect to such series of Securities for
which any such Person is Trustee, 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 the particular series of Securities for which
such Person is Trustee established or contemplated by Section 301, exclusive,
however, of any provisions or terms which relate solely to other series of
Securities for which such Person is not Trustee, regardless of when such terms
or provisions were adopted, and exclusive of any provisions or terms adopted by
means of one or more indentures supplemental hereto executed and delivered after
such Person had become such Trustee but to which such Person, as such Trustee,
was not a party.
"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, and, when used with respect to a Security which provides
for the payment of Additional Amounts pursuant to Section 1004, includes such
Additional Amounts.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the applicable Securities.
"Lien" means any interest in Property securing an obligation owed to,
or a claim by, a Person other than the owner of the Property, whether such
interest is based on the common law, statute or contract (but excluding a
landlord's statutory lien for rent not yet due), and including, but not limited
to, the security interest lien arising from a mortgage, encumbrance, pledge,
conditional sale or trust receipt or a lease, consignment or bailment for
security purposes. The term "Lien" shall include reservations, exceptions,
encroachments, easements, rights-of-way, covenants, conditions, restrictions,
leases and other title exceptions and encumbrances affecting Property. For the
purpose of this Indenture, the Company or a Subsidiary shall be deemed to be the
owner of any Property which it has acquired or holds subject to a conditional
sale agreement, capital lease or other arrangement pursuant to which title to
the Property has been retained by or vested in some other Person for security
purposes.
"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, notice of redemption, request for repayment or
otherwise.
"Officers' Certificate" means a certificate signed by the Chairman, the
Vice Chairman, the President, a Vice President or the Treasurer, and by a Vice
President, an Assistant Treasurer, the Secretary or an Assistant Secretary of
the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, in form and
substance satisfactory to the Trustee, from counsel who may (except as otherwise
expressly provided in this Indenture) be an employee of or counsel for the
Company and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means a Security issued pursuant to
this Indenture which provides for declaration of an amount less than the
principal thereof to be due and payable upon acceleration pursuant to Section
502.
-4-
<PAGE>
"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 thereto
appertaining, provided that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been
made; and
(iii) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than
any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders of Securities for quorum purposes, the principal amount of
an Original Issue Discount Security that may be counted in making such
determination and that shall be deemed to be Outstanding for such purposes shall
be equal to the amount of the principal thereof that could be declared to be due
and payable pursuant to the terms of such Original Issue Discount Security at
the time the taking of such action by the Holders of such requisite principal
amount is evidenced to the Trustee as provided in Section 104(a), and, provided,
further, that Securities owned beneficially by the Company or any other obligor
upon the Securities or any Affiliate of the Company or such other obligor, shall
be disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the
Trustee has received an officer's certificate stating that such Securities are
so owned. 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 such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Person" means any individual, corporation, partnership, 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 the principal of (and premium, if any) and
interest on the Securities of that series are payable as specified as provided
pursuant to Section 301.
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"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
lost, destroyed, mutilated 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 lost, destroyed, mutilated or stolen Security or
the Security to which a mutilated, destroyed, lost or stolen coupon appertains.
"Property" means any interest in any kinds of property or asset, whether
real, personal or mixed, or tangible or intangible.
"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 as determined pursuant to the
provisions of this Indenture.
"Registered Security" means any Security established pursuant to Section
201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on a Registered Security on
any Interest Payment Date means the date, if any, specified in such Security as
the "Regular Record Date".
"Responsible Officer" when used with respect to the Trustee means any vice
president (whether or not designated by a number or a word or words added before
or after the title vice president), the secretary, any assistant secretary, the
treasurer, any assistant treasurer, the cashier, any assistant cashier, any
trust officer, senior trust officer or assistant trust officer, 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.
"Security" or "Securities" means any Security or Securities, as the case
may be, authenticated and delivered under this Indenture; provided, however,
that if at any time there is more than one Person acting as Trustee under this
Indenture, "Securities" with respect to the Indenture as to which such Person is
Trustee shall have the meaning stated in the first recital of this Indenture and
shall more particularly mean Securities authenticated and delivered under this
Indenture, exclusive, however, of Securities of any series as to which such
Person is not Trustee.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"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 307.
"Stated Maturity" when used with respect to any Security or any installment
of principal thereof or interest thereon means the date specified in such
Security or a coupon representing such installment of
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interest as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.
"Subsidiary" means any corporation of which at the time of determination
the Company and/or one or more Subsidiaries owns or controls directly or
indirectly more than 50% of the shares of Voting Stock. "Wholly-owned", when
used with reference to a Subsidiary, means a Subsidiary of which all of the
outstanding capital stock (except for qualifying shares) is owned by the Company
or by one or more wholly-owned Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such with respect to
one or more series of Securities pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean each Person who is then a Trustee
hereunder, and if at any time there is more than one such Person, "Trustee"
shall mean each such Person and as used with respect to the Securities of any
series shall mean the Trustee with respect to the Securities of that Series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended, 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.
"United States" means the United States of America (including the States
and the District of Columbia), its territories and 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
non-resident alien fiduciary of a foreign estate or trust.
"Vice President" when used with respect to the Company shall mean any Vice
President of the Company whether or not designated by a number or a word or
words added before or after the title "Vice President".
"Voting Stock" means stock 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, stock which carries only the right to vote conditionally on the
happening of an event shall not be considered voting stock whether or not such
event shall have happened.
SECTION 102. Compliance Certificates and Opinions
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee such certificates and opinions as may be required under the Trust
Indenture Act.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in
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this Indenture shall include:
(1) a statement that each individual signing such certificate or opinion
has read such condition or covenant and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such condition or covenant 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 103. Form of Documents Delivered to Trustee
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders 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, but only if, Securities of a series are issuable as Bearer Securities, any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders of Securities
of such series may, alternatively, be embodied in and evidenced by
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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 Fourteen, or a combination of such instruments and any
such record. Except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments 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 of the holding by any Person of a Security, shall
be sufficient for any purpose of this Indenture and (subject to Section 601)
conclusive in favor of the Trustee and the Company and any agent of the Trustee
or the Company, if made in the manner provided in this Section. The record of
any meeting of Holders of Securities shall be proved in the manner provided in
Section 1406.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is
by a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution by any Person of any such
instrument or writing may also be proved in any reasonable manner which the
Trustee deems sufficient and in accordance with such reasonable rules as the
Trustee may determine; and the Trustee may in any instance require further proof
with respect to any of the matters referred to in this Section.
(c) The ownership of Registered Securities and 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 reasonably acceptable to the Company,
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 proved by 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 the Person so executing
such instrument or writing and the date of holding the same may also be proved
in any other manner which the Trustee deems sufficient.
(e) If the Company shall solicit from the Holders of any Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, or for purpose of determining the identity of Holders
entitled to vote or consent to any action authorized or permitted by Sections
512 or 513 of this Indenture, the Company may, at its option, by or pursuant to
a Board Resolution, fix in advance a
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record date for the determination of Holders of Registered Securities entitled
to give such request, demand, authorization, direction, notice, consent, waiver
or other Act, but the Company shall have no obligation to do so. If such a
record date is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other Act may be given before or after such record date, but
only the Holders of Registered Securities of record at the close of business on
such record date shall be deemed to be Holders for the purposes of determining
whether Holders of the requisite proportion of Outstanding Securities have
authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for that purpose the
Outstanding Securities shall be computed as of such record date; provided that
no such authorization, agreement or consent by the Holders on such record date
shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the record date.
(f) Without limiting the foregoing, a Holder entitled hereunder to give or
take any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents, each of which may do so pursuant to such appointment
with regard to all or any different part of such principal amount.
(g) Any request, demand, authorization, direction, notice, consent, waiver
or other action by 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 the transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done or suffered to be done by the Trustee, any Security Registrar, any
Paying Agent or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
SECTION 105. Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, 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 the attention of its Treasurer at the address of its principal
office specified in the first paragraph of this instrument or at any other
address previously furnished in writing to the Trustee by the Company, or
(3) the Trustee by the Company or the Company by the Trustee, shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing by facsimile transmission to or with the Trustee at (212)
__________________ (Attn:___________________) or Company at (847) 518-5088
(Attn: General Counsel), or at any other facsimile number previously
furnished in writing by the receiving party to the transmitting party, as
applicable (receipt confirmed by telephone and original sent by guaranteed
overnight courier).
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SECTION 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein or in the form of Securities
of any particular series pursuant to the provisions of this Indenture, 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 his address as
it appears in the Security Register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such
notice; and
(2) such notice shall be sufficiently given to Holders of Bearer
Securities, if any, if published in an Authorized Newspaper in The City of
New York and, if the Securities of such series are then listed on any stock
exchange outside the United States, in an Authorized Newspaper in such city
as the Company shall advise the Trustee that such stock exchange so
requires, 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 any case where notice to Holders of Registered Securities is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder 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 regular mail
service or by reason of any other cause it shall be impracticable to give such
notice by mail, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose hereunder.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither 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 mailed to
Holders of Registered Securities as provided above.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders of Securities shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 107. Language of Notices, etc.
Any request, demand, authorization, direction, notice, consent, election or
waiver required or permitted under this Indenture shall be in the English
language, except that, if the Company so elects, any published notice may be in
an official language of the country of publication.
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SECTION 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act that is required under such Act to be a part of and
govern this Indenture, the latter provisions shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, such provision of the Act as so modified or
excluded, as the case may be, shall be deemed to apply to this Indenture.
SECTION 109. 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 110. 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 111. Separability Clause.
In case any provision in this Indenture or coupons, if any, 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 112. Benefits of Indenture.
Nothing in this Indenture or in the Securities or coupons, if any, express
or implied, shall give to any Person, other than the parties hereto, any
Security Registrar, any Paying Agent and their successors hereunder and the
Holders of Securities or coupons, if any, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 113. Governing Law.
This Indenture and the Securities and coupons shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 114. Legal Holidays.
Except as may otherwise be provided in the form of Securities of any
particular series pursuant to the provisions of this Indenture, in any case
where any Interest Payment Date, Redemption Date 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 the Securities or
coupons, if any, other than a provision in the Securities which specifically
states that such provision shall apply in lieu of this Section) payment of
interest or any Additional Amounts 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, and no
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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.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons, if any, and temporary
global Securities, if any, shall be in the form established by or pursuant to a
Board Resolution or in one or more indentures supplemental hereto, shall have
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture or any indenture supplemental hereto and
may have such letters, numbers or other marks of identification and such legends
or endorsements placed thereon as may, consistently herewith, be determined by
the officers of the Company executing such Securities, as evidenced by their
execution of such Securities.
