Registration No. 33-______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
--------------------
ARVIN INDUSTRIES, INC.
(Exact name of Registrant as specified in its charter)
Indiana 35-0550190
(State or other jurisdiction of (IRS Employer Identification
incorporation or organization) No.)
One Noblitt Plaza
Box 3000
Columbus, Indiana 47202-3000
(812) 379-3000
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
---------------
Ronald R. Snyder
Vice President, General Counsel and Secretary
Arvin Industries, Inc.
One Noblitt Plaza
Box 3000
Columbus, Indiana 47202-3000
(812) 379-3000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
---------------
Copies to:
Frederick L. Hartmann Paul W. Theiss
Schiff Hardin & Waite Mayer, Brown & Platt
7200 Sears Tower 190 South LaSalle Street
Chicago, Illinois 60606 Chicago, Illinois 60603
----------------
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration
Statement as determined in light of market conditions and other
factors.
<PAGE>
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please
check the following box. / /
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in
connection with dividend or interest reinvestment plans, check the
following box. /X/
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Title of Each Class of Proposed Maximum Proposed Maximum
Securities to be Amount to be Offering Price Per Aggregate Offering Amount of
Registered Registered <F1> Unit <F2> Price <F2> Registration Fee
------------------------- -------------- ----------------- ------------------ ---------------
<S> <C> <C> <C> <C>
Debt Securities <F4> . .
Preferred Shares, without
par value <F5><F6> . . .
Depositary Shares <F6> . <F3> <F3> <F3>
Common Shares, $2.50 par
value, and related
Preferred Share Purchase
Rights <F7> . . . . . . .
Warrants <F8> . . . . . .
Total . . . . . . . . . . $225,000,000<F1> _____ $225,000,000 <F2> $77,586.75
==============================================================
<F1> In no event will the approximate initial offering price of all securities issued from time to time pursuant
to this Registration Statement exceed $225,000,000 (or the equivalent, based on the applicable exchange rate
at the time of sale, thereof in other currency or currency units if any securities are denominated in, or
sold for, other than U.S. dollars). Any securities registered hereunder may be sold separately or as units
with other securities registered hereunder.
<F2> Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o).
<F3> Not applicable pursuant to Form S-3, General Instruction II.D.
<PAGE>
<F4> Subject to note (1), there are being registered hereunder an indeterminate principal amount of Debt
Securities. See "Description of Debt Securities." If any Debt Securities are being issued at an original
issue discount, then the offering price shall be in such greater principal amount as shall result in an
approximate initial offering price not to exceed $225,000,000, less the amount of any securities previously
issued hereunder. There are also being registered hereunder an indeterminate number of Debt Securities as
shall be issuable upon conversion of subordinated Debt Securities or Preferred Shares registered hereby.
<F5> Subject to note (1), there are being registered hereunder an indeterminate number of Preferred Shares as may
be sold, from time to time, by the Registrant. See "Description of Capital Shares -- Preferred Shares."
There are also being registered hereunder an indeterminate number of Preferred Shares as shall be issuable
upon conversion of subordinated Debt Securities or Preferred Shares registered hereby.
<F6> Subject to note (1), there are being registered hereunder an indeterminate number of Depositary Shares to be
evidenced by Depositary Receipts issued pursuant to a Deposit Agreement. See "Description of Depositary
Shares." In the event the Registrant elects to offer to the public fractional interests in Preferred Shares
registered hereunder, the Preferred Shares may be issued to the depositary under a Deposit Agreement, and
Depositary Receipts will be issued by the depositary.
<F7> Subject to note (1), there are being registered hereunder an indeterminate number of Common Shares and
related Preferred Share Purchase Rights as may be sold, from time to time, by the Registrant. Prior to the
occurrence of certain events, the Rights will not be exercisable or evidenced separately from the Common
Shares. See "Description of Capital Shares -- Common Shares" and "-- Preferred Share Purchase Rights."
There are also being registered hereunder an indeterminate number of Common Shares and related Preferred
Share Purchase Rights as shall be issuable upon conversion of subordinated Debt Securities or Preferred
Shares registered hereby.
<F8> Subject to note (1), there are being registered hereunder an indeterminate amount and number of Warrants,
representing rights to purchase Preferred Shares, Common Shares or Debt Securities registered hereby.
</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.
[END OF COVER PAGE]
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT
BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE
REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT
CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR
SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH
OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR
QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED APRIL 11, 1994
PROSPECTUS
[LOGO] ARVIN INDUSTRIES, INC.
$225,000,000
DEBT SECURITIES
PREFERRED SHARES
DEPOSITARY SHARES
COMMON SHARES
WARRANTS
___________________________________
Arvin Industries, Inc. ("Arvin" or the "Company") may offer from
time to time, together or separately, its (i) unsecured debt
securities ("Debt Securities"), which may be either senior ("Senior
Debt Securities") or subordinated ("Subordinated Debt Securities"),
consisting of debentures, notes or other unsecured evidences of
indebtedness in one or more series; (ii) Preferred Shares, no par
value, in one or more series ("Preferred Shares"), which may be issued
in the form of Depositary Shares evidenced by Depositary Receipts;
(iii) Common Shares, $2.50 par value ("Common Shares"), and related
preferred share purchase rights; and (iv) warrants ("Warrants") to
purchase securities designated by the Company at the time of the
offering of any Warrants. Subordinated Debt Securities and Preferred
Shares may be convertible into other securities of the Company. The
Debt Securities, Preferred Shares, Depositary Shares, Common Shares
and Warrants are collectively referred to as the "Securities."
The Securities offered pursuant to this Prospectus may be issued
in one or more series or issuances at an aggregate initial offering
price not to exceed $225,000,000 (or its equivalent in foreign
currency or currency units) in amounts, at prices and on terms to be
determined at or prior to the time of sale and set forth in one or
more supplements to this Prospectus (each, a "Prospectus Supplement").
Certain specific terms of the particular Securities in respect of
which this Prospectus is being delivered will be set forth in the
accompanying Prospectus Supplement, including, where applicable, the
initial public offering price of the Securities, the net proceeds
thereof to the Company, any listing of such Securities on a securities
exchange and any other special terms. The Prospectus Supplement will
<PAGE>
set forth with regard to Securities being offered, without limitation,
the following: (i) in the case of Debt Securities (and, if Warrants
to purchase Debt Securities are being offered, similar information
with respect to the Debt Securities that may be purchased upon
exercise of each such Warrant), the specific designation, aggregate
principal amount, whether such Debt Securities will be Senior Debt
Securities or Subordinated Debt Securities, authorized denominations,
maturity, any interest rate (which may be fixed or variable) or method
of calculation of interest and date of payment of any interest, any
premium, the place or places where principal of, premium, if any, and
any interest on such Debt Securities will be payable, any terms of
redemption at the option of the Company or the holder, any terms for
sinking fund payments, any currency or currency units of denomination
and payment, if other than U.S. dollars, and any other terms
(including in the case of Subordinated Debt Securities, any terms for
conversion into other securities of the Company) in connection with
the offering and sale of the Debt Securities in respect of which this
Prospectus is delivered; (ii) in the case of Preferred Shares (and, if
Warrants to purchase Preferred Shares are being offered, similar
information with respect to the Preferred Shares that may be purchased
upon exercise of each such Warrant), the specific designation and
stated value, number of shares, any dividend (including the method of
calculating payment of dividends and the timing thereof), redemption,
liquidation, voting and other rights, any sinking fund provisions, any
terms for conversion into other securities of the Company and any
other terms, including whether the Company has elected to offer the
Preferred Shares in the form of Depositary Shares and, if so, the
terms of such Depositary Shares, including the fraction of a Preferred
Share represented by each Depositary Share; (iii) in the case of
Common Shares, the number of shares and the terms of offering thereof;
and (iv) in the case of Warrants, the designation and number, the
Securities to be purchased upon exercise, the exercise price, manner
of exercise, detachability, expiration date and any other terms in
connection with the offering, sale and exercise of the Warrants. If
so specified in the applicable Prospectus Supplement, Securities may
be issued in whole or in part in the form of one or more temporary or
global securities.
The Prospectus Supplement will also contain information, where
applicable, about certain United States federal income tax
considerations relating to the Securities covered by the Prospectus
Supplement.
The Common Shares are listed on the New York Stock Exchange and
the Chicago Stock Exchange under the symbol "ARV." Any Common Shares
sold pursuant to a Prospectus Supplement will be approved for listing
on such exchanges, upon notice of issuance.
---------------
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.
---------------
<PAGE>
The Company may sell the Securities to or through underwriters or
dealers and may also sell Securities directly to other purchasers or
through agents. See "Plan of Distribution." The Prospectus
Supplement will set forth the names of any underwriters, dealers or
agents involved in the sale of the Securities in respect of which this
Prospectus is being delivered and any applicable fee, commission and
discount arrangements with them. See "Plan of Distribution" for a
description of any indemnification arrangements between the Company
and any underwriters, dealers or agents.
This Prospectus may not be used to consummate sales of Securities
unless accompanied by a Prospectus Supplement.
The date of this Prospectus is ____________________, 1994.
[END OF PROSPECTUS COVER PAGE]
<PAGE>
IN CONNECTION WITH ANY UNDERWRITTEN OFFERING, THE UNDERWRITERS OF
SUCH OFFERING MAY OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR
MAINTAIN THE MARKET PRICE OF THE SECURITIES OFFERED HEREBY AT A LEVEL
ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH
STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
AVAILABLE INFORMATION
Arvin has filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement on Form S-3 (including any
amendments thereto, the "Registration Statement") under the Securities
Act of 1933, as amended (the "Securities Act") with respect to the
Securities offered hereby. This Prospectus does not contain all of
the information set forth in the Registration Statement and the
exhibits and schedules thereto, certain portions of which have been
omitted pursuant to the rules of the Commission. Statements made in
this Prospectus as to the contents of any contract, agreement or other
document are not necessarily complete. With respect to each such
contract, agreement or other document filed or incorporated by
reference as an exhibit to the Registration Statement, reference is
made to such exhibit for a more complete description of the matter
involved, and each such statement is qualified in its entirety by such
reference.
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
in accordance therewith files reports, proxy materials and other
information with the Commission. Such reports, proxy materials and
other information filed by the Company can be inspected and copied at
the public reference facilities maintained by the Commission at Room
1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the
following Regional Offices of the Commission: Chicago Regional
Office, 500 West Madison Street, Chicago, Illinois 60661 and New York
Regional Office, 13th Floor, Seven World Trade Center, New York, New
York 10048. Copies of such material can be obtained from the Public
Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C 20549 at prescribed rates. Such reports, proxy
materials and other information may also be inspected and copied at
the offices of the New York Stock Exchange, 20 Broad Street, New York,
New York 10005 and the Chicago Stock Exchange, 440 South LaSalle
Street, Chicago, Illinois 60604.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission
pursuant to the Exchange Act are hereby incorporated by reference into
this Prospectus:
1. The Company's Annual Report on Form 10-K for the fiscal
year ended January 2, 1994;
2. The Company's Current Report on Form 8-K dated February
3, 1994; and
<PAGE>
3. The description of the Common Shares contained in the
Company's Registration Statement on Form 8-A, filed June 19,
1950, supplementing its Registration Statement on Form 10, filed
October 25, 1939, and the description of the associated Preferred
Share Purchase Rights contained in the Company's Registration
Statement on Form 8-A, dated June 10, 1986, as amended February
28, 1989, in each case as filed under Section 12 of the Exchange
Act.
All documents filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of the offering of the
Securities made hereby shall be deemed to be incorporated by reference
into this Prospectus and to be a part hereof from the date of filing
of such documents. Any statement contained in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Prospectus to the extent
that a statement contained herein or in any other subsequently filed
document that also is or is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
THE COMPANY WILL PROVIDE WITHOUT CHARGE TO EACH PERSON TO WHOM A
COPY OF THIS PROSPECTUS IS DELIVERED, UPON THE WRITTEN OR ORAL REQUEST
OF SUCH PERSON, A COPY OF ANY OR ALL DOCUMENTS INCORPORATED BY
REFERENCE INTO THIS PROSPECTUS (NOT INCLUDING EXHIBITS TO SUCH
DOCUMENTS UNLESS SUCH EXHIBITS ARE SPECIFICALLY INCORPORATED BY
REFERENCE INTO SUCH DOCUMENTS). REQUESTS FOR SUCH COPIES SHOULD BE
DIRECTED TO SHAREHOLDER RELATIONS, ARVIN INDUSTRIES, INC., ONE NOBLITT
PLAZA, BOX 3000, COLUMBUS, INDIANA 47202-3000; TELEPHONE (812)
379-3000.
THE COMPANY
Arvin is a diversified international manufacturing company
supplying automotive parts and a variety of other products and
services through ten operating entities in the U.S. and numerous other
parts of the world. Since its founding in 1919, Arvin has grown
through internal development, acquisitions and joint ventures. In
recent years, Arvin's strategy has been to strengthen its automotive
parts businesses by achieving a balance between sales to both original
equipment manufacturers and replacement parts suppliers on a global
basis.
The Company was incorporated in Indiana in 1921. Its principal
executive offices are located at One Noblitt Plaza, Box 3000,
Columbus, Indiana 47202-3000, and its telephone number is (812)
379-3000. Arvin's Common Shares are listed on the New York Stock
Exchange and the Chicago Stock Exchange under the symbol "ARV."
<PAGE>
USE OF PROCEEDS
Unless otherwise specified in the applicable Prospectus
Supplement, the net proceeds from the sale of the Securities will be
used for general corporate purposes, which may include the repayment
of indebtedness, working capital expenditures and investments in, or
acquisitions of, businesses and assets. Pending application of such
net proceeds for specific purposes, such proceeds may be invested in
short-term or marketable securities. Specific allocations of proceeds
to a particular purpose that have been made at the date of any
Prospectus Supplement will be described therein.
<TABLE>
<CAPTION>
RATIOS OF EARNINGS TO FIXED CHARGES AND
EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED DIVIDENDS
Fiscal Year Ended
Dec. 31, Dec. 30, Dec. 29, Jan. 3, Jan. 2,
1989 1990 1991 1993 1994
________ ________ ________ _______ _______
<S> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed
Charges . . . . . . . . . . . 1.75 2.07 1.73 2.26 1.85
Ratio of Earnings to Combined
Fixed Charges and Preferred
Dividends . . . . . . . . . . 1.33 1.56 1.32 1.78 1.85
</TABLE>
For purposes of calculating the ratios of earnings to fixed
charges and earnings to combined fixed charges and preferred
dividends, "earnings" consist of earnings from continuing operations
before income taxes, adjusted for the portion of fixed charges
deducted from such earnings, for undistributed earnings of less-than-
fifty-percent-owned affiliates and for minority interests in income of
majority-owned subsidiaries that have fixed charges. "Fixed charges"
consist of interest on all indebtedness (including capital lease
obligations), amortization of debt expense and the percentage of
rental expense on operating leases deemed representative of the
interest factor. "Preferred dividends" represent dividends paid on
all Preferred Shares outstanding during the periods. Such Preferred
Shares were comprised of the Company's Remarketed Preferred Shares,
which were redeemed during the third quarter of 1989, and the
Company's $3.75 Convertible Exchangeable Preferred Shares, which were
issued in July 1989 and were redeemable by the holder in certain
remote circumstances. All outstanding Convertible Exchangeable
Preferred Shares were redeemed by the Company in September 1992.
