As Filed with the Securities and Exchange Commission on November 14, 1995
Registration No.33-_______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________
S-3 REGISTRATION STATEMENT
under
The Securities Act of 1933
__________________
USG Corporation
(Exact name of registrant as specified in its charter)
Delaware 3275 36-3329400
(State or other juris- (Primary Standard (IRS Employer
diction of incorpora- Industiral Classifi- Identifica-
tion or organization) cation Code Number) tion Number)
125 South Franklin Street
Chicago, Illinois 60606-4678
(312) 606-4000
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
___________________
ARTHUR G. LEISTEN, ESQ.
Senior Vice President & General Counsel
125 South Franklin Street
Chicago, Illinois 60606-4678
(312) 606-4000
(Name, address and telephone number of agent for service)
________________
Copies to:
FRANCIS J. GERLITS, P.C.
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
_______________
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement.
________________
If the only securities being registered on this Form
are being offered pursuant to dividend or interest
reinvestment plans, please check the following box.
If any of the securities being registered on this
Form are to be offered on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act of 1933,
check the following box. X
If this Form is filed to register additional
securities for an offering pursuant to Rule 462(b) under
the Securities Act, please check the following box and
list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering.
If this Form is a post-effective amendment filed
pursuant to rule 462(c) under the Securities Act, check
the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same offering.
If delivery of the prospectus is expected to be made
pursuant to Rule 434, please check the following box.
________________
<PAGE>
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Title of Each Class of Proposed Maximum Aggregate Amount of Registration
Securities to be Registered(1) Offering Price(2)(3) Fee(2)
<S> <C> <C>
Debt Securities, Preferred Stock,
$1.00 par value per share, Common
Stock, $0.10 par value per share(4) $300,000,000.00 $60,000
and Warrants to purchase Common
Stock, $0.10 par value per share
(1) Securities registered hereunder (the "Offered Securities") may be sold separately, together
or as units with other Offered Securities registered hereunder. The Offered Securities
registered hereunder also include such indeterminate number of shares of Common Stock
and
Preferred Stock that may be issued upon conversion of any convertible debt securities.
(2) Estimated in accordance with Rule 457 solely for the purpose of computing the registration
fee.
(3) Pursuant to Rule 457(o) under the Securities Act of 1933, as amended (the "Securities
Act"),
which permits the registration fee to be calculated on the basis of the maximum offering
price of all the securities listed, the table does not specify by each class information as
to the amount to be registered, proposed maximum offering price per unit or proposed
maximum
aggregate offering price.
(4) Includes preferred stock purchase rights.
</TABLE>
_______________
The registrant hereby amends this Registration Statement on such
date or dates as may be necessary to delay its effective date
until the registrant shall file a further amendment which specifically
states that this Registration Statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act
of 1933 or until this Registration Statement shall become effective
on such date as the Commission, acting pursuant to said Section
8(a), may determine.
<PAGE>
SUBJECT TO COMPLETION NOVEMBER 14, 1995
Prospectus
USG Corporation
Debt Securities
Preferred Stock
Common Stock
Warrants
USG Corporation (the "Corporation") may offer from time to time (i)
in one or more series, its debt securities consisting of notes,
debentures or other evidences of indebtedness (the "Debt
Securities"), (ii) shares of preferred stock, $1.00 par value per
share, in one or more series ("Preferred Stock"), (iii) shares of
common stock, $0.10 par value per share ("Common Stock"), or (iv)
warrants to purchase shares of Common Stock ("Warrants"), all
having an aggregate initial public offering price not to exceed
$300,000,000 or the equivalent thereof in one or more foreign
currencies, foreign currency units, or composite currencies,
including European Currency Units. The Debt Securities, Preferred
Stock, Common Stock and Warrants are referred to herein
collectively as the "Offered Securities." The Offered Securities
may be offered separately or as units with other Offered Securities
(such as, among other combinations, Debt Securities convertible
into Common Stock or Preferred Stock or Debt Securities, Preferred
Stock, Common Stock or Warrants offered together as units), in
separate series, in amounts, at prices and on terms to be
determined in light of market conditions at the time of sale. The
Debt Securities may be (i) senior or subordinated, or (ii) secured
or unsecured.
The specific terms of the Offered Securities with respect to
which this Prospectus is being delivered will be set forth in a
supplement to this Prospectus (a "Prospectus Supplement"), together
with the terms of the offering and sale of the Offered Securities
and the initial offering price and the net proceeds to the
Corporation from the sale thereof. The Prospectus Supplement will
include, with regard to the particular Offered Securities, the
following information: (i) in the case of Debt Securities, the
specific designation, aggregate principal amount, ranking,
authorized denomination, maturity, rate or method of calculation of
interest and dates for payment thereof, any terms for optional or
mandatory redemption or payment of additional amounts or any
sinking fund provisions, any index or formula for determining the
amount of any principal, premium, or interest provisions, the
currency or currency unit in which principal, premium, or interest
is payable, whether the securities are issuable in registered form
or in the form of global securities and any provisions for the
conversion or exchange of such Debt Securities; (ii) in the case of
Preferred Stock, the designation, number of shares, liquidation
preference per share, dividend rate (or method of calculation
thereof), dividend payment dates and dates from which dividends
shall accrue, any redemption or sinking fund provisions, voting
rights and any conversion or exchange rights; (iii) in the case of
Common Stock, the number of shares; (iv) in the case of Warrants
the duration, exercise price, exercise dates, detachability and the
number of shares of Common Stock which may be acquired upon
exercise; and (v) in the case of all Offered Securities, whether
such Offered Securities will be offered separately or as a unit
with other Offered Securities. The applicable Prospectus
Supplement will also contain information, where applicable, about
certain United States federal income tax considerations relating to
the Offered Securities and any listing on a securities exchange of
the Offered Securities covered by such Prospectus Supplement and
about relationships between the Corporation and the applicable
trustee, in the case of the issuance of Debt Securities and
Warrants.
The Offered Securities may be sold directly by the
Corporation, through agents designated from time to time or to or
through underwriters or dealers. See "Plan of Distribution." If
any agents of the Corporation, underwriters or dealers are involved
in the sale of any Offered Securities in respect of which this
Prospectus is being delivered, the names of such agents,
underwriters or dealers and any applicable commissions or discounts
and the net proceeds to the Corporation will be set forth in a
Prospectus Supplement.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
The date of this Prospectus is ________
<PAGE>
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE
ANY REPRESENTATION IN CONNECTION WITH THIS OFFERING OTHER THAN
THOSE CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR
AN APPLICABLE PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING
BEEN AUTHORIZED BY THE CORPORATION OR ANY UNDERWRITER, DEALER OR
AGENT. THIS PROSPECTUS AND ANY APPLICABLE PROSPECTUS SUPPLEMENT DO
NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO
BUY ANY SECURITIES OFFERED HEREBY IN ANY JURISDICTION TO ANY PERSON
TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION IN SUCH
JURISDICTION. NEITHER THE DELIVERY OF THIS PROSPECTUS OR ANY
PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER SHALL UNDER
ANY
CIRCUMSTANCES CREATE ANY IMPLICATION THAT THERE HAS BEEN NO
CHANGE
IN THE AFFAIRS OF THE CORPORATION SINCE THE DATE HEREOF OR THEREOF.
IN CONNECTION WITH ANY OFFERING OF THE OFFERED SECURITIES,
UNDERWRITERS, IF ANY, MAY OVER-ALLOT OR EFFECT TRANSACTIONS WHICH
STABILIZE OR MAINTAIN THE MARKET PRICES OF THE OFFERED SECURITIES
AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN
MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK
EXCHANGE, IN THE OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH
STABILIZATION, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
AVAILABLE INFORMATION
The Corporation has filed with the Securities and Exchange
Commission (the "Commission" or the "SEC") a Registration Statement
on Form S-3 (the "Registration Statement") (which term shall
encompass all amendments, exhibits and schedules thereto) under the
Securities Act of 1933, as amended (the "Securities Act"), with
respect to the securities being offered hereby. This Prospectus
does not contain all the information set forth in the Registration
Statement, certain parts of which are omitted in accordance with
the rules and regulations of the Commission, and to which reference
is hereby made. Such additional information can be inspected and
copied at the public reference facilities maintained by the
Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549 and at the following regional offices of the
Commission: Northwestern Atrium Center, 500 W. Madison Street,
Suite 1400, Chicago, Illinois 60661; and Seven World Trade Center,
New York, New York 10048. Copies of such material can be obtained
by mail from the public reference section of the Commission at
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 at
prescribed rates. Statements made in this Prospectus as to the
contents of any contract, agreement or other document referred to
are not necessarily complete but such statements are complete in
all material respects for the purposes herein made. With respect
to each such contract, agreement or other document filed as an
exhibit to the Registration Statement, reference is made to the
exhibit for a more complete description of the matter involved, and
each such statement shall be deemed qualified in its entirety by
such reference.
The Corporation is subject to the informational requirements
of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and in accordance therewith, files periodic reports and
other information with the Commission. Such reports and other
information filed with the Commission, as well as the Registration
Statement, can be inspected and copied at the public reference
facilities of the Commission at 450 Fifth Street, N.W., Washington,
D.C. 20549, and at the Commission's regional offices located at
Northwestern Atrium Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661, and Seven World Trade Center, New York,
New York 10048. Copies of such material can also be obtained by
mail from the Public Reference Section of the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates.
Such reports and other information with respect to the Corporation
are available for inspection at the offices of the New York Stock
Exchange, Inc., 20 Broad Street, New York, New York 10005 and the
Chicago Stock Exchange, Inc., One Financial Place, 440 South
LaSalle Street, Chicago, Illinois 60605.
INFORMATION INCORPORATED BY REFERENCE
The following documents filed with the Commission (File No. 1-
8864) are incorporated herein by reference:
(i) the Corporation's Annual Report on Form 10-K for the
year ended December 31, 1994;
(ii) the Corporation's Quarterly Reports on Form 10-Q for
the quarters ended March 31, 1995, June 30, 1995 and September
30, 1995; and
(iii) the Corporation's Current Report on Form 8-K
dated May 24, 1995.
The description of the capital stock is incorporated by reference
to the Corporation's Registration Statement on Form 8-A dated April
16, 1993.
All documents filed by the Corporation pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of
this Prospectus and prior to the termination of the offering of the
Offered Securities shall be deemed to be incorporated in this
Prospectus by reference and to be a part hereof from the date of
filing of such documents. Any statement contained herein or in a
document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein (or
in the applicable Prospectus Supplement) or in any other
subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a
part of this Prospectus.
The Corporation hereby undertakes to provide without charge to
each person to whom a copy of this Prospectus has been delivered,
upon the written or oral request of such person, a copy of any or
all of the information filed by it that has been incorporated by
reference in this Prospectus (not including exhibits to the
information that is incorporated by reference herein unless such
exhibits are specifically incorporated by reference in such
information). Requests for such information should be directed to
USG Corporation, 125 South Franklin Street, Chicago, Illinois
60606-4678, Attention: Investor Relations (telephone number:
(312) 606-4000).
THE CORPORATION
Through its subsidiaries, USG is a leading manufacturer of
building materials, producing a wide range of products for use in
new residential and new nonresidential construction, repair and
remodel, as well as products used in certain industrial processes.
USG's operations are organized into two core businesses: (i) the
North American Gypsum business and (ii) the Worldwide Ceilings
business. The North American Gypsum business includes United
States Gypsum Company and L&W Supply Corporation in the United
States, the gypsum business of CGC Inc. in Canada and the
Corporation's Mexican gypsum operations. The Worldwide Ceilings
business is composed of USG Interiors, Inc., the international
interior systems businesses in Europe, Asia Pacific and Latin
America managed as USG International and the interior systems
business of CGC, Inc.
The Corporation's United States Gypsum Company subsidiary is
the largest producer of gypsum wallboard in the United States and
accounts for approximately one-third of total domestic gypsum
wallboard. USG Interiors, Inc. is a leading supplier of interior
ceiling grid and tile systems, interior wall systems and other
products used primarily in commercial applications. USG Interiors
is the largest producer of ceiling grid and the second largest
producer of ceiling tile in the United States. L&W Supply
Corporation, the Corporation's distribution subsidiary, is the
largest distributor of wallboard and related products in the U.S.
In addition to its United States operations, the Corporation's 76%
owned subsidiary CGC Inc. is the largest manufacturer of gypsum
products in eastern Canada and USG International supplies interior
systems and gypsum products in Europe, Asia Pacific and Latin
America.
The Corporation's principal executive offices are located at
125 South Franklin Street, Chicago, Illinois 60606. Its telephone
number at that address is 312-606-4000.
USE OF PROCEEDS
Unless otherwise described in the applicable Prospectus
Supplement, the Corporation intends to use the net proceeds from
the sale of the Offered Securities for general corporate purposes,
which may include the repayment of existing indebtedness and the
financing of capital expenditures and acquisitions.
<PAGE>
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed
charges (a) of the Corporation for the periods indicated:
<TABLE>
<CAPTION>
Nine months ended
September 30, 1993 Years ended December 31,
Year ended
December 31, May 7- Jan 1-
1995 1994 1994 December 31 May 6 1992 1991 1990
<C> <C> <C> <C> <C> <C> <C> <C>
1.9 x (b) -(c) -(c) -(c) 8.5x (d) -(e) -(e) -(e)
_______________
(a) For purposes of computing the ratio of earnings to fixed charges, earnings are defined as
earnings/(loss) from continuing operations before taxes on income, plus interest expense,
plus, for the
years 1990 through 1993, amortization of capitalized financing costs. Fixed charges are
defined as
interest expense plus amortization of capitalized financing costs. The interest factor in rental
expense had an insignificant effect on the ratios.
(b) Included in earnings for the nine months ended September 30, 1995, was a non-cash charge
for
amortization of excess reorganization value of $127 million. Excluding the impact of
amortization of
excess reorganization value, the ratio of earnings to fixed charges for this period was 3.6x.
(c) For the nine months ended September 30, 1994, the year ended December 31, 1994 and the
period of May
7 through December 31, 1993, earnings were inadequate to cover fixed charges. The amounts
of the
coverage deficiency were $6 million, $38 million and $79 million, respectively. Included in
earnings
for these periods were non-cash charges for amortization of excess reorganization value of
$127
million, $169 million and $113 million, respectively. Excluding the impact of amortization of
excess
reorganization value, the ratio of earnings to fixed charges for these periods were 2.2x, 1.9x
and
1.4x, respectively.
(d) Earnings for the period of January 1 through May 6, 1993 include a restructuring gain of
$709 million.
Without this gain, earnings would have been inadequate to cover fixed charges by $52
million.
(e) For the years ended December 31, 1992, 1991 and 1990, earnings were inadequate to cover
fixed charges
by $224 million, $194 million, and $60 million, respectively.
</TABLE>
GENERAL DESCRIPTION OF THE OFFERED SECURITIES
Pursuant to this Prospectus and applicable Prospectus
Supplements, the Corporation may offer Common Stock, Preferred
Stock, Debt Securities, Warrants or any combination of the
foregoing, either individually or as units consisting of two or
more Offered Securities. The aggregate offering price of Offered
Securities offered by the Corporation under this Prospectus will
not exceed $300,000,000. If Offered Securities are offered as
units, the terms of the units will be set forth in a Prospectus
Supplement.
DESCRIPTION OF COMMON STOCK
General Matters
The total number of shares of capital stock that the
Corporation has authority to issue is 236,000,000, consisting of
200,000,000 shares of Common Stock, par value $0.10 per share, and
36,000,000 shares of Preferred Stock, par value $1.00 per share.
The following summary of certain provisions of the Corporation's
capital stock describes all material provisions of, but does not
purport to be complete and is subject to, and qualified in its
entirety by, the Certificate of Incorporation and the By-laws of
the Corporation, each of which is included as an exhibit to the
Registration Statement of which this Prospectus forms a part.
Common Stock
The issued and outstanding shares of Common Stock are,
and any shares of Common Stock which may be offered pursuant to
this Prospectus and an applicable Prospectus Supplement will be
upon payment therefor, validly issued, fully paid and
nonassessable. Subject to the prior rights of the holders of any
Preferred Stock, if any, the holders of outstanding shares of
Common Stock are entitled to receive dividends out of assets
legally available therefor at such times and in such amounts as the
Board of Directors may from time to time determine. The
Corporation is currently a party to various agreements which
restrict the payment of dividends. Upon liquidation, dissolution
or winding up of the Corporation, the holders of Common Stock are
entitled to receive pro rata the assets of the Corporation which
are legally available for distribution, after payment of all debts
and other liabilities and subject to the prior rights of any
holders of Preferred Stock then outstanding, if any. Each
outstanding share of Common Stock is entitled to one vote on all
matters submitted to a vote of stockholders. There is no
cumulative voting.
Certain Provisions of the Certificate of Incorporation and By-laws
The Certificate of Incorporation and By-laws of the
Corporation contain certain provisions that are intended to enhance
the likelihood of continuity and stability in the composition of
the Board and which may have the effect of delaying, deferring or
preventing a future takeover or change in control of the
Corporation unless such takeover or change in control is approved
by the Board. Such provisions may also render the removal of the
current Board and of management more difficult.
The Corporation's Certificate of Incorporation provides
for three classes of directors, each of which is to be elected on
a staggered basis for a term of three years. At present, the Board
is composed of 12 directors.
The affirmative vote or consent of at least 80% of the
voting power of all of the stock of the Corporation entitled to
vote in the election of directors is required to approve certain
types of transactions with another corporation, person or entity
which, directly or indirectly, owns 5% or more of the outstanding
shares of any class of the Corporation's stock which is entitled to
vote in the election of directors. Such transactions include a
merger or consolidation of the Corporation or any of its subsidiar-
ies, sale of all or substantially all of the assets of the
Corporation or any of its subsidiaries or the sale or lease of any
assets (except assets having an aggregate fair market value of less
than $10 million) in exchange for certain types of securities. The
Board may render such super-majority voting requirements
inapplicable by (i) approving a memorandum of understanding with
such other corporation, person or entity with respect to such a
transaction prior to the time that such corporation, person or
entity becomes the beneficial owner of 5% or more of any class of
voting stock or (ii) approving such a transaction after the time
that such other corporation, person or entity becomes the
beneficial owner of 5% or more of any class of voting stock if a
majority of the members of the Board approving such transaction
were duly elected and acting members of the Board prior to the time
that such other corporation, person or entity became the beneficial
owner of 5% or more of any class of voting stock.
Any action to be taken at any annual or special meeting
of stockholders of the Corporation may only be taken without a
meeting if a consent in writing is signed by the holders of at
least 80% of the voting power of the Corporation entitled to vote
with respect to such subject matter.
The provisions in the Certificate of Incorporation
described above may only be amended by 80% of the voting power of
the Corporation entitled to vote in the election of directors.
Future Issuance of Preferred Stock
As of the date of this Prospectus, there are no shares of
Preferred Stock issued or outstanding. The Corporation's Board of
Directors may, without further action by the Corporation's
stockholders, from time to time, direct the issuance of shares of
Preferred Stock in series and may, at the time of issuance,
determine the rights, preferences and limitations of each series.
Satisfaction of any dividend preferences of outstanding shares of
Preferred Stock would reduce the amount of funds available for the
payment of dividends on shares of Common Stock. Holders of shares
of Preferred Stock may be entitled to receive a preference payment
in the event of any liquidation, dissolution or winding-up of the
Corporation before any payment is made to the holders of shares of
Common Stock. Under certain circumstances, the issuance of shares
of Preferred Stock may render more difficult or tend to discourage
a merger, tender offer or proxy contest, the assumption of control
by a holder of a large block of the Corporation's securities or the
removal of incumbent management. The Board of Directors of the
Corporation, without stockholder approval, may issue shares of
Preferred Stock with voting and conversion rights which could
adversely affect the holders of shares of Common Stock.
Certain Provisions of Delaware Law
The Corporation is governed by the provisions of Section
203 of the Delaware General Corporation Law. In general, the law
prohibits a public Delaware corporation from engaging in a
"business combination" with an "interested stockholder" for a
period of three years after the date of the transaction in which
the person became an interested stockholder, unless the business
combination is approved in a prescribed manner. "Business
combination" includes mergers, asset sales and other transactions
resulting in a financial benefit to the stockholder. An
"interested stockholder" is a person who, together with affiliates
and associates, owns (or within three years, did own) 15% or more
of the corporation's voting stock.
Shareholder Rights Plan
The Corporation's rights agreement (the "Rights
Agreement") between the Corporation and Harris Trust and Savings
Bank (the "Rights Agent") entitles the registered stockholder to
purchase from the Corporation one-hundredth share of Junior
Participating Preferred Stock, Series C ("Junior Series C Preferred
Stock") at a price of $35 per one-hundredth share (the "Rights
Purchase Price"), subject to adjustment.
Until the earlier to occur of (i) 10 days following the
date of a public announcement that a person or group of affiliated
or associated persons (an "Acquiring Person"), other than the
Corporation, any employee benefit plan of the Corporation, any
entity holding Common Stock for or pursuant to the terms of any
such plan has beneficial ownership (as defined in the Rights
Agreement) of 20% or more of the then outstanding Common Stock,
(ii) 10 days following the date of a public announcement that a
person or group of affiliated or associated persons (an "Adverse
Person") has beneficial ownership of 10% or more of the then
outstanding Common Stock, the acquisition of which has been
determined by the Board to present an actual threat of an
acquisition of the Corporation that would not be in the best
interest of the Corporation's stockholders or (iii) 10 days
following the date of commencement of, or public announcement of,
a tender offer or exchange offer for 30% or more of the Common
Stock (the earliest of such dates being called the "Distribution
Date"), the Rights will be evidenced, with respect to the Common
Stock, by the certificates which will represent such Common Stock.
The Rights Agreement provides that, until the Distribution Date,
the Rights will be transferred with and only with the Common Stock
certificates. Until the Distribution Date (or earlier redemption
or expiration of the Rights), Common Stock certificates issued
after May 6, 1993 upon transfer or new issuance of shares of Common
Stock will contain a notation incorporating the Rights Agreement by
reference.
Until the Distribution Date (or earlier redemption or
expiration of the Rights), the surrender for transfer of any Common
Stock certificate also will constitute the transfer of the Rights
associated with the Common Stock represented by such certificate.
As soon as practicable following the Distribution Date separate
certificates evidencing the Rights (the "Rights Certificates") will
be mailed to holders of record of the Common Stock as of the close
of business on the Distribution Date and such separate Rights
Certificates alone will evidence the Rights. The Rights are not
exercisable until the Distribution Date. The Rights will expire on
May 6, 2003 (the "Final Expiration Date"), unless earlier redeemed
by the Corporation as described below, Until a Right is exercised,
the holder thereof, as such, will have no rights as a stockholder
of the Corporation, including, without limitation, the right to
vote or to receive dividends.
In the event that, at any time after the first public
announcement that an Acquiring Person or an Adverse Person has
become such, the Corporation is involved in a merger or other
business combination where the Corporation is not the surviving
corporation or where Common Stock is changed or exchanged or in a
transaction where 50% or more of its consolidated assets or earning
power are sold, proper provision will be made so that each holder
of a Right (other than such Acquiring Person or Adverse Person)
will thereafter have the right to receive, upon the exercise
thereof at the then-current exercise price of the Right, that
number of shares of common stock of the acquiring company which at
the time of such transaction would have a market value of two times
the exercise price of the Right.
In the event that the Corporation is the surviving
corporation in a merger or other business combination involving an
Acquiring Person or an Adverse Person and the Common Stock remains
outstanding and unchanged or in the event that an Acquiring Person
or an Adverse Person engages in one of a number of self-dealing
transactions specified in the Rights Agreement, proper provision
will be made so that each holder of a Right, other than Rights that
are or were beneficially owned (as defined in the Rights Agreement)
by the Acquiring Person or the Adverse Person, as the case may be,
on the earliest of the Distribution Date, the date the Acquiring
Person acquires 20% or more of the outstanding Common Stock or the
date the Adverse Person becomes such (which will thereafter be
void), will thereafter have the right to receive upon exercise
thereof that number of shares of Common Stock having a market value
at the time of such transaction of two times the exercise price of
the Right. In addition, under certain circumstances the Board has
the option of exchanging all or part of the Rights (excluding void
Rights) for Common Stock in the manner described in the Rights
Agreement. The Rights Agreement also contains a so-called "flip-
in" feature which provides that if any person or group of
affiliated or associated persons becomes an Adverse Person, then
the provisions of the preceding two sentences shall apply.
The Rights Agreement also provides that, at any time
prior to the public announcement that an Acquiring Person or an
Adverse Person has become such, the Board may (i) redeem the Rights
in whole, but not in part, at a price of $0.01 per Right (the
"Redemption Price") or (ii) amend the Rights Agreement in any
respect other than any amendment which would reduce the Redemption
Price, shorten the Final Expiration Date or increase the Rights
Purchase Price. At any time after the public announcement that an
Acquiring Person or Adverse Person has become such, the Corporation
may amend the Rights Agreement only in a manner which would not
adversely affect the holders of the Rights. Immediately upon the
action of the Board electing to redeem the Rights, the right to
exercise the Rights will terminate and the only right of the
holders of Rights will be to receive the Redemption Price.
The Purchase Price payable, and the number of shares of
Series C Preferred Stock or other securities or property issuable,
upon exercise of the Rights are subject to adjustment from time to
time to prevent dilution as described in the Rights Agreement.
With certain exceptions, no adjustment in the Rights Purchase Price
will be required until cumulative adjustments require an adjustment
of at least 1% in such Rights Purchase Price. No fractional shares
will be issued (other than fractions which are integral multiples
of one hundredth of a share, which may, at the election of the
Corporation, be evidenced by depositary receipts), and in lieu
thereof, an adjustment in cash will be made based on the market
price of the Series C Preferred Stock on the last trading date
prior to the date of exercise.
The Series C Preferred Stock purchasable upon exercise of
the Rights will be nonredeemable and junior to any outstanding
shares of preferred stock of the Corporation. Each share of Series
C Preferred Stock will have a minimum preferential quarterly
dividend rate of $25 per share, but will be entitled to receive, in
the aggregate, a dividend of 100 times the dividend declared on the
shares of Common Stock. In the event of liquidation, the holders
of the Series C Preferred Stock will receive a minimum preferential
liquidation payment of $100 per share, but will be entitled to
receive an aggregate liquidation payment equal to 100 times the
payment made per share of Common Stock. Each share of Series C
Preferred Stock will have 100 votes, voting together with the
Common Stock. In the event of any merger, consolidation, or other
transaction in which shares of Common Stock are exchanged, each
share of Series C Preferred Stock will be entitled to receive 100
times the amount and the same type of consideration received per
share of Common Stock. The rights of the Series C Preferred Stock
as to dividends, liquidation and voting, and in the event of
mergers and consolidations, are protected by customary anti-
dilution provisions. Because of the nature of the Series C
Preferred Stock's dividend, liquidation and voting rights, the
value of the interest in a share of Series C Preferred Stock should
approximate the value of one share of Common Stock.
The Rights have certain anti-takeover effects. The
Rights will cause substantial dilution to a person or group that
attempts to acquire the Corporation on terms not approved by the
Board, except pursuant to an offer conditioned on a substantial
number of Rights being acquired. The Rights should not interfere
with any merger or other business combination approved by the Board
since the Rights may be redeemed by the Corporation at $.01 per
Right prior to the public announcement that a person has become an
Acquiring Person or an Adverse Person.
Limitations on Liability and Indemnification of Officers and
Directors
The Certificate of Incorporation limits the liability of
directors to the fullest extent permitted by the Delaware General
Corporation Law. In addition, the By-laws and separate
indemnification agreement provide that the Corporation shall
indemnify directors and officers of the Corporation to the extent
permitted by such law.
Transfer Agent and Registrar
The Transfer Agent and Registrar for the Common Stock is
Harris Trust and Savings Bank.
DESCRIPTION OF WARRANTS
The Corporation may issue Warrants to purchase Common
Stock. Warrants may be issued independently or together with any
other Offered Securities and may be attached to or separate from
such other Offered Securities. The Warrants are to be issued under
warrant agreements (each a "Warrant Agreement") to be entered into
between the Corporation and a bank or trust company, as warrant
agent (the "Warrant Agent"), all as shall be set forth in the
Prospectus Supplement relating to Warrants being offered pursuant
thereto.
The applicable Prospectus Supplement will describe the
following terms of the Warrants offered thereby: (1) the title of
such Warrants; (2) the offering price; (3) the aggregate number of
shares of Common Stock purchasable upon exercise of such Warrants
and minimum number of Warrants that are exercisable; (4) if
applicable, the number of shares of Common Stock with which such
Warrants are being offered and the number of such Warrants being
offered with each such share of Common Stock; (5) the date on and
after which such Warrants and the related shares of Common Stock
will be separately transferable; (6) the number of shares of Common
Stock purchasable upon exercise of each such Warrant and the price
at which such number of shares of Common Stock may be purchased
upon such exercise; (7) the date on which the right to exercise
such Warrants shall commence and the date on which such right shall
expire; (8) whether Warrants represented by a warrant certificates
will be issued in registered or bearer form; (9) information with
respect to book-entry procedures, if any; (10) if applicable, a
discussion of any material federal income tax considerations; and
(11) any other terms of such Warrants, including terms, procedures
and limitations relating to the exchange and exercise of such
Warrants.
No Rights as a Stockholder
Holders of Warrants will not be entitled, by virtue of
being such holders, to vote, to consent, to receive dividends, to
receive notice as stockholders with respect to any meeting of
stockholders for the election of directors of the Corporation or
any other matter, or to exercise any rights whatsoever as
stockholders of the Corporation.
Warrants Subject to Adjustment
The exercise price payable and the number of shares of
Common Stock purchasable upon the exercise of each Warrant will be
subject to adjustment upon the occurrence of certain events,
including the issuance of a stock dividend to holders of Common
Stock or a stock split, reverse stock split, combination,
subdivision or reclassification of Common Stock. In lieu of
adjusting the number of shares of Common Stock purchasable upon
exercise of each Warrant, the Corporation may elect to adjust the
number of Warrants. No adjustments in the number of shares
purchasable upon exercise of the Warrants will be required until
cumulative adjustments require an adjustment of at least 1%
thereof. The Corporation may, at its option, reduce the exercise
price at any time. No fractional shares will be issued upon
exercise of Warrants, but the Corporation will pay the cash value
of any fractional shares otherwise issuable. Notwithstanding the
foregoing, in case of any consolidation, merger, or sale or
conveyance of the property of the Corporation as an entirety or
substantially as an entirety, the holder of each outstanding
Warrant shall have the right to the kind and amount of shares of
stock and other securities and property (including cash) receivable
by a holder of the number of shares of Common Stock into which such
Warrant was exercisable immediately prior thereto.
Exercise of Warrants
Each Warrant will entitle the holder to purchase for cash
Common Stock at such exercise price as shall in each case be set
forth in, or be determinable as set forth in, the Prospectus
Supplement relating to the Warrants offered thereby. Warrants may
be exercised at any time up to the close of business on the
expiration date set forth in the Prospectus Supplement relating to
the Warrants offered thereby. After the close of business on the
expiration date, unexercised Warrants will become void.
Warrants may be exercised as set forth in the Prospectus
Supplement relating to the Warrants offered thereby. Upon receipt
of payment and the warrant certificate properly completed and duly
executed at the corporate trust office of the Warrant Agent or any
other office indicated in the Prospectus Supplement, the
Corporation will, as soon as practicable, forward the Common Stock
purchasable upon such exercise. If less than all of the Warrants
represented by such warrant certificate are exercised, a new
warrant certificate will be issued for the remaining Warrants.
DESCRIPTION OF PREFERRED STOCK
Under the Certificate of Incorporation, the Board of
Directors of the Corporation may direct the issuance of up to
36,000,000 shares of Preferred Stock in one or more series and with
rights, preferences, privileges and restrictions, including
dividend rights, voting rights, conversion rights, terms of
redemption and liquidation preferences, that may be fixed or
designated by the Board of Directors pursuant to a certificate of
designation without any further vote or action by the Corporation's
stockholders. Under the Corporation's Certificate of Incorporation
2,000,000 shares of Junior Series C Preferred Stock have been
designated for possible issuance in connection with the Rights
Agreement. As of the date of this Prospectus, the Board of
Directors has not designated any additional series of Preferred
Stock. The issuance of Preferred Stock may have the effect of
delaying, deferring or preventing a change in control of the
Corporation. Preferred Stock, upon issuance against full payment
of the purchase price therefor, will be fully paid and
nonassessable. The specific terms of a particular series of
Preferred Stock will be described in the Prospectus Supplement
relating to that series. The description of Preferred Stock set
forth below and the description of the terms of a particular series
of Preferred Stock set forth in the related Prospectus Supplement
do not purport to be complete and are qualified in their entirety
by reference to the certificate of designation relating to that
series. The related Prospectus Supplement will contain a
description of certain United States federal income tax
consequences relating to the purchase and ownership of the series
of Preferred Stock described in such Prospectus Supplement.
As of the date of this Prospectus, no shares of Preferred
Stock were issued or outstanding.
The rights, preferences, privileges and restrictions of
the Preferred Stock of each series will be fixed by the certificate
of designation relating to such series. A Prospectus Supplement,
relating to each series, will specify the terms of the Preferred
Stock as follows:
(a)The maximum number of shares to constitute the series
and the distinctive designation thereof;
(b) The annual dividend rate, if any, on shares of the
series, whether such rate is fixed or variable or both,
the date or dates from which dividends will begin to
accrue or accumulate and whether dividends will be
cumulative;
(c) The price at and the terms and conditions on which
the shares of the series may be redeemed, including the
time during which shares may be redeemed and any
accumulated dividends thereon that the holders of shares
of the series shall be entitled to receive upon the
redemption thereof;
(d) The liquidation preference, if any, and any
accumulated dividends thereon, that the holders of shares
of the series shall be entitled to receive upon the
liquidation, dissolution or winding up of the affairs of
the Corporation;
(e) Whether or not the shares of the series will be
subject to operation of a retirement or sinking fund,
and, if so, the extent and manner is which any such fund
shall be applied to the purchase or redemption of the
shares of the series for retirement or for other
corporate purposes, and the terms and provisions relating
to the operation of such fund;
(f) The terms and conditions, if any, on which the
shares of the series shall be convertible into, or
exchangeable for, shares of any other class or classes of
capital stock of the Corporation or a third party or of
any other series of the same class, including the price
or prices or the rate or rates of conversion or exchange
and the method, if any, of adjusting the same and whether
such conversion is mandatory or optional;
(g) The stated value of the shares of such series;
(h) The voting rights, if any, of the shares of the
series; and
(i) Any or all other preferences and relative,
participating, optional or other special rights or
qualifications, limitations or restrictions thereof.
In the event of any voluntary liquidation, dissolution or
winding up of the affairs of the Corporation, the holders of any
series of any class of Preferred Stock shall be entitled to receive
in full out of the assets of the Corporation, including its
capital, before any amount shall be paid or distributed among the
holders of the Common Stock or any other shares ranking junior to
such series, the amounts fixed by the Board of Directors with
respect to such series and set forth in the applicable Prospectus
Supplement plus an amount equal to all dividends accrued and unpaid
thereof to the date of payment of the amount due pursuant to such
liquidation, dissolution or winding up the affairs of the
Corporation. After payment to the holders of the Preferred Stock
of the full preferential amounts to which they are entitled, the
holders of Preferred Stock, as such, shall have no right or claim
to any of the remaining assets of the Corporation.
If liquidating distributions shall have been made in full
to all holders of Preferred Stock, the remaining assets of the
Corporation shall be distributed among the holders of any other
classes or series of capital stock ranking junior to the Preferred
Stock upon liquidation, dissolution or winding up, according to
their respective rights and preferences and in each case according
to their respective numbers of shares. The merger or consolidation
of the Corporation into or with any other corporation, or the sale,
lease or conveyance of all or substantially all of the assets of
the Corporation, shall not constitute a dissolution, liquidation or
winding up of the Corporation.
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt
Securities sets forth certain general terms and provisions of the
Debt Securities to which a Prospectus Supplement may relate. The
particular terms of the Debt Securities offered by any Prospectus
Supplement and the extent, if any, to which such general provisions
may not apply thereto will be described in the Prospectus
Supplement relating to such Offered Securities.
The Debt Securities may be (i) senior debt securities
("Senior Debt Securities") or subordinated debt securities
("Subordinated Debt Securities"), or (ii) secured or unsecured.
The Senior Debt Securities are to be issued in one or more series
(each such series a "Series") under an Indenture dated as of
_______________, (the "Senior Indenture") between the Corporation
and a trustee to be named prior to an offering of Senior Debt
Securities, as Trustee (the "Senior Trustee"), and the Subordinated
Debt Securities are to be issued in one or more Series under an
Indenture dated as of ______________, (the "Subordinated
Indenture") between the Corporation and a trustee to be named prior
to an offering of Subordinated Debt Securities, as Trustee (the
"Subordinated Trustee"). The forms of the Senior Indenture and the
Subordinated Indenture (being sometimes referred to herein
collectively as the "Indentures" and individually as an
"Indenture") are filed as exhibits to the Registration Statement.
The following summaries of certain provisions of the Debt
Securities and the Indentures do not purport to be complete and are
subject to, and are qualified in their entireties by reference to,
all of the provisions of the Indentures, including the definitions
therein of certain terms. Whenever particular provisions or
defined terms in the Indentures are referred to herein, such
provisions or defined terms are incorporated by reference herein.
Section references used herein are references to sections in both
Indentures unless otherwise indicated. The Indentures are
substantially identical, except for certain covenants of the
Corporation and provisions relating to subordination.
The Debt Securities will be obligations of the
Corporation exclusively. Because the Corporation conducts
substantially all of its business through its subsidiaries, the
ability of the Corporation to meet its obligations under the Debt
Securities and its other indebtedness will be dependent on the
earnings and cash flow of its subsidiaries and the ability of its
subsidiaries to pay dividends and to advance funds to the
Corporation. In addition, the Corporation's rights and the rights
of its creditors and securities holders, including the holders of
the Debt Securities, to participate in the assets of any subsidiary
upon such subsidiary's liquidation or recapitalization will be
subject to prior claims of such subsidiary's creditors, except to
the extent that the Corporation may itself be a creditor with
recognized claims against any such subsidiary. Neither the Senior
Indenture nor the Subordinated Indenture restricts or limits the
ability of any subsidiary of the Corporation to incur, create,
assume or guarantee indebtedness. The Prospectus Supplement will
contain information with respect to the senior and subordinated
debt outstanding as of the date of the Prospectus Supplement.
General
The Indentures do not limit the amount of Debt Securities
which can be issued thereunder and provide that debt securities of
any Series may be issued thereunder up to the aggregate principal
amount which may be authorized from time to time by the
Corporation. Debt Securities may be denominated and payable in
foreign currencies or units based on or relating to foreign
currencies, including European Currency Units ("ECUs"). Special
United States federal income tax considerations applicable to any
Debt Securities so denominated will be described in the relevant
Prospectus Supplement. The Indentures do not limit the amount of
other indebtedness or securities which may be issued by the
Corporation.
Upon issuance, any Senior Debt Securities, secured or
unsecured, will be senior obligations of the Corporation and will
rank pari passu with other senior obligations of the Corporation.
Any Senior Debt Securities would be effectively subordinated to
current and future indebtedness and liabilities of the
Corporation's subsidiaries.
All Subordinated Debt Securities will be unsecured and
will be subordinated in right of payment to the prior payment in
full of Senior Indebtedness (which term includes Senior Debt
Securities) of the Corporation described below under " --
Provisions Applicable Solely to Subordinated Debt Securities."
The Trustee will authenticate and deliver Debt Securities
executed and delivered to it by the Corporation as set forth in the
applicable Indenture.
Reference is made to the Prospectus Supplement for the
following and other possible terms of each Series of the Debt
Securities in respect of which this Prospectus is being delivered:
(i) the title of the Debt Securities and classification as Senior
Debt Securities or Subordinated Debt Securities; (ii) any limit
upon the aggregate principal amount of the Debt Securities;
(iii) the currency or currency units based on or relating to
currencies in which such Debt Securities are denominated and/or in
which principal (and premium, if any) and/or any interest will or
may be payable; (iv) if other than 100% of the principal amount,
the percentage of their principal amount at which the Debt
Securities will be offered; (v) the date or dates on which the
principal of the Debt Securities will be payable (or method of
determination thereof); (vi) the rate or rates (or method of
determination thereof) at which the Debt Securities will bear
interest, if any, the date or dates from which any such interest
will accrue and on which such interest will be payable, and the
record dates for the determination of the holders to whom interest
is payable; (vii) if other than as set forth herein, the place or
places where the principal of and interest, if any, on the Debt
Securities will be payable; (viii) the price or prices at which,
the period or periods within which and the terms and conditions
upon which Debt Securities may be redeemed, in whole or in part, at
the option of the Corporation; (ix) the obligation, if any, of the
Corporation to redeem, repurchase or repay Debt Securities, whether
pursuant to any sinking fund or analogous provisions or pursuant to
other provisions set forth therein or at the option of a Holder
thereof; (x) whether the Debt Securities will be represented in
whole or in part by one or more global notes registered in the name
of a depository or its nominee; (xi) whether the Debt Securities
will be issuable in registered form or bearer form and, if Debt
Securities in bearer form are issuable, restrictions applicable to
the exchange of one form for another and to the offer, sale and
delivery of Debt Securities in bearer form; (xii) whether and under
what circumstances the Corporation will pay additional amounts on
Debt Securities held by a person which is not a U.S. person (as
defined in the Prospectus Supplement) in respect of any tax,
assessment or governmental charge withheld or deducted, and if so,
whether the Corporation will have the option to redeem such Debt
Securities rather than pay such additional amounts; (xiii) any
terms pursuant to which the Debt Securities may be convertible into
Preferred Stock or Common Stock; and (xiv) any other terms or
conditions not inconsistent with the provisions of the Indenture
upon which the Debt Securities will be offered. (Section 2.3)
"Principal" when used herein includes, when appropriate, the
premium, if any, on the Debt Securities.
Unless otherwise provided in the Prospectus Supplement
relating to any Debt Securities, principal and interest, if any,
will be payable, and the Debt Securities will be transferable and
exchangeable, at the office or offices or agency maintained by the
Corporation for such purposes, provided that payment of interest on
the Debt Securities will be paid at such place of payment by check
mailed to the persons entitled thereto at the addresses of such
persons appearing on the Security Register. Interest on the Debt
Securities will be payable on any interest payment date to the
persons in whose name the Debt Securities are registered at the
close of business on the record date with respect to such interest
payment date. (Section 2.7)
Debt Securities may be issued in fully registered form in
minimum denominations of $1,000 and any integral multiple thereof.
(Section 2.7) Debt Securities may be exchanged for an equal
aggregate principal amount of Debt Securities of the same Series
and date of maturity in such authorized denominations as may be
requested upon surrender of the Debt Securities at an agency of the
Corporation maintained for such purpose and upon fulfillment of all
other requirements of such agent. (Section 2.8) No service charge
will be made for any transfer or exchange of the Debt Securities,
but the Corporation may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection
therewith. (Section 2.8) Debt Securities in bearer form and the
coupons, if any, appertaining thereto will be transferable by
delivery. (Section 2.8)
Debt Securities will bear interest at a fixed rate (a
"Fixed Rate Security") or a floating rate (a "Floating Rate
Security"). Debt Securities bearing no interest or interest at a
rate which, at the time of issuance, is below the prevailing market
rate, will be sold at a discount below their stated principal
amount. Special United States federal income tax considerations
applicable to any such discounted Debt Securities or to certain
Debt Securities issued at par which are treated as having been
issued at a discount for United States federal income tax purposes
will be described in the applicable Prospectus Supplement.
Debt Securities may be issued, from time to time, with
the principal amount payable on any principal payment date, or the
amount of interest payable on any interest payment date, to be
determined by reference to one or more currency exchange rates,
commodity prices, equity indices or other factors. Holders of such
Debt Securities may receive a principal amount on any principal
payment date, or a payment of interest on any interest payment
date, that is greater than or less than the amount of principal or
interest otherwise payable on such dates, depending upon the value
on such dates of the applicable currency, commodity, equity index
or other factor. Information as to the methods for determining the
amount of principal or interest payable on any date, the
currencies, commodities, equity indices or other factors to which
the amount payable on such date is linked and certain additional
tax considerations will be set forth in the applicable Prospectus
Supplement.
The Indenture requires the annual filing by the
Corporation with the Trustee of a certificate as to compliance with
all conditions and covenants contained in the Indenture.
(Section 3.4)
The Corporation will comply with Section 14(e) under the
Exchange Act, and any other tender offer rules under the Exchange
Act which may then be applicable, in connection with any obligation
of the Corporation to purchase Debt Securities at the option of the
holders thereof. Any such obligation applicable to a Series of
Debt Securities will be described in the Prospectus Supplement
relating thereto.
Unless otherwise described in a Prospectus Supplement
relating to any Debt Securities, there are no covenants or
provisions contained in either Indenture which may afford the
holders of Debt Securities protection in the event of a highly
leveraged transaction involving the Corporation, except to the
limited extent described under "Consolidation, Merger, Sale or
Conveyance" in the Indentures as described below. Such covenants
or provisions are not subject to waiver by the Corporation's Board
of Directors without the consent of the holders of not less than a
majority in principal amount of Senior Debt Securities of each
Series or Subordinated Debt Securities of each Series, as
applicable, as described under "Modification of Indenture" below.
Convertible Debt Securities
Debt Securities issued under either the Senior Indenture
or the Subordinated Indenture may provide for a right of conversion
into Preferred Stock or Common Stock. The terms and conditions, if
any, on which the Debt Securities being offered are convertible
into Preferred Stock or Common Stock will be set forth in the
Prospectus Supplement relating thereto. Such terms will include the
securities into which such Debt Securities are convertible, the
conversion price, the conversion period, provisions as to whether
conversion will be at the option of the Holder or the Corporation,
the events requiring an adjustment of the conversion price and
provisions affecting conversion in the event of the redemption of
such Debt Securities.
Registered Global Securities
The registered Debt Securities of a Series may be issued
in the form of one or more fully registered global Debt Securities
(a "Registered Global Security") that will be deposited with a
depositary (the "Depositary"), or with a nominee for a Depositary
identified in the Prospectus Supplement relating to such Series.
In such cases, one or more Registered Global Securities will be
issued in a denomination or aggregate denominations equal to the
portion of the aggregate principal amount of outstanding registered
Debt Securities of the Series to be represented by such Registered
Global Security or Securities. Unless and until it is exchanged in
whole or in part for Debt Securities in definitive registered form,
a Registered Global Security may not be transferred except as a
whole by the Depositary for such Registered Global Security 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 of such Depositary or
a nominee of such successor.
The specific terms of the depositary arrangement with
respect to any portion of a Series of Debt Securities to be
represented by a Registered Global Security will be described in
the Prospectus Supplement relating to such Series. The Corporation
anticipates that the following provisions will apply to all
depositary arrangements.
Upon the issuance of a Registered Global Security, the
Depositary for such Registered Global Security will credit, on its
book-entry registration and transfer system, the respective
principal amounts of the Debt Securities represented by such
Registered Global Security to the accounts of persons that have
accounts with such Depositary ("participants"). The accounts to be
credited shall be designated by any underwriters or agents
participating in the distribution of such Debt Securities or by the
Corporation if such Debt Securities are offered and sold directly
by the Corporation. Ownership of beneficial interests in a
Registered Global Security will be limited to participants or
persons that may hold interests through participants. Ownership of
beneficial interests in such Registered Global Security will be
shown on, and the transfer of that ownership will be effected only
through, records maintained by the Depositary for such Registered
Global Security (with respect to interests of participants) or by
participants or persons that hold through participants (with
respect to interests of persons other than participants). The laws
of some states require that certain purchasers of securities take
physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to transfer beneficial
interests in a Registered Global Security.