Unless otherwise provided as contemplated by Section 301 with respect to
any series of Securities, the Securities of each series shall be issuable in
registered form without coupons. If so provided as contemplated by Section 301,
the Securities of a series also shall be issuable in bearer form, with or
without interest coupons attached.
The definitive Securities and coupons, if any, shall be printed,
lithographed or engraved or produced by any combination of these methods on a
steel engraved border or steel engraved borders or may be produced in any other
manner, all as determined by the officers of the Company executing such
Securities, as evidenced by their execution of such Securities or coupons, if
any.
SECTION 202. Form of Trustee's Certificate of Authentication.
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
THE FUJI BANK AND TRUST COMPANY as
Trustee
By____________________________
Authorized Officer
SECTION 203. Securities in Global Form.
If Securities of a series are issuable in whole or in part in global form,
as specified as contemplated by Section 301, then, notwithstanding clause (12)
of Section 301 and the provisions of Section 302, such global Security shall
represent such of the Outstanding Securities of such series as shall be
specified therein
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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 or increased to reflect the issuance of additional
uncertificated securities of such series. Any endorsement of a global Security
to reflect any change in the rights of the Holders of Outstanding Securities
represented thereby, or to reflect the amount, or any increase or decrease in
the amount, of Outstanding Securities represented thereby shall be made in such
manner and upon written instructions given by such Person or Persons as shall be
specified therein or in the Company Order to be delivered to the Trustee
pursuant to Section 303 or Section 304.
Global Securities may be issued in either registered or bearer form and in
either temporary or permanent form.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and
delivered under this 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 set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto:
(1) the title of the Securities and the series in which such
Securities shall be included;
(2) any limit upon the aggregate principal amount of the Securities of
such title or the Securities of such series which may be authenticated and
delivered under this Indenture (except for Securities authenticated and
delivered upon registration or transfer of, or in exchange for, or in lieu
of, other Securities of the series pursuant to Sections 304, 305, 306, 906
or 1107);
(3) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities (with or without coupons) or both, any
restrictions applicable to the offer, sale or delivery of Bearer Securities
and the terms upon which Bearer Securities of the series may be exchanged
for Registered Securities of the series and vice versa;
(4) the Person to whom any interest on any 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;
(5) the date as of which any Bearer Securities of the series and any
temporary global Security representing Outstanding Securities of the series
shall be dated if other than the date of original issuance of the first
Security of the series to be issued;
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(6) if Securities of the series are to be issuable as Bearer
Securities, whether interest in respect to any portion of a temporary
Bearer Security in global form (representing all of the Outstanding Bearer
Securities of the series) payable in respect of an Interest Payment Date
prior to the exchange of such temporary Bearer Security for definitive
Securities of the series shall be paid to any clearing organization with
respect to the portion of such temporary Bearer Security held for its
account and, in such event, the terms and conditions (including any
certification requirements) upon which any such interest payment received
by a clearing organization will be credited to the Persons entitled to
interest payable on such Interest Payment Date;
(7) the date or dates on which the principal of such Securities of a
particular series is payable;
(8) the rate or rates at which such Securities of a particular series
shall bear interest, if any, or method in which such rate or rates are
determined, the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest shall be payable and the
Regular Record Date for the interest payable on Registered Securities on
any Interest Payment Date, whether and under what circumstances Additional
Amounts of such Securities shall be payable in respect of specified taxes,
assessments or other governmental charges withheld or deducted and, if so,
whether the Company has the option to redeem the affected Securities rather
than pay such Additional Amounts, and the basis upon which interest shall
be calculated if other than that of a 360-day year of twelve 30-day months;
(9) the place or places, if any, in addition to or other than the
Borough of Manhattan, The City of New York, where the principal of (and
premium, if any) and interest on or Additional Amounts, if any, payable in
respect of such Securities of a particular series shall be payable;
(10) the period or periods within which, the price or prices at which
and the terms and conditions upon which such Securities of a particular
series may be redeemed, in whole or in part, at the option of the Company;
(11) the obligation, if any, of the Company to redeem or purchase such
Securities of a particular 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 of a particular series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation, and any
provisions for the remarketing of such Securities;
(12) the denominations in which Registered Securities of the series,
if any, shall be issuable if other than denominations of $1,000 and any
integral multiple thereof, and the denominations in which Bearer Securities
of the series, if any, shall be issuable if other than the denomination of
$5,000;
(13) if other than the principal amount thereof, the portion of the
principal amount of such Securities of a particular series which shall be
payable upon declaration of acceleration of the Maturity thereof pursuant
to Section 502;
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(14) if other than such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public or
private debts, the coin or currency, including composite currencies, in
which payment of the principal of (and premium, if any) or interest, if
any, on and Additional Amounts in respect of such Securities of a
particular series shall be payable;
(15) if the principal of (and premium, if any) or interest, if any,
on, and Additional Amounts in respect of such Securities of a particular
series are to be payable, at the election of the Company or a Holder
thereof, in a coin or currency, including composite currencies, other than
that in which such Securities are stated to be payable, the period or
periods within which, and the terms and conditions upon which, such
election may be made;
(16) if the amount of payments of principal of (and premium, if any)
or interest, if any, on, and Additional Amounts in respect of such
Securities of a particular series may be determined with reference to an
index, formula or other method based on a coin or currency other than that
in which the Securities are stated to be payable, the manner in which such
amounts shall be determined.
(17) if the Securities of such series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security
of such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, then the form and terms of
such certificates, documents or conditions; and
(18) the extent to which any of the Securities of a particular series
will be issuable in whole or in part in the form of one or more temporary
or permanent global Security or Securities and, in such case, the
Depositary for such global Security or Securities, the terms and
conditions, if any, upon which such global Securities may be exchanged in
whole or in part for definitive securities, and the manner in which any
interest payable on a temporary or permanent global Security will be paid.
(19) any other terms of such Securities of a particular series (which
terms shall not be inconsistent with the provisions of this Indenture).
All Securities of any one series and coupons appertaining to Bearer
Securities of such series, if any, shall be substantially identical except as to
denomination and the rate or rates of interest, if any, and Stated Maturity, the
date from which interest, if any, shall accrue and except as may otherwise be
provided in or pursuant to such Board Resolution and set forth in such Officers'
Certificate or in any indenture supplemental hereto. All Securities of any one
series need not be issued at the same time and, unless otherwise provided, a
series may be reopened for issuances of additional Securities of such series or
to establish additional terms of such series of Securities, provided, however,
that such additional terms shall not adversely affect the interest of the
Holders of Securities of any such series or any related coupons in any material
respect.
If any of the terms of the Securities of any series were established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an
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Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Officers' Certificate setting forth the terms of such
series.
SECTION 302. Denominations.
Unless other denominations and amounts may from time to time be fixed by or
pursuant to a Board Resolution, the Registered Securities of each series, if
any, shall be issuable in registered form without coupons in denominations of
$1,000 and any integral multiple thereof, and the Bearer Securities of each
series, if any, shall be issuable in the denomination of $5,000, or in such
other denominations and amounts as may from time to time be fixed by or pursuant
to a Board Resolution.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, President, Vice President serving as Chief Financial Officer or
its Treasurer under its corporate seal reproduced thereon and attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile. Coupons, if any, shall
bear the facsimile signature of the Treasurer or any Assistant Treasurer of the
Company.
Securities and coupons, if any, bearing the manual or facsimile signatures
of individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the 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, if any, executed by the Company to the Trustee for
authentication, together with the Board Resolution and Officers' Certificate or
supplemental indenture with respect to such Securities referred to in Section
301 and a Company Order for the authentication and delivery of such Securities,
and the Trustee in accordance with the Company Order and subject to the
provisions hereof shall authenticate and deliver such Securities; provided,
however, that, in connection with its original issuance, no Bearer Security
(including any temporary Bearer Security issued pursuant to Section 304 which is
not a Global Security) shall be mailed or otherwise delivered to any location in
the United States; and provided further that a Bearer Security may be delivered
outside the United States in connection with its original issuance only if the
Person entitled to receive such Bearer Security (including any temporary Bearer
Security issued pursuant to Section 304 which is not a Global Security) shall
have furnished a certificate in the form and manner specified in a Board
Resolution and Officers' Certificate or supplemental indenture with respect to
such Bearer Securities referred to in Section 301. In authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 601) shall be fully protected in relying upon, an Opinion of
Counsel stating,
(a) that the form and terms of such Securities and coupons, if any, have
been established in conformity with the provisions of this Indenture;
(b) that all conditions precedent to the authentication and delivery of
such Securities together with the coupons, if any, appertaining thereto, have
been complied with and that such Securities, and
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coupons, when authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions specified in such Opinion of
Counsel, will constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to bankruptcy, insolvency,
moratorium, reorganization and other laws of general applicability relating to
or affecting the enforcement of creditors' rights and to general equity
principles;
(c) that all laws and requirements in respect of the execution and delivery
by the Company of such Securities and coupons, if any, have been complied with;
and
(d) as to such other matters as the Trustee may reasonably request.
If the Company shall establish pursuant to Section 301 that the Securities
of a series are to be issued in whole or in part in the form of one or more
global Securities in registered or permanent bearer form, then the Company shall
execute and the Trustee shall, in accordance with this Section and a Company
Order for the authentication and delivery of such global Securities with respect
to such series, authenticate and deliver one or more global Securities in
temporary or permanent form that (i) shall represent and shall be denominated in
an aggregate amount equal to the aggregate principal amount of the Outstanding
Securities of such series to be represented by one or more global Securities,
(ii) shall be registered, if in registered form, in the name of the Depositary
for such global Security or Securities or the nominee of such Depositary and
(iii) shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary's instructions and (iv) shall, if in registered form, bear a legend
substantially to the following effect:
"Unless and until it is exchanged in whole or in part for
Debt Securities in definitive form, this Debt Security may not be
transferred except as a whole by the Depositary to a nominee of
the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a
nominee of such successor Depositary."
Each Depositary designated pursuant to Section 301 for a global Security in
registered form must, at the time of its designation and at all times while it
serves as Depositary, be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, and any other applicable statute or
regulation."