Preferred dividends used to compute the ratio of earnings to combined
fixed charges and preferred dividends have been increased to an amount
representing the pre-tax earnings that would be required to cover
preferred dividend payments.
DESCRIPTION OF DEBT SECURITIES
<PAGE>
The following description of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to which
any Prospectus Supplement may relate. The particular terms of the
Debt Securities offered by any Prospectus Supplement and the extent,
if any, to which such general provisions are not applicable will be
described in a Prospectus Supplement relating to such Debt Securities.
The Debt Securities will be general unsecured obligations of
Arvin and will constitute either senior debt securities or
subordinated debt securities. Those Debt Securities that will be
senior debt securities ("Senior Debt Securities") will be issued under
an Indenture dated as of July 3, 1990 (the "Senior Indenture") between
the Company and Harris Trust and Savings Bank, as trustee under the
Senior Indenture. In the case of Debt Securities that will be
subordinated debt securities ("Subordinated Debt Securities"), the
Debt Securities will be issued under an Indenture dated as of ______,
1994 (the "Subordinated Indenture") to be entered into between Arvin
and NBD Bank, N.A., as trustee under the Subordinated Indenture. The
Senior Indenture and the Subordinated Indenture are sometimes referred
to individually as an "Indenture" and collectively as the
"Indentures." Copies of the Senior Indenture and the form of
Subordinated Indenture have been filed as exhibits to the Registration
Statement. The trustees under the Senior Indenture and the
Subordinated Indenture are sometimes referred to collectively as the
"Trustees."
The following summaries of certain provisions of the Senior Debt
Securities, the Subordinated Debt Securities and the Indentures do not
purport to be complete and are qualified in their entirety by
reference to all the provisions of the Indenture applicable to a
particular series of Debt Securities, including the definitions
therein of certain terms. Wherever particular Sections, Articles or
defined terms of the Indentures are referred to, it is intended that
such Sections, Articles or defined terms shall be incorporated by
reference herein. Capitalized terms not otherwise defined herein
shall have the meanings given to them in the applicable Indenture.
PROVISIONS APPLICABLE TO BOTH SENIOR
AND SUBORDINATED DEBT SECURITIES
GENERAL
The Indentures do not limit the aggregate principal amount of
Debt Securities that can be issued thereunder and provide that Debt
Securities may be issued from time to time thereunder in one or more
series, each in an aggregate principal amount authorized by the
Company prior to issuance. The Indentures do not limit the amount of
other unsecured indebtedness or securities that may be issued by the
Company.
The holders of Debt Securities will not benefit from any covenant
or other provision that would afford such holders special protection
in the event of a highly leveraged transaction involving Arvin. At
the date of this Prospectus, the Company does not intend to include
<PAGE>
any covenants or other provisions affording such protection in any
series of the Debt Securities. If the Company determines in the
future that it is desirable to include any such covenants or other
provisions in any series of Debt Securities, they will be described in
the Prospectus Supplement for that series. Certain other covenants
under the Senior Indenture are described below under "Provisions
Applicable Solely to Senior Debt Securities -- Certain Covenants."
Each Indenture provides that Debt Securities may be issued
thereunder by the Company from time to time upon satisfaction of
certain conditions precedent, including the delivery to the Trustee of
a resolution of the board of directors, or a committee thereof, of the
Company that fixes or provides for the establishment of terms of such
Debt Securities, including: (1) the specific designation of the Debt
Securities and the series of which such Debt Securities shall be a
part; (2) the aggregate principal amount and denominations of such
Debt Securities; (3) the date or dates on which such Debt Securities
will mature; (4) the rate or rates per annum (which may be fixed or
floating) at which such Debt Securities will bear interest, if any,
(5) the dates on which such interest, if any, will be payable, the
record dates with respect to such interest payment dates and the date
from which such interest, if any, will accrue; (6) the premium, if
any, and conditions thereof; (7) the provisions, if any, for
redemption of such Debt Securities prior to stated maturity at the
option of the Company, the redemption price and any remarketing
arrangements relating thereto; (8) the provisions, if any, for
repayment of such Debt Securities prior to stated maturity at the
option of the Holders thereof; (9) the place or places where the
principal, premium, if any, and interest on the Debt Securities will
be payable; (10) any currency or currency units of denomination and
payment, if other than U.S. dollars; (11) the ranking of the Debt
Securities as Senior or Subordinated; (12) in the case of Subordinated
Debt Securities, any terms for conversion into other securities of the
Company; (13) any additional information with respect to book-entry
procedures, if applicable; and (14) any other provisions permitted by
the applicable Indenture. Reference is made to the Prospectus
Supplement for the terms of the Debt Securities being offered hereby.
The Debt Securities will be issued in fully registered form
without coupons, unless provisions relating to bearer securities are
set forth in the Prospectus Supplement for the Debt Securities being
offered. No service charge will be made for any registration of
transfer of Debt Securities or exchange of Debt Securities, but the
Company may require payment of a sum sufficient to cover any tax or
other governmental charges that may be imposed in connection
therewith.
The provisions of each Indenture provide the Company with the
ability, in addition to the ability to issue Debt Securities with
terms different from those of Debt Securities previously issued, to
"reopen" a previous issue of a series of Debt Securities and issue
additional Debt Securities of such series.
<PAGE>
Principal, premium, if any, and interest, if any, on Debt
Securities will be payable in the manner, at the places and subject to
the restrictions set forth in the applicable Indenture, the Debt
Securities and the Prospectus Supplement relating thereto, provided
that (unless otherwise provided in the applicable Prospectus
Supplement) payment of any interest may be made at the option of the
Company by check mailed to the Holders of registered Debt Securities
at their registered addresses.
Debt Securities may be presented for exchange or transfer in the
manner, at the places and subject to the restrictions set forth in the
applicable Indenture, the Debt Securities and the Prospectus
Supplement relating thereto.
CONSOLIDATION, MERGER AND SALE OF ASSETS
Arvin may not consolidate with, or sell, lease or convey all or
substantially all of its assets to, or merge with or into, any other
corporation, unless (i) if Arvin is not the continuing corporation,
the successor corporation shall be a corporation organized and
existing under the laws of the United States of America or a State
thereof; (ii) the successor corporation shall expressly assume by a
supplemental indenture, executed and delivered to the Trustee in form
satisfactory to the Trustee, the due and punctual payment of the
principal, premium, if any, and interest on, the Debt Securities,
according to their tenor and the due and punctual performance and
observance of all covenants and conditions of the applicable Indenture
to be performed by the Company; and (iii) the Company or such
successor corporation, as the case may be, shall not immediately after
such merger or consolidation, or such sale, lease or conveyance, be in
default in the performance of any such covenant or condition.
MODIFICATION AND WAIVER
Modification and amendment of either Indenture may be effected by
the Company and the Trustee with the consent of the Holders of not
less than a majority in aggregate principal amount of the Outstanding
Debt Securities of each series affected thereby, provided that no such
modification or amendment may, without the consent of the Holder of
each Outstanding Debt Security affected thereby, (a) change the Stated
Maturity of the principal of, or any installment of interest on, any
Debt Security or reduce the principal amount thereof or the rate of
interest thereon or any premium payable upon the redemption thereof,
or reduce the amount of the principal of an Original Issue Discount
Debt Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof, or change the currency in which
any Debt Security or any premium or the interest thereon is payable,
or impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of
redemption or repayment, on or after the Redemption Date or Repayment
Date), or, in the case of Subordinated Debt Securities, modify any
provision relating to their subordination in a manner adverse to the
holders thereof, or (b) reduce the percentage in principal amount of
the Outstanding Debt Securities of any series, the consent of whose
<PAGE>
Holders is required for any such amendment, or the consent of whose
Holders is required for any waiver provided for in the Indenture, or
(c) modify any of the provisions set forth in this paragraph, except
to increase any such percentage or to provide that certain other
provisions of the Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Debt Security affected
thereby. Except with respect to such matters, the Holders of at least
a majority in principal amount of Outstanding Debt Securities of any
series may, with respect to such series, waive past defaults under the
applicable Indenture (other than a default in payment of principal,
premium, if any, or interest) and waive compliance by the Company with
certain provisions of the Indenture.
SATISFACTION AND DISCHARGE OF AN INDENTURE
If the Company deposits or causes to be deposited with the
Trustee cash or direct obligations of the United States of America or
obligations the payment of principal and interest on which is
guaranteed by the United States of America (and which are not callable
at will by the issuer thereof) as will together with the income to
accrue thereon, be sufficient to pay and discharge the entire
indebtedness on all Outstanding Debt Securities of any series when
due, and complies with certain other conditions, then, at the
direction of the Company, the Company shall be deemed to have paid and
discharged the entire Indebtedness with respect to such series of
Outstanding Debt Securities (except for certain surviving obligations
including, among other things, the rights of the Holders thereof to
receive from such deposits payment of principal, premium, if any, and
interest with respect to such Outstanding Debt Securities when such
payments are due).
If the Company deposits with the Trustee cash or securities as
described above and either (A) all Debt Securities theretofore
authenticated and delivered under the applicable Indenture have been
delivered for cancellation (other than (i) Debt Securities (or coupons
in the case of bearer securities) that have been destroyed, lost or
stolen and which have been paid or replaced, (ii) coupons pertaining
to bearer securities whose surrender is not required or has been
waived under certain circumstances and (iii) Debt Securities (or
coupons in the case of bearer securities) the payment for which has
been previously deposited in trust or segregated and held in trust by
the Company and thereafter repaid to the Company or discharged from
such trust) or (B) all such Debt Securities have become due and
payable or will become due and payable at their Stated Maturity within
one year or, if redeemable at the option of the Company, are to be
called for redemption within one year, and the Company complies with
certain other conditions, then, at the direction of the Company, such
Indenture shall cease to be of further effect, except as to certain
rights of transfer or exchange.
EVENTS OF DEFAULT
Each Indenture defines an Event of Default with respect to any
series of Debt Securities issued thereunder as being any one of the
<PAGE>
following events: (i) default for 30 days in any payment of interest
on any Debt Security of such series; (ii) default in the payment of
principal of, or premium, if any, on, any Debt Security of such series
when due; (iii) default in the deposit of any sinking fund payment
with respect to any Debt Security of such series when due; (iv)
default, for 90 days after appropriate notice, in performance of any
other covenant or warranty in such Indenture (other than a covenant or
warranty included in such Indenture solely for the benefit of one or
more series of Debt Securities other than that series); (v) the
failure to pay principal of or interest on any other obligation for
borrowed money of the Company (including default under any other
series of Debt Securities and in the case of the Senior Debt
Securities, including default on any guaranty of an obligation for
borrowed money of a Restricted Subsidiary) beyond any period of grace
with respect thereto if (x) the aggregate principal amount of any such
obligation is in excess of $10,000,000 (or in the case of any such
obligation in which the amount payable upon acceleration is less than
the amount payable at stated maturity, the amount then payable upon
acceleration exceeds $10,000,000), (y) the default in such payment is
not being contested by the Company in and by appropriate proceedings,
and (z) the default in such payment has not been cured or waived prior
to the notice in writing to the Company as provided in such Indenture;
(vi) certain events of bankruptcy, insolvency or reorganization; or
(vii) any other Event of Default provided with respect to Debt
Securities of that series. In case an Event of Default specified in
(vi) above occurs, all unpaid principal of, premium, if any, and
accrued interest on Outstanding Debt Securities of any series shall
ipso facto become and shall be immediately due and payable without any
declaration or other act on the part of the applicable Trustee or any
Holder, and if any other Event of Default shall occur and be
continuing with respect to any series of Debt Securities, the Trustee
with respect thereto or the Holders of not less than 25% in aggregate
principal amount of the Outstanding Debt Securities of that series may
declare the principal of such series (or, as in the case of Original
Issue Discount Securities, such portion of the principal as may be
specified in the terms of that series) to be due and payable
immediately. However, at any time after such a declaration of
acceleration with respect to Debt Securities of any series has been
made, but before a judgment or decree based on such acceleration has
been obtained, the Holders of a majority in aggregate principal amount
of Outstanding Debt Securities of that series may, under certain
circumstances, rescind and annul such acceleration if all Events of
Default other than the non-payment of accelerated principal, with
respect to Debt Securities of that series, have been cured or waived
as provided in such Indenture.
Reference is made to the Prospectus Supplement relating to any
Debt Security that is an Original Issue Discount Security for the
particular provisions relating to acceleration of the Maturity of a
portion of the principal amount of such Original Issue Discount
Security upon the occurrence of an Event of Default and the
continuation thereof.
<PAGE>
Each Indenture requires the Company to file annually with the
Trustee an Officer's Certificate as to the absence of certain defaults
under the terms of such Indenture. Each Indenture provides that the
Trustee thereof shall, within 90 days after the occurrence of a
default with respect to any such series for which there are Debt
Securities outstanding which is continuing, give to the Holders of
such Debt Securities notice of all uncured defaults known to it (the
term default to include the events specified above without grace
periods); provided that, except in the case of default in the payment
of principal, premium, if any, or interest on any of the Debt
Securities of any series or the payment of any sinking fund
installment on the Debt Securities of any series, the Trustee shall be
protected in withholding such notice if it in good faith determines
that the withholding of such notice is in the interest of the Holders
of Debt Securities.
Subject to the provisions of each Indenture relating to the
duties of the Trustee thereof in case an Event of Default shall occur
and be continuing, each Indenture provides that the Trustee shall be
under no obligation to exercise any of its rights or powers under such
Indenture at the request, order or direction of the Holders of the
Debt Securities unless such Holders shall have offered to the Trustee
reasonable indemnity. Subject to such provisions for indemnification
and other rights of the Trustee, each Indenture provides that the
Holders of a majority in aggregate principal amount of the Outstanding
Debt Securities of any series affected 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 Debt Securities of such series.
No Holder of any Debt Security of any series will have any right
to institute any proceeding with respect to such Indenture or for any
remedy thereunder unless (i) such Holder shall have previously given
to the Trustee thereof written notice of a continuing Event of Default
with respect to Debt Securities of that series, (ii) the Holders of at
least 25% in aggregate principal amount of the Outstanding Debt
Securities of that series shall have made written request to the
Trustee to institute such proceeding as Trustee, (iii) such Holder or
Holders shall have offered to the Trustee reasonable indemnity, (iv)
the Trustee shall have failed to institute such proceeding within 60
days, and (v) the 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.
However, the Holder of any Debt Security will have an absolute right
to receive payment of the principal, premium, if any, and interest on
such Debt Security on or after the due dates expressed in such Debt
Security and to institute suit for the enforcement of any such
payment.
BOOK-ENTRY DEBT SECURITIES
Debt Securities of a series may be issued in whole or in part in
the form of one or more global securities ("Global Securities") that
will be deposited with, or on behalf of, a depository identified in
<PAGE>
the Prospectus Supplement relating to such series. Payments of
principal, premium, if any, and interest, if any, on Debt Securities
of such series represented by a Global Security will be made to the
Depository.