So long as the Depositary for a Registered Global
Security, or its nominee, is the registered owner of such
Registered Global Security, such Depositary or such nominee, as the
case may be, will be considered the sole owner or holder of the
Debt Securities represented by such Registered Global Security for
all purposes under the Indenture. Except as set forth below,
owners of beneficial interests in a Registered Global Security will
not be entitled to have the Debt Securities represented by such
Registered Global Security registered in their names, will not
receive or be entitled to receive physical delivery of such Debt
Securities in definitive form and will not be considered the owners
or holders thereof under the Indenture.
Principal and interest payments on Debt Securities
represented by a Registered Global Security registered in the name
of a Depositary or its nominee will be made to such Depositary or
its nominee, as the case may be, as the registered owner of such
Registered Global Security. None of the Corporation, the Trustee
or any paying agent for such Debt Securities will have any
responsibility or liability for any aspect of the records to or
payments made on account of beneficial ownership interests in such
Registered Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership
interests.
The Corporation expects that the Depositary for any Debt
Securities represented by a Registered Global Security, upon
receipt of any payment of principal or interest, will immediately
credit participants' accounts with payments in amounts
proportionate to their respective beneficial interests in the
principal amount of such Registered Global Security as shown on the
records of such Depositary. The Corporation also expects that
payments by participants to owners of beneficial interest in such
Registered Global Security held through such participants will be
governed by standing instructions and customary practices, as is
now the case with the securities held for the accounts of customers
registered in "street names," and will be the responsibility of
such participants.
If the Depositary for any Debt Securities represented by
a Registered Global Security is at any time unwilling or unable to
continue as Depositary and a successor Depositary is not appointed
by the Corporation within ninety days or an Event of Default has
occurred and is continuing with respect to such Debt Securities,
the Corporation will issue such Debt Securities in definitive form
in exchange for such Registered Global Security. In addition, the
Corporation may at any time and in its sole discretion determine
not to have the Debt Securities of a Series represented by one or
more Registered Global Securities and, in such event, will issue
Debt Securities of such Series in definitive form in exchange for
the Registered Global Securities or Securities representing such
Debt Securities. (Section 2.8)
Provisions Applicable Solely to Subordinated Debt Securities
The Subordinated Debt Securities will be subordinate and
junior in right of payment, to the extent set forth in the
Subordinated Indenture, to all Senior Indebtedness (as defined
below) of the Corporation. If the Corporation should default in
the payment of any principal of or premium or interest on any
Senior Indebtedness when the same becomes due and payable, whether
at maturity or at a date fixed for prepayment or by declaration of
acceleration or otherwise, then, upon written notice of such
default to the Corporation by the holders of such Senior
Indebtedness or any trustee therefor and subject to certain rights
of the Corporation to dispute such default and subject to proper
notification of the Trustee, unless and until such default shall
have been cured or waived or shall have ceased to exist, no direct
or indirect payment (in cash, property, securities, by set-off or
otherwise) will be made or agreed to be made for principal of,
premium, if any, or interest, if any, on the Subordinated Debt
Securities, or in respect of any redemption, retirement, purchase
or other acquisition of the Subordinated Debt Securities other than
those made in capital stock of the Corporation (or cash in lieu of
fractional shares thereof). (Sections 14.1, 14.4 and 14.5 of the
Subordinated Indenture)
The term "Senior Indebtedness" is defined to mean
indebtedness or obligations (other than the Subordinated Debt
Securities) of, or guaranteed or assumed by, the Corporation for
borrowed money which is evidenced by (i) bonds, debentures, notes,
or other similar instruments, or (ii) capital leases, whether
outstanding at the date of the Subordinated Indenture or
subsequently incurred, unless the terms of such indebtedness
provide that such indebtedness is not senior in right of payment to
the Subordinated Debt Securities, and amendments, renewals,
extensions, modifications and refinancings of any such indebtedness
or obligations. (Section 1.1 of the Subordinated Indenture)
If (i) without the consent of the Corporation a court
shall enter an order for relief with respect to the Corporation
under the United States federal bankruptcy laws or a judgment,
order or decree adjudging the Corporation a bankrupt or insolvent,
or enter an order for relief for reorganization, arrangement,
adjustment or composition of or in respect of the Corporation under
the United States federal or state bankruptcy or insolvency laws or
(ii) the Corporation shall institute proceedings for the entry of
an order for relief with respect to the Corporation under the
United States federal bankruptcy laws or for an adjudication of
insolvency, or shall consent to the institution of bankruptcy or
insolvency proceedings against it, or shall file a petition
seeking, or seek or consent to reorganization, arrangement,
composition or similar relief under any applicable law, or shall
consent to the filing of such petition or to the appointment of a
receiver, custodian, liquidator, assignee, trustee, sequestrator or
similar official in respect of the Corporation or of substantially
all of its property, or the Corporation shall make a general
assignment for the benefit of creditors, then all Senior
Indebtedness (including any interest thereon accruing after the
commencement of any such proceedings) will first be paid in full
before any payment or distribution, whether in cash, securities or
other property, is made on account of the principal of, or
interest, if any, on the Subordinated Debt Securities. In such
event, any payment or distribution on account of the principal of,
or interest, if any, on the Subordinated Debt Securities, whether
in cash, securities or other property (other than securities of the
Corporation or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinate,
at least to the extent provided in the subordination provisions
with respect to the Subordinated Debt Securities, to the payment of
all Senior Indebtedness then outstanding and to any securities
issued in respect thereof under any such plan of reorganization or
readjustment), which would otherwise (but for the subordination
provisions) be payable or deliverable in respect of the
Subordinated Debt Securities will be paid or delivered directly to
the holders of Senior Indebtedness in accordance with the
priorities then existing among such holders until all Senior
Indebtedness (including any interest thereon accruing after the
commencement of any such proceedings) has been paid in full. If
any payment or distribution on account of the principal of, or
interest, if any, on the Subordinated Debt Securities of any
character, whether in cash, securities or other property (other
than securities of the Corporation or any other corporation
provided for by a plan of reorganization or readjustment the
payment of which is subordinate, at least to the extent provided in
the subordination provisions with respect to the Subordinated Debt
Securities, to the payment of all Senior Indebtedness then
outstanding and to any securities issued in respect thereof under
any such plan of reorganization or readjustment), shall be received
by a holder of any Subordinated Debt Securities in contravention of
any of the terms of the Subordinated Indenture and before all the
Senior Indebtedness shall have been paid in full, such payment or
distribution of securities will be received in trust for the
benefit of, and will be paid over or delivered and transferred to,
the holders of the Senior Indebtedness then outstanding in
accordance with the priorities then existing among such holders for
application to the payment of all Senior Indebtedness remaining
unpaid to the extent necessary to pay all such Senior Indebtedness
in full. In the event of any such proceeding, after payment in
full of all sums owing with respect to Senior Indebtedness, the
holders of Subordinated Debt Securities, together with the holders
of any obligations of the Corporation ranking on a parity with the
Subordinated Debt Securities, will be entitled to be repaid from
the remaining assets of the Corporation the amounts at that time
due and owing on account of unpaid principal of or any interest on
the Subordinated Debt Securities and such other obligations before
any payment or other distribution, whether in cash, property or
otherwise, shall be made on account of any capital stock or
obligations of the Corporation ranking junior to the Subordinated
Debt Securities and such other obligations. (Section 14.1 of the
Subordinated Indenture)
By reason of such subordination, in the event of the
insolvency of the Corporation, holders of Senior Indebtedness may
receive more, ratably, than holders of the Subordinated Debt
Securities. In addition, other creditors of the Corporation who
are not holders of Subordinated Debt Securities or holders of
Senior Indebtedness may recover less, ratably, than holders of
Senior Indebtedness and may recover more, ratably, than holders of
Subordinated Debt Securities. Such subordination will not prevent
the occurrence of an Event of Default or limit the right of
acceleration in respect of the Subordinated Debt Securities.
Events of Default
An Event of Default with respect to the Debt Securities
of any Series is defined in each Indenture as: (i) default in the
payment of any installment of interest upon any of the Debt
Securities of such Series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days;
(ii) default in the payment of all or any part of the principal of
any of the Debt Securities of such Series as and when the same
shall become due and payable either at maturity, upon any
redemption, by declaration or otherwise; (iii) default in the
performance, or breach, of any other covenant or warranty of the
Corporation contained in the Debt Securities of such Series or set
forth in the Indenture (other than a covenant or warranty included
in the Indenture solely for the benefit of a Series of Debt
Securities other than that Series) and continuance of such default
or breach for a period of 90 days after due notice by the
applicable Trustee or by the holders of at least 25% in principal
amount of the Outstanding Securities of that Series; or
(iv) certain events of bankruptcy, insolvency or reorganization of
the Corporation. (Section 5.1) Additional Events of Default may be
added for the benefit of holders of certain Series of Debt
Securities which, if added, will be described in the Prospectus
Supplement relating to such Debt Securities. The Indentures
provide that the Trustee shall notify the holders of Debt
Securities of each Series of any continuing default known to the
Trustee which has occurred with respect to that Series within 90
days after the occurrence thereof. The Indentures provide that
notwithstanding the foregoing, except in the case of default in the
payment of the principal of or interest on any of the Debt
Securities of such Series the Trustee may withhold such notice if
the Trustee in good faith determines that the withholding of such
notice is in the interests of the holders of Debt Securities of
such Series. (Section 6.5)
The Indentures provide that if an Event of Default with
respect to any Series of Debt Securities shall have occurred and be
continuing, either the Trustee or the holders of not less than 25%
in aggregate principal amount of Debt Securities of that Series
then outstanding may declare the principal amount of all Debt
Securities of that Series to be due and payable immediately, but
upon certain conditions such declaration may be annulled.
(Section 5.1) Any past defaults and the consequences thereof
(except a default in the payment of principal of or interest on
Debt Securities of that Series) may be waived by the holders of a
majority in principal amount of the Debt Securities of that Series
then outstanding. (Section 5.9) The Senior Indenture also permits
the Corporation to omit compliance with certain covenants in such
Indenture with respect to Senior Debt Securities of any Series upon
waiver by the holders of a majority in principal amount of the
Senior Debt Securities of such Series then outstanding.
(Section 3.7)
Subject to the provisions of each Indenture relating to
the duties of each Trustee, in case an Event of Default with
respect to any Series of Debt Securities shall occur and be
continuing, neither Trustee shall be under any obligation to
exercise any of the trusts or powers vested in it by either
Indenture at the request or direction of any of the holders of that
Series, unless such holders shall have offered to such Trustee
reasonable security or indemnity. (Section 6.1 and 6.2) The
holders of a majority in aggregate principal amount of the Debt
Securities of each Series affected and then outstanding shall have
the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee under the
applicable Indenture or exercising any trust or power conferred on
the Trustee with respect to the Debt Securities of that Series;
provided that the Trustee may refuse to follow any direction which
is in conflict with any law or such Indenture and subject to
certain other limitations. (Section 5.8)
No holder of any Debt Security of any Series will have
any right by virtue or by availing of any provision of the
applicable Indenture to institute any proceeding at law or in
equity or in bankruptcy or otherwise upon or under or with respect
to such Indenture or for any remedy thereunder, unless such holder
shall have previously given the applicable Trustee written notice
of an Event of Default with respect to Debt Securities of that
Series and unless also the holders of at least 25% in aggregate
principal amount of the outstanding Debt Securities of that Series
shall have made written request, and offered reasonable indemnity,
to the applicable Trustee to institute such proceeding as trustee
and the applicable Trustee shall have failed to institute such
proceeding within 60 days after its receipt of such request, and
the applicable Trustee shall not have received from the holders of
a majority in aggregate principal amount of the outstanding Debt
Securities of that Series a direction inconsistent with such
request. (Section 5.5) However, the right of a holder of any Debt
Security to receive payment of the principal of and any interest on
such Debt Security on or after the due dates expressed in such Debt
Security, or to institute suit for the enforcement of any such
payment on or after such dates, shall not be impaired or affected
without the consent of such holder. (Section 5.6)
Consolidation, Merger, Sale or Conveyance
Each Indenture provides that the Corporation may
consolidate with, or sell, convey or lease all or substantially all
of its assets to, or merge into, any other corporation, if
(i) either the Corporation is the continuing corporation, or the
successor corporation is a domestic corporation and expressly
assumes the due and punctual payment of the principal of and
interest on all the Debt Securities outstanding under the Indenture
according to their tenor and the due and punctual performance and
observance of all of the covenants and conditions of the Indenture
to be performed or observed by the Corporation and (ii) immediately
after such merger or consolidation, or such sale, conveyance or
lease, no Event of Default, and no event which, after notice or
lapse of time or both, would become an Event of Default, shall have
occurred and be continuing. (Section 9.1)
Satisfaction and Discharge of Indentures
Each Indenture with respect to any Series (except for
certain specified surviving obligations including, among other
things, the Corporation's obligation to pay the principal of and
interest on the Debt Securities of such Series) will be discharged
and cancelled upon the satisfaction of certain conditions,
including the payment of all principal of and interest on all the
Debt Securities of such Series or the deposit with the applicable
Trustee of cash or appropriate Government Obligations or a
combination thereof sufficient for such payment or redemption in
accordance with the Indenture and the terms of the Debt Securities
of such Series. (Section 10.1)
Modification of the Indentures
Each Indenture contains provisions permitting the
Corporation and the applicable Trustee, with the consent of the
holders of not less than a majority in aggregate principal amount
of the Debt Securities of each Series at the time outstanding under
such Indenture, to execute supplemental indentures adding any
provisions to, or changing in any manner or eliminating any of the
provisions of, such Indenture or any supplemental indenture with
respect to the Debt Securities of such Series or modifying in any
manner the rights of the holders of the Debt Securities of such
Series; provided that no such supplemental indenture may (i) extend
the stated maturity of the principal of any Debt Security, or
reduce the principal amount thereof or any premium thereon, or
reduce the rate or extend the time of payment of any interest
thereon, or reduce any amount payable on redemption thereof or
change the currency in which the principal thereof (including any
amount with respect to original issue discount) or interest thereon
is payable or reduce the amount of original issue discount security
payable upon acceleration or provable in bankruptcy or alter
certain provisions of the Indenture relating to Debt Securities not
denominated in U.S. dollars, or impair or affect the right of any
holder of Debt Securities to institute suit for payment thereof or,
if the Debt Securities provide therefor, any right of repayment at
the option of the holders of the Debt Securities, without the
consent of the holder of each Debt Security so affected,
(ii) reduce the aforesaid percentage of Debt Securities of such
Series, the consent of the holders of which is required for any
such supplemental indenture, without the consent of the holders of
all Debt Securities of such Series so affected or (iii) with
respect to the Subordinated Indenture, modify the provisions
relating to the subordination of the Subordinated Debt Securities
in a manner materially adverse to the Holders of the Subordinated
Debt Securities. (Section 8.2) Additionally, in certain prescribed
instances, the Corporation and the Trustee may execute supplemental
indentures without the consent of the holders of Debt Securities.
(Section 8.1)
The Subordinated Indenture may not be amended to alter
the subordination of any outstanding Subordinated Debt Securities
without the consent of each holder of Senior Indebtedness then
outstanding that would be materially adversely affected thereby.
(Section 8.6 of the Subordinated Indenture)
Defeasance
Each Indenture provides, if such provision is made
applicable to the Debt Securities of any Series, that the
Corporation may elect to terminate (and be deemed to have
satisfied) all its obligations with respect to such Debt Securities
(except for the obligations to register the transfer or exchange of
such Debt Securities, to replace mutilated, destroyed, lost or
stolen Debt Securities, to maintain an office or agency in respect
of the Debt Securities, to compensate and indemnify the Trustee and
to punctually pay or cause to be paid the principal of, and
interest on, all Debt Securities of such Series when due)
("defeasance") upon the deposit with the Trustee, in trust for such
purpose, of money and/or Government Obligations which through the
payment of principal and interest in accordance with their terms
will provide money, in an amount sufficient (in the opinion of a
nationally recognized firm of independent public accountants) to
pay the principal of and interest, if any, on the outstanding Debt
Securities of such Series, and any mandatory sinking fund or
analogous payments thereon, on the scheduled due dates therefor.
Such a trust may be established only if, among other things, the
Corporation has delivered to the Trustee an opinion of counsel (as
specified in the Indenture) with regard to certain matters,
including an opinion to the effect that the Holders of such Debt
Securities will not recognize income, gain or loss for federal
income tax purposes as a result of such deposit and discharge and
will be subject to federal income tax on the same amounts and in
the same manner and at the same times as would have been the case
if such deposit and defeasance had not occurred. The Prospectus
Supplement may further describe these or other provisions, if any,
permitting defeasance, covenant defeasance or event of default
defeasance with respect to the Debt Securities of any Series.
(Section 10.1)
Applicable Law
The Debt Securities and the Indentures will be governed
by, and construed in accordance with, the laws of the State of New
York. (Section 11.8)
Concerning the Trustee
The Senior Trustee and/or the Subordinated Trustee may
provide various commercial banking services to the Corporation from
time to time.
PLAN OF DISTRIBUTION
The Corporation may sell Offered Securities (1) through
underwriters or dealers, (2) directly to one or more purchasers, or
(3) through agents. A Prospectus Supplement will set forth the
terms of the offering of the Offered Securities offered thereby,
including the name or names of any underwriters, the purchase price
of the Offered Securities, and the proceeds to the Corporation from
the sale, any underwriting discounts and other items constituting
underwriters' compensation, any public offering price, any
discounts or concessions allowed or reallowed or paid to dealers,
and any securities exchange or market on which the Offered
Securities may be listed. Only underwriters so named in such
Prospectus Supplement are deemed to be underwriters in connection
with the Offered Securities offered thereby.
If underwriters are used in the sale, the Offered
Securities will be acquired by the underwriters for their own
account and may be resold from time to time in one or more
transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale.
The obligations of the underwriters to purchase the Offered
Securities will be subject to certain conditions precedent, and the
underwriters will be obligated to purchase all the Offered
Securities of the series offered by the Prospectus Supplement if
any of the Offered Securities are purchased. Any public offering
price and any discounts or concessions allowed or reallowed or paid
to dealers may be changed from time to time.
Offered Securities may also be sold directly by the
Corporation or through agents designated by the Corporation from
time to time. Any agent involved in the offering and sale of
Offered Securities in respect of which this Prospectus is delivered
will be named, and any commissions payable by the Corporation to
such agent will be set forth, in the Prospectus Supplement. Unless
otherwise indicated in the related Prospectus Supplement, any such
agent will be acting on a best-efforts basis for the period of its
appointment.
All Offered Securities offered other than Common Stock
will be a new issue of securities with no established trading
market. Any underwriters to whom such Offered Securities are sold
by the Corporation for public offering and sale may make a market
in such Offered Securities, but such underwriters will not be
obligated to do so and may discontinue any market making at any
time without notice. No assurance can be given as to the liquidity
of or the trading markets for any such Offered Securities.
Agents and underwriters may be entitled under agreements
entered into with the Corporation to indemnifications by the
Corporation against certain civil liabilities, including
liabilities under the Securities Act, or to contribution with
respect to payments which the agents or underwriters may be
required to make in respect thereof. Agents and underwriters may
engage in transaction with, or perform services for, the
Corporation in the ordinary course of business.
LEGAL MATTERS
Certain legal matters concerning the validity of the
Offered Securities will be passed upon by Kirkland & Ellis,
Chicago, Illinois.
EXPERTS
The consolidated financial statements and supplemental
schedules of the Corporation and its subsidiaries incorporated in
this Prospectus by reference have been audited by Arthur Andersen
LLP, independent public accountants, as indicated in their reports
with respect thereto, and are incorporated herein in reliance upon
the authority of said firm as experts in giving said reports.
Reference is made to said reports, which (1) for the Restructured
Company, includes an explanatory paragraph with respect to the
asbestos litigation as discussed in Notes to the Financial
Statements -- "Litigation" note and an explanatory paragraph with
respect to the change in the method of accounting for asbestos-
related matters also as discussed in Notes to the Financial
Statements -- "Litigation" note; and (2) for the Predecessor
Company, includes an explanatory paragraph with respect to the
asbestos litigation as discussed in Notes to the Financial
Statements -- "Litigation" note and an explanatory paragraph with
respect to the changes in the methods of accounting for post
retirement benefits other than pensions and accounting for income
taxes as discussed in Notes to Financial Statements -- "Cumulative
Effect of Changes in Accounting Principles" note.
With respect to the unaudited interim financial
information for the quarters ended March 31, 1995, June 30, 1995,
and September 30, 1995, Arthur Andersen LLP has applied limited
procedures in accordance with professional standards for a review
of that information. However, their separate reports thereon state
that they did not audit and they do not express an opinion on that
interim financial information. Accordingly, the degree of reliance
on their reports on that information should be restricted in light
of the limited nature of the review procedures applied. In
addition, the accountants are not subject to the liability
provisions of Section 11 of the Securities Act for their reports on
the unaudited interim financial information because those reports
are not "reports" or "parts" of the registration statement prepared
or certified by the accountants within the meaning of Section 7 and
11 of the Securities Act.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following are the estimated expenses of the issuance and
distribution of the securities being registered, including fees and
expenses previously incurred by the Corporation, other than any
underwriting compensation.
Item Amount
SEC Registration Fees $ 60,000
Printing and Mailing Expenses 30,000
Legal Fees and Expense 30,000
Accountants' Fees and Expenses 20,000
Miscellaneous Expenses 60,000
Total $ 200,000
Item 15. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law
("Section 145") (a) gives Delaware corporations broad powers to
indemnify their present and former directors and officers and those
of affiliated corporations against expenses incurred in the defense
of any lawsuit to which they are made parties by reason of being or
having been such directors or officers, subject to specified
conditions and exclusions, (b) gives a director or officer who
successfully defends an action the right to be so indemnified and
(c) authorizes the corporation to buy directors' and officers'
liability insurance. Such indemnification is not exclusive of any
other right to which those indemnified may be entitled under any
bylaw, agreement, vote of stockholders or otherwise.
A bylaw provides that the Corporation (a) shall indemnify
every person who is or was a director or officer of the Corporation
or is or was serving at the Corporation's request as a director or
officer of another corporation, partnership, joint venture, trust
or other enterprise and (b) shall, if the board of directors so
directs, indemnify any person who is or was an employee or agent of
the Corporation or is or was serving at the Corporation's request
as an employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, to the extent, in the manner,
and subject to compliance with the applicable standards of conduct,
provided by Section 145 as the same (or any substitute provision
therefor) may be in effect from time to time.
Any such indemnification shall continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure
to the benefit of the heirs, executors and administrators of such
a person.
The Corporation has procured insurance for the purpose of
substantially covering its future potential liability for
indemnification under Section 145 as discussed above and certain
future potential liability of individual officers or directors
incurred in their capacity as such which is not subject to
indemnification.
The Corporation has entered into Indemnification Agreements
with each of its officers and directors. The Indemnification
Agreements provide that the Corporation shall indemnify and keep
indemnified the indemnitee to the fullest extent authorized by
Section 145 as it may be in effect from time to time from and
against any expenses (including expenses of investigation and
preparation and reasonable fees and disbursements of legal counsel,
accountants and other experts), judgments, fines and amounts paid
in settlement by the indemnitee in connection with any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, and whether or not the
cause of action, suit or proceeding occurred before or after the
date of the Indemnification Agreement. The Indemnification
Agreements further provide for advancement of amounts to cover
expenses incurred by the indemnitee in defending any such action,
suit or proceeding subject to an undertaking by the indemnitee to
repay any expenses advanced which it is later determined he or she
was not entitled to receive.
Item 16. Exhibits and Financial Statement Schedules
(a) The following is a complete list of Exhibits filed as a
part of this Registration Statement:
See Exhibit Index
Item 17. Undertakings
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the Corporation pursuant to the foregoing
provisions, or otherwise, the Corporation has been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that
a claim for indemnification against such liabilities (other than
the payment by the Corporation of expenses incurred or paid by a
director, officer or controlling person of the Corporation in the
successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with
the securities being registered, the Corporation will, unless in
the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is
against public policy as expressed in the Securities Act and will
be governed by the final adjudication of such issue.
The Registrant hereby undertakes:
(1) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as part of this registration statement in reliance
upon Rule 430A and contained in the form of prospectus filed by the
Corporation pursuant to Rule 424(b)(1) or (4) or 497(h) under the
Securities Act of 1933 shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains
a form of prospectus shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) (a)(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
registration statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or
events arising after the effective date of the
registration statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar
value of securities offered would not exceed that which
was registered) and any deviation from the low or high
end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b), if, in the aggregate,
the changes in volume and price represent no more than 20
percent change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table
in the effective registration statement;
(iii) to include any material information with
respect to the plan of distribution not previously
disclosed in the registration statement or any material
change to such information in the registration statement;
provided, however, that undertakings set forth in paragraphs
(a)(1)(i) and (a)(1)(ii) do not apply if the information
required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the
registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
(b) That, for purposes of determining any liability
under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934 that is incorporated by
reference in this registration statement shall be deemed to be
a new registration statement relating to the securities
offered therein and the offering of such securities at that
time shall be deemed to be the initial bona fide offering
thereof.
(4) The undersigned registrant hereby undertakes with respect
to each of the Senior Debt Securities and the Subordinated Debt
Securities to file an application for the purpose of determining
the eligibility of the respective trustee to act under
subsection (a) of section 310 of the Trust Indenture Act ("Act") in
accordance with the rules and regulations prescribed by the
Commission under section 305(b)(2) of the Act.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized,
in the City of Chicago, State of Illinois on November 14, 1995.
USG CORPORATION
By: /s/ Richard H. Fleming
Richard H. Fleming
Senior Vice President and Chief
Financial Officer
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed on November 14, 1995,
by the following persons in the capacities indicated:
Signature Title
*
Eugene B. Connolly Chairman of the Board, Chief
Executive Officer and Director
(Principal Executive Officer)
* President, Chief Operating
William C. Foote Officer and Director
/s/ Richard H. Fleming Vice President and Chief
Richard H. Fleming Financial Officer (Principal
Financial Officer)
/s/ Raymond T. Belz Vice President and Controller
Raymond T. Belz (Principal Accounting Officer)
* Director
Robert L. Barnett
* Director
Keith A. Brown
* Director
W.H. Clark
* Director
James C. Cotting
* Director
Lawrence M. Crutcher
* Director
David W. Fox
* Director
Philip C. Jackson, Jr.
* Director
Marvin E. Lesser
* Director
John B. Schwemm
* Director
Judith A. Sprieser
*By:/s/ Richard H. Fleming
Richard H. Fleming
Attorney-in-fact
<PAGE>
EXHIBIT INDEX
The following documents are the exhibits to this Registration
Statement on Form S-3. For convenient reference, each exhibit is
listed according to the Exhibit Table of Regulation S-K. The page
number, if any, listed opposite an exhibit indicates the page
number in the sequential numbering system in the manually signed
original of this Registration Statement on Form S-3 where such
exhibit can be found.
Exhibit
No.
1. Form of Underwriting Agreement (to be filed as
an Exhibit to a Current Report on Form 8-K at
the time of an offering ofsecurities).
3. Articles of incorporation and by-laws:
(a) Restated Certificate of
Incorporation of USG Corporation
(incorporated by reference to
Exhibit 3.1 of USG Corporation's
Form 8-K, dated May 7, 1993); and
(b) Amended and Restated By-Laws of USG
Corporation, dated as of May 12,
1993 (incorporated by reference to
Exhibit 3(b) of Amendment No. 1 to
USG Corporation's Registration
Statement No. 33-61162 on Form S-1,
dated June 16, 1993).
4. Instruments defining the rights of security holders,
including indentures:
(a) Form of Senior Indenture;
(b) Form of Senior Debt Securities;
(c) Collateral Trust Agreement dated
July 27, 1995 among USG Corporation
certain of its subsidiaries and
Wilmington Trust Company and William
J. Wade, as Trustee (incorporated by
reference to Exhibit 99(b) of
Amendment No. 3 to USG Corporation's
Registration Statement No. 33-60563
on Form S-3, dated July 28, 1995);
(d) Company Pledge Agreement dated July
27, 1995 among USG Corporation and
Wilmington Trust Company and William
J. Wade, as Trustee (incorporated by
reference to Exhibit 99(c) of
Amendment No. 3 to USG Corporation's
Registration Statement No. 33-60563
on Form S-3, dated July 28, 1995);
(e) Form of Subordinated Indenture;
(f) Form of Subordinated Debt
Securities;
(g) Rights Agreement dated May 6, 1993
between USG Corporation and Harris
Trust and Savings Bank, as Rights
Agent (incorporated by reference to
Exhibit 10.1 of USG Corporation's
Form 8-K, dated May 7, 1993);
(h) Form of Common Stock certificate
(incorporated by reference to
Exhibit 4.4 to USG Corporation's
Form 8-K, dated May 7, 1993);
(i) Form of Preferred Stock certificate
(to be filed as an Exhibit to a
Current Report on Form 8-K at the
time of an offering of Preferred
Stock);
(j) Form of Warrant Agreement (to be
filed as an Exhibit to a Current
Report on Form 8-K at the time of an
offering of Warrants); and
(k) Form of Warrant Certificate (to be
filed as an Exhibit to a Current
Report on Form 8-K at the time of an
offering of Warrants).
5. Opinion of counsel as to the legality of the
securities being registered.
12. Calculation of Ratio of Earnings to Fixed
Charges.
23. Consents of experts and counsel:
(a) Consent of Arthur Andersen LLP;
(b) Acknowledgement of Arthur Andersen
LLP regarding unaudited interim
financial Information; and
(c) Consent of counsel (included in
Exhibit 5).
24. Power of attorney.
25. Form T-1, Statement of Eligibility under the
Trust Indenture Act of 1939:
(a) Senior Debt Securities (to be filed
as an Exhibit to a Current Report on
Form 8-K at the time of an offering
of Senior Debt Securities); and
(b) Subordinated Debt Securities (to be
filed as an Exhibit to a Current
Report on Form 8-K at the time of an
offering of Subordinated Debt
Securities).
EXHIBIT 4(a)
USG CORPORATION
AND
_____________________,
Trustee
Senior Debt Securities
INDENTURE
Dated as of ______________
<PAGE>
TABLE OF CONTENTS
I DEFINITIONS
1.1 Certain Terms Defined
II SECURITIES
2.1 Forms Generally
2.2 Form of Trustee's Certificate of Authentication
2.3 Amount Unlimited: Issuable in Series
2.4 Authentication and Delivery of Securities
2.5 Execution of Securities
2.6 Certificate of Authentication
2.7 Denomination and Date of Securities; Payments of
Interest
2.8 Registration, Transfer and Exchange
2.9 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities
2.10 Cancellation of Securities; Destruction Thereof
2.11 Temporary Securities
III COVENANTS OF THE CORPORATION
3.1 Payment of Principal and Interest
3.2 Offices for Payment, etc.
3.3 Paying Agents
3.4 Written Statement to Trustee
3.5 Luxembourg Publications
IV SECURITYHOLDERS LISTS AND REPORTS BY THECORPORATION AND
THE TRUSTEE
4.1 Corporation to Furnish Trustee Information as to
Names and Addresses of Securityholders
4.2 Preservation and Disclosure of Securityholders'
Lists
4.3 Reports by the Corporation
V REMEDIES OF THE TRUSTEE AND SECURITYHOLDERSON EVENT OF
DEFAULT
5.1 Event of Default Defined; Acceleration of
Maturity; Waiver of Default
5.2 Collection of Indebtedness By Trustee; Trustee May
Prove Debt
5.3 Application of Proceeds
5.4 Restoration of Rights on Abandonment of
Proceedings
5.5 Limitations on Suits by Securityholders
5.6 Unconditional Right of Securityholders to
Institute Certain Suits
5.7 Powers and Remedies Cumulative; Delay or Omission
Not Waiver of Default
5.8 Control by Securityholders
5.9 Waiver of Past Defaults
5.10 Right of Court to Require Filing of Undertaking to
Pay Cost4
5.11 Suits for Enforcement
VI CONCERNING THE TRUSTEE
6.1 Duties of Trustee
6.2 Rights of Trustee
6.3 Individual Rights of Trustee
6.4 Trustee's Disclaimer
6.5 Notice of Defaults
6.6 Reports by Trustee to Holders
6.7 Compensation and Indemnity
6.8 Replacement of Trustee
6.9 Successor Trustee by Merger
6.10 Eligibility; Disqualification
6.11 Preferential Collection of Claims Against
Corporation
VII CONCERNING THE SECURITYHOLDERS
7.1 Evidence of Action Taken by Securityholders
7.2 Proof of Execution of Instruments
7.3 Holders to Be Treated as Owners
7.4 Securities Owned by Corporation Deemed Not
Outstanding
7.5 Right of Revocation of Action Taken
VIII SUPPLEMENTAL INDENTURES
8.1 Supplemental Indentures Without Consent of
Securityholders
8.2 Supplemental Indentures With Consent of
Securityholders
8.3 Effect of Supplemental Indenture
8.4 Documents to Be Given to Trustee
8.5 Notation on Securities in Respect of Supplemental
Indentures
IX CONSOLIDATION, MERGER, SALE OR CONVEYANCE
9.1 Corporation May Consolidate, etc., on Certain
Terms
9.2 Successor Corporation Substituted
9.3 Opinion of Counsel to Trustee
X SATISFACTION AND DISCHARGE OF INDENTURE;UNCLAIMED MONEYS
10.1 Satisfaction and Discharge of Indenture
10.2 Application by Trustee of Funds Deposited for
Payment of Securities
10.3 Repayment of Moneys Held by Paying Agent
10.4 Return of Unclaimed Moneys Held by Trustee and
Paying Agent
10.5 Reinstatement of Corporation's Obligations
XI MISCELLANEOUS PROVISIONS
11.1 Incorporators, Stockholders, Officers and
Directors of Corporation Exempt from Individual
Liability
11.2 Provisions of Indenture for the Sole Benefit of
Parties and Securityholders
11.3 Successors and Assigns of Corporation Bound by
Indenture
11.4 Notices and Demands on Corporation, Trustee and
Securityholders
11.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein
11.6 Payments Due on Saturdays, Sundays and Holidays
11.7 Conflict of Any Provision of Indenture with Trust
Indenture Act
11.8 New York Law to Govern
11.9 Counterparts
11.10 Effect of Headings; Gender
11.11 Securities in a Foreign Currency or in ECU
XII REDEMPTION OF SECURITIES AND SINKING FUNDS
12.1 Applicability of Article
12.2 Election to Redeem; Notice of Redemption; Partial
Redemptions
12.3 Payment of Securities Called for Redemption
12.4 Exclusion of Certain Securities from Eligibility
for Selection for Redemption
12.5 Mandatory and Optional Sinking Funds
12.6 Repayment at the Option of the Holders
<PAGE>
USG CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture dated as of _______________
Trust Indenture
Act Section Indenture Section
Sec. 310 (a)(1) 6.10
(a)(2) 6.10
(a)(3) Not Applicable
(a)(4) Not Applicable
(a)(5) 6.10
(b) 6.8,6.10
Sec. 311 (a) 6.11
(b) 6.11
Sec. 312 (a) 4.1 and 4.2
(b) 4.2
(c) 4.2
Sec. 313 (a)(l)-(5) & (7)-(8) 6.6
(a)(6) Not Applicable
(b)(1) Not Applicable
(b)(2) 6.6
(c) 6.6
(d) 6.6
Sec. 314 (a)(l)-(3) 4.3
(a)(4) 3.4
(b) Not Applicable
(c)(1) 11.5
(c)(2) 11.5
(c)(3) Not Applicable
(d) Not Applicable
(e) 11.5
(f) Not Applicable
Sec. 315 (a) 6.1
(b) 6.5
(c) 6.1
(d) 6.1
(d)(1) 6.1
(d)(2) 6.1
(d)(3) 6.1
(e) 5.10
Sec. 316 (a) 7.4
(a)(1)(A) 5.8
(a)(1)(B) 5.1,5.9
(a)(2) Not Applicable
(b) 5.6
(c) 7.1
Sec. 317 (a)(1) 5.2
(a)(2) 5.2
(b) 3.3
Sec. 318 (a) 11.7
_______________________________
Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
<PAGE>
THIS INDENTURE, dated as of _________________ between
USG CORPORATION, a Delaware corporation (the "Corporation"), and
________________________, a _________________ organized under the
laws of ________________ (the "Trustee"),
W I T N E S S E T H:
WHEREAS, the Corporation has duly authorized the
issuance from time to time of its unsecured debentures, notes or
other evidences of indebtedness (the "Securities") to be issued in
one or more Series; and
WHEREAS, all things necessary to make this Indenture a
valid indenture and agreement according to its terms have been
done;
NOW, THEREFORE:
In consideration of the premises and the purchases of
the Securities by the Holders thereof, it is mutually agreed for
the equal and proportionate benefit of the respective Holders from
time to time of the Securities or of a Series thereof as follows:
ARTICLE I.
DEFINITIONS
SECTION Certain Terms Defined. The following
terms (except as otherwise expressly provided or unless the context
otherwise clearly requires) for all purposes of this Indenture and
of any indenture supplemental hereto shall have the respective
meanings specified in this Section. All other terms used in this
Indenture that are defined in the Trust Indenture Act of 1939, as
amended, or the definitions of which in the Securities Act of 1933,
as amended, are referred to in the Trust Indenture Act of 1939, as
amended, including terms defined therein by reference to the
Securities Act of 1933, as amended (except as herein otherwise
expressly provided or unless the context otherwise clearly
requires), shall have the meanings assigned to such terms in the
Trust Indenture Act of 1939, as amended, and in the Securities Act
of 1933, as amended, as in force at the date of this Indenture.
All accounting terms used herein and not expressly defined shall
have the meanings assigned to such terms in accordance with
generally accepted accounting principles, and the term "generally
accepted accounting principles" means such accounting principles as
are generally accepted at the time of any computation. The words
"herein," "hereof" and "hereunder" and other words of similar
import refer to this Indenture as a whole, as supplemented and
amended from time to time, and not to any particular Article,
Section or other subdivision. The terms defined in this Article
have the meanings assigned to them in this Article and include the
plural as well as the singular.
"Authorized Newspaper" means a newspaper (which, in the
case of The City of New York, will, if practicable, be The Wall
Street Journal (Eastern Edition), in the case of the United
Kingdom, will, if practicable, be the Financial Times (London
Edition) and, in the case of Luxembourg, will, if practicable, be
the Luxembourger Wort), published in an official language of the
country of publication customarily published at least once a day
for at least five days in each calendar week and of general
circulation in The City of New York, the United Kingdom or in
Luxembourg, as applicable. If it shall be impractical in the
opinion of the Trustee to make any publication of any notice
required hereby in an Authorized Newspaper, any publication or
other notice in lieu thereof which is made or given with the
approval of the Trustee shall constitute a sufficient publication
of such notice.
"Board of Directors" means either the Board of Directors
of the Corporation or any duly authorized committee of or created
by that Board.
"Business Day" means, except as may otherwise be pro-
vided in the form of Securities of any particular Series, with
respect to any Place of Payment or place of publication, any day,
other than a Saturday or Sunday, or a day on which banking
institutions are authorized or required by law or regulation to
close in that Place of Payment or place of publication.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under the
Securities Exchange Act of 1934, as amended, or if at any time
after the execution and delivery of this Indenture such Commission
is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties on
such date.
"Conversion Agent" shall have the meaning set forth in
Section 3.2.
"Corporate Trust Office" means the principal corporate
trust office of the Trustee at which at any particular time its
corporate trust business shall be administered, which office at the
date of execution of this Indenture is located at ______________
___________________________________________.
"Corporation" means USG Corporation, a Delaware
corporation, until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and
thereafter "Corporation" shall mean such successor corporation.
"Corporation Notice" means the confirmation of the
Corporation signed by an officer, and transmitted to the Trustee of
the terms of the issuance of any Securities.
"Coupon" means any interest coupon appertaining to a
Security.
"defaulted interest" has the meaning specified in
Section 2.7.
"defeasance" has the meaning specified in
Section 10.1(B)(ii).
"Depositary" means, with respect to the Securities of
any Series issuable or issued in the form of one or more Registered
Global Securities, the Person designated as Depositary by the
Corporation pursuant to Section 2.3 until a successor Depositary
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time
there is more than one such Person, "Depositary" as used with
respect to the Securities of any such Series shall mean the
Depositary with respect to the Registered Global Securities of that
Series.
"Depositary Security" means, with respect to any Series
of Securities, a Security executed by the Corporation and
authenticated and delivered by the Trustee to the Depositary or
pursuant to the Depositary's instruction, all in accordance with
this Indenture and pursuant to a resolution of the Board of
Directors as contemplated by Section 2.3, which (i) shall be
registered as to principal and interest in the name of the
Depositary or its nominee and (ii) shall represent, and shall be
denominated in an amount equal to the aggregate principal amount
of, all of the Outstanding Securities of such Series.
"Dollar" means the coin or currency of the United States
of America which as of the time of payment is legal tender for the
payment of public and private debts.
"ECU" means the European Currency Unit as defined and
revised from time to time by the Council of European Communities.
"Event of Default" has the meaning specified in
Section 5.1.
"Foreign Currency" means a currency issued by the
government of a country other than the United States.
"Government Obligations" means, unless otherwise
specified pursuant to Section 2.3, securities which are (i) direct
obligations of the government which issued the currency in which
the Securities of such Series are denominated for the payment of
which its full faith and credit is pledged or (ii) obligations of
a Person controlled or supervised by, or acting as an agency or
instrumentality of, the United States government, the payment of
which obligations is unconditionally guaranteed by such government,
and which, in either case, are full faith and credit obligations of
such government, and which are not callable or redeemable at the
option of the issuer thereof prior to their stated maturity.
"Holder", "Holder of Securities", "Registered Holder",
"Securityholder" or other similar terms mean (a) in the case of any
Registered Security, the Person in whose name such Security is
registered in the Security Register, and (b) in the case of any
Unregistered Security, the bearer of such Security, or any coupon
appertaining thereto, as the case may be.
"Indenture" means this instrument as originally executed
and delivered or as it may from time to time be amended or
supplemented as herein provided, as so amended or supplemented or
both, and shall include the forms and terms of particular Series of
Securities established as contemplated by Section 2.3.
"Journal" has the meaning specified in Section 11.11.
"Market Exchange Rate" has the meaning specified in
Section 11.11.
"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 Stated Maturity or by declaration of acceleration, call
for redemption or otherwise.
"Officers' Certificate" means a certificate signed on
behalf of the Corporation by the chairman of the Board of Directors
or the vice chairman or the president or any vice president and by
the treasurer, the controller, any assistant treasurer, the
secretary or any assistant secretary of the Corporation and
delivered to the Trustee. Each such certificate shall include the
statements provided for in Section 11.5.
"Opinion of Counsel" means a written opinion of legal
counsel, who may be an employee of or counsel to the Corporation,
and who shall be reasonably acceptable to the Trustee. Each
Opinion of Counsel shall include the statements provided for in
Section 11.5, if and to the extent required hereby.
"original issue date" of any Security (or portion
thereof) means the earlier of (a) the date of such Security or
(b) the date of any Security (or portion thereof) for which such
Security was issued (directly or indirectly) on registration of
transfer, exchange or substitution.
"Original Issue Discount Security" means any Security
that provides for an amount less than the principal amount thereof
to be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 5.1.
"Outstanding" when used with reference to Securities,
subject to the provisions of Section 7.4, means, as of any
particular time, all Securities authenticated and delivered under
this Indenture, except
1. Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
2. Securities, or portions thereof, for the payment or
redemption of which moneys in the necessary amount and in the
required currency shall have been deposited in trust with the
Trustee or with any Paying Agent (other than the Corporation)
or shall have been set aside, segregated and held in trust by
the Corporation for the Holders of such Securities (if the
Corporation shall act as its own Paying Agent), provided that
if such Securities, or portions thereof, are to be redeemed
prior to the Maturity thereof, notice of such redemption shall
have been given as herein provided, or provision satisfactory
to the Trustee shall have been made for giving such notice;
3. Securities in substitution for which other
Securities shall have been authenticated and delivered, or
which shall have been paid, pursuant to the terms of
Section 2.9 (except with respect to any such Security as to
which proof satisfactory to the Trustee and the Corporation is
presented that such Security is held by a Person in whose
hands such Security is a legal, valid and binding obligation
of the Corporation); and
4. Securities as to which defeasance has been effected
pursuant to Section 10.1(B).
In determining whether the Holders of the requisite
principal amount of Outstanding Securities of any or all Series
have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, the principal amount of an Original
Issue Discount Security that shall be deemed to be Outstanding for
such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon
a declaration of acceleration of the Maturity thereof pursuant to
Section 5.1.
"Paying Agent" means any Person (which may include the
Corporation) authorized by the Corporation to pay the principal of
or interest, if any, on any Security on behalf of the Corporation.
"Persons" or "Person" means any individual, corporation,
partnership, joint venture, limited liability company, 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 interest, if any, on the Securities of that Series
are payable as specified pursuant to Section 3.2.
"principal" whenever used with reference to the
Securities or any Security or any portion thereof, shall be deemed
to include "and premium, if any."
"record date" has the meaning specified in Section 2.7.
"Registered Global Security" means a Security evidencing
all or a part of a Series of Registered Securities, issued to the
Depositary for such Series in accordance with Section 2.4, and
bearing the legend prescribed in Section 2.4.
"Registered Security" means any Security which is
registered in the Security Register.
"Responsible Officer" when used with respect to the
Trustee means any officer within the corporate trust department (or
any successor department) of the Trustee including any vice
president, assistant vice president, assistant secretary, senior
trust officer, trust officer or any other officer or assistant
officer of the Trustee customarily performing functions similar to
those performed by the Persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter is
referred at the Corporate Trust Office because of his or her
knowledge of and familiarity with the particular subject.
"Security" or "Securities" has the meaning stated in the
first recital of this Indenture and more particularly means any
Securities authenticated and delivered under this Indenture.
"Security Register" has the meaning specified in
Section 2.8.
"Series" or "Series of Securities" means all Securities
of a similar tenor authorized by a particular resolution of the
Board of Directors.
"Stated Maturity" when used with respect to any Security
or any installment of principal thereof or interest thereon, means
the date on which the principal of such Security or such
installment of principal or interest is due and payable in
accordance with the terms thereof.
"Trust Indenture Act" or "TIA" (except as otherwise
provided in Sections 8.1 and 8.2) means the Trust Indenture Act of
1939, as amended, as in force at the date as of which this
Indenture was originally executed.
"Trustee" means the Person identified as "Trustee" in
the first paragraph hereof until a successor Trustee shall have
become such pursuant to the provisions hereof, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee
hereunder, and if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any Series
shall mean the Trustee with respect to Securities of that Series.
"United States of America" means the United States of
America (including the states and the District of Columbia), its
territories, possessions, the Commonwealth of Puerto Rico and other
areas subject to its jurisdiction.
"Unregistered Security" means any Security other than
a Registered Security.
"U.S. Person" means a citizen or resident of the United
States of America, a corporation, partnership or other entity
created or organized in or under the laws of the United States of
America or any political subdivision thereof or an estate or trust
the income of which is subject to United States of America federal
income taxation regardless of whether such income is from sources
within or without the United States of America or whether or not
such income is effectively connected with the conduct of a trade or
business within the United States of America.
"vice president" when used with respect to the
Corporation or the Trustee, means any vice president, whether or
not designated by a number or a word or words added before or after
the title of "vice president."
ARTICLE II.
