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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
January 19, 1999
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Date of Report (Date of earliest event reported)
Comdisco, Inc.
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(Exact name of registrant as specified in its charter)
Delaware 1-7725 36-2687938
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(State of incorporation) (Commission (IRS Employer
File No.) Identification No.)
6111 North River Road, Rosemont, Illinois 60018
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(Address of principal executive offices) (Zip code)
(847) 698-3000
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Registrant's telephone number, including area code
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Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
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(c) Exhibits
1.1 Distribution Agreement dated January 19, 1999 by and among the Company
and Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, NationsBanc Montgomery Securities LLC, Salomon Smith
Barney Inc. and Warburg Dillon Read LLC, as Agents.
4.1 Senior Debt Indenture dated December 15, 1998 between The Fuji Bank
and Trust Company, as trustee, and the Company.
4.2 Form of Series H Fixed Rate Medium-Term Note.
4.3 Form of Series H Floating Rate Medium-Term Note.
5.1 Opinion of Jeremiah M. Fitzgerald, Esq., Vice President and General
Counsel of the Registrant, relating to the legality of the
Registrant's Medium-Term Notes, Series H.
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SIGNATURES
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this Current Report on Form 8-K to be signed on its
behalf by the undersigned hereunto duly authorized.
COMDISCO, INC.
Date: January 19, 1999 By: /s/ Philip A. Hewes
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Name: Philip A. Hewes
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Its: Senior Vice President
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EXHIBIT 1.1
COMDISCO, INC.
Medium-Term Notes, Series H
DISTRIBUTION AGREEMENT
January 19, 1999
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
World Financial Center
North Tower
250 Vesey Street
New York, New York 10281-1310
NATIONSBANC MONTGOMERY SECURITIES LLC
2800 Sears Tower
Chicago, Illinois 60606
SALOMON SMITH BARNEY INC.
8700 Sears Tower
Chicago, Illinois 60606
WARBURG DILLON READ LLC
677 Washington Boulevard
Stamford, Connecticut 06901
Ladies and Gentlemen:
Comdisco, Inc., a Delaware corporation (the "Company") confirms its
agreement with each of you (each an "Agent"; collectively, the "Agents") with
respect to the issue and sale by the Company of its Medium-Term Notes, Series H
(the "Notes"). The Notes are to be issued pursuant to an indenture (the
"Indenture") dated as of December 15, 1998, between the Company and The Fuji
Bank and Trust Company, as trustee (the "Trustee"). As of the date hereof, the
Company has authorized the issuance of up to $600,000,000 aggregate principal
amount of Notes, which may be distributed through the Agents pursuant to the
terms of this Agreement. It is understood, however, that the Company may from
time to time authorize the issuance of additional notes and that such notes may
be distributed through the Agents pursuant to the terms of this Agreement, or
through one or more other agents pursuant to the terms of a separate agreement,
all as though the issuance of such notes was authorized as of the date hereof.
The Notes will be represented by either a global security registered in the
name of a nominee of The Depository Trust Company (the "Depositary"), as
Depositary (a "Book-Entry Note"), or a certificate issued in definitive form (a
"Certificated Note"), as selected by the purchaser and agreed to by the Company
and specified in the applicable pricing supplement. Beneficial interests in
Book-Entry Notes will be shown on, and transfers thereof will be effected only
through, records maintained by the Depositary and its participants. Book-Entry
Notes will not be issuable in definitive form, except under the circumstances
described in the applicable prospectus supplement. The Notes shall be issued in
the currency or currency unit (the "Specified Currency") and shall have the
maturity ranges, annual interest rate (whether fixed or floating), redemption
provisions, repayment provisions and other terms set forth in the Prospectus
referred to below as it may be supplemented from time to time, including any
pricing supplement (the "Pricing Supplement").
Subject to the terms and conditions stated herein and subject to the
reservation by the Company of the right to sell Notes directly to investors on
its own behalf or through other agents, dealers or underwriters substantially on
the same terms and conditions provided herein (including, but not limited to the
commission schedule set forth as Exhibit B
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hereto), the Company hereby (i) agrees that whenever the Company determines to
sell Notes directly to any of the Agents as principal for resale to others, it
will enter into a Terms Agreement (as hereinafter defined) relating to such sale
in accordance with the provisions of Section 2(a) hereof, and (ii) appoints the
Agents as its agents to solicit orders for, and to sell, all or part of the
Notes during a period beginning on the date hereof and ending when the Notes
have been sold, or such other time as the Company may specify to you in writing.
Each Agent will use all reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase Notes from the Company has
been solicited by such Agent as agent and accepted by the Company, but such
Agent shall not have any liability to the Company in the event any such purchase
is not consummated for any reason.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (File No. 333-65535) relating
to the Notes and the offering thereof from time to time in accordance with Rule
415 under the Securities Act of 1933 (the "1933 Act"). Such registration
statement has been declared effective by the Commission, and the Indenture has
been qualified under the Trust Indenture Act of 1939 (the "1939 Act"). Such
registration statement (and any further registration statements which may be
filed by the Company for the purpose of registering additional notes and in
connection with which this Agreement is included or incorporated by reference as
an exhibit) and the prospectus filed pursuant to Rule 424 under the 1933 Act,
including all documents incorporated therein by reference, as from time to time
amended or supplemented by the filing of documents pursuant to the Securities
Exchange Act of 1934 (the "1934 Act"), the 1933 Act or otherwise, are referred
to herein as the "Registration Statement" and the "Prospectus", respectively,
except that if any revised prospectus shall be provided to the Agents by the
Company for use in connection with the offering of the Notes which differs from
the Prospectus on file at the Commission at the time the Registration Statement
became effective (whether or not such revised prospectus is required to be filed
by the Company pursuant to Rule 424(b) of the rules and regulations under the
1933 Act (the "1933 Act Regulations")), the term "Prospectus" shall refer to
such revised prospectus from and after the time it is first provided to the
Agents for such use. For purposes of this Agreement, all references to the
Registration Statement, Prospectus or any amendment or supplement to any of the
foregoing shall be deemed to include any copy filed with the Commission pursuant
to the Electronic Data Gathering, Analysis and Retrieval System ("EDGAR").
SECTION 1. REPRESENTATIONS AND WARRANTIES.
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(a) The Company represents and warrants to each of the Agents as of the
date hereof (the "Closing Date"), as of the date of each acceptance by the
Company of an offer for the purchase of Notes whether through an Agent as agent
or to an Agent as principal, as of the date of each sale of Notes whether
through an Agent as agent or to an Agent as principal (each such sale to an
Agent as principal being referred to herein as a "Settlement Date"), and as of
the times referred to in Sections 6(a) and 6(b) hereof (each of the times
referenced above being referred to herein as a "Representation Date"), as
follows:
(i) Due Incorporation and Qualification. The Company has been duly
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incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware with corporate power and authority
to own, lease and operate its properties and conduct its business as
described in the Prospectus; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which its ownership or lease of substantial properties or
the conduct of its business requires such qualification and in which the
failure to so qualify and be in good standing would materially adversely
affect the business or financial condition of the Company and its
subsidiaries considered as one enterprise.
(ii) Subsidiaries. No subsidiary of the Company is a "significant
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subsidiary" as defined in Rule 405 of Regulation C of the 1933 Act
Regulations.
(iii) Registration Statement and Prospectus. At the time the
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Registration Statement became effective, it complied, and as of the
applicable Representation Date will comply, in all material respects with
the requirements of the 1933 Act, the 1933 Act Regulations and the 1939
Act. The Registration Statement, at the time it became effective did not,
and as of the applicable Representation Date will not, contain an untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading. The Prospectus, at the time the Registration Statement became
effective (unless the term "Prospectus" refers to a prospectus which has
been provided to the Agents by the Company for
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use in connection with the offering of the Notes which differs from the
Prospectus on file at the Commission at the time the Registration Statement
became effective, in which case at the time it is first provided to the
Agents for such use), did not, and as of the applicable Representation Date
will not, contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by the
Agents expressly for use in the Registration Statement or Prospectus or
that part of the Registration Statement which shall constitute the
Statement of Eligibility under the 1939 Act and the rules and regulations
of the Commission promulgated thereunder.
(iv) Incorporated Documents. The documents incorporated by reference
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in the Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations thereunder (the
"1934 Act Regulations"), and, when read together and with the other
information in the Prospectus, did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were or are made, not misleading;
provided, however, that the representations and warranties in this
subsection shall not apply to statements and/or omissions from the
Prospectus made in reliance upon and in conformity with the information
furnished to the Company in writing by you expressly for use in the
Prospectus, as amended or supplemented.
(v) Accountants. To the best of the Company's knowledge, the
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accountants who certified the financial statements included or incorporated
by reference in the Prospectus are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
(vi) Financial Statements. The consolidated financial statements of
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the Company and its subsidiaries included or incorporated by reference in
the Prospectus present fairly the financial position of the Company and its
subsidiaries as at the dates indicated and the results of their operations
for the periods specified; except as stated therein, said financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the period
or periods involved.
(vii) Material Changes or Material Transactions. Since the
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respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein or
contemplated thereby, (a) there has been no material adverse change in, or
any material development known to management which is likely to result in a
material adverse change in, the condition, financial or otherwise, of the
Company and its subsidiaries considered as one enterprise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, and (b) there have been no transactions
considered material to the Company and its subsidiaries considered as one
enterprise entered into by the Company or any of its subsidiaries other
than those in the ordinary course of business.
(viii) No Defaults, Breaches, Liens; Regulatory Approvals. The
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Company is not in violation of its charter or in default in the performance
or observance of any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note, lease
or other instrument to which it is a party or by which it or any of its
properties may be bound; and the execution and delivery of this Agreement,
the Indenture and each applicable Terms Agreement, if any, and the
consummation of the transactions contemplated herein and therein have been
duly authorized by all necessary corporate action and will not conflict
with or constitute a breach of, or default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or
assets of the Company pursuant to any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company is a party
or by which it may be bound or to which any of the property or assets of
the Company is subject, nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or, to the best of its
knowledge, any law, administrative regulation or administrative or court
order or decree; and no consent, approval, authorization, order or decree
of any court or governmental agency or body is required for the
consummation by the Company
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of the transactions contemplated by this Agreement, except such as may be
required under the 1933 Act, the 1939 Act, the 1933 Act Regulations or
state securities or Blue Sky laws.
(ix) Legal Proceedings; Contracts. Except as may be set forth in the
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Prospectus, there is no action, suit or proceeding before or by any court
or governmental agency or body, domestic or foreign, now pending, with
respect to which the Company has been served, or, to the knowledge of the
Company, threatened against or affecting, the Company or any of its
subsidiaries, which might, in the opinion of the Company, result in any
material adverse change in the condition, financial or otherwise, of the
Company and its subsidiaries considered as one enterprise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, or might materially and
adversely affect the properties or assets thereof or might materially and
adversely affect the consummation of this Agreement or any Terms Agreement;
and there are no material contracts or documents of the Company or any of
its subsidiaries which are required to be filed as exhibits to the
Registration Statement by the 1933 Act or by the 1933 Act Regulations which
have not been so filed.
(x) Material Licenses and Other Authorizations. The Company owns or
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possesses or has obtained all governmental licenses, permits, consents,
orders, approvals and other authorizations necessary to lease or own, as
the case may be, and to operate its properties and to carry on its business
as presently conducted, except where the failure to possess any such
license, permits, consents, orders, approvals or authorizations would not
have a material adverse effect on the financial condition, or the earnings
or business of the Company.
(xi) Trademarks, Service Marks and Trade Names. The Company owns or
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possesses, or can acquire on reasonable terms, adequate trademarks, service
marks and trade names necessary to conduct the business now operated by it,
and the Company has not received any notice of infringement of or conflict
with asserted rights of others with respect to any trademarks, service
marks or trade names which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would materially adversely
affect the conduct of the business, operations, financial condition or
income of the Company and its subsidiaries considered as one enterprise.
(xii) Authorization and Validity of the Notes. The Notes have been
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duly authorized for issuance and sale pursuant to this Agreement and, when
issued, authenticated and delivered pursuant to the provisions of this
Agreement and of the Indenture against payment of the consideration
therefor specified herein or in any Terms Agreement, the Notes will
constitute valid and legally binding obligations of the Company enforceable
in accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, or other laws relating to or affecting
creditors' rights generally or by general equity principles, and will be
entitled to the benefits provided by the Indenture, which will be
substantially in the form heretofore delivered to the Agents; and the Notes
and the Indenture conform in all material respects to all statements
relating thereto contained in the Prospectus.
(xiii) Indenture. The Indenture has been duly authorized, executed
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and delivered by the Company and (assuming the Indenture has been duly
authorized, executed and delivered by the Trustee) constitutes a valid and
binding agreement of the Company, enforceable in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency, or
other laws relating to or affecting creditors' rights generally, or by
general equity principles.
(b) Additional Certifications. Any certificate signed by any officer of
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the Company and delivered to the Agents or to counsel for the Agents in
connection with an offering of Notes shall be deemed a representation and
warranty by the Company to the Agents as to the matters covered thereby.
SECTION 2. PURCHASES AS PRINCIPAL; SOLICITATIONS AS AGENT.
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(a) Purchases as Principal. Unless otherwise agreed by the Company and the
----------------------
applicable Agent, Notes shall be purchased by such Agent as principal. Such
purchase shall be made in accordance with the terms of this Agreement and a
separate agreement which will provide for the sale of such Notes to, and the
purchase and reoffering thereof by such
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Agent. Each such separate agreement (which may be an oral agreement and
confirmed in writing as described below between the Agent and the Company) is
herein referred to as a "Terms Agreement". Each such Terms Agreement, whether
oral (and confirmed in writing, which may be by facsimile transmission) or in
writing, shall be with respect to such information (as applicable) as is
specified in Exhibit A hereto. Unless otherwise agreed to between the Company
and the Agent in a Terms Agreement, any Note sold to an Agent (i) shall be
purchased by such Agent at a price equal to 100% of the principal amount thereof
less a percentage equal to the commission applicable to an agency sale of a Note
of identical maturity and (ii) may be resold by such Agent at varying prices
from time to time. In connection with any resale of Notes purchased, an Agent
may use a selling or dealer group and may reallow any portion of the discount or
commission payable pursuant hereto to dealers or other purchasers.
(b) Solicitations as Agent. On the basis of the representations and
----------------------
warranties herein contained, but subject to the terms and conditions herein set
forth, when agreed to by the Company and the applicable Agent, such Agent as an
agent of the Company, will use its reasonable efforts to solicit offers to
purchase the Notes upon the terms and conditions set forth in the Prospectus.
The Company reserves the right, in its sole discretion, to instruct the
Agents to suspend solicitation of purchases of the Notes commencing at any time
for any period of time or permanently. As soon as practicable, but in any event
not later than one business day after receipt of instructions from the Company,
the Agents will suspend solicitation of offers to purchase Notes from the
Company until such time as the Company has advised the Agents that such
solicitation may be resumed.
The Company agrees to pay each Agent, as consideration for soliciting the
sale of any Notes, a commission in the form of a discount equal to the
applicable percentage of the principal amount of each Note sold by the Company
as a result of a solicitation made by each respective Agent as set forth in
Exhibit B hereto. Except as provided in Section 2(a), without the prior
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approval of the Company, the Agent may not re-allow any portion of the
commission payable pursuant hereto to dealers or purchasers in connection with
the offer and sale of any Notes.
As agent, each Agent is authorized to solicit orders for the Notes at a
purchase price which shall be agreed upon by the Company and the Agents and set
forth in a supplement to the Prospectus and (except as may be otherwise provided
in an applicable supplement to the Prospectus) only in denominations of $1,000
or any integral multiple thereof. Each Agent shall communicate to the Company,
orally or in writing, each reasonable offer to purchase Notes received by it.
The Company shall have the sole right to accept offers to purchase the Notes and
may reject any such offer in whole or in part. Each Agent shall have the right
to reject, in its discretion reasonably exercised, any offer to purchase the
Notes in whole or in part, and any such rejection shall not be deemed a breach
of the Agent's agreements contained herein.
(c) Administrative Procedures. Administrative procedures respecting the
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sale of Notes shall be agreed upon from time to time in writing by the Agents
and the Company (the "Procedures"). The Agents and the Company agree to perform
the respective duties and obligations specifically provided to be performed by
the Agents herein and in the Procedures.
(d) Delivery of Documents. The documents required to be delivered by
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Section 5 hereof shall be delivered at the office of Brown & Wood LLP, One World
Trade Center, New York, New York 10048 on the date hereof or such other time as
the Agents and the Company may agree in writing.
Any Notes which are purchased by an Agent as principal shall be purchased,
and any Notes the placement of which an Agent arranges, shall be placed by such
Agent, in reliance on the representations and warranties of the Company herein
contained and on to the terms and conditions and in the manner provided herein.
SECTION 3. COVENANTS OF THE COMPANY.