The Company anticipates that any Global Securities will be
deposited with, or on behalf of, The Depository Trust Company ("DTC"),
New York, New York, that such Global Securities will be registered in
the name of DTC's nominee, and that the following provisions will
apply to the depository arrangements with respect to any such Global
Securities. Additional or differing terms of the depository
arrangement relating to Debt Securities of any series issued in the
form of Global Securities will be described in the related Prospectus
Supplement.
So long as DTC or its nominee is the registered owner of a Global
Security, DTC or its nominee, as the case may be, will be considered
the sole holder of the Debt Securities represented by such Global
Security for all purposes under the applicable Indenture. Except as
described below, owners of beneficial interests in a Global Security
will not be entitled to have Debt Securities represented by such
Global Security registered in their names, will not receive or be
entitled to receive physical delivery of Debt Securities in
certificated form and will not be considered the record owners or
holders of Debt Securities under the applicable Indenture. The laws
of some states require that certain purchasers of securities take
physical delivery of such securities in certificated form;
accordingly, such laws may limit the transferability of beneficial
interests in a Global Security.
If DTC is at any time unwilling or unable to continue as
depository with respect to any Debt Securities that are represented by
a Global Security and a successor depository is not appointed by the
Company within 60 days, the Company will issue individual Debt
Securities in certificated form in exchange for the Global Securities.
In addition, the Company may at any time determine not to have any
Debt Securities of one or more series represented by Global Securities
and, in such event, will issue individual Debt Securities of such
series in certificated form in exchange for the relevant Global
Securities. In any such instance, an owner of a beneficial interest
in a Global Security will be entitled to physical delivery of
individual Debt Securities in certificated form equal in principal
amount to such beneficial interest and to have such Debt Securities in
certificated form registered in its name.
The following information concerning DTC and DTC's book-entry
system has been obtained from sources (including DTC) that the Company
believes to be reliable, but the Company takes no responsibility for
the accuracy thereof.
Any Debt Securities for which DTC will act as securities
depository will be issued as fully registered securities
registered in the name of Cede & Co. (DTC's partnership nominee).
One fully registered Debt Security certificate will be issued
<PAGE>
with respect to up to $150 million of principal amount of the
Debt Securities of a series, and an additional certificate will
be issued with respect to any remaining principal amount of such
series.
DTC is a limited-purpose trust company organized under the
New York Banking Law, a "banking organization" within the meaning
of the New York Banking Law, a member of the Federal Reserve
System, a "clearing corporation" within the meaning of the New
York Commercial Code, and a "clearing agency" registered pursuant
to the provisions of Section 17A of the Exchange Act. DTC holds
securities that its participants ("Participants") deposit with
DTC. DTC also facilitates the settlement among Participants of
securities transactions, such as transfers and pledges, in
deposited securities through electronic computerized book-entry
changes in Participants' accounts, thereby eliminating the need
for physical movement of securities certificates. Direct
Participants include securities brokers and dealers, banks, trust
companies, clearing corporations and certain other organizations
("Direct Participants"). DTC is owned by a number of its Direct
Participants and by the New York Stock Exchange, Inc., the
American Stock Exchange, Inc. and the National Association of
Securities Dealers, Inc. Access to the DTC system is also
available to others such as securities brokers and dealers, banks
and trust companies that clear through or maintain a custodial
relationship with a Direct Participant, either directly or
indirectly ("Indirect Participants"). The rules applicable to
DTC and its Participants are on file with the Commission.
Purchases of Debt Securities under the DTC system must be
made by or through Direct Participants, which will receive a
credit for the Debt Securities on DTC's records. The ownership
interest of each actual purchaser of each Debt Security
("Beneficial Owner") is in turn to be recorded on the
Participants' records. A Beneficial Owner will not receive
written confirmation from DTC of its purchase, but such
Beneficial Owner is expected to receive a written confirmation
providing details of the transaction, as well as periodic
statements of its holdings, from the Participant through which
such Beneficial Owner entered into the transaction. Transfers of
ownership interests in Debt Securities are to be accomplished by
entries made on the books of Participants acting on behalf of
Beneficial Owners. Beneficial Owners will not receive
certificates representing their ownership interests in Debt
Securities, except in the event that use of the book-entry system
for the Debt Securities is discontinued.
The deposit of the Debt Securities with DTC and their
registration in the name of Cede & Co. will effect no change in
beneficial ownership. DTC will have no knowledge of the actual
Beneficial Owners of the Debt Securities; DTC records will
reflect only the identity of the Direct Participants to whose
accounts Debt Securities are credited, which may or may not be
the Beneficial owners. The Participants will remain responsible
<PAGE>
for keeping account of their holdings on behalf of their
customers.
Delivery of notices and other communications by DTC to
Direct Participants, by Direct Participants to Indirect
Participants and by Direct and Indirect Participants to
Beneficial Owners will be governed by arrangements among them,
subject to any statutory or regulatory requirements as may be in
effect from time to time.
Neither DTC nor Cede & Co. will consent or vote with respect
to the Debt Securities. Under its usual procedures, DTC mails a
proxy (an "Omnibus Proxy") to the Company as soon as possible
after the record date. The Omnibus Proxy assigns Cede & Co.'s
consenting or voting rights to those Direct Participants to whose
accounts the Debt Securities are credited on the record date
(identified on a list attached to the Omnibus Proxy).
Principal, premium and interest payments on the Debt
Securities will be made to DTC. DTC's practice is to credit
Direct Participants' accounts on the payable date in accordance
with their respective holdings as shown on DTC's records unless
DTC has reason to believe that it will not receive payment on the
payable date. Payments by Participants to Beneficial Owners will
be governed by standing instructions and customary practices, as
is the case with securities held for the accounts of customers in
bearer form or registered in "street name," and will be the
responsibility of such Participant and not of DTC, the Trustee or
any Paying Agent or the Company, subject to any statutory or
regulatory requirements as may be in effect from time to time.
Payment of principal and interest to DTC is the responsibility of
the Company or the Trustee or any Paying Agent, disbursement of
such payments to Direct Participants will be the responsibility
of DTC and disbursement of such payments to the Beneficial Owners
will be the responsibility of Direct and Indirect Participants.
DTC may discontinue providing its services as securities
depository with respect to the Debt Securities at any time by
giving reasonable notice to the Company or the Paying Agent.
Under such circumstances, in the event that a successor
securities depository is not appointed, Debt Security
certificates are required to be printed and delivered.
The Company may decide to discontinue use of the system of
book-entry transfers through DTC (or a successor securities
depository). In that event, Debt Security certificates will be
printed and delivered.
Unless stated otherwise in the applicable Prospectus Supplement,
any underwriters, dealers or agents with respect to any Debt
Securities issued as Global Securities will be Direct Participants in
DTC.
<PAGE>
None of the Company, any underwriter, dealer or agent, the
applicable Trustee or any Paying Agent will have any responsibility or
liability for any aspect of the records relating to or payments made
on account of beneficial interests in a Global Security, or for
maintaining, supervising or reviewing any records relating to such
beneficial interests.
INFORMATION CONCERNING THE TRUSTEES
Harris Trust and Savings Bank is the trustee under the Senior
Indenture, and NBD Bank, N.A. is the trustee under the Subordinated
Indenture. Each Trustee may also serve as warrant agent with respect
to any Debt Warrants to purchase underlying Debt Securities issued
under the Indenture with respect to which it acts as trustee (see
"Description of Warrants -- Debt Warrants"). The Company also
maintains banking relationships in the ordinary course of business
with each of the Trustees, and the Trustees participate, along with
several other banks, in certain credit facilities with Arvin and
certain of its subsidiaries. The Trustee for the Senior Indenture is,
as of the date of this Prospectus, trustee with respect to the
Company's 6 7/8% Notes due February 15, 2001 and its 9 1/8% Sinking
Fund Debentures due March 1, 2017. As of the date of this Prospectus,
the Trustee for the Senior Indenture also is trustee with respect to
$75,000,000 aggregate principal amount of the Company's Medium Term
Notes issued under the Senior Indenture and $38,000,000 aggregate
principal amount of Medium Term Notes of Arvin Overseas Finance B.V.,
an indirect wholly owned subsidiary of Arvin. As of the date of this
Prospectus, Arvin has outstanding $150,000,000 aggregate principal
amount of its debt securities issued under the Senior Indenture.
GOVERNING LAW
The Indentures are governed, and the Debt Securities will be
governed, by the laws of the State of New York.
PROVISIONS APPLICABLE SOLELY TO SENIOR DEBT SECURITIES
Senior Debt Securities will be issued under the Senior Indenture
and will rank pari passu with all other unsecured and unsubordinated
debt of the Company.
CERTAIN COVENANTS
The Senior Indenture contains certain covenants, including those
described below with respect to the incurrence of Secured Debt by
Arvin and its Restricted Subsidiaries, Sale and Leaseback Transactions
on the part of Arvin and its Restricted Subsidiaries, and the transfer
of Principal Facilities to Unrestricted Subsidiaries. Certain of the
terms used in these covenants are defined below under "Certain
Definitions." These covenants do not, however, focus on the amount of
debt incurred in any transaction and do not afford protection to
holders of the Debt Securities in the event of a highly leveraged
transaction that is not in violation of the covenants.
<PAGE>
The Senior Indenture provides that so long as the Debt Securities
issued pursuant to such Indenture are outstanding, Arvin will not, and
will not cause or permit a Restricted Subsidiary to, create, incur,
assume or guarantee any Secured Debt or create any Security Interest
securing any indebtedness existing on the date of such Indenture that
would constitute Secured Debt if it were secured by a Security
Interest in a Principal Facility unless the Senior Debt Securities
will be secured equally and ratably (subject to applicable priorities
of payment) by the Security Interest securing such Secured Debt or
indebtedness, except that Arvin and its Restricted Subsidiaries may
create, incur, assume or guarantee certain Secured Debt without so
securing the Senior Debt Securities. Among such permitted Secured
Debt is indebtedness secured by (i) certain Security Interests to
secure payment of the cost of acquisition, construction, development
or improvement of property; (ii) Security Interests on property at the
time of acquisition assumed by Arvin or a Restricted Subsidiary, or on
the property or on the outstanding shares or indebtedness of a
corporation or firm at the time it becomes a Restricted Subsidiary or
is merged into or consolidated with Arvin or a Restricted Subsidiary,
or on properties of a corporation or firm acquired by Arvin or a
Restricted Subsidiary as an entirety or substantially as an entirety;
(iii) Security Interests arising from conditional sales agreements or
title retention agreements with respect to property acquired by Arvin
or any Restricted Subsidiary; (iv) Security Interests securing
indebtedness of a Restricted Subsidiary owing to Arvin or to another
Restricted Subsidiary; (v) mechanics' and other statutory liens
arising in the ordinary course of business (including construction of
facilities) in respect of obligations that are not due or that are
being contested in good faith; (vi) liens for taxes, assessments or
governmental charges not yet due or for taxes, assessments or
governmental charges that are being contested in good faith; (vii)
Security Interests (including judgment liens) arising in connection
with legal proceedings so long as such proceedings are being contested
in good faith and, in case of judgment liens, execution thereon is
stayed; (viii) certain landlords' liens on fixtures; (ix) Security
Interests to secure partial, progress, advance or other payments or
indebtedness incurred for the purpose of financing construction on or
improvement of property subject to such Security Interests; and (x)
certain Security Interests in favor, or made at the request, of
governmental bodies. Additionally, permitted Secured Debt includes
(with certain limitations) any extension, renewal or refunding, in
whole or in part, of any Secured Debt permitted at the time of the
original incurrence thereof. In addition to the foregoing, Arvin and
its Restricted Subsidiaries may incur Secured Debt, without equally
and ratably securing the Senior Debt Securities, if the sum of (a) the
amount of Secured Debt entered into after the date of the Senior
Indenture and otherwise prohibited by the Senior Indenture plus (b)
the aggregate value of Sale and Leaseback Transactions entered into
after the date of the Senior Indenture and otherwise prohibited by the
Senior Indenture does not exceed ten percent of Consolidated Net
Tangible Assets.
The Senior Indenture provides that so long as Debt Securities
issued pursuant to such Indenture are outstanding Arvin will not, and
<PAGE>
will not permit any Restricted Subsidiary to, enter into any Sale and
Leaseback Transaction unless (a) Arvin or such Restricted Subsidiary
would be entitled to incur Secured Debt permitted by the Indenture
only by reason of the provision described in the last sentence of the
preceding paragraph equal in amount to the net proceeds of the
property sold or transferred or to be sold or transferred pursuant to
such Sale and Leaseback Transaction and secured by a Security Interest
on the property to be leased without equally and ratably securing the
Notes or (b) Arvin or a Restricted Subsidiary shall apply within 180
days after the effective date of such Sale and Leaseback Transaction,
an amount equal to such net proceeds (x) to the acquisition,
construction, development or improvement of properties, facilities or
equipment which are, or upon such acquisition, construction,
development or improvement will be, a Principal Facility or Facilities
or a part thereof or (y) to the redemption of Senior Debt Securities
or (z) to the repayment of Senior Funded Debt of Arvin or of any
Restricted Subsidiary (other than the Senior Funded Debt owed to any
Restricted Subsidiary), or in part to such acquisition, construction,
development or improvement and in part to such redemption and/or
repayment. In lieu of applying an amount equal to such net proceeds
to such redemption Arvin may, within 180 days after such sale or
transfer, deliver to the Trustee Senior Debt Securities (other than
Senior Debt Securities made the basis of a reduction in a mandatory
sinking fund payment) for cancellation and thereby reduce the amount
to be applied to the redemption of the Senior Debt Securities by an
amount equivalent to the aggregate principal amount of the Senior Debt
Securities so delivered.
The Senior Indenture provides that so long as Debt Securities
issued pursuant to such Indenture are outstanding, Arvin will not, and
will not cause or permit any Restricted Subsidiary to, transfer any
Principal Facility to any Unrestricted Subsidiary unless it shall
apply within 180 days of the effective date of such transaction an
amount equal to the fair value of such Principal Facility at the time
of such transfer (i) to the acquisition, construction, development or
improvement of properties, facilities or equipment which are, or upon
such acquisition, construction, development or improvement will be, a
Principal Facility or Facilities or a part thereof or (ii) to the
redemption of the Senior Debt Securities or (iii) to the repayment of
Senior Funded Debt of Arvin or any Restricted Subsidiary (other than
Senior Funded Debt owed to any Restricted Subsidiary), or in part to
such acquisition, construction, development or improvement and in part
to such redemption and/or repayment. In lieu of applying all or any
part of such amount to such redemption, Arvin may, within 180 days of
such transfer, deliver to the Trustee Senior Debt Securities (other
than Senior Debt Securities made the basis of a reduction in a
mandatory sinking fund payment) for cancellation and thereby reduce
the amount to be applied to the redemption of the Senior Debt
Securities by an amount equivalent to the aggregate principal amount
of the Senior Debt Securities so delivered.
CERTAIN DEFINITIONS
<PAGE>
The following terms are defined substantially as follows in
Section 101 of the Senior Indenture and are used herein as so defined.