SECURITIES
SECTION A. Forms Generally. The Securities of each Series
and the Coupons, if any, to be attached thereto shall be
substantially in such form (including temporary or definitive
global form) as shall be established by or pursuant to a resolution
of the Board of Directors or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by
this Indenture (the provisions of which shall be appropriate to
reflect the terms of the Series of Securities represented thereby)
and may have imprinted or otherwise reproduced thereon such legend
or legends, not inconsistent with the provisions of this Indenture,
as may be required to comply with any law or with any rules or
regulations pursuant thereto, or with any rules of any securities
exchange or to conform to general usage, all as may be determined
by the officers executing such Securities and Coupons, if any, as
evidenced by their execution of the Securities and Coupons.
The definitive Securities and Coupons, if any, shall be
printed, lithographed or engraved on steel engraved borders or may
be produced in any other manner, all as determined by the officers
executing such Securities and Coupons, if any, as evidenced by
their execution of such Securities and Coupons, if any.
SECTION B. Form of Trustee's Certificate of
Authentication. The Trustee's certificate of authentication on all
Securities shall be in substantially the following form:
This is one of the Securities of the Series designated
herein and referred to in the within-mentioned Indenture.
as Trustee
By:
Authorized Signatory
or
as Trustee
By:
as Authentication Agent
By:
Authorized Signatory
SECTION C. 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 and
the Securities of each Series shall rank equally and pari passu
with all other unsecured and unsubordinated debt of the
Corporation. There shall be established in or pursuant to one or
more resolutions of the Board of Directors and set forth in an
Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any
Series.
1. the title of the Securities of the Series (which
title shall distinguish the Securities of the Series from all
other Securities issued by the Corporation);
2. any limit upon the aggregate principal amount of the
Securities of the Series that may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Securities of the
Series pursuant to Sections 2.8, 2.9, 2.11, 8.5 or 12.3);
3. if other than 100% of their principal amount, the
percentage of their principal amount at which the Securities
of the Series will be offered for sale to the public;
4. if other than Dollars, the coin or currency in which
the Securities of that Series are denominated (including, but
not limited to, any Foreign Currency or ECU);
5. the date or dates on which the principal of the
Securities of the Series is payable or the method of
determination thereof;
6. the rate or rates (which may be fixed or variable),
or the method or methods of determination thereof, at which
the Securities of the Series shall bear interest, if any, the
date or dates from which such interest shall accrue, the
interest payment dates on which such interest shall be payable
and (in the case of Registered Securities) the record dates
for the determination of Holders to whom interest is payable;
7. the place or places where the principal of, and
interest, if any, on Securities of the Series shall be payable
(if other than as provided in Section 3.2);
8. the price or prices at which, the period or periods
within which and the terms and conditions upon which
Securities of the Series may be redeemed, in whole or in part,
at the option of the Corporation;
9. if other than the principal amount thereof, the
portion of the principal amount of Securities of the Series
which shall be payable upon declaration of acceleration of the
Maturity pursuant to Section 5.1 or provable in bankruptcy
pursuant to Section 5.2;
10. the obligation, if any, of the Corporation to
redeem, purchase or repay Securities of the Series whether
pursuant to any sinking fund or analogous provisions or
pursuant to other provisions set forth therein or at the
option of a Holder thereof and the price or prices at which
and the period or periods within which and the terms and
conditions upon which Securities of the Series shall be
redeemed, purchased or repaid, in whole or in part;
11. if other than denominations of $1,000, and any
integral multiple thereof, in the case of Registered
Securities, or $1,000 and $5,000 in the case of Unregistered
Securities, the denominations in which Securities of the
Series shall be issuable;
12. the form of the Securities, including such
legends as required by law or as the Corporation deems
necessary or appropriate and the form of any temporary global
security which may be issued;
13. if other than the coin or currency in which the
Securities of that Series are denominated, the coin or
currency in which payment of the principal of or interest on
the Securities of such Series shall be payable (including, but
not limited to, any Foreign Currency or ECU);
14. if the principal of or interest on the
Securities of such Series are to be payable, at the election
of the Corporation or a Holder thereof, in a coin or currency
other than that in which the Securities are denominated, the
period or periods within which, and the terms and conditions
upon which, such election may be made;
15. if the amount of payments of principal of and
interest on the Securities of the Series may be determined
with reference to an index, formula or method, the manner in
which such amounts shall be determined;
16. whether the Securities of the Series will be
issuable as Registered Securities (and if so, whether such
Securities will be issuable as Registered Global Securities)
or Unregistered Securities (with or without Coupons), or any
combination of the foregoing, any restrictions applicable to
the offer, sale or delivery of Unregistered Securities or the
payment of interest thereon and, if other than as provided in
Section 2.8, the terms upon which Unregistered Securities of
any Series may be exchanged for Registered Securities of such
Series and vice versa;
17. whether, under what circumstances and in what
amounts the Corporation will pay additional amounts on the
Securities of the Series held by a Person who is not a U.S.
Person in respect of any tax, assessment or governmental
charge withheld or deducted and, if so, whether the
Corporation will have the option to redeem such Securities
rather than pay such additional amounts;
18. 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, the form and terms of such
certificates, documents or conditions;
19. if other than the Trustee, any trustees,
depositories, authenticating or Paying Agents, transfer agents
or registrars or any other agents with respect to the
Securities of such Series;
20. if the Securities of such Series do not bear
interest, the applicable dates for purposes of Section 4.1
hereof;
21. whether the Securities of such Series are to be
issuable in whole or in part in the form of one or more
Depositary Securities, and, in such case, the Depositary for
such Securities;
22. the application, if any, of Section 10.1(B)(ii)
to the Securities of the Series or any alternative or other
provisions for the defeasance (including any covenant or event
of default defeasance) of the Securities of the Series;
23. any other events of default or covenants with
respect to the Securities of such Series;
24. if applicable, any provisions, including terms
and conditions, with respect to the conversion of the
Securities of such Series; and
25. any other terms or conditions upon which the
Securities of the Series are to be issued (which terms shall
not be inconsistent with the provisions of this Indenture).
All Securities of any one Series and Coupons, if any,
appertaining thereto shall be substantially identical except as to
denomination and except in the case of Registered Securities as may
otherwise be provided in or pursuant to such resolution of the
Board of Directors or in any such 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.
SECTION D. Authentication and Delivery of Securities.
At any time and from time to time after the execution and delivery
of this Indenture, the Corporation may deliver Securities of any
Series, having attached thereto appropriate Coupons, if any,
executed by the Corporation to the Trustee for authentication, and
the Trustee shall thereupon authenticate and make available for
delivery such Securities to or upon the written order of the
Corporation, signed by both (a) the chairman of its Board of
Directors, or any vice chairman of its Board of Directors, or its
president or any vice president and (b) its treasurer or any
assistant treasurer, secretary or any assistant secretary without
any further action by the Corporation. In authenticating such
Securities and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be
entitled to receive and (subject to Section 6.1) shall be fully
protected in relying upon:
1. a copy of any resolution or resolutions of the Board
of Directors relating to such Series, in each case certified
by the secretary or an assistant secretary of the Corporation;
2. a supplemental indenture, if any;
3. an Officers' Certificate setting forth the form and
terms of the Securities of such Series and Coupons, if any, as
required pursuant to Sections 2.1 and 2.3, respectively, and
prepared in accordance with Section 11.5;
4. an opinion of Counsel, prepared in accordance with
Section 11.5, which shall state that:
a. the form or forms and terms of such Securities,
and Coupons, if any, have been established by or
pursuant to a resolution of the Board of Directors or
by a supplemental indenture as permitted by
Sections 2.1 and 2.3 in conformity with the provisions
of this Indenture and in conformity with such resolu-
tion or supplemental indenture, as the case may be, and
b. such Securities, and Coupons, if any, have been
duly authorized, and, when authenticated and delivered
by the Trustee and issued by the Corporation in the
manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and binding
obligations of the Corporation enforceable in
accordance with their terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance,
reorganization or other laws relating to or affecting
the enforcement of creditors. Rights generally and by
general equitable principles, regardless of whether
such enforceability is considered in a proceeding in
equity or at law.
Notwithstanding the provisions of Section 2.3 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 resolution of the Board of Directors and/or Officers'
Certificate otherwise required pursuant to Section 2.3 or the
Officers' Certificate 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 time of authentication upon
original issuance of the first Security of such Series to be
issued. After the original issuance of the first Security of such
Series to be issued, any separate request by the Corporation that
the Trustee authenticate Securities of such Series for original
issuance will be deemed to be a certification by the Corporation
that it is in compliance with all conditions precedent provided for
in this Indenture relating to the authentication and delivery of
such Securities.
The Trustee shall have the right to decline to
authenticate and deliver any Securities under this Section if the
Trustee is advised by counsel in good faith that the issuance of
such Securities would expose the Trustee to personal liability or
is unlawful.
If the Corporation shall establish pursuant to
Section 2.3 that the Securities of a Series are to be issued in the
form of one or more Registered Global Securities, then the
Corporation shall execute and the Trustee shall, in accordance with
this Section, authenticate and deliver one or more Registered
Global Securities that (i) shall represent and shall be denominated
in an amount equal to the aggregate principal amount of all of the
Securities of such Series issued and not yet cancelled, (ii) shall
be registered in the name of the Depositary for such Registered
Global Security or Securities or the nominee of such Depositary,
(iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instructions and (iv) shall bear a
legend substantially to the following effect: "Unless and until it
is exchanged in whole or in part for Securities in definitive
registered form, this Security may not be transferred except as a
whole by the Depositary to the 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 2.3 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 and any other applicable statute or
regulation.
SECTION E. Execution of Securities. The Securities
and, if applicable, each Coupon appertaining thereto, shall be
signed on behalf of the Corporation by both (a) the chairman of its
Board of Directors or its president or any vice president and
(b) its treasurer or any assistant treasurer or its secretary or
any assistant secretary, under its corporate seal (except in the
case of Coupons) which may, but need not, be attested. Such
signatures may be the manual or facsimile signatures of such
officers. The seal of the Corporation may be in the form of a
facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Securities. Typographical and other
minor errors or defects in any such reproduction of the seal or any
such signature shall not affect the validity or enforceability of
any Security that has been duly authenticated and delivered by the
Trustee.
In case any officer of the Corporation who shall have
signed any of the Securities or Coupons, if any, shall cease to be
such officer before the Security or Coupon so signed (or the
Security to which the Coupon so signed appertains) shall be
authenticated and delivered by the Trustee or disposed of by the
Corporation, such Security or Coupon nevertheless may be
authenticated and delivered or disposed of as though the Person who
signed such Security or Coupon had not ceased to be such officer of
the Corporation; and any Security or Coupon may be signed on behalf
of the Corporation by such Persons as, at the actual date of the
execution of such Security or Coupon, shall be the proper officers
of the Corporation, although at the date of the execution and
delivery of this Indenture any such Person was not such an officer.
SECTION F. Certificate of Authentication. Only such
Securities as shall bear thereon a certificate of authentication
substantially in the form hereinbefore recited and executed by the
Trustee by the manual signature of one of its authorized
signatories shall be entitled to the benefits of this Indenture or
be valid or obligatory for any purpose. No Coupon shall be
entitled to the benefits of this Indenture or shall be valid and
obligatory for any purpose until the certificate of authentication
on the Security to which such Coupon appertains shall have been
duly executed by the Trustee. The execution of such certificate by
the Trustee upon any Security executed by the Corporation shall be
conclusive evidence that the Security so authenticated has been
duly authenticated and delivered hereunder and that the Holder is
entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall
have been duly authenticated and delivered hereunder but never
issued and sold by the Corporation, the Corporation shall deliver
such Security to the Trustee for cancellation as provided in
Section 2.10 together with a written statement (which need not
comply with Section 11.5 and need not be accompanied by an Opinion
of Counsel) stating that such Security has never been issued and
sold by the Corporation, for all purposes of the Indenture such
Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of
the Indenture.
SECTION G. Denomination and Date of Securities;
Payments of Interest. The Securities of each Series shall be
issuable as Registered Securities or Unregistered Securities in
denominations as shall be specified as contemplated by Section 2.3.
In the absence of any such specification with respect to the
Securities of any Series, Registered Securities shall be issuable
in denominations of $1,000 and any integral multiple thereof and
Unregistered Securities shall be issuable in denominations of
$1,000 and $5,000. The Securities of each Series shall be
numbered, lettered, or otherwise distinguished in such manner or in
accordance with such plan as the officers of the Corporation
executing the same may determine with the approval of the Trustee
as evidenced by the execution and authentication thereof.
Each Registered Security shall be dated the date of its
authentication. Each Unregistered Security shall be dated as
provided in the resolution or resolutions of the Board of Directors
of the Corporation referred to in Section 2.3. The Securities of
each Series shall bear interest, if any, from the date, and such
interest shall be payable on the dates, established as contemplated
by Section 2.3.
Unless otherwise provided as contemplated by
Section 2.3, interest on any Registered Security which is payable,
and is punctually paid or duly provided for, on any interest
payment date shall be paid to the Person in whose name that
Registered Security (or one or more predecessor Registered
Securities) is registered at the close of business on the regular
record date for the payment of such interest.
The term "record date" as used with respect to any
interest payment date (except for a date for payment of defaulted
interest) shall mean the date specified as such in the terms of the
Securities of any particular Series, or, if no such date is so
specified, the close of business on the fifteenth day preceding
such interest payment date, whether or not such record date is a
Business Day.
Any interest on any Security of any Series which is
payable, but is not punctually paid or duly provided for, on any
interest payment date (called "defaulted interest" for purposes of
this Section) shall forthwith cease to be payable to the Registered
Holder on the relevant record date by virtue of his having been
such Holder; and such defaulted interest may be paid by the
Corporation, at its election in each case, as provided in
clause (1) or clause (2) below:
(1) The Corporation may elect to make payment of
any defaulted interest to the Persons in whose names any such
Securities (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 Corporation shall notify
the Trustee in writing of the amount of defaulted interest
proposed to be paid on each Security of such Series and the
date of the proposed payment, and at the same time the
Corporation shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect
of such defaulted interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date
of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such
defaulted interest as in this clause provided. Thereupon the
Trustee shall fix a special record date for the payment of
such defaulted interest in respect of Securities of such
Series which shall be not more than 15 nor 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
Corporation of such special record date and, in the name and
at the expense of the Corporation, shall cause notice of the
proposed payment of such defaulted interest and the special
record date thereof to be mailed, first class postage prepaid,
to each Registered Holder at his address as it appears in the
Security Register, not less than 10 days prior to such special
record date. Notice of the proposed payment of such defaulted
interest and the special record date therefor having been
mailed as aforesaid, such defaulted interest in respect of
Securities of such Series shall be paid to the Person in whose
names such Securities (or their respective predecessor
Securities) are registered on such special record date and
such defaulted interest shall no longer be payable pursuant to
the following clause (2).
(2) The Corporation may make payment of any
defaulted interest on the Securities of any Series in any
other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of that Series
may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Corporation to the
Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section,
each Security delivered under this Indenture upon 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 H. Registration, Transfer and Exchange. The
Corporation will cause to be kept at each office or agency to be
maintained for the purpose as provided in Section 3.2 for each
Series of Securities a register or registers (herein sometimes
referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Corporation will
provide for the registration and the registration of the transfer
of, the Registered Securities. The Trustee is hereby appointed
Security registrar for purposes of registering, and registering
transfers of, the Securities.
Upon surrender for registration of transfer of any
Registered Security of any Series at any such office or agency to
be maintained for the purpose as provided in Section 3.2, the
Corporation shall execute and the Trustee shall authenticate and
make available for delivery in the name of the transferee or
transferees a new Registered Security or Registered Securities of
the same Series and of a like tenor and containing the same terms
(other than the principal amount thereof, if more than one
Registered Security is executed, authenticated and delivered with
respect to any Registered Security so presented, in which case the
aggregate principal amount of the executed, authenticated and
delivered Registered Securities shall equal the principal amount of
the Security presented in respect thereof) and conditions.
Unregistered Securities (except for any temporary
Unregistered Securities) and Coupons (except for Coupons attached
to any temporary Unregistered Global Securities) shall be
transferable by delivery.
At the option of the Holder thereof, Registered
Securities of any Series (other than a Registered Global Security,
except as set forth below) may be exchanged for a Registered
Security or Registered Securities of such Series having authorized
denominations and an equal aggregate principal amount, upon
surrender of such Registered Securities to be exchanged at the
agency of the Corporation that shall be maintained for such purpose
in accordance with Section 3.2 and upon payment, if the Corporation
shall so require, of the charges hereinafter provided. If the
Securities of any Series are issued in both registered and
unregistered form, except as otherwise specified pursuant to
Section 2.3, at the option of the Holder thereof, Unregistered
Securities of any Series may be exchanged for Registered Securities
of such Series having authorized denominations and an equal
aggregate principal amount, upon surrender of such Unregistered
Securities to be exchanged at the agency of the Corporation that
shall be maintained for such purpose in accordance with
Section 3.2, with, in the case of Unregistered Securities that have
Coupons attached, all unmatured Coupons and all matured Coupons in
default thereto appertaining, and upon payment, if the Corporation
shall so require, of the charges hereinafter provided. At the
option of the Holder thereof, if Unregistered Securities of any
Series, maturity date, interest rate and original issue date are
issued in more than one authorized denomination, except as
otherwise specified pursuant to Section 2.3, such Unregistered
Securities may be exchanged for Unregistered Securities of such
Series having authorized denominations and an equal aggregate
principal amount, upon surrender of such Unregistered Securities to
be exchanged at the agency of the Corporation that shall be
maintained for such purpose in accordance with Section 3.2 or as
specified pursuant to Section 2.3, with, in the case of
Unregistered Securities that have Coupons attached, all unmatured
Coupons and all matured Coupons in default appertaining thereto,
and upon payment, if the Corporation shall so require, of the
charges hereinafter provided. Unless otherwise specified pursuant
to Section 2.3, Registered Securities of any Series may not be
exchanged for Unregistered Securities of such Series. Whenever any
Securities are so surrendered for exchange, the Corporation shall
execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to
receive. All Securities and Coupons surrendered upon any exchange
or transfer provided for in this Indenture shall be promptly
cancelled and disposed of by the Trustee and the Trustee will
deliver a certificate of disposition thereof to the Corporation.
All Securities issued upon any transfer or exchange of
Securities shall be the valid obligations of the Corporation,
evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Securities surrendered upon such transfer or
exchange.
Every Security presented or surrendered for registration
of transfer or exchange shall (if so required by the Corporation or
the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Corporation and
the Trustee duly executed by the Holder thereof or his attorney
duly authorized in writing.
No service charge shall be made to the Holder for any
registration of transfer or exchange of Securities, but the
Corporation may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Securities, other than exchanges
pursuant to Sections 2.11, 8.5 or 12.3 not involving any transfer.
The Corporation shall not be required (i) to issue,
register the transfer of or exchange any Security during a 15-day
period prior to the day of mailing of the relevant notice of
redemption or (ii) to register the transfer of or exchange any
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 redeemed.
Notwithstanding any other provision of this Section 2.8,
unless and until it is exchanged in whole or in part for Securities
in definitive registered form, a Registered 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.
If at any time the Depositary for any Registered
Securities of a Series represented by one or more Registered Global
Securities notifies the Corporation that it is unwilling or unable
to continue as Depositary for such Registered Securities or if at
any time the Depositary for such Registered Securities shall no
longer be eligible under Section 2.4, the Corporation shall appoint
a successor Depositary with respect to such Registered Securities.
If a successor Depositary for such Registered Securities is not
appointed by the Corporation within 90 days after the Corporation
receives such notice or becomes aware of such ineligibility, the
Corporation's election pursuant to Section 2.3 that such Registered
Securities be represented by one or more Registered Global
Securities shall no longer be effective and the Corporation will
execute, and the Trustee, upon receipt of an Officers' Certificate
for the authentication and delivery of definitive Securities of
such Series, will authenticate and deliver, Securities of such
Series in definitive registered form without Coupons, in any
authorized denominations, in an aggregate principal amount equal to
the principal amount of the Registered Global Security or
Securities representing such Registered Securities in exchange for
such Registered Global Security or Securities.
The Corporation may at any time and in its sole
discretion determine that the Registered Securities of any Series
issued in the form of one or more Registered Global Securities
shall no longer be represented by a Registered Global Security or
Securities. In such event the Corporation will execute, and the
Trustee, upon receipt of an Officers' Certificate for the
authentication and delivery of definitive Securities of such
Series, will authenticate and deliver, Securities of such Series in
definitive registered form without Coupons, in any authorized
denominations, in an aggregate principal amount equal to the
principal amount of the Registered Global Security or Securities
representing such Registered Securities, in exchange for such
Registered Global Security or Securities.
If an Event of Default occurs and is continuing with
respect to Registered Securities of any Series issued in the form
of one or more Registered Global Securities, upon written notice
from the Depositary, the Corporation will execute, and the Trustee,
upon receipt of an Officers' Certificate for the authentication and
delivery of definitive Securities of such Series, will authenticate
and deliver, Securities of such Series in definitive registered
forms without Coupons, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of the
Registered Global Security or Securities, representing such
Registered Securities, in exchange for such Registered Global
Security or Securities.
If specified by the Corporation pursuant to Section 2.3
with respect to Securities represented by a Registered Global
Security, the Depositary for such Registered Global Security may
surrender such Registered Global Security in exchange in whole or
in part for Securities of the same Series in definitive registered
form on such terms as are acceptable to the Corporation and such
Depositary. Thereupon, the Corporation shall execute, and the
Trustee shall authenticate and deliver, without service charge to
the Holder,
a. to the Person specified by such Depositary a
new Registered Security or Securities of the same
Series, of any authorized denominations as requested by
such Person, in an aggregate principal amount equal to
and in exchange for such Person's beneficial interest
in the Registered Global Security; and
b. to such Depositary a new Registered Global
Security in a denomination equal to the difference, if
any, between the principal amount of the surrendered
Registered Global Security and the aggregate principal
amount of Registered Securities authenticated and
delivered pursuant to clause (i) above.
Upon the exchange of a Registered Global Security for
Securities in definitive registered form without Coupons, in
authorized denominations, such Registered Global Security shall be
cancelled by the Trustee or an agent of the Corporation or the
Trustee. Securities in definitive registered form without Coupons
issued in exchange for a Registered Global Security pursuant to
this Section 2.8 shall be registered in such names and in such
authorized denominations as the Depositary for such Registered
Global Security, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee or
agent of the Corporation or the Trustee. The Trustee or such agent
shall deliver such Securities to or as directed by the Persons in
whose names such Securities are so registered.
Notwithstanding anything herein or in the terms of any
Series of Securities to the contrary, none of the Corporation, the
Trustee or any agent of the Corporation or the Trustee (any of
which, other than the Corporation, shall rely on an Officers'
Certificate and an Opinion of Counsel) shall be required to
exchange any Unregistered Security for a Registered Security if
such exchange would result in adverse Federal income tax
consequences to the Corporation (such as, for example, the
inability of the Corporation to deduct from its income, as computed
for Federal income tax purposes, the interest payable on the
Unregistered Securities) under then applicable United States
Federal income tax laws.
SECTION I. Mutilated, Defaced, Destroyed, Lost and
Stolen Securities. In case any temporary or definitive Security or
any Coupon appertaining to any Security shall become mutilated or
defaced or be destroyed, lost or stolen, then, in the absence of
notice to the Corporation or the Trustee that the Security has been
acquired by a bona fide purchaser, the Corporation shall execute,
and upon the written request of any officer of the Corporation, the
Trustee shall authenticate and make available for delivery a new
Security of the same Series and of like tenor and principal amount
and with the same terms and conditions, bearing a number not
contemporaneously outstanding, in exchange and substitution for the
mutilated or defaced Security or in lieu of and substitution for
the Security so destroyed, lost or stolen, in each case together
with Coupons corresponding to the Coupons appertaining to the
Securities so mutilated, defaced, destroyed, lost or stolen. In
every case the applicant for a substitute Security or Coupon shall
furnish to the Corporation and to the Trustee and to any agent of
the Corporation or the Trustee such security or indemnity as may be
required by them to indemnify and defend and to save each of them
harmless and, in every case of destruction, loss or theft, evidence
to their satisfaction of the destruction, loss or theft of such
Security and of the ownership thereof and in the case of mutilation
or defacement shall surrender the Security and related Coupons to
the Trustee or such agent.
Upon the issuance of any substitute Security or Coupon,
the Corporation 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 or its agent) connected therewith. In case
any Security or Coupon which has matured or is about to mature or
has been called for redemption in full or is being surrendered for
conversion in fall shall become mutilated or defaced or be
destroyed, lost or stolen, the Corporation may, instead of issuing
a substitute Security, pay or authorize the payment of the same or
the relevant Coupon (without surrender thereof except in the case
of a mutilated or defaced Security); provided, however, that unless
otherwise provided pursuant to Section 2.3, the applicant for such
payment shall furnish to the Corporation and to the Trustee and any
agent of the Corporation or the Trustee such security or indemnity
as any of them may require to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also
furnish to the Corporation and the Trustee and any agent of the
Corporation or the Trustee evidence to their satisfaction of the
destruction, loss or theft of such Security and of the ownership
thereof.
Every substitute Security or Coupon of any Series issued
pursuant to the provisions of this Section by virtue of the fact
that any Security or Coupon is destroyed, lost or stolen shall
constitute an additional contractual obligation of the Corporation,
whether or not the destroyed, lost or stolen Security or Coupon
shall be at any time enforceable by anyone and shall be entitled to
all the benefits of (but shall be subject to all the limitations of
rights set forth in) this Indenture equally and proportionately
with any and all other Securities or Coupons of such Series duly
authenticated and delivered hereunder. All Securities and Coupons
shall be held and owned upon the express condition that, to the
extent permitted by the law, the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated, defaced,
destroyed, lost or stolen Securities and Coupons and shall preclude
any and all other rights or remedies notwithstanding any law or
statute existing or hereafter enacted to the contrary with respect
to the replacement or payment of negotiable instruments or other
securities without their surrender.
SECTION J. Cancellation of Securities; Destruction
Thereof. All Securities and Coupons surrendered for payment,
redemption, registration of transfer, exchange or conversion, or
for credit against any payment in respect of a sinking or analogous
fund, shall, if surrendered to the Corporation or any agent of the
Corporation or the Trustee, be delivered to the Trustee for
cancellation or, if surrendered to the Trustee, shall be cancelled
by it; and no Securities or Coupons shall be issued in lieu
thereof, except as expressly permitted by any of the provisions of
this Indenture. The Corporation may at any time deliver to the
Trustee for cancellation any Securities or Coupons previously
authenticated hereunder which the Corporation has not issued and
sold and all Securities or Coupons so delivered shall be promptly
cancelled by the Trustee. The Trustee shall return cancelled
Securities and Coupons held by it or provide a certificate of
destruction to the Corporation. If the Corporation shall acquire
any of the Securities or Coupons, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness
represented by such Securities or Coupons unless and until the same
are delivered to the Trustee for cancellation.
SECTION K. Temporary Securities. Pending the
preparation of definitive Securities for any Series, the
Corporation may execute and the Trustee shall authenticate and make
available for delivery temporary Securities for such Series
(printed, lithographed, typewritten or otherwise reproduced, in
each case in form reasonably acceptable to the Trustee). Temporary
Securities of any Series shall be issuable as Registered Securities
without Coupons, or as Unregistered Securities with or without
Coupons attached thereto, of any authorized denomination, and
substantially in the form of the definitive Securities of such
Series but with such omissions, insertions and variations as may be
appropriate for temporary Registered Securities, all as may be
determined by the Corporation with the reasonable concurrence of
the Trustee. Temporary Securities may contain such reference to
any provisions of this Indenture as may be appropriate. Every
temporary Security shall be executed by the Corporation and be
authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the
definitive Securities. Without unreasonable delay the Corporation
shall execute and shall furnish definitive Securities of such
Series and thereupon temporary Securities of such Series may be
surrendered in exchange therefor without charge to the Holder at
each office or agency to be maintained by the Corporation for that
purpose pursuant to Section 3.2 and, in the case of Unregistered
Securities, at any agency maintained by the Corporation for such
purpose as specified pursuant to Section 2.3, and the Trustee shall
authenticate and make available for delivery in exchange for such
temporary Securities of such Series an equal aggregate principal
amount of definitive Securities of the same Series of authorized
denominations and, in the case of Unregistered Securities having
attached thereto any appropriate Coupons. Until so exchanged, the
temporary Securities of any Series shall be entitled to the same
benefits under this Indenture as definitive Securities of such
Series. The provisions of this Section are subject to any
restrictions or limitations on the issue and delivery of temporary
Unregistered Securities of any Series that may be established
pursuant to Section 2.3 (including any provision that Unregistered
Securities of such Series initially be issued in the form of a
single global Unregistered Security to be delivered to a depositary
or agency located outside the United States and the procedure
pursuant to which definitive or global Unregistered Securities of
such Series would be issued in exchange for such temporary global
Unregistered Security).
ARTICLE III.
COVENANTS OF THE CORPORATION
SECTION A. Payment of Principal and Interest. The
Corporation covenants and agrees for the benefit of each particular
Series of Securities that it will duly and punctually pay or cause
to be paid the principal of, and interest on, each of the
Securities of such Series in accordance with the terms of such
Securities and in the Coupons, if any, appertaining thereto and in
this Indenture. The interest on Securities with Coupons attached
(together with any additional amounts payable pursuant to the terms
of such Securities) shall be payable only upon presentation and
surrender of the several Coupons for such interest installments as
are evidenced thereby as they severally mature. If any temporary
Unregistered Security provides that interest thereon may be paid
while such Security is in temporary form, the interest on any such
temporary Unregistered Security (together with any additional
amounts payable pursuant to the terms of such Security) shall be
paid, as to the installments of interest evidenced by Coupons
attached thereto, if any, only upon presentation and surrender
thereof, and, as to the other installments of interest, if any,
only upon presentation of such Securities for notation thereon of
the payment of such interest, in each case subject to any
restrictions that may be established pursuant to Section 2.3. The
interest on Registered Securities (together with any additional
amounts payable pursuant to the terms of such Securities) shall be
payable only to or upon the written order of the Holders thereof
and at the option of the Corporation may be paid by wire transfer
(to Holders of $10,000,000 or more of Registered Securities) or by
mailing checks for such interest payable to or upon the written
order of such Holders at their last addresses as they appear on the
Security Register.
Notwithstanding the provisions of Section 2.3 and
Section 2.7, unless otherwise specified as contemplated by
Section 2.3, payment of principal of and any interest on any
Security in definitive global form shall be made to the Person or
Persons specified therein.
Except as provided in the preceding paragraph, the
Corporation, the Trustee and any agent of the Corporation and the
Trustee shall treat a Person as the Holder of such principal amount
of Outstanding Securities represented by a definitive global
Security as shall be specified in a written statement of the Holder
of such definitive global Security.
SECTION B. Offices for Payment, etc. So long as any
of the Securities remain Outstanding, the Corporation will maintain
the following for each Series: an office or agency (a) where the
Securities may be presented for payment, (b) where the Registered
Securities may be presented for registration of transfer and for
exchange as provided in this Indenture, (c) if applicable, an
office or Agency where the Securities may be presented for
conversion (the "Conversion Agent"), and (d) where notices and
demands may be served upon the Corporation in respect of the
Securities of any Series, the Coupons appertaining thereto, or this
Indenture. The Corporation will maintain one or more agencies in
a city or cities located outside the United States (including any
city in which such an agency is required to be maintained under the
rules of any stock exchange on which the Securities of such Series
are listed) where the Unregistered Securities, if any, of each
Series and Coupons, if any, appertaining thereto may be presented
for payment. No payment on any Unregistered Security or Coupon
will be made upon presentation of such Unregistered Security or
Coupon at an agency of the Corporation within the United States nor
will any payment be made by transfer to an account in, or by mail
to an address in, the United States unless, pursuant to applicable
United States laws and regulations then in effect, such payment can
be made without adverse tax consequences to the Corporation.
Notwithstanding the foregoing, payments in Dollars of Unregistered
Securities of any Series and Coupons appertaining thereto which are
payable in Dollars may be made at an agency of the Corporation
within the United States if such payment in Dollars at each agency
maintained by the Corporation outside the United States for payment
on such Unregistered Securities is illegal or effectively precluded
by exchange controls or other similar restrictions.
The Corporation will give to the Trustee written notice
of the location of any such office or agency and of any change of
location thereof. In case the Corporation shall fail to so
designate or maintain any such office or agency or shall fail to
give such notice of the location or of any change in the location
thereof, presentations and demands may be made and notices may be
served at the Corporate Trust Office. Unless otherwise specified
pursuant to Section 2.3, the Trustee is hereby appointed Paying
Agent and Conversion Agent.
SECTION C. Paying Agents. Whenever the Corporation
shall appoint a Paying Agent other than the Trustee with respect to
the Securities of any Series, it will cause such Paying Agent to
execute and deliver to the Trustee an instrument in which such
Agent shall agree with the Trustee, subject to the provisions of
this Section,
1. that it will hold all sums received by it as such
Agent for the payment of the principal of or interest on the
Securities of such Series (whether such sums have been paid to
it by the Corporation or by any other obligor on the
Securities of such Series) in trust for the benefit of the
Holders of the Securities of such Series, or Coupons
appertaining thereto, if any, or of the Trustee, and upon the
occurrence of an Event of Default and upon the written request
of the Trustee, pay over all such sums received by it to the
Trustee, and
2. that it will give the Trustee notice of any failure
by the Corporation (or by any other obligor on the Securities
of such Series) to make any payment of the principal of or
interest on the Securities of such Series when the same shall
be due and payable.
The Corporation will, on or prior to each due date of
the principal of or interest on the Securities of such Series,
deposit in a timely manner with the Paying Agent a sum sufficient
to pay such principal or interest so becoming due, and (unless such
Paying Agent is the Trustee) the Corporation will promptly notify
the Trustee of any failure to take such action.
If the Corporation shall act as its own Paying Agent
with respect to the Securities of any Series, it will, on or before
each due date of the principal of or interest on the Securities of
such Series, set aside, segregate and hold in trust for the benefit
of the Holders of the Securities of such Series or the Coupons
appertaining thereto a sum sufficient to pay such principal or
interest so becoming due. The Corporation will promptly notify the
Trustee of any failure to take such action.
Anything in this Section to the contrary notwithstand-
ing, but subject to Section 10.1, the Corporation may at any time,
for the purpose of obtaining a satisfaction and discharge with
respect to one or more or all Series of Securities hereunder, or
for any other reason, pay or cause to be paid to the Trustee all
sums held in trust for any such Series by the Corporation or any
Paying Agent hereunder, as required by this Section, such sums to
be held by the Trustee upon the trusts herein contained.
Anything in this Section to the contrary
notwithstanding, the agreement to hold sums in trust as provided in
this Section is subject to the provisions of Sections 10.3 and
10.4.
SECTION D. Written Statement to Trustee. The
Corporation will deliver to the Trustee, within 120 days after the
end of each fiscal year of the Corporation ending after the date
hereof, a brief certificate (which need not comply with
Section 11.5) from the principal executive, financial or accounting
officer of the Corporation as to his or her knowledge, after due
inquiry, of the Corporation's compliance with all conditions and
covenants under the Indenture (such compliance to be determined
without regard to any period of grace or requirement of notice
provided under the Indenture), and if the Corporation shall not be
in compliance, specifying all such defaults or non-compliance and
the nature and status thereof.
SECTION E. Luxembourg Publications. In the event of
the publication of any notice pursuant to Section 8.2, 10.4 or
12.2, the party making such publication in the Borough of
Manhattan, The City of New York and London shall also, to the
extent that notice is required to be given to Holders of Securities
of any Series by applicable Luxembourg law or stock exchange
regulations, as evidenced by an Officers' Certificate delivered to
such party, make a similar publication in Luxembourg.
ARTICLE IV.
SECURITYHOLDERS LISTS AND REPORTS BY THE
CORPORATION AND THE TRUSTEE
SECTION A. Corporation to Furnish Trustee Information
as to Names and Addresses of Securityholders. The Corporation
covenants and agrees that it will furnish or cause to be furnished
to the Trustee a list in such form as the Trustee may reasonably
require of the names and addresses of the Holders of the Registered
Securities of each Series:
1. semiannually and not more than 15 days after each
record date for the payment of interest on such Registered
Securities, as hereinabove specified, as of such record date
and on dates to be determined pursuant to Section 2.3 for non-
interest bearing Registered Securities in each year, and
2. at such other times as the Trustee may reasonably
request in writing, within 30 days after receipt by the
Corporation of any such request, such list to be as of a date
not more than 15 days prior to the time such information is
furnished,
provided that if and so long as the Trustee shall be the Security
registrar for such Series and all of the Securities of any Series
are Registered Securities, such list shall not be required to be
furnished.
SECTION B. Preservation and Disclosure of
Securityholders' Lists.
1. The Trustee shall preserve, in as current a form as
is reasonably practicable, all information as to the names and
addresses of the Holders of each Series of Registered Securities
contained in the most recent list furnished to it as provided in
Section 4.1 or maintained by the Trustee in its capacity as
Security registrar for such Series, if so acting. The Trustee may
destroy any list furnished to it as provided in Section 4.1 upon
receipt of a new list so furnished.
2. In case 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 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 a particular Series (in which case
the applicants must all hold Securities of such Series) or with
Holders of all Securities with respect to their rights under this
Indenture or under such Securities and such application 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
a. afford to such applicants access to the information
preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section, or
b. inform such applicants as to the approximate number
of Holders of Registered Securities of such Series or of all
Registered Securities, as the case may be, whose names and
addresses appear in the information preserved at the time by
the Trustee, in accordance with the provisions of subsection
(a) of this Section, as to the approximate cost of mailing to
such Securityholders the form of proxy or other communication,
if any, specified in such application.
If the Trustee shall elect not to afford to such
applicants access to such information, the Trustee shall, upon the
written request of such applicants, mail to each Securityholder of
such Series or all Holders of Registered Securities, as the case
may be, whose name and address appears in the information preserved
at the time by the Trustee in accordance with the provisions of
subsection (a) of this Section, a copy of the form of proxy or
other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee of the material
to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such
tender, the Trustee shall mail to such applicants and file with the
Commission together with a copy of the material to be mailed, a
written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of
the Holders of Registered Securities of such Series or of all
Registered Securities, as the case may be, or could 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 such 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 Securityholders 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.
3. Each and every Holder of Securities and Coupons, by
receiving and holding the same, agrees with the Corporation
and the Trustee that neither the Corporation nor the Trustee
nor any agent of the Corporation or the Trustee 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 the provisions of subsection (b)
of this Section, 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 such subsection (b).
SECTION C. Reports by the Corporation. The
Corporation covenants:
1. to file with the Trustee, within 15 days after the
Corporation 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 Corporation 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 Corporation is not required to file information,
documents, or reports pursuant to either of such Sections,
then to 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. to 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
Corporation with the conditions and covenants provided for in
this Indenture as may be required from time to time by such
rules and regulations; and
3. to transmit by mail to the Holders of Securities in
the manner and to the extent required by Sections 6.6 and
11.4, within 30 days after the filing thereof with the
Trustee, such summaries of any information, documents, and
reports required to be filed by the Corporation pursuant to
subsections (a) and (b) of this Section as may be required to
be transmitted to such Holders by rules and regulations
prescribed from time to time by the Commission.
ARTICLE V.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION A. Event of Default Defined; Acceleration of
Maturity; Waiver of Default. "Event of Default" with respect to
Securities of any Series wherever used herein, means any one of the
following events which shall have occurred and be continuing
(whatever the reason for such Event of Default and whether it shall
be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental
body) unless it is either inapplicable to a particular Series or it
is specifically deleted or modified in or pursuant to the
supplemental indenture or resolution of the Board of Directors
establishing such Series of Securities or in the form of Security
for such Series:
1. default in the payment of any installment of
interest upon any of the Securities of such Series as and when
the same shall become due and payable, and continuance of such
default for a period of 30 days; or
2. default in the payment of all or any part of the
principal of any of the Securities of such Series as and when
the same shall become due and payable, either at Maturity,
upon any redemption, by declaration or otherwise; or
3. default in the performance, or breach of any
covenant or warranty of the Corporation contained in the
Securities of such Series or in this Indenture (other than a
covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with or
which has expressly been included in this Indenture solely for
the benefit of a Series of Securities other than that Series),
and continuance of such default or breach for a period of 90
days after there has been given, by registered or certified
mail, to the Corporation by the Trustee or to the Corporation
and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that Series a written
notice specifying such default or breach and requiring it to
be remedied and stating that such notice is a "Notice of
Default" hereunder; or
4. the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of the
Corporation in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order
adjudging the Corporation a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the
Corporation under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the
Corporation or of all or any substantial part of its property,
or ordering the winding up or liquidation of its affairs, and
the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period
of 90 consecutive days; or
5. the commencement by the Corporation of a voluntary
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or
of any other case or proceeding to be adjudicated a bankrupt
or insolvent, or the consent by it to the entry of a decree or
order for relief in respect of the Corporation in an
involuntary case or proceeding under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar
law or to the commencement of any bankruptcy or insolvency
case or proceeding against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief
under any applicable Federal or State law, or the consent by
it to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of the
Corporation or of all or any substantial part of its property,
or the making by it of an assignment for the benefit of
creditors; or
6. any other Event of Default provided with respect to
Securities of such Series.
If an Event of Default occurs and is continuing with respect to the
Securities of any Series, then and in each and every such case,
unless the principal of all Securities of such Series shall have
already become due and payable, either the Trustee for such Series
or the Holders of not less than 25% in aggregate principal amount
of the Securities of such Series then Outstanding hereunder, by
notice in writing to the Corporation (and to the Trustee if given
by such Holders), may declare the entire principal (or, if the
Securities of such affected Series are Original Issue Discount
Securities, such portion of the principal amount as may be
specified in the terms of such Series) of all the Securities of
such Series to be due and payable immediately, and upon any such
declaration the same shall become and shall be immediately due and
payable. This provision, however, is subject to the condition that
if at any time after the principal (or, if the Securities of such
affected Series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of
such Series) of the Securities of such Series shall have been so
declared due and payable, and before any judgment or decree for the
payment of the moneys due shall have been obtained or entered as
hereinafter provided, the Corporation shall pay or shall deposit
with the Trustee a sum sufficient to pay all matured installments
of interest, if any, upon all the Securities of such Series and the
principal of any and all Securities of such Series which shall have
become due otherwise than by such acceleration (with interest upon
such principal and, to the extent that payment of such interest is
enforceable under applicable law, upon overdue installments of
interest, at the same rate as the rate of interest or yield to
maturity (in the case of Original Issue Discount Securities)
specified in the Securities of such Series to the date of such
payment or deposit) and in Dollars such amount as shall be
sufficient to cover reasonable compensation to the Trustee, its
agents, attorneys and counsel and all other expenses and
liabilities incurred, and all advances with interest made, by the
Trustee, its agents, attorneys and counsel and if any and all
defaults under this Indenture, other than the nonpayment of the
principal of Securities of such Series which shall have become due
by such acceleration, shall have been remedied, then and in every
such case the Holders of a majority in aggregate principal amount
of the Securities of such Series then Outstanding, by written
notice to the Corporation and to the Trustee for the Securities of
such Series, may waive all defaults and rescind and annul such
declaration and its consequences; but no such waiver or rescission
and annulment shall extend to or shall affect any subsequent
default or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of
the principal of any Original Issue Discount Securities shall have
been accelerated and declared due and payable pursuant to the
provisions hereof, then, from and after such declaration, unless
such declaration has been rescinded and annulled, the principal
amount of such Original Issue Discount Securities shall be deemed,
for all purposes hereunder, to be such portion of the principal
thereof as shall be due and payable as a result of such
acceleration, and payment of such portion of the principal thereof
as shall be due and payable as a result of such acceleration,
together with interest, if any, thereon and all other amounts owing
thereunder, shall constitute payment in full of the Original Issue
Discount Securities.
SECTION B. Collection of Indebtedness By Trustee;
Trustee May Prove Debt. The Corporation covenants that (a) in case
default shall be made in the payment of any installment of interest
on any of the Securities of any Series when such interest shall
have become due and payable, and such default shall have continued
for a period of 30 days, or (b) in case default shall be made in
the payment of all or any part of the principal of any of the
Securities of any Series when the same shall have become due and
payable, whether upon Maturity or upon any redemption or by
declaration or otherwise, then upon demand of the Trustee for the
Securities of such Series, the Corporation will pay to the Trustee
for the Securities of such Series for the benefit of the Holders of
the Securities of such Series the whole amount that then shall have
become due and payable on all Securities of such Series for
principal of or interest, as the case may be (with interest to the
date of such payment upon the overdue principal and, to the extent
that payment of such interest is enforceable under applicable law,
on overdue installments of interest at the same rate as the rate of
interest or yield to maturity (in the case of Original Issue
Discount Securities) specified in the Securities of such Series);
and in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including reasonable
compensation to, and all expenses and liabilities incurred and all
advances with interest made by, the Trustee and each predecessor
Trustee except as a result of its negligence or bad faith.
Until such demand is made by the Trustee, the
Corporation may pay the principal of and interest on the Securities
of any Series to the Persons entitled thereto, whether or not the
principal of and interest on the Securities of such Series are
overdue.
In case the Corporation shall fail forthwith to pay such
amounts upon such demand, the Trustee for the Securities of such
Series, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at
law or in equity for the collection of the sums so due and unpaid,
and may prosecute any such action or proceedings to judgment or
final decree, and may enforce any such judgment or final decree
against the Corporation or other obligor upon such Securities and
collect in the manner provided by law out of the property of the
Corporation or other obligor upon such Securities, wherever
situated, the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to
the Corporation or any other obligor upon the Securities under
Title 11 of the United States Code or any other applicable Federal
or State bankruptcy, insolvency or other similar law, or in case a
receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Corporation or its
property or such other obligor, or in case of any other comparable
judicial proceedings relative to the Corporation or other obligor
under the Securities of any Series, or to the creditors or property
of the Corporation or such other obligor, the Trustee, irrespective
of whether the principal of any 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
pursuant to the provisions of this Section, shall be entitled and
empowered, by intervention in such proceedings or otherwise:
1. to file and prove a claim or claims for the whole
amount of principal and interest (or, if the Securities of any
Series are Original Issue Discount Securities, such portion of
the principal amount as may be specified in the terms of such
Series) owing and unpaid in respect of the Securities of any
Series, and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the
Trustee (including any claim for reasonable compensation to,
and all expenses and liabilities incurred and all advances
with interest made by, the Trustee and each predecessor
Trustee, and their respective agents, attorneys and counsel,
except as a result of negligence or bad faith) and of the
Securityholders allowed in any judicial proceedings relative
to the Corporation or other obligor upon all Securities of any
Series, or to the creditors or property of the Corporation or
such other obligor, and
2. to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute
all amounts received with respect to the claims of the
Securityholders and of the Trustee on their behalf; and any
trustee, receiver, or liquidator, custodian or other similar
official is hereby authorized by each of the Securityholders
to make payments to the Trustee for the Securities of such
Series, and, in the event that such Trustee shall consent to
the making of payments directly to the Securityholders, to pay
to such Trustee such amounts as shall be sufficient to cover
reasonable compensation to, and all expenses and liabilities
incurred and all advances with interest made by, such Trustee,
each predecessor Trustee and their respective agents,
attorneys and counsel and all other amounts due to such
Trustee or any predecessor Trustee pursuant to Section 6.7,
except as a result of Trustee's negligence or bad faith.
Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf
of any Securityholder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities of any Series or
the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Securityholder in any such
proceeding.