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The Company covenants with each of the Agents as follows:
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(a) Notice of Certain Events. The Company will notify each of the Agents
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immediately (i) of the effectiveness of any amendment to the Registration
Statement (including any post-effective amendment), (ii) of the mailing or the
delivery to the Commission for filing of any supplement to the Prospectus or any
document to be filed pursuant to the 1934 Act which will be incorporated by
reference in the Prospectus, (iii) of the receipt of any comments from the
Commission with respect to the Registration Statement or the Prospectus, (iv) of
any request by the Commission for any amendment to the Registration Statement or
any amendment or supplement to the Prospectus or for additional information, (v)
of the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the initiation of any proceedings for that
purpose and (vi) if the rating assigned by any nationally recognized securities
rating agency to any debt securities or other obligations of the Company has
been lowered since the date of the applicable Terms Agreement or if any such
rating agency shall have publicly announced that it has placed any debt
securities or other obligations of the Company on what is commonly termed a
"watch list" for possible downgrading. The Company will make every reasonable
effort to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible moment; provided,
however, that the Company shall have no such obligation during any period from
the time (i) the Agents shall have suspended solicitation of offers to purchase
Notes in their capacity as agents pursuant to a request from the Company and
(ii) the Agents shall not then hold any Notes as principal purchased pursuant to
a Terms Agreement (or, if the Agents hold Notes as principal purchased pursuant
to a Terms Agreement, the Agents have held such Notes for more than 90 days), to
the time the Company shall determine that solicitation of purchases of the Notes
should be resumed or shall subsequently enter into a new Terms Agreement with
the Agents.
(b) Notice of Certain Proposed Filings. The Company will give the Agents
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notice of its intention to file any additional registration statement with
respect to the registration of additional notes, any amendment to the
Registration Statement (including any post-effective amendment) or any amendment
or supplement to the Prospectus (including any revised prospectus which the
Company proposes for use by the Agents in connection with the offering of the
Notes which differs from the prospectus on file at the Commission at the time
the Registration Statement became effective, whether or not such revised
prospectus is required to be filed pursuant to Rule 424(b) of the 1933 Act
Regulations), whether by the filing of documents pursuant to the 1934 Act, the
1933 Act or otherwise, and will furnish the Agents with copies of any such
amendment or supplement or other documents proposed to be filed or used a
reasonable time in advance of such filing or use, and will not file any such
amendment or supplement or other documents in a form to which you or your
counsel shall reasonably object.
(c) Copies of Registration Statement, Prospectus. The Company will deliver
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to the Agents as many signed and conformed copies of the Registration Statement
(as originally filed) and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents incorporated by
reference in the Prospectus) as the Agents may reasonably request. The Company
will furnish to the Agents as many copies of the Prospectus (as amended or
supplemented) as the Agents shall reasonably request so long as the Agents are
required to deliver a Prospectus in connection with sales or solicitations of
offers to purchase the Notes. Copies of the Registration Statement, each
amendment hereto, the Prospectus and any amendments or supplements thereto
furnished to the Agents will be identical to any electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T of the 1933 Act Regulations.
(d) Revisions of Prospectus -- Material Changes. If at any time when the
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Prospectus is required by the 1933 Act to be delivered in connection with sales
of the Notes or an Agent holds any Notes as principal purchased pursuant to a
Terms Agreement any event shall occur or condition exist as a result of which it
is necessary, in the reasonable opinion of the Agents' counsel or counsel for
the Company, to further amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the reasonable opinion
of either such counsel, at any such time to amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, immediate notice shall be given, and confirmed
in writing, to the Agents to cease the solicitation of offers to purchase the
Notes in the Agents' capacity as agents and to cease sales of any Notes an Agent
may then own as principal, and the Company will promptly prepare and file with
the Commission such amendment or supplement, whether by filing documents
pursuant to the 1934 Act, the 1933 Act or otherwise, as may be necessary to
correct such untrue statement or omission or to make the Registration Statement
comply with such requirements.
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(e) Prospectus Revisions -- Periodic Financial Information. On or prior to
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the date on which there shall be released to the general public interim
financial statement information related to the Company with respect to each of
the first three quarters of any fiscal year or preliminary financial statement
information with respect to any fiscal year, the Company shall furnish such
information to the Agents, confirmed in writing, and shall cause the Prospectus
to be amended or supplemented to include or incorporate by reference capsule
financial information with respect thereto and corresponding information for the
comparable period of the preceding fiscal year, as well as such other
information and explanations as shall be necessary for an understanding thereof
or as shall be required by the 1933 Act or the 1933 Act Regulations; provided,
however, that if on the date of such release the Agents shall have suspended
solicitation of offers to purchase Notes in each Agent's capacity as agent
pursuant to a request from the Company, and shall not then hold any Notes as
principal purchased pursuant to a Terms Agreement, the Company shall not be
obligated so to amend or supplement the Prospectus until such time as the
Company shall determine that solicitation of offers to purchase Notes should be
resumed or shall subsequently enter into a Terms Agreement with an Agent.
(f) Prospectus Revisions -- Audited Financial Information. On or prior to
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the date on which there shall be released to the general public financial
information included in or derived from the audited financial statements of the
Company for the preceding fiscal year, the Company shall cause the Registration
Statement and the Prospectus to be amended, whether by the filing of documents
pursuant to the 1934 Act, the 1933 Act or otherwise, to include or incorporate
by reference such audited financial statements and the report or reports, and
consent or consents to such inclusion or incorporation by reference, of the
independent accountants with respect thereto, as well as such other information
and explanations as shall be necessary for an understanding of such financial
statements or as shall be required by the 1933 Act or the 1933 Act Regulations;
provided, however, that if on the date of such release the Agents shall have
suspended solicitation of offers to purchase Notes in each Agent's capacity as
agent pursuant to a request from the Company, and shall not then hold any Notes
as principal purchased pursuant to a Terms Agreement, the Company shall not be
obligated so to amend or supplement the Prospectus until such time as the
Company shall determine that solicitation of offers to purchase Notes should be
resumed or shall subsequently enter into a Terms Agreement with an Agent.
(g) Section 11(a) Earnings Statements. The Company will make generally
---------------------------------
available to its security holders as soon as practicable, but not later than 90
days after the close of the period covered thereby, earnings statements (in form
complying with the provisions of Rule 158 under the 1933 Act) covering twelve-
month periods beginning, in each case, not later than the first day of the
Company's fiscal quarter next following the "effective date" (as defined in such
Rule 158) of the Registration Statement with respect to each sale of Notes.
(h) Copies of Financial Reports. The Company will furnish to the Agents,
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at the earliest time the Company makes the same available to others, copies of
its annual reports and other financial reports furnished or made available to
the public generally.
(i) Blue Sky Qualifications. The Company will endeavor, in cooperation
-----------------------
with the Agents, to qualify the Notes for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States as
the Agents may reasonably designate, and will maintain such qualifications in
effect for as long as may be required for the distribution of the Notes; the
Company will file such statements and reports as may be required by the laws of
each jurisdiction in which the Notes have been qualified as above provided;
provided, however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise so
subject or expend amounts in excess of $1,000 for filing fees in any one
jurisdiction.
(j) 1934 Act Filings. The Company, during the period when the Prospectus
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is required to be delivered under the 1933 Act, will file promptly all documents
required to be filed with the Commission pursuant to Sections 13(a), 13(c), 14
or 15(d) of the 1934 Act.
(k) Stand-Off Agreement. Between the date of any Terms Agreement and the
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Settlement Date with respect to such Terms Agreement, the Company will not,
without the prior consent of each Agent that is a party to said
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Terms Agreement, offer or sell or enter into any agreement to sell, any debt
securities of the Company (other than the Notes which are to be sold pursuant to
such Terms Agreement and commercial paper, tax-exempt securities or other
securities (which contain terms which are not substantially similar to the Notes
which are to be sold pursuant to such Terms Agreement) offered and sold by the
Company in the ordinary course of its business, including, but not limited to,
securities issued by the Company in connection with the non-recourse financing
of lease receivables), except as may otherwise be provided in any such Terms
Agreement.
SECTION 4. PAYMENT OF EXPENSES.
-------------------
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(i) The preparation and filing of the Registration Statement and all
amendments thereto and the Prospectus and any amendments or supplements
thereto;
(ii) The preparation, issuance and delivery of the Notes;
(iii) The fees and disbursements of the Company's accountants and of the
Trustee and its counsel;
(iv) The reasonable fee and disbursements of the Agents' counsel;
(v) The qualification of the Notes under securities laws in accordance
with the provisions of Section 3(i), including filing fees and the
reasonable fees and disbursements of the Agents' counsel in connection
therewith and in connection with the preparation of any Blue Sky Survey and
any Legal Investment Survey;
(vi) The printing and delivery to the Agents in quantities as
hereinabove stated of copies of the Registration Statement and any
amendments thereto, and of the Prospectus and any amendments or supplements
thereto, and the delivery by the Agents of the Prospectus and any
amendments or supplements thereto in connection with solicitations or
confirmations of sales of the Notes;
(vii) The printing and delivery to the Agents of copies of the Indenture
and any Blue Sky Survey and any Legal Investment Survey;
(viii) Any fees charged by rating agencies for the rating of the Notes;
(ix) The fees and expenses, if any, incurred with respect to any filing
with the National Association of Securities Dealers, Inc.; and
(x) Any advertising and other out-of-pocket expenses incurred with the
approval of the Company.
SECTION 5. CONDITIONS OF OBLIGATIONS.
-------------------------
Each Agent's obligations to purchase the Notes as principal and to solicit
offers to purchase the Notes as agent of the Company and the obligation of any
purchaser of Notes sold through an Agent as agent, will be subject at all times
to the accuracy of the representations and warranties on the part of the Company
herein and to the accuracy of the statements of the Company's officers made in
any certificate furnished pursuant to the provisions hereof, to the performance
and observance by the Company of all covenants and agreements herein contained
on its part to be performed and observed and to the following additional
conditions precedent:
(a) Legal Opinions. At the Closing Date and at each Settlement Date with
--------------
respect to any applicable Terms Agreement, if called for by such Terms
Agreement, each Agent shall have received the following documents:
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(1) Opinion of Company Counsel. The opinion of Philip A. Hewes,
--------------------------
Esq., Senior Vice President/Legal of the Company, or Jeremiah M.
Fitzgerald, Esq., Vice President and General Counsel of the Company dated
as of such Closing Date or Settlement Date, in form and substance
satisfactory to the Agents and the Agents' counsel, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware.
(ii) The Company has corporate power and authority to own, lease
and operate its properties and conduct its business as described in
the Prospectus.
(iii) To the best of such counsel's knowledge, the Company is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which its ownership or lease of
substantial properties or the conduct of its business requires such
qualification and in which failure of the Company to be so qualified
and in good standing would have a material adverse effect upon the
Company and its subsidiaries considered as a single enterprise.
(iv) This Agreement (and, if the opinion is being given pursuant
to Section 6(c) hereof as a result of the Company having entered into
a Terms Agreement requiring such opinion, the applicable Terms
Agreement) has been duly authorized, executed and delivered by the
Company.
(v) The Indenture has been duly authorized, executed and
delivered by the Company and (assuming the Indenture has been duly
authorized, executed and delivered by the Trustee) constitutes a valid
and binding agreement of the Company, enforceable in accordance with
its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, or other laws relating to or affecting creditors' rights
generally, or by general equity principles.
(vi) The Notes are in the form contemplated by the Indenture, have
been duly authorized by all necessary corporate action and, when
executed and authenticated as specified in the Indenture and delivered
against payment of the consideration therefor in accordance with this
Agreement, as supplemented by the applicable Terms Agreement, if any,
will be valid and binding obligations of the Company, enforceable in
accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, or other laws relating to or
affecting creditors' rights generally, or by general equity
principles, and each holder of Notes will be entitled to the benefits
of the Indenture.
(vii) The statements in the Prospectus under the caption
"Description of Debt Securities" and in the Prospectus Supplement
under the caption "Description of Notes", insofar as they purport to
summarize certain provisions of documents specifically referred to
therein, are accurate summaries of such provisions.
(viii) The Indenture is qualified under the 1939 Act.
(ix) The Registration Statement is effective under the 1933 Act
and, to the best of such counsel's knowledge, no stop order suspending
the effectiveness of the Registration Statement has been issued under
the 1933 Act or proceedings therefor initiated or threatened by the
Commission.
(x) At the time the Registration Statement became effective, the
Registration Statement (other than the financial statements included
or incorporated by reference therein, as to which no opinion need be
rendered) appeared on its face to comply as to form in all material
respects with the requirements of the 1933 Act, the 1939 Act and the
regulations under each of those Acts.
(xi) To the best of such counsel's knowledge, there are no legal
or governmental proceedings pending or threatened which are required
to be disclosed in the Registration Statement, other than those
disclosed therein, and all pending legal or governmental proceedings
to which the Company or
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<PAGE>
any subsidiary is a party or of which any of their property is the
subject which are not described in the Prospectus, including ordinary
routine litigation incidental to the business, are, considered in the
aggregate, not material.
(xii) To the best of such counsel's knowledge and information,
there are no contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments required to be described or referred to in
the Registration Statement or to be filed as exhibits thereto other
than those described or referred to therein or filed or incorporated
by reference as exhibits thereto, the descriptions thereof or
references thereto are correct, and, except for certain minor matters
which, either individually or in the aggregate, will not or do not
have a material adverse effect on the Company or its business, no
default exists in the due performance or observance of any material
obligation, agreement, covenant or condition contained in any
contract, indenture, loan agreement, note, lease or other instrument
so described, referred to, filed or incorporated by reference.
(xiii) No consent, approval, authorization, or order of any court or
governmental authority or agency is required in connection with the
sale of the Notes, except such as may be required under the 1933 Act,
the 1939 Act, the 1933 Act Regulations, or state securities laws; and,
to the best of such counsel's knowledge, the execution and delivery of
this Agreement (and, if the opinion is being given pursuant to Section
6(c) hereof on account of the Company having entered into a Terms
Agreement, the applicable Terms Agreement) and the Indenture and the
consummation of the transactions contemplated herein and therein will
not conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company pursuant to,
any contract, indenture, mortgage, loan agreement, note, lease or
other instrument known to such counsel and to which the Company is a
party or by which it may be bound or to which any of the property or
assets of the Company is subject, or any law, administrative
regulation or administrative or court decree, known to such counsel to
be applicable to the Company, of any court or governmental agency,
authority or body or any arbitrator having jurisdiction over the
Company, except that such counsel need express no opinion as to any
state securities or Blue Sky laws, or any rules or regulations
thereunder; nor will such action result in any violation of the
provisions of the charter or bylaws of the Company.
(xiv) Each document filed pursuant to the 1934 Act and incorporated
by reference in the Prospectus (except for the financial statements
included therein or omitted therefrom, as to which counsel need not
comment), appeared on its face to comply when filed as to form in all
material respects with the 1934 Act and the rules and regulations
promulgated thereunder.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of the State of New York, to the extent
deemed proper and specified in such opinion, upon the opinion of Brown &
Wood LLP, counsel for the Agents, delivered pursuant to subsection (a)(2)
hereof and (B) as to matters of fact, to the extent deemed proper, on
certificates of responsible officers of the Company and public officials.
(2) Opinion of Counsel to the Agents. The opinion of Brown & Wood
--------------------------------
LLP, counsel to the Agents, dated as of such Closing Date or Settlement
Date, covering the matters referred to in subparagraph (1) under the
subheadings (i) and (iv) to (x), inclusive.
(3) In giving their opinions required by subsection (a)(1) and (a)(2)
of this Section, Mr. Hewes or Mr. Fitzgerald and Brown & Wood LLP shall
each additionally state that nothing has come to their attention that would
lead them to believe that the Registration Statement (except for the
financial statements and other financial or statistical data included
therein or omitted therefrom, as to which counsel need not comment), at the
time it became effective, or if an amendment to the Registration Statement
or an Annual Report on Form 10-K has been filed by the Company with the
Commission subsequent to the effectiveness of the Registration Statement,
then at the time of the most recent such amendment or filing, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus, as amended or supplemented at the
Closing Date, the Settlement
10
<PAGE>
Date or the date of such opinion, as the case may be, contains an untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(b) Officer's Certificate. At the Closing Date and at each Settlement Date
---------------------
with respect to any Terms Agreement, there shall not have been, since the
respective dates as of which information is given in the Registration Statement
and the Prospectus or since the date of such Terms Agreement, any material
adverse change in, or any material development known to management which is
likely to result in a material adverse change in, the condition, financial or
otherwise, of the Company and its subsidiaries considered as one enterprise, or
the earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business; and the Agents shall have received a certificate of
the Chief Executive Officer or the President and the Chief Financial Officer of
the Company at the Closing Date and, if called for by the applicable Terms
Agreement, at each Settlement Date, dated as of the Closing Date or such
Settlement Date, to the effect that (i) there has been no such material adverse
change or material development known to management which is likely to result in
a material adverse change, (ii) the other representations and warranties of the
Company contained in Section 1 are true and correct with the same force and
effect as though expressly made at and as of the date of such certificate, (iii)
the Company has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to the date of such certificate,
and (iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
initiated or threatened by the Commission.