The Trustee shall not be required to authenticate Securities of any series
if the issue of such Securities pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee or if the Trustee, being advised by counsel, determines that such action
may not lawfully be taken.
If a Board Resolution relating to any series of Securities shall so permit,
the Company may, pursuant to a Company Order, set up procedures acceptable to
the Trustee for the issuance of such Securities, including procedures to
determine the interest rate, stated maturity, date of issuance and other terms
of such Securities, and such Company Order or procedures may authorize
authentication and delivery of Securities pursuant to oral instructions from the
Company or its authorized agent, which instructions shall be promptly confirmed
in writing.
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Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued and contemplate issuance of all Securities
of such series.
Each Registered Security shall be dated the date of its authentication.
Each Bearer Security and any temporary Bearer Security in global form shall be
dated as of the date specified as contemplated by Section 301.
No Security or coupon appertaining thereto shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose, unless there
appears on such Security a certification of authentication substantially in the
form provided for in Section 202 or 614 executed by or on behalf of the Trustee
by the manual signature of one of its authorized officers, 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
309, 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. Except as permitted by Section 306 or 307, the
Trustee shall not authenticate and deliver any Bearer Security unless all
appurtenant coupons for interest then matured have been detached and cancelled.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company
may execute and deliver to the Trustee, and upon Company Order the Trustee shall
authenticate and deliver, in the manner provided in Section 303, temporary
Securities of such series 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 of the Company executing such
Securities may determine, as evidenced by their execution of such Securities. In
the case of Bearer Securities of any series, such temporary Securities may be in
global form, representing all of the Outstanding Bearer Securities of such
series.
Except in the case of temporary Global Securities in bearer form (which
shall be exchanged in accordance with provisions specified as contemplated by
Section 301) and temporary Securities in global form (which shall be exchanged
in accordance with the provisions of Sections 305 and 301), 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, the temporary Securities of such series
shall be exchangeable upon request for definitive Securities of such series
containing identical terms and provisions upon surrender of the temporary
Securities of such series at an office or agency of the Company maintained for
such purpose pursuant to Section 1002, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any series
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(accompanied by any unmatured coupons appertaining thereto) the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of authorized denominations of
the same series containing identical terms and provisions; provided, however,
that no definitive Bearer Security, except as provided pursuant to Section 301,
shall be delivered in exchange for a temporary Registered Security; and
provided, further, that a definitive Bearer Security shall be delivered in
exchange for a temporary Bearer Security only in compliance with the conditions
set forth therein.
Unless otherwise specified as contemplated by Section 301, temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series.
SECTION 305. Registration, Transfer and Exchange.
With respect to the Registered Securities of each series, if any, the
Company shall cause to be kept, at an office or agency of the Company maintained
pursuant to Section 1002, a register (herein sometimes referred to as the
"Security Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of the Registered
Securities of each series and of transfers of the Registered Securities of each
series. In the event that the Trustee shall not be the Security Registrar, it
shall have the right to examine the Security Register at all reasonable times.
Upon surrender for registration of transfer of any Registered Security of
any series at any office or agency of the Company maintained for that series
pursuant to Section 1002, 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, of a like aggregate principal amount bearing a number
not contemporaneously outstanding and containing identical terms and provisions.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series containing
identical terms and provisions, in any authorized denominations, and of a like
aggregate principal amount, upon surrender of the Securities to be exchanged at
any such office or agency. Whenever any Registered Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities which the Holder making the
exchange is entitled to receive.
At the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series containing identical
terms and provisions, of any authorized denominations and aggregate principal
amount, upon surrender of the Bearer Securities to be exchanged at any such
office or agency, with all unmatured coupons and all matured coupons in default
thereto appertaining. If the Holder of a Bearer Security is unable to produce
any such unmatured coupon or coupons or matured coupon or coupons in default,
such exchange may be effected if the Bearer Securities are accompanied by
payment in funds acceptable to the Company and the Trustee in an amount equal to
the face amount of such missing coupon or coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
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 Security
shall surrender to any Paying Agent any such missing coupon in respect of which
such a payment shall have been made,
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such Holder shall be entitled to receive the amount of such payment; provided,
however, that, except as otherwise provided in Section 1002, interest
represented by coupons shall be payable only upon presentation and surrender of
those coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency in 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 date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such Interest Payment Date or
proposed date of payment, as the case may be (or, if such coupon is so
surrendered with such Bearer Security, such coupon shall be returned to the
person so surrendering the Bearer Security), and interest or Defaulted Interest,
as the case may be, will not be payable on such Interest Payment Date or
proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only
to the Holder of such coupon when due in accordance with the provisions of this
Indenture.
If expressly provided with respect to the Securities of any series, at the
option of the Holder, Registered Securities of such series may be exchanged for
Bearer Securities upon such terms and conditions as may be provided with respect
to such series.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
If at any time the Depositary for the Securities of a series notifies the
Company that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for the Securities of
such series shall no longer be eligible under Section 303, the Company shall
appoint a successor Depositary with respect to the Securities of such series. If
a successor Depositary for the Securities of such series is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such ineligibility, the Company's election pursuant to clause (18) of Section
301 shall no longer be effective with respect to the Securities of such series
and the Company will execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of definitive Securities of such series,
will authenticate and deliver Securities of such series of like tenor and terms
in definitive form in an aggregate principal amount equal to the principal
amount of the global Security or Securities representing such series in exchange
for such global Security or Securities.
The Company may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more global Securities
shall no longer be represented by such global Security or Securities. In such
event the Company will execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of definitive Securities of such series,
will authenticate and deliver Securities of such series of like tenor and terms
in definitive form in an aggregate principal amount equal to the principal
amount of the global Security or Securities representing such series in exchange
for such global Security or Securities.
If specified by the Company pursuant to Section 301 with respect to a
series of Securities, the Depositary for such series of Securities may surrender
a global Security for such series of Securities in
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exchange in whole or in part for Securities of such series of like tenor and
terms and in definitive form on such terms as are acceptable to the Company, the
Trustee and such Depositary. Thereupon, the Company shall execute, and the
Trustee upon receipt of a Company Order for the authentication and delivery of
definitive Securities of such series, shall authenticate and deliver, without
service charge:
(a) to the Depositary or to each Person specified by such Depositary a new
Security or Securities of the same series, of like tenor and terms and of any
authorized denomination as requested by such Person in aggregate principal
amount equal to and in exchange for such Person's beneficial interest in the
global Security; and
(b) to such Depositary a new global Security of like tenor and terms and in
an authorized denomination equal to the difference, if any, between the
principal amount of the surrendered global Security and the aggregate principal
amount of Securities delivered to Holders thereof.
In any exchange provided for in any of the preceding three paragraphs, the
Company will execute and the Trustee, pursuant to a Company Order, will
authenticate and deliver Securities (a) in definitive registered form in
authorized denominations, if the Securities of such series are issuable as
Registered Securities, (b) in definitive bearer form in authorized
denominations, with coupons attached, if any, if the Securities of such series
are issuable as Bearer Securities or (c) as either Registered or Bearer
Securities, if the Securities of such series are issuable in either form;
provided, however, that no definitive Bearer Security shall be delivered in
exchange for a temporary Bearer Security other than in accordance with the
provisions applicable to such transfer and exchange set forth in such Bearer
Security.
Upon the exchange of global Securities for Securities in definitive form,
such global Securities shall be cancelled by the Trustee. Registered Securities
issued in exchange for a global Security pursuant to this Section shall be
registered in such names and in such authorized denominations, as the Depositary
for such global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee in writing. The Trustee
shall deliver such Registered Securities to the Persons in whose names such
Securities are so registered. The Trustee shall deliver Bearer Securities issued
in exchange for a global Security pursuant to this Section to the Depositary or
to the Persons at such addresses, and in such authorized denominations, as the
Depositary for such global Security, pursuant to instructions from its direct or
indirect participants or otherwise shall instruct the Trustee in writing;
provided, however, that no definitive Bearer Security shall be delivered in
exchange for a temporary global Security other than in accordance with the
provisions applicable to such transfer and exchange set forth in such Bearer
Security.
Notwithstanding any other provision of this Section, unless and until it is
exchanged in whole or in part for individual Securities represented thereby, a
global Security representing all or a portion of the Securities of a series may
not be transferred except as a whole by the Depositary for such series to a
nominee of such Depositary or by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or any such nominee
to a successor Depositary for such series or a nominee of such successor
Depositary.
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.
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Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company or
the Security Registrar for such series of Security presented) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and such Security Registrar duly executed by the Holder thereof or
his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange, or redemption 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 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or
exchange any Securities of any series during a period beginning at the opening
of business 15 days before the day of the selection for redemption of Securities
of that series under Section 1103 and ending at the close of business on the day
of such selection, or (ii) to register the transfer of or exchange any
Registered Security so selected for redemption in whole or in part, except in
the case of any Security to be redeemed in part, the portion thereof not to be
redeemed, or (iii) to exchange any Bearer Security so selected for redemption
except that such Bearer Security may be exchanged for a Registered Security of
that series, provided that such Registered Security shall be immediately
surrendered for redemption with written instruction for payment consistent with
the provisions of this Indenture.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated coupon
appertaining to it 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 containing identical terms and of like principal amount and
bearing a number not contemporaneously outstanding, with coupons corresponding
to the coupons, if any, appertaining to the surrendered Security.
If there is delivered to the Company and to the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security or coupon,
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security or coupon has been acquired by a
bona fide purchaser, the Company shall execute and upon its request the Trustee
shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, 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 containing
identical terms and of like principal amount and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or coupon
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security or coupon; provided,
however, that payments of principal of (and premium, if any) and any interest on
Bearer Securities shall, except as otherwise provided in Section 1002, be
payable only at an office or agency located outside the United States and,
unless otherwise specified as contemplated by
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Section 301, any interest on Bearer Securities shall be payable only upon
presentation and surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, with its coupons, if any, issued pursuant
to this Section in lieu of any destroyed, lost or stolen Security and its
coupons, if any, shall constitute an original additional contractual obligation
of the Company, whether or not the destroyed, lost or stolen Security or its
coupon shall be at any time enforceable by anyone, and shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all
other Securities of that series and their coupons, if any, duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Registered Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall, if so provided in
such Security, be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered as of the close of business on the Regular
Record Date for such interest. 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 of 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 for
such Registered Security (herein called "Defaulted Interest") shall forthwith
cease to be payable to the Holder on the relevant Regular Record Date by virtue
of having been such Holder; and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Registered Securities affected (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 such Registered Security 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
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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 such Registered Securities at his address as it appears in the
Security Register not less than 10 days prior to such Special Record Date.