All rights of action and of asserting claims under this
Indenture, or under any of the Securities or Coupons appertaining
to such Securities, may be enforced by the Trustee for the
Securities of such Series or Coupons without the possession of any
of the Securities of such Series or Coupons appertaining to such
Securities or the production thereof at any trial or other
proceedings relative thereto, and any such action or proceedings
instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment, subject
to the payment of the expenses, disbursements and compensation of
the Trustee, each predecessor Trustee and their respective agents
and attorneys, shall be for the ratable benefit of the Holders of
the Securities or Coupons appertaining to such Securities in
respect of which such action was taken.
In any proceedings brought by the Trustee for the
Securities of such Series (and also any proceedings involving the
interpretation of any provision of this Indenture to which the
Trustee shall be a party), the Trustee shall be held to represent
all the Holders of the Securities or Coupons appertaining to such
Securities in respect to which such action was taken, and it shall
not be necessary to make any Holders of such Securities or Coupons
appertaining to such Securities parties to any such proceedings.
SECTION C. Application of Proceeds. Any moneys
collected by the Trustee for the Securities of such Series pursuant
to this Article in respect of the Securities of any Series shall be
applied in the following order at the date or dates fixed by such
Trustee and, in case of the distribution of such moneys on account
of principal or interest, upon presentation of the several
Securities and Coupons appertaining to such Securities in respect
of which moneys have been collected and stamping (or otherwise
noting) thereon the payment, or issuing Securities of such Series
in reduced principal amounts in exchange for the presented
Securities of like Series if only partially paid, or upon surrender
thereof if fully paid:
FIRST: To the payment of reasonable costs and expenses
applicable to such Series in respect of which moneys have been
collected, including reasonable compensation to, and all
reasonable expenses and liabilities incurred and all advances
with interest made by, the Trustee and each predecessor
Trustee and their respective agents and attorneys and all
other amounts due to the Trustee or any predecessor Trustee
pursuant to Section 6.7, except as a result of Trustee's
negligence or bad faith;
SECOND: To the payment of the amounts then due and
unpaid for interest on the Securities of such Series for which
principal is not yet due and payable in respect of which
moneys have been collected, such payments to be made ratably
to the Persons entitled thereto, without discrimination or
preference, according to the amounts then due and payable on
such Securities for interest;
THIRD: To the payment of the amounts then due and
unpaid for principal of and interest on the Securities of such
Series for which principal is due and payable in respect of
which moneys have been collected, such payments to be made
ratably to the Persons entitled thereto, without
discrimination or preference, according to the amounts then
due and payable on such Securities for principal and interest,
respectively; and
FOURTH: To the payment of the remainder, if any, to the
Corporation or any other Person lawfully entitled thereto.
SECTION D. Restoration of Rights on Abandonment of
Proceedings. In case the Trustee for the Securities of any Series
or any Holder shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or
abandoned for any reason, or shall have been determined adversely
to the Trustee or to such Holder, then and in every such case,
subject to the determination in any such proceeding, the
Corporation, the Trustee and the Holders shall be restored
respectively to their former positions and rights hereunder, and
all rights, remedies and powers of the Corporation, the Trustee and
the Securityholders shall continue as though no such proceedings
had been taken.
SECTION E. Limitations on Suits by Securityholders.
No Holder of any Security of any Series or of any Coupon
appertaining thereto shall have any right by virtue or by availing
of any provision of this Indenture to institute any action or
proceeding at law or in equity or in bankruptcy or otherwise upon
or under or with respect to this Indenture, or for the appointment
of a trustee, receiver, liquidator, custodian or other similar
official or for any other remedy hereunder, unless such Holder
previously shall have given to the Trustee written notice of an
Event of Default and of the continuance thereof, as hereinbefore
provided, and unless also the Holders of not less than 25% in
aggregate principal amount of the Securities of such Series then
Outstanding shall have made written request upon the Trustee to
institute such action or proceedings in its own name as trustee
hereunder and shall have offered to the Trustee such reasonable
indemnity, as it may require, against the costs, expenses and
liabilities to be incurred therein or thereby and the Trustee for
60 days after its receipt of such notice, request and offer of
indemnity shall have failed to institute any such action or
proceeding and no direction inconsistent with such written request
shall have been given to the Trustee during such 60 day period by
Holders of a majority in principal amount of the Securities of such
Series then Outstanding; it being understood and intended, and
being expressly covenanted by the taker and Holder of every
Security or Coupon with every other taker and Holder of a Security
or Coupon and the Trustee, that no one or more Holders of
Securities of any Series or Coupons appertaining to such Securities
shall have any right in any manner whatever, by virtue or by
availing of any provision of this Indenture to affect, disturb or
prejudice the rights of any other such Holder of Securities or
Coupons appertaining to such Securities, or to obtain or seek to
obtain priority over or preference to any other such Holder or to
enforce any right under this Indenture, except in the manner herein
provided and for the equal, ratable and common benefit of all
Holders of Securities of the applicable Series and Coupons
appertaining to such Securities.
SECTION F. Unconditional Right of Securityholders to
Institute Certain Suits. Notwithstanding any provision in this
Indenture and any provision of any Security, the right of any
Holder of any Security or Coupon to receive payment of the
principal of and (subject to Section 2.7) interest on such Security
or Coupon at the respective rates, in the respective amount on or
after the respective due dates expressed in such Security or
Coupon, and to institute suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
SECTION G. Powers and Remedies Cumulative; Delay or
Omission Not Waiver of Default. Except as provided in Section 2.9
and Section 5.5, no right or remedy herein conferred upon or
reserved to the Trustee or to the Securityholders 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.
No delay or omission of the Trustee or of any Security-
holder to exercise any right or power accruing upon any Event of
Default occurring and continuing as aforesaid shall impair any such
right or power or shall be construed to be a waiver of any such
Event of Default or an acquiescence therein; and, subject to
Section 5.5, every power and remedy given by this Indenture or by
law to the Trustee or to the Securityholders may be exercised from
time to time, and as often as shall be deemed expedient, by the
Trustee or the Securityholders.
SECTION H. Control by Securityholders. The Holders
of a majority in aggregate principal amount of the Securities of
each Series affected (with each Series treated as a separate class)
at the time Outstanding 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 by this Indenture; provided that such direction shall not be
otherwise than in accordance with law and the provisions of this
Indenture and provided further that the Trustee, being advised by
counsel, shall have the right to decline to follow any such
direction if the Trustee shall determine that the action or
proceedings so directed would involve the Trustee in personal
liability or if the Trustee in good faith shall so determine that
the actions or forbearances specified in or pursuant to such
direction would be unduly prejudicial to the interests of Holders
of the Securities of all Series so affected not joining in the
giving of said direction.
SECTION I. Waiver of Past Defaults. The Holders of
not less than a majority in aggregate principal amount of the
Securities of any Series at the time Outstanding may on behalf of
the Holders of all the Securities of such Series waive any past
default hereunder or its consequences, except a default in the
payment of the principal of or interest on any of the Securities of
such Series.
Upon any such waiver, such default shall cease to exist
and be deemed to have been cured and not to have occurred, and any
Event of Default arising therefrom shall be deemed to have been
cured and not to have occurred for every purpose of this Indenture;
but no such waiver shall extend to any subsequent or other default
or Event of Default or impair any right consequent thereon.
SECTION J. Right of Court to Require Filing of
Undertaking to Pay Costs. All parties to this Indenture agree, and
each Holder of any Security or Coupon, by his acceptance thereof,
shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or
remedy under this Indenture or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing
by any party litigant in such suit of an undertaking to pay the
costs of such suit, and that such court may in its discretion
assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made
by such party litigant; but the provisions of this Section shall
not apply to any suit instituted by the Trustee, to any suit
instituted by any Securityholder or group of Securityholders of any
Series holding in the aggregate more than 10% in aggregate
principal amount of the Securities of such Series, or to any suit
instituted by any Securityholder for the enforcement of the payment
of the principal of or interest on any Security on or after the due
date expressed in such Security or any date fixed for redemption.
SECTION K. Suits for Enforcement. In case an Event
of Default has occurred, has not been waived and is continuing, the
Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and
enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of
the exercise of any power granted in this Indenture or to enforce
any other legal or equitable right vested in the Trustee by this
Indenture or by law.
ARTICLE VI.
CONCERNING THE TRUSTEE
SECTION A. Duties of Trustee.
1. If an Event of Default has occurred and is
continuing with respect to the Securities of any Series, the
Trustee shall exercise the rights and powers vested in it by this
Indenture and use the same degree of care and skill in its exercise
as a prudent man would exercise or use under the circumstances in
the conduct of his own affairs.
2. Except during the continuance of an Event of Default
with respect to the Securities of any Series:
a. the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others; and
b. in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and
conforming on their face to the requirements of this
Indenture. However, in the case of any such certificates or
opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall
examine the certificates and opinions to determine whether or
not they conform on their face to the requirements of this
Indenture.
3. The Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act or its
own willful misconduct, except that:
a. this paragraph (c) does not limit the effect of
paragraph (b) of this Section 6.1;
b. the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it
is proved that the Trustee was negligent in ascertaining the
pertinent facts; and
c. the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance
with a direction received by it pursuant to Section 5.8.
4.Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 6.1.
5.The Trustee may refuse to perform any duty or exercise any right or
power or extend or risk its own funds or otherwise incur any
financial liability unless it receives indemnity satisfactory to it
against any loss, liability or expense.
6.Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by
it hereunder except as otherwise agreed in writing with the
Corporation.
SECTION B. Rights of Trustee. Subject to Section 6.1
and the provisions of the Trust Indenture Act:
1.The Trustee may rely on any document believed by it to be genuine
and to have been signed or presented by the proper Person. The Trustee
need not investigate any fact or matter stated in the document.
2.Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall
not be liable for any action it takes or omits to take in good
faith in reliance on such Officers' Certificate or Opinion of
Counsel.
3.Subject to the provisions of Section 6.1(c), the Trustee shall not
be liable for any action it takes or omits to take in good faith which
it believes to be authorized or within its rights or powers.
4.The Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon in accordance with such advice or Opinion of Counsel.
5.The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security
or indemnity against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or
direction.
6.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 C. Individual Rights of Trustee. The Trustee
in its individual or any other capacity may become the owner or
pledgee of Securities or Coupons and may otherwise deal with the
Corporation or its affiliates with the same rights it would have if
it were not Trustee. Any Paying Agent, registrar or coregistrar
may do the same with like rights. However, the Trustee must comply
with Sections 6.10 and 6.11.
SECTION D. Trustee's Disclaimer. The Trustee makes
no representation as to the validity or adequacy of this Indenture
or the Securities or Coupons, it shall not be accountable for the
Corporation's use of the proceeds from the Securities, it shall not
be responsible for any statement in the registration statement for
the Securities under the Securities Act of 1933 or in the Indenture
or the Securities (other than its certificate of authentication).
SECTION E. Notice of Defaults. If a default occurs
and is continuing with respect to any Securities of any Series and
if it is known to the Trustee through oral or written notice to a
corporate trust officer, the Trustee shall give to each
Securityholder of such Series notice of the default within 90 days
after such default occurs. Except in the case of a default
described in Section 5.1(a) or (b), the Trustee may withhold the
notice if and so long as a committee of its Responsible Officers in
good faith determines that withholding the notice is in the
interests of Securityholders of such Series.
SECTION F. Reports by Trustee to Holders. Within 60
days after each June 1 beginning with the June 1 following the date
of this Indenture, the Trustee shall mail to each Securityholder of
any Series and each other Person specified in TIA Section 313(c) a
brief report dated as of such June 1 that complies with TIA Section
313(a) to the extent required thereby. The Trustee also shall
comply with TIA Section 313(b).
A copy of each report at the time of its mailing to
Securityholders of any Series shall be filed with the Commission
and each securities exchange on which the Securities of any Series
are listed. The Corporation agrees promptly to notify the Trustee
whenever the Securities of any Series become listed on any
securities exchange and of any delisting thereof.
SECTION G. Compensation and Indemnity. The
Corporation agrees:
1.to pay to the Trustee from time to time in Dollars such compensation
as shall be agreed to in writing between the Corporation 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 with interest thereon incurred or
made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the
expenses, advances with interest thereon and disbursements of
its agents and counsel), except to the extent any such
expense, disbursement or advance may be attributable to its
negligence or bad faith; and
3.to indemnify the Trustee in Dollars for, and to hold it harmless
against, any loss, liability or expense arising out of or in
connection with the acceptance or administration of this trust
or the performance of its duties hereunder, including the
costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of
any of its powers or duties hereunder (including the
reasonable compensation and the expenses, advances with
interest thereon and disbursements of its agents and counsel),
except to the extent that any such loss, liability or expense
may be attributable to its negligence or bad faith.
As security for the performance of the obligations of the
Corporation in this Section 6.7, the Trustee shall have a lien
prior to the Securities on all money or property held or collected
by the Trustee, except that held in trust to pay the principal of
or interest, if any, on particular Securities.
"Trustee" for purpose of this Section 6.7 includes any
predecessor Trustee, provided that the negligence or bad faith of
any Trustee shall not be attributable to any other Trustee.
The Corporation's payment obligations pursuant to this
Section 6.7 shall survive the discharge of this Indenture. When
the Trustee incurs expenses after the occurrence of a default
specified in Sections 5.1(d) and 5.1(e), such expenses are intended
to constitute expenses of administration under bankruptcy law.
SECTION H. Replacement of Trustee. The Trustee may
resign at any time with respect to Securities of one or more Series
by so notifying the Corporation; provided, however, no such
resignation shall be effective until a successor Trustee has
accepted its appointment pursuant to this Section 6.8. The Holders
of a majority in aggregate principal amount of the Outstanding
Securities of any Series may remove the Trustee with respect to
such Series at the time Outstanding by so notifying the Trustee and
the Corporation. The Corporation shall remove the Trustee if:
(1) the Trustee fails to comply with Section 6.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, with respect to the
Securities of one or more Series, the Corporation shall promptly
appoint, by resolution of its Board of Directors, a successor
Trustee with respect to the Securities of such Series.
A successor Trustee shall deliver a written acceptance of
its appointment to the retiring Trustee and to the Corporation.
Thereupon the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the
rights, powers and duties of the Trustee under this Indenture with
respect to the Securities of such Series. The successor Trustee
shall mail a notice of its succession to Securityholders so
affected. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to
the lien provided for in Section 6.7.
If a successor Trustee does not take office within 30
days after the retiring Trustee resigns or is removed, the retiring
Trustee, the Corporation or the Holders of a majority in aggregate
principal amount of the Securities at the time Outstanding may
petition any court of competent jurisdiction for the appointment of
a successor Trustee.
If the Trustee fails to comply with Section 6.10, any
Securityholder may petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor
Trustee.
SECTION I. Successor Trustee by Merger. If the
Trustee consolidates with, merges or converts into, or transfers
all or substantially all its corporate trust business or assets to,
another corporation, the resulting, surviving or transferee
corporation without any further act shall be the successor Trustee.
SECTION J. Eligibility; Disqualification. The
Trustee shall at all times satisfy the requirements of TIA Section
310(a)(1) and Section 310(a)(5). The Trustee shall have a combined
capital and surplus of at least $50,000,000 as set forth in its
most recent published annual report of condition. The Trustee
shall comply with TIA Section 310(b).
SECTION K. Preferential Collection of Claims Against
Corporation. The Trustee shall comply with TIA Section 311(a),
excluding any creditor relationship listed in TIA Section 311(b).
A Trustee who has resigned or been removed shall be subject to TIA
Section 311(a) to the extent indicated therein.
ARTICLE VII.
CONCERNING THE SECURITYHOLDERS
SECTION A. Evidence of Action Taken by
Securityholders.
1.Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
a specified percentage in principal amount of the Securityholders
of any or all Series may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such
specified percentage of Securityholders in Person or by agent duly
appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument
or instruments are delivered to the Trustee. Proof of execution of
any instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to
Sections 6.1 and 6.2) conclusive in favor of the Trustee and the
Corporation, if made in the manner provided in this Article.
2.In the case of Registered Securities, the ownership of such
Securities shall be proved by the Security Register.
SECTION B. Proof of Execution of Instruments.
Subject to Sections 6.1 and 6.2, the execution of any instrument by
a Securityholder or his agent or proxy may be proved in accordance
with such reasonable rules and regulations as may be prescribed by
the Trustee or in such manner as shall be satisfactory to the
Trustee.
SECTION C. Holders to Be Treated as Owners. The
Corporation, the Trustee and any agent of the Corporation or the
Trustee may deem and treat the Person in whose name any Security
shall be registered upon the Security Register for such Series as
the absolute owner of such Security (whether or not such Security
shall be overdue and notwithstanding any notation of ownership or
other writing thereon) for the purpose of receiving payment of or
on account of the principal of and (subject to Section 2.7)
interest on such Security and for all other purposes; and neither
the Corporation nor the Trustee nor any agent of the Corporation or
the Trustee shall be affected by any notice to the contrary. The
Corporation, the Trustee and any agent of the Corporation or the
Trustee may treat the Holder of any Unregistered Security and the
Holder of any Coupon as the absolute owner of such Unregistered
Security or Coupon (whether or not such Unregistered Security or
Coupon shall be overdue) for the purpose of receiving payment
thereof or on account thereof and for all other purposes and
neither the Corporation, the Trustee, nor any agent of the
Corporation or the Trustee shall be affected by any notice to the
contrary. All such payments so made to any such Person, or upon
his order, shall be valid, and, to the extent of the sum or sums so
paid, effectual to satisfy and discharge the liability for moneys
payable upon any such Unregistered Security or Coupon.
SECTION D. Securities Owned by Corporation Deemed Not
Outstanding. In determining whether the Holders of the requisite
aggregate principal amount of Outstanding Securities of any or all
Series have concurred in any direction, consent or waiver under
this Indenture, Securities which are owned by the Corporation or
any other obligor on the Securities with respect to which such
determination is being made or by any Person directly or indirectly
controlling or controlled by or under direct or indirect common
control with the Corporation or any other obligor on the Securities
with respect to which such determination is being made shall be
disregarded and deemed not to be Outstanding for the purpose of any
such determination, except that for the purpose of determining
whether the Trustee shall be protected in relying on any such
direction, consent or waiver only Securities which the Trustee
knows are so owned shall be so disregarded. Securities so owned
which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Corporation or any other
obligor upon the Securities or any Person directly or indirectly
controlling or controlled by or under direct or indirect common
control with the Corporation or any other obligor on the
Securities.
SECTION E. Right of Revocation of Action Taken. At
any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 7.1, of the taking of any action by the Holders
of the percentage in aggregate principal amount of the Securities
of any or all Series, as the case may be, specified in this
Indenture in connection with such action, any Holder of a Security
the serial number of which is shown by the evidence to be included
among the serial numbers of the Securities the Holders of which
have consented to such action may, by filing written notice at the
Corporate Trust Office and upon proof of holding as provided in
this Article, revoke such action so far as concerns such Security.
Except as aforesaid any such action taken by the Holder of any
Security shall be conclusive and binding upon such Holder and upon
all future Holders and owners of such Security and of any
Securities issued in exchange or substitution therefor,
irrespective of whether or not any notation in regard thereto is
made upon any such Security. Any action taken by the Holders of
the percentage in aggregate principal amount of the Securities of
any or all Series, as the case may be, specified in this Indenture
in connection with such action shall be conclusively binding upon
the Corporation, the Trustee and the Holders of all the Securities
affected by such action.
ARTICLE VIII.
SUPPLEMENTAL INDENTURES
SECTION A. Supplemental Indentures Without Consent of
Securityholders. The Corporation, when authorized by a resolution
of its Board of Directors, and the Trustee for the Securities of
any and all Series may from time to time and at any time enter into
an indenture or indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act as in force at the
date of the execution thereof), in form satisfactory to such
Trustee, for one or more of the following purposes:
1.to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of one or more Series any property
or assets;
2.to evidence the succession of another corporation to the
Corporation, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of
the Corporation pursuant to Article IX;
3.to add to the covenants of the Corporation such further covenants,
restrictions, conditions or provisions for the protection of
the Holders of Securities of any or all Series or of Coupons
and, if such additional covenants are to be for the benefit of
less than all the Series of Securities or Coupons stating that
such covenants are being added solely for the benefit of such
Series;
4.to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be
defective or inconsistent with any other provision contained
herein or in any supplemental indenture; or to make such other
provisions in regard to matters or questions arising under
this Indenture or under any supplemental indenture as the
Board of Directors may deem necessary or desirable and which
shall not materially and adversely affect the interests of the
Holders of the Securities or Coupons;
5.to establish the form or terms of Securities of any Series or of the
Coupons appertaining to such Securities as permitted by
Sections 2.1 and 2.3;
6.to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee with respect to the Securities of one or
more Series and to add to or change any of the provisions of
this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more
than the one Trustee, pursuant. to the requirements of Section
6.8; or
7.to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective
only when there is no Outstanding Security of any Series
created prior to the execution of such supplemental indenture
which is entitled to the benefit of such provision.
The Trustee is hereby authorized to join with the
Corporation in the execution of any such supplemental indenture, to
make any further appropriate agreements and stipulations which may
be therein contained and to accept the conveyance, transfer,
assignment, mortgage or pledge of any property thereunder, but the
Trustee 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.
Any supplemental indenture authorized by the provisions
of this Section may be executed without the consent of the Holders
of any of the Securities at the time Outstanding, notwithstanding
any of the provisions of Section 8.2.
SECTION B. Supplemental Indentures With Consent of
Securityholders. With the consent (evidenced as provided in
Article VII) of the Holders of not less than a majority in
aggregate principal amount of the Securities at the time
Outstanding of each Series affected by such supplemental indenture
(voting as one class), the Corporation, when authorized by a
resolution of its Board of Directors, and the Trustee for such
Series of Securities may, from time to time and at any time, enter
into an indenture or indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act as in force at
the date of execution thereof) for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Securities
of each such Series or of the Coupons appertaining to such
Securities; provided, however, that no such supplemental indenture
shall (a) extend the Stated Maturity of any Security, or reduce the
principal amount thereof or any premium thereon, or reduce the rate
or extend the time of payment of interest thereon, or reduce any
amount payable on redemption thereof, or make the principal thereof
(including any amount in respect of original issue discount), or
interest thereon payable in any coin or currency other than that
provided in the Securities and Coupons or in accordance with the
terms thereof, or reduce the amount of the principal of the
Original Issue Discount Security that would be due and payable upon
an acceleration of the Maturity thereof pursuant to Section 5.1 or
the amount thereof provable in bankruptcy pursuant to Section 5.2,
or alter the provisions of Section 11.11, or impair or affect the
right of any Securityholder to institute suit for payment thereof
or, if the Securities provide therefor, any right of repayment at
the option of the Securityholder without the consent of the Holder
of each Security so affected, or (b) reduce the aforesaid
percentage of Securities of any Series, the consent of the Holders
of which is required for any such supplemental indenture, without
the consent of the Holders of each Security so affected.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly
been included solely for the benefit of one or more particular
Series of Securities, or which modifies the rights of Holders of
Securities of such Series, or of Coupons appertaining to such
Securities, with respect to such covenant or provision, shall be
deemed not to affect the rights under this Indenture of the Holders
of Securities of any other Series or of the Coupons appertaining to
such Securities.
Upon the request of the Corporation, accompanied by a
copy of a resolution of the Board of Directors certified by the
secretary or an assistant secretary of the Corporation authorizing
the execution of any such supplemental indenture, and upon the
filing with the Trustee for such Series of Securities of evidence
of the consent of Securityholders as aforesaid and other documents,
if any, required by Section 7.1, the Trustee for such Series of
Securities shall join with the Corporation in the execution of such
supplemental indenture unless such supplemental indenture affects
such Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case such Trustee may in its
discretion, but shall not be obligated to, enter into such
supplemental indenture.
It shall not be necessary for the consent of the
Securityholders under this Section to approve the particular form
of any proposed supplemental indenture, but it shall be sufficient
if such consent shall approve the substance thereof.
Promptly after the execution by the Corporation and the
Trustee of any supplemental indenture pursuant to the provisions of
this Section, the Corporation shall give notice thereof (i) to the
Holders of then Outstanding Registered Securities of each Series
affected thereby, by mailing a notice thereof by first-class mail
to such Holders at their addresses as they shall appear on the
Security Register, (ii) if any Unregistered Securities of a Series
affected thereby are then Outstanding, to the Holders thereof who
have filed their names and addresses with the Trustee, by mailing
a notice thereof by first-class mail to such Holders at such
addresses as were so furnished to the Trustee and (iii) if any
Unregistered Securities of a Series affected thereby are then
Outstanding, to all Holders thereof, by publication of a notice
thereof at least once in an Authorized Newspaper in the Borough of
Manhattan, The City of New York and at least once in an Authorized
Newspaper in London (and, if required by Section 3.5, at least once
in an Authorized Newspaper in Luxembourg), and in each case such
notice shall set forth in general terms the substance of such
supplemental indenture. Any failure of the Corporation to give
such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
SECTION C. Effect of Supplemental Indenture. Every
supplemental indenture executed pursuant to this Article VIII shall
conform to the requirements of the Trust Indenture Act. Upon the
execution of any supplemental indenture pursuant to the provisions
hereof, this Indenture shall be and be deemed to be modified and
amended in accordance therewith and the respective rights,
limitations of rights, obligations, duties and immunities under
this Indenture of the Trustee, the Corporation and the Holders of
Securities of each Series affected thereby shall thereafter be
determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms
and conditions of any such supplemental indenture shall be and be
deemed to be part of the terms and conditions of this Indenture for
any and all purposes.
SECTION D. Documents to Be Given to Trustee. The
Trustee, subject to the provisions of Sections 6.1 and 6.2, shall
receive an Officers' Certificate and an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed
pursuant to this Article VIII complies with the applicable
provisions of this Indenture.
SECTION E. Notation on Securities in Respect of
Supplemental Indentures. Securities of any Series authenticated
and delivered after the execution of any supplemental indenture
pursuant to the provisions of this Article VIII may bear, upon the
direction of the Corporation, a notation in form satisfactory to
the Trustee for the Securities of such Series as to any matter
provided for by such supplemental indenture. If the Corporation or
the Trustee shall so determine, new Securities of any Series so
modified as to-conform, in the opinion of the Trustee and the
Corporation, to any modification of this Indenture contained in any
such supplemental indenture may be prepared by the Corporation,
authenticated by the Trustee and delivered in exchange for the
Securities of such Series then Outstanding.
ARTICLE IX.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION A. Corporation May Consolidate, etc., on
Certain Terms. The Corporation may sell, convey or lease all or
substantially all of its assets to any Person, or consolidate with
or merge into, any other corporation, provided that in any such
case, (i) either the Corporation shall be the continuing
corporation, or the successor corporation or Person which acquires
by sale or conveyance all or substantially all of the assets of the
Corporation, shall be a corporation or other entity organized and
validly existing under the laws of the United States of America or
any State thereof or the District of Columbia and shall expressly
assume the due and punctual payment of the principal of and
interest on 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 or observed by the
Corporation by supplemental indenture satisfactory to the Trustee,
executed and delivered to the Trustee by such corporation or
entity, and (ii) immediately after such merger or consolidation, or
such sale, conveyance or lease, no Event of Default, and no event
which, after notice or lapse of time or both, would become an Event
of Default, shall have occurred and be continuing.
SECTION B. Successor Corporation Substituted. In
case of any such consolidation, merger, sale, lease or conveyance,
and following such an assumption by the successor corporation, such
successor corporation shall succeed to and be substituted for the
Corporation, with the same effect as if it had been named herein.
Such successor corporation may cause to be signed, and may issue
either in its own name or in the name of the Corporation prior to
such succession any or all of the Securities issuable hereunder
which, together with any Coupons appertaining thereto, theretofore
shall not have been signed by the Corporation and delivered to the
Trustee; and, upon the order of such successor corporation instead
of the Corporation and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall
authenticate and shall make available for delivery any Securities,
together with any Coupons appertaining thereto, which previously
shall have been signed and delivered by the officers of the
Corporation to the Trustee for authentication, and any Securities,
together with any Coupons appertaining thereto, which such
successor corporation thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All of the Securities
so issued, together with any Coupons appertaining thereto, 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.
In the event of any such sale or conveyance (other than
conveyance by way of lease) the Corporation (or any successor
corporation which shall theretofore have become such in the manner
described in this Article) shall be discharged from all obligations
and covenants under this Indenture and the Securities and may be
liquidated and dissolved.
SECTION C. Opinion of Counsel to Trustee. The
Trustee, subject to the provisions of Sections 6.1 and 6.2, may
receive an Opinion of Counsel, prepared in accordance with Section
11.5, as conclusive evidence that any such consolidation, merger,
sale, lease or conveyance, and any such assumption, and any such
liquidation or dissolution, complies with the applicable provisions
of this Indenture.
ARTICLE X.
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION A. Satisfaction and Discharge of Indenture.
(A) If at any time (a) the Corporation shall have paid
or caused to be paid the principal of and interest on all the
Securities of any Series Outstanding hereunder and all unmatured
Coupons appertaining thereto (other than Securities of such Series
and Coupons appertaining thereto which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section
2.9) as and when the same shall have become due and payable, or (b)
the Corporation shall have delivered to the Trustee for
cancellation all Securities of any Series theretofore authenticated
and all unmatured Coupons appertaining thereto (other than any
Securities of such Series and Coupons appertaining thereto which
have been destroyed, lost or stolen and which shall have been
replaced or paid as provided in Section 2.9) or (c) in the case of
any Series of Securities where the exact amount (including the
currency of payment) of principal of and interest due on such
Securities can be determined at the time of making the deposit
referred to in clause (ii) below, (i) all the Securities of such
Series and all unmatured Coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation shall have
become due and payable, or are by their terms to become due and
payable within one year or are to be called for redemption within
one year under arrangements satisfactory to the Trustee for the
giving of notice of redemption, and (ii) the Corporation shall have
irrevocably deposited or caused to be deposited with the Trustee as
trust funds the entire amount (other than moneys repaid by the
Trustee or any Paying Agent to the Corporation in accordance with
Section 10.4) or Government Obligations maturing as to principal
and interest in such amounts and at such times as will ensure the
availability of cash sufficient in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay (A)
the principal and interest on all Securities of such Series and
Coupons appertaining thereto on each date that such principal or
interest is due and payable and (B) any mandatory sinking fund
payments on the dates on which such payments are due and payable in
accordance with the terms of the Indenture and the Securities of
such Series, and if, in any such case, the Corporation shall also
pay or cause to be paid all other sums payable hereunder by the
Corporation with respect to Securities of such Series, then this
Indenture shall cease to be of further effect with respect to
Securities of such Series (except as to (i) rights of registration
of transfer and exchange, and the Corporation's right of optional
redemption (provided the Corporation provides sufficient funds to
effect such optional redemption), (ii) substitution of mutilated,
defaced, destroyed, lost or stolen Securities or Coupons, (iii)
rights of Holders to receive payments of principal thereof and
interest thereon upon the original stated due dates therefor (but
not upon acceleration) and remaining rights of the Holders to
receive mandatory sinking fund payments, if any, (iv) the rights,
obligations and immunities of the Trustee hereunder, and (v) the
rights of the Securityholders of such Series and Coupons
appertaining thereto as beneficiaries hereof with respect to the
property so deposited with the Trustee payable to all or any of
them), and, subject to Section 10.5, the Trustee, on demand of the
Corporation accompanied by an Officers' Certificate and an Opinion
of Counsel and at the cost and expense of the Corporation, shall
execute proper instruments acknowledging such satisfaction of and
discharging this Indenture with respect to such Series; provided,
that the rights of Holders of the Securities and Coupons to receive
amounts in respect of principal of and interest on the Securities
and Coupons held by them shall not be delayed longer than required
by then applicable mandatory rules or policies of any securities
exchange upon which the Securities are listed. The Corporation
agrees to reimburse the Trustee for any costs or expenses
thereafter reasonably and properly incurred and to compensate the
Trustee for any services thereafter reasonably and properly
rendered by the Trustee in connection with this Indenture and the
Securities of such Series.
(B) a. In addition to the provisions of Section 10.1(A),
the Corporation may, at its option by or pursuant to, or otherwise
in a manner or by such Persons as may be authorized pursuant to,
one or more resolutions duly adopted by the Board of Directors, at
any time with respect to the Securities of any Series, elect to
have defeasance under subsection (ii) of this Section 10.1(B) be
applied to the Outstanding Securities of such Series provided that
provision therefor is made for such application pursuant to Section
2.3 and the applicable conditions thereto as set forth in this
Section 10.1(B) have been satisfied.
b. Upon the Corporation's exercise of the option
referenced in Section 10.1(B)(i), the Corporation may terminate its
obligations under the Outstanding Securities of any Series and this
Indenture with respect to such Series on the date the conditions
set forth below are satisfied (hereinafter, "defeasance"). For
this purpose, such defeasance means that the Corporation shall be
deemed to have paid and discharged the entire indebtedness
represented by the Outstanding Securities of such Series and to
have satisfied all its other obligations under such Securities and
this Indenture insofar as such Securities are concerned (and the
Trustee, at the expense and request of the Corporation, shall
execute proper instruments acknowledging the same), except for the
following: (1) the rights of Holders of Outstanding Securities of
such Series to receive payments in respect of the principal of and
interest on such Securities when such payments are due, (2) the
Corporation's obligations with respect to such Securities under
Sections 2.8, 2.9, 2.11, 3.2, 6.7, 10.4 and 10.5, (3) the rights,
powers, trusts, duties and immunities of the Trustee hereunder, and
(4) this Section 10.1(B).
c. The following shall be the conditions to the
application of Section 10.1(B)(ii) to the Outstanding Securities of
such Series:
1.The Corporation shall have irrevocably deposited or caused to be
deposited with the Trustee (or another trustee satisfying
the requirements of Section 6.10 who shall agree to
comply with the provisions of this Section and Section
10.1(B) applicable to it) under the terms of an
irrevocable trust agreement, as trust funds in trust
solely for the purpose of making the following payments,
specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of Securities of
such Series, (i) cash in the currency or currency unit
required, or (ii) Government Obligations maturing as to
principal and interest in such amounts (payable in the
currency in which the Securities of such Series are
payable) and at such times as are sufficient, to pay the
principal of and interest on the Outstanding Securities
of such Series to Maturity or redemption, as the case may
be, or (iii) a combination thereof, in each case
sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee,
to pay and discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and
discharge, (x) the principal of and each installment of
principal of and interest, if any, on the Outstanding
Securities of such Series and Coupons appertaining
thereto on the Stated Maturity of such principal or
installment of principal or interest, if any, and (y) any
mandatory sinking fund payments or analogous payments
applicable to the Outstanding Securities of such Series
on the day on which such payments are due and payable in
accordance with the terms of this Indenture and of such
Securities. Such irrevocable trust agreement shall
include, among other things, (i) provision for the
payments referenced in clauses (x) and (y) of the
immediately preceding sentence, (ii) the payment of the
reasonable expenses of the Trustee incurred or to be
incurred in connection with carrying out such trust
provisions, (iii) rights of registration, transfer,
substitution and exchange of Securities of such Series in
accordance with the terms stated in this Indenture and
(iv) continuation of the rights and obligations and
immunities of the Trustee as against the Holders of
Securities of such Series as stated in this Indenture.
2.No Event of Default or event which with notice or lapse of time or
both would constitute an Event of Default with respect to the
Securities of such Series shall have occurred and be
continuing on the date of such deposit or shall occur as
a result of such deposit or, insofar as Sections 5.1(d)
and 5.1(e) are concerned, at any time during the period
ending on the 91st day after the date of such deposit (it
being understood that this condition shall not be deemed
satisfied until the expiration of such period).
3.Such deposit or defeasance shall not result in a breach or violation
of, or constitute a default under, this Indenture or any
other material agreement or instrument to which the
Corporation is a party or by which it is bound.
4.The Corporation shall have delivered to the Trustee an Opinion of
Counsel of recognized national standing to the effect
that Securityholders of such Series will not recognize
income, gain or loss for Federal income tax purposes as
a result of such deposit and discharge and will be
subject to Federal income tax on the same amounts and in
the same manner and at the same time as would have been
the case if such deposit and defeasance had not occurred.
5.The Corporation shall have delivered to the Trustee an Officers'
Certificate and Opinion of Counsel, each stating that all
conditions precedent provided for herein relating to the
deposit and defeasance contemplated by this Section
10.1(B) have been complied with.
SECTION B. Application by Trustee of Funds Deposited
for Payment of Securities. Subject to Section 10.4, all moneys
deposited with the Trustee pursuant to Section 10.1 shall be held
in trust and applied by it to the payment, either directly or
through any Paying Agent (including the Corporation acting as its
own Paying Agent), to the Holders of the particular Securities of
such Series and of Coupons appertaining thereto for the payment or
redemption of which such moneys have been deposited with the
Trustee, of all sums due and to become due thereon for principal
and interest; but such money need not be segregated from other
funds except to the extent required by law.
SECTION C. Repayment of Moneys Held by Paying Agent.
In connection with the satisfaction and discharge of this Indenture
with respect to Securities of any Series, all moneys then held by
any Paying Agent (other than the Corporation) under the provisions
of this Indenture with respect to such Series of Securities shall,
upon demand of the Corporation, be paid to the Trustee and
thereupon such Paying Agent shall be released from all further
liability with respect to such moneys.
SECTION D. Return of Unclaimed Moneys Held by Trustee
and Paying Agent. Any moneys deposited with or paid to the Trustee
or any Paying Agent (including the Corporation acting as its own
Paying Agent) for the payment of the principal of or interest on
any Security of any Series or Coupons attached thereto and not
applied but remaining unclaimed for two years after the date upon
which such principal or interest shall have become due and payable,
shall, upon the written request of the Corporation, promptly be
repaid to the Corporation by the Trustee for such Series or such
Paying Agent (except that with respect to any amounts then held by
the Corporation in trust as its own Paying Agent no such request
need be given and at such time the Corporation shall be discharged
from its duty to hold such moneys in trust as Paying Agent), and
the Holder of the Securities of such Series and of any Coupons
appertaining thereto shall, unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property
laws, thereafter look only to the Corporation for any payment which
such Holder may be entitled to collect, and all liability of the
Trustee or any Paying Agent with respect to such moneys shall
thereupon cease; provided, however, that the Trustee or such Paying
Agent, before being required to make any such repayment with
respect to moneys deposited with it for any payment (a) in respect
of Registered Securities of any Series, shall at the expense of the
Corporation, mail by first-class mail to Holders of such Securities
at their addresses as they shall appear on the Security Register,
and (b) in respect of Unregistered Securities of any Series, shall
at the expense of the Corporation cause to be published once in an
Authorized Newspaper in the Borough of Manhattan, The City of New
York and once in an Authorized Newspaper in London (and if required
by Section 3.5, once in an Authorized Newspaper in Luxembourg),
notice, that such moneys remain and that, after a date specified
therein, which shall not be less than thirty days from the date of
such mailing or publication, any unclaimed balance of such money
then remaining will be repaid to the Corporation. Anything in this
Article X to the contrary notwithstanding, the Trustee shall
deliver or pay to the Corporation from time to time upon the
written request of the Corporation any money or Government
Obligations held by it as provided in Section 10.1(B)(iii) which,
in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which
would then be required to be deposited to effect such defeasance in
accordance with the provisions of this Indenture.
SECTION E. Reinstatement of Corporation's
Obligations. If the Trustee is unable to apply any funds or
Government Obligations in accordance with Section 10.1 by reason of
any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the Corporation's obligations under
this Indenture and the Securities of any Series for which such
application is prohibited shall be revived and reinstated as if no
deposit had occurred pursuant to Section 10.1 until such time as
the Trustee is permitted to apply all such funds or Government
Obligations in accordance with Section 10.1; provided, however,
that if the Corporation has made any payment of interest on or
principal of any of such Securities because of the reinstatement of
its obligations, the Corporation shall be subrogated to the rights
of the Securityholders of such Securities to receive such payment
from the funds or Government Obligations held by the Trustee.
ARTICLE XI.
MISCELLANEOUS PROVISIONS
SECTION A. Incorporators, Stockholders, Officers and
Directors of Corporation Exempt from Individual Liability. No
recourse under or upon any obligation, covenant or agreement
contained in this Indenture, in any Security, in any Coupon or
because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such or against any past, present or future
stockholder, officer or director, as such, of the Corporation or of
any successor, either directly or through the Corporation or any
successor, under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities
and the Coupons appertaining thereto by the Holders thereof and as
part of the consideration for the issue of the Securities and the
Coupons appertaining thereto.
SECTION B. Provisions of Indenture for the Sole
Benefit of Parties and Securityholders. Nothing in this Indenture
or in the Securities or the Coupons appertaining thereto, expressed
or implied, shall give or be construed to give to any Person, firm
or corporation, other than the parties hereto, any Paying Agent and
their successors hereunder and the Holders of the Securities or
Coupons any legal or equitable right, remedy or claim under this
Indenture or under any covenant or provision herein contained, all
such covenants and provisions being for the sole benefit of the
parties hereto and their successors and of the Holders of the
Securities or Coupons.
SECTION C. Successors and Assigns of Corporation
Bound by Indenture. All the covenants, stipulations, promises and
agreements in this Indenture contained by or on behalf of the
Corporation shall bind its successors and assigns, whether so
expressed or not.
SECTION D. Notices and Demands on Corporation,
Trustee and Securityholders. Any notice or demand which by any
provision of this Indenture is required or permitted to be given or
served by the Trustee or by the Holders of Securities or Coupons to
or on the Corporation may be given or served by being deposited
postage prepaid, first-class mail (except as otherwise specifically
provided herein) addressed (until another address of the
Corporation is filed by the Corporation with the Trustee) to USG
Corporation, 125 South Franklin Street, Chicago, Illinois 60606-
4678, Attention: ______________. Any notice, direction, request or
demand by the Corporation or any Securityholder to or upon the
Trustee shall be deemed to have been sufficiently given or made,
for all purposes, if given or made at the Corporate Trust Office.
Where this Indenture provides for notice to Holders of
Registered Securities of any event such notice shall be
sufficiently given (unless otherwise herein expressly provided) if
in writing and mailed by first-class mail, postage prepaid to such
Holders as their names and addresses appear in the Security
Register within the time prescribed. Where this Indenture provides
for notice in any manner, such notice may be waived in writing by
the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver. In any case where
notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with
respect to other Holders, and any notice which is mailed in the
manner herein provided shall be conclusively presumed to have been
duly given.
In case, by reason of the suspension of or irregularities
in regular mail service, it shall be impracticable to mail notice
to the Corporation and Securityholders when such notice is required
to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be reasonably acceptable to
the Trustee shall be deemed to be a sufficient giving of such
notice.
SECTION E. Officers' Certificates and Opinions of
Counsel; Statements to Be Contained Therein. Upon any application
or demand by the Corporation to the Trustee to take any action
under any of the provisions of this Indenture, the Corporation
shall furnish to the Trustee an Officers' Certificate stating that
all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all
such conditions precedent, if any, have been complied with, except
that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application
or demand, no additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this
Indenture and delivered to the Trustee with respect to compliance
with a condition or covenant provided for in this Indenture shall
include (a) a statement that the Person making such certificate or
opinion has read such covenant or condition and the definitions
herein relating thereto, (b) 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, (c)
a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with and (d) a statement as to whether
or not, in the opinion of such Person, such condition or covenant
has been complied with.
Any certificate, statement or opinion of an officer of
the Corporation may be based, insofar as it relates to legal
matters, upon a certificate or opinion of or representations by
counsel, unless such officer knows that the certificate or opinion
or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that
the same are erroneous. Any certificate, statement or Opinion of
Counsel may be based, insofar as it relates to factual matters or
information with respect to which is in the possession of the
Corporation, upon the certificate, statement or opinion of or
representations by an officer or officers of the Corporation,
unless such counsel knows that the certificate, statement or
opinion or representations with respect to the matters upon which
his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
Any certificate, statement or opinion of an officer of
the Corporation or of counsel may be based, insofar as it relates
to accounting matters, upon a certificate or opinion of or
representations by an accountant or firm of accountants in the
employ of the Corporation, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or
representations with respect to the accounting matters upon which
his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
Any certificate or opinion of any independent firm of
public accountants filed with and directed to the Trustee shall
contain a statement that such firm is independent.
SECTION F. Payments Due on Saturdays, Sundays and
Holidays. Unless otherwise specified in a Security, if the date of
Maturity of interest on or principal of the Securities of any
Series or any Coupons appertaining thereto or the date fixed for
redemption or repayment of any such Security or Coupon shall not be
a Business Day, then payment of interest or principal need not be
made on such date, but may be made on the next succeeding Business
Day with the same force and effect as if made on the date of
Maturity or the date fixed for redemption, and no interest shall
accrue for the period after such date.
SECTION G. Conflict of Any Provision of Indenture
with Trust Indenture Act. If and to the extent that any provision
of this Indenture limits, qualifies or conflicts with another
provision included in this Indenture which is required by the Trust
Indenture Act, such required provision shall control.
SECTION H. New York Law to Govern. This Indenture
and each Security and any Coupon appertaining thereto shall be
deemed to be a contract under the laws of the State of New York,
and for all purposes shall be construed in accordance with the laws
of such State.
SECTION I. Counterparts. This Indenture may be
executed in any number of counterparts, each of which shall be an
original; but such counterparts shall together constitute but one
and the same instrument.
SECTION J. Effect of Headings; Gender. The Article
and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof. The
use of the masculine, feminine or neuter gender herein shall not
limit in any way the applicability of any term or provision hereof.
SECTION K. Securities in a Foreign Currency or in
ECU. Unless otherwise specified in an Officers' Certificate
delivered pursuant to Section 2.3 of this Indenture with respect to
a particular Series of Securities, whenever for purposes of this
Indenture any action may be taken by the Holders of a specified
percentage in aggregate principal amount of Securities of all
Series or all Series affected by a particular action at the time
Outstanding and, at such time, there are Outstanding Securities of
any Series which are denominated in a coin or currency other than
Dollars (including ECUs), then the principal amount of Securities
of such Series which shall be deemed to be Outstanding for the
purpose of taking such action shall be that amount of Dollars that
could be obtained for such amount at the Market Exchange Rate. For
purposes of this Section 11.11, "Market Exchange Rate" shall mean
the noon Dollar buying rate for that currency for cable transfers
quoted in The City of New York as certified for customs purposes by
the Federal Reserve Bank of New York; provided, however, in the
case of ECUs, "Market Exchange Rate" shall mean the rate of
exchange determined by the Commission of the European Communities
(or any successor thereto) as published in the Official Journal of
the European Communities (such publication or any successor
publication, the "Journal"). If such Market Exchange Rate is not
available for any reason with respect to such currency, the Trustee
shall use, in its sole discretion and without liability on its
part, such quotation of the Federal Reserve Bank of New York or, in
the case of ECUs, the rate of exchange as published in the Journal,
as of the most recent available date, or quotations or, in the case
of ECUs, rates of exchange from one or more major banks in The City
of New York or in the country of issue of the currency in question,
which for purposes of the ECU shall be Brussels, Belgium, or such
other quotations or, in the case of ECU, rates of exchange as the
Trustee shall deem appropriate. The provisions of this paragraph
shall apply in determining the equivalent principal amount in
respect of Securities of a Series denominated in a currency other
than Dollars in connection with any action taken by holders of
Securities pursuant to the terms of this Indenture.
All decisions and determinations of the Trustee regarding
the Market Exchange Rate or any alternative determination provided
for in the preceding paragraph shall be in its sole discretion and
shall, in the absence of manifest error, be conclusive for all
purposes and irrevocably binding upon the Corporation and all
Holders.
ARTICLE XII.