(c) Comfort Letter.The Agents shall have received on the date hereof, a
--------------
letter from KPMG Peat Marwick LLP, dated as of the date hereof, in form and
substance satisfactory to the Agents, to the effect that:
(i) They are independent public accountants with respect to the Company
and its subsidiaries within the meaning of the 1933 Act and the 1933 Act
Regulations.
(ii) In their opinion, the consolidated financial statements and
supporting schedule(s) audited by them and incorporated by reference in the
Registration Statement comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations with respect to registration statements on Form S-3 and the
1934 Act and the 1934 Act Regulations.
(iii) Based upon limited procedures set forth in detail in such letter
(which shall include, without limitation, the procedures specified by the
American Institute of Certified Public Accountants for a review of interim
financial information as described in SAS No. 71, Interim Financial
Information, with respect to the unaudited consolidated financial
statements of the Company and its subsidiaries included in the Registration
Statement), nothing has come to their attention which causes them to
believe that:
(A) any material modifications should be made to the unaudited
consolidated financial statements included in the Registration
Statement for them to be in conformity with generally accepted
accounting principles; or
(B) the unaudited consolidated financial statements included in
the Registration Statement do not comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act,
the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations;
or
(C) at a specified date not more than five days prior to the
date of such letter, there was any change in the capital stock or any
increase in the long-term debt of the Company and its subsidiaries
consolidated or any decrease in consolidated net assets, in each case
as compared with amounts shown in the most recent consolidated balance
sheet incorporated by reference in the Registration Statement, except
in each case for changes, increases or decreases which the
Registration Statement and the Prospectus disclose have occurred or
may occur; or
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(D) for the period from the date of the most recent financial
statements incorporated by reference in the Registration Statement to
a specified date not more than five days prior to the date of such
letter, there were any decreases, as compared with the corresponding
period in the preceding year, in consolidated revenues or net
earnings, except in each case for increases or decreases which the
Registration Statement and the Prospectus disclose have occurred or
may occur.
(iv) In addition to the examination referred to in their report
incorporated by reference in the Registration Statement and the Prospectus,
they have carried out certain other specified procedures, not constituting
an audit, with respect to certain amounts, percentages and financial
information which are included in the Registration Statement and the
Prospectus and which are specified by the Agents, and have found such
amounts, percentages and financial information to be in agreement with the
relevant accounting, financial and other records of the Company and its
subsidiaries identified in such letter.
(d) Other Documents. At the date hereof, at the Closing Date and at each
---------------
Settlement Date with respect to any applicable Terms Agreement, counsel to the
Agents shall have been furnished with such documents and opinions as such
counsel may reasonably require for the purpose of enabling such counsel to pass
upon the issuance and sale of Notes as herein contemplated and related
proceedings, or in order to evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection with
the issuance and sale of Notes as herein contemplated shall be satisfactory in
form and substance to the Agents and to the Agents' counsel.
(e) Further Conditions. The obligations of each of the Agents to purchase
------------------
Notes pursuant to any Terms Agreement will be subject to the following further
conditions: (i) the rating assigned by any nationally recognized securities
rating agency to any debt securities or other obligations of the Company as of
the date of the applicable Terms Agreement shall not have been lowered since
that date nor shall any such rating agency have publicly announced that it has
placed any obligations of the Company on what is commonly termed a "watch list"
for possible downgrading, and (ii) there shall not have come to such Agent's
attention any facts that would cause such Agent to believe that the Prospectus,
at the time it was required to be delivered to a purchaser of Notes, contained
an untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances existing at such time, not misleading.
If any condition specified in this Section shall not have been fulfilled,
this Agreement and any Terms Agreement may be terminated by the Agents by notice
to the Company at any time at or prior to the Closing Date or the applicable
Settlement Date, and such termination shall be without liability of any party to
any other party, except that the covenants set forth in Section 3(g) hereof, the
provisions of Section 4 hereof, the indemnity and contribution agreements set
forth in Sections 7 and 8 hereof, and the provisions of Sections 9 and 13 hereof
shall remain in effect.
SECTION 6. ADDITIONAL COVENANTS OF THE COMPANY.
-----------------------------------
The Company covenants and agrees that:
(a) Reaffirmation of Representations and Warranties. Each acceptance by it
-----------------------------------------------
of an offer for the purchase of Notes, and each sale of Notes to the Agents
pursuant to a Terms Agreement, shall be deemed to be an affirmation that the
representations and warranties of the Company contained in this Agreement and in
any certificate theretofore delivered to the Agents pursuant hereto are true and
correct at the time of such acceptance or sale, as the case may be, and an
undertaking that such representations and warranties will be true and correct at
the time of delivery to the purchaser or his agent, or to the Agents, of the
Notes or Notes relating to such acceptance or sale, as the case may be, as
though made at and as of each such time (and it is understood that such
representations and warranties shall relate to the Registration Statement and
the Prospectus as amended and supplemented to each such time);
(b) Subsequent Delivery of Certificates. Each time that the Registration
-----------------------------------
Statement or the Prospectus shall be amended or supplemented (other than by an
amendment or supplement providing solely for a change in the interest rates of
Notes or a change in the principal amount of Notes remaining to be sold or
similar changes) or there is filed with the Commission any document incorporated
by reference into the Prospectus or, if so indicated in the applicable Terms
12
<PAGE>
Agreement, the Company sells Notes to the Agents pursuant to a Terms Agreement,
the Company shall furnish or cause to be furnished to the Agents forthwith a
certificate in form satisfactory to the Agents to the effect that the statements
contained in the certificates referred to in Section 5(b) hereof which were last
furnished to the Agents are true and correct at the time of such amendment or
supplement or filing or sale, as the case may be, as though made at and as of
such time (except that such statements shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to such
time) or, in lieu of such certificate, certificates of the same tenor as the
certificates referred to in said Section 5(b), modified as necessary to relate
to the Registration Statement and the Prospectus as amended and supplemented to
the time of delivery of such certificates;
(c) Subsequent Delivery of Legal Opinions. Each time that the Registration
-------------------------------------
Statement or the Prospectus shall be amended or supplemented (other than by an
amendment or supplement providing solely for a change in the interest rates of
the Notes or a change in the principal amount of Notes remaining to be sold or
similar changes) or there is filed with the Commission any document incorporated
by reference into the Prospectus (other than any Current Report on Form 8-K) or,
if so indicated in the applicable Terms Agreement, the Company sells Notes to
the Agents pursuant to a Terms Agreement, the Company shall furnish or cause to
be furnished forthwith to the Agents and to the Agents' counsel a written
opinion of Philip A. Hewes, Esq., Senior Vice President/Legal of the Company or
Jeremiah M. Fitzgerald, Esq., Vice President and General Counsel of the Company,
or other counsel satisfactory to the Agents, dated the date of delivery of such
opinion, in form satisfactory to the Agents, of the same tenor as the opinion
referred to in Section 5(a) hereof but modified, as necessary, to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such opinion or, in lieu of such opinion, counsel last
furnishing such opinion to the Agents shall furnish the Agents with a letter to
the effect that the Agents may rely on such last opinion to the same extent as
though it was dated the date of such letter authorizing reliance (except that
statements in such last opinion shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of delivery
of such letter authorizing reliance); and
(d) Subsequent Delivery of Comfort Letters. Prior to the initial sale of
--------------------------------------
any of the Notes within any fiscal quarter, the Company shall cause KPMG Peat
Marwick LLP to furnish the Agents a letter, dated the date of such initial sale,
or the date of the filing of an amendment, supplement or document including or
incorporating by reference additional financial information in the Registration
Statement or the Prospectus; such letter shall be in form satisfactory to the
Agents, of the same tenor as the portions of the letter referred to in clauses
(i) and (ii) of Section 5(c) hereof but modified to relate to the Registration
Statement and Prospectus, as amended and supplemented to the date of such
letter, and of the same general tenor as the portions of the letter referred to
in clauses (iii) and (iv) of said Section 5(c) with such changes as may be
necessary to reflect changes in the financial statements and other information
derived from the accounting records of the Company; provided, however, that if
the Registration Statement or the Prospectus is amended or supplemented solely
to include financial information as of and for a fiscal quarter, KPMG Peat
Marwick LLP may limit the scope of such letter to the unaudited financial
statements included in such amendment or supplement unless any other information
included therein of an accounting, financial, or statistical nature is of such a
nature that, in the Agents' reasonable judgment, such letter should cover such
other information.
SECTION 7. INDEMNIFICATION.
---------------
(a) Indemnification of the Agents. The Company agrees to indemnify and
-----------------------------
hold harmless each of the Agents and each person, if any, who controls any Agent
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement, as originally filed (or any amendment thereto), or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus (if used within the period set
forth in Section 3(e) hereof and as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto), or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the
Company will not be liable in any such case to the extent that any such
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loss, claim, damage, liability or expense arises out of or is based upon
any untrue statement or omission or such alleged untrue statement or
omission (A) which has been made therein or omitted therefrom in reliance
upon and in conformity with written information furnished to the Company by
any Agent expressly for use in the registration statement as originally
filed (or any amendment thereto) or the prospectus as originally filed (or
any amendment or supplement thereto) or (B) which has been made or omitted
from the Statement of Eligibility of the Trustee on Form T-1, other than
any such untrue statement or omission or alleged untrue statement or
omission made therein or omitted therefrom in reliance upon information
furnished in writing to the Trustee by the Company for use therein; the
foregoing indemnification with respect to any preliminary prospectus shall
not inure to the benefit of any Agent from whom the person asserting any
such losses, claims, damages or liabilities purchased Notes, or any person
controlling such Agent, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such Agent to
such person, if such delivery is required by law, at or prior to the
written confirmation of the sale of such Notes to such person and if the
Prospectus (as so amended or supplemented) would have cured the defect
giving rise to such loss, claim, damage or liability;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission if such settlement is effected with
the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including the
fees and disbursements of counsel chosen by the Agents), reasonably
incurred in investigating, preparing or defending against any litigation,
or investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission
(except as made in reliance upon and in conformity with information
furnished by the Agents as aforesaid), to the extent that any such expense
is not paid under (i) or (ii) above.
Insofar as this indemnity may permit indemnification for liabilities under
the 1933 Act of any person who is a partner of an Agent or who controls an Agent
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
and who, at the date of this Agreement, is a director, officer or controlling
person of the Company, such indemnity agreement is subject to the undertaking of
the Company in the Registration Statement.
(b) Indemnification of Company. Each Agent severally agrees to indemnify
--------------------------
and hold the Company, its directors, each of its officers who signed the
Registration Statement as originally filed (or any amendment thereto), and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act, harmless from and against any and all
loss, liability, claim, damage and expense to the same extent described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in or omitted from the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to the Company by the
Agents expressly for use in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto).
(c) Tax Indemnity. The Company agrees to indemnify and hold harmless each
-------------
Agent against any documentary stamp or similar issue tax and any related
interest or penalties on the issue or sale of the Notes to the Agents which are
due in the United States of America, the United Kingdom or any other
jurisdiction.
(d) General. Promptly after receipt by an indemnified party under
-------
subsection (a) or (b) above of written notice of the commencement of any action
such indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the indemnifying
party in writing of the commencement thereof, and in the event that such
indemnified party shall not so notify the indemnifying party within 30 days
following receipt of any such notice by such indemnified party, the indemnifying
party shall have no further liability under such subdivision to such indemnified
party unless such indemnifying party shall have received other notice addressed
and delivered in the manner provided in Section 11 hereof of the commencement of
such action; but the omission so to notify the indemnifying
14
<PAGE>
party shall not relieve it from any liability which it may have to any
indemnified party otherwise than under such subsection. Any indemnified party or
any such controlling person shall have the right to employ separate counsel in
any such action and participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless (i) the employment of such counsel has been specifically authorized in
writing by the indemnifying party, (ii) the indemnifying party has failed to
assume the defense and employ counsel or (iii) the named parties to any such
action (including any impleaded parties) include both such indemnified party and
the indemnifying party and such indemnified party has been advised by such
counsel that there may be one or more legal defenses available to it which are
different from or additional to those available to the indemnifying party (in
which case the indemnifying party shall not have the right to assume the defense
of such action on behalf of such indemnified party, it being understood,
however, that the indemnifying party shall not, in connection with any one such
action or separate but substantially similar or related action in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys (in addition to local counsel) for all such indemnified parties, which
firm shall be designated in writing by you).
SECTION 8. CONTRIBUTION.
------------
If the indemnification provided for in Section 7 is unavailable to or
insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one hand and the
contributing Agent on the other from the offering of the Notes to which such
loss, claim, damage or liability (or action in respect thereof) relates. If,
however, the indemnification provided for in Section 7 is unavailable to or
insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to
therein, if the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under Section 7(d) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company on the one hand and the contributing Agent on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the contributing Agent on the other shall be
deemed to be in the same proportion as the total net proceeds from the sale of
Notes (before deducting expenses) received by the Company bear to the total
commissions or discounts received by the contributing Agent in respect thereof
(or, in the case of Notes sold pursuant to a Terms Agreement, the aggregate
commissions that would have been received by such Agent if such commissions had
been payable). The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading relates to information supplied by the Company on the one hand or by
the contributing Agent on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the contributing Agent agree that it would not be
just and equitable if contribution pursuant to this Section 8 were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 8.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this Section 8 shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 8, no Agent shall be required to contribute any amount in excess of the
amount by which the total price at which the Notes purchased by or through such
Agent were sold exceeds the amount of any damages which such Agent has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who is not guilty of such fraudulent
misrepresentation. For purposes of this Section, each person, if any, who
controls an Agent within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the same rights to contribution as such Agent, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. Any amounts to be paid a
party pursuant to this Section 8 for losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this
15
<PAGE>
Section 8 shall be paid as incurred; provided, however, that amounts so paid
shall be returned to the paying party in the event that it is ultimately
determined that the party that received payment was not entitled to such
payment.
SECTION 9. INDEMNIFICATIONS, CONTRIBUTIONS, REPRESENTATIONS, WARRANTIES AND
----------------------------------------------------------------
AGREEMENTS TO SURVIVE DELIVERY.
------------------------------
The indemnification and contribution agreements contained in Sections 7 and
8 and the representations, warranties and agreements contained in this Agreement
or any Terms Agreement, or contained in certificates of officers of the Company
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Agents or any
controlling person, or by or on behalf of the Company, and shall survive each
delivery of and payment of any of the Notes.
SECTION 10. TERMINATION.
-----------
(a) Termination of this Agreement. This Agreement (excluding any Terms
-----------------------------
Agreement) may be terminated for any reason, at any time by either the Company
as to any Agent or one of the Agents (with respect to such Agent), upon the
giving of 3 days written notice of such termination to the other parties hereto.
(b) Termination of a Terms Agreement. Each Agent named in a Terms
--------------------------------
Agreement may terminate such Terms Agreement, immediately upon notice to the
Company, at any time at or prior to the Settlement Date relating thereto (i) if
there has been, since the date of such Terms Agreement or since the respective
dates as of which information is given in the Registration Statement, any
material adverse change in, or any material development known to management
which is likely to result in a material adverse change in, the condition,
financial or otherwise, of the Company and its subsidiaries considered as one
enterprise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
outbreak or material escalation of hostilities or other calamity or crisis the
effect of which on the financial markets of the United States is such as to make
it, in such Agent's reasonable judgment, impracticable to market the Notes or
enforce contracts for the sale of the Notes, or (iii) if trading in the Common
Stock of the Company has been suspended by the Commission or a national
securities exchange, or if trading generally on either the American Stock
Exchange or the New York Stock Exchange has been suspended, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices for
securities have been required, by either of said exchanges or by order of the
Commission or any other governmental authority, or if a banking moratorium in
the United States generally or in the City or the State of New York has been
declared by either Federal or New York authorities or if a banking moratorium
has been declared by the relevant authorities in the country or countries of
origin of any foreign currency or currencies underlying the Notes, or (iv) if
the rating assigned by any nationally recognized securities rating agency to any
debt securities or other obligations of the Company has been lowered since the
date of the applicable Terms Agreement or if any such rating agency shall have
publicly announced that it has placed any debt securities or other obligations
of the Company on what is commonly termed a "watch list" for possible
downgrading, or (v) if there shall have come to such Agent's attention any facts
that would cause the Agent to believe that the Prospectus, at the time it was
required to be delivered to a purchaser of Notes, contained an untrue statement
of a material fact or omitted to state a material fact necessary in order to
make the statements therein, in light of the circumstances existing at the time
of such delivery, not misleading.
(c) General. In the event of any such termination, no party will have any
-------
liability to any other party hereto, except that (i) each Agent shall be
entitled to any commissions earned in accordance with the third paragraph of
Section 2(a) hereof, (ii) if at the time of termination (a) either an Agent
shall own any Notes purchased pursuant to a Terms Agreement with the intention
of reselling them or (b) an offer to purchase any of the Notes has been accepted
by the Company but the time of delivery to the purchaser or his agent of the
Note or Notes relating thereto has not occurred, the covenants set forth in
Sections 3 and 6 hereof shall remain in effect until such Notes are so resold or
delivered, as the case may be, and (iii) the covenant set forth in Section 3(g)
hereof, the provisions of Section 4 hereof, the indemnity and contribution
agreements set forth in Sections 7 and 8 hereof, and the provisions of Sections
9 and 13 hereof shall remain in effect.