The Trustee may, in its discretion, in the name and at the expense of the
Company, cause a similar notice to be published at least once in a
newspaper, customarily published in the English language on each Business
Day and of general circulation in the Borough of Manhattan, The City of New
York, but such publication shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor having been
mailed as aforesaid, such Defaulted Interest shall be paid to the Persons
in whose names such Registered Securities (or their respective Predecessor
Securities) are registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following Clause (2).
In case a Bearer Security of any series is surrendered at the office or
agency in a Place of Payment for such series in exchange for a Registered
Security of such series after the close of business at such office or
agency on any Special Record Date and before the opening of business at
such office or agency on the related proposed date for payment of Defaulted
Interest, such Bearer Security shall be surrendered without the coupon
relating to such proposed date of payment and Defaulted Interest will not
be payable on such proposed date of payment in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable
only to the Holder of such coupon when due in accordance with the
provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest 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 payment shall be deemed practicable by the Trustee.
At the option of the Company, interest on Registered Securities of any
series that bear interest may be paid by mailing a check to the address of the
person entitled thereto as such address shall appear in the Security Register.
Subject to the foregoing provisions of this Section and Section 305, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. 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 305 and 307)
interest on and Additional
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Amounts with respect to, such Registered Security and for all other purposes
whatsoever, whether or not such Registered Security 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.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the bearer of any Bearer Security and the bearer of any coupon as the
absolute owner of such Security or coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not such Security or coupon be overdue, and neither the Company, the Trustee nor
any agent of the Company or the Trustee shall be affected by notice to the
contrary.
None of the Company, the Trustee, any Authenticating Agent, 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 of a
global Security or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests, and they shall be fully
protected in acting or refraining from acting on any such information provided
by the Depository.
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 or impair, as between the Depository
and Holders of beneficial interests in any Global Security, the operation of
customary practices governing the exercise of the rights of the Depository as
Holder of such Global Security.
SECTION 309. 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, and any such Securities and coupons and Securities and coupons
surrendered directly to the Trustee for any such purpose shall be promptly
cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and all Securities
so delivered shall be promptly cancelled by the Trustee. 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 destroyed and the Trustee
shall deliver a certificate of their destruction to the Company.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities
of any series, interest on the Securities of each series shall be computed on
the basis of a 360-day year of twelve 30-day months.
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
Upon the direction of the Company by a Company Order this Indenture shall
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 1004 and the
obligations of the Company set forth in Section 607 hereof), and the Trustee, on
demand of and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered and
all coupons 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 305, (ii)
Securities and coupons which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306, (iii)
coupons appertaining to Securities called for redemption and maturing
after the relevant Redemption Date, whose surrender has been waived as
provided in Section 1106, 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 1003) have been
delivered to the Trustee for cancellation; or
(B) all such Securities and, in the case of (i) or (ii) below,
any such coupons appertaining thereto not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) if redeemable at the option of the Company, are to be
called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (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 no theretofore
delivered to the Trustee for cancellation, for principal (and premium,
if any) and interest, and any Additional Amounts with respect thereto,
to the date of such deposit (in the case of
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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 Officer's 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.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to
Securities of all series as to which it is Trustee and if the other conditions
thereto are met. In the event there are two or more Trustees hereunder, then
the effectiveness of any such instrument shall be conditioned upon receipt of
such instruments from all Trustees hereunder.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 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 and Additional Amounts for whose payment such money has
been deposited with the Trustee; but such money need not be segregated from
other funds except to the extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body) unless
such event (other than those events described in subsections (1) and (2) below)
is either inapplicable to a particular series or it is specifically deleted or
modified in the supplemental indenture creating such series of Securities or in
the form of Security for such series:
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(1) default in the payment of any interest upon or any Additional
Amounts payable in respect of any Security of that series when such
interest or Additional Amounts 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 (and premium, if any,
on) any Security of that series when it becomes due and payable at
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 been expressly 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
10% 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) default in the payment when due (subject to any applicable grace
period), whether at Stated Maturity or otherwise, of any principal of or
interest on (however designated) any indebtedness for borrowed money of, or
guaranteed by, the Company (other than the Securities of any series and
other than non-recourse indebtedness) in an aggregate principal amount
exceeding 5% of the consolidated net worth of the Company and its
subsidiaries (determined as of the most recent fiscal quarter for which a
balance sheet is available), whether such indebtedness now exists or shall
hereafter be created, which default shall result in such indebtedness
becoming or being declared due and payable prior to the date on which it
would otherwise become due and payable and the Trustee shall have received
written notice from any Holder of Securities or the Company of such
declaration; provided, however, that if any such acceleration shall
subsequently be rescinded or annulled (including through the discharge of
the accelerated indebtedness) prior to the obtaining of any judgment or
decree for the payment of any money due on such indebtedness or the actual
payment of money due on such indebtedness, any acceleration with respect to
Securities of any series consequent solely on such other acceleration shall
likewise be deemed rescinded or annulled without further action on the part
of any Holders; or
(6) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Company in an involuntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Company or for any
substantial part of its property, or ordering the winding-up or liquidation
of its affairs, and such decree or order shall remain unstayed and in
effect for a period of 60 consecutive days; or
(7) the Company shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
shall consent to the entry of an order for relief in an involuntary case
under any such law, or shall consent to the appointment of or
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taking possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or similar official) of the Company or for any substantial
part of its property, or shall make any general assignment for the benefit
of creditors, or shall fail generally to pay its debts as they become due
or shall take any corporate action in furtherance of any of the foregoing;
or
(8) any other Event of Default provided with respect to Securities of
that series.
SECTION 502. 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, and 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 of all the
Securities of that series, or such lesser amount as may be provided for in 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 the Holders), and upon
any such declaration such principal or such lesser 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 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 installments of interest on and any Additional
Amounts payable in respect of all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate or rates borne by or
provided for in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest and Additional Amounts
at the rate or rates borne by or provided for 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 has become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of interest on
or any Additional Amounts payable in respect of any Security when such
interest or Additional Amounts shall have become 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 at its Maturity,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities and coupons, the whole amount then due and payable on
such Securities and coupons for principal (and premium, if any) and interest and
Additional Amounts, if any, with interest upon the overdue principal (and
premium, if any) and, to the extent that payment of such interest shall be
legally enforceable, upon overdue installments of interest or any Additional
Amounts, at the rate or rates borne by or provided for in such Securities, 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, and 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 of the Holders of Securities of such series and any related coupons
by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
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, to take any and
all actions authorized under the Trust Indenture Act in order to have claims of
the Holders and the Trustee (including, to the extent provided in Section 607,
any claim for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 607) allowed in any such proceeding. In particular, the Trustee
shall be authorized to collect and receive any moneys or other
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property payable or deliverable on any such claims and to distribute the same in
accordance with Section 506; and any receiver, assignee, trustee, liquidator,
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 to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and any other
amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or coupon in any such proceeding, provided, however, that the Trustee
may, on behalf of the Holders, vote for the election of a trustee in bankruptcy
or similar official and be a member of a creditors or other similar committee.
SECTION 505. Trustee May Enforce Claims without Possession of Securities
or Coupons.
All rights of action and claims under this Indenture or any of 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 or judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities and
coupons in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money or other property 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 (and premium, if any), interest or any Additional Amounts, 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
607;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities and coupons for principal (and premium, if any) and interest and
any Additional Amounts payable 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 aggregate amounts due and payable on
such Securities and coupons for principal (and premium, if any), interest
and Additional Amounts, respectively;
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
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SECTION 507. Limitation on Suits.
No Holder of any Security of any series or any related coupons shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities, to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
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 such
Holders or Holders of any other series, or to obtain or to seek to obtain
priority or preference over any other Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security or coupon shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Sections 305 and 307) interest on and any Additional Amounts in respect of such
Security or payment of such coupon on the respective 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 right shall not be impaired without the consent of such
Holder.
SECTION 509. 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 the Company, the Trustee and the Holders of Securities and coupons shall,
subject to any determination in such proceeding, be restored severally and
respectively to their former positions hereunder, and thereafter all
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rights and remedies of the Trustee and the Holders shall continue as though no
such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities or coupons in the last paragraph
of Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders of 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 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security or
coupon to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders 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 512. 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,
(2) the Trustee shall not determine that the action so directed is
unduly prejudicial to the rights of other Holders of Securities of such
series, and
(3) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series and any related coupons waive any past default
hereunder with respect to such series and its consequences, except a default
(1) in the payment of the principal of (and premium, if any) or
interest on or Additional Amounts payable in respect of any Security of
such series, or
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(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series 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 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any part litigant in such suit in the manner and to the extent provided
in the Trust Indenture Act; provided, however, that neither the provisions of
this Section nor the Trust Indenture Act shall be deemed to authorize any court
to require such an undertaking or to make such an assessment in any suit
instituted by the Company, the Trustee or 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 (and
premium, if any) or interest on or any Additional Amounts in respect of any
Security or the payment of any coupon on or after the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date) or interest on any overdue principal of any Security.
SECTION 515. 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 SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by the
Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether
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or not therein expressly so provided, every provision of this Indenture relating
to the conduct or affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series, and
the Trustee has actual knowledge of such default, the Trustee shall give the
Holders of Securities of such series notice of such default as, and to the
extent provided by, the Trust Indenture Act and in the manner provided in
Section 106; provided, however, that in the case of any default of the character
specified in Section 501(4) with respect to Securities of such series, no such
notice to Holders shall be given until at least 30 days after the occurrence
thereof. For the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default, with respect to Securities of such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, or
other paper or document reasonably 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 (other than
delivery of any Securities to the Trustee for authentication and delivery
pursuant to Section 303 which shall be sufficiently evidenced as provided
therein) 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 Officer's Certificate and/or an Opinion of Counsel;
(d) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders of the 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 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
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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 604. Not Responsible for Recitals or Issuance of Securities.