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION A. Applicability of Article. The provisions
of this Article shall be applicable to the Securities of any Series
which are redeemable before their final Maturity or to any sinking
fund for the retirement of Securities of a Series except as
otherwise specified as contemplated by Section 2.3 for Securities
of such Series.
SECTION B. Election to Redeem; Notice of Redemption;
Partial Redemptions. The election of the Corporation to redeem any
Securities shall be evidenced by, or pursuant to, a resolution of
the Board of Directors. Notice of redemption to the Holders of
Registered Securities of any Series required to be redeemed or to
be redeemed as a whole or in part at the option of the Corporation
shall be given by giving notice of such redemption as provided in
Section 11.4, at least 30 days and not more than 60 days prior to
the date fixed for redemption to such Holders of Securities of such
Series. Notice of redemption to the Holders of Unregistered
Securities to be redeemed as a whole or in part, who have filed
their names and addresses with the Trustee, shall be given by
mailing notice of such redemption, by first class mail, postage
prepaid, at least 30 days and not more than 60 days prior to the
date fixed for redemption, to such Holders at such addresses as
were so furnished to the Trustee (and, in the case of any such
notice given by the Corporation, the Trustee shall make such
information available to the Corporation for such purpose). Notice
of redemption to all other Holders of Unregistered Securities shall
be published in an Authorized Newspaper in the Borough of
Manhattan, The City of New York and in an Authorized Newspaper in
London (and, if required by Section 3.5, in an Authorized Newspaper
in Luxembourg), in each case, once in each of three successive
calendar weeks, the first publication to be not less than thirty
nor more than sixty days prior to the date fixed for redemption.
Any notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the
Holder receives the notice. Failure to give notice by mail, or any
defect in the notice to the Holder of any Security of a Series
designated for redemption as a whole or in part shall not affect
the validity of the proceedings for the redemption of any other
Security of such Series.
The notice of redemption to each such Holder shall
specify the date fixed for redemption, the "CUSIP" number or
numbers for such Securities, the redemption price, the Place or
Places of Payment, that payment will be made upon presentation and
surrender of such Securities, and, in the case of Securities with
Coupons attached thereto, of all Coupons appertaining thereto
maturing after the date fixed for redemption, that such redemption
is pursuant to the mandatory or optional sinking fund, or both, if
such be the case, that interest accrued to the date fixed for
redemption will be paid as specified in such notice and that on and
after said date interest thereon or on the portions thereof to be
redeemed will cease to accrue. If less than all of the Securities
of any Series are to be redeemed, the notice of redemption shall
specify the numbers of the Securities of such Series to be
redeemed. In case any Security of a Series is to be redeemed in
part, the notice of redemption shall state the portion of the
principal amount thereof to be redeemed and shall state that on and
after the date fixed for redemption, upon surrender of such
Security, a new Security or Securities of such Series in principal
amount equal to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any Series to
be redeemed at the option of the Corporation shall be given by the
Corporation or, at the Corporation's request, by the Trustee in the
name and at the expense of the Corporation. If such notice is to
be given by the Trustee, the Corporation shall provide notice of
such redemption to the Trustee at least 45 days prior to the date
fixed for redemption (unless a shorter notice shall be satisfactory
to the Trustee). If such notice is given by the Corporation, the
Corporation shall provide a copy of such notice given to the
Holders of such redemption to the Trustee at least 2 days prior to
the date such notice is given to such Holders, but in. any event at
least 15 days prior to the date fixed for redemption (unless a
shorter notice shall be satisfactory to the Trustee).
Unless otherwise specified pursuant to Section 2.3, not
later than the redemption date specified in the notice of
redemption given as provided in this Section, the Corporation will
have on deposit with the Trustee or with one or more Paying Agents
(or, if the Corporation is acting as its own Paying Agent, set
aside, segregate and hold in trust as provided in Section 3.3) in
funds available on such date, an amount of money sufficient to
redeem on the redemption date all the Securities of such Series so
called for redemption at the appropriate redemption price, together
with accrued interest to the date fixed for redemption. If less
than all the Outstanding Securities of a Series are to be redeemed
at the election of the Corporation, the Corporation will deliver to
the Trustee at least 60 days prior to the date fixed for redemption
an Officers' Certificate stating the aggregate principal amount of
Securities to be redeemed.
If less than all the Securities of a Series are to be
redeemed, the Trustee shall select, in such manner as it shall deem
appropriate and fair, Securities of such Series to be redeemed in
whole or in part and the Trustee shall promptly notify the
Corporation in writing of the Securities of such Series selected
for redemption and, in the case of any Securities of such Series
selected for partial redemption, the principal amount thereof to be
redeemed. However, if less than all the Securities of any Series
with differing issue dates, interest rates and stated maturities
are to be redeemed, the Corporation in its sole discretion shall
select the particular Securities to be redeemed and shall notify
the Trustee in writing thereof at least 45 days prior to the
relevant redemption date. Securities may be redeemed in part in
multiples equal to the minimum authorized denomination for
Securities of such Series or any multiple thereof. For all
purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities of any
Series shall relate, in the case of any Security redeemed or to be
redeemed only in part, to the portion of the principal amount of
such Security which has been or is to be redeemed If any Security
selected for partial redemption is surrendered for conversion after
such selection, the converted portion os such Security shall be
deemed (so far as may be) to be the portion selected for
redemption.
SECTION C. Payment of Securities Called for Redemp-
tion. If notice of redemption has been given as above provided,
the Securities or portions of Securities specified in such notice
shall become due and payable on the date and at the place stated in
such notice at the applicable redemption price, together with
interest accrued to the date fixed for redemption, and on and after
said date (unless the Corporation shall default in the payment of
such Securities at the redemption price, together with interest
accrued to said date) interest on the Securities or portions of
Securities so called for redemption shall cease to accrue, and the
unmatured Coupons, if any, appertaining thereto shall be void, and,
except as provided in Sections 6.1 and 10.4, such Securities shall
cease from and after the date fixed for redemption to be entitled
to any benefit or security under this Indenture, and the Holders
thereof shall have no right in respect of such Securities except
the right to receive the redemption price thereof and unpaid
interest to the date fixed for redemption. on presentation and
surrender of such Securities at a Place of Payment specified in
said notice, together with all Coupons, if any, appertaining
thereto maturing after the date fixed for redemption, said
Securities or the specified portions thereof shall be paid and
redeemed by the Corporation at the applicable redemption price,
together with interest accrued thereon to the date fixed for
redemption; provided that, payment of interest becoming due on or
prior to the date fixed for redemption shall be payable in the case
of Securities with Coupons attached thereto, to the Holders of
Coupons for such interest upon surrender thereof, and in the case
of Registered Securities, to the Holders of such Registered
Securities registered as such on the relevant record date subject
to the terms and provisions of Section 2.7 hereof.
If any Security called for redemption shall not be so
paid upon surrender thereof for redemption, the principal shall,
until paid or duly provided for, bear interest from the date fixed
for redemption at the rate of interest or yield to maturity (in the
case of an Original Issue Discount Security) borne by such
Security.
Upon presentation of any Security redeemed in part only,
the Corporation shall execute and the Trustee shall authenticate
and make available for delivery to or on the order of the Holder
thereof, at the expense of the Corporation, a new Security or
Securities, of authorized denominations, in principal amount equal
to the unredeemed portion of the Security so presented.
SECTION D. Exclusion of Certain Securities from
Eligibility for Selection for Redemption. Securities shall be
excluded from eligibility for selection for redemption if they are
identified by registration and certificate number in a written
statement signed by an authorized officer of the Corporation and
delivered to the Trustee at least 30 days prior to the last date on
which notice of redemption may be given as being owned of record
and beneficially by, and not pledged or hypothecated by, either (a)
the Corporation or (b) an entity specifically identified in such
written statement as directly or indirectly controlling or
controlled by or under direct or indirect common control with the
Corporation.
SECTION E. Mandatory and Optional Sinking Funds. The
minimum amount of any sinking fund payment provided for by the
terms of Securities of any Series is herein referred to as a
"mandatory sinking fund payment", and any payment in excess of such
minimum amount provided for by the terms of Securities of any
Series is herein referred to as an "optional sinking fund payment".
The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory
sinking fund payment with respect to any Series of Securities in
cash, the Corporation may at its option (a) deliver to the Trustee
Securities of such Series theretofore purchased or otherwise
acquired (except upon redemption pursuant to the mandatory sinking
fund) by the Corporation or receive credit for Securities of such
Series (not previously so credited) theretofore purchased or
otherwise acquired (except as aforesaid) by the Corporation and
delivered to the Trustee for cancellation pursuant to Section 2.10,
(b) receive credit for optional sinking fund payments (not
previously so credited) made sed this
Indenture to be duly executed, and their respective corporate seals
to be hereto affixed and attested, all as of the day and year first
above written.
USG CORPORATION
By:
Name:
Title:
ATTEST:
By: _______________________
Name:
Title:
[CORPORATE SEAL]
__________________________,
as Trustee
By:
Name:
Title:
ATTEST:
By: ______________________
Name:_____________________
Title:____________________
[CORPORATE SEAL]
EXHIBIT 4(e)
USG CORPORATION
AND
__________________,
Trustee
Subordinated Debt Securities
INDENTURE
Dated as of ______________
<PAGE>
TABLE OF CONTENTS
ARTICLE I DEFINITIONS
SECTION 1.1 Certain Terms Defined
ARTICLE II SECURITIES
SECTION 2.1 Forms Generally
SECTION 2.2 Form of Trustee's Certificate of
Authentication
SECTION 2.3 Amount Unlimited; Issuable in Series
SECTION 2.4 Authentication and Delivery of
Securities
SECTION 2.5 Execution of Securities
SECTION 2.6 Certificate of Authentication
SECTION 2.7 Denomination and Date of Securities;
Payments of Interest
SECTION 2.8 Registration, Transfer and Exchange
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and
Stolen Securities
SECTION 2.10 Cancellation of Securities; Destruction
Thereof
SECTION 2.11 Temporary Securities
ARTICLE III COVENANTS OF THE CORPORATION
SECTION 3.1 Payment of Principal and Interest
SECTION 3.2 Offices for Payment, etc.
SECTION 3.3 Paying Agents
SECTION 3.4 Written Statement to Trustee
SECTION 3.5 Luxembourg Publications
ARTICLE IV SECURITYHOLDERS LISTS AND REPORTS BY THECORPORATION
AND THE TRUSTEE
SECTION 4.1 Corporation to Furnish Trustee
Information as to Names and Addresses of
Securityholders
SECTION 4.2 Preservation and Disclosure of
Securityholders' Lists
SECTION 4.3 Reports by the Corporation
ARTICLE V REMEDIES OF THE TRUSTEE AND SECURITYHOLDERSON EVENT OF
DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration
of Maturity; Waiver of Default
SECTION 5.2 Collection of Indebtedness By Trustee;
Trustee May Prove Debt
SECTION 5.3 Application of Proceeds
SECTION 5.4 Restoration of Rights on Abandonment of
Proceedings
SECTION 5.5 Limitations on Suits by Securityholders
SECTION 5.6 Unconditional Right of Securityholders
to Institute Certain Suits
SECTION 5.7 Powers and Remedies Cumulative; Delay or
Omission Not Waiver of Default
SECTION 5.8 Control by Securityholders
SECTION 5.9 Waiver of Past Defaults
SECTION 5.10 Right of Court to Require Filing of
Undertaking to Pay Costs
SECTION 5.11 Suits for Enforcement
ARTICLE VI CONCERNING THE TRUSTEE
SECTION 6.1 Duties of Trustee
SECTION 6.2 Rights of Trustee
SECTION 6.3 Individual Rights of Trustee
SECTION 6.4 Trustee's Disclaimer
SECTION 6.5 Notice of Defaults
SECTION 6.6 Reports by Trustee to Holders
SECTION 6.7 Compensation and Indemnity
SECTION 6.8 Replacement of Trustee
SECTION 6.9 Successor Trustee by Merger
SECTION 6.10 Eligibility; Disqualification
SECTION 6.11 Preferential Collection of Claims
Against Corporation
ARTICLE VII CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by
Securityholders
SECTION 7.2 Proof of Execution of Instruments
SECTION 7.3 Holders to Be Treated as Owners
SECTION 7.4 Securities Owned by Corporation Deemed
Not Outstanding
SECTION 7.5 Right of Revocation of Action Taken
ARTICLE VIII SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent
of Securityholders
SECTION 8.2 Supplemental Indentures With Consent of
Securityholders
SECTION 8.3 Effect of Supplemental Indenture
SECTION 8.4 Documents to Be Given to Trustee
SECTION 8.5 Notation on Securities in Respect of
Supplemental Indentures
SECTION 8.6 Subordination Unimpaired
ARTICLE IX CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Corporation May Consolidate, etc., on
Certain Terms
SECTION 9.2 Successor Corporation Substituted
SECTION 9.3 Opinion of Counsel to Trustee
ARTICLE X SATISFACTION AND DISCHARGE OF INDENTURE;UNCLAIMED
MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture
SECTION 10.2 Application by Trustee of Funds
Deposited for-Payment of Securities
SECTION 10.3 Repayment of Moneys Held by Paying Agent
SECTION 10.4 Return of Unclaimed Moneys Held by
Trustee and Paying Agent
SECTION 10.5 Reinstatement of Corporation's
Obligations
ARTICLE XI MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers
and Directors of Corporation Exempt from
Individual Liability
SECTION 11.2 Provisions of Indenture for the Sole
Benefit of Parties and Securityholders
SECTION 11.3 Successors and Assigns of Corporation
Bound by Indenture
SECTION 11.7 Conflict of Any Provision of Indenture
with Trust Indenture Act
SECTION 11.8 New York Law to Govern
SECTION 11.9 Counterparts
SECTION 11.10 Effect of Headings; Gender
SECTION 11.11 Securities in a Foreign Currency or in
ECU
ARTICLE XII REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article
SECTION 12.2 Election to Redeem; Notice of
Redemption; Partial Redemptions
SECTION 12.3 Payment of Securities Called for
Redemption
SECTION 12.4 Exclusion of Certain Securities from
Eligibility for Selection for Redemption
SECTION 12.5 Mandatory and Optional Sinking Funds
SECTION 12.6 Repayment at the Option of the Holders
ARTICLE XIII SUBORDINATION
SECTION 13.1 Securities Subordinated to Senior
Indebtedness
SECTION 13.2 Reliance on Certificate of Liquidating
Agent; Further Evidence as to Ownership
of Senior Indebtedness
SECTION 13.3 Payment Permitted If No Default
SECTION 13.4 Trustee Not Charged with Knowledge of
Prohibition
SECTION 13.5 Trustee to Effectuate Subordination
SECTION 13.6 Rights of Trustee as Holder of Senior
Indebtedness
SECTION 13.7 Article Applicable to Paying Agents
SECTION 13.8 Subordination Rights Not Impaired by
Acts or Omissions of the Corporation or
Holders of Senior Indebtedness
SECTION 13.9 Trustee Not Fiduciary for Holders of
Senior Indebtedness
<PAGE>
USG CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture dated as of _________
Trust Indenture
Act Section Indenture Section
Sec. 310 (a) (1) 6.10
(a) (2) 6.10
(a) (3) Not Applicable
(a) (4) Not Applicable
(a) (5) 6.10
(b) 6.8, 6.10
Sec. 311 (a) 6.11
(b) 6.11
Sec. 312 (a) 4.1 and 4.2
(b) 4.2
(c) 4.2
Sec. 313 (a) (1)-(5) & (7)-(8) 6.6
(a) (6) Not Applicable
(b) (1) Not Applicable
(b) (2) 6.6
(c) 6.6
(d) 6.6
Sec. 314 (a) (1)-(3) 4.3
(a) (4) 3.4
(b) Not Applicable
(c) (1) 11.5
(c) (2) 11.5
(c) (3) Not Applicable
(d) Not Applicable
(e) 11.5
(f) Not Applicable
Sec. 315 (a) 6.1
(b) 6.5
(c) 6.1
(d) 6.1
(d) (1) 6.1
(d) (2) 6.1
(d) (3) 6.1
(e) 5.10
Sec. 316 (a) 7.4
(a) (1) (A) 5.8
(a) (1) (B) 5.1, 5.9
(a) (2) Not Applicable
(b) 5.6
(c) 7.1
Sec. 317 (a) (1) 5.2
(a) (2) 5.2
(b) 3.3
Sec. 318 (a) 11.7
Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
<PAGE>
THIS INDENTURE, dated as of _________________ between
USG CORPORATION, a Delaware corporation (the "Corporation"), and
________________________, a _________________ organized under the
laws of ________________ (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Corporation has duly authorized the
issuance from time to time of its unsecured debentures, notes or
other evidences of indebtedness (the "Securities") to be issued
in one or more Series; and
WHEREAS, all things necessary to make this Indenture a
valid indenture and agreement according to its terms have been
done;
NOW, THEREFORE:
In consideration of the premises and the purchases of
the Securities by the Holders thereof, it is mutually agreed for
the equal and proportionate benefit of the respective Holders
from time to time of the Securities or of a Series thereof as
follows:
ARTICLE I.
DEFINITIONS
SECTION A. Certain Terms Defined. The following
terms (except as otherwise expressly provided or unless the
context otherwise clearly requires) for all purposes of this
Indenture and of any indenture supplemental hereto shall have the
respective meanings specified in this Section. All other terms
used in this Indenture that are defined in the Trust Indenture
Act of 1939, as amended, or the definitions of which in the
Securities Act of 1933, as amended, are referred to in the Trust
Indenture Act of 1939, as amended, including terms defined
therein by reference to the Securities Act of 1933, as amended
(except as herein otherwise expressly provided or unless the
context otherwise clearly requires), shall have the meanings
assigned to such terms in the Trust Indenture Act of 1939, as
amended, and in the Securities Act of 1933, as amended, as in
force at the date of this Indenture. All accounting terms used
herein and not expressly defined shall have the meanings assigned
to such terms in accordance with generally accepted accounting
principles, and the term "generally accepted accounting
principles" means such accounting principles as are generally
accepted at the time of any computation. The words "herein,"
hereof" and "hereunder" and other words of similar import refer
to this Indenture as a whole, as supplemented and amended from
time to time, and not to any particular Article, Section or other
subdivision. The terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well
as the singular.
"Authorized Newspaper" means a newspaper (which, in the
case of The City of New York, will, if practicable, be The Wall
Street Journal (Eastern Edition), in the case of the United
Kingdom, will, if practicable, be the Financial Times (London
Edition) and, in the case of Luxembourg, will, if practicable, be
the Luxembourger Wort), published in an official language of the
country of publication customarily published at least once a day
for at least five days in each calendar week and of general
circulation in The City of New York, the United Kingdom or in
Luxembourg, as applicable. If it shall be impractical in the
opinion of the Trustee to make any publication of any notice
required hereby in an Authorized Newspaper, any publication or
other notice in lieu thereof which is made or given with the
approval of the Trustee shall constitute a sufficient publication
of such notice.
"Bankruptcy Code" means the United States Bankruptcy
Code, 11 United States Code Sec. 101 et seq., or any successor
statute thereto.
"Board of Directors" means either the Board of
Directors of the Corporation or any duly authorized committee of
or created by that Board.
"Business Day" means, except as may otherwise be
provided in the form of Securities of any particular Series, with
respect to any Place of Payment or place of publication, any day,
other than a Saturday or Sunday, or a day on which banking
institutions are authorized or required by law or regulation to
close in that Place of Payment or place of publication.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under the
Securities Exchange Act of 1934, as amended, or if at any time
after the execution and delivery of this Indenture such
Commission is not existing and performing the duties now assigned
to it under the Trust Indenture Act, then the body performing
such duties on such date.
"Conversion Agent" shall have the meaning set forth in
Section 3.2.
"Corporate Trust Office" means the principal corporate
trust office of the Trustee at which at any particular time its
corporate trust business shall be administered, which office at
the date of execution of this Indenture is located at
________________________.
"Corporation" means USG Corporation, a Delaware
corporation, until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and
thereafter "Corporation" shall mean such successor corporation.
"Corporation Notice" means the confirmation of the
Corporation signed by an officer, and transmitted to the Trustee
of the terms of the issuance of any Securities.
"Coupon" means any interest coupon appertaining to a
Security.
"defaulted interest" has the meaning specified in
Section 2.7.
"defeasance" has the meaning specified in Section
10.1(B)(ii).
"Depositary" means, with respect to the Securities of
any Series issuable or issued in the form of one or more
Registered Global Securities, the Person designated as Depositary
by the Corporation pursuant to Section 2.3 until a successor
Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall
mean or include each Person who is then a Depositary hereunder,
and if at any time there is more than one such Person,
"Depositary" as used with respect to the Securities of any such
Series shall mean the Depositary with respect to the Registered
Global Securities of that Series.
"Depositary Security" means, with respect to any Series
of Securities, a Security executed by the Corporation and
authenticated and delivered by the Trustee to the Depositary or
pursuant to the Depositary's instruction, all in accordance with
this Indenture and pursuant to a resolution of the Board of
Directors as contemplated by Section 2.3, which (i) shall be
registered as to principal and interest in the name of the
Depositary or its nominee and (ii) shall represent, and shall be
denominated in an amount equal to the aggregate principal amount
of, all of the Outstanding Securities of such Series.
"Dollar" means the coin or currency of the United
States of America which as of the time of payment is legal tender
for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and
revised from time to time by the Council of European Communities.
"Event of Default" has the meaning specified in
Section 5.1.
"Foreign Currency" means a currency issued by the
government of a country other than the United States.
"Government Obligations" means, unless otherwise
specified pursuant to Section 2.3, securities which are
(i) direct obligations of the government which issued the
currency in which the Securities of such Series are denominated
for the payment of which its full faith and credit is pledged or
(ii) obligations of a Person controlled or supervised by, or
acting as an agency or instrumentality of, the United States
government, the payment of which obligations is unconditionally
guaranteed by such government, and which, in either case, are
full faith and credit obligations of such government, and which
are not callable or redeemable at the option of the issuer
thereof prior to their stated maturity.
"Holder", "Holder of Securities", "Registered Holder",
"Securityholder" or other similar terms mean (a) in the case of
any Registered Security, the Person in whose name such Security
is registered in the Security Register, and (b) in the case of
any Unregistered Security, the bearer of such Security, or any
coupon appertaining thereto, as the case may be.
"Indenture" means this instrument as originally
executed and delivered or as it may from time to time be amended
or supplemented as herein provided, as so amended or supplemented
or both, and shall include the forms and terms of particular
Series of Securities established as contemplated by Section 2.3.
"Journal" has the meaning specified in Section 11.11.
"Market Exchange Rate" has the meaning specified in
Section 11.11.
"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 Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed on
behalf of the Corporation by the chairman of the Board of
Directors or the vice chairman or the president or any vice
president and by the treasurer, the controller, any assistant
treasurer, the secretary or any assistant secretary of the
Corporation and delivered to the Trustee. Each such certificate
shall include the statements provided for in Section 11.5.
"Opinion of Counsel" means a written opinion of legal
counsel, who may be an employee of or counsel to the Corporation,
and who shall be reasonably acceptable to the Trustee. Each
Opinion of Counsel shall include the statements provided for in
Section 11.5, if and to the extent required hereby.
"original issue date" of any Security (or portion
thereof) means the earlier of (a) the date of such Security or
(b) the date of any Security (or portion thereof) for which such
Security was issued (directly or indirectly) on registration of
transfer, exchange or substitution.
"Original Issue Discount Security" means any Security
that provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of acceleration
of the Maturity thereof pursuant to Section 5.1.
"Outstanding" when used with reference to Securities,
subject to the provisions of Section 7.4, means, as of any
particular time, all Securities authenticated and delivered under
this Indenture, except
1. Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
2. Securities, or portions thereof, for the payment
or redemption of which moneys in the necessary amount and in the
required currency shall have been deposited in trust with the
Trustee or with any Paying Agent (other than the Corporation) or
shall have been set aside, segregated and held in trust by the
Corporation for the Holders of such Securities (if the
Corporation shall act as its own Paying Agent), provided that if
such Securities, or portions thereof, are to be redeemed prior to
the Maturity thereof, notice of such redemption shall have been
given as herein provided, or provision satisfactory to the
Trustee shall have been made for giving such notice;
3. Securities in substitution for which other
Securities shall have been authenticated and delivered, or which
shall have been paid, pursuant to the terms of Section 2.9
(except with respect to any such Security as to which proof
satisfactory to the Trustee and the Corporation is presented that
such Security is held by a Person in whose hands such Security is
a legal, valid and binding obligation of the Corporation); and
4. Securities as to which defeasance has been
effected pursuant to Section 10.1(B).
In determining whether the Holders of the requisite
principal amount of Outstanding Securities of any or all Series
have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, the principal amount of an Original
Issue Discount Security that shall be deemed to be Outstanding
for such purposes shall be the amount of the principal thereof
that would be due and payable as of the date of such
determination upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.1.
"Paying Agent" means any Person (which may include the
Corporation) authorized by the Corporation to pay the principal
of or interest, if any, on any Security on behalf of the
Corporation.
"Persons" or "Person" means any individual,
corporation, partnership, joint venture, limited liability
company, 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 interest, if any, on the Securities of that
Series are payable as specified pursuant to Section 3.2.
"principal" whenever used with reference to the
Securities or any Security or any portion thereof, shall be
deemed to include "and premium, if any."
"record date" has the meaning specified in Section 2.7.
"Registered Global Security" means a Security
evidencing all or a part of a Series of Registered Securities,
issued to the Depositary for such Series in accordance with
Section 2.4, and bearing the legend prescribed in Section 2.4.
"Registered Security" means any Security which is
registered in the Security Register.
"Responsible Officer" when used with respect to the
Trustee means any officer within the corporate trust department
(or any successor department) of the Trustee including any vice
president, assistant vice president, assistant secretary, senior
trust officer, trust officer or any other officer or assistant
officer of the Trustee customarily performing functions similar
to those performed by the Persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter is
referred at the Corporate Trust Office because of his or her
knowledge of and familiarity with the particular subject.
"Security" or "Securities" has the meaning stated in
the first recital of this Indenture and more particularly means
any Securities authenticated and delivered under this Indenture.
"Security Register" has the meaning specified in
Section 2.8.
"Senior Indebtedness" means (a) indebtedness or
obligations of, or guaranteed or assumed by, the Corporation for
borrowed money which is evidenced by bonds, debentures, notes or
other similar instruments unless, by the terms of such
indebtedness it is provided that such indebtedness is not senior
in right of payment to the Securities of any Series, and (b) any
amendments, renewals, extensions, modifications and refinancings
of any such indebtedness or obligations; provided that Senior
Indebtedness shall not include the Securities of any Series.
"Series" or "Series of Securities" means all Securities
of a similar tenor authorized by a particular resolution of the
Board of Directors.
"Stated Maturity" when used with respect to any
Security or any installment of principal thereof or interest
thereon, means the date on which the principal of such Security
or such installment of principal or interest is due and payable
in accordance with the terms thereof.
"Trust Indenture Act" or "TIA" (except as otherwise
provided in Sections 8.1 and 8.2) means the Trust Indenture Act
of 1939, as amended, as in force at the date as of which this
Indenture was originally executed.
"Trustee" means the Person identified as "Trustee" in
the first paragraph hereof until a successor Trustee shall have
become such pursuant to the provisions hereof, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee
hereunder, and if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any Series
shall mean the Trustee with respect to Securities of that Series.
"United States of America" means the United States of
America (including the states and the District of Columbia), its
territories, possessions, the Commonwealth of Puerto Rico and
other areas subject to its jurisdiction.
"Unregistered Security" means any Security other than a
Registered Security.
"U.S. Person" means a citizen or resident of the United
States of America, a corporation, partnership or other entity
created or organized in or under the laws of the United States of
America or any political subdivision thereof or an estate or
trust the income of which is subject to United States of America
federal income taxation regardless of whether such income is from
sources within or without the United States of America or whether
or not such income is effectively connected with the conduct of a
trade or business within the United States of America.
"vice president" when used with respect to the
Corporation or the Trustee, means any vice president, whether or
not designated by a number or a word or words added before or
after the title of "vice president."
ARTICLE II.
SECURITIES
SECTION A. Forms Generally. The Securities of each
Series and the Coupons, if any, to be attached thereto shall be
substantially in such form (including temporary or definitive
global form) as shall be established by or pursuant to a
resolution of the Board of Directors or in one or more indentures
supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture (the provisions of which
shall be appropriate to reflect the terms of the Series of
Securities represented thereby) and may have imprinted or
otherwise reproduced thereon such legend or legends, not
inconsistent with the provisions of this Indenture, as may be
required to comply with any law or with any rules or regulations
pursuant thereto, or with any rules of any securities exchange or
to conform to general usage, all as may be determined by the
officers executing such Securities and Coupons, if any, as
evidenced by their execution of the Securities and Coupons.
The definitive Securities and Coupons, if any, shall be
printed, lithographed or engraved on steel engraved borders or
may be produced in any other manner, all as determined by the
officers executing such Securities and Coupons, if any, as
evidenced by their execution of such Securities and Coupons, if
any.
SECTION B. Form of Trustee's Certificate of
Authentication. The Trustee's certificate of authentication on
all Securities shall be in substantially the following form:
This is one of the Securities of the Series designated
herein and referred to in the within-mentioned Indenture.
,
as Trustee
By:
Authorized Signatory
or
,
as Trustee
By: ,
as Authentication Agent
By:
Authorized Signatory
SECTION C. 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 and
the Securities of each Series shall rank equally. There shall be
established in or pursuant to one or more resolutions of the
Board of Directors and set forth in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any Series.
1. the title of the Securities of the Series (which
title shall distinguish the Securities of the Series from all
other Securities issued by the Corporation);
2. any limit upon the aggregate principal amount of
the Securities of the Series that may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities of the Series
pursuant to Sections 2.8, 2.9, 2.11, 8.5 or 12.3);
3. if other than 100% of their principal amount, the
percentage of their principal amount at which the Securities of
the Series will be offered for sale to the public;
4. if other than Dollars, the coin or currency in
which the Securities of that Series are denominated (including,
but not limited to, any Foreign Currency or ECU);
5. the date or dates on which the principal of the
Securities of the Series is payable or the method of
determination thereof;
6. the rate or rates (which may be fixed or
variable), or the method or methods of determination thereof, at
which the Securities of the Series shall bear interest, if any,
the date or dates from which such interest shall accrue, the
interest payment dates on which such interest shall be payable
and (in the case of Registered Securities) the record dates for
the determination of Holders to whom interest is payable;
7. the place or places where the principal of and
interest, if any, on Securities of the Series shall be payable
(if other than as provided in Section 3.2);
8. the price or prices at which, the period or
periods within which and the terms and conditions upon which
Securities of the Series may be redeemed, in whole or in part, at
the option of the Corporation;
9. if other than the principal amount thereof, the
portion of the principal amount of Securities of the Series which
shall be payable upon declaration of acceleration of the Maturity
pursuant to Section 5.1 or provable in bankruptcy pursuant to
Section 5.2;
10. the obligation, if any, of the Corporation to
redeem, purchase or repay Securities of the Series whether
pursuant to any sinking fund or analogous provisions or pursuant
to other provisions set forth therein or at the option of a
Holder thereof and the price or prices at which and the period or
periods within which and the terms and conditions upon which
Securities of the Series shall be redeemed, purchased or repaid,
in whole or in part;
11. if other than denominations of $1,000, and any
integral multiple thereof, in the case of Registered Securities,
or $1,000 and $5,000 in the case of Unregistered Securities, the
denominations in which Securities of the Series shall be
issuable;
12. the form of the Securities, including such legends
as required by law or as the Corporation deems necessary or
appropriate and the form of any temporary global security which
may be issued;
13. if other than the coin or currency in which the
Securities of that Series are denominated, the coin or currency
in which payment of the principal of or interest on the
Securities of such Series shall be payable (including, but not
limited to, any Foreign Currency or ECU);
14. if the principal of or interest on the Securities
of such Series are to be payable, at the election of the
Corporation or a Holder thereof, in a coin or currency other than
that in which the Securities are denominated, the period or
periods within which, and the terms and conditions upon which,
such election may be made;
15. if the amount of payments of principal of and
interest on the Securities of the Series may be determined with
reference to an index, formula or method, the manner in which
such amounts shall be determined;
16. whether the Securities of the Series will be
issuable as Registered Securities (and if so, whether such
Securities will be issuable as Registered Global Securities) or
Unregistered Securities (with or without Coupons), or any
combination of the foregoing, any restrictions applicable to the
offer, sale or delivery of Unregistered Securities or the payment
of interest thereon and, if other than as provided in Section
2.8, the terms upon which Unregistered Securities of any Series
may be exchanged for Registered Securities of such Series and
vice versa;
17. whether, under what circumstances and in what
amounts the Corporation will pay additional amounts on the
Securities of the Series held by a Person who is not a U.S.
Person in respect of any tax, assessment or governmental charge
withheld or deducted and, if so, whether the Corporation will
have the option to redeem such Securities rather than pay such
additional amounts;
18. 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, the form and terms of such
certificates, documents or conditions;
19. if other than the Trustee, any trustees,
depositories, authenticating or Paying Agents, transfer agents or
registrars or any other agents with respect to the Securities of
such Series;
20. if the Securities of such Series do not bear
interest, the applicable dates for purposes of Section 4.1
hereof;
21. whether the Securities of such Series are to be
issuable in whole or in part in the form of one or more
Depositary Securities, and, in such case, the Depositary for such
Securities;
22. the application, if any, of Section 10.1(B)(ii) to
the Securities of the Series or any alternative or other
provisions for the defeasance (including any covenant or event of
default defeasance) of the Securities of the Series;
23. any other events of default or covenants with
respect to the Securities of such Series;
24. if applicable, any provisions, including terms and
conditions, with respect to the conversion of the Securities of
such Series; and
25. any other terms or conditions upon which the
Securities of the Series are to be issued (which terms shall not
be inconsistent with the provisions of this Indenture).
All Securities of any one Series and Coupons, if any,
appertaining thereto shall be substantially identical except as
to denomination and except in the case of Registered Securities
as may otherwise be provided in or pursuant to such resolution of
the Board of Directors or in any such 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.
SECTION D. Authentication and Delivery of
Securities. At any time and from time to time after the
execution and delivery of this Indenture, the Corporation may
deliver Securities of any Series, having attached thereto
appropriate Coupons, if any, executed by the Corporation to the
Trustee for authentication, and the Trustee shall thereupon
authenticate and make available for delivery such Securities to
or upon the written order of the Corporation, signed by both (a)
the chairman of its Board of Directors, or any vice chairman of
its Board of Directors, or its president or any vice president
and (b) its treasurer or any assistant treasurer, secretary or
any assistant secretary without any further action by the
Corporation. In authenticating such Securities and accepting the
additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive and
(subject to Section 6.1) shall be fully protected in relying
upon:
1. a copy of any resolution or resolutions of the
Board of Directors relating to such Series, in each case
certified by the secretary or an assistant secretary of the
Corporation;
2. a supplemental indenture, if any;
3. an Officers' Certificate setting forth the form
and terms of the Securities of such Series and Coupons, if any,
as required pursuant to Sections 2.1 and 2.3, respectively, and
prepared in accordance with Section 11.5;
4. an Opinion of Counsel, prepared in accordance with
Section 11.5, which shall state that:
a. the form or forms and terms of such
Securities and Coupons, if any, have been established
by or pursuant to a resolution of the Board of
Directors or by a supplemental indenture as permitted
by Sections 2.1 and 2.3 in conformity with the
provisions of this Indenture and in conformity with
such resolution or supplemental indenture, as the case
may be, and
b. such Securities, and Coupons, if any, have
been duly authorized, and, when authenticated and
delivered by the Trustee and issued by the Corporation
in the manner and subject to any conditions specified
in such Opinion of Counsel, will constitute valid and
binding obligations of the Corporation enforceable in
accordance with their terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance,
reorganization or other laws relating to or affecting
the enforcement of creditors. Rights generally and by
general equitable principles, regardless of whether
such enforceability is considered in a proceeding in
equity or at law.
Notwithstanding the provisions of Section 2.3 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 resolution of the Board of Directors and/or Officers'
Certificate otherwise required pursuant to Section 2.3 or the
Officers' Certificate 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 time of authentication upon
original issuance of the first Security of such Series to be
issued. After the original issuance of the first Security of
such Series to be issued, any separate request by the Corporation
that the Trustee authenticate Securities of such Series for
original issuance will be deemed to be a certification by the
Corporation that it is in compliance with all conditions
precedent provided for in this Indenture relating to the
authentication and delivery of such Securities.
The Trustee shall have the right to decline to
authenticate and deliver any Securities under this Section if the
Trustee is advised by counsel in good faith that the issuance of
such Securities would expose the Trustee to personal liability or
is unlawful.
If the Corporation shall establish pursuant to Section
2.3 that the Securities of a Series are to be issued in the form
of one or more Registered Global Securities, then the Corporation
shall execute and the Trustee shall, in accordance with this
Section, authenticate and deliver one or more Registered Global
Securities that (i) shall represent and shall be denominated in
an amount equal to the aggregate principal amount of all of the
Securities of such Series issued and not yet cancelled, (ii)
shall be registered in the name of the Depositary for such
Registered Global Security or Securities or the nominee of such
Depositary, (iii) shall be delivered by the Trustee to such
Depositary or pursuant to such Depositary's instructions and (iv)
shall bear a legend substantially to the following effect:
"Unless and until it is exchanged in whole or in part for
Securities in definitive registered form, this Security may not
be transferred except as a whole by the Depositary to the 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 2.3
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 and any other applicable statute
or regulation.
SECTION E. Execution of Securities. The Securities
and, if applicable, each Coupon appertaining thereto shall be
signed on behalf of the Corporation by both (a) the chairman of
its Board of Directors or its president or any vice president and
(b) its treasurer or any assistant treasurer or its secretary or
any assistant secretary, under its corporate seal (except in the
case of Coupons) which may, but need not, be attested. Such
signatures may be the manual or facsimile signatures of such
officers. The seal of the Corporation may be in the form of a
facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Securities. Typographical and other
minor errors or defects in any such reproduction of the seal or
any such signature shall not affect the validity or
enforceability of any Security that has been duly authenticated
and delivered by the Trustee.
In case any officer of the Corporation who shall have
signed any of the Securities or Coupons, if any, shall cease to
be such officer before the Security or Coupon so signed (or the
Security to which the Coupon so signed appertains) shall be
authenticated and delivered by the Trustee or disposed of by the
Corporation, such Security or Coupon nevertheless may be
authenticated and delivered or disposed of as though the Person
who signed such Security or Coupon had not ceased to be such
officer of the Corporation; and any Security or Coupon may be
signed on behalf of the Corporation by such Persons as, at the
actual date of the execution of such Security or Coupon, shall be
the proper officers of the Corporation, although at the date of
the execution and delivery of this Indenture any such Person was
not such an officer.
SECTION F. Certificate of Authentication. Only
such Securities as shall bear thereon a certificate of
authentication substantially in the form hereinbefore recited and
executed by the Trustee by the manual signature of one of its
authorized signatories shall be entitled to the benefits of this
Indenture or be valid or obligatory for any purpose. No Coupon
shall be entitled to the benefits of this Indenture or shall be
valid and obligatory for any purpose until the certificate of
authentication on the Security to which such Coupon appertains
shall have been duly executed by the Trustee. The execution of
such certificate by the Trustee upon any Security executed by the
Corporation shall be conclusive evidence that the Security so
authenticated has been duly authenticated and delivered hereunder
and that the Holder is entitled to the benefits of this
Indenture.
Notwithstanding the foregoing, if any Security shall
have been duly authenticated and delivered hereunder but never
issued and sold by the Corporation, the Corporation shall deliver
such Security to the Trustee for cancellation as provided in
Section 2.10 together with a written statement (which need not
comply with Section 11.5 and need not be accompanied by an
Opinion of Counsel) stating that such Security has never been
issued and sold by the Corporation, for all purposes of the
Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled
to the benefits of the Indenture.
SECTION G. Denomination and Date of Securities;
Payments of Interest. The Securities of each Series shall be
issuable as Registered Securities or Unregistered Securities in
denominations as shall be specified as contemplated by Section
2.3. In the absence of any such specification with respect to
the Securities of any Series, Registered Securities shall be
issuable in denominations of $1,000 and any integral multiple
thereof, and Unregistered Securities shall be issuable in
denominations of $1,000 and $5,000. The Securities of each
Series shall be numbered, lettered, or otherwise distinguished in
such manner or in accordance with such plan as the officers of
the Corporation executing the same may determine with the
approval of the Trustee as evidenced by the execution and
authentication thereof.
Each Registered Security shall be dated the date of its
authentication. Each Unregistered Security shall be dated as
provided in the resolution or resolutions of the Board of
Directors of the Corporation referred to in Section 2.3. The
Securities of each Series shall bear interest, if any, from the
date, and such interest shall be payable on the dates,
established as contemplated by Section 2.3.
Unless otherwise provided as contemplated by Section
2.3, interest on any Registered Security which is payable, and is
punctually paid or duly provided for, on any interest payment
date shall be paid to the Person in whose name that Registered
Security (or one or more predecessor Registered Securities) is
registered at the close of business on the regular record date
for the payment of such interest.
The term "record date" as used with respect to any
interest payment date (except for a date for payment of defaulted
interest) shall mean the date specified as such in the terms of
the Securities of any particular Series, or, if no such date is
so specified, the close of business on the fifteenth day
preceding such interest payment date, whether or not such record
date is a Business Day.
Any interest on any Security of any Series which is
payable, but is not punctually paid or duly provided for, on any
interest payment date (called "defaulted interest" for purposes
of this Section) shall forthwith cease to be payable to the
Registered Holder on the relevant record date by virtue of his
having been such Holder; and such defaulted interest may be paid
by the Corporation, at its election in each case, as provided in
clause (1) or clause (2) below:
(1) The Corporation may elect to make payment of any
defaulted interest to the Persons in whose names any such
Securities (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 Corporation shall notify the Trustee
in writing of the amount of defaulted interest proposed to be
paid on each Security of such Series and the date of the proposed
payment, and at the same time the Corporation shall deposit with
the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such defaulted interest or
shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons
entitled to such defaulted interest as in this clause provided.
Thereupon the Trustee shall fix a special record date for the
payment of such defaulted interest in respect of Securities of
such Series which shall be not more than 15 nor 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
Corporation of such special record date and, in the name and at
the expense of the Corporation, shall cause notice of the
proposed payment of such defaulted interest and the special
record date thereof to be mailed, first class postage prepaid, to
each Registered Holder at his address as it appears in the
Security Register, not less than 10 days prior to such special
record date. Notice of the proposed payment of such defaulted
interest and the special record date therefor having been mailed
as aforesaid, such defaulted interest in respect of Securities of
such Series shall be paid to the Person in whose names such
Securities (or their respective predecessor Securities) are
registered on such special record date and such defaulted
interest shall no longer be payable pursuant to the following
clause (2).
(2) The Corporation may make payment of any defaulted
interest on the Securities of any Series in any other lawful
manner not inconsistent with the requirements of any securities
exchange on which the Securities of that Series may be listed,
and upon such notice as may be required by such exchange, if,
after notice given by the Corporation to the Trustee of the
proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section,
each Security delivered under this Indenture upon 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 H. Registration, Transfer and Exchange. The
Corporation will cause to be kept at each office or agency to be
maintained for the purpose as provided in Section 3.2 for each
Series of Securities a register or registers (herein sometimes
referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Corporation will
provide for the registration and the registration of the transfer
of, the Registered Securities, The Trustee is hereby appointed
Security registrar for purposes of registering, and registering
transfers of, the Securities.
Upon surrender for registration of transfer of any
Registered Security of any Series at any such office or agency to
be maintained for the purpose as provided in Section 3.2, the
Corporation shall execute and the Trustee shall authenticate and
make available for delivery in the name of the transferee or
transferees a new Registered Security or Registered Securities of
the same Series and of a like tenor and containing the same terms
(other than the principal amount thereof, if more than one
Registered Security is executed, authenticated and delivered with
respect to any Registered Security so presented, in which case
the aggregate principal amount of the executed, authenticated and
delivered Registered Securities shall equal the principal amount
of the Security presented in respect thereof) and conditions.
Unregistered Securities (except for any temporary
Unregistered Securities) and Coupons (except for Coupons attached
to any temporary Unregistered Global Securities) shall be
transferable by delivery.
At the option of the Holder thereof, Registered
Securities of any Series (other than a Registered Global
Security, except as set forth below) may be exchanged for a
Registered Security or Registered Securities of such Series
having authorized denominations and an equal aggregate principal
amount, upon surrender of such Registered Securities to be
exchanged at the agency of the Corporation that shall be
maintained for such purpose in accordance with Section 3.2 and
upon payment, if the Corporation shall so require, of the charges
hereinafter provided. If the Securities of any Series are issued
in both registered and unregistered form, except as otherwise
specified pursuant to Section 2.3, at the option of the Holder
thereof, Unregistered Securities of any Series may be exchanged
for Registered Securities of such Series having authorized
denominations and an equal aggregate principal amount, upon
surrender of such Unregistered Securities to be exchanged at the
agency of the Corporation that shall be maintained for such
purpose in accordance with Section 3.2, with, in the case of
Unregistered Securities that have Coupons attached, all unmatured
Coupons and all matured Coupons in default thereto appertaining,
and upon payment, if the Corporation shall so require, of the
charges hereinafter provided. At the option of the Holder
thereof, if Unregistered Securities of any Series, maturity date,
interest rate and original issue date are issued in more than one
authorized denomination, except as otherwise specified pursuant
to Section 2.3, such Unregistered Securities may be exchanged for
Unregistered Securities of such Series having authorized
denominations and an equal aggregate principal amount, upon
surrender of such Unregistered Securities to be exchanged at the
agency of the Corporation that shall be maintained for such
purpose in accordance with Section 3.2 or as specified pursuant
to Section 2.3, with, in the case of Unregistered Securities that
have Coupons attached, all unmatured Coupons and all matured
Coupons in default appertaining thereto, and upon payment, if the
Corporation shall so require, of the charges hereinafter
provided. Unless otherwise specified pursuant to Section 2.3,
Registered Securities of any Series may not be exchanged for
Unregistered Securities of such Series. Whenever any Securities
are so surrendered for exchange, the Corporation shall execute,
and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive. All
Securities and Coupons surrendered upon any exchange or transfer
provided for in this Indenture shall be promptly cancelled and
disposed of by the Trustee and the Trustee will deliver a
certificate of disposition thereof to the Corporation.
All Securities issued upon any transfer or exchange of
Securities shall be the valid obligations of the Corporation,
evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Securities surrendered upon such transfer
or exchange.
Every Security presented or surrendered for
registration of transfer or exchange shall (if so required by the
Corporation or the Trustee) be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the
Corporation and the Trustee duly executed by the Holder thereof
or his attorney duly authorized in writing.
No service charge shall be made to the Holder for any
registration of transfer or exchange of Securities, but the
Corporation may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Securities, other
than exchanges pursuant to Sections 2.11, 8.5 or 12.3 not
involving any transfer.
The Corporation shall not be required (i) to issue,
register the transfer of or exchange any Security during a 15 day
period prior to the day of mailing of the relevant notice of
redemption or (ii) to register the transfer of or exchange any
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 redeemed.
Notwithstanding any other provision of this Section
2.8, unless and until it is exchanged in whole or in part for
Securities in definitive registered form, a Registered 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.