16
<PAGE>
In the event of termination with respect to any Agent this Agreement shall
remain in full force and effect with respect to any Agent as to which such
termination has not occurred.
SECTION 11. NOTICES.
-------
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to the Agents shall be directed to Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, North Tower,
10th Floor, 250 Vesey Street, New York, New York 10281-1310, attention of MTN
Product Management, telecopy: (212)449-2234; NationsBanc Montgomery Securities
LLC, 2800 Sears Tower, Chicago, Illinois 60606, attention: Keith Harmon;
Salomon Smith Barney Inc., 8700 Sears Tower, Chicago, Illinois 60606, attention
of Anne Clarke; and Warburg Dillon Read LLC, 677 Washington Boulevard, Stamford,
CT 06901, attention of Bruce Widas; notices to the Company shall be directed to
it at Comdisco, Inc., 6111 North River Road, Rosemont, Illinois 60018, attention
of Edward A. Pacewicz, Vice President and Treasurer, with a copy to the General
Counsel at the same address.
SECTION 12. PARTIES.
-------
This Agreement and any Terms Agreement shall inure to the benefit of and be
binding upon each of the Agents and the Company and their respective successors.
Nothing expressed or mentioned in this Agreement or any Terms Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the parties hereto and their respective successors and the controlling
persons and officers and directors referred to in Section 7 and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any Terms Agreement or any provision herein or
therein contained. This Agreement and any Terms Agreement and all conditions
and provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the parties hereto and their respective successors and said
controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation.
No purchaser of Notes shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. GOVERNING LAW.
-------------
This Agreement and any Terms Agreement and the rights and obligations of
the parties created hereby shall be governed by the laws of the State of New
York applicable to agreements made and to be performed in such state. Any suit,
action or proceeding brought by the Company against the Agents in connection
with, or arising under, this Agreement shall be brought in the state or federal
court of appropriate jurisdiction located in either the Borough of Manhattan,
the City of New York, New York or the City of Chicago, Illinois.
SECTION 14. COUNTERPARTS.
------------
This Agreement may be executed in one or more counterparts, and when a
counterpart has been executed by each party hereto all such counterparts taken
together shall constitute one and the same Agreement.
17
<PAGE>
[SIGNATURE PAGE FOR JANUARY 19, 1999 DISTRIBUTION AGREEMENT]
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument along with all counterparts will become a binding agreement between
the Agents and the Company in accordance with its terms.
Very truly yours,
COMDISCO, INC.
By: /s/ Edward A. Pacewicz
--------------------------
Its: Authorized Signatory
CONFIRMED AND ACCEPTED, as of the date
first above written:
MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED SALOMON SMITH BARNEY INC.
By: /s/ Parker A. Weil By: /s/ Anne Clarke Wolff
-------------------------- --------------------------
Its: Authorized Signatory Its: Authorized Signatory
NATIONSBANC MONTGOMERY SECURITIES LLC WARBURG DILLON READ LLC
By: /s/ Lynne McConnell By: /s/ Bruce J. Widas
-------------------------- --------------------------
Its: Authorized Signatory Its: Authorized Signatory
18
<PAGE>
EXHIBIT A
$___,000,000
COMDISCO, INC.
Medium-Term Notes
TERMS AGREEMENT
_______, 19__
[MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281-1310]
[NATIONSBANC MONTGOMERY SECURITIES LLC
2800 Sears Tower
Chicago, Illinois 60606]
[SALOMON SMITH BARNEY INC.
8700 Sears Tower
Chicago, Illinois 60606]
[WARBURG DILLON READ LLC
677 Washington Boulevard
Stamford, CT 06901]
Attention:_____________________
Re: Distribution Agreement dated January 19, 1999
The undersigned agrees to purchase the following principal amount of
Medium-Term Notes, Series H:
$______
Specified Currency:
Principal:
Interest:
Aggregate principal amount U. S. $ other
Price to Public:
Provisions relating to redemption, if any:
Provisions relating to repayment, if any:
IF FIXED RATE NOTES:
Interest Rate:
Maturity:
19
<PAGE>
Amortization Schedule:
IF FLOATING RATE NOTES:
Base Rate:
Initial Interest Date:
Interest Determination Date:
Interest Reset Date:
Interest Reset Period:
Record Date:
Interest Payment Dates:
Index Maturity:
Maturity:
Maximum Interest Rate:
Minimum Interest Rate:
Spread:
Spread Multiplier:
Indexed Currency or Currencies (if any):
Settlement Date and Time:
Place of Delivery:
Calculation Agent:
Form of Note (Book Entry or Certificated)
Method of and Specified Funds for Payment of
Purchase Price: By certified or official
bank check or checks, payable to the order of
the Company, in immediately available funds
By wire transfer to a bank account specified
by the Company in next day immediately
available funds
Provisions relating to underwriter default,
if any:
Other termination provisions, if any:
Exceptions, if any, to Section 3(k) of the Distribution Agreement:
20
<PAGE>
[The certificate referred to in Section 6(b) of the Distribution Agreement,
the opinions referred to in Section 6(c) of the Distribution Agreement and the
accountants' letter referred to in Section 6(d) of the Distribution Agreement
will be required.]
[MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated]
[NATIONSBANC MONTGOMERY SECURITIES LLC]
[SALOMON SMITH BARNEY INC.]
[WARBURG DILLON READ LLC]
By:___________________________________
Title:
Accepted:
COMDISCO, INC.
By:_____________________________
Title:
21
<PAGE>
EXHIBIT B
Commission Schedule for Agency Transactions
-------------------------------------------
Term Commission Rate*
---- ---------------
From 9 months but less than 1 year .125%
From 1 year but less than 18 months .150%
From 18 months but less than 2 years .200%
From 2 years but less than 3 years .250%
From 3 years but less than 4 years .350%
From 4 years but less than 5 years .450%
From 5 years but less than 6 years .500%
From 6 years but less than 7 years .550%
From 7 years but less than 8 years .600%
From 8 years but less than 9 years .600%
From 9 years but less than 10 years .600%
From 10 years to 15 years .625%
*Commission rates for Notes denominated in a foreign currency vary from the
commission rate schedule set forth above, with respect to Notes with the
following maturities:
From 8 years but less than 9 years .650%
From 9 years but less than 10 years .700%
From 10 years to 15 years .750%
Notes sold to an Agent as principal will be sold at a discount negotiated
at the time of sale.
22
<PAGE>
EXHIBIT 4.1
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
COMDISCO, INC.
To
THE FUJI BANK AND TRUST COMPANY, AS TRUSTEE
___________________
INDENTURE
___________________
Dated as of December 15, 1998
Senior Debt Securities
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
COMDISCO, INC.
Reconciliation and tie between Trust Indenture Act of 1939, as
amended and Indenture dated as of December 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................................................................. 3
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 $............................................................... 4
Event of Default........................................................... 4
Holder..................................................................... 4
Indenture.................................................................. 4
Interest Payment Date...................................................... 4
</TABLE>
-i-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
Lien....................................................................... 4
Maturity................................................................... 5
Officers' Certificate...................................................... 5
Opinion of Counsel......................................................... 5
Original Issue Discount Security........................................... 5
Outstanding................................................................ 5
Paying Agent............................................................... 6
Person..................................................................... 6
Place of Payment........................................................... 6
Predecessor Security....................................................... 6
Property................................................................... 6
Redemption Date............................................................ 6
Redemption Price........................................................... 6
Registered Security........................................................ 6
Regular Record Date........................................................ 7
Responsible Officer........................................................ 7
Security or Securities..................................................... 7
Security Register and Security Registrar................................... 7
Special Record Date........................................................ 7
Stated Maturity............................................................ 7
Subsidiary................................................................. 7
Trustee.................................................................... 7
Trust Indenture Act........................................................ 8
United States.............................................................. 8
United States Alien........................................................ 8
Vice President............................................................. 8
Voting Stock............................................................... 8
SECTION 102. Compliance Certificates and Opinions......................... 8
SECTION 103. Form of Documents Delivered to Trustee....................... 9
SECTION 104. Acts of Holders.............................................. 9
SECTION 105. Notices, etc., to Trustee and Company........................ 11
</TABLE>
-ii-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 106. Notice to Holders of Securities; Waiver...................... 11
SECTION 107. Language of Notices, etc..................................... 12
SECTION 108. Conflict with Trust Indenture Act............................ 12
SECTION 109. Effect of Headings and Table of Contents..................... 12
SECTION 110. Successors and Assigns....................................... 13
SECTION 111. Separability Clause.......................................... 13
SECTION 112. Benefits of Indenture........................................ 13
SECTION 113. Governing Law................................................ 13
SECTION 114. Legal Holidays............................................... 13
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.............................................. 13
SECTION 202. Form of Trustee's Certificate of Authentication.............. 14
SECTION 203. Securities in Global Form.................................... 14
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series......................... 15
SECTION 302. Denominations................................................ 17
SECTION 303. Execution, Authentication, Delivery and Dating............... 18
SECTION 304. Temporary Securities......................................... 20
SECTION 305. Registration, Transfer and Exchange.......................... 21
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities............. 24
SECTION 307. Payment of Interest; Interest Rights Preserved............... 25
SECTION 308. Persons Deemed Owners........................................ 26
SECTION 309. Cancellation................................................. 27
SECTION 310. Computation of Interest...................................... 27
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture...................... 27
SECTION 402. Application of Trust Money................................... 29
</TABLE>
-iii-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default............................................ 29
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............................. 32
SECTION 505. Trustee May Enforce Claims without Possession of
Securities or Coupons........................................ 33
SECTION 506. Application of Money Collected............................... 33
SECTION 507. Limitation on Suits.......................................... 33
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest......................................... 34
SECTION 509. Restoration of Rights and Remedies........................... 34
SECTION 510. Rights and Remedies Cumulative............................... 34
SECTION 511. Delay or Omission Not Waiver................................. 34
SECTION 512. Control by Holders of Securities............................. 35
SECTION 513. Waiver of Past Defaults...................................... 35
SECTION 514. Undertaking for Costs........................................ 35
SECTION 515. Waiver of Stay or Extension Laws............................. 36
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.......................... 36
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.......................................... 38
SECTION 606. Money Held in Trust.......................................... 38
SECTION 607. Compensation and Reimbursement............................... 38
SECTION 608. Corporate Trustee Required; Eligibility...................... 39
SECTION 609. Resignation and Removal; Appointment of Successor............ 39
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............ 42
</TABLE>
-iv-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 613. Appointment of Authenticating Agent.......................... 42
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.... 44
SECTION 702. Preservation of Information; Communications to Holders....... 44
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................... 47
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.............. 49
SECTION 903. Execution of Supplemental Indentures......................... 50
SECTION 904. Effect of Supplemental Indentures............................ 50
SECTION 905. Conformity with Trust Indenture Act.......................... 50
SECTION 906. Reference in Securities to Supplemental Indenture............ 50
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and Interest.......... 50
SECTION 1002. Maintenance of Office or Agency.............................. 51
SECTION 1003. Money for Securities Payments To Be Held in Trust............ 52
SECTION 1004. Additional Amounts........................................... 53
SECTION 1005. Statement as to Compliance; Notice of Certain Defaults....... 53
SECTION 1006. Waiver of Certain Covenants.................................. 54
</TABLE>
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
-v-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 1101. Applicability of Article..................................... 54
SECTION 1102. Election to Redeem; Notice to Trustee........................ 54
SECTION 1103. Selection by Trustee of Securities to be Redeemed............ 54
SECTION 1104. Notice of Redemption......................................... 55
SECTION 1105. Deposit of Redemption Price.................................. 56
SECTION 1106. Securities Payable on Redemption Date........................ 56
SECTION 1107. Securities Redeemed in Part.................................. 57
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article..................................... 57
SECTION 1202. Satisfaction of Sinking Fund Payments With Securities........ 57
SECTION 1203. Redemption of Securities for Sinking Fund.................... 58
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.................... 59
SECTION 1402. Call, Notice and Place of Meetings........................... 59
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.............. 61
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
SECTION 1501. Securities in Foreign Currencies............................. 61
SECTION 1502. Payments in Substitute Currencies............................ 62
</TABLE>
-vi-
<PAGE>
INDENTURE, dated as of December 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.
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"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
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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.
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"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)
898-2558 (Attn: Corporate Trust Administration) 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 provisions 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 Authenticating 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.
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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
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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.
* * * * *
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This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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[SIGNATURE PAGE FOR DECEMBER 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: /s/ Edward A. Pacewicz
------------------------------------------------
Edward A. Pacewicz, Vice President and Treasurer
ATTEST:
/s/ Ronald I. Rapp
- ------------------
THE FUJI BANK AND TRUST COMPANY
[SEAL] By: /s/ Sharon Chase Moore
----------------------
Its: Vice President
-------------------
ATTEST:
/s/ Arika Morikawa
- ------------------
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EXHIBIT 4.2
-----------
IF THE REGISTERED OWNER OF THIS NOTE (AS INDICATED BELOW) IS THE DEPOSITORY
TRUST COMPANY OR A NOMINEE OF THE DEPOSITORY TRUST COMPANY, THIS NOTE IS A
GLOBAL SECURITY AND THE FOLLOWING LEGENDS APPLY:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY"), TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT IS
MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY
TO A NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "YIELD TO MATURITY" AND "INITIAL
ACCRUAL PERIOD" (COMPUTED UNDER THE APPROXIMATE METHOD) BELOW WILL BE COMPLETED
SOLELY FOR THE PURPOSES OF APPLYING THE FEDERAL INCOME TAX ORIGINAL ISSUE
DISCOUNT RULES.
REGISTERED CUSIP NO. PRINCIPAL AMOUNT
NO.FXR- $
COMDISCO, INC.
MEDIUM-TERM NOTE, SERIES H
(FIXED RATE)
ORIGINAL ISSUE DATE: INTEREST RATE: STATED MATURITY DATE:
INTEREST PAYMENT DATES REGULAR RECORD DATES
(IF OTHER THAN FEBRUARY 15 AND AUGUST 15): (IF OTHER THAN
FEBRUARY 1 AND
AUGUST 1):
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
RATE: PERCENTAGE: PERCENTAGE REDUCTION:
OPTIONAL REPAYMENT DATE(S):
<PAGE>
DAY COUNT CONVENTION
[ ] 30/360 FOR THE PERIOD FROM TO
[ ] ACTUAL/360 FOR THE PERIOD FROM TO
[ ] ACTUAL/ACTUAL FOR THE PERIOD FROM TO
[ ] IF BOX IS CHECKED, THE SPECIFIED CURRENCY OF THE NOTE IS OTHER THAN U.S.
DOLLARS AND INFORMATION REGARDING THE SPECIFIED CURRENCY, AUTHORIZED
DENOMINATIONS AND EXCHANGE RATE AGENT IS PROVIDED IN AN ADDENDUM.
[ ] IF BOX IS CHECKED, THE NOTE IS AN AMORTIZING NOTE AND INFORMATION
REGARDING AMORTIZING PAYMENT DATES AND AMORTIZING PAYMENT AMOUNTS IS
PROVIDED IN AN ADDENDUM.
ADDENDUM ATTACHED: ORIGINAL ISSUE DISCOUNT ("OID"):
[ ] YES [ ] YES
[ ] NO [ ] NO
TOTAL AMOUNT OF OID:
YIELD TO MATURITY:
INITIAL ACCRUAL PERIOD:
OTHER/ADDITIONAL PROVISIONS:
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<PAGE>
Comdisco, Inc., a Delaware corporation ("Issuer" or the "Company", which
terms include any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to __________________________,
or registered assigns, the principal amount stated above, on the Stated Maturity
Date specified above (except to the extent redeemed or repaid by the Company
prior to the Stated Maturity Date), and to pay interest thereon at the Interest
Rate per annum specified above, until the principal hereof is paid or duly made
available for payment. Reference herein to "this Note", "hereof", "herein" and
comparable terms shall include an Addendum hereto if an Addendum is specified
above.