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. The Trustee or any Authenticating Agent shall not be accountable for
the use or application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and coupons, if any,
and, subject to Sections 609 and 612, may otherwise deal with the Company with
the same rights it would have if it were not Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time compensation 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) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to
its negligence or bad faith; and
(3) to indemnify the Trustee and its agents for, and to hold them
harmless against, any loss, liability or expense incurred without
negligence or bad faith on their part, arising out of or in
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connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending themselves against
any claim or liability in connection with the exercise or performance of
any of their powers or duties hereunder.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities of any
series upon all property and funds held or collected by the Trustee as such
except funds held in trust for the payment of principal of (or premium, if any)
or interest on Securities.
When the Trustee incurs expenses or renders services after an Event of
Default specified in clause (6) or (7) of Section 501 occurs, the expenses
(including the reasonable fees and expenses of its agents and counsel) and the
compensation for the services shall be preferred over the status of the holders
in a proceeding under any Bankruptcy Law and are extended to constitute expenses
of administration under any Bankruptcy Law. The Company's obligations under
this Section 607 and any claim arising hereunder shall survive the resignation
or removal of any Trustee, the discharge of the Company's obligations pursuant
to Article Eight and any rejection or termination under any Bankruptcy Law.
SECTION 608. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be either (i) a
corporation organized and doing business under the laws of the United States of
America, any State or the District of Columbia, authorized under such laws to
exercise corporate trust powers and subject to supervision or examination by
Federal or State authority; or (ii) a corporation or other Person organized and
doing business under the laws of a foreign government that is permitted to act
as Trustee pursuant to a rule, regulation or order of the Commission authorized
under such laws to exercise corporate trust powers, and subject to supervision
or examination by authority of such foreign government or a political
subdivision thereof substantially equivalent to supervision or examination
applicable to United States institutional trustees, in either case having a
combined capital and surplus of at least $50,000,000. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. The Trustee shall comply with Section 310(b)
of the Trust Indenture Act, provided that there shall be excluded from the
operation of Section 310(b)(i) of the Trust Indenture Act any indenture or
indentures under which other securities, or certificates of interest or
participation in other securities, of the Company are outstanding if the
requirements for such exclusion set forth in Section 310(b)(i) of the Trust
Indenture Act are met. If at any time the Trustee shall cease to be eligible in
accordance with the provi sions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
SECTION 609. 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 under Section 610.
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(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 610 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 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, unless the Trustee's duty to resign is stayed in
accordance with the provisions of Section 310(b) of the Trust Indenture
Act, or
(2) the Trustee fails to comply with Section 608, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
Holder of a Security who has been a bona fide Holder of a Security or any series
for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Trustee with respect to all Securities of such series 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 as 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 610. 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 not have been appointed by
Act of the Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section 610,
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 and accepted
appointment in the manner required by Section 610, 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
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others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Registered Securities, if any, of such series as their names and
addresses appear in the Security Register and, if Securities of such series are
issued as Bearer Securities, by publishing notice of such event once in an
Authorized Newspaper in each Place of Payment located outside the United States.
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 610. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities or one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust, 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 that no Trustee shall be responsible for any notice
given to, or received by, or any act or failure to act on the part of any other
Trustee hereunder, 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, such retiring Trustee shall with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates have no further responsibility for the exercise
of rights and powers or for the performance of the duties and obligations vested
in the Trustee under this Indenture other than as hereinafter expressly set
forth, and each such successor Trustee without any further act, deed or
conveyance, shall become vested with all the rights,
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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, to
the extent contemplated by such supplemental indenture, the 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 611. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, 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.
In the event any Securities shall not have been authenticated by such
predecessor Trustee, any such successor Trustee may authenticate and deliver
such Securities as provided in a Company Order addressed to the successor
Trustee, in either its own name or that of its predecessor Trustee with the full
force and effect which the Indenture provides for the certificate of
authentication of the Trustee.
SECTION 612. Preferential Collection of Claims Against Company.
The Trustee shall be subject to the provisions of Section 311 of the Trust
Indenture Act.
SECTION 613. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to
one or more series of Securities which shall be authorized to act on behalf of
the Trustee to authenticate Securities of such series issued upon original issue
or exchange, registration of transfer or partial redemption thereof pursuant to
Section 306, and Securities so authenticated shall be entitled to the benefits
of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of
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America, any State thereof or the District of Columbia, authorized under such
laws to act as Authenticating Agent, having a combined capital and surplus of
not less than $50,000,000 and subject to supervision or examination by Federal
or State authority. If such Authenticating Agent publishes reports of condition
at least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall (i) mail written notice
of such appointment by first-class mail, postage prepaid, to all Holders of
Registered Securities, if any, of the series with respect to which such
Authenticating Agent will serve, as their names and addresses appear in the
Security Register, and (ii) if Securities of the series are issued as Bearer
Securities, publish notice of such appointment at least once in an Authorized
Newspaper in the place where such successor Authenticat ing Agent has its
principal office if such office is located outside the United States. 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 each Authenticating Agent from time to time
reasonable compensation for its services under this Section.
The provisions of Sections 308, 604 and 605 shall be applicable to each
Authenticating Agent.
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 alternate
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.
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THE FUJI BANK AND TRUST COMPANY, As
Trustee
By_____________________________________________________
As Authenticating Agent
By_____________________________________________________
Authorized Signatory
If all of the Securities of any series may not be originally issued at one
time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested in writing (which writing need not comply
with Section 102) by the Company, shall appoint in accordance with this Section
613 an Authenticating Agent having an office in a Place of Payment designated by
the Company with respect to such series of Securities.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not later than fifteen days after the Regular Record
Date for interest for each series of Securities, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders of
Registered Securities of such series as of such Regular Record Date, or if there
is no Regular Record Date for interest for such series of Securities, semi-
annually, upon such dates as are set forth in the Board Resolution or indenture
supplemental hereto authorizing such series, and
(b) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished,
provided, however, that, so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished.
SECTION 702. 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 for each
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series as provided in Section 701, (ii) received by the Trustee for each series
in the capacity of Security Registrar if the Trustee is then acting in such
capacity and (iii) filed with it within the two preceding years pursuant to
Section 703(b)(2). The Trustee may destroy any list furnished to it as provided
in Section 701 upon receipt of a new list so furnished, and destroy it not
earlier than two years after filing, any information filed with it pursuant to
Section 703(b)(2).
(b) If three or more Holders of Securities of any series (hereinafter
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 of such
series 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 of such series 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
(1) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 702(a), or
(2) 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 702(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
702(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 of 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
interests 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 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 Paying Agent nor any Security Registrar 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 702(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 702(b).
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SECTION 703. Reports by Trustee.
(a) Within 60 days after February 15 of each year commencing with the year
1998, the Trustee shall transmit by mail to all Holders of Securities, as
provided in subsection (b) of this Section, a brief report dated as of such
February 15 as required by the Trust Indenture Act.
(b) Reports pursuant to this Section shall be transmitted by mail:
(1) to all Holders of Registered Securities, as the names and
addresses of such Holders appear in the Security Register;
(2) to such Holders of Bearer Securities as have, within the two years
preceding such transmission, filed their names and addresses with the
Trustee for that purpose; and
(3) except in the case of reports pursuant to Subsection (b) of this
Section, to each Holder of a Security whose name and address is preserved
at the time by the Trustee, as provided in Section 702(a).
(c) A copy of each such report shall, at the time of such transmission to
Holders of Securities, be filed by the Trustee with each stock exchange upon
which the Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Securities are listed on any stock
exchange.
SECTION 704. Reports by the 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
Securities Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports pursuant to either of said 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 Securities Exchange Act of 1934 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;
(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 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 by mail to all Holders, as their names and addresses
appear in the Security Register within 30 days after the filing thereof
with the Trustee, such summaries of any
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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.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Company and Sales, Leases and
Conveyances Permitted Subject to Certain Conditions.
The Company may consolidate with, or sell, lease or convey all or
substantially all of its assets to, or merge with or into any other corporation,
provided that in any such case, (i) either the Company shall be the continuing
corporation, or the successor corporation shall be a corporation organized and
existing under the laws of the United States of America or a State thereof and
such successor corporation shall expressly assume the due and punctual payment
of the principal of (and premium, if any), any interest on, and any Additional
Amounts payable pursuant to Section 1004 with respect to, all the Securities,
according to their tenor, and the due and punctual performance and observance of
all of the covenants and conditions of this Indenture to be performed by the
Company by supplemental indenture satisfactory to the Trustee, executed and
delivered to the Trustee by such successor corporation and (ii) the Company or
such successor corporation, as the case may be, shall not, immediately after
such merger or consolidation, or such sale, lease or conveyance, be in default
in the performance of any such covenant or condition.
SECTION 802. Rights and Duties of Successor Corporation.
In case of any such consolidation, merger, sale, lease or conveyance and
upon any such assumption by the successor corporation, such successor
corporation shall succeed to and be substituted for the Company, with the same
effect as if it had been named herein as the party of the first part, and the
predecessor corporations, except in the event of a lease, shall be relieved of
any further obligation under this Indenture and the Securities and coupons. Such
successor corporation thereupon may cause to be signed, and may issue either in
its own name or in the name of the Company, any or all of the Securities and
coupons issuable hereunder which theretofore shall not have been signed by the
Company and delivered to the Trustee; and, upon the order of such successor
corporation, instead of the Company, and subject to all the terms, conditions
and limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities or coupons which previously shall have been signed
and delivered by the officers of the Company to the Trustee for authentication,
and any Securities or coupons which such successor corporation thereafter shall
cause to be signed and delivered to the Trustee for that purpose. All the
Securities and coupons so issued shall in all respects have the same legal rank
and benefit under this Indenture as the Securities and coupons theretofore or
thereafter issued in accordance with the terms of this Indenture as though all
of such Securities and coupons had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale, lease or conveyance, such
changes in phraseology and form (but not in substance) may be made in the
Securities and coupons thereafter to be issued as may be appropriate.