"Consolidated Net Tangible Assets" means, in each case, with
respect to Arvin (a) the total amount of assets (less applicable
reserves and other properly deductible items) after deducting
therefrom (i) all liabilities and liability items, except for
indebtedness payable by its terms more than one year from the date of
incurrence thereof (or renewable or extendable at the option of the
obligor for a period ending more than one year after such date of
incurrence), capitalized rent, capital stock (including redeemable
preferred stock) and surplus, surplus reserves and deferred income
taxes and credits and other non-current liabilities, and (ii) all
goodwill, trade names, trademarks, patents, unamortized debt discount,
unamortized expenses incurred in the issuance of debt, and other like
intangibles which, in each case, under generally accepted accounting
principles in effect on July 3, 1990, the date of the Senior
Indenture, would be included on a consolidated balance sheet of Arvin
and its Restricted Subsidiaries, less (b) loans, advances, equity
investments and guarantees (other than accounts receivable arising
from the sale of merchandise in the ordinary course of business) at
the time outstanding that were made or incurred by Arvin and its
Restricted Subsidiaries to, in or for Unrestricted Subsidiaries or to,
in or for corporations while they were Restricted Subsidiaries and
which at the time of computation are Unrestricted Subsidiaries.
"Principal Facility" means any manufacturing plant, warehouse,
office building or parcel of real property (including fixtures but
excluding leases and other contract rights which might otherwise be
deemed real property) owned by Arvin, or any Restricted Subsidiary,
whether owned on the date of the Senior Indenture or thereafter,
provided each such plant, warehouse, office building or parcel of real
property has a gross book value (without deduction for any
depreciation reserves) at the date as of which the determination is
being made of in excess of three percent of the Consolidated Net
Tangible Assets, other than any such plant, warehouse, office building
or parcel of real property or portion thereof which, in the opinion of
the Board of Directors (evidenced by a Board Resolution), is not of
material importance to the business conducted by Arvin and its
Subsidiaries taken as a whole.
"Restricted Subsidiary" means (a) any Subsidiary other than an
Unrestricted Subsidiary and (b) any Subsidiary that was an
Unrestricted Subsidiary but which, subsequent to the date of the
applicable Indenture, is designated by Arvin (evidenced by a Board
Resolution) to be a Restricted Subsidiary; provided, however, that
Arvin may not designate any such Subsidiary to be a Restricted
Subsidiary if Arvin would thereby breach any covenant or agreement
contained in the Senior Indenture (on the assumption that any
transaction to which such Subsidiary was a party at the time of such
designation and which would have given rise to Secured Debt or
constituted a Sale and Leaseback Transaction at the time it was
entered into had such Subsidiary then been a Restricted Subsidiary was
entered into at the time of such designation).
<PAGE>
"Sale and Leaseback Transaction" means any sale or transfer made
by Arvin or one or more Restricted Subsidiaries (except a sale or
transfer made to Arvin or one or more Restricted Subsidiaries) of any
Principal Facility that (in the case of a Principal Facility which is
a manufacturing plant, warehouse or office building) has been in
operation, use or commercial production (exclusive of test and start-
up periods) by Arvin or any Restricted Subsidiary for more than 180
days prior to such sale or transfer, or that (in the case of a
Principal Facility that is a parcel of real property other than a
manufacturing plant, warehouse or office building) has been owned by
Arvin or any Restricted Subsidiary for more than 180 days prior to
such sale or transfer, if such sale or transfer is made with the
intention of leasing, or as part of an arrangement involving the lease
of such Principal Facility to Arvin or a Restricted Subsidiary (except
a lease for a period not exceeding 36 months made with the intention
that the use of the leased Principal Facility by Arvin or such
Restricted Subsidiary will be discontinued on or before the expiration
of such period). Any Secured Debt permitted under the Senior
Indenture will not be deemed to create or be defined to be a Sale and
Leaseback Transaction.
"Secured Debt" means any indebtedness for money borrowed by, or
evidenced by a note or other similar instrument of, Arvin or a
Restricted Subsidiary, and any other indebtedness of Arvin or a
Restricted Subsidiary on which, by the terms of such indebtedness,
interest is paid or payable, including obligations evidenced or
secured by leases, installment sales agreements or other instruments
in connection with private activity bonds which are qualified bonds
under Section 141 of the Internal Revenue Code of 1986 (other than
indebtedness owed by a Restricted Subsidiary to Arvin, by a Restricted
Subsidiary to another Restricted Subsidiary or by Arvin to a
Restricted Subsidiary), which in any such case is secured by (a) a
Security Interest in any Principal Facility, or (b) a Security
Interest in any shares of stock owned directly or indirectly by Arvin
in a Restricted Subsidiary or in indebtedness for money borrowed by a
Restricted Subsidiary from Arvin or another Restricted Subsidiary.
The securing in the foregoing manner of any previously unsecured debt
shall be deemed to be the creation of Secured Debt at the time such
security is given. The amount of Secured Debt at any time outstanding
shall be the aggregate amount then owing thereon by Arvin and its
Restricted Subsidiaries.
"Senior Funded Debt" means any obligation of Arvin or any
Restricted Subsidiary which constituted funded debt as of the date of
its creation and that, in the case of such funded debt of Arvin, is
not subordinate and junior in right of payment to the prior payment of
the Senior Debt Securities. As used herein "funded debt" shall mean
any obligation payable by its terms more than one year from the date
of incurrence thereof (or renewable or extendable at the option of the
obligor for a period ending more than one year after such date of
incurrence), which under generally accepted accounting principles
should be shown on the balance sheet as a liability.
<PAGE>
"Subsidiary" means any corporation of which at the time of
determination Arvin and/or one or more Subsidiaries owns or controls
directly or indirectly more than 50 percent of the shares of Voting
Stock.
"Unrestricted Subsidiary" means (a) any Subsidiary acquired or
organized after the date of the Senior Indenture, provided, however,
that such Subsidiary is not a successor, directly or indirectly, to,
and does not directly or indirectly own any equity interest in, any
Restricted Subsidiary, (b) any Subsidiary the principal business and
assets of which are located outside the United States of America
(including its territories and possessions) or Canada or both, (c) any
Subsidiary the principal business of which consists of financing the
acquisition or disposition of machinery, equipment, inventory,
accounts receivable and other real, personal and intangible property
by Persons including Arvin or a Subsidiary, (d) any Subsidiary the
principal business of which is owning, leasing, dealing in or
developing real property for residential or office building purposes,
and (e) any Subsidiary substantially all the assets of which consist
of stock or other securities of an Unrestricted Subsidiary or
Unrestricted Subsidiaries of the character described in clauses (a)
through (d) of this paragraph, unless and until, in each of the cases
specified in this paragraph, any such designation shall have been
designated to be a Restricted Subsidiary pursuant to clause (b) of the
definition of "Restricted Subsidiary."
PROVISIONS APPLICABLE SOLELY TO SUBORDINATED DEBT SECURITIES
Subordinated Debt Securities will be issued under the
Subordinated Indenture and will rank pari passu with certain other
subordinated debt of the Company that may be outstanding from time to
time and will rank junior to all Senior Indebtedness of the Company
(including any Senior Debt Securities) that may be outstanding from
time to time. The particular terms of the Subordinated Debt
Securities offered by any Prospectus Supplement, including the terms
of subordination and the definition of Senior Indebtedness, may be
modified from those set forth in the following general provisions, as
and to the extent described in the Prospectus Supplement.
SUBORDINATION
The payment of the principal of (and premium, if any) and
interest on the Subordinated Debt Securities is expressly
subordinated, to the extent and in the manner set forth in the
Subordinated Indenture (with any changes therein effected by the terms
of the particular Subordinated Debt Securities indicated in the
Prospectus Supplement), in right of payment to the prior payment in
full of all Senior Indebtedness of the Company.
In the event of any dissolution or winding up, or total or
partial liquidation or reorganization of the Company, whether in
bankruptcy, reorganization, insolvency, receivership or similar
proceeding, the holders of Senior Indebtedness will be entitled to
receive payment in full of all amounts due or to become due on or in
<PAGE>
respect of all Senior Indebtedness before the Holders of the
Subordinated Debt Securities are entitled to receive any payment on
the Subordinated Debt Securities, including principal (or premium, if
any) or interest.
Unless otherwise indicated in the Prospectus Supplement, no
payment in respect of the Subordinated Debt Securities shall be made
if, at the time of such payment, there exists a default in payment
(beyond any applicable grace period) on all or any portion of any
Senior Indebtedness, and such default shall not have been cured or
waived in writing or the benefits of such subordination in the
Subordinated Indenture shall not have been waived in writing by or on
behalf of the holders of such Senior Indebtedness.
If, notwithstanding the foregoing, the Trustee or the Holder of
any of the Subordinated Debt Securities receives any payment or
distribution of any kind before all Senior Indebtedness is paid in
full or payment thereof provided for, such payment or distribution
shall be applied to the payment of all Senior Indebtedness remaining
unpaid, to the extent necessary to pay all Senior Indebtedness in
full, after giving effect to any concurrent payment or distribution to
or for the holders of Senior Indebtedness.
The term "Senior Indebtedness" is defined in the Subordinated
Indenture as Indebtedness (which includes any Senior Debt Securities),
either outstanding as of the date of the Subordinated Indenture or
subsequently issued, that by its terms is not subordinated in right of
payment to any unsecured Indebtedness of the Company or is pari passu
with subordinated Indebtedness of the Company.
The term "Indebtedness," as applied to any Person, is defined in
the Subordinated Indenture as all indebtedness, whether or not
represented by bonds, debentures, notes or other securities, created
or assumed by such Person for the repayment of money borrowed, and
obligations, computed in accordance with generally accepted accounting
principles, as lessee under leases that should be, in accordance with
generally accepted accounting principles, treated as capital leases.
All Indebtedness secured by a lien upon property owned by Arvin or any
Subsidiary and upon which Indebtedness such Person customarily pays
interest, although such Person has not assumed or become liable for
the payment of such Indebtedness, shall be deemed to be Indebtedness
of such Person. All Indebtedness of others guaranteed as to payment
of principal by such Person or in effect guaranteed by such Person
through a contingent agreement to purchase such Indebtedness shall
also be deemed to be indebtedness of such Person.
If Subordinated Debt Securities are issued under the Subordinated
Indenture, the aggregate principal amount of Senior Indebtedness
outstanding as of a recent date will be set forth in the related
Prospectus Supplement. The Subordinated Indenture does not restrict
the amount of Senior Indebtedness that Arvin may incur.
CONVERSION
<PAGE>
The terms on which Subordinated Debt Securities of any series are
convertible into Common Shares or other securities of the Company will
be set forth in the Prospectus Supplement relating thereto. Except as
otherwise indicated in the Prospectus Supplement, any right to convert
Subordinated Debt Securities called for redemption will terminate at
the close of business on the redemption date. In the case of
Subordinated Debt Securities convertible into Common Shares, the
initial conversion price will be subject to appropriate adjustment in
certain events, including: (i) a dividend or distribution on the
Common Shares in Common Shares; (ii) a subdivision or combination of
the Common Shares; (iii) an issuance to all holders of Common Shares
of certain rights (other than the Rights, as defined below under "--
Preferred Share Purchase Rights") or warrants entitling them (for a
period expiring within 45 days after the relevant record date) to
subscribe for or purchase Common Shares at less than the current
market price; and (iv) a distribution on the Common Shares of
evidences of indebtedness of the Company or assets (other than cash
dividends or distributions from retained earnings) or rights (other
than Rights) or warrants to subscribe for or purchase any of its
securities (other than those referred to above).
In addition, except as otherwise indicated in the Prospectus
Supplement, in any of the following events: (i) the reclassification
or change of outstanding Common Shares (other than certain changes in
par value, or as a result of a subdivision or combination); (ii) any
consolidation, merger or combination of the Company as a result of
which holders of Common Shares shall be entitled to receive stock,
securities or other assets with respect to or in exchange for such
Common Shares; or (iii) any sale or conveyance of the assets of the
Company as, or substantially as, an entirety to any other entity as a
result of which holders of Common Shares shall be entitled to receive
stock, securities or other assets with respect to or in exchange for
such Common Shares; then, in any such event, the Holders of
Subordinated Debt Securities that are convertible into Common Shares
shall have the right to convert such Subordinated Debt Securities into
the kind and amount of shares of stock and other securities or assets
receivable upon such event by a holder of the number of Common Shares
issuable upon conversion of such Subordinated Debt Securities
immediately prior to such event.
No adjustment of the conversion price will be required to be made
in any case until cumulative adjustments amount to at least one
percent of the current conversion price. The Company reserves the
right to make such reductions in the conversion price, in addition to
those required in the foregoing provisions, as the Company in its
discretion shall determine to be advisable in order that certain
stock-related distributions hereafter made by the Company to its
shareholders will not be taxable. Each Common Share issued upon
conversion will, in certain circumstances and subject to certain terms
and conditions set forth in the Rights Agreement, include the
associated Rights. See "-- Preferred Share Purchase Rights."
Fractional Common Shares will not be issued upon conversion of
Subordinated Debt Securities that are convertible into Common Shares,
<PAGE>
but, in lieu thereof, the Company will pay a cash adjustment based
upon the market price of the Common Shares.
Except as otherwise indicated in the Prospectus Supplement,
Subordinated Debt Securities surrendered for conversion during the
period from the close of business on any Regular Record Date next
preceding any Interest Payment Date to the opening of business on such
Interest Payment Date (except the Securities of any series called for
redemption on a redemption date during such period) must be
accompanied by payment of an amount equal to the interest thereon
which the registered Holder is to receive. In the case of any
Subordinated Debt Security which has been converted after any Regular
Record Date but on or before the next Interest Payment Date (except
Securities of any series whose Maturity is prior to such Interest
Payment Date), interest whose Stated Maturity is on such Interest
Payment Date will be payable on such Interest Payment Date
notwithstanding such conversion, and such interest shall be paid to
the Holder of such Security on such Regular Record Date. Except as
described above, no interest on converted Securities will be payable
by the Company on any Interest Payment Date subsequent to the date of
conversion. No other payment or adjustment for interest or dividends
is to be made upon conversion.
The conversion price for any Subordinated Debt Securities that
are convertible into securities of the Company other than Common
Shares will be subject to such adjustment as may be set forth in the
related Prospectus Supplement.
DESCRIPTION OF CAPITAL SHARES
GENERAL
Under the Company's Restated Articles of Incorporation (the
"Articles of Incorporation") the Company is authorized to issue
50,000,000 Common Shares, par value $2.50 per share, 22,095,003 of
which were issued and outstanding as of January 2, 1994, and 8,978,058
preferred shares, without par value (the "Preferred Shares"), none of
which were outstanding as of January 2, 1994, which may be issued at
any time by the Board of Directors in such series with such terms as
it may fix in resolutions providing for the issuance thereof. The
number of authorized Preferred Shares includes 500,000 authorized
Series C Junior Participating Preferred Shares (the "Series C
Preferred Shares") issuable under the Rights Agreement (as described
below), none of which were outstanding as of January 2, 1994. The
number of authorized Series C Preferred Shares may be increased from
time to time by resolution of the Board of Directors. See "--
Preferred Share Purchase Rights." The Company may issue the remainder
of the Preferred Shares in one or more series.