The Company will pay interest on each Interest Payment Date specified
above, commencing on the first Interest Payment Date next succeeding the
Original Issue Date specified above, and on the Stated Maturity Date or any
Redemption Date or Optional Repayment Date (as defined below) (the date of each
such Stated Maturity Date, Redemption Date and Optional Repayment Date and the
date on which principal or an installment of principal is due and payable by
declaration of acceleration pursuant to the Indenture, being referred to
hereinafter as the "Maturity Date" with respect to principal payable on such
date); provided, however, that if the Original Issue Date occurs between a
-------- -------
Regular Record Date (as defined below) and the next succeeding Interest Payment
Date, interest payments will commence on the Interest Payment Date immediately
following the next succeeding Regular Record Date to the registered Holder on
such next succeeding Regular Record Date. Except as provided above, interest
payments will be made on the Interest Payment Dates shown above. Unless
otherwise specified above, the "Regular Record Date" with respect to any
Interest Payment Date shall be the February 1 or August 1 (whether or not a
Business Day), as the case may be, immediately preceding such Interest Payment
Date. Interest on this Note will accrue from and including the most recent
Interest Payment Date to which interest has been paid or duly provided for or,
if no interest has been paid or duly provided for, from and including the
Original Issue Date specified above, to but excluding such Interest Payment Date
or Maturity Date as the case may be. In the case where the Interest Payment
Date or the Maturity Date falls on a day which is not a Business Day, the
related payment of principal, premium, if any and/or interest will be made on
the next succeeding Business Day with the same force and effect as if made on
such Interest Payment Date or Maturity Date, as the case may be, and no interest
shall accrue on the amount so payable for the period from and after the Interest
Payment Date or Maturity Date, as the case may be. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the Person in whose name this Note (or one
or more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such Interest Payment Date. Any such interest which is
payable, but not punctually paid or duly provided for on any Interest Payment
Date (herein called "Defaulted Interest"), shall forthwith cease to be payable
to the registered Holder on such Regular Record Date, and may either be paid to
the Person in whose name this Note (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to the Holder of this Note not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner, all as more
fully provided in the Indenture. Interest payable at the Maturity Date will be
payable to the Person to whom the principal hereof shall be payable.
Payment of the principal of, premium, if any, and/or interest on this Note
on a Maturity Date will be made in immediately available funds upon surrender of
this Note at the office of the Trustee maintained for that purpose in The City
of New York, in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts.
Payment of interest other than interest due on a Maturity Date will be made by
check mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register at the close of Business on the Regular Record
Date immediately preceding the applicable Interest Payment Date or, at the
option of the registered Holder hereof, to such other place in the United States
of America as the registered Holder hereof shall designate to the Trustee in
writing. Notwithstanding the foregoing, the Holder of $10,000,000 or more in
aggregate principal amount of the Notes having the same Interest Payment Date
shall be entitled to receive interest payments (other than on a Maturity Date)
by wire transfer of immediately available funds if appropriate wire transfer
instructions have been received in writing by the Trustee at least 16 days prior
to the applicable Interest Payment Date. Said wire instructions, upon receipt
by the Trustee, shall remain in effect until revoked by such Holder.
-3-
<PAGE>
Notwithstanding anything else contained herein, if this Note is a Global
Security as specified on the face hereof and is held in book-entry form through
the facilities of the Depositary, payments on this Note will be made to the
Depositary or its nominee in accordance with the arrangements then in effect
between the Trustee and the Depositary.
This Note is one of a duly authorized series of Securities (hereinafter
called the "Securities") of the Company, which series of the Securities is
limited to an aggregate principal amount of not more than $600,000,000 (or the
equivalent thereof, determined as of the respective dates of issuance, in any
other currency or currencies) (the issue price of any original issue discount
Notes being treated as the principal amount thereof), designated as its Medium-
Term Notes, Series H (the "Notes"); provided, however, that the foregoing limit
may be increased by the Company.
The Notes are issued and to be issued under an Indenture, dated as of
December 15, 1998 (the "Indenture"), between the Company and The Fuji Bank and
Trust Company to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee (as
defined below) and the Holders of the Notes and the terms upon which the Notes
are to be authenticated and delivered. The Fuji Bank and Trust Company shall
act as Trustee with respect to the Notes (herein called the "Trustee", which
term includes any successor Trustee with respect to the Notes, under the
Indenture). The terms of individual Notes may vary with respect to interest
rates or interest rate formulas, issue dates, maturity, redemption, repayment
currency of payment and otherwise.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiples thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes denominated as
authorized, as requested by the Holder surrendering the same.
Except as otherwise provided in the Indenture and as set forth below, the
Notes will be issued in global form only, registered in the name of the
Depositary or its nominee and ownership of the Notes shall be maintained in
book-entry form by the Depositary for the accounts of participating
organizations of the Depositary. If this Note is a Global Security, this Note
is exchangeable only if (i) the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for this Global Security and a
successor depositary is not appointed by the Company within 60 days, (ii) at any
time the Depositary ceases to be clearing agency registered under the Securities
Exchange Act of 1934, as amended, (iii) the Company in its sole discretion
determines that this Global Security shall be exchangeable for definitive
Securities of this series in registered form or (iv) an Event of Default with
respect to the Notes represented hereby has occurred and is continuing.
This Note is not subject to any sinking fund and, unless otherwise provided
above in accordance with the provisions of the following paragraphs, is not
redeemable or repayable prior to the Stated Maturity Date.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the place, at the respective times, at the rate, and in the coin or currency
herein prescribed.
If so provided above, this Note may be redeemed by the Company on any date
on or after the Initial Redemption Date, if any, specified above. If no Initial
Redemption Date is set forth above, this Note may not be redeemed prior to the
Stated Maturity Date. On and after the Initial Redemption Date, if any, this
Note may be redeemed at any time in whole or from time to time in part in
increments of $1,000 (unless otherwise specified above) at the option of the
Company at the applicable Redemption Price (as defined below), together with
interest thereon payable to the date of redemption (each such date, a
"Redemption Date"), on written notice given not more than 60 nor less than 30
days prior to the Redemption Date. In the event of redemption of this Note in
part only, a new Note for the unredeemed portion hereof shall be issued in the
name of the Holder hereof upon the surrender hereof.
-4-
<PAGE>
Unless otherwise specified above, the "Redemption Price" shall initially be
the Initial Redemption Percentage, specified above, of the principal amount of
this Note to be redeemed and, if greater than 100%, shall decline at each
anniversary of the Initial Redemption Date, shown above, by the Annual
Redemption Percentage Reduction, if any, specified above, of the principal
amount to be redeemed until the Redemption Price is 100% of such principal
amount.
This Note may be subject to repayment at the option of the Holder on the
Optional Repayment Date(s), if any, indicated above. If no Optional Repayment
Date(s) are set forth above, this Note is not subject to repayment at the option
of the Holder hereof prior to the Stated Maturity Date. On any Optional
Repayment Date this Note shall be repayable in whole or in part in increments of
$1,000 (unless otherwise specified above) at the option of the Holder hereof at
a repayment price equal to 100% of the principal amount to be repaid, together
with accrued but unpaid interest, if any, hereon at the applicable rate payable
to the relevant Optional Repayment Date. For this Note to be repaid in whole or
in part at the option of the Holder hereof, this Note must be received, with the
form entitled "Option To Elect Repayment" below duly completed, by the Trustee
at The Fuji Bank and Trust Company, Two World Trade Center, New York, New York
10048, Attention: Corporate Trust Administration, or such address which the
Company shall from time to time notify the Holders of the Notes, not more than
60 nor less than 20 days prior to an Optional Repayment Date. Exercise of such
repayment option by the Holder hereof shall be irrevocable. In the event of
repayment of this Note in part only, a new Note for the unrepaid portion hereof
shall be issued in the name of the Holder hereof upon the surrender hereof.
Interest Payments on this Note shall include interest accrued from and
including the Original Issue Date, indicated above, or the most recent date to
which interest has been paid or duly provided for, to but excluding the related
Interest Payment Date or the Maturity Date, as the case may be. Interest
payments for this Note shall be computed and paid on the basis of a 360-day year
of twelve 30-day months if the Day Count Convention specified above is "30/360"
for the period specified thereunder, on the basis of the actual number of days
in the related month and a 360-day year if the Day Count Convention specified
above is "Actual/360" for the period specified thereunder or on the basis of the
actual number of days in the related year and month if the Day Count Convention
specified above is "Actual/Actual" for the period specified thereunder.
As used herein, "Business Day" means, unless otherwise specified above, any
day other than a Saturday or Sunday, that is neither a legal holiday nor a day
on which banking institutions are authorized or required by law, regulation or
executive order to close in The City of New York.
Any provision contained herein with respect to the calculation of the rate
of interest applicable to this Note, its Interest Payment Dates or any other
matter relating hereto may be modified as specified in an Addendum relating
hereto if so specified above.
The Indenture contains provisions permitting the Company and the Trustee,
with the written consent of Holders of a majority in principal amount of the
Notes, to enter into a supplemental indenture to add any provisions to or to
change or eliminate any provisions of the Indenture or of any supplemental
indenture or to modify, in each case in any manner not covered by provisions in
the Indenture relating to amendments and modifications without the consent of
Holders, the rights of such Holders. However, without the consent of each
Holder affected thereby, an amendment or modification may not: (a) change the
Maturity Date or any Interest Payment Date or the redemption price; (b) reduce
the principal amount of, or the interest on, any Note or reduce the amount of
principal of any Original Issue Discount Note which could be declared due and
payable upon a declaration of acceleration prior to the Maturity Date; (c)
change the place, method of calculation of interest or currency of any payment
of principal or interest on any Note (except as otherwise provided in the
Indenture); (d) impair the right to institute suit for the enforcement of any
payment on or with respect to any Note; or (e) reduce the percentage in
principal amount of Notes, the consent of whose Holders is required for any
supplemental indenture or the consent of whose Holders is required to waive any
compliance with certain provisions of, or past default under, the Indenture, or
reduce the requirements for quorum or voting provided by the Indenture. Except
with respect to certain fundamental provisions, the Holders of at least a
majority in principal amount of Notes may, with respect to the Notes, waive past
defaults under the Indenture and waive compliance by the Company with certain
provisions of the Indenture. The Indenture also contains provisions permitting
the Company and the
-5-
<PAGE>
Trustee to effect certain modifications and amendments without the consent of
the Holders to cure ambiguities, correct inconsistencies and make other changes,
provided such modifications and amendments do not adversely affect the interest
of the Holders in any material respect.
If an Event of Default with respect to Notes should occur and be
continuing, the principal amount of the Notes and interest accrued thereon may,
by written notice to the Company, be declared due and payable by the Trustee or
the Holders of not less than 25% in principal amount of all outstanding Notes.
Such declaration of acceleration may, if all payments due have been made and all
Events of Default have been remedied or waived, be rescinded by the Holders of a
majority in principal amount of all outstanding Notes.
Any Event of Default may be waived by the Holders of a majority in
principal amount of all outstanding Notes, except that default in payment of the
principal, premium, or interest on any Note, or in respect of a covenant under
the Indenture which cannot be modified absent the consent of the Holders of each
outstanding Note, cannot be waived.
As provided in and subject to the provisions of the Indenture, the Holder
of this Note shall not have the right to institute any proceeding with respect
to the Indenture or for the appointment of a receiver or trustee or for any
other remedy thereunder, unless: (i) such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Notes; (ii) the Holders of not less than 25% in principal amount of the Notes at
the time Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity; (iii) the Trustee shall not have received during
such 60-day period from the Holders of a majority in principal amount of the
Notes at the time Outstanding a direction inconsistent with such request; and
(iv) the Trustee shall have failed to institute any such proceeding, for 60 days
after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder of this Note for the
enforcement of any payment of principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Note or the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional to pay the principal of and interest on this Note at the
place, at the respective times, at the rate and in the coin or currency herein
prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note may be registered on the Security Register of
the Company, upon surrender of this Note for registration of transfer at the
office or agency of the Company in The City of New York, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or by its
attorney duly authorized in writing, and thereupon one or more new Notes of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
No service charge shall be made for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary. The
Trustee shall not be required to make any transfers, registrations or exchanges
of this Note for a period of fifteen (15) days preceding any Interest Payment
Date.
The Trustee has been appointed Registrar for the Notes, and the Company
will cause the Trustee to maintain at its office in the City of New York a
register for the registration and transfer of Notes. So long as this Note shall
be outstanding, the Company will maintain an office or agency for the payment of
the principal and interest on this Note as herein provided in The City of New
York, State of New York, United States of America, and an office or agency in
The City of New York for the registration, transfer and exchange as aforesaid of
the Notes. The Company may designate other agencies for the payment of said
principal and interest at such place or
-6-
<PAGE>
places (subject to applicable laws and regulations) as the Company may decide.
The Company shall keep the Trustee advised of the names and locations of such
agencies, if any are so designated.
Any action by the Holder of this Note shall bind all future Holders of this
Note, and of any Note issued in exchange or substitution herefor or in place
hereof, in respect of anything done or permitted by the Company or by the
Trustee in pursuance of such action.
No recourse under or upon any covenant contained in this Note or because of
the creation of the indebtedness represented hereby, shall be had against any
official or other representative, past, present or future, as such, of the
Company whether by virtue of any statute or rule of law or by the enforcement of
any assessment or penalty or otherwise, it being expressly agreed and understood
that this Note is solely the obligation of the Company and that no personal
liability whatever shall attach to or be incurred by any such officials or other
representatives, as such, because of the execution of this Note. Each Holder,
by accepting this Note, waives and releases all such liability. The waiver and
release are part of the consideration for the issue of this Note.
This Note is unsecured and ranks pari passu with all other unsecured and
---- -----
unsubordinated indebtedness of the Company.
This Note shall be governed by and construed in accordance with the laws of
the State of New York.
Unless the certificate of authentication hereon has been executed by or on
behalf of The Fuji Bank and Trust Company, the Trustee for this Note under the
Indenture, or its successor thereunder, by the manual signature of one of its
authorized officers, this Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
Capitalized terms used herein without definition which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
-7-
<PAGE>
_________________
IN WITNESS WHEREOF, Comdisco, Inc. has caused this Note to be signed
manually or by facsimile, by its duly authorized officers, under its corporate
seal (which may be printed, engraved or otherwise reproduced hereon by facsimile
or otherwise).
DATED:________________
COMDISCO, INC.
By:_____________________________________
President and Chief Executive Officer
[SEAL]
Attest:
______________________________
Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series described herein and referred
to in the within-mentioned Indenture.
THE FUJI BANK AND TRUST COMPANY,
AS TRUSTEE
By:___________________________
Authorized Signatory
-8-
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the Company
to repay this Note (or portion hereof specified below) pursuant to its terms at
a price equal to the principal amount hereof, together with interest to the
repayment date, to the undersigned at
_____________________________________________________________________________
_____________________________________________________________________________
(Please print or typewrite name and address
including postal zip code of the undersigned)
For this Note to be repaid, the Trustee must receive at The Fuji Bank and
Trust Company, Two World Trade Center, New York, New York 10048, Attention:
Corporate Trust Administration or at such other place or places of which the
Company shall from time to time notify the Holder of this Note, not more than 60
nor less than 20 days prior to an Optional Repayment Date, if any, shown on the
face of this Note, this Note with this "Option to Elect Repayment" form duly
completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of $1,000 unless otherwise
specified in the Note) which the Holder elects to have repaid and specify the
authorized denomination or denominations of the Notes to be issued to the Holder
for the portion of this Note not being repaid (in the absence of any such
specification, one such Note will be issued for the portion not being repaid):
$____________________________ ______________________________________
NOTICE: The signature on this Option to
Elect Repayment must correspond with the
name as written upon the face of this
Note in every particular, without
alteration or enlargement or any change
whatever.
Date: ___________________________
-9-
<PAGE>
ASSIGNMENT/TRANSFER FORM
FOR VALUE RECEIVED the undersigned required registered Holder hereby
sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
___________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address
including postal zip code of assignee)
________________________________________________________________________________
_______________________________ the within Note and all rights thereunder,
hereby irrevocably constituting and appointing _________________________________
________________________________________________________________________________
____________________________________________________ attorney to transfer said
Note on the books of the Company, with full power of substitution in the
premises.
Date_________________________ Signature______________________________
NOTICE: The signature on this Assignment
must correspond with the name as written
upon the face of this Note in every
particular, without alteration or
enlargement or any change whatever.
-10-
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as through they were written out in full
according to applicable laws or regulations.
TEN COM--as tenants in common
UNIF GIFT MIN ACT--__________________ Custodian_____________________
(Cust) (Minor)
Under Uniform Gifts to Minors Act
_________________________________
(State)
TEN ENT--as tenants by the entireties
JT TEN--as joint tenants with right of survivorship
and not as tenants in common
Additional abbreviations may also be used though not in the above list.
-11-
<PAGE>
EXHIBIT 4.3
-----------
IF THE REGISTERED OWNER OF THIS NOTE (AS INDICATED BELOW) IS THE DEPOSITORY
TRUST COMPANY OR A NOMINEE OF THE DEPOSITORY TRUST COMPANY, THIS SECURITY IS A
GLOBAL NOTE AND THE FOLLOWING LEGENDS APPLY:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY"), TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT IS
MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY
TO A NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID", "YIELD TO MATURITY" AND "INITIAL
ACCRUAL PERIOD" (COMPUTED UNDER THE APPROXIMATE METHOD) BELOW WILL BE COMPLETED
SOLELY FOR THE PURPOSES OF APPLYING THE FEDERAL INCOME TAX ORIGINAL ISSUE
DISCOUNT RULES.
REGISTERED CUSIP NO. PRINCIPAL AMOUNT:
NO. FLR- $
COMDISCO, INC.