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SECTION 803. Officers' Certificate and Opinion of Counsel
The Trustee, subject to the provisions of Sections 601 and 603, may receive
an Officers' Certificate and an Opinion of Counsel as conclusive evidence that
any such consolidation, merger, sale, lease or conveyance, and any such
assumption, complies with the provisions of this Article.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders of Securities or coupons, the Company,
when authorized by a Board Resolution, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company, and
the assumption by any such successor of the covenants of the Company herein
and in the Securities contained; 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 to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal (or
premium, if any) on Registered Securities or of principal (or premium, if
any) or any interest on Bearer Securities, to permit Registered Securities
to be exchanged for Bearer Securities or to permit the issuance of
Securities in uncertificated form, provided 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
(4) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(5) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of the Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 611(b); or
(6) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent with
the
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provisions of this Indenture which shall not adversely affect the interest
of the Holders of Securities of any series or any related coupons in any
material respect; or
(7) to add to, delete from or revise the conditions, limitations and
restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of Securities, as herein set forth; or
(8) to add to or change any of the provisions of this Indenture as
shall be necessary or desirable to establish that Bearer Securities are
issued under arrangements reasonably designed to ensure that they are sold
or resold in connection with their original issuance only to a person who
is not a United States Person or who is a United States Person that is a
financial institution purchasing for its own account or for the account of
a customer and that agrees to comply with the requirements of section
165(j)(3)(A), (B), or (C) of the Code and the regulations thereunder or any
successor provisions thereto (including without limitation the procedures
and other requirements necessary to satisfy the conditions set forth in
section 163(f)(2)(B) of the Code), and any other requirements that must be
complied with in order to avoid the disallowance of an interest deduction
by the Company with respect to interest paid on Bearer Securities or
Coupons, the imposition of an excise tax on the Company with respect to the
Bearer Securities or Coupons or the disallowance from exemption from
withholding tax on interest paid on the Bearer Securities or Coupons.
SECTION 902. 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 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 interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any Additional Amounts payable
in respect thereof, or any premium payable upon the redemption thereof, or
change the obligation of the Company to pay Additional Amounts pursuant to
Section 1004 (except as contemplated by Section 801(i) and permitted by
Section 901, or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502, or change any
Place of Payment where, or the coin or currency in which, or the method of
calculation of interest on, any Security or any premium or the interest
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this
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Indenture or certain defaults hereunder and their consequences) provided
for in this Indenture, or reduce the requirements of Section 1404 for
quorum or voting; or
(3) modify any of the provisions of this Section, or Section 513, or
Section 107, 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.
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 of 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 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trust created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture and that the supplemental indenture
constitutes the legal, valid and binding obligation of the Company subject to
the customary exceptions. 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.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
and of any coupons appertaining thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indenture.
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
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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 TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and Interest.
The Company covenants and agrees for the benefit of the Holders of each
series of Securities that it will duly and punctually pay the principal of (and
premium, if any), interest on and any Additional Amounts payable in respect of
the Securities of that series in accordance with the terms of such series of
Securities, any coupons appertaining thereto and this Indenture. Any interest
due on and any Additional Amounts payable in respect of Bearer Securities on or
before Maturity, other than Additional Amounts, if any, payable as provided in
Section 1004 in respect of principal of (or premium, if any, on) such a
Security, shall be payable only upon presentation and surrender of the several
coupons for such interest installments as are evidenced thereby as they
severally mature.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series (but not Bearer
Securities, except as otherwise provided below, unless such Place of Payment is
located outside the United States) may be presented or surrendered for payment,
where Securities of that series may be surrendered for registration of transfer
or exchange and where notices and demands to or upon the Company in respect of
the Securities of that series and this Indenture may be served. If Securities of
a series are issuable as Bearer Securities, the Company will maintain, subject
to any laws or regulations applicable thereto, an office or agency in a Place of
Payment for such series which is located outside the United States where
Securities of such series and the related coupons may be presented and
surrendered for payment (including payment of any Additional Amounts payable on
Securities of such series pursuant to Section 1004); provided, however, that if
the Securities of such series are listed on The Stock Exchange of the United
Kingdom and the Republic of Ireland or the Luxembourg Stock Exchange or any
other stock exchange located outside the United States and such stock exchange
shall so require, the Company will maintain a Paying Agent in London, Luxembourg
or any other required city located outside the United States, as the case may
be, so long as the Securities of such series are listed on such exchange. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, 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 1004) at the place specified for the purpose pursuant to Section 301,
and the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
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Except as otherwise provided in the form of Bearer Security of any
particular series pursuant to the provisions of this Indenture, no payment of
principal, premium or interest on Bearer Securities shall be made at any office
or agency of the Company in the United States or by check mailed to any address
in the United States or by transfer to an account maintained with a bank located
in the United States; provided, however, payment of principal of and any premium
and interest in U.S. dollars (including Additional Amounts payable in respect
thereof) on any Bearer Security may be made at the Corporate Trust Office of the
Trustee in the Borough of Manhattan, The City of New York if (but only if)
payment of the full amount of such principal, premium, interest or Additional
Amounts at all offices outside the United States maintained for the purpose by
the Company in accordance with this Indenture is illegal or effectively
precluded by exchange controls or other similar restrictions.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in each Place of Payment for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency. Unless otherwise set forth in a Board Resolution or indenture
supplemental hereto with respect to a series of Securities, the Company hereby
designates as the Place of Payment for each series of Securities the Borough of
Manhattan, The City of New York, and initially appoints the Trustee at its
Corporate Trust Office as the Company's office or agency for each of such
purposes in such city.
SECTION 1003. Money for Securities Payments To Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any), or interest on, any of the Securities of
that series, segregate and hold in trust for the benefit of the Person entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided, and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it will, on or prior to each due date of the principal of (and
premium, if any), or interest on, any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action
or failure so to act.
The Company will cause each Paying Agent for any series of Securities other
than the Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the provisions of
this Section, that such Paying Agent will
(1) comply with the provisions of the Trust Indenture Act applicable
to it as a Paying Agent; and
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(2) 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 in respect of the Securities of that
series.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same terms 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.
Except as otherwise provided in the form of Securities of any particular
series pursuant to the provisions of this Indenture, any money deposited with
the Trustee or any Paying Agent, or then held by the Company, in trust for the
payment of the principal of (and premium, if any) or interest on any Security of
any series and remaining unclaimed for two years after such principal (and
premium, if any) or interest has become due and payable shall be paid to the
Company 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 or to be mailed to Holders of Registered Securities, or
both, 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
or mailing, any unclaimed balance of such money then remaining will be repaid to
the Company.
SECTION 1004. Additional Amounts.
If the Securities of a series provide for the payment of Additional
Amounts, the Company will pay to the Holder of any Security of any series or any
coupon appertaining thereto Additional Amounts as provided therein. Whenever in
this Indenture there is mentioned, in any context, the payment of the principal
of (or premium, if any) or interest on, or in respect of, any Security of any
series or any related coupon or the net proceeds received on the sale or
exchange of any Security of any series, such mention shall be deemed to include
mention of the payment of Additional Amounts provided for in this Section to the
extent that, in such context, Additional Amounts are, were or would be payable
in respect thereof pursuant to the provisions of this Section and express
mention of the payment of Additional Amounts (if applicable) in any provisions
hereof shall not be construed as excluding Additional Amounts in those
provisions hereof where such express mention is not made.
If the Securities of a series provide for the payment of Additional
Amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal (and
premium, if any,) is made, and at least 10 days prior to each date of payment or
principal (and premium, if any) or interest if there has been any change with
respect to the matters set forth in the below-mentioned Officers' Certificate,
the Company will furnish the Trustee and the Company's principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying
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Agent or Paying Agents whether such payment of principal (and premium, if any)
or interest on the Securities of that series shall be made to Holders of
Securities of that series or the related coupons who are United States Aliens
without withholding for or on account of any tax, assessment or other
governmental charge described in the Securities of that series and it shall set
forth the Additional Amount owed with respect to $1,000 in aggregate principal
amount of such Securities. If any such withholding shall be required, then such
Officers' Certificate shall specify by country the amount, if any, required to
be withheld on such payments to such Holders of Securities or coupons and the
Company will pay to the Trustee or such Paying Agent the Additional Amounts
required by this Section. The Company covenants to indemnify the Trustee and any
Paying Agent for, and to hold them harmless against, any loss, liability or
expense reasonably incurred without negligence or bad faith on their part
arising out of or in connection with actions taken or omitted by any of them in
reliance on any Officers' Certificate furnished pursuant to this Section.
SECTION 1005. Statement as to Compliance; Notice of Certain Defaults.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year commencing in 1998 (which on the date hereof ends on September
30), a certificate from the Company's principal executive officer, principal
financial officer or principal accounting officer as to his or her knowledge of
the Company's compliance with all conditions and covenants under this Indenture,
without regard to any period of grace or requirement of notice otherwise
provided under this Indenture.
SECTION 1006. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Section 1004 with respect to the Securities
of any series if before the time for such compliance the Holders of at least a
majority in principal amount of the Outstanding Securities of such series shall,
by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Redemption of Securities of any series at the option of the Company as
permitted or required by the terms of such Securities shall be made in
accordance with the terms of such Securities and this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution. In case of any redemption at the election of the Company of
the Securities of any series with the same issue
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date, interest rate and Stated Maturity, the Company shall, at least 60 days
prior to the Redemption Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date and
of the principal amount of Securities of such series to be redeemed.
SECTION 1103. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities of any series with the same issue date,
interest rate and Stated Maturity are to be redeemed, the particular Securities
to be redeemed shall be selected not more than 60 days prior to the Redemption
Date by the Trustee from the Outstanding Securities of such series not
previously called for redemption, by such method as the Trustee shall deem fair
and appropriate and which may provide for the selection for redemption of
portions of the principal amount of Registered Securities of such series;
provided, however, that no such partial redemption shall reduce the portion of
the principal amount of a Registered Security of such series not redeemed to
less than the minimum denomination for a Security of that series established
pursuant to Section 302.
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 of such Securities which has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section 106,
not less than 30 nor more than 60 days prior to the Redemption Date, unless a
shorter period is specified in the Securities to be redeemed, to the Holders of
Securities to be redeemed. Failure to give notice by mailing in the manner
herein provided to the Holder of any Registered Securities designated for
redemption as a whole or in part, or any defect in the notice to any such Holder
shall not affect the validity of the proceedings for the redemption of any other
Securities or portion thereof.
Any notice that is mailed to the Holder of any Registered Securities in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not such Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Securities to be redeemed,
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(4) in case any Registered Security is to be redeemed in part only,
the notice which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the Holder of such
Security will receive, without charge, a new Registered Security or
Registered Securities of authorized denominations for the principal amount
thereof remaining unredeemed,
(5) 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 shall cease to accrue on and after said date,
(6) 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, and
(7) that the redemption is for a sinking fund, if such is the case.