COMMON SHARES
Subject to the prior dividend rights of the Preferred Shares,
holders of the Common Shares are entitled to receive dividends and
other distributions, when and as declared by the Board of Directors of
<PAGE>
the Company. Certain of the long-term debt obligations of the Company
contain covenants that may indirectly restrict the payment of
dividends on shares of its capital stock, although none materially
limits the Company's ability to pay dividends at the date of this
Prospectus. Any such material limitations will be described in a
Prospectus Supplement relating to Common Shares.
Holders of Common Shares are entitled to one vote for each share
held, and except as required by the Indiana Business Corporation Law
(the "IBCL") or as may be otherwise specifically provided in an
amendment to the Articles of Incorporation, vote together with any
Preferred Shares having general voting rights as a single class.
After creditors and the prior rights of any Preferred Shares have
been satisfied upon any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Company, the holders
of the Common Shares are entitled to share ratably in the remaining
assets of the Company.
The Common Shares have no conversion privileges or preemptive
rights and, except as described below, are not subject to redemption
at the option of the Company. The Articles of Incorporation, the IBCL
and, from time-to-time, various loan agreements to which the Company
is or may become a party may restrict the Company's ability to redeem
or repurchase its own shares in other situations.
The Common Shares are listed on the New York Stock Exchange and
the Chicago Stock Exchange. The transfer agent and registrar of the
Common Shares is Harris Trust and Savings Bank, Chicago, Illinois.
PROVISIONS WITH POSSIBLE ANTI-TAKEOVER EFFECTS
The Company's By-Laws currently provide for the classification of
the Board of Directors into three classes. The Articles of
Incorporation limit the number of directors that may be elected to not
less than 12 or more than 17 (exclusive of such number of Directors as
may be elected by any class of shares of the Company other than the
Common Shares on account of specified dividend arrearages in
accordance with the Articles of Incorporation), permit removal of
directors only for cause and only by the affirmative vote of two-
thirds of the outstanding voting shares, establish the power to make,
alter, amend or repeal the By-Laws exclusively in the Board of
Directors and require that any merger, dissolution or other
significant restructuring of the Company be approved by 80% of the
directors or by 80% of the shares outstanding and entitled to vote
thereon (which shareholder vote is also required to amend these
provisions). The By-Laws also provide that amendments thereof require
an affirmative vote of two-thirds of the directors then in office.
The Articles of Incorporation provide that the By-Laws may contain
provisions requiring the disclosure to the Company of the names of
beneficial owners of Common Shares and imposing sanctions in the event
of nondisclosure (such as prohibiting voting by, withholding dividends
to, and redeeming the Common Shares held by, the non-disclosing record
<PAGE>
holder). The Company's By-Laws do not currently contain such
provisions.
In addition, the Articles of Incorporation provide that if any
person who is the beneficial owner of more than 50% of the Company's
outstanding Common Shares acquires any additional shares pursuant to a
tender offer or if any person or entity becomes the beneficial owner
of more than 50% of the Company's outstanding Common Shares in a
tender offer for such shares, not approved by a majority of the Board
of Directors who are unaffiliated with the person or entity making the
tender offer, then all holders of Common Shares (and holders of
rights, options, warrants and securities then exercisable or
convertible into Common Shares), other than the acquiring person, are
entitled for a limited period to have the Company repurchase any or
all of their shares at the "repurchase price." The "repurchase price"
is the greater of (a) the highest per share price paid by the person
or entity making the tender offer within the prior eighteen months
(plus aggregate earnings per Common Share for the preceding four
quarters less cash dividends paid on Common Shares during those four
quarters), or (b) the shareholder equity per Common Share. These
provisions of the Articles of Incorporation can be amended by only an
80% shareholder vote, subject to certain other limitations. The
Company's obligation to repurchase shares is limited by the IBCL and
could be limited by the terms and provisions of outstanding Preferred
Shares or loan or other agreements to which the Company might be a
party. See also "-- Preferred Share Purchase Rights."
Chapter 42 of the IBCL eliminates the voting rights of certain
shares ("control shares") held by persons ("acquiring persons") who
acquire shares giving them one-fifth, one-third or a majority of the
voting power of certain corporations, including the Company. Control
shares acquired in a control share acquisition retain the same voting
rights as were accorded the shares before the control share
acquisition only to the extent granted by resolutions approved by the
disinterested shareholders. If shareholders approve the voting rights
of control shares and a shareholder has acquired control shares with a
majority or more of the voting power, all shareholders of the
corporation are entitled to exercise statutory dissenters' rights and
to demand the value of their shares in cash from the corporation. If
voting rights are not accorded to the control shares, the corporation
has the right to redeem them. In addition, if authorized in a
corporation's articles of incorporation or by-laws, the corporation
may for a period of time redeem the shares that caused a person to
become an acquiring person at their fair value unless the acquiring
person provides certain information to the corporation. The Company's
By-Laws authorize such a redemption. The provisions of Chapter 42 do
not apply to acquisitions of voting power pursuant to a merger or
share exchange agreement to which the corporation is a party.
Chapter 43 of the IBCL imposes certain restrictions on the
ability of an "interested shareholder," which includes a beneficial
owner of at least 10% of the outstanding voting shares, of a "resident
domestic corporation" (such as the Company) to engage in a "business
combination," as defined in the statute, with the resident domestic
<PAGE>
corporation unless certain requirements are met (including a waiting
period of five years after the shareholder becomes an interested
shareholder unless the corporation's board of directors approved the
acquisition of 10% or more of the voting shares or the business
combination, prior to the share acquisition date). Following the
five-year period, a business combination may be effected with an
interested shareholder only if (a) the business combination is
approved by the corporation's shareholders, excluding the interested
shareholder and any of its affiliates or associates, or (b) the
consideration to be received by shareholders in the business
combination meets certain fairness criteria set forth in Chapter 43.
Chapter 43 broadly defines the term "business combination" to include
mergers, sales or leases of assets, transfers of shares of the
corporation, proposals for liquidation and the receipt by an
interested shareholder of any financial assistance or tax advantage
from the corporation, except proportionately as a shareholder of the
corporation.
The overall effect of the above provisions may be to discourage,
or render more difficult, a merger, tender offer, proxy contest, the
assumption of control of the Company by a holder of a large block of
the Company's shares or other person, or the removal of incumbent
management, even if such actions may be beneficial to the Company's
shareholders generally.
PREFERRED SHARE PURCHASE RIGHTS
Each outstanding Common Share includes one Right (individually a
"Right" and collectively the "Rights") to purchase one one-hundredth
of a Series C Preferred Share, which series currently consists of
500,000 Preferred Shares, all of which have been reserved for issuance
upon exercise of the Rights. The terms and conditions of the Rights
are governed by a Rights Agreement dated as of May 29, 1986, as
amended by an amendment dated as of February 23, 1989 (the "Rights
Agreement"), between the Company and Harris Trust and Savings Bank.
The description of the Rights contained herein is qualified in its
entirety by reference to the Rights Agreement which is filed as part
of the Company's Current Report on Form 8-K dated June 16, 1986 and
the amendment thereto which is filed with the Company's Current Report
on Form 8-K dated February 23, 1989 and incorporated by reference
herein.
Currently, the Rights are not exercisable, certificates
representing Rights have not been issued and the Rights automatically
trade with the Common Shares. However, ten days after a person or
group either acquires beneficial ownership of 20% or more of the
outstanding Common Shares (such person or group being called an
"Acquiring Person") or makes an offer to acquire 20% or more of the
outstanding Common Shares, the Rights become exercisable, certificates
representing the Rights will be issued as soon as practicable
thereafter and the Rights will begin to trade independently from the
Common Shares. At no time will the Rights have any voting power.
When the Rights become exercisable, a holder thereof will become
entitled to buy one one-hundredth of a newly-issued Series C Preferred
<PAGE>
Share for each Right at an exercise price of $90, subject to certain
anti-dilution adjustments. Each Series C Preferred Share will be
entitled to one vote per share, voting together with the Common Shares
and to certain other voting rights. See "Preferred Shares." Holders
of Series C Preferred Shares also have special rights to participate
in the election of two additional directors in the event of certain
dividend arrearages. Each Series C Preferred Share, if and when
issued upon the exercise of a Right, will be entitled to a minimum
preferential quarterly dividend at the rate of $25 per share, but
subject to certain adjustments will be entitled to an aggregate
dividend of 100 times the dividend declared per Common Share in the
preceding quarter. The holders of the Series C Preferred Shares will
receive a preferred liquidation payment of $100 per share, but will be
entitled to receive an aggregate liquidation payment equal to 100
times the payment made per Common Share.
In the event that any person or group becomes an Acquiring Person
other than through a cash tender offer for all outstanding Common
Shares in which such person increases its beneficial ownership from
below 20% to at least 80% of the outstanding Common Shares or in the
event a transaction occurs that increases the Acquiring Person's
proportionate ownership of the Common Shares, each Right (other than
those held by an Acquiring Person) will become exercisable, at the
current exercise price of the Right, for that number of Common Shares
having, at the time of such event, a market value of two times the
exercise price of the Right. Furthermore, if following the
acquisition by a person or group of 20% or more of the outstanding
Common Shares, the Company is involved in a merger or other business
combination transaction or the Company sells or transfers assets or
earnings power aggregating more than 50% of the assets or earning
power of the Company, each Right will become exercisable, at the
current exercise price of the Right, for that number of shares of
common stock of the acquiring company having, at the time of such
event, a market value of two times the exercise price of each Right.
The Rights are subject to redemption by the Board of Directors
for $.10 per Right (subject to adjustment) until a person or group
becomes an Acquiring Person. Any redemption is effective at such
time, on such basis and with such conditions as the Board of Directors
in its sole discretion establishes. The Rights expire on June 13,
1996, unless earlier redeemed.
The purchase price payable, and the number of Series C Preferred
Shares or other securities or property issuable upon exercise of the
Rights, are subject to adjustment from time to time to prevent
dilution under certain circumstances.
So long as the Rights are attached to the Common Shares, the
Company will issue one Right with each new Common Share so that all
Common Shares issued will have attached Rights. The Company will also
issue one Right with each new Common Share (a) issuable upon
conversion of any convertible security issued prior to such time, if
any, that the Rights are no longer attached to the Common Shares and
(b) issued upon exercise of options to purchase the Common Shares
<PAGE>
granted by the Company prior to such time, if any, that the Rights are
no longer attached to the Common Shares.
The Rights have certain anti-takeover effects. The Rights will
cause substantial dilution to a person who attempts to acquire the
Company without conditioning his offer on a substantial number of the
Rights being acquired. The Rights will also adversely affect a person
who desires to obtain control of the Company without acquiring at
least 80% ownership through a cash tender offer for all outstanding
Common Shares. The Rights will not affect a transaction approved by
the Board of Directors of the Company prior to the existence of an
Acquiring Person because the Rights can be redeemed.
PREFERRED SHARES
The following description of Preferred Shares sets forth certain
general terms and provisions of any series of Preferred Shares to
which any Prospectus Supplement may relate. The specific terms of a
particular series of Preferred Shares will be described in the
Prospectus Supplement relating to such series of Preferred Shares. If
so indicated in the related Prospectus Supplement, the terms of any
such series of Preferred Shares may differ from the terms set forth
below. The description of Preferred Shares set forth below and the
description of a particular series of Preferred Shares set forth in
the Prospectus Supplement relating thereto do not purport to be
complete and are qualified in their entirety by reference to the
Articles of Incorporation, and any amendments thereto relating to such
series of Preferred Shares, which are filed or incorporated by
reference as an exhibit to the Registration Statement of which this
Prospectus is a part.
Under the Articles of Incorporation the Board of Directors of the
Company is authorized to issue Preferred Shares 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 without any further vote or action by the Company's
stockholders.
The specific terms of a particular series of Preferred Shares
offered hereby will be described in the applicable Prospectus
Supplement, which will specify the terms of the Preferred Shares as
follows:
(a) the maximum number of shares to constitute the series
and the distinctive designations thereof;
(b) the annual dividend rate, if any, on shares of the
series and the date or dates from which dividends shall commence
to accrue or accumulate, and whether the dividends shall be
cumulative, and the dividend preference, if any, applicable to
the shares of the series;
<PAGE>
(c) the price and the terms and conditions on which the
shares of the series may be redeemed, including the time during
which shares of the series 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, applicable to the
shares of the series;
(e) whether the shares of the series will be subject to the
operation of a retirement or sinking fund, and if so, the extent
and manner in which any such retirement or sinking 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 relative to the operations of such retirement or
sinking 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
Company or any series of any other class or classes, 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, provided that shares of such series
may not be convertible into shares of a series or class that has
prior or superior rights and preferences as to dividends or
distribution of assets of the Company upon voluntary or
involuntary dissolution or winding up of the affairs of the
Company;
(g) the voting rights, if any, of the shares of the series;
(h) whether fractional interest in shares of the series
will be offered in the form of Depositary Shares as described
below under "Description of Depositary Shares;" and
(i) any or all other preferences and relative,
participating, optional, or other special rights, or
qualifications, limitations or restrictions thereof.
Any Prospectus Supplement that specifies the terms of Preferred Shares
will also describe any restriction on the repurchase or redemption of
shares by the Company while there is any arrearage in the payment of
dividends or, if applicable, sinking fund installments, or, if there
is no such restriction, will so state.
In addition to such voting rights as may be provided for in any
series of Preferred Shares established by the Board of Directors of
the Company, under the Articles of Incorporation, the holders of at
least two-thirds of the total number of outstanding Preferred Shares,
voting together as a single class, must approve any amendment to the
Articles of Incorporation which would authorize any class of shares,
or of securities convertible into shares, which would rank prior to
the then outstanding Preferred Shares as to payment of dividends, or
<PAGE>
as to distribution of assets upon liquidation, dissolution or winding
up of the Company or any amendment to the Articles of Incorporation
which would change the designation, rights or preferences of such
outstanding Preferred Shares so as to affect them adversely. If any
such change would adversely affect any particular series of then
outstanding Preferred Shares, no change may be made without, in
addition, the approval of the holders of at least two-thirds of the
then outstanding shares of the particular series that would be so
affected, voting separately as a series. The Articles of
Incorporation also provide that additional Preferred Shares may not be
authorized and that a class of shares that would rank on parity with
outstanding Preferred Shares as to assets or dividends may not be
authorized without the consent of the holders of at least a majority
of the total number of outstanding Preferred Shares, voting separately
as a class, without regard to series.
The holders of Preferred Shares also have the right, voting
separately as a class or series, to cast one vote per share upon each
question or matter in respect of which, under the IBCL, such holders
are entitled to vote by class or series.
In addition to any series of Preferred Shares that may be
described in the applicable Prospectus Supplement, the Articles of
Incorporation authorize 500,000 preferred shares designated Series C
Preferred Shares to be issued upon exercise of the Rights in
accordance with the Rights Agreement. See "Preferred Share Purchase
Rights" for a description of the Rights and the rights and preferences
of the Series C Preferred Shares.