MEDIUM-TERM NOTE, SERIES H
(FLOATING RATE)
INTEREST RATE BASIS ORIGINAL ISSUE DATE: STATED MATURITY DATE:
OR BASES:
IF LIBOR: IF CMT RATE:
[ ] LIBOR REUTERS DESIGNATED CMT TELERATE PAGE:
[ ] LIBOR TELERATE DESIGNATED CMT MATURITY INDEX:
INDEX MATURITY: INITIAL INTEREST RATE: INTEREST PAYMENT PERIOD:
SPREAD (PLUS OR MINUS): INITIAL INTEREST RESET DATE: INTEREST PAYMENT DATES:
SPREAD MULTIPLIER: INTEREST RATE RESET PERIOD: INTEREST RESET DATES:
<PAGE>
MAXIMUM INTEREST RATE: MINIMUM INTEREST RATE: INITIAL REDEMPTION DATE:
INITIAL REDEMPTION ANNUAL REDEMPTION OPTIONAL REPAYMENT
PERCENTAGE: PERCENTAGE REDUCTION: DATE(S):
CALCULATION AGENT:
INTEREST CALCULATION:
[_] REGULAR FLOATING RATE NOTE
[_] FLOATING RATE/FIXED RATE
FIXED RATE COMMENCEMENT DATE:
FIXED INTEREST RATE:
[_] INVERSE FLOATING RATE NOTE
FIXED INTEREST RATE:
DAY COUNT CONVENTION
[_] 30/360 FOR THE PERIOD FROM TO
[_] ACTUAL/360 FOR THE PERIOD FROM TO
[_] ACTUAL/ACTUAL FOR THE PERIOD FROM TO
[_] IF BOX IS CHECKED, THE SPECIFIED CURRENCY OF THE NOTE IS OTHER THAN U.S.
DOLLARS AND INFORMATION REGARDING THE SPECIFIED CURRENCY, AUTHORIZED
DENOMINATIONS AND EXCHANGE RATE AGENT IS PROVIDED IN AN ADDENDUM.
[_] IF BOX IS CHECKED, THE NOTE IS AN AMORTIZING NOTE AND INFORMATION REGARDING
AMORTIZING PAYMENT DATES AND AMORTIZING PAYMENT AMOUNTS IS PROVIDED IN AN
ADDENDUM.
ADDENDUM ATTACHED: ORIGINAL ISSUE DISCOUNT ("OID"):
[_] YES [_] YES
[_] NO [_] NO
TOTAL AMOUNT OF OID:
YIELD TO MATURITY:
INITIAL ACCRUAL PERIOD:
OTHER/ADDITIONAL PROVISIONS:
2
<PAGE>
COMDISCO, INC., a Delaware corporation ("Issuer" or the "Company", which
terms include any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to___________________________,
or registered assigns, the principal amount stated above on the Stated Maturity
Date specified above (except to the extent redeemed or repaid by the Company
prior to the Stated Maturity Date), and to pay interest thereon at a rate per
annum equal to the Initial Interest Rate specified above until the Initial
Interest Reset Date specified above and thereafter at a rate per annum
determined in accordance with the provisions hereof and any Addendum relating
hereto depending upon the Interest Rate Basis or Bases, if any, and such other
terms specified above, until the principal hereof is paid or duly made available
for payment. Reference herein to "this Note", "hereof", "herein" and comparable
terms shall include an Addendum hereto if an Addendum is specified above.
The Company will pay interest monthly, quarterly, semi-annually, annually
or such other period as specified above under "Interest Payment Period", on each
Interest Payment Date specified above, commencing on the first Interest Payment
Date specified above next succeeding the Original Issue Date, and on the Stated
Maturity Date or any Redemption Date or Optional Repayment Date (as defined
below) (the date of each such Stated Maturity Date, Redemption Date and Optional
Repayment Date and the date on which principal or an installment of principal is
due and payable by declaration of acceleration pursuant to the Indenture, being
referred to hereinafter as the "Maturity Date" with respect to principal payable
on such date); provided, however, that if the Original Issue Date occurs between
-------- -------
a Regular Record Date (as defined below) and the next succeeding Interest
Payment Date, interest payments will commence on the Interest Payment Date
immediately following the next succeeding Regular Record Date to the registered
Holder on such next succeeding Regular Record Date; and provided further, that
if an Interest Payment Date (other than an Interest Payment Date on a Maturity
Date) would otherwise fall on a day that is not a Business Day (as defined
below), such Interest Payment Date shall be postponed to the next succeeding
Business Day, except that if an Interest Rate Basis is LIBOR, as indicated
above, and the next succeeding Business Day falls in the next succeeding
calendar month, such Interest Date shall be the immediately preceding day that
is a Business Day. Except as provided above, interest payments will be made on
the Interest Payment Dates shown above. Unless otherwise specified above, the
"Regular Record Date" with respect to any Interest Payment Date shall be the
date 15 calendar days (whether or not a Business Day) immediately preceding such
Interest Payment Date. If the Maturity Date of this Note falls on a day which
is not a Business Day, the payment of principal of premium, if any, and/or
interest due on the Maturity Date will be made on the next succeeding Business
Day with the same force and effect as if made on such Maturity Date and no
interest shall accrue on the amount so payable for the period from and after
such Maturity Date. The interest so payable, and punctually paid or duly
provided for on any Interest Payment Date will, as provided in the Indenture ,
be paid to the Person in whose name this Note (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such Interest Payment Date. Any such interest which is payable, but not
punctually paid or duly provided for on any Interest Payment Date (herein called
"Defaulted Interest"), shall forthwith cease to be payable to the registered
Holder on such Regular Record Date, and may either be paid to the Person in
whose name this Note (or one or more Predecessor Securities) is registered at
the close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to the Holder
of this Note not less than 10 days prior to such Special Record Date, or may be
paid at any time in any other lawful manner, all as more fully provided in the
Indenture. Interest payable at the Maturity Date will be payable to the Person
to whom the principal hereof shall be payable.
Notwithstanding anything else contained herein, if this Note is a Global
Security as specified on the face hereof and is held in book-entry form through
the facilities of the Depositary, payments on this Note will be made to the
Depositary or its nominee in accordance with the arrangements then in effect
between the Trustee and the Depositary.
Payment of the principal of, premium, if any, and/or interest on this Note
on the Maturity Date will be made in immediately available funds upon surrender
of this Note at the office of the Trustee maintained for that purpose in The
City of New York, in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts.
Payment of interest other than interest due on a Maturity Date will be made by
check mailed to the address of the Person entitled thereto as such address shall
3
<PAGE>
appear in the Security Register at the close of Business on the Regular Record
Date immediately preceding the applicable Interest Payment Date or, at the
option of the registered Holder hereof, to such other place in the United States
of America as the registered Holder hereof shall designate to the Trustee in
writing. Notwithstanding the foregoing, the Holder of $10,000,000 or more in
aggregate principal amount of the Notes having the same Interest Payment Date
shall be entitled to receive interest payments (other than on a Maturity Date)
by wire transfer of immediately available funds if appropriate wire transfer
instructions have been received in writing by the Trustee at least 16 days prior
to the applicable Interest Payment Date. Said wire instructions, upon receipt
by the Trustee, shall remain in effect until revoked by such Holder.
This Note is one of a duly authorized series of Securities (hereinafter
called the "Securities") of the Company, which series of the Securities is
limited to an aggregate principal amount of not more than $600,000,000 (or the
equivalent thereof, determined as of the respective dates of issuance, in any
other currency or currencies) (the issue price of any original issue discount
Notes being treated as the principal amount thereof), designated as its Medium-
Term Notes, Series H (the "Notes"); provided, however, that the foregoing limit
may be increased by the Company.
The Notes are issued and to be issued under an Indenture, dated as of
December 15, 1998 (the "Indenture"), between the Company and The Fuji Bank and
Trust Company to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee (as
defined below) and the Holders of the Notes and the terms upon which the Notes
are to be authenticated and delivered. The Fuji Bank and Trust Company shall
act as Trustee with respect to the Notes (herein called the "Trustee", which
term includes any successor Trustee with respect to the Notes, under the
Indenture). The terms of individual Notes may vary with respect to interest
rates or interest rate formulas, issue dates, maturity, redemption, repayment
currency of payment and otherwise.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiples thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes denominated as
authorized, as requested by the Holder surrendering the same.
Except as otherwise provided in the Indenture and as set forth below, the
Notes will be issued in global form only, registered in the name of the
Depositary or its nominee and ownership of the Notes shall be maintained in
book-entry form by the Depositary for the accounts of participating
organizations of the Depositary. If this Note is a Global Security, this Note
is exchangeable only if (i) the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for this Global Security and a
successor depositary is not appointed by the Company within 60 days, (ii) at any
time the Depositary ceases to be clearing agency registered under the Securities
Exchange Act of 1934, as amended, (iii) the Company in its sole discretion
determines that this Global Security shall be exchangeable for definitive
Securities of this series in registered form or (iv) an Event of Default with
respect to the Notes represented hereby has occurred and is continuing.
This Note is not subject to any sinking fund and, unless otherwise provided
above in accordance with the provisions of the following paragraphs, is not
redeemable or repayable prior to the Stated Maturity Date.
If so provided above, this Note may be redeemed by the Company on any date
on or after the Initial Redemption Date, if any, specified above. If no Initial
Redemption Date is set forth above, this Note may not be redeemed prior to the
Stated Maturity Date. On and after the Initial Redemption Date, if any, this
Note may be redeemed at any time in whole or from time to time in part in
increments of $1,000 (unless otherwise specified above) at the option of the
Company at the applicable Redemption Price (as defined below), together with
interest thereon payable to the date of redemption (each such date, a
"Redemption Date"), on written notice given not more than 60 nor less than 30
days prior to the Redemption Date. In the event of redemption of this Note in
part only, a new Note for the unredeemed portion hereof shall be issued in the
name of the Holder hereof upon the surrender hereof.
4
<PAGE>
Unless otherwise specified above, the "Redemption Price" shall initially be
the Initial Redemption Percentage, specified above, of the principal amount of
this Note to be redeemed and, if greater than 100%, shall decline at each
anniversary of the Initial Redemption Date, shown above, by the Annual
Redemption Percentage Reduction, if any, specified above, of the principal
amount to be redeemed until the Redemption Price is 100% of such principal
amount.
This Note may be subject to repayment at the option of the Holder on the
Optional Repayment Date(s), if any, indicated above. If no Optional Repayment
Date(s) are set forth above, this Note is not subject to repayment at the option
of the Holder hereof prior to the Stated Maturity Date. On any Optional
Repayment Date this Note shall be repayable in whole or in part in increments of
$1,000 (unless otherwise specified above) at the option of the Holder hereof at
a repayment price equal to 100% of the principal amount to be repaid, together
with accrued but unpaid interest, if any, hereon at the applicable rate payable
to the relevant Optional Repayment Date. For this Note to be repaid in whole or
in part at the option of the Holder hereof, this Note must be received, with the
form entitled "Option To Elect Repayment" below duly completed, by the Trustee
at The Fuji Bank and Trust Company, Two World Trade Center, New York, New York
10048, Attention: Corporate Trust Administration, or such address which the
Company shall from time to time notify the Holders of the Notes, not more than
60 nor less than 20 days prior to an Optional Repayment Date. Exercise of such
repayment option by the Holder hereof shall be irrevocable. In the event of
repayment of this Note in part only, a new Note for the unrepaid portion hereof
shall be issued in the name of the Holder hereof upon the surrender hereof.
The interest rate borne by this Note will be determined as follows:
1. If this Note is designated as a Regular Floating Rate Note above, or
if no designation is made for Interest Calculation above, then except as
described below, under "Other/Additional Provisions" above, or in an Addendum
hereto, this Note shall bear interest at the rate determined by reference to the
applicable Interest Rate Basis or Bases shown above (i) plus or minus the
applicable Spread, if any, and/or (ii) multiplied by the applicable Spread
Multiplier, if any, specified and applied in the manner described above.
Commencing on the Initial Interest Reset Date, the rate at which interest on
this Note is payable shall be reset as of each Interest Reset Date specified
above; provided, however, that the interest rate in effect for the period, if
any, from the Original Issue Date to the Initial Interest Reset Date will be the
Initial Interest Rate.
2. If this Note is designated as a Floating Rate/Fixed Rate Note above,
then, except as described below or in an Addendum hereto, this Note shall bear
interest at the rate determined by reference to the applicable Interest Rate
Basis or Bases shown above (i) plus or minus the applicable Spread, if any,
and/or (ii) multiplied by the applicable Spread Multiplier, if any, specified
and applied in the manner described above. Commencing on the Initial Interest
Reset Date, the rate at which interest on this Note is payable will be reset as
of each Interest Reset Date specified above; provided, however, that (i) the
interest rate in effect for the period from the Original Issue Date to the
Initial Interest Reset Date shall be the Initial Interest Rate and (ii) the
interest rate in effect, commencing on, and including, the Fixed Rate
Commencement Date to the Maturity Date shall be the Fixed Interest Rate, if such
rate is specified above or, if no such Fixed Interest Rate is so specified, the
interest rate in effect hereon on the Business Day immediately preceding the
Fixed Rate Commencement Date.
3. If this Note is designated as an Inverse Floating Rate Note above,
then, except as described below or in an Addendum hereto, this Note will bear
interest at the Fixed Interest Rate minus the rate determined by reference to
the applicable Interest Rate Basis or Bases shown above (i) plus or minus the
applicable Spread, if any, and/or (ii) multiplied by the applicable Spread
Multiplier, if any, specified and applied in the manner described above;
provided, however, that, unless otherwise specified above, the interest rate
hereon will not be less than zero percent. Commencing on the Initial Interest
Reset Date, the rate at which interest on this Note is payable shall be reset as
of each Interest Reset Date specified above; provided, however, that the
interest rate in effect for the period, if any, from the Original Issue Date to
the Initial Interest Reset Date will be the Initial Interest Rate.
Notwithstanding the foregoing, if this Note is designated above as having
an Addendum attached or as having "Other/Additional Provisions" applicable, this
Note shall bear interest in accordance with the terms described in such Addendum
or above under "Other/Additional Provisions."
5
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Except as provided above, the interest rate in effect on each day shall be
(a) if such day is an Interest Reset Date, the interest rate determined as of
the Interest Determination Date (as defined below) immediately preceding such
Interest Reset Date or (b) if such day is not an Interest Reset Date, the
interest rate determined as of the Interest Determination Date immediately
preceding the next preceding Interest Reset Date. Each Interest Rate Basis
shall be the rate determined in accordance with the applicable provision below.
If any Interest Reset Date (which term includes the term Initial Interest Reset
Date unless the context otherwise requires) would otherwise be a day that is not
a Business Day, such Interest Reset Date shall be postponed to the next
succeeding day that is a Business Day, except that if an Interest Rate Basis
specified above is LIBOR and such next Business Day falls in the next succeeding
calendar month, such Interest Reset Date shall be the immediately preceding
Business Day.
Unless otherwise specified above, interest payable on this Note on any
Interest Payment Date shall be the amount of interest accrued from and including
the next preceding Interest Payment Date in respect of which interest has been
paid (or from and including the Original Issue Date specified above, if no
interest has been paid), to but excluding the related Interest Payment Date or
the Maturity Date, as the case may be.
Unless otherwise specified above, accrued interest hereon shall be an
amount calculated by multiplying the face amount hereof by an accrued interest
factor. Such accrued interest factor shall be computed by adding the interest
factor calculated for each day in the period for which accrued interest is being
calculated. Unless otherwise specified above, the interest factor for each such
day shall be computed and paid on the basis of a 360-day year of twelve 30-day
months if the Day Count Convention specified above is "30/360" for the period
specified thereunder, or by dividing the interest rate applicable to such day by
360 if the Day Count Convention specified above is "Actual/360" for the period
specified thereunder or by the actual number of days in the year if the Day
Count Convention specified above is "Actual/Actual" for the period specified
thereunder. If interest on this Note is to be calculated with reference to two
or more Interest Rate Bases as specified above, the interest factor will be
calculated in each period in the same manner as if only one of the applicable
Interest Rate Bases applied.
Unless otherwise specified above, the "Interest Determination Date"
pertaining to the Interest Reset Date for each of the Commercial Paper Rate (the
"Commercial Paper Rate Interest Determination Date"), the Federal Funds Rate
(the "Federal Funds Rate Interest Determination Date"), the Prime Rate (the
"Prime Rate Interest Determination Date") and the CMT Rate (the "CMT Rate
Interest Determination Date") will be the second Business Day preceding each
Interest Reset Date; the "Interest Determination Date" with respect to the
Eleventh District Cost of Funds Rate (the "Eleventh District Cost of Funds Rate
Interest Determination Date") will be the last working day of the month
immediately preceding the applicable Interest Reset Date on which the Federal
Home Loan Bank of San Francisco (the "FHLB of San Francisco") publishes the
Index (as defined below); the "Interest Determination Date" pertaining to an
Interest Reset Date for LIBOR (the "LIBOR Interest Determination Date") shall be
the second London Business Day (as defined below) preceding the Interest Reset
Date with respect to such Note, unless the Index Currency (as defined below) is
British pounds sterling, in which case the Interest Determination Date will be
the applicable Interest Reset Date; the "Interest Determination Date" with
respect to the Treasury Rate (the "Treasury Rate Interest Determination Date")
will be the day of the week on which Treasury bills (as defined below) would
normally be auctioned in the week in which such Interest Reset Date falls.