A notice of redemption published as contemplated by Section 106 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 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on and any Additional
Amounts with respect thereto, all the Securities or portions thereof which are
to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest 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 (and
any Additional Amounts) to the Redemption Date; provided, however, that
installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only upon presentation and
surrender of coupons for such interest (at an office or agency located outside
the United States except as otherwise provided in Section 1002), and provided,
further that 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
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Securities, registered as such at the close of business on the Regular Record
Dates according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant coupons maturing after the Redemption Date, such 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
(and any Additional Amounts) represented by coupons shall be payable only upon
presentation and surrender of those coupons at an office or agency located
outside of the United States except as otherwise provided in Section 1002.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate prescribed therefor in the
Security.
SECTION 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at any office or agency of the Company maintained for that purpose
pursuant to Section 1002 (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, containing identical
terms and provisions, of any authorized denomination as requested by such Holder
in aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of a series, except as otherwise permitted or
required by any form of Security of such series issued pursuant to this
Indenture.
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 such series is herein referred to as an "optional sinking
fund payment." If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 1202. Each sinking fund payment
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shall be applied to the redemption of Securities of any series as provided for
by the terms of the Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments With Securities.
The Company may, in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series to be made pursuant to the
terms of such Securities as provided for by the terms of such series (1) deliver
Outstanding Securities of such series (other than any of such Securities
previously called for redemption or any of such Securities in respect of which
cash shall have been released to the Company), together in the case of any
Bearer Securities of such series with all unmatured coupons appertaining
thereto, and (2) apply as a credit Securities of such series which have been
redeemed either at the election of the Company pursuant to the terms of such
series of Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Securities, provided that such
series of Securities have not been previously so credited. Such Securities shall
be received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
If as a result of the delivery or credit of Securities of any series in lieu of
cash payments pursuant to this Section 1202, the principal amount of Securities
of such series to be redeemed in order to exhaust the aforesaid cash payment
shall be less than $100,000, the Trustee need not call Securities of such series
for redemption, except upon Company Request, and such cash payment shall be held
by the Trustee or a Paying Agent and applied to the next succeeding sinking fund
payment, provided, however, that the Trustee or such Paying Agent shall at the
request of the Company from time to time pay over and deliver to the Company any
cash payment so being held by the Trustee or such Paying Agent upon delivery by
the Company to the Trustee of Securities of that series purchased by the Company
having an unpaid principal amount equal to the cash payment requested to be
released to the Company.
SECTION 1203. 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 mandatory 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 of
Securities of that series pursuant to Section 1202, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment, and
will also deliver to the Trustee any Securities to be so credited and not
theretofore delivered. If such Officers' Certificate shall specify an optional
amount to be added in cash to the next ensuing mandatory sinking fund payment,
the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 30 days before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 1103 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
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REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article.
Securities of any series which are repayable at the option of the Holders
thereof before their Stated Maturity shall be repaid in accordance with the
terms of the Securities of such series. The repayment of any principal amount of
Securities pursuant to such option of the Holder to require repayment of
Securities before their Stated Maturity, for purposes of Section 309, shall not
operate as a payment, redemption or satisfaction of the indebtedness represented
by such Securities unless and until the Company, at its option, shall deliver or
surrender the same to the Trustee with a directive that such Securities be
cancelled. Notwithstanding anything to the contrary contained in this Article
Thirteen, in connection with any repayment of Securities, the Company may
arrange for the purchase of any Securities by an agreement with one or more
investment bankers or other purchasers to purchase such Securities by paying to
the Holders of such Securities on or before the close of business on the
repayment date an amount not less than the repayment price payable by the
Company on repayment of such Securities, and the obligation of the Company to
pay the repayment price of such Securities shall be satisfied and discharged to
the extent such payment is so paid by such purchasers.
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1401. 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 1402. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of Securities of
any series for any purpose specified in Section 1401, to be held at such time
and at such place in the Borough of Manhattan, The City of New York, or in
London, as the Trustee shall determine. Notice of every meeting of Holders of
Securities of any series, setting forth the time and place of such meeting and
in general terms the action proposed to be taken at such meeting, shall be
given, in the manner provided in Section 106, not less than 21 nor more than 180
days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution, or
the Holders of at least 10% in principal amount of the Outstanding Securities of
any series shall have requested the Trustee to call a meeting of the Holders of
Securities of such series for any purpose specified in Section 1401, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have made the first publication of the
notice of such meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Company or the Holders of Securities of such series in the amount above
specified, as the case may be,
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may determine the time and the place in the Borough of Manhattan, The City of
New York, or in London for such meeting and may call such meeting for such
purposes by giving notice thereof as provided in subsection (a) of this Section.
SECTION 1403. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel, and any representatives of the Company and its counsel.
SECTION 1404. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that if any action is
to be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of not less than 66-
2/3% in principal amount of the Outstanding Securities of a series, the Persons
entitled to vote 66-2/3% in principal amount of the Outstanding Securities of
such series shall constitute a quorum. In the absence of a quorum within 30
minutes of the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be dissolved.
In any other case the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 1402(a), except that such notice need be given only
once not less than five days prior to the date on which the meeting is scheduled
to be reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted only by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to Section 902, any
resolution with respect to any consent or waiver which this Indenture expressly
provides may be given by the Holders of not less than 66-2/3% in principal
amount of the Outstanding Securities of a series may be adopted at a meeting or
an adjourned meeting duly convened and at which a quorum is present as aforesaid
only by the affirmative vote of the Holders of 66-2/3% in principal amount of
the Outstanding Securities of that series; and provided, further, that, except
as limited by the proviso to Section 902, any resolution with respect to any
request, demand, authorization, direction, notice, consent, waiver or other
action which this Indenture expressly provides may be made, given or taken by
the Holders of a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of a series may be adopted at a
meeting or an adjourned meeting duly reconvened and at which a quorum is present
as aforesaid by the affirmative vote of the Holders of such specified percentage
in principal amount of the Outstanding Securities of that series.
-59-
<PAGE>
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
SECTION 1405. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of such series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters, concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in Section 104
or by having the signature of the person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 104 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 1402(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy shall
be entitled to one vote for each $1,000 principal amount of Securities of such
series held or represented by him; provided, however, that no vote shall be cast
or counted at any meeting in respect of any Security challenged as not
Outstanding and ruled by the chairman of the meeting to be not Outstanding. The
chairman of the meeting shall have no right to vote, except as a Holder of a
Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1402 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 1406. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes
-60-
<PAGE>
cast at the meeting. A record, at least in triplicate, of the proceedings of
each meeting of Holders of Securities of any series shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice was given as
provided in Section 1402 and, if applicable, Section 1404. Each copy shall be
signed and verified by the affidavits of the permanent chairman and secretary of
the meeting and one such copy shall be delivered to the Company, and another to
the Trustee to be preserved by the Trustee, the latter to have attached thereto
the ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
SECTION 1501. Securities in Foreign Currencies.
Whenever this Indenture provides for (i) any action by, or the
determination of any of the rights of, Holders of Securities of any series in
which not all of such Securities are denominated in the same currency, or (ii)
any distribution to Holders of Securities, in the absence of any provision to
the contrary in the form of Security of any particular series, any amount in
respect of any Security denominated in a currency other than United States
dollars shall be treated for any such action or distribution as that amount of
United States dollars that could be obtained for such amount on the basis of the
Market Exchange Rate (as defined in Section 1502) as of the record date with
respect to Registered Securities of such series (if any) for such action,
determination of rights or distribution (or, if there shall be no applicable
record date, such other date reasonably proximate to the date of such action,
determination of rights or distribution) as the Company may specify in a written
notice to the Trustee or, in the absence of such written notice, as the Trustee
may determine.
SECTION 1502. Payments in Substitute Currencies.
If the principal of (and premium, if any) and interest on any Securities is
payable in a currency other than United States dollars and such currency is not
available for payment due to the imposition of exchange controls or other
circumstances beyond the control of the Company, then the Company shall be
entitled to satisfy its obligations to Holders under this Indenture by making
such payment in United States dollars on the basis of the Market Exchange Rate
for such foreign currency on the latest date for which such rate was established
on or before the date on which payment is due. Any payment made pursuant to this
Section 1502 in United States dollars where the required payment is in a foreign
currency shall not constitute a default under this Indenture. As used in this
Section 1502, unless otherwise specified in the applicable Security, on a given
date for a given foreign currency "Market Exchange Rate" shall mean the noon
buying rate in The City of New York for cable transfers in such currency as
certified for customs purposes by the Federal Reserve Bank of New York on such
date.
* * * * *
-61-
<PAGE>
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.
-62-
<PAGE>
[SIGNATURE PAGE FOR SEPTEMBER 15, 1998 INDENTURE]
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.
COMDISCO, INC.
[SEAL] By:________________________________________________
Edward A. Pacewicz, Vice President and Treasurer
ATTEST:
_________________________
THE FUJI BANK AND TRUST COMPANY
[SEAL] By:________________________________________________
Its:____________________________________________
ATTEST:
_________________________
-63-
<PAGE>
EXHIBIT 5
---------
October 8, 1998
The Board of Directors of
Comdisco, Inc.
6111 North River Road
Rosemont, Illinois 60018
Re: Registration of $1.5 Billion in Debt Securities of Comdisco, Inc.
-----------------------------------------------------------------
Ladies and Gentlemen:
Reference is made to the form of the Registration Statement on Form S-3 to
be filed with the Securities and Exchange Commission (the "Commission") on or
about October 9, 1998 (the "Registration Statement") by Comdisco, Inc., a
Delaware corporation (the "Company"), under the Securities Act of 1933, as
amended (the "Act"), relating to $1,500,000,000 in aggregate principal amount of
Debt Securities of the Company (the "Debt Securities") and Common Stock as may
be issuable from time to time upon conversion or exchange or Debt Securities to
the extent such Debt Securities are, by their terms, convertible or exchangeable
for Debt Securities pursuant to Rule 415 under the Act for issuance from time to
time. At your request, this opinion is being furnished to you for filing as
Exhibit 5 to the Registration Statement.
- ---------
I am familiar with the proceedings taken and proposed to be taken by the
Company in connection with the proposed authorization, issue and sale of the
Debt Securities and related Common Stock, and I have examined the originals, or
copies, certified or otherwise identified, of corporate records of the Company,
certificates of public officials and the representatives of the Company,
statutes and other documents and instruments, as the basis for the opinion
hereinafter expressed.