DESCRIPTION OF DEPOSITARY SHARES
The descriptions set forth below and in any Prospectus Supplement
of certain provisions of any Deposit Agreement, Depositary Shares and
Depositary Receipts (each as defined below) do not purport to be
complete and are subject to and qualified in their entirety by
reference to the forms of Deposit Agreement and Depositary Receipts
relating to each series of Preferred Shares, which are filed or
incorporated by reference as exhibits to the Registration Statement.
GENERAL
The Company may, at its option, elect to offer fractional
interests in Preferred Shares, rather than whole Preferred Shares. In
that event, the Company expects to provide for the issuance by a
Depositary of receipts for depositary shares ("Depositary Shares"),
each of which will represent a fractional interest in Preferred Shares
of a particular series, as set forth in the Prospectus Supplement
relating to the Depositary Shares and the particular series of
Preferred Shares.
The shares of any series of Preferred Shares underlying the
Depositary Shares will be deposited under a separate Deposit Agreement
(a "Deposit Agreement") between the Company, a bank or trust company
selected by the Company having its principal office in the United
<PAGE>
States and having a combined capital and surplus of at least
$50,000,000 (a "Depositary") and the holders of the Depositary Shares.
The Prospectus Supplement relating to a series of Depositary Shares
will set forth the name and address of the Depositary. Subject to the
terms of the Deposit Agreement, each holder of Depositary Shares will
be entitled, in proportion to the applicable fractional interest in
the Preferred Shares underlying such Depositary Shares, to the rights
and preferences of the underlying Preferred Shares (including any
dividend, voting, redemption, conversion, exchange and liquidation
rights).
The Depositary Shares will be evidenced by depositary receipts
issued pursuant to the Deposit Agreement (the "Depositary Receipts").
Depositary Receipts will be distributed to those persons purchasing
the fractional interests in shares of the related series of Preferred
Shares in accordance with the terms of the offering described in the
related Prospectus Supplement.
DIVIDENDS AND OTHER DISTRIBUTIONS
Whenever the Depositary receives any cash dividend or other cash
distribution on the Preferred Shares, except cash received upon
redemption of any Preferred Shares, the Depositary will distribute all
such cash dividends or other cash distributions received to the record
holders of Depositary Receipts relating to such Preferred Shares in
proportion, as nearly as practicable, to the respective numbers of
such Depositary Shares evidenced by such Depositary Receipts, but
without attributing to any holder of Depositary Shares a fraction of
one cent. Any balance not so distributed shall be held by the
Depositary (without liability for interest thereon) and treated as a
part of the next sum received by the Depositary for distribution to
record holders of the Depositary Receipts.
In the event of a distribution on the Preferred Shares other than
in cash, the Depositary will distribute to the record holders of
Depositary Receipts entitled thereto such amounts of the property so
received in proportion, as nearly as practicable, to the respective
numbers of Depositary Shares evidenced by such receipts. If the
Depositary determines, after consultation with the Company, that such
distribution cannot be made proportionately among such holders or is
otherwise not feasible, the Depositary may, with the approval of the
Company, sell such property and distribute the net proceeds to such
holders.
The Deposit Agreement will also contain provisions relating to
the manner in which any subscription or similar rights offered by the
Company to holders of the Preferred Shares shall be made available to
the holders of Depositary Receipts.
REDEMPTION OF DEPOSITARY SHARES
If a series of the Preferred Shares underlying the Depositary
Shares is subject to redemption, the Depositary Shares will be
redeemed from the proceeds received by the Depositary from the
<PAGE>
redemption, in whole or in part, of such Preferred Shares held by the
Depositary. The Depositary shall mail notice of redemption not less
than 30 nor more than 60 days prior to the date fixed for redemption
to the record holders of the Depositary Receipts to be so redeemed at
their respective addresses appearing in the Depositary's books. The
redemption price per Depositary Share being redeemed will be equal to
the applicable fraction of the redemption price per share payable with
respect to such of the Preferred Shares as are redeemed. Whenever the
Company redeems Preferred Shares held by the Depositary, the
Depositary will redeem as of the same redemption date the number of
Depositary Shares relating to the Preferred Shares so redeemed. If
less than all of the Depositary Shares are to be redeemed, the
Depositary Shares to be redeemed will be selected by lot or pro rata
as may be determined by the Company.
After the date fixed for redemption, the Depositary Shares so
called for redemption will no longer be deemed to be outstanding and
all rights (except the right to receive the redemption price) of the
holders of the Depositary Shares will cease and terminate.
VOTING THE PREFERRED SHARES
Upon receipt of notice of any meeting at which the holders of the
Preferred Shares are entitled to vote, the Depositary will mail the
information contained in such notice of meeting to the record holders
of the Depositary Receipts relating to such Preferred Shares. Upon
the written request of a holder of a Depositary Receipt on such record
date, the Depositary shall, to the extent practicable, vote or cause
to be voted the amount of Preferred Shares represented by such
holder's Depositary Shares in accordance with the instructions set
forth in such request. In the absence of specific instructions from
the holder of a Depositary Receipt, the Depositary will abstain from
voting to the extent of Preferred Shares represented by the Depositary
Shares evidenced by such Depositary Receipt.
AMENDMENT AND TERMINATION OF DEPOSITARY AGREEMENT
The form of Depositary Receipt and any provision of the Deposit
Agreement may at any time be amended by agreement between the Company
and the Depositary. However, any amendment which (i) materially and
adversely alters the rights of the existing holders of Depositary
Shares or (ii) would be materially and adversely inconsistent with the
rights granted to the holders of Preferred Shares will not be
effective unless such amendment has been approved by the holders of at
least a majority of the Depositary Shares then outstanding.
A Deposit Agreement may be terminated by the Company on not less
than 30 days' notice to the Depositary, in which case, upon surrender
of Depositary Receipts, the Depositary will distribute to the holders
thereof the whole number of Preferred Shares represented thereby. The
Deposit Agreement will terminate automatically if (i) all outstanding
Depositary Shares relating thereto have been redeemed or converted,
(ii) if applicable, each underlying Preferred Share has been converted
into or exchanged for Common Shares or other securities or (iii) there
<PAGE>
has been a final distribution in respect of the underlying Preferred
Shares in connection with any liquidation, dissolution or winding up
of the Company and such distribution has been made to the holders of
the related Depositary Shares.
CHANGES OF DEPOSITARY
The Company will pay all transfer and other taxes and
governmental charges arising solely from the existence of the
depositary arrangements. The Company will pay charges of the
Depositary in connection with the initial deposit of the Preferred
Shares and any redemption of the Preferred Shares. Holders of
Depositary Shares will pay transfer and other taxes and governmental
charges and such other charges as are expressly provided in the
Deposit Agreement to be for their accounts.
The Depositary may resign at any time by notice to the Company,
and the Company may remove the Depositary at any time, any such
resignation or removal to take effect upon the appointment of a
successor Depositary and its acceptance of such appointment. Such
successor Depositary must be appointed within 60 days after the notice
of resignation or removal and must be a bank or trust company having
it principal office in the United States and having a combined capital
and surplus of at least $50,000,000. If a successor Depositary is not
appointed within 60 days, the resigning or removed Depositary may
petition a court to appoint a successor Depositary.
MISCELLANEOUS
The Depositary will forward to the holders of Depositary Receipts
all reports and notices from the Company which are delivered to the
Depositary and which the Company is required to furnish to the holders
of the Preferred Shares.
Neither the Depositary nor the Company will be liable if it is
prevented or delayed by law or any circumstances beyond its control in
performing its obligations under the Deposit Agreement. The
obligations of the Company and the Depositary under the Deposit
Agreement will be limited to performance in good faith of their duties
thereunder, and they will not be obligated to prosecute or defend any
legal proceeding in respect of any Depositary Shares or Preferred
Shares unless satisfactory indemnity is furnished. They may rely upon
written advice of counsel or accountants, or information provided by
persons believed to be competent and on documents believed to be
genuine.
DESCRIPTION OF WARRANTS
The Company may issue Warrants, including Warrants to purchase
Debt Securities ("Debt Warrants") and Warrants to purchase Common
Shares, Preferred Shares or Depositary Shares ("Equity Warrants").
Warrants may be issued independently of or together with any other
Securities and may be attached to or separate from such Securities.
Each series of Warrants will be issued under a separate Warrant
<PAGE>
Agreement (each a "Warrant Agreement") to be entered into between the
Company and a Warrant Agent ("Warrant Agent"). The Warrant Agent will
act solely as an agent of the Company in connection with the Warrant
of such series and will not assume any obligation or relationship of
agency for or with holders or beneficial owners of Warrants. The
following sets forth certain general terms and provisions of the
Warrants offered hereby. Further terms of the Warrants and the
applicable Warrant Agreement will be set forth in the applicable
Prospectus Supplement.
DEBT WARRANTS
The applicable Prospectus Supplement will describe the terms of
any Debt Warrants, including the following:
(i) the title and aggregate number of such Debt Warrants;
(ii) the offering price of such Debt Warrants, if any;
(iii) whether such Debt Warrants are to be issued with
any Debt Securities and, if so, the title, aggregate principal
amount and terms of any such Debt Securities; the number of Debt
Warrants to be issued with each $1,000 principal amount of such
Debt Securities (or such other principal amount as is provided by
the Company); and the date, if any, on and after which such Debt
Warrants and such Debt Securities will be separately
transferable;
(iv) the title, aggregate principal amount, ranking and
terms (including any subordination and conversion provisions) of
the underlying Debt Securities that may be purchased upon
exercise of such Debt Warrants;
(v) the time or times at which, or period or periods during
which, such Debt Warrants may be exercised, the minimum or
maximum amount of Debt Warrants which may be exercised at any one
time and the final date on which such Debt Warrants may be
exercised;
(vi) the principal amount of Underlying Debt Securities that
may be purchased upon exercise of each Debt Warrant and the
price, or the manner of determining the price, at which such
principal amount may be purchased upon such exercise;
(vii) the terms of any right to redeem or call such Debt
Warrants; and
(viii) information with respect to book-entry procedures,
if any;
(ix) the currency or currency units in which the offering
price, if any, and the exercise price are payable;
<PAGE>
(x) if applicable, a discussion of certain United States
federal income tax considerations;
(xi) any other terms of such Debt Warrants not inconsistent
with the provisions of the Debt Warrant Agreement.
EQUITY WARRANTS
The applicable Prospectus Supplement will describe the terms of
any Equity Warrants, including the following:
(i) the title and aggregate number of such Equity Warrants;
(ii) the offering price of such Equity Warrants, if any;
(iii) the designation and terms of any Preferred Shares
that are purchasable on exercise of such Equity Warrants or that
underlie Depositary Shares purchasable on such exercise;
(iv) if applicable, the designation and terms of the
Securities with which such Equity Warrants are issued and the
number of such Equity Warrants issued with each such Security;
(v) if applicable, the date from and after which such
Equity Warrants and any Securities issued therewith will be
separately transferrable;
(vi) the number of Common Shares, Preferred Shares or
Depositary Shares purchasable upon exercise of an Equity Warrant
and the price at which such shares may be purchased upon
exercise;
(vii) the time or times at which, or period or periods
during which, such Equity Warrants may be exercised and the final
date on which such Equity Warrants may be exercised, and the
terms of any right of the Company to accelerate such final date
upon the occurrence of certain events;
(viii) if applicable, the minimum or maximum amount of such
Equity Warrants which may be exercised at any one time;
(ix) the currency or currency units in which the offering
price, if, any, and the exercise price are payable;
(x) any applicable antidilution provisions of such Equity
Warrants;
(xi) if applicable, a discussion of certain United States
federal income tax considerations;
(xii) the redemption or call provisions, if any, applicable
to such Equity Warrants; and
<PAGE>
(xiii) any additional terms of such Equity Warrants, not
inconsistent with the provisions of the Equity Warrant Agreement.
PLAN OF DISTRIBUTION
Arvin may sell the Securities: (i) through underwriters or
dealers; (ii) directly to a limited number of purchasers or to a
single purchaser; or (iii) through agents. The Prospectus Supplement
with respect to the Securities will set forth the terms of the
offering, the purchase price of the Securities and the proceeds to the
Company from such sale, any underwriters, dealers or agents, any
delayed delivery arrangements, any fees, underwriting discounts and
other items constituting underwriters' compensation, any initial
public offering price and any discounts or concessions allowed or
reallowed or paid to dealers. Any initial public offering price and
any discounts or concessions allowed or reallowed or paid to dealers
may be changed from time to time.
If underwriters are used in the sale, the 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 Securities may be offered to the
public either through underwriting syndicates represented by one or
more managing underwriters or directly by one or more firms acting as
underwriters. The underwriter or underwriters with respect to a
particular underwritten offering of Securities to be named in the
Prospectus Supplement relating to such offering or, if an underwriting
syndicate is used, the managing underwriter or underwriters will be
set forth on the cover of such Prospectus Supplement. Unless
otherwise set forth in the Prospectus Supplement relating thereto, the
obligations of the underwriters to purchase the Securities will be
subject to conditions precedent and the underwriters will be obligated
to purchase all the Securities offered by the Prospectus Supplement if
any are purchased.
If dealers are utilized in the sale of Securities in respect of
which this Prospectus is delivered, the Company will sell such
Securities to the dealers as principals. The dealers may then resell
such Securities to the public at varying prices to be determined by
such dealers at the time of resale. The names of the dealers and the
terms of the transaction will be set forth in the Prospectus
Supplement relating thereto.
The Securities may be sold directly by the Company or through
agents designated by the Company from time to time. Any agent
involved in the offer or sale of the Securities in respect to which
this Prospectus is delivered will be named, and any commissions
payable by Arvin to such agent will be set forth in the Prospectus
Supplement relating thereto. Unless otherwise indicated in the
Prospectus Supplement, any such agent will be acting on a best efforts
basis for the period of its appointment.
<PAGE>
The Securities may be sold directly by the Company to
institutional investors or others, who may be deemed to be
underwriters within the meaning of the Securities Act with respect to
any resale thereof. The terms of any such sales will be described in
the Prospectus Supplement relating thereto.
If so indicated in the Prospectus Supplement, the Company will
authorize agents, underwriters or dealers to solicit offers from
certain types of institutions to purchase Securities from the Company
at the public offering price set forth in the Prospectus Supplement
pursuant to delayed delivery contracts providing for payment and
delivery on a specified date in the future. Such contracts will be
subject only to those conditions set forth in the Prospectus
Supplement, and the Prospectus Supplement will set forth the
commission payable for solicitation of such contracts.
Agents, dealers and underwriters may be entitled under agreements
entered into with the Company to indemnification by the Company
against certain civil liabilities, including liabilities under the
Securities Act, or to contribution with respect to payments which such
agents, dealers or underwriters may be required to make in respect
thereof. Agents, dealers and underwriters may be customers of, engage
in transactions with, or perform services for the Company in the
ordinary course of business.
Other than the Common Shares, which will be approved for listing
upon notice of issuance on the New York Stock Exchange and the Chicago
Stock Exchange, the Securities may or may not be listed on a national
securities exchange. No assurances can be given that there will be a
market for the Securities.