Treasury bills are normally sold at auction on Monday of each week, unless that
day is a legal holiday, in which case the auction is normally held on the
following Tuesday, except that such auction may be held on the preceding Friday.
If, as a result of a legal holiday, an auction is so held on a preceding Friday,
such Friday will be the Treasury Rate Interest Determination Date pertaining to
the Interest Reset Date occurring in the next succeeding week. If an auction
date shall fall on any day which would otherwise be an Interest Reset Date, then
the Interest Reset Date shall instead be the first Business Day following such
auction date. If the interest rate of this Note is determined with reference to
two or more Interest Rate Bases as specified above, the Interest Determination
Date pertaining to this Note will be the most recent Business Day which is at
least two Business Days prior to the applicable Interest Reset Date on which
each Interest Rate Basis is determinable. Each Interest Rate Basis shall be
determined on such date, and the applicable interest rate shall take effect on
the applicable Interest Reset Date.
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The Calculation Agent shall calculate the interest rate hereon in
accordance with the foregoing on or before each Calculation Date. Unless
otherwise specified under the caption "Calculation Agent" on the face hereof,
the Calculation Agent with respect to this Note shall be Yasuda Bank and Trust
Company (U.S.A.), or such successor as is duly appointed by the Company.
Unless otherwise specified above, the "Calculation Date", pertaining to any
Interest Determination Date will be the earlier of (i) the tenth calendar day
after such Interest Determination Date or, if such day is not a Business Day,
the next succeeding Business Day, or (ii) the Business Day preceding the
applicable Interest Payment Date or Maturity Date, as the case may be. All
calculations on this Note shall be made by the Calculation Agent.
All percentages resulting from any calculation on this Note will be
rounded, if necessary, to the nearest one-hundred thousandth of a percentage
point, with five one-millionths of a percentage point rounded upward (e.g.,
9.876545% (or 0.09876545) would be rounded to 9.87655% (or 0.0987655) and
9.876544% (or 0.09876544) would be rounded to 9.87654% (or 0.0987654)), and all
dollar amounts used in or resulting from such calculation on this Note will be
rounded to the nearest cent (with one-half cent rounded upward).
As used herein, "Business Day" means, unless otherwise specified above, any
day, other than a Saturday or Sunday, that is neither a legal holiday nor a day
on which banking institutions are authorized or required by law, regulation or
executive order to close in The City of New York, provided that, if an Interest
Rate Basis shown above is LIBOR, such day is also a London Business Day.
"London Business Day" means a day on which dealings in the Designated LIBOR
Currency (as defined below) are transacted in the London interbank market.
"Principal Financial Center" means (i) the capital city of the country
issuing the Specified Currency or (ii) the capital city of the country to which
the Designated LIBOR Currency relates, as applicable, except, in the case of (i)
or (ii) above, that with respect to United States dollars, Australian dollars,
Canadian dollars, Deutsche marks, Dutch guilders, Portuguese escudos, South
African rand and Swiss francs, the "Principal Financial Center" shall be The
City of New York, Sydney and (solely in the case of the Specified Currency)
Melbourne, Toronto, Frankfurt, Amsterdam, London (solely in the case of the
Designated LIBOR Currency), Johannesburg and Zurich, respectively.
Determination of Commercial Paper Rate. If an Interest Rate Basis for this
--------------------------------------
Note is the Commercial Paper Rate, the Commercial Paper Rate shall be determined
as of the applicable Commercial Paper Interest Determination Date, as the Money
Market Yield (as defined below) on such date of the rate for commercial paper
having the Index Maturity specified above published in H.15(519) (as defined
below), under the caption "Commercial Paper - Nonfinancial ". In the event such
rate is not published by 3:00 P.M., New York City time, on the related
Calculation Date pertaining to such Commercial Paper Interest Determination
Date, then the Commercial Paper Rate on such Commercial Paper Interest
Determination Date will be the Money Market Yield of the rate for commercial
paper of the specified Index Maturity as published in H.15 Daily Update (as
defined below), or such other recognized electronic source used for the purpose
of displaying such rate under the caption "Commercial Paper-Nonfinancial." If
such rate is not yet published in H.15(519), H.15 Daily Update, or such other
recognized electronic source by 3:00 P.M., New York City time, on the related
Calculation Date, the Commercial Paper Rate on such Commercial Paper Interest
Determination Date will be calculated by the Calculation Agent and will be the
Money Market Yield of the arithmetic mean of the offered rates at approximately
11:00 A.M., New York City time, on such Commercial Paper Interest Determination
Date, of three leading dealers of commercial paper in The City of New York
(which may include one or more of the Agents or their respective affiliates)
selected by the Calculation Agent (after consultation with the Company) for
commercial paper having the Index Maturity placed for a non-financial entity
whose bond rating is "Aa", or the equivalent, from a nationally recognized
statistical rating organization; provided, however, that if the dealers so
-------- -------
selected by the Calculation Agent are not quoting as mentioned in this sentence,
the Commercial Paper Rate determined as of such Commercial Paper Rate Interest
Determination Date shall be the Commercial Paper Rate in effect on such
Commercial Paper Interest Determination Date.
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"H.15(519)" means the weekly statistical release designated as such, or any
successor publication, published by the Board of Governors of the Federal
Reserve System.
"H.15 Daily Update" means the daily update of H.15(519), available through
the world-wide-web site of the Board of Governors of the Federal Reserve System
at http://www.bog.frb.fed.us/releases/h15/ update, or any successor site or
publication.
"Money Market Yield" shall be a yield (expressed as a percentage)
calculated in accordance with the following formula:
Money Market Yield = D x 360 x 100
---------------------------
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal and "M" refers to the actual
number of days in the interest period for which interest is being calculated.
Determination of Federal Funds Rate. If an Interest Rate Basis for this
-----------------------------------
Note is the Federal Funds Rate, as indicated above, the Federal Funds Rate shall
be determined as of the applicable Federal Funds Rate Interest Determination
Date as the rate on such date for U.S. dollar federal funds as is published in
H.15(519) under the heading "Federal Funds (Effective)" as such rate is
displayed on Bridge Telerate, Inc. (or any successor service) on page 120 (or
any other page as may replace such page on such service) ("Telerate Page 120"),
or, if such rate does not appear on Telerate Page 120 or is not so published by
3:00 P.M., New York City time, on the related Calculation Date, the rate on such
Federal Funds Rate Interest Determination Date for United States dollar federal
funds as published in H.15 Daily Update, or such other recognized electronic
source used for the purpose of displaying such rate, under the caption "Federal
Funds (Effective)." If such rate does not appear on Telerate Page 120 or is not
yet published in H.15(519), H.15 Daily Update or another recognized electronic
source by 3:00 P.M. New York City time, on the related Calculation Date
pertaining to such Federal Funds Interest Determination Date, the Federal Funds
Rate on such Federal Funds Rate Interest Determination Date shall be calculated
by the Calculation Agent and will be the arithmetic mean of the rates for the
last transaction in overnight U.S. dollar federal funds arranged by three
leading brokers of federal funds transactions in The City of New York (which may
include one or more of the Agents or their respective affiliates) selected by
the Calculation Agent (after consultation with the Company) prior to 9:00 A.M.,
New York City time, on such Federal Funds Interest Determination Date; provided,
--------
however, that if the brokers so selected by the Calculation Agent are not
- -------
quoting as mentioned in this sentence, the Federal Funds Rate determined as of
such Federal Funds Interest Determination Date shall be the Federal Funds Rate
in effect on such Federal Funds Interest Determination Date.
Determination of LIBOR. If an Interest Rate Basis for this Note is LIBOR,
----------------------
as indicated above, LIBOR will be determined as of the applicable LIBOR Interest
Determination Date as follows:
(i) (A) if LIBOR Reuters is specified above as the method for
determining LIBOR, with respect to a LIBOR Interest Determination Date,
LIBOR will be determined on the basis of the arithmetic mean of offered
rates (unless the specified Designated LIBOR Page specified above by its
terms provides only for a single rate, in which case such single rate shall
be used) for deposits in the Designated LIBOR Currency (as defined below)
having the Index Maturity designated above, commencing on the applicable
Interest Reset Date, that appear (or, if only a single rate is required as
aforesaid, appears) on the Designated LIBOR Page specified above as of
11:00 A.M., London time, on such LIBOR Interest Determination Date, if at
least two such offered rates appear (unless, as aforesaid, only a single
rate is required) on such Designated LIBOR Page, or (B) if LIBOR Telerate,
is specified above as the method for determining LIBOR, or if no method of
calculation of LIBOR is specified above as the method for determining
LIBOR, with respect to a LIBOR Interest Determination Date for this Note,
LIBOR will be the rate for deposits in the Index Currency having the Index
Maturity designated above that appears on the Designated LIBOR Page
specified above as of 11:00 A.M., London time, on such LIBOR Interest
Determination Date. If
8
<PAGE>
fewer than two such offered rates appear (unless the specified Designated
LIBOR Page by its terms provides for a single rate), or if no such rate
appears, as applicable, LIBOR in respect of the related LIBOR Interest
Determination Date will be determined in accordance with the provisions
described in clause (ii) below.
(ii) With respect to a LIBOR Interest Determination Date on which
fewer than two offered rates appear, or if no rate appears, as the case may
be, on the applicable Designated LIBOR Page specified in clause (i) above,
the Calculation Agent will request the principal London offices of each of
four major reference banks (which may include affiliates of certain of the
Agents) in the London interbank market, as selected by the Calculation
Agent (after consultation with the Company), to provide the Calculation
Agent with its offered quotation for deposits in the Designated LIBOR
Currency for the period of the Index Maturity specified above, commencing
on the applicable Interest Reset Date to prime banks in the London
interbank market at approximately 11:00 A.M., London time, on such LIBOR
Interest Determination Date and in a principal amount equal to an amount
that is representative for a single transaction in such Designated LIBOR
Currency in such market at such time. If at least two such quotations are
so provided, then LIBOR determined on such LIBOR Interest Determination
Date will be the arithmetic mean of such quotations. If fewer than two
quotations are so provided, then LIBOR determined on such LIBOR Interest
Determination Date will be the arithmetic mean of the rates quoted at
approximately 11:00 A.M., in the applicable Principal Financial Center, on
such LIBOR Interest Determination Date for loans by three major banks
(which may include affiliates of certain of the Agents), in such Principal
Financial Center selected by the Calculation Agent (after consultation with
the Company), for loans in such Designated LIBOR Currency to leading
European banks, having the Index Maturity specified above, and in a
principal amount that is representative for a single transaction in such
Designated LIBOR Currency in such market at such time; provided, however,
that if the banks selected as aforesaid by the Calculation Agent are not
quoting as mentioned in this sentence, LIBOR determined as of such LIBOR
Interest Determination Date will be LIBOR in effect on such LIBOR Interest
Determination Date.
"Designated LIBOR Currency" means the currency (including composite
currencies) specified above as to which LIBOR shall be calculated or, if no such
currency or composite currency is specified above, U.S. dollars.
"Designated LIBOR Page" means (a) if "LIBOR Reuters" is specified in the
applicable Pricing Supplement, the display on the Reuter Monitor Money Rates
Service (or any successor service) on the page specified in such Pricing
Supplement (or any other page as may replace such page or such service) for the
purpose of displaying the London interbank rates of major banks for the
applicable Designated LIBOR Currency, or (b) if "LIBOR Telerate" is specified in
the applicable Pricing Supplement or neither "LIBOR Reuters" or "LIBOR Telerate"
is specified in the applicable Pricing Supplement as the method for calculating
LIBOR, the display on Bridge Telerate, Inc. (or any successor service) on the
page specified in such Pricing Supplement (or any other page as may replace such
page or such service) for the purpose of displaying the London interbank rates
of major banks for the applicable Designated LIBOR Currency.
Determination of Prime Rate. If an Interest Rate Basis for this Note is
---------------------------
the Prime Rate, the Prime Rate shall be determined as of the applicable Prime
Rate Interest Determination Date as the rate on such date as such rate is
published in H.15(519) under the heading "Bank Prime Loan". If such rate is not
published prior to 3:00 P.M., New York City time, on the Calculation Date
pertaining to such Prime Rate Interest Determination Date, the Prime Rate will
be the rate as published in H.15 Daily Update, or such other recognized
electronic source used for the purpose of displaying such rate, under the
caption "Bank Prime Loan." If such rate is not yet published in H.15(519), H.15
Daily Update or another recognized electronic source by 3:00 P.M., New York City
time, on the related Calculation Date, then the Prime Rate shall be the
arithmetic mean of the rates of interest publicly announced by each bank that
appears on the Reuters Screen USPRIME1 Page (as defined below) as such bank's
prime rate or base lending rate as in effect for that Prime Rate Interest
Determination Date. If fewer than four such rates appear on the Reuters Screen
USPRIME1 Page for such Prime Rate Interest Determination Date, the Prime Rate
shall be the arithmetic mean as calculated by the Calculation Agent on such
Calculation Date of the prime rates quoted on the basis of the actual number of
days in the year divided by a 360-day year as of the close of
9
<PAGE>
business on such Prime Rate Interest Determination Date by four major money
center banks in The City of New York (which may include affiliates of certain of
the Agents) selected by the Calculation Agent (after consultation with the
Company); provided that if the banks or trust companies selected as aforesaid by
--------
the Calculation Agent are not quoting as mentioned in this sentence, the Prime
Rate determined as of such Prime Rate Determination Date will be the Prime Rate
in effect on such Prime Rate Interest Determination Date.
"Reuters Screen US PRIME 1 Page" means the display on the Reuter Monitor
Money Rates Service (or any successor service) on the "US PRIME 1" page (or such
other page as may replace the US PRIME 1 page on such service) for the purpose
of displaying prime rates or base lending rates of major United States banks.
Determination of Treasury Rate. If an Interest Rate Basis for this Note is
------------------------------
the Treasury Rate, as specified above, the Treasury Rate shall be determined as
of the applicable Treasury Rate Interest Determination Date as the rate from the
auction held on such Treasury Interest Determination Date (the "Auction") of
direct obligations of the United States ("Treasury Bills") having the Index
Maturity specified above as such rate is published under the caption "AVGE
INVEST YIELD" on the display on Bridge Telerate, Inc. (or any successor service)
on page 56 (or any other page as may replace such page on such service)
("Telerate Page 56") or page 57 (or any other page as may replace such page on
such service) ("Telerate Page 57"), or if not so published by 3:00 P.M., New
York City time, on the related Calculation Date pertaining to such Treasury
Interest Determination Date, the auction average rate of such Treasury Bills
(expressed as a bond equivalent, on the basis, of a year of 365 or 366 days, as
applicable, and applied on a daily basis), as otherwise announced by the United
States Department of the Treasury. In the results of the Auction of Treasury
Bills having the Index Maturity specified above are not reported as provided
above by 3:00 P.M., New York City time, on the related Calculation Date, or if
no such Auction is held, then the Treasury Rate will be the rate (expressed as a
bond equivalent on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) on such Treasury Rate Interest Determination Date of
Treasury Bills having the Index Maturity specified in the applicable Pricing
Supplement as published in H.15(519) under the caption "U.S. Government
Securities/Treasury Bills/Secondary Market" or, if not yet published by 3:00
P.M., New York City time, on the related Calculation Date, the rate on such
Treasury Rate Interest Determination Date of such Treasury Bills as published in
H.15 Daily Update, or such other recognized electronic source used for the
purpose of displaying such rate, under the caption "U.S. Government
Securities/Treasury Bills/Secondary Market." If such rate is not yet published
in H.15(519), H.15 Daily Update or another recognized electronic source, then
the Treasury Rate will be calculated by the Calculation Agent and shall be a
yield to maturity (expressed as a bond equivalent on the basis of a year of 365
or 366 days, as applicable, and applied on a daily basis) of the arithmetic mean
of the secondary market bid rates, as of approximately 3:30 P.M., New York City
time, on such Treasury Rate Interest Determination Date, of three primary United
States government securities dealers (which may include the Agents or their
affiliates) selected by the Calculation Agent (after consultation with the
Company), for the issue of Treasury Bills with a remaining maturity closest to
the Index Maturity specified above; provided, however, that if the dealers so
-------- -------
selected by the Calculation Agent are not quoting as mentioned in this sentence,
the Treasury Rate determined as of such Treasury Rate Interest Determination
Date will be the Treasury Rate in effect on such Treasury Interest Determination
Date.