If at any time the Depositary for any Registered
Securities of a Series represented by one or more Registered
Global Securities notifies the Corporation that it is unwilling
or unable to continue as Depositary for such Registered
Securities or if at any time the Depositary for such Registered
Securities shall no longer be eligible under Section 2.4, the
Corporation shall appoint a successor Depositary with respect to
such Registered Securities. If a successor Depositary for such
Registered Securities is not appointed by the Corporation within
90 days after the Corporation receives such notice or becomes
aware of such ineligibility, the Corporation's election pursuant
to Section 2.3 that such Registered Securities be represented by
one or more Registered Global Securities shall no longer be
effective and the Corporation will execute, and the Trustee, upon
receipt of an Officers' Certificate for the authentication and
delivery of definitive Securities of such Series, will
authenticate and deliver, Securities of such Series in definitive
registered form without Coupons, in any authorized denominations,
in an aggregate principal amount equal to the principal amount of
the Registered Global Security or Securities representing such
Registered Securities in exchange for such Registered Global
Security or Securities.
The Corporation may at any time and in its sole
discretion determine that the Registered Securities of any Series
issued in the form of one or more Registered Global Securities
shall no longer be represented by a Registered Global Security or
Securities. In such event the Corporation will execute, and the
Trustee, upon receipt of an Officers' Certificate for the
authentication and delivery of definitive Securities of such
Series, will authenticate and deliver, Securities of such Series
in definitive registered form without Coupons, in any authorized
denominations, in an aggregate principal amount equal to the
principal amount of the Registered Global Security or Securities
representing such Registered Securities, in exchange for such
Registered Global Security or Securities.
If an Event of Default occurs and is continuing with
respect to Registered Securities of any Series issued in the form
of one or more Registered Global Securities, upon written notice
from the Depositary, the Corporation will execute, and the
Trustee, upon receipt of an Officers' Certificate for the
authentication and delivery of definitive Securities of such
Series, will authenticate and deliver, Securities of such Series
in definitive registered forms without Coupons, in any authorized
denominations, in an aggregate principal amount equal to the
principal amount of the Registered Global Security or Securities,
representing such Registered Securities, in exchange for such
Registered Global Security or Securities.
If specified by the Corporation pursuant to Section 2.3
with respect to Securities represented by a Registered Global
Security, the Depositary for such Registered Global Security may
surrender such Registered Global Security in exchange in whole or
in part for Securities of the same Series in definitive
registered form on such terms as are acceptable to the
Corporation and such Depositary. Thereupon, the Corporation
shall execute, and the Trustee shall authenticate and deliver,
without service charge to the Holder,
a. to the Person specified by such Depositary a
new Registered Security or Securities of the same
Series, of any authorized denominations as requested by
such Person, in an aggregate principal amount equal to
and in exchange for such Person's beneficial interest
in the Registered Global Security; and
b. to such Depositary a new Registered Global
Security in a denomination equal to the difference, if
any, between the principal amount of the surrendered
Registered Global Security and the aggregate principal
amount of Registered Securities authenticated and
delivered pursuant to clause (i) above.
Upon the exchange of a Registered Global Security for
Securities in definitive registered form without Coupons, in
authorized denominations, such Registered Global Security shall
be cancelled by the Trustee or an agent of the Corporation or the
Trustee. Securities in definitive registered form without
Coupons issued in exchange for a Registered Global Security
pursuant to this Section 2.8 shall be registered in such names
and in such authorized denominations as the Depositary for such
Registered Global Security, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the
Trustee or agent of the Corporation or the Trustee. The Trustee
or such agent shall deliver such Securities to or as directed by
the Persons in whose names such Securities are so registered.
Notwithstanding anything herein or in the terms of any
Series of Securities to the contrary, none of the Corporation,
the Trustee or any agent of the Corporation or the Trustee (any
of which, other than the Corporation, shall rely on an Officers'
Certificate and an Opinion of Counsel) shall be required to
exchange any Unregistered Security for a Registered Security if
such exchange would result in adverse Federal income tax
consequences to the Corporation (such as, for example, the
inability of the Corporation to deduct from its income, as
computed for Federal income tax purposes, the interest payable on
the Unregistered Securities) under then applicable United States
Federal income tax laws.
SECTION I. Mutilated, Defaced, Destroyed, Lost and
Stolen Securities. In case any temporary or definitive Security
or any Coupon appertaining to any Security shall become mutilated
or defaced or be destroyed, lost or stolen, then, in the absence
of notice to the Corporation or the Trustee that the Security has
been acquired by a bona fide purchaser, the Corporation shall
execute, and upon the written request of any officer of the
Corporation, the Trustee shall authenticate and make available
for delivery a new Security of the same Series and of like tenor
and principal amount and with the same terms and conditions,
bearing a number not contemporaneously outstanding, in exchange
and substitution for the mutilated or defaced Security or in lieu
of and substitution for the Security so destroyed, lost or
stolen, in each case together with Coupons corresponding to the
Coupons appertaining to the Securities so mutilated, defaced,
destroyed, lost or stolen. In every case the applicant for a
substitute Security or Coupon shall furnish to the Corporation
and to the Trustee and to any agent of the Corporation or the
Trustee such security or indemnity as may be required by them to
indemnify and defend and to save each of them harmless and, in
every case of destruction, loss or theft, evidence to their
satisfaction of the destruction, loss or theft of such Security
and of the ownership thereof and in the case of mutilation or
defacement shall surrender the Security and related Coupons to
the Trustee or such agent.
Upon the issuance of any substitute Security or Coupon,
the Corporation 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 or its agent) connected therewith. In
case any Security or Coupon which has matured or is about to
mature or has been called for redemption in full or is being
surrendered for conversion in full shall become mutilated or
defaced or be destroyed, lost or stolen, the Corporation may,
instead of issuing a substitute Security, pay or authorize the
payment of the same or the relevant Coupon (without surrender
thereof except in the case of a mutilated or defaced Security);
provided, however, that unless otherwise provided pursuant to
Section 2.3, the applicant for such payment shall furnish to the
Corporation and to the Trustee and any agent of the Corporation
or the Trustee such security or indemnity as any of them may
require to save each of them harmless, and, in every case of
destruction, loss or theft, the applicant shall also furnish to
the Corporation and the Trustee and any agent of the Corporation
or the Trustee evidence to their satisfaction of the destruction,
loss or theft of such Security and of the ownership thereof.
Every substitute Security or Coupon of any Series
issued pursuant to the provisions of this Section by virtue of
the fact that any Security or Coupon is destroyed, lost or stolen
shall constitute an additional contractual obligation of the
Corporation, whether or not the destroyed, lost or stolen
Security or Coupon shall be at any time enforceable by anyone and
shall be entitled to all the benefits of (but shall be subject to
all the limitations of rights set forth in) this Indenture
equally and proportionately with any and all other Securities or
Coupons of such Series duly authenticated and delivered
hereunder. All Securities and Coupons shall be held and owned
upon the express condition that, to the extent permitted by the
law, the foregoing provisions are exclusive with respect to the
replacement or payment of mutilated, defaced, destroyed, lost or
stolen Securities and Coupons and shall preclude any and all
other rights or remedies notwithstanding any law or statute
existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other
securities without their surrender.
SECTION J. Cancellation of Securities; Destruction
Thereof. All Securities and Coupons surrendered for payment,
redemption, registration of transfer, exchange or conversion, or
for credit against any payment in respect of a sinking or
analogous fund, shall, if surrendered to the Corporation or any
agent of the Corporation or the Trustee, be delivered to the
Trustee for cancellation or, if surrendered to the Trustee, shall
be cancelled by it; and no Securities or Coupons shall be issued
in lieu thereof, except as expressly permitted by any of the
provisions of this Indenture. The Corporation may at any time
deliver to the Trustee for cancellation any Securities or Coupons
previously authenticated hereunder which the Corporation has not
issued and sold and all Securities or Coupons so delivered shall
be promptly cancelled by the Trustee. The Trustee shall return
cancelled Securities and Coupons held by it or provide a
certificate of destruction to the Corporation. If the
Corporation shall acquire any of the Securities or Coupons, such
acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Securities or Coupons unless
and until the same are delivered to the Trustee for cancellation.
SECTION K. Temporary Securities. Pending the
preparation of definitive Securities for any Series, the
Corporation may execute and the Trustee shall authenticate and
make available for delivery temporary Securities for such Series
(printed, lithographed, typewritten or otherwise reproduced, in
each case in form reasonably acceptable to the Trustee).
Temporary Securities of any Series shall be issuable as
Registered Securities without Coupons, or as Unregistered
Securities with or without Coupons attached thereto, of any
authorized denomination, and substantially in the form of the
definitive Securities of such Series but with such omissions,
insertions and variations as may be appropriate for temporary
Registered Securities, all as may be determined by the
Corporation with the reasonable concurrence of the Trustee.
Temporary Securities may contain such reference to any provisions
of this Indenture as may be appropriate. Every temporary
Security shall be executed by the Corporation and be
authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the
definitive Securities. Without unreasonable delay the
Corporation shall execute and shall furnish definitive Securities
of such Series and thereupon temporary Securities of such Series
may be surrendered in exchange therefor without charge to the
Holder at each office or agency to be maintained by the
Corporation for that purpose pursuant to Section 3.2 and, in the
case of Unregistered Securities, at any agency maintained by the
Corporation for such purpose as specified pursuant to Section
2.3, and the Trustee shall authenticate and make available for
delivery in exchange for such temporary Securities of such Series
an equal aggregate principal amount of definitive Securities of
the same Series of authorized denominations and, in the case of
Unregistered Securities having attached thereto any appropriate
Coupons. Until so exchanged, the temporary Securities of any
Series shall be entitled to the same benefits under this
Indenture as definitive Securities of such Series. The
provisions of this Section are subject to any restrictions or
limitations on the issue and delivery of temporary Unregistered
Securities of any Series that may be established pursuant to
Section 2.3 (including any provision that Unregistered Securities
of such Series initially be issued in the form of a single global
Unregistered Security to be delivered to a depositary or agency
located outside the United States and the procedure pursuant to
which definitive or global Unregistered Securities of such Series
would be issued in exchange for such temporary global
Unregistered Security).
ARTICLE III.
COVENANTS OF THE CORPORATION
SECTION A. Payment of Principal and Interest. The
Corporation covenants and agrees for the benefit of each
particular Series of Securities that it will duly and punctually
pay or cause to be paid the principal of, and interest on, each
of the Securities of such Series in accordance with the terms of
such Securities and in the Coupons, if any, appertaining thereto
and in this Indenture. The interest on Securities with Coupons
attached (together with any additional amounts payable pursuant
to the terms of such Securities) shall be payable only upon
presentation and surrender of the several Coupons for such
interest installments as are evidenced thereby as they severally
mature. If any temporary Unregistered Security provides that
interest thereon may be paid while such Security is in temporary
form, the interest on any such temporary Unregistered Security
(together with any additional amounts payable pursuant to the
terms of such Security) shall be paid, as to the installments of
interest evidenced by Coupons attached thereto, if any, only upon
presentation and surrender thereof, and, as to the other
installments of interest, if any, only upon presentation of such
Securities for notation thereon of the payment of such interest,
in each case subject to any restrictions that may be established
pursuant to Section 2.3. The interest on Registered Securities
(together with any additional amounts payable pursuant to the
terms of such Securities) shall be payable only to or upon the
written order of the Holders thereof and at the option of the
Corporation may be paid by wire transfer (to Holders of
$10,000,000 or more of Registered Securities) or by mailing
checks for such interest payable to or upon the written order of
such Holders at their last addresses as they appear on the
Security Register.
Notwithstanding the provisions of Section 2.3 and
Section 2.7, unless otherwise specified as contemplated by
Section 2.3, payment of principal of and any interest on any
Security in definitive global form shall be made to the Person or
Persons specified therein.
Except as provided in the preceding paragraph, the
Corporation, the Trustee and any agent of the Corporation and the
Trustee shall treat a Person as the Holder of such principal
amount of Outstanding Securities represented by a definitive
global Security as shall be specified in a written statement of
the Holder of such definitive global Security.
SECTION B. Offices for Payment, etc. So long as
any of the Securities remain Outstanding, the Corporation will
maintain the following for each Series: an office or agency (a)
where the Securities may be presented for payment, (b) where the
Registered Securities may be presented for registration of
transfer and for exchange as provided in this Indenture, (c) if
applicable, an office or agency where the Securities may be
presented for conversion (the "Conversion Agent"), and (d) where
notices and demands may be served upon the Corporation in respect
of the Securities of any Series, the Coupons appertaining
thereto, or this Indenture. The Corporation will maintain one or
more agencies in a city or cities located outside the United
States (including any city in which such an agency is required to
be maintained under the rules of any stock exchange on which the
Securities of such Series are listed) where the Unregistered
Securities, if any, of each Series and Coupons, if any,
appertaining thereto may be presented for payment. No payment on
any Unregistered Security or Coupon will be made upon
presentation of such Unregistered Security or Coupon at an agency
of the Corporation within the United States nor will any payment
be made by transfer to an account in, or by mail to an address
in, the United States unless, pursuant to applicable United
States laws and regulations then in effect, such payment can be
made without adverse tax consequences to the Corporation.
Notwithstanding the foregoing, payments in Dollars of
Unregistered Securities of any Series and Coupons appertaining
thereto which are payable in Dollars may be made at an agency of
the Corporation within the United States if such payment in
Dollars at each agency maintained by the Corporation outside the
United States for payment on such Unregistered Securities is
illegal or effectively precluded by exchange controls or other
similar restrictions.
The Corporation will give to the Trustee written notice
of the location of any such office or agency and of any change of
location thereof. In case the Corporation shall fail to so
designate or maintain any such office or agency or shall fail to
give such notice of the location or of any change in the location
thereof, presentations and demands may be made and notices may be
served at the Corporate Trust Office. Unless otherwise specified
pursuant to Section 2.3, the Trustee is hereby appointed Paying
Agent and Conversion Agent.
SECTION C. Paying Agents. Whenever the Corporation
shall appoint a Paying Agent other than the Trustee with respect
to the Securities of any Series, it will cause such Paying Agent
to execute and deliver to the Trustee an instrument in which such
Agent shall agree with the Trustee, subject to the provisions of
this Section,
1. that it will hold all sums received by it as such
Agent for the payment of the principal of or interest on the
Securities of such Series (whether such sums have been paid to it
by the Corporation or by any other obligor on the Securities of
such Series) in trust for the benefit of the Holders of the
Securities of such Series, or Coupons appertaining thereto, if
any, or of the Trustee, and upon the occurrence of an Event of
Default and upon the written request of the Trustee, pay over all
such sums received by it to the Trustee, and
2. that it will give the Trustee notice of any
failure by the Corporation (or by any other obligor on the
Securities of such Series) to make any payment of the principal
of or interest on the Securities of such Series when the same
shall be due and payable.
The Corporation will, on or prior to each due date of
the principal of or interest on the Securities of such Series,
deposit in a timely manner with the Paying Agent a sum sufficient
to pay such principal or interest so becoming due, and (unless
such Paying Agent is the Trustee) the Corporation will promptly
notify the Trustee of any failure to take such action.
If the Corporation shall act as its own Paying Agent
with respect to the Securities of any Series, it will, on or
before each due date of the principal of or interest on the
Securities of such Series, set aside, segregate and hold in trust
for the benefit of the Holders of the Securities of such Series
or the Coupons appertaining thereto a sum sufficient to pay such
principal or interest so becoming due. The Corporation will
promptly notify the Trustee of any failure to take such action.
Anything in this Section to the contrary
notwithstanding, but subject to Section 10.1, the Corporation may
at any time, for the purpose of obtaining a satisfaction and
discharge with respect to one or more or all Series of Securities
hereunder, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust for any such Series by the
Corporation or any Paying Agent hereunder, as required by this
Section, such sums to be held by the Trustee upon the trusts
herein contained.
Anything in this Section to the contrary
notwithstanding, the agreement to hold sums in trust as provided
in this Section is subject to the provisions of Sections 10.3 and
10.4.
SECTION D. Written Statement to Trustee. The
Corporation will deliver to the Trustee, within 120 days after
the end of each fiscal year of the Corporation ending after the
date hereof, a brief certificate (which need not comply with
Section 11.5) from the principal executive, financial or
accounting officer of the Corporation as to his or her knowledge,
after due inquiry, of the Corporation's compliance with all
conditions and covenants under the Indenture (such compliance to
be determined without regard to any period of grace or
requirement of notice provided under the Indenture), and if the
Corporation shall not be in compliance, specifying all such
defaults or non-compliance and the nature and status thereof.
SECTION E. Luxembourg Publications. In the event
of the publication of any notice pursuant to Section 8.2, 10.4 or
12.2, the party making such publication in the Borough of
Manhattan, The City of New York and London shall also, to the
extent that notice is required to be given to Holders of
Securities of any Series by applicable Luxembourg law or stock
exchange regulations, as evidenced by an Officers' Certificate
delivered to such party, make a similar publication in
Luxembourg.
ARTICLE IV.
SECURITYHOLDERS LISTS AND REPORTS BY THE
CORPORATION AND THE TRUSTEE
SECTION A. Corporation to Furnish Trustee
Information as to Names and Addresses of Securityholders. The
Corporation covenants and agrees that it will furnish or cause to
be furnished to the Trustee a list in such form as the Trustee
may reasonably require of the names and addresses of the Holders
of the Registered Securities of each Series:
1. semiannually and not more than 15 days after each
record date for the payment of interest on such Registered
Securities, as hereinabove specified, as of such record date
and on dates to be determined pursuant to Section 2.3 for
non-interest bearing Registered Securities in each year, and
2. at such other times as the Trustee may reasonably
request in writing, within 30 days after receipt by the
Corporation of any such request, such list to be as of a
date not more than 15 days prior to the time such
information is furnished,
provided that if and so long as the Trustee shall be the Security
registrar for such Series and all of the Securities of any Series
are Registered Securities, such list shall not be required to be
furnished.
SECTION B. Preservation and Disclosure of
Securityholders' Lists.
1. The Trustee shall preserve, in as current a form
as is reasonably practicable, all information as to the names and
addresses of the Holders of each Series of Registered Securities
contained in the most recent list furnished to it as provided in
Section 4.1 or maintained by the Trustee in its capacity as
Security registrar for such Series, if so acting. The Trustee
may destroy any list furnished to it as provided in Section 4.1
upon receipt of a new list so furnished.
2. In case 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 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 a particular Series (in which case
the applicants must all hold Securities of such Series) or with
Holders of all Securities with respect to their rights under this
Indenture or under such Securities and such application 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
a. afford to such applicants access to the
information preserved at the time by the Trustee in
accordance with the provisions of subsection (a) of this
Section, or
b. inform such applicants as to the approximate
number of Holders of Registered Securities of such Series or
of all Registered Securities, as the case may be, whose
names and addresses appear in the information preserved at
the time by the Trustee, in accordance with the provisions
of subsection (a) of this Section, as to the approximate
cost of mailing to such Securityholders the form of proxy or
other communication, if any, specified in such application.
If the Trustee shall elect not to afford to such
applicants access to such information, the Trustee shall, upon
the written request of such applicants, mail to each
Securityholder of such Series or all Holders of Registered
Securities, as the case may be, whose name and address appears in
the information preserved at the time by the Trustee in
accordance with the provisions of subsection (a) of this Section,
a copy of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a
tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses
of mailing, unless within five days after such tender, the
Trustee shall mail to such applicants and file with the
Commission together with a copy of the material to be mailed, a
written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of
the Holders of Registered Securities of such Series or of all
Registered Securities, as the case may be, or could 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 such
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 Securityholders 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.
3. Each and every Holder of Securities and Coupons,
by receiving and holding the same, agrees with the Corporation
and the Trustee that neither the Corporation nor the Trustee nor
any agent of the Corporation or the Trustee 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 the provisions of subsection (b) of this Section,
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 such
subsection (b).
SECTION C. Reports by the Corporation. The
Corporation covenants:
1. to file with the Trustee, within 15 days after the
Corporation 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
Corporation 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 Corporation is not required
to file information, documents, or reports pursuant to
either of such Sections, then to 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. to 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
Corporation with the conditions and covenants provided for
in this Indenture as may be required from time to time by
such rules and regulations; and
3. to transmit by mail to the Holders of Securities
in the manner and to the extent required by Sections 6.6 and
11.4, within 30 days after the filing thereof with the
Trustee, such summaries of any information, documents, and
reports required to be filed by the Corporation pursuant to
subsections (a) and (b) of this Section as may be required
to be transmitted to such Holders by rules and regulations
prescribed from time to time by the Commission.
ARTICLE V.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION A. Event of Default Defined; Acceleration
of Maturity; Waiver of Default. "Event of Default" with respect
to Securities of any Series wherever used herein, means any one
of the following events which shall have occurred and be
continuing (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative
or governmental body) unless it is either inapplicable to a
particular Series or it is specifically deleted or modified in or
pursuant to the supplemental indenture or resolution of the Board
of Directors establishing such Series of Securities or in the
form of Security for such Series:
1. default in the payment of any installment of
interest upon any of the Securities of such Series as and
when the same shall become due and payable, and continuance
of such default for a period of 30 days; or
2. default in the payment of all or any part of the
principal of any of the Securities of such Series as and
when the same shall become due and payable, either at
Maturity, upon any redemption, by declaration or otherwise;
or
3. default in the performance, or breach of any
covenant or warranty of the Corporation contained in the
Securities of such Series or in this Indenture (other than a
covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with
or which has expressly been included in this Indenture
solely for the benefit of a Series of Securities other than
that Series), and continuance of such default or breach for
a period of 90 days after there has been given, by
registered or certified mail, to the Corporation by the
Trustee or to the Corporation and the Trustee by the Holders
of at least 25% in principal amount of the Outstanding
Securities of that Series a written notice specifying such
default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder;
or
4. the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of
the Corporation in an involuntary case or proceeding under
any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order
adjudging the Corporation a bankrupt or insolvent, or
approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or
in respect of the Corporation under any applicable Federal
or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar
official of the Corporation or of all or any substantial
part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such
decree or order for relief or any such other decree or order
unstayed and in effect for a period of 90 consecutive days;
or
5. the commencement by the Corporation of a voluntary
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law
or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of
a decree or order for relief in respect of the Corporation
in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any bankruptcy
or insolvency case or proceeding against it, or the filing
by it of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or
State law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Corporation or of
all or any substantial part of its property, or the making
by it of an assignment for the benefit of creditors; or
6. any other Event of Default provided with respect
to Securities of such Series.
If an Event of Default occurs and is continuing with respect to
the Securities of any Series, then and in each and every such
case, unless the principal of all Securities of such Series shall
have already become due and payable, either the Trustee for such
Series or the Holders of not less than 25% in aggregate principal
amount of the Securities of such Series then Outstanding
hereunder, by notice in writing to the Corporation (and to the
Trustee if given by such Holders), may declare the entire
principal (or, if the Securities of such affected Series are
Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of such Series) of all
the Securities of such Series to be due and payable immediately,
and upon any such declaration the same shall become and shall be
immediately due and payable. This provision, however, is subject
to the condition that if at any time after the principal (or, if
the Securities of such affected Series are Original Issue
Discount Securities, such portion of the principal amount as may
be specified in the terms of such Series) of the Securities of
such Series shall have been so declared due and payable, and
before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided, the
Corporation shall pay or shall deposit with the Trustee a sum
sufficient to pay all matured installments of interest, if any,
upon all the Securities of such Series and the principal of any
and all Securities of such Series which shall have become due
otherwise than by such acceleration (with interest upon such
principal and, to the extent that payment of such interest is
enforceable under applicable law, upon overdue installments of
interest, at the same rate as the rate of interest or yield to
maturity (in the case of Original Issue Discount Securities)
specified in the Securities of such Series to the date of such
payment or deposit) and in Dollars such amount as shall be
sufficient to cover reasonable compensation to the Trustee, its
agents, attorneys and counsel and all other expenses and
liabilities incurred, and all advances with interest made, by the
Trustee, its agents, attorneys and counsel and if any and all
defaults under this Indenture, other than the nonpayment of the
principal of Securities of such Series which shall have become
due by such acceleration, shall have been remedied, then and in
every such case the Holders of a majority in aggregate principal
amount of the Securities of such Series then Outstanding, by
written notice to the Corporation and to the Trustee for the
Securities of such Series, may waive all defaults and rescind and
annul such declaration and its consequences; but no such waiver
or rescission and annulment shall extend to or shall affect any
subsequent default or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of
the principal of any Original Issue Discount Securities shall
have been accelerated and declared due and payable pursuant to
the provisions hereof, then, from and after such declaration,
unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall
be deemed, for all purposes hereunder, to be such portion of the
principal thereof as shall be due and payable as a result of such
acceleration, and payment of such portion of the principal
thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all
other amounts owing thereunder, shall constitute payment in full
of the Original Issue Discount Securities.
SECTION B. Collection of Indebtedness By Trustee;
Trustee May Prove Debt. The Corporation covenants that (a) in
case default shall be made in the payment of any installment of
interest on any of the Securities of any Series when such
interest shall have become due and payable, and such default
shall have continued for a period of 30 days, or (b) in case
default shall be made in the payment of all or any part of the
principal of any of the Securities of any Series when the same
shall have become due and payable, whether upon Maturity or upon
any redemption or by declaration or otherwise, then upon demand
of the Trustee for the Securities of such Series, the Corporation
will pay to the Trustee for the Securities of such Series for the
benefit of the Holders of the Securities of such Series the whole
amount that then shall have become due and payable on all
Securities of such Series for principal of or interest, as the
case may be (with interest to the date of such payment upon the
overdue principal and, to the extent that payment of such
interest is enforceable under applicable law, on overdue
installments of interest at the same rate as the rate of interest
or yield to maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such Series); and in
addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including reasonable
compensation to, and all expenses and liabilities incurred and
all advances with interest made by, the Trustee and each
predecessor Trustee except as a result of its negligence or bad
faith.
Until such demand is made by the Trustee, the
Corporation may pay the principal of and interest on the
Securities of any Series to the Persons entitled thereto, whether
or not the principal of and interest on the Securities of such
Series are overdue.
In case the Corporation shall fail forthwith to pay
such amounts upon such demand, the Trustee for the Securities of
such Series, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so
due and unpaid, and may prosecute any such action or proceedings
to judgment or final decree, and may enforce any such judgment or
final decree against the Corporation or other obligor upon such
Securities and collect in the manner provided by law out of the
property of the Corporation or other obligor upon such
Securities, wherever situated, the moneys adjudged or decreed to
be payable.
In case there shall be pending proceedings relative to the
Corporation or any other obligor upon the Securities under Title
11 of the United States Code or any other applicable Federal or
State bankruptcy, insolvency or other similar law, or in case a
receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Corporation or its
property or such other obligor, or in case of any other
comparable judicial proceedings relative to the Corporation or
other obligor under the Securities of any Series, or to the
creditors or property of the Corporation or such other obligor,
the Trustee, irrespective of whether the principal of any
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 pursuant to the provisions of
this Section, shall be entitled and empowered, by intervention in
such proceedings or otherwise:
1. to file and prove a claim or claims for the whole
amount of principal and interest (or, if the Securities of
any Series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the
terms of such Series) owing and unpaid in respect of the
Securities of any Series, and to file such other papers or
documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for
reasonable compensation to, and all expenses and liabilities
incurred and all advances with interest made by, the Trustee
and each predecessor Trustee, and their respective agents,
attorneys and counsel, except as a result of negligence or
bad faith) and of the Securityholders allowed in any
judicial proceedings relative to the Corporation or other
obligor upon all Securities of any Series, or to the
creditors or property of the Corporation or such other
obligor, and
2. to collect and receive any moneys or other
property payable or deliverable on any such claims, and to
distribute all amounts received with respect to the claims
of the Securityholders and of the Trustee on their behalf;
and any trustee, receiver, or liquidator, custodian or other
similar official is hereby authorized by each of the
Securityholders to make payments to the Trustee for the
Securities of such Series, and, in the event that such
Trustee shall consent to the making of payments directly to
the Securityholders, to pay to such Trustee such amounts as
shall be sufficient to cover reasonable compensation to, and
all expenses and liabilities incurred and all advances with
interest made by, such Trustee, each predecessor Trustee and
their respective agents, attorneys and counsel and all other
amounts due to such Trustee or any predecessor Trustee
pursuant to Section 6.7, except as a result of Trustee's
negligence or bad faith.
Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on
behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities
of any Series or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding.
All rights of action and of asserting claims under this
Indenture, or under any of the Securities or Coupons appertaining
to such Securities, may be enforced by the Trustee for the
Securities of such Series or Coupons without the possession of
any of the Securities of such Series or Coupons appertaining to
such Securities or the production thereof at any trial or other
proceedings relative thereto, and any such action or proceedings
instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment,
subject to the payment of the expenses, disbursements and
compensation of the Trustee, each predecessor Trustee and their
respective agents and attorneys, shall be for the ratable benefit
of the Holders of the Securities or Coupons appertaining to such
Securities in respect of which such action was taken.
In any proceedings brought by the Trustee for the
Securities of such Series (and also any proceedings involving the
interpretation of any provision of this Indenture to which the
Trustee shall be a party), the Trustee shall be held to represent
all the Holders of the Securities or Coupons appertaining to such
Securities in respect to which such action was taken, and it
shall not be necessary to make any Holders of such Securities or
Coupons appertaining to such Securities parties to any such
proceedings.
SECTION C. Application of Proceeds. Any moneys
collected by the Trustee for the Securities of such Series
pursuant to this Article in respect of the Securities of any
Series shall be applied in the following order at the date or
dates fixed by such Trustee and, in case of the distribution of
such moneys on account of principal or interest, upon
presentation of the several Securities and Coupons appertaining
to such Securities in respect of which moneys have been collected
and stamping (or otherwise noting) thereon the payment, or
issuing Securities of such Series in reduced principal amounts in
exchange for the presented Securities of like Series if only
partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of reasonable costs and
expenses applicable to such Series in respect of which
moneys have been collected, including reasonable
compensation to, and all reasonable expenses and liabilities
incurred and all advances with interest made by, the Trustee
and each predecessor Trustee and their respective agents and
attorneys and all other amounts due to the Trustee or any
predecessor Trustee pursuant to Section 6.7, except as a
result of Trustee's negligence or bad faith;
SECOND: To the payment of the amounts then due and
unpaid for interest on the Securities of such Series for
which principal is not yet due and payable in respect of
which moneys have been collected, such payments to be made
ratably to the Persons entitled thereto, without
discrimination or preference, according to the amounts then
due and payable on such Securities for interest;
THIRD: To the payment of the amounts then due and
unpaid for principal of and interest on the Securities of
such Series for which principal is due and payable in
respect of which moneys have been collected, such payments
to be made ratably to the Persons entitled thereto without
discrimination or preference, according to the amounts then
due and payable on such Securities for principal and
interest, respectively; and
FOURTH: To the payment of the remainder, if any, to
the Corporation or any other Person lawfully entitled
thereto.
SECTION D. Restoration of Rights on Abandonment of
Proceedings. In case the Trustee for the Securities of any
Series or any Holder shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been
discontinued or abandoned for any reason, or shall have been
determined adversely to the Trustee or to such Holder, then and
in every such case, subject to the determination in any such
proceeding, the Corporation, the Trustee and the Holders shall be
restored respectively to their former positions and rights
hereunder, and all rights, remedies and powers of the
Corporation, the Trustee and the Securityholders shall continue
as though no such proceedings had been taken.
SECTION E. Limitations on Suits by Securityholders.
No Holder of any Security of any Series or of any Coupon
appertaining thereto shall have any right by virtue or by
availing of any provision of this Indenture to institute any
action or proceeding at law or in equity or in bankruptcy or
otherwise upon or under or with respect to this Indenture, or for
the appointment of a trustee, receiver, liquidator, custodian or
other similar official or for any other remedy hereunder, unless
such Holder previously shall have given to the Trustee written
notice of an Event of Default and of the continuance thereof, as
hereinbefore provided, and unless also the Holders of not less
than 25% in aggregate principal amount of the Securities of such
Series then Outstanding shall have made written request upon the
Trustee to institute such action or proceedings in its own name
as trustee hereunder and shall have offered to the Trustee such
reasonable indemnity, as it may require, against the costs,
expenses and liabilities to be incurred therein or thereby and
the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity shall have failed to institute any such
action or proceeding and no direction inconsistent with such
written request shall have been given to the Trustee during such
60-day period by Holders of a majority in principal amount of the
Securities of such Series then Outstanding; it being understood
and intended, and being expressly covenanted by the taker and
Holder of every Security or Coupon with every other taker and
Holder of a Security or Coupon and the Trustee, that no one or
more Holders of Securities of any Series or Coupons appertaining
to such Securities shall have any right in any manner whatever,
by virtue or by availing of any provision of this Indenture to
affect, disturb or prejudice the rights of any other such Holder
of Securities or Coupons appertaining to such Securities, or to
obtain or seek to obtain priority over or preference to any other
such Holder or to enforce any right under this Indenture, except
in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Securities of the applicable
Series and Coupons appertaining to such Securities.
SECTION F. Unconditional Right of Securityholders
to Institute Certain Suits. Notwithstanding any provision in
this Indenture and any provision of any Security, the right of
any Holder of any Security or Coupon to receive payment of the
principal of and (subject to Section 2.7) interest on such
Security or Coupon at the respective rates, in the respective
amount on or after the respective due dates expressed in such
Security or Coupon, and to institute suit for the enforcement of
any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
SECTION G. Powers and Remedies Cumulative; Delay or
Omission Not Waiver of Default. Except as provided in Section
2.9 and Section 5.5, no right or remedy herein conferred upon or
reserved to the Trustee or to the Securityholders 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.
No delay or omission of the Trustee or of any
Securityholder to exercise any right or power accruing upon any
Event of Default occurring and continuing as aforesaid shall
impair any such right or power or shall be construed to be a
waiver of any such Event of Default or an acquiescence therein;
and, subject to Section 5.5, every power and remedy given by this
Indenture or by law to the Trustee or to the Securityholders may
be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or the Securityholders.
SECTION H. Control by Securityholders. The Holders
of a majority in aggregate principal amount of the Securities of
each Series affected (with each Series treated as a separate
class) at the time Outstanding 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 by this Indenture; provided that such direction shall not
be otherwise than in accordance with law and the provisions of
this Indenture and provided further that the Trustee, being
advised by counsel, shall have the right to decline to follow any
such direction if the Trustee shall determine that the action or
proceedings so directed would involve the Trustee in personal
liability or if the Trustee in good faith shall so determine that
the actions or forbearances specified in or pursuant to such
direction would be unduly prejudicial to the interests of Holders
of the Securities of all Series so affected not joining in the
giving of said direction.
SECTION I. Waiver of Past Defaults. The Holders of
not less than a majority in aggregate principal amount of the
Securities of any Series at the time Outstanding may on behalf of
the Holders of all the Securities of such Series waive any past
default hereunder or its consequences, except a default in the
payment of the principal of or interest on any of the Securities
of such Series.
Upon any such waiver, such default shall cease to exist
and be deemed to have been cured and not to have occurred, and
any Event of Default arising therefrom shall be deemed to have
been cured and not to have occurred for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent
thereon.
SECTION J. Right of Court to Require Filing of
Undertaking to Pay Costs. All parties to this Indenture agree,
and each Holder of any Security or Coupon, by his acceptance
thereof, shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture or in any suit against the
Trustee for any action taken, suffered or omitted by it as
Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including
reasonable attorneys' fees and expenses, against any party
litigant in such suit, having due regard to the merits and good
faith of the claims or defenses made by such party litigant; but
the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any
Securityholder or group of Securityholders of any Series holding
in the aggregate more than 10% in aggregate principal amount of
the Securities of such Series, or to any suit instituted by any
Securityholder for the enforcement of the payment of the
principal of or interest on any Security on or after the due date
expressed in such Security or any date fixed for redemption.
SECTION K. Suits for Enforcement. In case an Event
of Default has occurred, has not been waived and is continuing,
the Trustee may in its discretion proceed to protect and enforce
the rights vested in it by this Indenture by such appropriate
judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this
Indenture or in aid of the exercise of any power granted in this
Indenture or to enforce any other legal or equitable right vested
in the Trustee by this Indenture or by law.
ARTICLE VI.
CONCERNING THE TRUSTEE
SECTION A. Duties of Trustee.
1. If an Event of Default has occurred and is
continuing with respect to the Securities of any Series, the
Trustee shall exercise the rights and powers vested in it by this
Indenture and use the same degree of care and skill in its
exercise as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
2. Except during the continuance of an Event of
Default with respect to the Securities of any Series:
a. the Trustee need perform only those duties that
are specifically set forth in this Indenture and no others;
and
b. in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming on their face to the requirements of
this Indenture. However, in the case of any such
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the
Trustee shall examine the certificates and opinions to
determine whether or not they conform on their face to the
requirements of this Indenture.
3. The Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act or its
own willful misconduct, except that:
a. this paragraph (c) does not limit the effect of
paragraph (b) of this Section 6.1;
b. the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless
it is proved that the Trustee was negligent in ascertaining
the pertinent facts; and
c. the Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to
Section 5.8.
4. Every provision of this Indenture that in any way
relates to the Trustee is subject to paragraphs (a), (b), (c) and
(e) of this Section 6.1.
5. The Trustee may refuse to perform any duty or
exercise any right or power or extend or risk its own funds
or otherwise incur any financial liability unless it receives
indemnity satisfactory to it against any loss, liability or
expense.
6. Money held by the Trustee in trust hereunder need
not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on
any money received by it hereunder except as otherwise agreed in
writing with the Corporation.
SECTION B. Rights of Trustee. Subject to Section
6.1 and the provisions of the Trust Indenture Act:
1. The Trustee may rely on any document believed by
it to be genuine and to have been signed or presented by the
proper Person. The Trustee need not investigate any fact or
matter stated in the document.
2. Before the Trustee acts or refrains from acting,
it may require an Officers' Certificate or an Opinion of Counsel.
The Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on such Officers' Certificate
or Opinion of Counsel.
3. Subject to the provisions of Section 6.1(c), the
Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within
its rights or powers.
4. The Trustee may consult with counsel of its
selection and the advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon in accordance
with such advice or Opinion of Counsel.
5. The Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders
pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction.
6. 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 C. Individual Rights of Trustee. The
Trustee in its individual or any other capacity may become the
owner or pledgee of Securities or Coupons and may otherwise deal
with the Corporation or its affiliates with the same rights it
would have if it were not Trustee. Any Paying Agent, registrar
or coregistrar may do the same with like rights. However, the
Trustee must comply with Sections 6.10 and 6.11.
SECTION D. Trustee's Disclaimer. The Trustee makes
no representation as to the validity or adequacy of this
Indenture or the Securities or Coupons, it shall not be
accountable for the Corporation's use of the proceeds from the
Securities, it shall not be responsible for any statement in the
registration statement for the Securities under the Securities
Act of 1933 or in the Indenture or the Securities (other than its
certificate of authentication).
SECTION E. Notice of Defaults. If a default occurs
and is continuing with respect to any Securities of any Series
and if it is known to the Trustee through oral or written notice
to a corporate trust officer, the Trustee shall give to each
Securityholder of such Series notice of the default within 90
days after such default occurs. Except in the case of a default
described in Section 5.1(a) or (b), the Trustee may withhold the
notice if and so long as a committee of its Responsible Officers
in good faith determines that withholding the notice is in the
interests of Securityholders of such Series.
SECTION F. Reports by Trustee to Holders. Within
60 days after each June 1 beginning with the June 1 following the
date of this Indenture, the Trustee shall mail to each
Securityholder of any Series and each other Person specified in
TIA Section 313(c) a brief report dated as of such June 1 that
complies with TIA Section 313(a) to the extent required thereby.
The Trustee also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to
Securityholders of any Series shall be filed with the Commission
and each securities exchange on which the Securities of any
Series are listed. The Corporation agrees promptly to notify the
Trustee whenever the Securities of any Series become listed on
any securities exchange and of any delisting thereof.
SECTION G. Compensation and Indemnity. The
Corporation agrees:
1. to pay to the Trustee from time to time in Dollars
such compensation as shall be agreed to in writing between
the Corporation 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 with
interest thereon incurred or made by the Trustee in
accordance with any provision of this Indenture (including
the reasonable compensation and the expenses, advances with
interest thereon and disbursements of its agents and
counsel), except to the extent any such expense,
disbursement or advance may be attributable to its
negligence or bad faith; and
3. to indemnify the Trustee in Dollars for, and to
hold it harmless against, any loss, liability or expense
arising out of or in connection with the acceptance or
administration of this trust or the performance of its
duties hereunder, including the costs and expenses of
defending itself against any claim or liability in
connection with the exercise or performance of any of its
powers or duties hereunder (including the reasonable
compensation and the expenses, advances with interest
thereon and disbursements of its agents and counsel), except
to the extent that any such loss, liability or expense may
be attributable to its negligence or bad faith.
As security for the performance of the obligations of
the Corporation in this Section 6.7, the Trustee shall have a
lien prior to the Securities on all money or property held or
collected by the Trustee, except that held in trust to pay the
principal of or interest, if any, on particular Securities.
"Trustee" for purpose of this Section 6.7 includes any
predecessor Trustee, provided that the negligence or bad faith of
any Trustee shall not be attributable to any other Trustee.
The Corporation's payment obligations pursuant to this
Section 6.7 shall survive the discharge of this Indenture. When
the Trustee incurs expenses after the occurrence of a default
specified in Sections 5.1(d) and 5.1(e), such expenses are
intended to constitute expenses of administration under
bankruptcy law.
SECTION H. Replacement of Trustee. The Trustee may
resign at any time with respect to Securities of one or more
Series by so notifying the Corporation; provided, however, no
such resignation shall be effective until a successor Trustee has
accepted its appointment pursuant to this Section 6.8. The
Holders of a majority in aggregate principal amount of the
Outstanding Securities of any Series may remove the Trustee with
respect to such Series at the time Outstanding by so notifying
the Trustee and the Corporation. The Corporation shall remove
the Trustee if:
(1) the Trustee fails to comply with Section 6.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, with respect to
the Securities of one or more Series, the Corporation shall
promptly appoint, by resolution of its Board of Directors, a
successor Trustee with respect to the Securities of such Series.
A successor Trustee shall deliver a written acceptance
of its appointment to the retiring Trustee and to the
Corporation. Thereupon the resignation or removal of the
retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture with respect to the Securities of
such Series. The successor Trustee shall mail a notice of its
succession to Securityholders so affected. The retiring Trustee
shall promptly transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided for in Section
6.7.
If a successor Trustee does not take office within 30
days after the retiring Trustee resigns or is removed, the
retiring Trustee, the Corporation or the Holders of a majority in
aggregate principal amount of the Securities at the time
Outstanding may petition any court of competent jurisdiction for
the appointment of a successor Trustee.
If the Trustee fails to comply with Section 6.10, any
Securityholder may petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor
Trustee.
SECTION I. Successor Trustee by Merger. If the
Trustee consolidates with, merges or converts into, or transfers
all or substantially all its corporate trust business or assets
to, another corporation, the resulting, surviving or transferee
corporation without any further act shall be the successor
Trustee.
SECTION J. Eligibility; Disqualification. The
Trustee shall at all times satisfy the requirements of TIA
Section 310(a)(1) and Section 310(a)(5). The Trustee shall have
a combined capital and surplus of at least $50,000,000 as set
forth in its most recent published annual report of condition.
The Trustee shall comply with TIA Section 310(b).
SECTION K. Preferential Collection of Claims
Against Corporation. The Trustee shall comply with TIA Section
311(a), excluding any creditor relationship listed in TIA Section
311(b). A Trustee who has resigned or been removed shall be
subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE VII.
CONCERNING THE SECURITYHOLDERS
SECTION A. Evidence of Action Taken by
Securityholders.
1. Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this
Indenture to be given or taken by a specified percentage in
principal amount of the Securityholders of any or all Series may
be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such specified percentage
of Securityholders in Person or by agent duly appointed in
writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments
are delivered to the Trustee. Proof of execution of any
instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to
Sections 6.1 and 6.2) conclusive in favor of the Trustee and the
Corporation, if made in the manner provided in this Article.
2. In the case of Registered Securities, the
ownership of such Securities shall be proved by the Security
Register.
SECTION B. Proof of Execution of Instruments.
Subject to Sections 6.1 and 6.2, the execution of any instrument
by a Securityholder or his agent or proxy may be proved in
accordance with such reasonable rules and regulations as may be
prescribed by the Trustee or in such manner as shall be
satisfactory to the Trustee.
SECTION C. Holders to Be Treated as Owners. The
Corporation, the Trustee and any agent of the Corporation or the
Trustee may deem and treat the Person in whose name any Security
shall be registered upon the Security Register for such Series as
the absolute owner of such Security (whether or not such Security
shall be overdue and notwithstanding any notation of ownership or
other writing thereon) for the purpose of receiving payment of or
on account of the principal of and (subject to Section 2.7)
interest on such Security and for all other purposes; and neither
the Corporation nor the Trustee nor any agent of the Corporation
or the Trustee shall be affected by any notice to the contrary.
The Corporation, the Trustee and any agent of the Corporation or
the Trustee may treat the Holder of any Unregistered Security and
the Holder of any Coupon as the absolute owner of such
Unregistered Security or Coupon (whether or not such Unregistered
Security or Coupon shall be overdue) for the purpose of receiving
payment thereof or on account thereof and for all other purposes
and neither the Corporation, the Trustee, nor any agent of the
Corporation or the Trustee shall be affected by any notice to the
contrary. All such payments so made to any such Person, or upon
his order, shall be valid, and, to the extent of the sum or sums
so paid, effectual to satisfy and discharge the liability for
moneys payable upon any such Unregistered Security or Coupon.
SECTION D. Securities Owned by Corporation Deemed
Not Outstanding. In determining whether the Holders of the
requisite aggregate principal amount of Outstanding Securities of
any or all Series have concurred in any direction, consent or
waiver under this Indenture, Securities which are owned by the
Corporation or any other obligor on the Securities with respect
to which such determination is being made or by any Person
directly or indirectly controlling or controlled by or under
direct or indirect common control with the Corporation or any
other obligor on the Securities with respect to which such
determination is being made shall be disregarded and deemed not
to be Outstanding for the purpose of any such determination,
except that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, consent or
waiver only Securities which the Trustee knows are so owned shall
be so disregarded. Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's
right so to act with respect to such Securities and that the
pledgee is not the Corporation or any other obligor upon the
Securities or any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the
Corporation or any other obligor on the Securities.
SECTION E. Right of Revocation of Action Taken. At
any time prior to (but not after) the evidencing to the Trustee,
as provided in Section 7.1, of the taking of any action by the
Holders of the percentage in aggregate principal amount of the
Securities of any or all Series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a
Security the serial number of which is shown by the evidence to
be included among the serial numbers of the Securities the
Holders of which have consented to such action may, by filing
written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article, revoke such action so far as
concerns such Security. Except as aforesaid any such action
taken by the Holder of any Security shall be conclusive and
binding upon such Holder and upon all future Holders and owners
of such Security and of any Securities issued in exchange or
substitution therefor, irrespective of whether or not any
notation in regard thereto is made upon any such Security. Any
action taken by the Holders of the percentage in aggregate
principal amount of the Securities of any or all Series, as the
case may be, specified in this Indenture in connection with such
action shall be conclusively binding upon the Corporation, the
Trustee and the Holders of all the Securities affected by such
action.
ARTICLE VIII.