LEGAL OPINIONS
The validity of the Securities offered hereby will be passed upon
for the Company by Schiff Hardin & Waite, Chicago, Illinois, and,
unless otherwise specified in the Prospectus Supplement, for any
underwriters or agents by Mayer, Brown & Platt, Chicago, Illinois.
The opinions with respect to the Securities may be conditioned upon,
and subject to certain assumptions regarding, future action to be
taken by the Company and the applicable Trustee, depositary or Warrant
Agent in connection with the issuance and sale of particular
Securities, the specific terms of Securities and other matters that
may affect the validity of Securities but that cannot be ascertained
on the date of such opinions.
<PAGE>
EXPERTS
The financial statements incorporated in this Prospectus by
reference to the Annual Report on Form 10-K for the year ended January
2, 1994, except as they relate to Space Industries International,
Inc., have been so incorporated in reliance on the report of Price
Waterhouse, independent accountants, and, insofar as they relate to
Space Industries International, Inc., KPMG Peat Marwick, independent
certified public accountants, whose report thereon is incorporated in
this Prospectus by reference to the Annual Report on Form 10-K for the
year ended January 2, 1994. Such financial statements have been so
incorporated in reliance on the reports of such independent
accountants given on the authority of such firms as experts in
auditing and accounting.
The report of KPMG Peat Marwick covering the January 2, 1994
financial statements of Space Industries International, Inc. contains
an explanatory paragraph that states that the consolidated balance
sheet as of January 2, 1994 includes $18,154,619 of capitalized costs
related to the Space Facility Technology. As described in Note 4 to
the Space Industries International, Inc. financial statements, the
recovery of these costs is dependent on the future success in selling
the Space Facility Technology or the Industrial Space Facility or the
related service, at profitable terms, or the sale of the engineering
designs of the Industrial Space Facility.
<PAGE>
----------------------------------------------------------------
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO
GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE
CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR THE
ACCOMPANYING PROSPECTUS SUPPLEMENT IN CONNECTION WITH THE OFFER MADE
BY THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY
THE COMPANY OR ANY UNDERWRITERS OR DEALERS. NEITHER THE DELIVERY OF
THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY
CIRCUMSTANCE CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN
THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF. THIS PROSPECTUS
DOES NOT CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN ANY STATE IN
WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE
PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR
TO ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
____________________
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
An itemized statement of the estimated amount of the expenses,
other than underwriting discounts and commissions, incurred and to be
incurred by the Company in connection with the issuance and
distribution of the Securities registered pursuant to this
registration statement is as follows:
Securities and Exchange Commission filing fee . . . . . . $ 77,586.75
Printing and engraving expenses . . . . . . . . . . . . . . 50,000.00
Accounting fees and expenses . . . . . . . . . . . . . . . 40,000.00
Legal fees and expenses . . . . . . . . . . . . . . . . . . 100,000.00
Trustee and agent fees and expenses . . . . . . . . . . . 10,000.00
Rating agency fees . . . . . . . . . . . . . . . . . . . . 80,000.00
Blue sky fees, expenses and legal fees . . . . . . . . . . 10,000.00
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . 32,413.25
-----------
Total . . . . . . . . . . . . . . . . . . . . . . . $400,000.00
-----------
-----------
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 8 of the Amended and Restated By-Laws of Arvin, as
amended, and Article 10 of its Restated Articles of Incorporation, as
amended, both provide for indemnification of officers and directors of
Arvin against expenses incurred by any of them in certain stated
proceedings and under certain stated conditions.
Chapter 37 of the Indiana Business Corporation Law authorizes
every Indiana corporation to indemnify its officers and directors
under certain circumstances against liability incurred in connection
with the defense of proceedings in which they are made parties, or
threatened to be made parties, by reason of such relationship to the
corporation, except where they are adjudged liable for specific types
of negligence or misconduct in the performance of their duties to the
corporation. Chapter 37 also requires every Indiana corporation to
indemnify any of its directors and, unless such corporation's articles
of incorporation provide otherwise, any of its officers who were
wholly successful, on the merits or otherwise, in the defense of any
such proceeding against reasonable expenses incurred by such director
in connection with such proceeding.
Officers and directors of Arvin are presently covered by
insurance which (with certain exceptions and within certain
limitations) indemnifies them against any losses or liabilities
arising from any alleged "wrongful act," including any breach of duty,
neglect, error, misstatement, misleading statement, omission or other
acts done or wrongfully attempted.
<PAGE>
Section 7 of the form of Underwriting Agreement filed as Exhibit
1-1 hereto provides for indemnification by the Underwriters of
officers and directors of Arvin in certain circumstances.
ITEM 16. EXHIBITS.
1-1 Form of Underwriting Agreement.
4-1 Amended and Restated Articles of Incorporation and amendments
thereto (incorporated by reference to Exhibit 3(A) to the
Company's Form 10-K for its fiscal year ended December 30, 1990).
4-2 Amended and Restated By-Laws (incorporated by reference to
Exhibit 3(ii) to the Company's Form 10-Q/A for the quarter ended
July 4, 1993).
4-3 Rights Agreement between the Company and Harris Trust and Savings
Bank, as amended (incorporated by reference to the Company's
Current Report on Form 8-K dated June 16, 1986 and the Company's
Current Report on Form 8-K dated February 23, 1989).
4-4 Indenture, dated as of July 3, 1990, between the Company and
Harris Trust and Savings Bank, as trustee, relating to the Senior
Debt Securities.
4-5 Form of Indenture, dated as of _______________, 1994, to be
entered into between the Company and NBD Bank, N.A., as trustee,
relating to the Subordinated Debt Securities.
4-6 Form of Deposit Agreement, including form of Depositary Receipt
for Depositary Shares.
4-7 Form of Debt Warrant Agreement.
4-8 Form of Equity Warrant Agreement.
5-1 Opinion of Schiff Hardin & Waite.
12-1 Computation of Ratios of Earnings to Fixed Charges and Earnings
to Combined Fixed Charges and Preferred Dividends.
23-1 Consent of Price Waterhouse.
23-2 Consent of KPMG Peat Marwick.
23-3 Consent of Schiff Hardin & Waite (included in Exhibit 5-1).
24-1 Power of Attorney is included below, beginning immediately prior
to "Signatures."
25-1 Form T-1 Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of Trustee for Senior Indenture.
<PAGE>
25-2 Form of T-1 Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of Trustee for Subordinated
Indenture.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(a) to file, during any period in which offers or sales are
being made of the securities registered hereby, 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 fact 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 this
registration statement;
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in this
registration statement or any material change to such
information in the registration statement;
provided, however, that the undertakings set forth in the paragraphs
(i) and (ii) above do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in this registration statement.
(b) 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.
(c) 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.
(d) that, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report
pursuant to Sections 13(a) or 15(d) of the Securities Exchange Act of
1934 that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
<PAGE>
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the provisions
described under Item 15 above, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in such Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered,
the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in such Act and will be
governed by the final adjudication of such issue.
<PAGE>
POWER OF ATTORNEY
Each person whose signature appears below appoints Byron O. Pond,
Ronald R. Snyder and Richard A. Smith, or any of them, as such
person's true and lawful attorneys to execute in the name of each such
person, and to file, any amendments to this registration statement
that any of such attorneys shall deem necessary or advisable in
connection with the registration of the Securities of the Registrant
that are subject to this registration statement, which amendments may
make such changes in such registration statement as any of the above-
named attorneys deems appropriate, and to comply with the undertakings
of the Registrant made in connection with this registration statement;
and each of the undersigned hereby ratifies all that any of said
attorneys shall do or cause to be done by virtue thereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant, Arvin Industries, Inc., certifies that it has reasonable
grounds to believe that it meets all of the requirements for filing on
Form S-3 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the
City of Columbus and State of Indiana, on this 8th day of April, 1994.
ARVIN INDUSTRIES, INC.
By: /s/ Byron O. Pond
----------------------------------
Byron O. Pond, Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons
in the capacities indicated on the dates indicated.
Signature Title Date
/s/ Byron O. Pond President, Chief 4/8/94
_____________________________ Executive Officer and
Byron O. Pond Director
/s/ Richard A. Smith Vice President-Finance, 4/8/94
_____________________________ Chief Financial Officer
Richard A. Smith and Director
/s/ Rex L. Emshwiller Controller and Chief 4/8/94
_____________________________ Accounting Officer
Rex L. Emshwiller
/s/ James K. Baker
_____________________________ Chairman of the Board 4/8/94
James K. Baker
<PAGE>
Signature Title Date
/s/ Joseph P. Allen
_____________________________ Director 4/8/94
Joseph P. Allen
/s/ Steven C. Beering
_____________________________ Director 4/8/94
Steven C. Beering
/s/ Joseph P. Flannery
_____________________________ Director 4/8/94
Joseph P. Flannery
/s/ Robert E. Fowler, Jr.
_____________________________ Director 4/8/94
Robert E. Fowler, Jr.
/s/ William D. George
_____________________________ Director 4/8/94
William D. George
/s/ Ivan W. Gorr
_____________________________ Director 4/8/94
Ivan W. Gorr
/s/ Richard W. Hanselman
_____________________________ Director 4/8/94
Richard W. Hanselman
_____________________________ Director
Thomas A. Holmes
/s/ V. William Hunt
_____________________________ Director 4/8/94
V. William Hunt
/s/ Don J. Kacek
_____________________________ Director 4/8/94
Don J. Kacek
/s/ Frederick R. Meyer
_____________________________ Director 4/8/94
Frederick R. Meyer
_____________________________ Director
Arthur R. Velasquez
<PAGE>
EXHIBIT INDEX
Exhibit
No. Description
1-1 Form of Underwriting Agreement.
4-1 Amended and Restated Articles of Incorporation and amendments
thereto (incorporated by reference to Exhibit 3(A) to the
Company's Form 10-K for its fiscal year ended December 30, 1990).
4-2 Amended and Restated By-Laws (incorporated by reference to
Exhibit 3(ii) to the Company's Form 10-Q/A for the quarter ended
July 4, 1993).
4-3 Rights Agreement between the Company and Harris Trust and Savings
Bank, as amended (incorporated by reference to the Company's
Current Report on Form 8-K dated June 16, 1986 and the Company's
Current Report on Form 8-K dated February 23, 1989).
4-4 Indenture, dated as of July 3, 1990, between the Company and
Harris Trust and Savings Bank, as trustee, relating to the Senior
Debt Securities.
4-5 Form of Indenture, dated as of _______________, 1994, to be
entered into between the Company and NBD Bank, N.A., as trustee,
relating to the Subordinated Debt Securities.
4-6 Form of Deposit Agreement, including form of Depositary Receipt
for Depositary Shares.
4-7 Form of Debt Warrant Agreement.
4-8 Form of Equity Warrant Agreement.
5-1 Opinion of Schiff Hardin & Waite.
12-1 Computation of Ratios of Earnings to Fixed Charges and Earnings
to Combined Fixed Charges and Preferred Dividends.
23-1 Consent of Price Waterhouse.
23-2 Consent of KPMG Peat Marwick.
23-3 Consent of Schiff Hardin & Waite (included in Exhibit 5-1).
24-1 Power of Attorney is included above, beginning immediately prior
to "Signatures."
25-1 Form T-1 Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of Trustee for Senior Indenture.
<PAGE>
25-2 Form of T-1 Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of Trustee for Subordinated
Indenture.
<PAGE>
EXHIBIT 1-1
ARVIN INDUSTRIES, INC.
(an Indiana corporation)
UNDERWRITING AGREEMENT
[Date]
[Name and address of Underwriters
or Representatives]
Dear Sirs:
Arvin Industries, Inc., an Indiana corporation (the "Company"),
proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), (1) the principal amount of its senior debt
securities, if any, identified in Schedule I hereto (the "Senior
Securities"), to be issued under an Indenture dated as of July 3,
1990, between the Company and Harris Trust and Savings Bank, as
trustee (the "Senior Trustee"), as amended (said Indenture, the
"Senior Indenture"); (2) the principal amount of its subordinated debt
securities, if any, identified in Schedule I hereto (the "Subordinated
Securities" and together with the Senior Securities being collectively
referred to herein as the "Debt Securities") to be issued under an
Indenture dated of ___________ ___, 1994 between the Company and NBD
Bank, N.A., as trustee (the "Subordinated Trustee", and together with
the Senior Trustee, the "Trustees") (said Indenture, the "Subordinated
Indenture") (the Senior Indenture and the Subordinated Indenture being
collectively referred to herein as the "Indentures"); (3) warrants, if
any (the "Debt Warrants"), to purchase an aggregate principal amount
of Debt Securities, which warrants are to be issued pursuant to a Debt
Warrant Agreement (the "Debt Warrant Agreement") between the Company
and a warrant agent (the "Debt Warrant Agent"), all as specified in
Schedule I hereto; (4) the preferred shares of the Company, if any,
identified in Schedule I hereto (the "Preferred Shares"); (5)
depositary receipts, if any, evidencing an interest in depositary
shares (the "Depositary Shares") representing an interest in Preferred
Shares of the Company to be issued under a Deposit Agreement (the
"Deposit Agreement") among the Company, a U.S. bank or trust company
as depositary (the "Depositary"), and the holders from time to time of
such depositary receipts all as indicated in Schedule I hereto; (6)
the common shares, par value $2.50 per share, of the Company (the
"Common Shares"), including, if then in existence, the related
preferred share purchase rights (the "Rights") provided for in the
Rights Agreement dated as of May 29, 1986, as amended, between the
Company and Harris Trust and Savings Bank, as rights agent thereunder
(the "Rights Agreement") (all references herein to the Common Shares
shall include the Rights unless the context indicates otherwise), if
<PAGE>
any, as indicated in Schedule I hereto, (7) warrants, if any, to
purchase Preferred Shares (the "Preferred Shares Warrants") of the
Company, which warrants are to be issued pursuant to a Preferred
Shares Warrant Agreement (the "Preferred Shares Warrant Agreement")
between the Company and a warrant agent (the "Preferred Shares Warrant
Agent"), all as specified in Schedule I hereto; (8) warrants, if any,
to purchase Common Shares ("Common Shares Warrants") of the Company,
which warrants are to be issued pursuant to a Common Shares Warrant
Agreement (the "Common Shares Warrant Agreement") between the Company
and a warrant agent (the "Common Shares Warrant Agent"), all as
specified in Schedule I hereto; and/or (9) warrants, if any, to
purchase Depositary Shares (the "Depositary Shares Warrants") of the
Company, which warrants are to be issued pursuant to a Depositary
Shares Warrant Agreement (the "Depositary Shares Warrant Agreement"
and together with each other warrant agreement contemplated herein
being referred to herein collectively as the "Warrant Agreements")
between the Company and a warrant agent (the "Depositary Shares
Warrant Agent" and together with each other warrant agent contemplated
herein being referred to herein collectively as the "Warrant Agents"),
all as specified in Schedule I hereto. The Debt Securities, Debt
Warrants, Preferred Shares, Depositary Shares, Common Shares,
Preferred Shares Warrants, Common Shares Warrants and Depositary
Shares Warrants (all such warrants being referred to herein
collectively as "Warrants") may be sold either separately or as units
(the "Units") together with any of the foregoing. The Debt
Securities, Debt Warrants, Preferred Shares, Depositary Shares, Common
Shares, Preferred Shares Warrants, Common Shares Warrants, Depositary
Shares Warrants and Units described in Schedule I hereto shall
collectively be referred to herein as the "Purchased Securities". The
Company may also grant to the Underwriters an option to purchase up to
such additional number of Purchased Securities as is specified in
Schedule I hereto (the "Option Securities"). The Purchased Securities
and Option Securities shall be collectively referred to herein as the
"Securities". If the firm or firms listed in Schedule II hereto
include only the firm or firms described above as Representatives,
then the terms "Underwriters" and "Representatives", as used herein,
shall each be deemed to refer to such firm or firms.