Determination of Eleventh District Cost of Funds Rate. If an Interest Rate
-----------------------------------------------------
Basis for this Note is the Eleventh District Cost of Funds Rate, as indicated
above, the Eleventh District Cost of Funds Rate shall be determined as of the
applicable Eleventh District Cost of Funds Rate Interest Determination Date as
the rate equal to the monthly weighted average cost of funds for the calendar
month immediately preceding the month in which such Eleventh District Cost of
Funds Rate Interest Determination Date falls, as set forth under the caption
"11th district" on Telerate Page 7058 (as defined below) as of 11:00 A.M., San
Francisco time, on such Eleventh District Cost of Funds Rate Interest
Determination Date. If such rate does not appear on Telerate Page 7058 on such
Eleventh District Cost of Funds Rate Interest Determination Date, the Eleventh
District Cost of Funds Rate on such Eleventh District Cost of Funds Rate
Interest Determination Date shall be the monthly weighted average cost of funds
paid by member institutions of the Eleventh Federal Home Loan Bank District that
was most recently announced (the "Index") by the FHLB of San Francisco as such
cost of funds for the calendar month immediately preceding such Eleventh
District Cost of Funds Rate Interest Determination Date. If the FHLB of San
Francisco fails to announce the Index on or prior to such Eleventh District Cost
of Funds Rate Interest Determination Date
10
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for the calendar month immediately preceding such Eleventh District Cost of
Funds Rate Interest Determination Date, the Eleventh District Cost of Funds Rate
determined as of such Eleventh District Cost of Funds Rate Interest
Determination Date will be the Eleventh District Cost of Funds Rate in effect on
such Eleventh District Cost of Funds Rate Interest Determination Date.
"Telerate Page 7058" means the display designated as page "7058" on Bridge
Telerate, Inc. (or any successor service).
Determination of CMT Rate. If an Interest Rate Basis for this Note is the
-------------------------
CMT Rate, as indicated above, the CMT Rate shall be determined as of the
applicable CMT Rate Interest Determination Date, as the rate displayed on the
Designated CMT Telerate Page under the caption "... Treasury Constant Maturities
... Federal Reserve Board Release H.15 ... Mondays approximately 3:45 P.M., "
under the column for the Designated CMT Maturity Index (as defined below) for
(i) if the Designated CMT Telerate Page is 7051, the rate on such CMT Rate
Interest Determination Date and (ii) if the Designated CMT Telerate Page is
7052, the weekly or monthly average, as specified above, for the week or the
month, as applicable, ended immediately preceding the week or month, as
applicable, in which the related CMT Rate Interest Determination Date falls. If
such rate is no longer displayed on the relevant page, or if not displayed by
3:00 P.M., New York City time, on the related Calculation Date, then the CMT
Rate for such CMT Rate Interest Determination Date will be such treasury
constant maturity rate for the Designated CMT Maturity Index as published in
H.15(519). If such rate is no longer published, or is not published by 3:00
P.M., New York City time, on the related Calculation Date, then the CMT Rate for
such CMT Rate Interest Determination Date will be such treasury constant
maturity rate for the Designated CMT Maturity Index (or other United States
Treasury rate for the Designated CMT Maturity Index) for the CMT Rate Interest
Determination Date with respect to such Interest Reset Date as may then be
published by either the Board of Governors of the Federal Reserve System or the
United States Department of the Treasury that the Calculation Agent determines
to be comparable to the rate formerly displayed on the Designated CMT Telerate
page and published in H.15(519). If such information is not provided by 3:00
P.M., New York City time, on the related Calculation Date, then the CMT Rate on
the CMT Rate Interest Determination Date will be calculated by the Calculation
Agent and will be a yield to maturity, based on the arithmetic mean of the
secondary market offered rates as of approximately 3:30 P.M., New York City
time, on such CMT Rate Interest Determination Date reported, according to their
written records, by three leading primary United States government securities
dealers (each, a "Reference Dealer") in The City of New York (which may include
one or more of the Agents or their respective affiliates) selected by the
Calculation Agent (from five such Reference Dealers selected by the Calculation
Agent (after consultation with the Company) and eliminating the highest
quotation (or, in the event of equality, one of the highest) and the lowest
quotation (or, in the event of equality, one of the lowest)), for the most
recently issued direct noncallable fixed rate obligations of the United States
("Treasury Notes") with an original maturity of approximately the Designated CMT
Maturity Index and a remaining term to maturity of not less than such Designated
CMT Maturity Index minus one year. If the Calculation Agent is unable to obtain
three such Treasury Note quotations, the CMT Rate on such CMT Rate Interest
Determination Date will be calculated by the Calculation Agent and will be a
yield to maturity based on the arithmetic mean of the secondary market offered
rates as of approximately 3:30 P.M., New York City time, on the CMT Rate
Interest Determination Date of three Reference Dealers in The City of New York
(from five such Reference Dealers selected by the Calculation Agent (after
consultation with the Company) and eliminating the highest quotation (or, in the
event of equality, one of the highest) and the lowest quotation (or, in the
event of equality, one of the lowest)), for Treasury Notes with an original
maturity of the number of years that is the next highest to the Designated CMT
Maturity Index and a remaining term to the maturity closest to the Designated
CMT Maturity Index and in an amount of at least $100 million. If three or four
(and not five) of such Reference Dealers are quoting as described above, then
the CMT Rate will be based on the arithmetic mean of the offered rates obtained
and neither the highest nor the lowest of such quotes will be eliminated;
provided however, that if fewer than three Reference Dealers so selected by the
Calculation Agent are quoting as mentioned herein, the CMT Rate determined as of
such CMT Rate Interest Determination Date will be the CMT Rate in effect on such
CMT Rate Interest Determination Date. If two Treasury Notes with an original
maturity as mentioned in the second preceding sentence have remaining terms to
maturity equally close to the Designated CMT Maturity Index, the Calculation
Agent will obtain quotations for the Treasury Note with the shorter remaining
term to maturity.
11
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"Designated CMT Telerate Page" means the display on the Bridge Telerate,
Inc. (or any successor service) on the page specified above (or any page as may
replace such page on such service) for the purpose of displaying Treasury
Constant Maturities as reported in H.15(519). If no such page is specified
above, the Designated CMT Telerate Page shall be page 7052.
"Designated CMT Maturity Index" means the original period to maturity of
the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years)
specified above with respect to which the CMT Rate will be calculated, or if no
such maturity is specified above, 2 years.
Any provision contained herein, including the determination of an Interest
Rate Basis, the specification of an Interest Rate Basis, calculation of the
interest rate applicable to this Note, its Interest Payment Dates or any other
matter relating hereto may be modified as specified in an Addendum relating
hereto if so specified above.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, specified above. In addition to any Maximum Interest
Rate applicable hereto pursuant to the above provisions, the interest rate on
this Note will in no event be higher than the maximum rate permitted by New York
law, as the same may be modified by the United States law of general
application.
The Calculation Agent shall calculate the interest rate hereof in
accordance with the foregoing on or before each Calculation Date. At the
request of the Holder hereof, the Calculation Agent will provide to the holder
hereof the interest rate hereon then in effect and, if determined, the interest
rate which will become effective as of the next Interest Reset Date.
If an Event of Default with respect to Notes should occur and be
continuing, the principal amount of the Notes and interest accrued thereon may,
by written notice to the Company, be declared due and payable by the Trustee or
the Holders of not less than 25% in principal amount of all outstanding Notes.
Such declaration of acceleration may, if all payments due have been made and all
Events of Default have been remedied or waived, be rescinded by the Holders of a
majority in principal amount of all outstanding Notes. Any Event of Default may
be waived by the Holders of a majority in principal amount of all outstanding
Notes, except that default in payment of the principal, premium, or interest on
any Note, or in respect of a covenant under the Indenture which cannot be
modified absent the consent of the Holders of each outstanding Note, cannot be
waived.
The Indenture contains provisions permitting the Company and the Trustee,
with the written consent of Holders of a majority in principal amount of the
Notes, to enter into a supplemental indenture to add any provisions to or to
change or eliminate any provisions of the Indenture or of any supplemental
indenture or to modify, in each case in any manner not covered by provisions in
the Indenture relating to amendments and modifications without the consent of
Holders, the rights of such Holders. However, without the consent of each
Holder affected thereby, an amendment or modification may not: (a) change the
Maturity Date or any Interest Payment Date or the redemption price; (b) reduce
the principal amount of, or the interest on, any Note or reduce the amount of
principal of any Original Issue Discount Note which could be declared due and
payable upon a declaration of acceleration prior to the Maturity Date; (c)
change the place, method of calculation of interest or currency of any payment
of principal or interest on any Note (except as otherwise provided in the
Indenture); (d) impair the right to institute suit for the enforcement of any
payment on or with respect to any Note; or (e) reduce the percentage in
principal amount of Notes, the consent of whose Holders is required for any
supplemental indenture or the consent of whose Holders is required to waive
compliance with certain provisions of, or any past default under the Indenture,
or reduce the requirements for quorum or voting provided by the Indenture.
Except with respect to certain fundamental provisions, the Holders of at least a
majority in principal amount of Notes may, with respect to the Notes, waive past
defaults under the Indenture and waive compliance by the Company with certain
provisions of the Indenture. The Indenture also contains provisions permitting
the Company and the Trustee to effect certain modifications and amendments
without the consent of the Holders to cure ambiguities, correct inconsistencies
and make other changes, provided such modifications and amendments do not
adversely affect the interest of the Holders in any material respect.
12
<PAGE>
As provided in and subject to the provisions of the Indenture, the Holder
of this Note shall not have the right to institute any proceeding with respect
to the Indenture or for the appointment of a receiver or trustee or for any
other remedy thereunder, unless: (i) such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Notes; (ii) the Holders of not less than 25% in principal amount of the Notes at
the time Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity; (iii) the Trustee shall not have received during
such 60-day period from the Holders of a majority in principal amount of the
Notes at the time Outstanding a direction inconsistent with such request; and
(iv) the Trustee shall have failed to institute any such proceeding, for 60 days
after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder of this Note for the
enforcement of any payment of principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the place, at the respective times, at the rate, and in the coin or currency
herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note may be registered on the Security Register of
the Company, upon surrender of this Note for registration of transfer at the
office or agency of the Company in The City of New York, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or by its
attorney duly authorized in writing, and thereupon one or more new Notes of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees. No service charge shall be
made for any registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith. Prior to due presentment of this Note for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Note is registered as the
owner hereof for all purposes, whether or not this Note be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary. The Trustee shall not be required to make any transfers,
registrations or exchanges of this Note for a period of fifteen (15) days
preceding any Interest Payment Date.
The Trustee has been appointed Registrar for the Notes, and the Company
will cause the Trustee to maintain at its office in the City of New York a
register for the registration and transfer of Notes. So long as this Note shall
be outstanding, the Company will maintain an office or agency for the payment of
the principal and interest on this Note as herein provided in The City of New
York, State of New York, United States of America, and an office or agency in
The City of New York for the registration, transfer and exchange as aforesaid of
the Notes. The Company may designate other agencies for the payment of said
principal and interest at such place or places (subject to applicable laws and
regulations) as the Company may decide. The Company shall keep the Trustee
advised of the names and locations of such agencies, if any are so designated.
Any action by the Holder of this Note shall bind all future Holders of this
Note, and of any Note issued in exchange or substitution herefor or in place
hereof, in respect of anything done or permitted by the Company or by the
Trustee in pursuance of such action.
No recourse under or upon any covenant contained in this Note or because of
the creation of the indebtedness represented hereby, shall be had against any
official or other representative, past, present or future, as such, of the
Company whether by virtue of any statute or rule of law or by the enforcement of
any assessment or penalty or otherwise, it being expressly agreed and understood
that this Note is solely the obligation of the Company and that no personal
liability whatever shall attach to or be incurred by any such officials or other
representatives, as such, because of the execution of this Note. Each Holder,
by accepting this Note, waives and releases all such liability. The waiver and
release are part of the consideration for the issue of this Note.
13
<PAGE>
This Note is unsecured and ranks pari passu with all other unsecured and
---- -----
unsubordinated indebtedness of the Company.
This Note shall be governed by and construed in accordance with the laws of
the State of New York.
Unless the certificate of authentication hereon has been executed by The
Fuji and Trust Company, the Trustee with respect to the Notes under the
Indenture, or its successors thereunder, by the manual signature of one of its
authorized officers, this Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
Capitalized terms used herein without definition which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
IN WITNESS WHEREOF, Comdisco, Inc. has caused this Note to be signed
manually or by facsimile, by its duly authorized officers, under its corporate
seal (which may be printed, engraved or otherwise reproduced hereon by facsimile
or otherwise).
DATED:___________________
COMDISCO, INC.
By:___________________________________________
President and Chief Executive Officer
[SEAL]
Attest:
____________________________
Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series described herein and referred
to in the within-mentioned Indenture.
THE FUJI BANK AND TRUST COMPANY,
AS TRUSTEE
By:__________________________________
Authorized Signatory
14
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the Company
to repay this Note (or portion hereof specified below) pursuant to its terms at
a price equal to the principal amount hereof, together with interest to the
repayment date, to the undersigned at
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Please print or typewrite name and address
including postal zip code of the undersigned)
For this Note to be repaid, the Trustee must receive at The Fuji Bank and
Trust Company, Two World Trade Center, New York, New York 10048, Attention:
Corporate Trust Administration or at such other place or places of which the
Company shall from time to time notify the Holder of this Note, not more than 60
nor less than 20 days prior to an Optional Repayment Date, if any, shown on the
face of this Note, this Note with this "Option to Elect Repayment" form duly
completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of $1,000 unless otherwise
specified in the Note) which the Holder elects to have repaid and specify the
authorized denomination or denominations of the Notes to be issued to the Holder
for the portion of this Note not being repaid (in the absence of any such
specification, one such Note will be issued for the portion not being repaid):
$___________ _______________________________________________________
NOTICE: The signature on this Option to Elect
Repayment must correspond with the name as written upon
the face of this Note in every particular, without
alteration or enlargement or any change whatever.
Date: ______
15
<PAGE>
ASSIGNMENT/TRANSFER FORM
FOR VALUE RECEIVED the undersigned required registered Holder hereby
sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
__________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address
including postal zip code of assignee)
________________________________________________________________________________
________________Note and all rights thereunder,hereby irrevocably constituting
and appointing
________________________________________________________________________________
attorney to transfer said Note on the books of the Company, with full power of
substitution in the premises.
Date___________ Signature__________________________________
NOTICE: The signature on this Assignment
must correspond with the name as written
upon the face of this Note in every
particular, without alteration or
enlargement or any change whatever.
16
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as through they were written out in full
according to applicable laws or regulations.
TEN COM--as tenants in common
UNIF GIFT MIN ACT--__________________ Custodian_____________________
(Cust) (Minor)
Under Uniform Gifts to Minors Act
_________________________________
(State)
TEN ENT--as tenants by the entireties
JT TEN--as joint tenants with right of survivorship
and not as tenants in common
Additional abbreviations may also be used though not in the above list.
17
<PAGE>
EXHIBIT 5
January 19, 1999
The Board of Directors of
Comdisco, Inc.
6111 North River Road
Rosemont, Illinois 60018
Re: Issuance of up to $600 Million in Medium Term Notes, Series H of
----------------------------------------------------------------
Comdisco, Inc.
--------------
Ladies and Gentlemen:
Reference is made to the form of the Registration Statement on Form S-
3 (File No. 333-65535, the "Registration Statement") filed with the Securities
and Exchange Commission (the "Commission") 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 of 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. This opinion is being furnished to you for filing on a Current Report on
Form 8-K which will be incorporated by reference as a supplemental exhibit 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 up
to $600 million in aggregate principal amount of Medium Term Notes, Series H to
be offered by the Company as Debt Securities under the Registration Statement
(the "Notes") 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.
I have also examined the form of Indenture between the Company and The Fuji Bank
and Trust Company, as Trustee, under which the Notes are to be issued (the
"Indenture") and the form of Distribution Agreement by and among the Company,
and certain Agents pursuant to which the Notes will be distributed (the
"Distribution Agreement"), the forms of each of which have been filed as
exhibits to the Registration Statement. I am also familiar with the form of
Prospectus Supplement and Prospectus relating to the Notes and their offering by
the Company, each dated January 19, 1999 and to be filed with the Commission on
or about January 21, 1999. I am also familiar with the proposed opinion of
legal counsel qualified to practice in New York concerning the validity,
legality and binding effect of the Notes under New York law, upon which I will
rely in delivering
<PAGE>
Comdisco, Inc.
January 19, 1999
Page 2
my opinion pursuant to the Distribution Agreement and upon which opinion I am
relying in connection with this opinion.
Based upon the foregoing examination, and in reliance thereon, I am of
the opinion that, subject to the terms of the Notes being otherwise in
compliance with applicable law, the Notes, when duly authorized, executed,
authenticated and delivered in the form contemplated by the Indenture and in
accordance with the terms of the applicable resolutions of the Board of
Directors of the Company, 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 issued and will be
binding obligations of the Company, entitled to the benefits of the Indenture.
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
Company's Current Report on Form 8-K to be incorporated by reference as a
supplemental exhibit to the Registration Statement.
Very truly yours,
/s/ Jeremiah M. Fitzgerald
---------------------------
Jeremiah M. Fitzgerald
Vice President and
General Counsel