Based upon the foregoing examination, and in reliance thereon, I am of the
opinion that when the Registration Statement has become effective, and subject
to the terms of the Debt Securities and related Common Stock being otherwise in
compliance with applicable law:
1. The Debt Securities, when duly authorized, executed, authenticated and
delivered in accordance with the terms of the applicable resolutions of the
Board of Directors of the Company, any applicable indenture and any legally
required consents, approvals, authorizations and other orders of the Commission
or any other judicial or regulatory authorities required to be obtained, against
payment therefor as described in the Registration Statement, will be legally
<PAGE>
Comdisco, Inc.
October 8, 1998
Page 2
issued and will be binding obligations of the Company, entitled to the benefits
of any applicable indenture.
2. All shares of Common Stock issuable on conversion or exchange of Debt
Securities which by their terms are convertible or exchangeable for Common Stock
will be legally issued, fully paid and non-assessable shares of the Company.
The foregoing opinion is subject to (i) any applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally and (ii) with respect to the enforceability of any agreement,
to general principles of equity (regardless of whether such enforceability is
considered in an action at law or in equity).
I am qualified to practice law in the State of Illinois and do not purport
to be an expert on, or to express any opinion herein concerning any law other
than the laws of the State of Illinois, the corporation laws of the State of
Delaware, and the federal laws of the United States. Without limiting the
generality of the foregoing, I express no opinion as to the effect of the law of
any jurisdiction other than the State of Illinois or the corporate law of
Delaware.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement, and I further consent to the use of my name under the
caption "LEGAL MATTERS" in the Prospectus forming a part of the Registration
Statement.
Very truly yours,
/s/ Jeremiah M. Fitzgerald
--------------------------
Jeremiah M. Fitzgerald
Vice President and
General Counsel
<PAGE>
Exhibit 23.1
------------
[KPMG Peat Marwick LLP Letterhead]
Consent of KPMG Peat Marwick LLP
--------------------------------
The Board of Directors
Comdisco, Inc.
We consent to the incorporation by reference in the Registration Statement on
Form S-3 of Comdisco, Inc. of our reports dated November 7, 1997, relating to
the consolidated balance sheets of Comdisco, Inc. and subsidiaries as of
September 30, 1997 and 1996, and the related consolidated statements of
earnings, stockholders' equity, and cash flows for each of the years in the
three-year period ended September 30, 1997, and the related financial statement
schedule which reports appear in or are incorporated by reference in the
September 30, 1997 annual report on Form 10-K of Comdisco, Inc. and to the
reference to our firm under the heading "Experts" in the prospectus.
/s/ KPMG Peat Marwick LLP
Chicago, Illinois
October 5, 1998
<PAGE>
Registration No.
_____________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________________________
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATE DESIGNATED TO ACT AS TRUSTEE
Check if an application to determine eligibility of a trustee
pursuant to Section 305 (b) (2) ________
_____________________________
THE FUJI BANK AND TRUST COMPANY
(Exact name of trustee as specified in its charter)
New York 13-2794155
(State of incorporation (I.R.S. employer
if not a national bank) identification no.)
Two World Trade Center
New York, New York 10048
(Address of principal executive offices) (Zip Code)
_____________________________
COMDISCO, INC.
(Exact name of obligor as specified in its charter)
Delaware
(State of other jurisdiction of
incorporation or organization)
36-268-7938
(I.R.S. employer identification no.)
6111 North River Road
Rosemont, Illinois 60018
(Address of principal executive offices) (Zip Code)
_____________________________
DEBT SECURITIES
(Title of the Indenture Securities)
<PAGE>
Item 1. General Information
-------------------
Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
New York Banking Department, Albany, New York.
Federal Deposit Insurance Corporation, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor and Underwriters
------------------------------------------
It the obligor or any underwriter for the obligor is an affiliate of
the Trustee, describe each such affiliation.
None.
Item 16. List of Exhibits
----------------
List below all exhibits filed as part of this statement of eligibility
and qualifications.
Exhibit 1 - Copy of Organization Certificate of the Trustee,
incorporated herein by reference to Exhibit 1 of Form T-1,
Registration No.33-53005
Exhibit 2 - Copy of certificate of authority of the Trustee to
commence business, incorporated herein by reference to Exhibit 2 of
Form T-1, Registration No.33-53005
Exhibit 3 - Copy of authorization of the Trustee to exercise trust
powers, incorporated herein by reference to Exhibit 3 of Form T-1,
Registration No.33-53005
Exhibit 4 - Copy of existing By-Laws of the Trustee incorporated
herein by reference to Exhibit 4 of Form T-1, Registration No.33-
53005
Exhibit 5 - Not applicable
Exhibit 6 - The consent of the Trustee required by Section 321(b) of
the Trust Indenture Act of 1939, as amended by the Trust Indenture
Reform Act of 1990, incorporated herein by reference to Exhibit 6 of
Form T-1, Registration No.33-53005
Exhibit 7 - Copy of the latest Report of Condition of the Trustee as
of June 30, 1998
Exhibit 8 - Not applicable
Exhibit 9 - Not applicable
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee,
The Fuji Bank and Trust Company, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
The City of New York and State of New York, on the 8th day of October 1998.
THE FUJI BANK AND TRUST COMPANY
/s/ Sharon Chase Moore
--------------------------------
Sharon Chase Moore
Vice President
<PAGE>
<TABLE>
<S> <C> <C>
Legal Title of Bank: THE FUJI BANK AND TRUST COMPANY Call Date: 6/30/98 FFIEC 031
Address: TWO WORLD TRADE CENTER, 79TH - 82ND FL Page RC-1
City, State Zip: NEW YORK, NY 10048-0042 Printed 7/29/98 at 14:48
FDIC Certificate No.: 2 1 8 4 3
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR JUNE 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
----------
C400
---------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule RC-A):
a. Noninterest-bearing balances and currency and coin(1).................................... 0081 38,044 1.a.
b. Interest-bearing balances(2)............................................................. 0071 128,493 1.b.
2. Securities:
a. Held-to-maturity securities (from Schedule RC-B, column A)............................... 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)............................. 1773 12,124 2.b.
3. Federal funds sold and securities purchased under agreements to resell...................... 1350 175,000 3.
4. Loans and lease financing receivables:
------------------------
a. Loans and leases, net of unearned income (from Schedule RC-C) RCFD 2122 705,370 4.a.
b. LESS: Allowance for loan and lease losses..................... RCFD 3123 32,054 4.b.
c. LESS: Allocated transfer risk reserve......................... RCFD 3128 0 4.c.
------------------------
d. Loans and leases, net of unearned income
allowance, and reserve (item 4.a minus 4.b and 4.c)...................................... 2125 673,315 4.d.
5. Trading assets (from Schedule RC-D)......................................................... 3545 2,688 5.
6. Premises and fixed assets (including capitalized leases).................................... 2146 1,990 6.
7. Other real estate owned (from Schedule RC-M)................................................ 2150 0 7.
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M).... 2130 0 8.
9. Customers' liability to this bank on acceptances outstanding................................ 2155 0 9.
10. Intangible assets (from Schedule RC-M)...................................................... 2143 403 10.
11. Other assets (from Schedule RC-F)........................................................... 2160 14,528 11.
12. Total assets (sum of items 1 through 11).................................................... 2170 1,046,586 12.
</TABLE>
___________
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
11
<PAGE>
<TABLE>
<S> <C> <C>
Legal Title of Bank: THE FUJI BANK AND TRUST COMPANY Call Date: 6/30/98 FFISC 031
Address: TWO WORLD TRADE CENTER, 79TH-82ND FL Page RC-2
City, State Zip: NEW YORK, NY 10048-0042 Printed 7/29/98 at 14:49
FDIC Certificate No.: 2 1 8 4 3
SCHEDULE RC--CONTINUED
</TABLE>
<TABLE> -----------------------
<CAPTION> Dollar Amounts in Thousands Bil Mil Thou
- ---------------------------------------------------------------------------------------------- ------------------------
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C from schedule RC-E,
Part I)............................................................................. RCON 2200 162,135 13.a.
----------------------
(1) Noninterest-bearing(1).................................. RCON 6631 141,647 13.a.(1)
(2) Interest-bearing........................................ RCON 6636 20,488 13.a.(2)
----------------------
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from
Schedule RC-E, part II)............................................................. RCFN 2200 318,433 13.b.
----------------------
(1) Noninterest-bearing..................................... RCFN 6631 1,475 13.b.(1)
(2) Interest-bearing........................................ RCFN 6636 316,938 13.b.(2)
----------------------
14. Federal funds purchased and securities sold under agreements to repurchase............. RCFD 2800 0 14.
15. a. Demand notes issued to the U.S. Treasury............................................ RCON 2840 0 15.a.
b. Trading liabilities (from Schedule RC-D)............................................ RCFD 3548 2,589 15.b.
16. Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases):
a. With a remaining maturity of one year or less....................................... RCFD 2332 87,198 16.a.
b. With a remaining maturity of more than one year through three years................. RCFD A547 10,617 16.b
c. With a remaining maturity of more than three years.................................. RCFD A548 139,419 16.c
17. Not applicable
18. Bank's liability on acceptances executed and outstanding............................... RCFD 2920 0 18.
19. Subordinated notes and debentures(2)................................................... RCFD 3200 43,500 19.
20. Other liabilities (from Schedule RC-G)................................................. RCFD 2930 21,436 20.
21. Total liabilities (sum of items 13 through 20)......................................... RCFD 2948 785,327 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus.......................................... RCFD 3838 0 23.
24. Common stock........................................................................... RCFD 3230 98,474 24.
25. Surplus (exclude all surplus related to preferred stock)............................... RCFD 3839 153,975 25.
26. a. Undivided profits and capital reserves.............................................. RCFD 3632 12,465 26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities.............. RCFD 8434 (7) 26.b.
27. Cumulative foreign currency translation adjustments.................................... RCFD 3284 (3,648) 27.
28. Total equity capital (sum of items 23 through 27)...................................... RCFD 3210 261,259 28.
29. Total liabilities and equity capital (sum of items 21 and 28).......................... RCFD 3300 1,046,586 29
------------------------
Memorandum
TO BE REPORTED ONLY WITH THE MARCH REPORT OF CONDITIONS.
1. Indicate in the box at the right the number of the statement below that best
describes the most comprehensive level of auditing work performed for the Number
-----------------
bank by independent external auditors as of any date during 1997............................... RCFD 6724 N/A M.1
-----------------
</TABLE>
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors (may
be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
_________________
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
12