SUPPLEMENTAL INDENTURES
SECTION A. Supplemental Indentures Without Consent
of Securityholders. The Corporation, when authorized by a
resolution of its Board of Directors, and the Trustee for the
Securities of any and all Series may from time to time and at any
time enter into an indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act
as in force at the date of the execution thereof), in form
satisfactory to such Trustee, for one or more of the following
purposes:
1. to convey, transfer, assign, mortgage or pledge to
the Trustee as security for the Securities of one or more
Series any property or assets;
2. to evidence the succession of another corporation
to the Corporation, or successive successions, and the
assumption by the successor corporation of the covenants,
agreements and obligations of the Corporation pursuant to
Article IX;
3. to add to the covenants of the Corporation such
further covenants, restrictions, conditions or provisions
for the protection of the Holders of Securities of any or
all Series or of Coupons and, if such additional covenants
are to be for the benefit of less than all the Series of
Securities or Coupons stating that such covenants are being
added solely for the benefit of such Series;
4. to cure any ambiguity or to correct or supplement
any provision contained herein or in any supplemental
indenture which may be defective or inconsistent with any
other provision contained herein or in any supplemental
indenture; or to make such other provisions in regard to
matters or questions arising under this Indenture or under
any supplemental indenture as the Board of Directors may
deem necessary or desirable and which shall not materially
and adversely affect the interests of the Holders of the
Securities or Coupons;
5. to establish the form or terms of Securities of
any Series or of the Coupons appertaining to such Securities
as permitted by Sections 2.1 and 2.3;
6. to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to
the Securities of one or more Series and to add to or change
any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of
the trusts hereunder by more than the one Trustee, pursuant
to the requirements of Section 6.8; or
7. to change or eliminate any of the provisions of
this Indenture, provided that any such change or elimination
shall become effective only when there is no Outstanding
Security of any Series created prior to the execution of
such supplemental indenture which is entitled to the benefit
of such provision.
The Trustee is hereby authorized to join with the
Corporation in the execution of any such supplemental indenture,
to make any further appropriate agreements and stipulations which
may be therein contained and to accept the conveyance, transfer,
assignment, mortgage or pledge of any property thereunder, but
the Trustee 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.
Any supplemental indenture authorized by the provisions
of this Section may be executed without the consent of the
Holders of any of the Securities at the time Outstanding,
notwithstanding any of the provisions of Section 8.2.
SECTION B. Supplemental Indentures With Consent of
Securityholders. With the consent (evidenced as provided in
Article VII) of the Holders of not less than a majority in
aggregate principal amount of the Securities at the time
Outstanding of each Series affected by such supplemental
indenture (voting as one class), the Corporation, when authorized
by a resolution of its Board of Directors, and the Trustee for
such Series of Securities may, from time to time and at any time,
enter into an indenture or indentures supplemental hereto (which
shall conform to the provisions of the Trust Indenture Act as in
force at the date of execution thereof) for the purpose of adding
any provisions to or changing in any manner or eliminating any of
the provisions of this Indenture or of any supplemental
indenture or of modifying in any manner the rights of the Holders
of the Securities of each such Series or of the Coupons
appertaining to such Securities; provided, however, that no such
supplemental indenture shall (a) extend the Stated Maturity of
any Security, or reduce the principal amount thereof or any
premium thereon, or reduce the rate or extend the time of payment
of interest thereon, or reduce any amount payable on redemption
thereof, or make the principal thereof (including any amount in
respect of original issue discount), or interest thereon payable
in any coin or currency other than that provided in the
Securities and Coupons or in accordance with the terms thereof,
or reduce the amount of the principal of the Original Issue
Discount Security that would be due and payable upon an
acceleration of the Maturity thereof pursuant to Section 5.1 or
the amount thereof provable in bankruptcy pursuant to Section
5.2, or alter the provisions of Section 11.11, or impair or
affect the right of any Securityholder to institute suit for
payment thereof or, if the Securities provide therefor, any right
of repayment at the option of the Securityholder without the
consent of the Holder of each Security so affected, (b) reduce
the aforesaid percentage of Securities of any Series, the consent
of the Holders of which is required for any such supplemental
indenture, without the consent of the Holders of each Security so
affected or (c) modify the provisions of Article XIII hereof in a
manner which is materially adverse to the Holders of any Series
of Securities then Outstanding.
A supplemental indenture which changes or eliminates
any covenant or other provision of this Indenture which has
expressly been included solely for the benefit of one or more
particular Series of Securities, or which modifies the rights of
Holders of Securities of such Series, or of Coupons appertaining
to such Securities, with respect to such covenant or provision,
shall be deemed not to affect the rights under this Indenture of
the Holders of Securities of any other Series or of the Coupons
appertaining to such Securities.
Upon the request of the Corporation, accompanied by a
copy of a resolution of the Board of Directors certified by the
secretary or an assistant secretary of the Corporation
authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee for such Series of Securities of
evidence of the consent of Securityholders as aforesaid and other
documents, if any, required by Section 7.1, the Trustee for such
Series of Securities shall join with the Corporation in the
execution of such supplemental indenture unless such supplemental
indenture affects such Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case such Trustee may
in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
It shall not be necessary for the consent of the
Securityholders under this Section to approve the particular form
of any proposed supplemental indenture, but it shall be
sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Corporation and the
Trustee of any supplemental indenture pursuant to the provisions
of this Section, the Corporation shall give notice thereof (i) to
the Holders of then Outstanding Registered Securities of each
Series affected thereby, by mailing a notice thereof by first-
class mail to such Holders at their addresses as they shall
appear on the Security Register, (ii) if any Unregistered
Securities of a Series affected thereby are then Outstanding, to
the Holders thereof who have filed their names and addresses with
the Trustee, by mailing a notice thereof by first-class mail to
such Holders at such addresses as were so furnished to the
Trustee and (iii) if any Unregistered Securities of a Series
affected thereby are then Outstanding, to all Holders thereof, by
publication of a notice thereof at least once in an Authorized
Newspaper in the Borough of Manhattan, The City of New York and
at least once in an Authorized Newspaper in London (and, if
required by Section 3.5, at least once in an Authorized Newspaper
in Luxembourg), and in each case such notice shall set forth in
general terms the substance of such supplemental indenture. Any
failure of the Corporation to give such notice, or any defect
therein, shall not, however, in any way impair or affect the
validity of any such supplemental indenture.
SECTION C. Effect of Supplemental Indenture. Every
supplemental indenture executed pursuant to this Article VIII
shall conform to the requirements of the Trust Indenture Act.
Upon the execution of any supplemental indenture pursuant to the
provisions hereof, this Indenture shall be and be deemed to be
modified and amended in accordance therewith and the respective
rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Corporation and the
Holders of Securities of each Series affected thereby shall
thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and
all the terms and conditions of any such supplemental indenture
shall be and be deemed to be part of the terms and conditions of
this Indenture for any and all purposes.
SECTION D. Documents to Be Given to Trustee. The
Trustee, subject to the provisions of Sections 6.1 and 6.2, shall
receive an Officers' Certificate and an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed
pursuant to this Article VIII complies with the applicable
provisions of this Indenture.
SECTION E. Notation on Securities in Respect of
Supplemental Indentures. Securities of any Series authenticated
and delivered after the execution of any supplemental indenture
pursuant to the provisions of this Article VIII may bear, upon
the direction of the Corporation, a notation in form satisfactory
to the Trustee for the Securities of such Series as to any matter
provided for by such supplemental indenture. If the Corporation
or the Trustee shall so determine, new Securities of any Series
so modified as to conform, in the opinion of the Trustee and the
Corporation, to any modification of this Indenture contained in
any such supplemental indenture may be prepared by the
Corporation, authenticated by the Trustee and delivered in
exchange for the Securities of such Series then Outstanding.
SECTION F. Subordination Unimpaired. This
Indenture may not be amended to alter the subordination of any
Outstanding Securities without the written consent of each holder
of Senior Indebtedness then outstanding that would be materially
adversely affected thereby.
ARTICLE IX.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION A. Corporation May Consolidate, etc., on
Certain Terms. The Corporation may sell, convey or lease all or
substantially all of its assets to any Person, or consolidate
with or merge into, any other corporation, provided that in any
such case, (i) either the Corporation shall be the continuing
corporation, or the successor corporation or Person which
acquires by sale or conveyance all or substantially all of the
assets of the Corporation shall be a corporation or other entity
organized and validly existing under the laws of the United
States of America or any State thereof or the District of
Columbia and shall expressly assume the due and punctual payment
of the principal of and interest on 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 or observed by the Corporation by
supplemental indenture satisfactory to the Trustee, executed and
delivered to the Trustee by such corporation or entity, and (ii)
immediately after such merger or consolidation, or such sale,
conveyance or lease, no Event of Default, and no event which,
after notice or lapse of time or both, would become an Event of
Default, shall have occurred and be continuing.
SECTION B. Successor Corporation Substituted. In
case of any such consolidation, merger, sale, lease or
conveyance, and following such an assumption by the successor
corporation, such successor corporation shall succeed to and be
substituted for the Corporation, with the same effect as if it
had been named herein. Such successor corporation may cause to
be signed, and may issue either in its own name or in the name of
the Corporation prior to such succession any or all of the
Securities issuable hereunder which, together with any Coupons
appertaining thereto, theretofore shall not have been signed by
the Corporation and delivered to the Trustee; and, upon the order
of such successor corporation instead of the Corporation and
subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall
make available for delivery any Securities, together with any
Coupons appertaining thereto, which previously shall have been
signed and delivered by the officers of the Corporation to the
Trustee for authentication, and any Securities, together with any
Coupons appertaining thereto, which such successor corporation
thereafter shall cause to be signed and delivered to the Trustee
for that purpose. All of the Securities so issued, together with
any Coupons appertaining thereto, 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.
In the event of any such sale or conveyance (other than
conveyance by way of lease) the Corporation (or any successor
corporation which shall theretofore have become such in the
manner described in this Article) shall be discharged from all
obligations and covenants under this Indenture and the Securities
and may be liquidated and dissolved.
SECTION C. Opinion of Counsel to Trustee. The
Trustee, subject to the provisions of Sections 6.1 and 6.2, may
receive an Opinion of Counsel, prepared in accordance with
Section 11.5, as conclusive evidence that any such consolidation,
merger, sale, lease or conveyance, and any such assumption, and
any such liquidation or dissolution, complies with the applicable
provisions of this Indenture.
ARTICLE I
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION A. Satisfaction and Discharge of Indenture.
(A) If at any time (a) the Corporation shall have paid
or caused to be paid the principal of and interest on all the
Securities of any Series Outstanding hereunder and all unmatured
Coupons appertaining thereto (other than Securities of such
Series and Coupons appertaining thereto which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 2.9) as and when the same shall have become
due and payable, or (b) the Corporation shall have delivered to
the Trustee for cancellation all Securities of any Series
theretofore authenticated and all unmatured Coupons appertaining
thereto (other than any Securities of such Series and Coupons
appertaining thereto which have been destroyed, lost or stolen
and which shall have been replaced or paid as provided in Section
2.9) or (c) in the case of any Series of Securities where the
exact amount (including the currency of payment) of principal of
and interest due on such Securities can be determined at the time
of making the deposit referred to in clause (ii) below, (i) all
the Securities of such Series and all unmatured Coupons
appertaining thereto not theretofore delivered to the Trustee for
cancellation shall have become due and payable, or are by their
terms to become due and payable within one year or are to be
called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption, and (ii) the Corporation shall have irrevocably
deposited or caused to be deposited with the Trustee as trust
funds the entire amount (other than moneys repaid by the Trustee
or any Paying Agent to the Corporation in accordance with Section
10.4) or Government Obligations maturing as to principal and
interest in such amounts and at such times as will ensure the
availability of cash sufficient in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay
(A) the principal and interest on all Securities of such Series
and Coupons appertaining thereto on each date that such principal
or interest is due and payable and (B) any mandatory sinking fund
payments on the dates on which such payments are due and payable
in accordance with the terms of the Indenture and the Securities
of such Series and if, in any such case, the Corporation shall
also pay or cause to be paid all other sums payable hereunder by
the Corporation with respect to Securities of such Series, then
this Indenture shall cease to be of further effect with respect
to Securities of such Series (except as to (i) rights of
registration of transfer and exchange, and the Corporation's
right of optional redemption (provided the Corporation provides
sufficient funds to effect such optional redemption), (ii)
substitution of mutilated, defaced, destroyed, lost or stolen
Securities or Coupons, (iii) rights of Holders to receive
payments of principal thereof and interest thereon upon the
original stated due dates therefor (but not upon acceleration)
and remaining rights of the Holders to receive mandatory sinking
fund payments, if any, (iv) the rights, obligations and
immunities of the Trustee hereunder, and (v) the rights of the
Securityholders of such Series and Coupons appertaining thereto
as beneficiaries hereof with respect to the property so deposited
with the Trustee payable to all or any of them), and, subject to
Section 10.5, the Trustee, on demand of the Corporation
accompanied by an Officers' Certificate and an Opinion of Counsel
and at the cost and expense of the Corporation, shall execute
proper instruments acknowledging such satisfaction of and
discharging this Indenture with respect to such Series; provided,
that the rights of Holders of the Securities and Coupons to
receive amounts in respect of principal of and interest on the
Securities and Coupons held by them shall not be delayed longer
than required by then applicable mandatory rules or policies of
any securities exchange upon which the Securities are listed.
The Corporation agrees to reimburse the Trustee for any costs or
expenses thereafter reasonably and properly incurred and to
compensate the Trustee for any services thereafter reasonably and
properly rendered by the Trustee in connection with this
Indenture and the Securities of such Series.
(B) a. In addition to the provisions of Section
10.1(A), the Corporation may, at its option by or pursuant to, or
otherwise in a manner or by such Persons as may be authorized
pursuant to, one or more resolutions duly adopted by the Board of
Directors, at any time with respect to the Securities of any
Series, elect to have defeasance under subsection (ii) of this
Section 10.1(B) be applied to the Outstanding Securities of such
Series provided that provision therefor is made for such
application pursuant to Section 2.3 and the applicable conditions
thereto as set forth in this Section 10.1(B) have been satisfied.
b. Upon the Corporation's exercise of the option
referenced in Section 10.1(B)(i), the Corporation may terminate
its obligations under the Outstanding Securities of any Series
and this Indenture with respect to such Series on the date the
conditions set forth below are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the
Corporation shall be deemed to have paid and discharged the
entire indebtedness represented by the Outstanding Securities of
such Series and to have satisfied all its other obligations under
such Securities and this Indenture insofar as such Securities are
concerned (and the Trustee, at the expense and request of the
Corporation, shall execute proper instruments acknowledging the
same), except for the following: (1) the rights of Holders of
Outstanding Securities of such Series to receive payments in
respect of the principal of and interest on such Securities when
such payments are due, (2) the Corporation's obligations with
respect to such Securities under Sections 2.8, 2.9, 2.11, 3.2,
6.7, 10.4 and 10.5, (3) the rights, powers, trusts, duties and
immunities of the Trustee hereunder, and (4) this Section
10.1(B).
c. The following shall be the conditions to the
application of Section 10.1(B)(ii) to the Outstanding Securities
of such Series:
1. The Corporation shall have irrevocably deposited
or caused to be deposited with the Trustee (or another
trustee satisfying the requirements of Section 6.10 who
shall agree to comply with the provisions of this Section
and Section 10.1(B) applicable to it) under the terms of an
irrevocable trust agreement, as trust funds in trust solely
for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of Securities of such Series,
(i) cash in the currency or currency unit required, or (ii)
Government Obligations maturing as to principal and interest
in such amounts (payable in the currency in which the
Securities of such Series are payable) and at such times as
are sufficient, to pay the principal of and interest on the
Outstanding Securities of such Series to Maturity or
redemption, as the case may be, or (iii) a combination
thereof, in each case sufficient, in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, and which shall be
applied by the Trustee (or other qualifying trustee) to pay
and discharge, (x) the principal of and each installment of
principal of and interest, if any, on the Outstanding
Securities of such Series and Coupons appertaining thereto
on the Stated Maturity of such principal or installment of
principal or interest, if any, and (y) any mandatory sinking
fund payments or analogous payments applicable to the
Outstanding Securities of such Series on the day on which
such payments are due and payable in accordance with the
terms of this Indenture and of such Securities. Such
irrevocable trust agreement shall include, among other
things, (i) provision for the payments referenced in clauses
(x) and (y) of the immediately preceding sentence, (ii) the
payment of the reasonable expenses of the Trustee incurred
or to be incurred in connection with carrying out such trust
provisions, (iii) rights of registration, transfer,
substitution and exchange of Securities of such Series in
accordance with the terms stated in this Indenture and (iv)
continuation of the rights and obligations and immunities of
the Trustee as against the Holders of Securities of such
Series as stated in this Indenture.
2. No Event of Default or event which with notice or
lapse of time or both would constitute an Event of Default
with respect to the Securities of such Series shall have
occurred and be continuing on the date of such deposit or
shall occur as a result of such deposit or, insofar as
Sections 5.1(d) and 5.1(e) are concerned, at any time during
the period ending on the 91st day after the date of such
deposit (it being understood that this condition shall not
be deemed satisfied until the expiration of such period).
3. Such deposit or defeasance shall not result in a
breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument to
which the Corporation is a party or by which it is bound.
4. The Corporation shall have delivered to the
Trustee an Opinion of Counsel of recognized national
standing to the effect that Securityholders of such Series
will not recognize income, gain or loss for Federal income
tax purposes as a result of such deposit and discharge and
will be subject to Federal income tax on the same amounts
and in the same manner and at the same time as would have
been the case if such deposit and defeasance had not
occurred.
5. The Corporation shall have delivered to the
Trustee an Officers' Certificate and Opinion of Counsel,
each stating that all conditions precedent provided for
herein relating to the deposit and defeasance contemplated
by this Section 10.1(B) have been complied with.
SECTION B. Application by Trustee of Funds
Deposited for-Payment of Securities. Subject to Section 10.4,
all moneys deposited with the Trustee pursuant to Section 10.1
shall be held in trust and applied by it to the payment, either
directly or through any Paying Agent (including the Corporation
acting as its own Paying Agent), to the Holders of the particular
Securities of such Series and of Coupons appertaining thereto for
the payment or redemption of which such moneys have been
deposited with the Trustee, of all sums due and to become due
thereon for principal and interest; but such money need not be
segregated from other funds except to the extent required by law.
SECTION C. Repayment of Moneys Held by Paying
Agent. In connection with the satisfaction and discharge of this
Indenture with respect to Securities of any Series, all moneys
then held by any Paying Agent (other than the Corporation) under
the provisions of this Indenture with respect to such Series of
Securities shall, upon demand of the Corporation, be paid to the
Trustee and thereupon such Paying Agent shall be released from
all further liability with respect to such moneys.
SECTION D. Return of Unclaimed Moneys Held by
Trustee and Paying Agent. Any moneys deposited with or paid to
the Trustee or any Paying Agent (including the Corporation acting
as its own Paying Agent) for the payment of the principal of or
interest on any Security of any Series or Coupons attached
thereto and not applied but remaining unclaimed for two years
after the date upon which such principal or interest shall have
become due and payable, shall, upon the written request of the
Corporation, promptly be repaid to the Corporation by the Trustee
for such Series or such Paying Agent (except that with respect to
any amounts then held by the Corporation in trust as its own
Paying Agent no such request need be given and at such time the
Corporation shall be discharged from its duty to hold such moneys
in trust as Paying Agent), and the Holder of the Securities of
such Series and of any Coupons appertaining thereto shall, unless
otherwise required by mandatory provisions of applicable escheat
or abandoned or unclaimed property laws, thereafter look only to
the Corporation for any payment which such Holder may be entitled
to collect, and all liability of the Trustee or any Paying Agent
with respect to such moneys shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being
required to make any such repayment with respect to moneys
deposited with it for any payment (a) in respect of Registered
Securities of any Series, shall at the expense of the
Corporation, mail by first-class mail to Holders of such
Securities at their addresses as they shall appear on the
Security Register, and (b) in respect of Unregistered Securities
of any Series, shall at the expense of the Corporation cause to
be published once in an Authorized Newspaper in the Borough of
Manhattan, The City of New York and once in an Authorized
Newspaper in London (and if required by Section 3.5, once in an
Authorized Newspaper in Luxembourg), notice, that such moneys
remain and that, after a date specified therein, which shall not
be less than thirty days from the date of such mailing or
publication, any unclaimed balance of such money then remaining
will be repaid to the Corporation. Anything in this Article X to
the contrary notwithstanding, the Trustee shall deliver or pay to
the Corporation from time to time upon the written request of the
Corporation any money or Government Obligations held by it as
provided in Section 10.1(B)(iii) which, in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be
required to be deposited to effect such defeasance in accordance
with the provisions of this Indenture.
SECTION E. Reinstatement of Corporation's
Obligations. If the Trustee is unable to apply any funds or
Government Obligations in accordance with Section 10.1 by reason
of any legal proceeding or by reason of any order or judgment of
any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Corporation's
obligations under this Indenture and the Securities of any Series
for which such application is prohibited shall be revived and
reinstated as if no deposit had occurred pursuant to Section 10.1
until such time as the Trustee is permitted to apply all such
funds or Government Obligations in accordance with Section 10.1;
provided, however, that if the Corporation has made any payment
of interest on or principal of any of such Securities because of
the reinstatement of its obligations, the Corporation shall be
subrogated to the rights of the Securityholders of such
Securities to receive such payment from the funds or Government
Obligations held by the Trustee.
ARTICLE XI.
MISCELLANEOUS PROVISIONS
SECTION A. Incorporators, Stockholders, Officers
and Directors of Corporation Exempt from Individual Liability.
No recourse under or upon any obligation, covenant or agreement
contained in this Indenture, in any Security, in any Coupon or
because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such or against any past, present or
future stockholder, officer or director, as such, of the
Corporation or of any successor, either directly or through the
Corporation or any successor, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment
or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance
of the Securities and the Coupons appertaining thereto by the
Holders thereof and as part of the consideration for the issue of
the Securities and the Coupons appertaining thereto.
SECTION B. Provisions of Indenture for the Sole
Benefit of Parties and Securityholders. Nothing in this
Indenture or in the Securities or the Coupons appertaining
thereto, expressed or implied, shall give or be construed to give
to any Person, firm or corporation, other than the parties
hereto, any Paying Agent and their successors hereunder, the
holders of Senior Indebtedness and the Holders of the Securities
or Coupons any legal or equitable right, remedy or claim under
this Indenture or under any covenant or provision herein
contained, all such covenants and provisions being for the sole
benefit of the parties hereto and their successors and of the
Holders of the Securities or Coupons.
SECTION C. Successors and Assigns of Corporation
Bound by Indenture. All the covenants, stipulations, promises
and agreements in this Indenture contained by or on behalf of the
Corporation shall bind its successors and assigns, whether so
expressed or not.
SECTION D. Notices and Demands on Corporation,
Trustee and Securityholders. Any notice or demand which by any
provision of this Indenture is required or permitted to be given
or served by the Trustee or by the Holders of Securities or
Coupons to or on the Corporation may be given or served by being
deposited postage prepaid, first-class mail (except as otherwise
specifically provided herein) addressed (until another address of
the Corporation is filed by the Corporation with the Trustee) to
USG Corporation, 125 South Franklin Street, Chicago, Illinois
60606-4678, Attention: _________________. Any notice, direction,
request or demand by the Corporation or any Securityholder to or
upon the Trustee shall be deemed to have been sufficiently given
or made, for all purposes, if given or made at the Corporate
Trust Office.
Where this Indenture provides for notice to Holders of
Registered Securities of any event such notice shall be
sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed by first-class mail, postage prepaid to
such Holders as their names and addresses appear in the Security
Register within the time prescribed. Where this Indenture
provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be
filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon
such waiver. In any case where notice to Holders is given by
mail, neither the failure to mail such notice, nor any defect in
any notice so mailed to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders, and any
notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given.
In case, by reason of the suspension of or
irregularities in regular mail service, it shall be impracticable
to mail notice to the Corporation and Securityholders when such
notice is required to be given pursuant to any provision of this
Indenture, then any manner of giving such notice as shall be
reasonably acceptable to the Trustee shall be deemed to be a
sufficient giving of such notice.
SECTION E. Officers' Certificates and Opinions of
Counsel; Statements to Be Contained Therein. Upon any
application or demand by the Corporation to the Trustee to take
any action under any of the provisions of this Indenture, the
Corporation shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent, if any, provided for in
this Indenture relating to the proposed action have been complied
with and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or
demand as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating
to such particular application or demand, no additional
certificate or opinion need be furnished.
Each certificate or opinion provided for in this
Indenture and delivered to the Trustee with respect to compliance
with a condition or covenant provided for in this Indenture shall
include (a) a statement that the Person making such certificate
or opinion has read such covenant or condition and the
definitions herein relating thereto, (b) 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, (c) a statement that, in the opinion of such
Person, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied with
and (d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of
the Corporation may be based, insofar as it relates to legal
matters, upon a certificate or opinion of or representations by
counsel, unless such officer knows that the certificate or
opinion or representations with respect to the matters upon which
his certificate, statement or opinion may be based as aforesaid
are erroneous, or in the exercise of reasonable care should know
that the same are erroneous. Any certificate, statement or
Opinion of Counsel may be based, insofar as it relates to factual
matters or information with respect to which is in the
possession of the Corporation, upon the certificate, statement or
opinion of or representations by an officer or officers of the
Corporation, unless such counsel knows that the certificate,
statement or opinion or representations with respect to the
matters upon which his certificate, statement or opinion may be
based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of
the Corporation or of counsel may be based, insofar as it relates
to accounting matters, upon a certificate or opinion of or
representations by an accountant or firm of accountants in the
employ of the Corporation, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or
representations with respect to the accounting matters upon which
his certificate, statement or opinion may be based as aforesaid
are erroneous, or in the exercise of reasonable care should know
that the same are erroneous.
Any certificate or opinion of any independent firm of
public accountants filed with and directed to the Trustee shall
contain a statement that such firm is independent.
SECTION F. Payments Due on Saturdays, Sundays and
Holidays. Unless otherwise specified in a Security, if the date
of Maturity of interest on or principal of the Securities of any
Series or any Coupons appertaining thereto or the date fixed for
redemption or repayment of any such Security or Coupon shall not
be a Business Day, then payment of interest or principal need not
be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the
date of Maturity or the date fixed for redemption, and no
interest shall accrue for the period after such date.
SECTION G. Conflict of Any Provision of Indenture
with Trust Indenture Act. If and to the extent that any
provision of this Indenture limits, qualifies or conflicts with
another provision included in this Indenture which is required by
the Trust Indenture Act, such required provision shall control.
SECTION H. New York Law to Govern. This Indenture
and each Security and any Coupon appertaining thereto shall be
deemed to be a contract under the laws of the State of New York,
and for all purposes shall be construed in accordance with the
laws of such State.
SECTION I. Counterparts. This Indenture may be
executed in any number of counterparts, each of which shall be an
original; but such counterparts shall together constitute but one
and the same instrument.
SECTION J. Effect of Headings; Gender. The Article
and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
The use of the masculine, feminine or neuter gender herein shall
not limit in any way the applicability of any term or provision
hereof.
SECTION K. Securities in a Foreign Currency or in
ECU. Unless otherwise specified in an Officers' Certificate
delivered pursuant to Section 2.3 of this Indenture with respect
to a particular Series of Securities, whenever for purposes of
this Indenture any action may be taken by the Holders of a
specified percentage in aggregate principal amount of Securities
of all Series or all Series affected by a particular action at
the time Outstanding and, at such time, there are Outstanding
Securities of any Series which are denominated in a coin or
currency other than Dollars (including ECUs), then the principal
amount of Securities of such Series which shall be deemed to be
Outstanding for the purpose of taking such action shall be that
amount of Dollars that could be obtained for such amount at the
Market Exchange Rate. For purposes of this Section 11.11,
"Market Exchange Rate" shall mean the noon Dollar buying rate for
that currency for cable transfers quoted in The City of New York
as certified for customs purposes by the Federal Reserve Bank of
New York; provided, however, in the case of ECUs, "Market
Exchange Rate" shall mean the rate of exchange determined by the
Commission of the European Communities (or any successor thereto)
as published in the Official Journal of the European Communities
(such publication or any successor publication, the "Journal").
If such Market Exchange Rate is not available for any reason with
respect to such currency, the Trustee shall use, in its sole
discretion and without liability on its part, such quotation of
the Federal Reserve Bank of New York or, in the case of ECUs, the
rate of exchange as published in the Journal, as of the most
recent available date, or quotations or, in the case of ECUs,
rates of exchange from one or more major banks in The City of New
York or in the country of issue of the currency in question,
which for purposes of the ECU shall be Brussels, Belgium, or such
other quotations or, in the case of ECU, rates of exchange as the
Trustee shall deem appropriate. The provisions of this paragraph
shall apply in determining the equivalent principal amount in
respect of Securities of a Series denominated in a currency other
than Dollars in connection with any action taken by holders of
Securities pursuant to the terms of this Indenture.
All decisions and determinations of the Trustee
regarding the Market Exchange Rate or any alternative
determination provided for in the preceding paragraph shall be in
its sole discretion and shall, in the absence of manifest error,
be conclusive for all purposes and irrevocably binding upon the
Corporation and all Holders.
ARTICLE XII.
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION A. Applicability of Article. The
provisions of this Article shall be applicable to the Securities
of any Series which are redeemable before their final Maturity or
to any sinking fund for the retirement of Securities of a Series
except as otherwise specified as contemplated by Section 2.3 for
Securities of such Series.
SECTION B. Election to Redeem; Notice of
Redemption; Partial Redemptions. The election of the Corporation
to redeem any Securities shall be evidenced by, or pursuant to, a
resolution of the Board of Directors. Notice of redemption to
the Holders of Registered Securities of any Series required to be
redeemed or to be redeemed as a whole or in part at the option of
the Corporation shall be given by giving notice of such
redemption as provided in Section 11.4, at least 30 days and not
more than 60 days prior to the date fixed for redemption to such
Holders of Securities of such Series. Notice of redemption to
the Holders of Unregistered Securities to be redeemed as a whole
or in part, who have filed their names and addresses with the
Trustee, shall be given by mailing notice of such redemption, by
first class mail, postage prepaid, at least 30 days and not more
than 60 days prior to the date fixed for redemption, to such
Holders at such addresses as were so furnished to the Trustee
(and, in the case of any such notice given by the Corporation,
the Trustee shall make such information available to the
Corporation for such purpose). Notice of redemption to all other
Holders of Unregistered Securities shall be published in an
Authorized Newspaper in the Borough of Manhattan, The City of New
York and in an Authorized Newspaper in London (and, if required
by Section 3.5, in an Authorized Newspaper in Luxembourg), in
each case, once in each of three successive calendar weeks, the
first publication to be not less than thirty nor more than sixty
days prior to the date fixed for redemption. Any notice which is
mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the Holder
receives the notice. Failure to give notice by mail, or any
defect in the notice to the Holder of any Security of a Series
designated for redemption as a whole or in part shall not affect
the validity of the proceedings for the redemption of any other
Security of such Series.
The notice of redemption to each such Holder shall
specify the date fixed for redemption, the "CUSIP" number or
numbers for such Securities, the redemption price, the Place or
Places of Payment, that payment will be made upon presentation
and surrender of such Securities, and, in the case of Securities
with Coupons attached thereto, of all Coupons appertaining
thereto maturing after the date fixed for redemption, that such
redemption is pursuant to the mandatory or optional sinking fund,
or both, if such be the case, that interest accrued to the date
fixed for redemption will be paid as specified in such notice and
that on and after said date interest thereon or on the portions
thereof to be redeemed will cease to accrue. If less than all of
the Securities of any Series are to be redeemed, the notice of
redemption shall specify the numbers of the Securities of such
Series to be redeemed. In case any Security of a Series is to be
redeemed in part, the notice of redemption shall state the
portion of the principal amount thereof to be redeemed and shall
state that on and after the date fixed for redemption, upon
surrender of such Security, a new Security or Securities of such
Series in principal amount equal to the unredeemed portion
thereof will be issued.
The notice of redemption of Securities of any Series to
be redeemed at the option of the Corporation shall be given by
the Corporation or, at the Corporation's request, by the Trustee
in the name and at the expense of the Corporation. If such
notice is to be given by the Trustee, the Corporation shall
provide notice of such redemption to the Trustee at least 45 days
prior to the date fixed for redemption (unless a shorter notice
shall be satisfactory to the Trustee). If such notice is given
by the Corporation, the Corporation shall provide a copy of such
notice given to the Holders of such redemption to the Trustee at
least 2 days prior to the date such notice is given to such
Holders, but in any event at least 15 days prior to the date
fixed for redemption (unless a shorter notice shall be
satisfactory to the Trustee).
Unless otherwise specified pursuant to Section 2.3, not
later than the redemption date specified in the notice of
redemption given as provided in this Section, the Corporation
will have on deposit with the Trustee or with one or more Paying
Agents (or, if the Corporation is acting as its own Paying Agent,
set aside, segregate and hold in trust as provided in Section
3.3) in funds available on such date, an amount of money
sufficient to redeem on the redemption date all the Securities of
such Series so called for redemption at the appropriate
redemption price, together with accrued interest to the date
fixed for redemption. If less than all the Outstanding
Securities of a Series are to be redeemed at the election of the
Corporation, the Corporation will deliver to the Trustee at least
60 days prior to the date fixed for redemption an Officers'
Certificate stating the aggregate principal amount of Securities
to be redeemed.
If less than all the Securities of a Series are to be
redeemed, the Trustee shall select, in such manner as it shall
deem appropriate and fair, Securities of such Series to be
redeemed in whole or in part and the Trustee shall promptly
notify the Corporation in writing of the Securities of such
Series selected for redemption and, in the case of any Securities
of such Series selected for partial redemption, the principal
amount thereof to be redeemed. However, if less than all the
Securities of any Series with differing issue dates, interest
rates and stated maturities are to be redeemed, the Corporation
in its sole discretion shall select the particular Securities to
be redeemed and shall notify the Trustee in writing thereof at
least 45 days prior to the relevant redemption date. Securities
may be redeemed in part in multiples equal to the minimum
authorized denomination for Securities of such Series or any
multiple thereof. For all purposes of this Indenture, unless the
context otherwise requires, all provisions relating to the
redemption of Securities of any Series shall relate, in the case
of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been
or is to be redeemed. If any Security selected for partial
redemption is surrendered for conversion after such selection,
the converted portion of such Security shall be deemed (so far as
may be) to be the portion selected for redemption.
SECTION C. Payment of Securities Called for
Redemption. If notice of redemption has been given as above
provided, the Securities or portions of Securities specified in
such notice shall become due and payable on the date and at the
place stated in such notice at the applicable redemption price,
together with interest accrued to the date fixed for redemption,
and on and after said date (unless the Corporation shall default
in the payment of such Securities at the redemption price,
together with interest accrued to said date) interest on the
Securities or portions of Securities so called for redemption
shall cease to accrue, and the unmatured Coupons, if any,
appertaining thereto shall be void, and, except as provided in
Sections 6.1 and 10.4, such Securities shall cease from and after
the date fixed for redemption to be entitled to any benefit or
security under this Indenture, and the Holders thereof shall have
no right in respect of such Securities except the right to
receive the redemption price thereof and unpaid interest to the
date fixed for redemption. on presentation and surrender of such
Securities at a Place of Payment specified in said notice,
together with all Coupons, if any, appertaining thereto maturing
after the date fixed for redemption, said Securities or the
specified portions thereof shall be paid and redeemed by the
Corporation at the applicable redemption price, together with
interest accrued thereon to the date fixed for redemption;
provided that, payment of interest becoming due on or prior to
the date fixed for redemption shall be payable in the case of
Securities with Coupons attached thereto, to the Holders of
Coupons for such interest upon surrender thereof, and in the case
of Registered Securities, to the Holders of such Registered
Securities registered as such on the relevant record date subject
to the terms and provisions of Section 2.7 hereof.
If any Security called for redemption shall not be so
paid upon surrender thereof for redemption, the principal shall,
until paid or duly provided for, bear interest from the date
fixed for redemption at the rate of interest or yield to maturity
(in the case of an Original Issue Discount Security) borne by
such Security.
Upon presentation of any Security redeemed in part
only, the Corporation shall execute and the Trustee shall
authenticate and make available for delivery to or on the order
of the Holder thereof, at the expense of the Corporation, a new
Security or Securities, of authorized denominations, in principal
amount equal to the unredeemed portion of the Security so
presented.
SECTION D. Exclusion of Certain Securities from
Eligibility for Selection for Redemption. Securities shall be
excluded from eligibility for selection for redemption if they
are identified by registration and certificate number in a
written statement signed by an authorized officer of the
Corporation and delivered to the Trustee at least 30 days prior
to the last date on which notice of redemption may be given as
being owned of record and beneficially by, and not pledged or
hypothecated by, either (a) the Corporation or (b) an entity
specifically identified in such written statement as directly or
indirectly controlling or controlled by or under direct or
indirect common control with the Corporation.
SECTION E. Mandatory and Optional Sinking Funds.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any Series is herein referred to as a
"mandatory sinking fund payment", and any payment in excess of
such minimum amount provided for by the terms of Securities of
any Series is herein referred to as an "optional sinking fund
payment". The date on which a sinking fund payment is to be made
is herein referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory
sinking fund payment with respect to any Series of Securities in
cash, the Corporation may at its option (a) deliver to the
Trustee Securities of such Series theretofore purchased or
otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Corporation or receive credit for
Securities of such Series (not previously so credited)
theretofore purchased or otherwise acquired (except as aforesaid)
by the Corporation and delivered to the Trustee for cancellation
pursuant to Section 2.10, (b) receive credit for optional sinking
fund payments (not previously so credited) made pursuant to this
Section, or (c) receive credit for Securities of such Series (not
previously so credited) redeemed by the Corporation through any
optional redemption provision contained in the terms of such
Series. Securities so delivered or credited shall be received or
credited by the Trustee at the sinking fund redemption price
specified in such Securities.
On or before the sixtieth day next preceding each
sinking fund payment date for any Series of Securities, the
Corporation will deliver to the Trustee a written statement
(which need not contain the statements required by Section 11.5)
signed by an authorized officer of the Corporation (a) specifying
the portion of the mandatory sinking fund payment to be satisfied
by payment of cash (except as otherwise specified pursuant to
Section 2.3 for the Securities of such Series), and the portion
to be satisfied by delivery or credit of Securities of such
Series, (b) stating that none of the Securities of such Series
for which credit is sought has theretofore been so credited, (c)
stating that no defaults in the payment of interest or Events of
Default with respect to such Series have occurred (which have not
been waived or cured) and are continuing, (d) stating whether or
not the Corporation intends to exercise its right to make an
optional sinking fund payment with respect to such Series and, if
so, specifying the amount of such optional sinking fund payment
which the Corporation intends to pay on or before the next
succeeding sinking fund payment date and (e) specifying such
sinking fund payment date. Any Securities of such Series to be
credited and required to be delivered to the Trustee in order for
the Corporation to be entitled to credit therefor as aforesaid
which have not theretofore been delivered to the Trustee shall be
delivered for cancellation pursuant to Section 2.10 to the
Trustee with such written statement. Such written statement
shall be irrevocable and upon its receipt by the Trustee the
Corporation shall become unconditionally obligated to make all
the cash payments or payments therein referred to, if any, on or
before the next succeeding sinking fund payment date. Failure of
the Corporation, on or before any such sixtieth day, to deliver
such written statement and Securities specified in this
paragraph, if any, shall not constitute a default but shall
constitute, on and as of such date, the irrevocable election of
the Corporation (i) that the mandatory sinking fund payment for
such Series due on the next succeeding sinking fund payment date
shall be paid entirely in cash without the option to deliver or
credit Securities of such Series in respect thereof and (ii) that
the Corporation will make no optional sinking fund payment with
respect to such Series as provided in this Section.
If the sinking fund payment or payments (mandatory or
optional or both) to be made in cash on the next succeeding
sinking fund payment date plus any unused balance of any
preceding sinking fund payments made in cash shall exceed
$100,000 (or the equivalent thereof in any Foreign Currency or
ECU or a lesser sum in Dollars or in any Foreign Currency or ECU
if the Corporation shall so request) with respect to the
Securities of any particular Series, such cash shall be applied
on the next succeeding sinking fund payment date to the
redemption of Securities of such Series at the sinking fund
redemption price together with accrued interest to the date fixed
for redemption. If such amount shall be $100,000 (or the
equivalent thereof in any Foreign Currency or ECU) or less and
the Corporation makes no such request then it shall be carried
over until a sum in excess of $100,000 (or the equivalent thereof
in any Foreign Currency or ECU), is available. The Trustee shall
select, in the manner provided in Section 12.2 and giving effect
to any exclusions required pursuant to Section 12.4, for
redemption on such sinking fund payment date a sufficient
principal amount of Securities of such Series to absorb said
cash, as nearly as may be possible, and shall (if requested in
writing by the Corporation) inform the Corporation of the serial
numbers of the Securities of such Series (or portions thereof) so
selected. The Trustee, in the name and at the expense of the
Corporation (or the Corporation, if it shall so notify the
Trustee in writing) shall cause notice of redemption of the
Securities of such Series to be given in substantially the manner
provided in Section 12.2 (and with the effect provided in Section
12.3) for the redemption of Securities of such Series at the
option of the Corporation. The amount of any sinking fund
payments not so applied or allocated to the redemption of
Securities of such Series shall be added to the next cash sinking
fund payment for such Series and, together with such payment,
shall be applied in accordance with the provisions of this
Section. Any and all sinking fund moneys held on the Stated
Maturity date of the Securities of any particular Series (or
earlier, if such Maturity is accelerated), which are not held for
the payment or redemption of particular Securities of such Series
shall be applied, together with other moneys, if necessary,
sufficient for the purpose, to the payment of the principal of,
and interest on, the Securities of such Series at Maturity.
Unless otherwise specified pursuant to Section 2.3, not
later than the sinking fund payment date, the Corporation shall
have paid to the Trustee in cash or shall otherwise provide in
funds available on such date for the payment of all principal and
interest accrued to the date fixed for redemption on Securities
to be redeemed on such sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed
any Securities of a Series with sinking fund moneys or mail or
publish any notice of redemption of Securities for such Series by
operation of the sinking fund during the continuance of a default
in payment of interest on such Securities or of any Event of
Default except that, where the mailing or publication of notice
of redemption of any Securities shall theretofore have been made,
the Trustee shall redeem or cause to be redeemed such Securities,
provided that it shall have received from the Corporation a sum
sufficient for such redemption. Except as aforesaid, any moneys
in the sinking fund for such Series at the time when any such
default or Event of Default shall occur, and any moneys
thereafter paid into the sinking fund, shall, during the
continuance of such default or Event of Default, be deemed to
have been collected under Article V and held for the payment of
all such Securities. In case such Event of Default shall have
been waived as provided in Section 5.9 or the default cured on or
before the sixtieth day preceding the sinking fund payment date
in any year, such moneys shall thereafter be applied on the next
succeeding sinking fund payment date in accordance with this
Section to the redemption of such Securities.
SECTION F. Repayment at the Option of the Holders.
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
10.1. shall not operate as a payment, redemption or satisfaction
of the indebtedness represented by such Securities unless and
until the Corporation, at its option, shall deliver or surrender
the same to the Trustee with a directive that such Securities be
cancelled.
ARTICLE XIII.
SUBORDINATION
SECTION A. Securities Subordinated to Senior
Indebtedness. The Corporation covenants and agrees that anything
in this Indenture or the Securities of any Series to the contrary
notwithstanding, the indebtedness evidenced by the Securities of
each Series is subordinate and junior in right of payment to all
Senior Indebtedness to the extent provided herein, and each
Holder of Securities of each Series, by his acceptance thereof,
whether upon original issue or upon transfer or assignment
thereof, likewise covenants and agrees to the subordination
herein provided and shall be bound by the provisions hereof.
If the Corporation shall default in the payment of any
principal of or interest on any Senior Indebtedness when the same
becomes due and payable, whether at Maturity or at a date fixed
for prepayment or by declaration of acceleration or otherwise,
then, upon written notice of such default to the Corporation by
the holders of Senior Indebtedness or any trustee therefor,
unless and until such default shall have been cured or waived or
shall have ceased to exist, no direct or indirect payment (in
cash, property, securities, by setoff or otherwise) shall be made
or agreed to be made on account of the principal of, premium, if
any, on, or interest on any of the Securities, or in respect of
any redemption, retirement, purchase or other acquisition of any
of the Securities other than those made in capital stock of the
Corporation (or cash in lieu of fractional shares thereof).
If (a) without the consent of the Corporation a court
having jurisdiction shall enter an order for relief with respect
to the Corporation under the Bankruptcy Code or without the
consent of the Corporation a court having jurisdiction shall
enter a judgment, order or decree adjudging the Corporation a
bankrupt or insolvent, or enter an order for relief for
reorganization, arrangement, adjustment or composition of or in
respect of the Corporation under the Bankruptcy Code or
applicable state insolvency law, or (b) the Corporation shall
institute proceedings for entry of an order for relief with
respect to the Corporation under the Bankruptcy Code or for an
adjudication of insolvency, or shall consent to the institution
of bankruptcy or insolvency proceedings against it, or shall file
a petition seeking, or seek or consent to reorganization,
arrangement, composition or relief under the Bankruptcy Code or
any applicable state law, or shall consent to the filing of such
petition or to the appointment of a receiver, custodian,
liquidator, assignee, trustee, sequestrator or similar official
(other than a custodian pursuant to 8 Delaware Code Sec. 226 or any
similar statute under other state laws) of the Corporation or of
substantially all of its property, or the Corporation shall make
a general assignment for the benefit of creditors as recognized
under the Bankruptcy Code, then all Senior Indebtedness
(including any interest thereon accruing after the commencement
of any such proceedings) shall first be paid in full before any
payment or distribution, whether in cash, securities or other
property (other than as described below), shall be made to any
Holder of any Securities on account thereof. Any payment or
distribution, whether in cash, securities or other property
(other than securities of the Corporation or any other
corporation provided for by a plan of reorganization or
readjustment the payment of which is subordinate, at least to the
extent provided in these subordination provisions with respect to
the indebtedness evidenced by the Securities, to the payment of
all Senior Indebtedness then outstanding and to any securities
issued in respect thereof under any such plan of reorganization
or readjustment) which would otherwise (but for these
subordination provisions) be payable or deliverable in respect of
the Securities of any Series shall be paid or delivered directly
to the holders of Senior Indebtedness in accordance with the
priorities then existing among such holders until all Senior
Indebtedness (including any interest thereon accruing after the
commencement of any such proceedings) shall have been paid in
full. In the event of any such proceeding, after payment in full
of all sums owing with respect to Senior Indebtedness, the Holder
of the Securities, together with the holders of any obligation of
the Corporation ranking on a parity with the Securities, shall be
entitled to be paid from the remaining assets of the Corporation
the amounts at the time due and owing on account of unpaid
principal of and interest, if any, on the Securities and such
other obligations before any payment or other distribution,
whether in cash, property or otherwise, shall be made on account
of any capital stock or any obligations of the Corporation
ranking junior to the Securities and such other obligations.
If, notwithstanding the foregoing, any payment or
distribution of any character, whether in cash, securities or
other property (other than securities of the Corporation or any
other corporation provided for by a plan of reorganization or
readjustment the payment of which is subordinate, at least to the
extent provided in these subordination provisions with respect to
the indebtedness evidenced by the Securities, to the payment of
all Senior Indebtedness then outstanding and to any securities
issued in respect thereof under any such plan of reorganization
or readjustment), shall be received by the Trustee or any Holder
in contravention of any of the terms hereof, such payment- or
distribution or security shall be received in trust for the
benefit of, and shall be paid over or delivered and transferred
to, the holders of the Senior Indebtedness then outstanding in
accordance with the priorities then existing among such holders
for application to the payment of all Senior Indebtedness
remaining unpaid, to the extent necessary to pay all such Senior
Indebtedness in full. In the event of the failure of the Trustee
or any Holder to endorse or assign any such payment, distribution
or security, each holder of Senior Indebtedness is hereby
irrevocably authorized to endorse or assign the same.
Nothing contained herein shall impair, as between the
Corporation and the Holders of Securities of each Series, the
obligation of the Corporation to pay to such Holders the
principal of and interest, if any, on such Securities or prevent
the Trustee or the Holder from exercising all rights, powers and
remedies otherwise permitted by applicable law or hereunder upon
a default or Event of Default hereunder, all subject to the
rights of the holders of the Senior Indebtedness to receive cash,
securities or other property otherwise payable or deliverable to
the Holders.
Senior Indebtedness shall not be deemed to have been
paid in full unless the holders thereof shall have received cash,
securities or other property equal to the amount of such Senior
Indebtedness then outstanding. Upon the payment in full of all
Senior Indebtedness, the Holders of Securities of each Series
shall be subrogated to all rights of any holders of Senior
Indebtedness to receive any further payments or distributions
applicable to the Senior Indebtedness until the indebtedness
evidenced by the Securities of such Series shall have been paid
in full, and such payments or distributions received by such
Holders, by reason of such subrogation, of cash, securities or
other property which otherwise would be paid or distributed to
the holders of Senior Indebtedness, shall as between the
Corporation and its creditors other than the holders of Senior
Indebtedness, on the one hand, and such Holders, on the other
hand, be deemed to be a payment by the Corporation on account of
Senior Indebtedness, and not on account of the Securities of such
Series.
The provisions of this Section 13.1 shall not impair
any rights, interests, remedies or powers of any secured creditor
of the Corporation in respect of any security interest the
creation of which is not prohibited by the provisions of this
Indenture.
The securing of any obligations of the Corporation,
otherwise ranking on a parity with the Securities or ranking
junior to the Securities, shall not be deemed to prevent such
obligations from constituting, respectively, obligations ranking
on a parity with the Securities or ranking junior to the
Securities.
SECTION B. Reliance on Certificate of Liquidating
Agent; Further Evidence as to Ownership of Senior Indebtedness.
Upon any payment or distribution of assets of the Corporation,
the Trustee and the Holders shall be entitled to rely upon an
order or decree issued by any court of competent jurisdiction in
which such dissolution or winding up or liquidation or
reorganization or arrangement proceedings are pending or upon a
certificate of the trustee in bankruptcy, receiver, assignee for
the benefit of creditors or other Person making such payment or
distribution, delivered to the Trustee or to the Holders, for the
purpose of ascertaining the Persons entitled to participate in
such distribution, the holders of the Senior Indebtedness and
other indebtedness of the Corporation, the amount thereof or
payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article
XIII. In the absence of any such bankruptcy trustee, receiver,
assignee or other Person, the Trustee shall be entitled to rely
upon a written notice by a Person representing himself to be a
holder of Senior Indebtedness (or a trustee or representative on
behalf of such holder) as evidence that such Person is a holder
of Senior Indebtedness (or is such a trustee or representative).
If the Trustee determines, in good faith, that further evidence
is required with respect to the right of any Person as a holder
of Senior Indebtedness to participate in any payment or
distributions pursuant to this Article XIII, the Trustee may
request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such Person, as to the extent to which such
Person is entitled to participate in such payment or
distribution, and as to other facts pertinent to the rights of
such Person under this Article XIII, and if such evidence is not
furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to
receive such payment.
SECTION C. Payment Permitted If No Default.
Nothing contained in this Article XIII or elsewhere in this
Indenture, or in any of the Securities, shall prevent (a) the
Corporation at any time, except during the pendency of any
default in the payment of any principal of or interest on any
Senior Indebtedness as described in Section 13.1 or of any of the
events described in clauses (a) and (b) of Section 13.1, from
making payments of the principal of or interest, if any, on the
Securities, or (b) the application by the Trustee or any Paying
Agent of any moneys deposited with it hereunder to payments of
the principal of or interest, if any, on the Securities, if, at
the time of such deposit, the Trustee or such paying agent, as
the case may be, did not have the written notice provided for in
Section 13.4 of any event prohibiting the making of such deposit,
or if, at the time of such deposit (whether or not in trust) by
the Corporation with the Trustee or Paying Agent (other than the
Corporation) such payment would not have been prohibited by the
provisions of this Article XIII, and the Trustee or any Paying
Agent shall not be affected by any notice to the contrary
received by it on or after such date.
SECTION D. Trustee Not Charged with Knowledge of
Prohibition. Anything in this Article XIII or elsewhere in this
Indenture to the contrary notwithstanding, the Trustee shall not
at any time be charged with knowledge of the existence of any
facts which would prohibit the making of any payment of money to
or by the Trustee and shall be entitled to assume conclusively
that no such facts exist and that no event specified in Section
13.1 has happened, until the Trustee shall have received an
Officers' Certificate to that effect or notice in writing to that
effect signed by or on behalf of the holder or holders, or their
representatives, of Senior Indebtedness who shall have been
certified by the Corporation or otherwise established to the
reasonable satisfaction of the Trustee to be such holder or
holders or representatives or from any trustee under any
indenture pursuant to which such Senior Indebtedness shall be
outstanding; provided, however, that, if the Trustee shall not
have received the Officers' Certificate or notice provided for in
this Section 13.4 prior to the third Business Day preceding the
date upon which by the terms hereof any money becomes payable
(including without limitation, the payment of either the
principal of or interest, if any, on any Security), or in the
event of the execution of an instrument pursuant to Section 10.1
acknowledging satisfaction and discharge of this Indenture, then
if prior to the third Business Day preceding the date of such
execution, the Trustee or any Paying Agent shall not have
received with respect to such money the officers Certificate or
notice provided for in this Section 13.4, then, anything herein
to the contrary notwithstanding, the Trustee or such Paying Agent
shall have full power and authority to receive such money and
apply the same to the purpose for which it was received and shall
not be affected by any notice to the contrary which may be
received by it on or after such date. The Corporation shall give
prompt written notice to the Trustee and to the Paying Agent of
any facts which would prohibit the payment of money to or by the
Trustee or any Paying Agent and the Trustee shall not be charged
with knowledge of the curing of any default or the elimination of
any other fact or condition preventing such payment or
distribution unless and until the Trustee shall have received an
Officers' Certificate to such effect.
SECTION E. Trustee to Effectuate Subordination.
Each Holder of Securities by his acceptance thereof authorizes
and directs the Trustee on his behalf to take such action as may
be necessary or appropriate to effectuate the subordination as
between such Holder and holders of Senior Indebtedness as
provided in this Article XIII and appoints the Trustee its
attorney-in-fact for any and all such purposes.
SECTION F. Rights of Trustee as Holder of Senior
Indebtedness. The Trustee shall be entitled to all the rights
set forth in this Article XIII with respect to any Senior
Indebtedness which may at the time be held by it, to the same
extent as any other holder of Senior Indebtedness and nothing in
this Indenture shall deprive the Trustee of any of its rights as
such holder, Nothing in this Article XIII shall apply to claims
of, or payments to, the Trustee under or pursuant to Section 6.7.
SECTION G. Article Applicable to Paying Agents. In
case at any time any Paying Agent other than the Trustee shall
have been appointed by the Corporation and be then acting
hereunder, the term "Trustee" as used in this Article XIII shall
in such case (unless the context shall otherwise require) be
construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if the
Paying Agent were named in this Article XIII in addition to or in
place of the Trustee; provided, however, that Sections 13.4 and
13.6 shall not apply to the Corporation if it acts as paying
agent.
SECTION H. Subordination Rights Not Impaired by
Acts or Omissions of the Corporation or Holders of Senior
Indebtedness. No right of any present or future holders of any
Senior Indebtedness to enforce subordination as herein provided
shall at any time in any way be prejudiced or impaired by any act
or failure to act on the part of the Corporation or by any act or
failure to act, in good faith, by any such holder, or by any
noncompliance by the Corporation with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof
which any such holder may have or be otherwise charged with. The
holders of Senior Indebtedness may, at any time or from time to
time and in their absolute discretion, change the manner, place
or terms of payment, change or extend the time of payment of, or
renew or alter, any such Senior Indebtedness, or amend or
supplement any instrument pursuant to which any such Senior
Indebtedness is issued or by which it may be secured, or release
any security therefor, or exercise or refrain from exercising any
other of their rights under the Senior Indebtedness, including,
without limitation, the waiver of default thereunder, all without
notice to or assent from the Holders of the Securities or the
Trustee and without affecting the obligations of the Corporation,
the Trustee or the Holders of Securities under this Article XIII.
SECTION I. Trustee Not Fiduciary for Holders of
Senior Indebtedness. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of the Senior Indebtedness, and
shall not be liable to any such holders if it shall mistakenly
pay over or distribute money or assets to Securityholders or the
Corporation. With respect to the holders of Senior Indebtedness,
the Trustee undertakes to perform or to observe only such of its
covenants or obligations as are specifically set forth in this
Article XIII and no implied covenants or obligations with respect
to holders of Senior Indebtedness shall be read into this
Indenture against the Trustee.
* * * * *
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate
seals to be hereto affixed and attested, all as of the day and
year first above written.
USG CORPORATION
By:
Name:
Title:
ATTEST:
By:
Name:
Title:
[CORPORATE SEAL]
,
as Trustee
By:
Name:
Title:
ATTEST:
By:
Name:
Title:
[CORPORATE SEAL]
EXHIBIT 5
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
To call writer direct: Facsimile
(312) 861-2087 (312) 861-2200
November 14, 1995
USG Corporation
125 South Franklin
Chicago, IL 60606-4678
Ladies and Gentlemen:
We have acted as special counsel to USG Corporation, a
Delaware corporation (the "Corporation"), in connection with a
Registration Statement on Form S-3 filed by the Corporation with
the Securities and Exchange Commission under the Securities Act
of 1933, as subsequently amended or supplemented (the
Registration Statement, as amended or supplemented is hereinafter
referred to as the "Registration Statement").
The Corporation has provided us with a draft prospectus
(the "Prospectus") which is a part of the Registration Statement.
The Prospectus provides that it will be supplemented in the
future by one or more supplements to the Prospectus (each a
"Prospectus Supplement"). The Prospectus as supplemented by
various Prospectus Supplements will provide for the registration
by the Corporation of up to $300,000,000 aggregate offering price
of (i) in one or more series, its debt securities consisting of
notes, debentures or other evidences of indebtedness (the "Debt
Securities"), (ii) shares of preferred stock, $1.00 par value per
share, in one or more series ("Preferred Stock"), (iii) shares of
common stock, $0.10 par value per share ("Common Stock"), or (iv)
warrants to purchase shares of Common Stock ("Warrants"). The
Debt Securities, Preferred Stock, Common Stock and Warrants are
collectively referred to herein as the "Securities." The Debt
Securities may be issued pursuant to one or more indentures
(collectively, the "Indentures"), in each case between the
Corporation and a trustee.
In that connection, we have examined originals, or
copies certified or otherwise identified to our satisfaction, of
such documents, corporate records and other instruments as we
have deemed necessary for the purposes of this opinion, including
(i) the Restated Certificate of Incorporation of the Corporation;
(ii) the By-laws of the Corporation; (iii) records of the
corporate proceedings of the Corporation with respect to the
Securities; (iv) the Registration Statement and exhibits thereto;
and (v) originals, or copies certified or otherwise identified to
our satisfaction, of such other documents, corporate records and
other instruments as we have deemed necessary for the purpose of
this opinion and such other matters of fact and law which we have
deemed necessary in order to render this opinion.
For purposes of this opinion, we have assumed the
authenticity of all documents submitted to us as originals, the
conformity to the originals of all documents submitted to us as
copies, and the authenticity of the originals of all documents
submitted to us as copies. We have also assumed the genuineness
of the signatures of persons signing all documents in connection
with which this opinion is rendered, the authority of such
persons signing on behalf of the parties thereto other than the
Corporation, and the due authorization, execution and delivery of
all documents by the parties thereto other than the Corporation.
Based on the foregoing, we are of the opinion that:
1. The Corporation is a corporation validly existing
and in good standing under the laws of the State of
Delaware.
2. When (a) the Registration Statement and any
required post-effective amendment(s) thereto and any and all
Prospectus Supplement(s) required by applicable laws have
all become effective under the Securities Act, and (b) when
the Debt Securities have been duly executed and delivered by
all parties thereto, and (c) assuming that the terms of the
Indentures as executed and delivered are as described in the
Registration Statement, the Prospectus and the related
Prospectus Supplement(s), and (d) assuming that the
Indentures as executed and delivered do not violate any law
applicable to the Corporation or result in a default under
or breach of any agreement or instrument binding upon the
Corporation, and (e) assuming that the Indentures as
executed and delivered comply with all requirements and
restrictions, if any, applicable to the Corporation, whether
imposed by any court or governmental or regulatory body
having jurisdiction over the Corporation, and (f) assuming
that the Debt Securities are then issued and sold as
contemplated in the Registration Statement, the Prospectus
and the related Prospectus Supplement(s), the Indentures
will constitute valid and legally binding obligations of the
Corporation, enforceable against the Corporation in
accordance with the terms of the Indentures.
3. When (a) the Debt Securities have been duly
established by the applicable Indentures (including, without
limitation, the adoption by the Board of Directors of the
Corporation, or a Special Committee authorized by the Board,
of a resolution duly authorizing the issuance and delivery
of the Debt Securities), duly authenticated by the trustee
and duly executed and delivered on behalf of the Corporation
against payment therefor in accordance with the terms and
provisions of the applicable Indenture and as contemplated
by the Registration Statement, the Prospectus and the
related Prospectus Supplement(s), and (b) when the
Registration Statement and any required post-effective
amendment(s) thereto and any and all Prospectus
Supplement(s) required by applicable laws have all become
effective under the Securities Act, and (c) assuming that
the terms of the Debt Securities as executed and delivered
are as described in the Registration Statement, the
Prospectus and the related Prospectus Supplement(s), and (d)
assuming that the Debt Securities as executed and delivered
do not violate any law applicable to the Corporation or
result in a default under or breach of any agreement or
instrument binding upon the Corporation, and (e) assuming
that the Debt Securities as executed and delivered comply
with all requirements and restrictions, if any, applicable
to the Corporation, whether imposed by any court or
governmental or regulatory body having jurisdiction over the
Corporation, and (f) assuming that the Debt Securities are
then issued and sold as contemplated in the Registration
Statement, the Prospectus and the related Prospectus
Supplement(s), the Debt Securities will constitute valid and
legally binding obligations of the Corporation, enforceable
against the Corporation in accordance with the terms of the
Debt Securities.
4. When (a) the Warrants have been duly executed and
delivered, and issued and sold in the form and in the manner
contemplated in the Registration Statement, the Prospectus
and the related Prospectus Supplement(s), and (b) when the
Registration Statement and any required post-effective
amendment(s) thereto and any and all Prospectus
Supplement(s) required by applicable law have all become
effective under the Securities Act, and (c) assuming that
the terms of the Warrants as executed and delivered are as
described in the Registration Statement, the Prospectus and
the related Prospectus Supplement(s), and (d) assuming that
the Warrants, as executed and delivered, do not violate any
law applicable to the Corporation or result in a default
under or breach of any agreement or instrument binding upon
the Corporation, and (e) assuming the Warrants as executed
and delivered comply with all requirements and restrictions,
if any, applicable to the Corporation, whether imposed by
any court or governmental or regulatory body having
jurisdiction over the Corporation, and (f) assuming that the
Warrants are then issued and sold as contemplated in the
Registration Statement, the Prospectus and the related
Prospectus Supplement(s), the Warrants will constitute valid
and binding obligations of the Corporation, enforceable
against the Corporation in accordance with their terms.
5. The Corporation has the authority pursuant to its
Restated Certificate of Incorporation, as amended, to issue
up to 36,000,000 shares of Preferred Stock. When a series
of Preferred Stock has been duly established in accordance
with the terms of the Restated Certificate of Incorporation
and applicable law, and upon adoption by the Board of
Directors of the Corporation, or a Special Committee
authorized by the Board, of a resolution in form and content
as required by applicable law and upon issuance and delivery
of and payment for such shares in the manner contemplated by
the Registration Statement, the Prospectus and the related
Prospectus Supplement(s) and by such resolution, such shares
of such series of Preferred Stock will be validly issued,
fully paid and nonassessable.
6. The Corporation has the authority pursuant to its
Restated Certificate of Incorporation to issue up to
200,000,000 shares of Common Stock. Upon adoption by the
Board of Directors of the Corporation, or a Special
Committee authorized by the Board, of a resolution in form
and content as required by applicable law and upon issuance
and delivery of and payment for such shares in the manner
contemplated by the Registration Statement, the Prospectus
and the related Prospectus Supplement(s) and by such
resolution, such shares of Common Stock will be validly
issued, fully paid and nonassessable.
All of the opinions set forth above are subject to the
following exceptions, limitations and qualifications:
(a) Our opinions are subject to the effect
of bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or
affecting creditors' rights (including,
without limitation, preference and fraudulent
conveyance or transfer laws).
(b) The binding effect and enforceability of
any agreement or document and the
availability of injunctive relief or other
equitable remedies thereunder are subject to
the effect of general principles of equity
(regardless of whether enforcement is
considered in proceeding at law or in
equity).
(c) The binding effect and the
enforceability of any agreement or document
are subject to the effect of laws and
judicial decisions which have imposed duties
and standards of conduct (including, without
limitation, obligations of good faith, fair
dealing and reasonableness).
(d) We express no opinion as to the
enforceability of cumulative remedies to the
extent such cumulative remedies purport to or
would have the effect of compensating the
party entitled to the benefits thereof in
amounts in excess of the actual loss suffered
by such party.
(e) Requirements that provisions may only be
waived in writing may not be valid, binding
or enforceable to the extent that an oral
agreement or an implied agreement by trade
practice or course of conduct has been
created modifying any provision of any
documents.
(f) Waivers of equitable rights and defenses
may not be valid, binding or enforceable
under state or federal law.
(g) We express no opinion as to the
enforceability of any indemnification
provisions.
To the extent that the obligations of the Corporation
under the Indentures may be dependent upon such matters, we
assume for purposes of this opinion that the trustee for each
Indenture is duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization; that
the trustee is duly qualified to engage in the activities
contemplated by the applicable Indenture; that the applicable
Indenture has been duly authorized, executed and delivered by the
trustee and constitutes a legally valid, binding and enforceable
obligation of the trustee, enforceable against the trustee in
accordance with its terms; that the trustee is in compliance,
generally and with respect to acting as trustee under the
applicable Indenture, with all applicable laws and regulations;
and that the trustee has the requisite organizational and legal
power and authority to perform its obligations under the
applicable Indenture.
We hereby consent to the filing of this opinion with
the Securities and Exchange Commission as an exhibit to the
Registration Statement and to the reference to this firm under
the caption "Legal Matters" in the Prospectus forming a part of
such Registration Statement.
We do not find it necessary for purposes of this
opinion, and accordingly do not purport to cover herein, the
application of the securities or "Blue Sky" laws of the various
states to issuance of the Securities.
We render no opinion as to the laws of any jurisdiction
other than the internal law of the State of Illinois and the
United States of America and the internal corporate law of the
State of Delaware.
This opinion is furnished to you in connection with the
filing of the Registration Statement, and is not to be used,
circulated, quoted or otherwise relied upon for any other
purpose.
Very truly yours,
KIRKLAND & ELLIS
Exhibit 12
USG Corporation
Ratio of Earnings To Fixed Charges
(Unaudited)
Dollars in millions
<TABLE>
<CAPTION>
Nine Months ended
September 30, 1993 Years Ended
Year ended May 7- Jan 1-
1995 1994 1994 Dec 31 May 6 1992 1991 1990
Earnings:
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Earnings/(Loss) before
taxes 72 (6) (38) (79) 657 (224) (194) (60)
Plus: Interest expense 77 103 149 92 86 334 333 292
Plus: Amortization of
capitalized financing
costs - - - (1) 2 6 7 8
Earnings (as defined) 149 97 111 12 745 116 146 240
Fixed Charges:
Interest expense 77 103 149 92 86 334 333 292
Amortization of capitalized
financing costs - - - (1) 2 6 7 8
Fixed Charges (as defined) 77 103 149 91 88 340 340 3
Ratio of Earnings to Fixed
Charges: 1.9 - - - 8.5 - - -
Earnings (as defined) 149 97 111 12 745 116 146 240
Less: Fixed Charges
(as defined) 77 103 149 91 88 340 340 300
Difference 72 (6) (38) (79) 657 (224) (194) (60)
</TABLE>
EXHIBIT 23(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our
reports dated January 26, 1995 included in USG Corporation's Form
10-K for the year ended December 31, 1994, and to all references
to our Firm included in this registration statement.
ARTHUR ANDERSEN LLP
Chicago, Illinois,
November 14, 1995
EXHIBIT 23(b)
November 14, 1995
USG Corporation
125 South Franklin Street
Chicago, Illinois 60660
We are aware that USG Corporation has incorporated by reference into its
Form S-3 Registration Statement its Forms 10-Q for the quarters ended
March 31, 1995, June 30, 1995, and September 30, 1995, which include our
reports dated April 21, 1995, July 21, 1995, and October 18, 1995
covering the unaudited interim financial information contained therein.
Pursuant to Regulation C of the Securities Act of 1933, those reports are
not considered a part of the registration statement prepared or certified
by our firm or reports prepared or certified by our firm within the
meaning of Sections 7 and 11 of the Act.
Very Truly Yours,
Arthur Andersen LLP
EXHIBIT 4(b)
[FORM OF FACE OF SENIOR DEBT SECURITY]
No. $
CUSIP
USG CORPORATION
% [ ] Due
USG Corporation, a Delaware corporation (herein called
the "Issuer", which term includes any successor corporation under
the Indenture hereinafter referred to), for value received, hereby
promises to pay to ______________ or registered assigns, the
principal sum of United States Dollars on
______________, and to pay interest, semiannually on ______________
and ______________ of each year, commencing ______________, on said
principal sum, at the rate per annum specified in the title of this
[ ], on a semiannual bond equivalent basis using a 360-day
year composed of twelve 30-day months from the ______________ or
the ______________, as the case may be, next preceding the date of
this [ ]to which interest has been paid, unless the date
hereof is a date to which interest has been paid, in which case
from the date of this [ ], or unless no interest has been paid
on this [ ], in which case from ______________,
______________, until payment of said principal sum has been made
or duly provided for. Payments of such principal and interest
shall be made at the office or agency of the Issuer in
______________, which, subject to the right of the Issuer to vary
or terminate the appointment of such agency, shall initially be at
the principal office of ______________ [, and subject to any laws
or regulations applicable thereto in the country of any such agency
and subject to the right of the Issuer to vary or terminate the
appointment of any such agency or to appoint additional and other
such agencies, at the main offices of ______________ in
______________]; provided, that payment of interest may be made at
the option of the Issuer by check mailed to the address of the
person entitled thereto as such address shall appear on the
Security Register. Notwithstanding the foregoing, if the date
hereof is after the _____ day of ______________ or ______________,
case may be, and before the following ______________ or
______________, this [ ] shall bear interest from such
______________; or provided, that if the Issuer shall default in
the payment of interest due on such ______________ or
______________, then this [______________] shall bear interest from
the next preceding ______________ or ______________, to which
interest has been paid or, if no interest has been paid on this
[ ], from ______________. The interest so payable on any
______________ or ______________, will, subject to certain
exceptions provided in the Indenture referred to on the reverse
hereof, be paid to the person in whose name this [is registered at
the close of business on the ______________ or ______________, as
the case may be, next preceding such ______________ or
______________. Reference is made to the further provisions of
this [______________] set forth on the reverse hereof. Such
further provisions shall for all purposes have the same effect as
though fully set forth at this place.
This [ ] shall not be valid or become obligatory for
any purpose until the certificate of authentication hereon shall
have been manually signed by the Trustee under the Indenture
referred to on the reverse hereof.
IN WITNESS WHEREOF, USG Corporation has caused this
instrument to be signed by facsimile by its duly authorized
officers and has caused a facsimile of its corporate seal to be
affixed hereunto or imprinted hereon.
USG CORPORATION
By:
ATTEST:
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the Series designated
herein referred to in the within-mentioned Indenture.
Dated: ________________________,
as Trustee
By:
Authorized Signatory
or
________________________,
as Trustee
By:
as Authentication Agent
By:
Authorized Signatory
<PAGE>
[FORM OF REVERSE OF DEBT SECURITY]
USG CORPORATION
% [ ] Due
This [ ] is one of a duly authorized issue of
debentures, notes, bonds or other evidences of indebtedness of the
Issuer (hereinafter called the "Securities") of the Series
hereinafter specified, all issued or to be issued under and
pursuant to an indenture dated as of __________ (herein called the
"Indenture"), duly executed and delivered by the Issuer to
______________, as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is
hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the
Issuer and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and
delivered. The Securities may be issued in one or more Series,
which different Series may be issued in various aggregate principal
amounts, may bear interest at different rates, which may be fixed
or variable, may be subject to different redemption provisions (if
any), may be subject to different sinking, purchase or analogous
funds (if any) and may otherwise vary as provided in the Indenture.
This [ ] is one of a Series designated as the _______%
[ ] Due __________ of the Issuer, limited in aggregate
principal amount to _____________.
In case an Event of Default with respect to the ______%
[______] Due _____________ shall have occurred and be continuing,
the principal hereof may be declared, and upon such declaration
shall become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Issuer
and the Trustee, with the consent of the Holders of a majority of
the aggregate principal amount of the Securities at the time
Outstanding of all Series to be affected (treated as one class),
evidenced as provided in the Indenture, to execute supplemental
indentures adding any provisions to or changing in any manner or
eliminating any of the provisions of the Indenture or of any
supplemental indenture or modifying in any manner the rights of the
Holders of the Securities of each such Series; provided, however,
that no such supplemental indenture shall (i) extend the Stated
Maturity of any Security, or reduce the principal amount thereof or
any premium thereon, or reduce the rate or extend the time of
payment of interest thereon, or reduce any amount payable upon
redemption thereof, or impair or affect the right of any Holder to
institute suit for the payment thereof or, if the Securities
provide therefor, any right of repayment at the option of the
Securityholder, without the consent of the Holder of each Security
so affected, or (ii) reduce the aforesaid percentage of Securities
of any Series, the Holders of which are required to consent to any
such supplemental indenture, without the consent of the Holder of
each Security affected. It is also provided in the Indenture that,
with respect to certain defaults or Events of Default regarding the
Securities of any Series, prior to any declaration accelerating the
maturity of such Securities, the Holders of a majority in aggregate
principal amount Outstanding of the Securities of such Series (or,
in the case of certain defaults or Events of Default, all or
certain Series of the Securities) may on behalf of the Holders of
all the Securities of such Series (or all or certain Series of
the Securities, as the case may be) waive any such past default or
Event of Default and its consequences. The preceding sentence
shall not, however, apply to a default in the payment of the
principal of or premium, if any, or interest on any of the
Securities. Any such consent or waiver by the Holder of this [ ]
(unless revoked as provided in the Indenture) shall be conclusive
and binding upon such Holder and upon all future Holders and owners
of this [ ] and any [ ] which may be issued in
exchange or substitution herefor, irrespective of whether or not
any notation thereof is made upon this [ ] or such
other [ ].
No reference herein to the Indenture, and no provision of
this [ ] or of the Indenture, shall alter or impair the
obligation of the Issuer, which is absolute and unconditional, to
pay the principal of [(and any premium, if any)] and interest on
this [ ] in the manner, at the respective times, at the rate,
and in the coin or currency herein prescribed.
The [ ] are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple of
$1,000. As provided in the Indenture, and subject to certain
limitations set forth therein, [ ] in registered form are
exchangeable for one or more new Securities of this Series and of
like tenor, for the same aggregate principal amount and of
authorized denominations, as requested by the Holder surrendering
the same at the agency of the Issuer in __________ [or _________].
No service charge shall be made for any such exchange, but the
Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
[The [ ] may be redeemed at the option of the Issuer
as a whole, or from time to time in part, on any date after _______
and prior to maturity, upon mailing a notice of such redemption not
less than 15 nor more than 60 days prior to the date fixed for
redemption to the Holders of [ ] at their last registered
addresses, all as further provided in the Indenture, at the
following redemption prices (expressed in percentages of the
principal amount) together in each case with accrued interest to
the date fixed for redemption:
If redeemed during the twelve-month period beginning
[__________]:
Year Percentage Year Percentage]
[The [_____________] are also subject to redemption,
through the operation of the sinking fund as herein provided on
_________ and on each __________ thereafter to and including
_________ on notice as set forth above and at 100% of the principal
amount thereof (the sinking fund redemption price), together with
accrued interest to the date fixed for redemption.]
[As and for a sinking fund for the retirement of the and
so long as any of the [__________] remain outstanding and unpaid,
the Issuer will pay to the Trustee in cash (subject to the right to
deliver certain [__________] in credit therefor as provided in the
Indenture), on or before ________ and on or before _________ in
each year thereafter to and including __________ an amount
sufficient to redeem $___________ principal amount of the
[____________] (or such lesser amount equal to the principal amount
then Outstanding) at the sinking fund redemption price.]
[At its option the Issuer may, in cash, pay into the
sinking fund for the retirement of [__________], except as provided
in the Indenture, on or before _______________ and on or before
_____________ in each year thereafter to and including
_______________, an amount sufficient to redeem an additional
principal amount of [_______________] up to but not to exceed
$__________ at the sinking fund redemption price. To the extent
that the right to such optional sinking fund payment is not
exercised in any year, it shall not be cumulative or carried
forward to any subsequent year.]
Upon due presentment for registration of transfer of this
[ ] at the office or agency of the Issuer in ___________
[or _____________], a new [ ] or [ ] of this Series of
authorized denominations for an equal aggregate principal amount
will be issued to the transferee in exchange therefor, subject to
the limitations provided in the Indenture, without charge except
for any tax or other governmental charge imposed in connection
therewith.
The Issuer, the Trustee and any agent of the Issuer or
the Trustee may deem and treat the registered Holder hereof as the
absolute owner of this [ ] (whether or not this [ ] shall
be overdue and notwithstanding any notation of ownership or other
writing hereon), for the purpose of receiving payment of, or on
account of, the principal hereof and premium, if any, and interest
hereon, and for all other purposes, and neither the Issuer nor the
Trustee nor any authorized agent of the Issuer or the Trustee shall
be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or
agreement of the Issuer in the Indenture or any indenture
supplemental thereto or in this [ ], or because of the
creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, officer or director, as
such, of the Issuer or of any successor corporation, either
directly or through the Issuer or any successor corporation, under
any rule of law, statute or constitutional provision or by the
enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such liability being expressly waived
and released by the acceptance hereof and as part of the
consideration for the issue hereof.
The Indenture with respect to any Series will be
discharged and cancelled except for certain Sections thereof,
subject to the terms of the Indenture, upon the payment of all the
Securities of such Series or upon the irrevocable deposit with the
Trustee of cash or Government Obligations (or a combination
thereof) sufficient for such payment in accordance with Article Ten
of the Indenture.
The Indenture and this [___________] shall be deemed to
be contracts made under the laws of the State of New York, and for
all purposes shall be governed by, and construed in accordance
with, the laws of such State.
Terms used herein which are defined in the Indenture
shall have the respective meanings assigned thereto in the
Indenture.
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto
Please Insert Social Security or
Other Identifying Number of Assignee
[________________________________________________________________
__] [Please Print or Typewrite Name and Address of Assignee]
the within [ ] and hereby does irrevocably constitute and
appoint ________________________________ Attorney to transfer said
[ ] on the books of the within-mentioned Company, with full
power of substitution in the premises.
Dated: _____________________ ___________________________________
*
__________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the
[ ] in every particular, without
alteration or enlargement or any
change whatever.
OPTION TO ELECT REPAYMENT
The undersigned hereby requests and instructs the
Corporation to repay this [ ] (or portion thereof specified
below) pursuant to its terms at a price equal to the principal
amount thereof, together with interest accrued to the date of
repayment, to the undersigned at:
________________________________________________________________.
(Please Print or Typewrite Name and Address of the Undersigned)
*Your signatures must be guaranteed by a member of the Medallion
System
For this [ ] to be repaid the Corporation must
receive, at the office of the Trustee, ______________, or at such
other place or places of which the Corporation shall from time to
time notify the Holder of this [ ], during the period from and
including [ ] to and including the close of business on [ ]
(or if [ ] is not a Business Day, the immediately preceding
Business Day), (i) this [ ] with this "Option to Elect
Repayment" form duly completed, or (ii) a communication in the form
specified above in this [ ]. The exercise of this "Option
to Elect Repayment" is irrevocable.
If less than the entire principal amount of this [ ]
is to be repaid, specify the portion thereof (which shall be in
increments of $1,000) which the Holder elects to have repaid:
$________; and specify the denomination or denominations (which
shall be in increments of $1,000) of the [ ] to be issued to
the Holder for the portion of this [ ] not being repaid (in the
absence of any such specification, one such [ ] will be issued
for the portion not being repaid): $__________.
Dated: __________________ ______________________________
*
______________________________
Note: The signature on this Option
to Elect Repayment must correspond
with the name as written upon the
face of this [ ] in every
particular without alteration or
enlargement.
Holder's Tax I.D. Number: ______
*Your signatures must be guaranteed by a member of the Medallion
System.
EXHIBIT 4(f)
[FORM OF FACE OF SUBORDINATED DEBT SECURITY]
No. $
CUSIP
USG CORPORATION
____% [ ] Due ____
USG Corporation, a Delaware corporation (herein called
the "Issuer", which term includes any successor corporation under
the Indenture hereinafter referred to), for value received,
hereby promises to pay to ___________ or registered assigns, the
principal sum of United States Dollars on interest, semiannually
on ___________, and to pay of each year, commencing ____________,
on said principal sum, at the rate per annum specified in the
title of his [ ], on a semiannual bond equivalent basis
using a 360-day year composed of twelve 30-day months from the
____________ or the ____________, as the case may be, next
preceding the date of this [ ], to which interest has been
paid, unless the date hereof is a date to which interest has been
paid, in which case from the date of this [ ], or unless no
interest has been paid on this [ ], in which case from
__________, until payment of said principal sum has been made or
duly provided for. Payments of such principal and interest shall
be made at the office or agency of the Issuer in _____________,
which, subject to the right of the Issuer to vary or terminate
the appointment of such agency, shall initially be at the
principal office of __________ [, and subject to any laws or
regulations applicable thereto in the country of any such agency
and subject to the right of the Issuer to vary or terminate the
appointment of any such agency or to appoint additional and other
such agencies, at the main offices of ___________ in __________
provided, that payment of interest may be made at the option of
the Issuer by check mailed to the address of the person entitled
thereto as such address shall appear on the Security Register.
Notwithstanding the foregoing, if the date hereof is after the
____ day of _________ or __________, as the case may be, and
before the following ______ or this [ ] shall bear
interest from such _________ or _________ provided, that if the
Issuer shall default in the payment of interest due on such
___________ or ________, then this [_________] shall bear
interest from the next preceding __________ or ________, to which
interest has been paid or, if no interest has been paid on this
[ ], from ________. The interest so payable on any
________ or _______, will, subject to certain exceptions provided
in the Indenture referred to on the reverse hereof, be paid to
the person in whose name this [ ] is registered at
_______________________ at the close of business on the ________
or ___________, as the case may be, next preceding such _______
or _________.
Reference is made to the further provisions of this
[ ] set forth on the reverse hereof. Such further
provisions shall for all purposes have the same effect as though
fully set forth at this place.
This [ ] shall not be valid or become
obligatory for any purpose until the certificate of
authentication hereon shall have been manually signed by the
Trustee under the Indenture referred to on the reverse hereof.
IN WITNESS WHEREOF, USG Corporation has caused this
instrument to be signed by facsimile by its duly authorized
officers and has caused a facsimile of its corporate seal to be
affixed hereunto or imprinted hereon.
USG Corporation
By: ______________________________
ATTEST:
____________________
<PAGE>
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the Series designated
herein referred to in the within-mentioned Indenture.
Dated: ______________________________,
as Trustee
By: __________________________
Authorized Signatory
[or]
______________________________,
as Trustee
By: __________________________
as Authentication Agent
By: __________________________
Authorized Signatory
<PAGE>
[FORM OF REVERSE OF DEBT SECURITY]
USG CORPORATION
___% [ ] Due ________
This [ ] is one of a duly authorized issue of
debentures, notes, bonds or other evidences of indebtedness of
the Issuer (hereinafter called the "Securities") of the Series
hereinafter specified, all issued or to be issued under and
pursuant to an indenture dated as of ____________ (herein called
the "Indenture"), duly executed and delivered by the Issuer to
___________, as Trustee (herein called the "Trustee" , which term
includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is
hereby made for a description of the rights, limitations of
rights, obligations, duties and immunities thereunder of the
Trustee, the Issuer and the Holders of the Securities and of the
terms upon which the Securities are, and are to be, authenticated
and delivered. The Securities may be issued in one or more
Series, which different Series may be issued in various aggregate
principal amounts, may bear interest at different rates, which
may be fixed or variable, may be subject to different redemption
provisions (if any), may be subject to different sinking,
purchase or analogous funds (if any) and may otherwise vary as
provided in the Indenture. This [ ] is one of a Series
designated as the ___% [ ] Due __________ of the Issuer,
limited in aggregate principal amount to _______.
In case an Event of Default with respect to the ___%
[________] Due __________ shall have occurred and be continuing,
the principal hereof may be declared, and upon such declaration
shall become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Issuer
and the Trustee, with the consent of the Holders of a majority of
the aggregate principal amount of the Securities at the time
Outstanding of all Series to be affected (treated as one class),
evidenced as provided in the Indenture, to execute supplemental
indentures adding any provisions to or changing in any manner or
eliminating any of the provisions of the Indenture or of any
supplemental indenture or modifying in any manner the rights of
the Holders of the Securities of each such Series; provided,
however, that no such supplemental indenture shall (i) extend the
Stated Maturity of any Security, or reduce the principal amount
thereof or any premium thereon, or reduce the rate or extend the
time of payment of interest thereon, or reduce any amount payable
upon redemption thereof, or impair or affect the right of any
Holder to institute suit for the payment thereof or, if the
Securities provide therefor, any right of repayment at the option
of the Securityholder, without the consent of the Holder of each
Security so affected, or (ii) reduce the aforesaid percentage of
Securities of any Series, the Holders of which are required to
consent to any such supplemental indenture, without the consent
of the Holder of each Security affected. It is also provided in
the Indenture that, with respect to certain defaults or Events of
Default regarding the Securities of any Series, prior to any
declaration accelerating the maturity of such Securities, the
Holders of a majority in aggregate principal amount Outstanding
of the Securities of such Series (or, in the case of certain
defaults or Events of Default, all or certain Series of the
Securities) may on behalf of the Holders of all the Securities of
such Series (or all or certain Series of the Securities, as the
case may be) waive any such past default or Event of Default and
its consequences. The preceding sentence shall not, however,
apply to a default in the payment of the principal of or premium,
if any, or interest on any of the Securities. Any such consent
or waiver by the Holder of this [ ] (unless revoked as
provided in the Indenture) shall be conclusive and binding upon
such Holder and upon all future Holders and owners of this
[ ] and any [ ] which may be issued in exchange or
substitution herefor, irrespective of whether or not any notation
thereof is made upon this or such other [ ].
No reference herein to the Indenture, and no provision
of this [ ] or of the Indenture, shall alter or impair
the obligation of the Issuer, which is absolute and
unconditional, to pay the principal of ((and any premium, if
any)) and interest on this [ ] in the manner, at the respective
times, at the rate, and in the coin or currency herein
prescribed.
The [ ] are issuable only in registered form
without coupons in denominations of $1,000 and any integral
multiple of $1,000. As provided in the Indenture, and subject to
certain limitations set forth therein, [ ] in registered form are
exchangeable for one or more new Securities of this Series and of
like tenor, for the same aggregate principal amount and of
authorized denominations, as requested by the Holder surrendering
the same at the agency of the Issuer in (or ]. No
service charge shall be made for any such exchange, but the
Issuer may require payment of a sum sufficient to cover any tax
or other governmental charge payable in connection therewith.
[The [ ] may be redeemed at the option of
the Issuer as a whole, or from time to time in part, on any date
after and prior to maturity, upon mailing a notice of such
redemption not less than 15 nor more than 60 days prior to the
date fixed for redemption to the Holders of the [ ] at their last
registered addresses, all as further provided in the Indenture,
at the following redemption prices (expressed in percentages of
the principal amount) together in each case with accrued interest
to the date fixed for redemption:
If redeemed during the twelve-month period
beginning [___________]:
Year Percentage Year Percentage
[The [ ] are also subject to redemption,
through the operation of the sinking fund as herein provided on
and on each thereafter to and including on notice as set forth
above and at 100% of the principal amount thereof (the sinking
fund redemption price), together with accrued interest to the
date fixed for redemption.]
[As and for a sinking fund for the retirement of the
[__________] and so long as any of the [__________] remain
outstanding and unpaid, the Issuer will pay to the Trustee in
cash
(subject to the right to deliver certain [__________] therefor as
provided in the Indenture), on or before [____________] or before
____________ in each year thereafter to and including __________
an amount sufficient to redeem $______ principal amount of the
[_______] (or such lesser amount equal to the principal amount
then Outstanding) at the sinking fund redemption price.]
[At its option the Issuer may pay into the sinking fund
for the retirement of [__________], in cash, except as provided
in the Indenture, on or before __________ and on or before
________ in each year thereafter to and including __________, an
amount sufficient to redeem an additional principal amount of
[________] up to but not to exceed $__________ at the sinking
fund redemption price. To the extent that the right to such
optional sinking fund payment is not exercise in any year, it
shall not be cumulative or carried forward to any subsequent
year.]
Upon due presentment for registration of transfer of
this [______________] at the office or agency of the Issue in
_______ [or ___________], a new [___________] or [__________] of
this Series of authorized denominations for an equal aggregate
principal amount will be issued to the transferee in exchange
therefor, subject to the limitations provided in the Indenture,
without charge except for any tax or other governmental charge
imposed in connection therewith.
The Issuer, the Trustee and any agent of the Issuer or
the Trustee may deem and treat the registered Holder hereof as
the absolute owner of this [____________] (whether or not this
[________] shall be overdue and notwithstanding any notation of
ownership or other writing hereon), for the purpose of receiving
payment of, or on account of, the principal hereof and premium,
if any, and interest hereon, and for all other purposes, and
neither the Issuer nor the Trustee nor any authorized agent of
the Issuer or the Trustee shall be affected by any notice to the
contrary.
No recourse under or upon any obligation, covenant or
agreement of the Issuer in the Indenture or any indenture
supplemental thereto or in this [__________], or because of the
creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, officer or director, as
such, of the Issuer or of any successor corporation, either
directly or through the Issuer or any successor corporation,
under any rule of law, statute or constitutional provision or by
the enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such liability being expressly
waived and released by the acceptance hereof and as part of the
consideration for the issue hereof.
Payment of the principal of [(premium, if any)] and
interest on this [__________] is expressly subordinated in right
of payment as set forth in the Indenture, to the payment when due
of all Senior Indebtedness as defined in the Indenture, and this
[________] is issued subject to such provisions, and such Holder
of this [___________], by accepting the same, agrees to and shall
be bound by such provisions and authorizes and directs the
Trustee in his behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination as
provided in the Indenture and appoints the Trustee his attorney-
in-fact for any and all such purposes.
The Indenture with respect to any Series will be
discharged and cancelled except for certain Sections thereof,
subject to the terms of the Indenture, upon the payment of all
the Securities of such Series or upon the irrevocable deposit
with the Trustee of cash or Government Obligations (or a
combination thereof) sufficient for such payment in accordance
with Article Ten of the Indenture.
The Indenture and this [_________________] shall be
deemed to be contracts made under the laws of the State of New
York, and for all purposes shall be governed by, and construed in
accordance with, the laws of such State.
Terms used herein which are defined in the Indenture
shall have the respective meanings assigned thereto in the
Indenture.
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto
Please Insert Social Security or
Other Identifying Number of Assignee
[______________________________________________] [Please Print or
Typewrite Name and Address of Assignee]
____________________________________________________________ the
within [_____________] and hereby does irrevocably constitute and
appoint ___________________________________________ Attorney to
transfer said on the books of the within-mentioned Company, with
full power of substitution in the premises.
Dated: ____________________ ____________________________
___________________________________*
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of the [______] in every
particular, without alteration or
enlargement or any change whatsoever.
OPTION TO ELECT REPAYMENT
The undersigned hereby requests and instructs the
Corporation to repay this [______] (or portion thereof specified
below) pursuant to its terms at a price equal to the principal
amount thereof, together with interest accrued to the date of
repayment, to the undersigned at:
_______________________________________________________. (Please
Print or Typewrite Name and Address of the Undersigned)
For this [_________] to be repaid the Corporation must
receive, at the office of the Trustee, [_____________________],
[_______], or at such other place or places of which the
Corporation shall from time to time notify the Holder of this
[_______], during the period from and to time notify the Holder
of this [______], during the period from and including [_______]
(or if [____________] is not a Business Day, the immediately
preceding Business Day), (i) this [_______] with this "Option to
Elect Repayment" form duly completed, or (ii) a communication in
the form specified above in this [________]. The exercise of
this "Option to Elect Repayment" is irrevocable.
If less than the entire principal amount of this
[_______] is to be repaid, specify the portion thereof (which
shall be in increments of $1,000) which the Holder elects to have
repaid: $_______; and specify the denomination or denominations
(which shall be in increments of $1,000) of the [______] to be
issued to the Holder for the portion of this [______] not being
repaid (in the absence of any such specification, one such
[______] will be issued for the portion not being repaid):
$__________.
Dated: _________________ _______________________.
__________________________________*
Note: The signature on this Option
to Elect Repayment must correspond
with the name as written upon the
face of this [________] in every
particular without alteration or
enlargement.
Holder's Tax I.D. Number: _________
* Your signatures must be guaranteed by a member of the Medallion
System.
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
name appears below constitutes and appoints Richard H. Fleming,
John E. Malone and Raymond T. Belz and each of them, his or her
true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for and in his or her name, place
and stead, in any and all capacities, to sign the Registration
Statement on Form S-3 of USG Corporation relating to the
registration of (i) in one or more series, its debt securities
consisting of notes, debentures or other evidences of indebtedness,
(ii) shares of preferred stock, $1.00 par value per share, in one
or more series, (iii) shares of common stock, $0.10 par value per
share, and (iv) warrants to purchase shares of common stock, $0.10
par value per share, all having an aggregate initial public
offering price not to exceed $300,000,000, and any or all
amendments thereto, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-
in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and
purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents or any of
them, or their or his substitutes, may lawfully do or cause to be
done by virtue hereof.
This power of attorney has been signed as of the 8th day
of November, 1995, by the following persons:
/s/ Eugene B. Connolly
Eugene B. Connolly,
Chairman of the Board and
Chief Executive Officer, and Director
/s/ William C. Foote
William C. Foote,
President and Chief Operating
Officer, and Director
/s/ Robert L. Barnett
Robert L. Barnett,
Director
/s/ Keith A. Brown
Keith A. Brown,
Director
/s/ Philip C. Jackson
Philip C. Jackson,
Director
/s/ Marvin E. Lesser
Marvin E. Lesser,
Director
/s/ W. H. Clark
W. H. Clark,
Director
/s/ James C. Cotting
James C. Cotting,
Director
/s/ Lawrence M. Crutcher
Lawrence M. Crutcher,
Director
/s/ David W. Fox
David W. Fox
Director
/s/ John B. Schwemm
John B. Schwemm,
Director
/s/ Judith A. Sprieser
Judith A. Sprieser,
Director