SECTION 1. Representations and Warranties. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-
3 (No.33-____) relating to the Securities and the offering
thereof from time to time in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "Act") and has filed such
amendments thereto as may have been required to the date hereof.
Such registration statement, as amended, has been declared
effective by the Commission, and the Indentures have each been
qualified under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"). The Company proposes to file with the
Commission pursuant to Rule 424(b) under the Act a supplement to
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the form of prospectus included in such registration statement
relating to the Securities and the plan of distribution thereof
and has previously advised you of all further information
(financial and other) with respect to the Company to be set forth
therein. Such registration statement, including the exhibits
thereto, as amended at the date of this Agreement, is hereinafter
called the "Registration Statement"; such prospectus in the form
in which it appears in the Registration Statement is hereinafter
called the "Basic Prospectus"; and such supplemented form of
prospectus, in the form in which it shall be filed with the
Commission pursuant to Rule 424(b) (including the Basic
Prospectus as so supplemented) is hereinafter called the "Final
Prospectus". Any preliminary form of the Final Prospectus which
has heretofore been filed pursuant to Rule 424(b) is hereinafter
called the "Preliminary Final Prospectus". Any reference herein
to the Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were
filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), on or before the date of this Agreement, or the
issue date of the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, as the case may be; and any
reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, the
Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to refer to and include the filing of
any document under the Exchange Act after the date of this
Agreement, or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case
may be, deemed to be incorporated therein by reference.
(b) On the effective date of the Registration Statement, as
of the date hereof, when the Final Prospectus is first filed
pursuant to Rule 424(b) under the Act, when, prior to the Closing
Date (as hereinafter defined), any amendment to the Registration
Statement becomes effective (including the filing of any document
incorporated by reference in the Registration Statement), when
any supplement to the Final Prospectus is filed with the
Commission and at the applicable Closing Date, (i) the
Registration Statement, as amended as of any such time, any Final
Prospectus, as amended or supplemented as of any such time, and
the Indentures will comply in all material respects with the
applicable requirements of the Act, the Trust Indenture Act and
the Exchange Act and the respective rules thereunder; (ii) the
Registration Statement, as amended as of any such time, did not
contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to
make the statements therein not misleading; and (iii) the Final
Prospectus, as amended or supplemented as of any such time, did
not and will not contain an untrue statement of a material fact
or omit to state a material fact necessary in order to make the
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<PAGE>
statements therein, in light of the circumstances under which
they were made, not misleading; provided, however, that the
representations and warranties in this subsection shall not apply
to statements in or omissions from the Registration Statement or
the Final Prospectus or any amendment thereof or supplement
thereto made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter, or on
behalf of any Underwriter by the Representatives, expressly for
use in the Registration Statement or the Final Prospectus.
(c) The documents incorporated by reference in the Final
Prospectus pursuant to Item 12 of Form S-3 under the 1933 Act, at
the time they were or hereafter are filed or last amended, as the
case may be, with the Commission, complied and will comply in all
material respects with the requirements of the Exchange Act and
the rules and regulations thereunder and, when read together and
with the other information in the Basic Prospectus and the Final
Prospectus, at the time the Registration Statement and any
amendments thereto became or become effective, at the date of
this Agreement and at each Closing Date, did not and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under
which they were or are made, not misleading.
(d) The accountants who certified the financial statements
and supporting schedules included or incorporated by reference in
the Registration Statement and the Final Prospectus are
independent public accountants as required by the Act and the
rules and regulations thereunder.
(e) The financial statements (other than quarterly or other
unaudited interim financial statements) included or incorporated
by reference in the Registration Statement and the Final
Prospectus present fairly the financial position of the Company
and its consolidated subsidiaries as at the dates indicated and
the results of their operations for the periods specified; said
financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent
(except as otherwise stated therein) basis; the supporting
schedules included or incorporated by reference in the
Registration Statement present fairly the information required to
be stated therein; and the Company's ratios of earnings to fixed
charges (actual and, if any, pro forma) included in the Final
Prospectus and in Exhibit 12 to the Registration Statement have
been calculated in compliance with Item 503(d) of Regulation S-K
of the Commission. Any quarterly or other unaudited interim
financial statements, and the related notes thereto, included or
incorporated by reference in the Registration Statement and the
Final Prospectus, have been prepared in compliance with the
applicable requirements of the Act, the rules and regulations
thereunder, the Exchange Act and the rules and regulations
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<PAGE>
thereunder and have been prepared on a basis substantially
consistent (except as otherwise stated therein) with that of the
applicable audited financial statements included or incorporated
by reference in the Registration Statement and the Final
Prospectus, and such unaudited interim financial statements
contain all adjustments necessary to present a fair statement of
the results of operations for the periods reported. Any
financial information and statistical data set forth in the Final
Prospectus under the captions "Selected Financial Data" and
"Capitalization" or other similar captions are fairly stated in
all material respects in relation to the consolidated financial
statements of the Company from which they have been derived.
(f) Since the respective dates as to which information is
given in the Registration Statement and the Final Prospectus,
except as otherwise stated therein (including information
contained in documents subsequently incorporated by reference in
the Registration Statement or the Final Prospectus), (1) there
has been no material adverse change in the condition, financial
or otherwise, or in the earnings, affairs or business prospects
of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business; (2)
there have been no transactions entered into by the Company or
any of its subsidiaries, other than those in the ordinary course
of business, which are material with respect to the Company and
its subsidiaries considered as one enterprise; and (3) except for
regular dividends, there has been no dividend or distribution of
any kind declared, paid or made by the Company on any class of
its capital stock.
(g) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Indiana with corporate power and authority to own, lease
and operate its properties and to conduct its business as
described in the Registration Statement and the Final Prospectus;
and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business,
except where the failure to so qualify would not in the aggregate
have a material adverse effect on the business or assets of the
Company and its subsidiaries considered as one enterprise.
(h) Each Significant Subsidiary of the Company (as that
term is used in Rule 405 of the 1933 Act Regulations) has been
duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease
and operate its properties and to conduct its business as
described in the Registration Statement and the Final Prospectus
and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which
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<PAGE>
such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business,
except where the failure to so qualify would not in the aggregate
have a material adverse effect on the business or assets of the
Company and its subsidiaries considered as one enterprise; all of
the issued and outstanding capital stock of each Significant
Subsidiary shown as owned by the Company on Schedule A to this
Agreement has been duly authorized and validly issued and is
fully paid and nonassessable and is owned by the Company, free
and clear of any security interest, mortgage, pledge, lien,
encumbrance or claim.
(i) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Final Prospectus under the
caption "Capitalization" (except for subsequent issuances, if
any, pursuant to reservations or agreements referred to in the
Final Prospectus); the certificate for each outstanding Common
Share also represents one Right per share (if the Rights are then
in existence), the issued and outstanding Common Shares have been
duly authorized and validly issued and are fully paid and
nonassessable; and (if the Rights Agreement is then in effect)
the outstanding Rights have been duly authorized and validly
issued under the Rights Agreement and are entitled to the
benefits thereof.
(j) Neither the Company nor any of its subsidiaries is in
violation of its charter or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any material contract, indenture, joint
venture agreement, mortgage, loan agreement, note, lease or other
instrument to which it or its property may be bound; and the
execution and delivery of this Agreement, the Indentures, the
Warrant Agreements, the Delayed Delivery Contracts, if any, and
the Securities and the consummation of the transactions
contemplated herein and therein have been duly authorized by all
necessary corporate action and will not conflict with or
constitute a breach of, or a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any of its subsidiaries
pursuant to, any contract, indenture, joint venture agreement,
mortgage, loan agreement, note, lease or other instrument to
which the Company or any of its subsidiaries is a party or by
which any of them may be bound, or to which any of the property
or assets of the Company or any of its subsidiaries is subject,
nor will such action result in any violation of the provisions of
the charter or by-laws of the Company or any of its subsidiaries
or any applicable law, administrative regulation or
administrative or court decree.
(k) No labor dispute with the employees of the Company or
any of its subsidiaries exists or, to the knowledge of the
Company, is imminent; and the Company is not aware of any
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<PAGE>
existing or imminent labor disturbance by the employees of any of
its or its subsidiaries' principal suppliers, manufacturers or
contractors which might be expected to result in any material
adverse change in the condition, financial or otherwise, or in
the earnings, affairs or business prospects of the Company and
its subsidiaries considered as one enterprise.
(l) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Company, threatened, against
or affecting the Company or any of its subsidiaries, which is
required to be disclosed in the Registration Statement or the
Final Prospectus (other than as disclosed therein), or which
might materially and adversely affect the consummation of this
Agreement or, except in cases in which such consequences are
remote, which might result in any material adverse change in the
condition, financial or otherwise, or in the earnings, affairs or
business prospects of the Company and its subsidiaries considered
as one enterprise, or, except in cases in which such consequences
are remote, which might materially and adversely affect the
properties or assets thereof; all pending legal or governmental
proceedings to which the Company or any subsidiary is a party or
of which any of their property is the subject which are not
described in the Registration Statement or the Final Prospectus,
including ordinary routine litigation incidental to the Company's
business, are, considered in the aggregate, not material to the
Company and its subsidiaries considered as one enterprise; and
there are no contracts or documents of the Company or any of its
subsidiaries which are required to be filed as exhibits to the
Registration Statement by the Act or by the rules and regulations
thereunder which have not been so filed.
(m) The Company and its subsidiaries own or possess, or can
acquire on reasonable terms, the patents, patent rights,
licenses, inventions, copyrights, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks,
service marks and trade names (collectively, the "Intellectual
Property") presently employed by them in connection with the
business now operated by them, except where the failure to own or
possess, or inability to so acquire, such Intellectual Property
would not result in any material adverse change in the condition,
financial or otherwise, or in the assets, earnings, affairs or
business prospects of the Company and its subsidiaries considered
as one enterprise; and neither the Company nor any of its
subsidiaries has received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with
respect to any of the foregoing which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in any material adverse change in the
condition, financial or otherwise, or in the assets, earnings,
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<PAGE>
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise.
(n) No authorization, approval or consent of any court or
governmental authority or agency is required for the consummation
by the Company of the transactions contemplated by this
Agreement, except such as may be required under the Act or the
rules and regulations thereunder or state securities laws for the
Securities and the qualification of the Indentures under the
Trust Indenture Act.
(o) The Company and its subsidiaries possess such
certificates, authorities or permits issued by the appropriate
state, federal or foreign governmental or regulatory agencies or
bodies necessary to conduct the business now operated by them,
except where the failure to possess such certificates,
authorities or permits would not materially and adversely affect
the conduct of the business, operations, financial condition or
income of the Company and its subsidiaries considered as one
enterprise; and neither the Company nor any of its subsidiaries
has received any notice of proceedings relating to the revocation
or modification of any such certificate, authority or permit
which, singly or in the aggregate, if the subject of any
unfavorable decision, ruling or finding, would materially and
adversely affect the conduct of the business, operations,
financial condition or income of the Company and its subsidiaries
considered as one enterprise.
(p) This Agreement and the Delayed Delivery Contracts, if
any, have been duly authorized, executed and delivered by the
Company.
(q) In the case of an offering of Debt Securities or Debt
Warrants, each of the applicable Indenture and Debt Warrant
Agreement, if any, has been duly and validly authorized, executed
and delivered by the Company and is substantially in the form
filed or incorporated by reference, as the case may be, as an
exhibit to the Registration Statement at the time the
Registration Statement became effective; the applicable Indenture
has been duly qualified under the Trust Indenture Act; and,
assuming due authorization, execution and delivery by the Trustee
and/or Debt Warrant Agent, each of the applicable Indenture and
Debt Warrant Agreement, if any, constitutes a valid and binding
agreement of the Company, enforceable against the Company in
accordance with its respective terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles;
the Debt Securities are in the form contemplated by the
applicable Indenture and the Debt Securities and Debt Warrants
have been duly and validly authorized by the Company and, when
executed by the proper officers of the Company, countersigned by
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<PAGE>
the Debt Warrant Agent under the Debt Warrant Agreement and
authenticated in accordance with the provisions of the applicable
Indenture and delivered pursuant to the Debt Warrant Agreement,
in the case of Debt Warrants, and in all cases delivered to and
paid for by the Underwriters pursuant to this Agreement, in the
case of all of the Underwriters' Securities, or by the purchasers
thereof pursuant to the Delayed Delivery Contracts, in the case
of any Contract Securities, will in each case constitute a valid
and binding obligation of the Company, be convertible (in the
case of those Subordinated Securities that by their terms are so
convertible) for Common Shares or other securities of the Company
in accordance with their terms as set forth in the Final
Prospectus and will be entitled to the benefits of the applicable
Indenture enforceable against the Company in accordance with
their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights generally
or by general equitable principles; if the Debt Securities are
convertible into Common Shares or other securities of the
Company, the Common Shares or other securities issuable upon such
conversion will have been duly authorized and reserved for
issuance upon such conversion and, when issued upon such
conversion, will be validly issued, fully paid (assuming the
underlying Debt Securities have been paid for) and nonassessable;
such Common Shares or other securities will have been duly
authorized and issued, will be fully paid (assuming the
underlying Debt Securities have been paid for) and nonassessable
and will conform to the description thereof contained in the
Final Prospectus; and the stockholders of the Company have no
preemptive rights with respect to any of such Common Shares or
other securities issuable upon such conversion.
(r) In the case of an offering of Preferred Shares,
including any Preferred Shares constituting Option Securities,
the Preferred Shares being delivered and paid for at such Closing
Date have been duly authorized, validly issued and are fully paid
and nonassessable; the Contract Securities, when issued,
delivered and sold pursuant to the Delayed Delivery Contracts,
will be duly issued, fully paid and nonassessable; the Contract
Securities, when so issued, delivered and sold, will conform, to
the descriptions thereof contained in the Final Prospectus; and
the stockholders of the Company have no preemptive rights with
respect to any of such Preferred Shares. If the Preferred Shares
being delivered at such Closing Date are convertible into Common
Shares or other securities of the Company, such Preferred Shares
are, and the Contract Securities, when so issued, delivered and
sold, will be, convertible into Common Shares or other securities
of the Company in accordance with their terms; the Common Shares
or other securities initially issuable upon conversion of such
Preferred Shares will have been duly authorized and reserved for
issuance upon such conversion and, when issued upon such
conversion, will be duly issued, fully paid and nonassessable;
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such Common Shares have been duly authorized and issued, are
fully paid (assuming the underlying Preferred Shares have been
paid for) and nonassessable and conform to the description
thereof contained in the Final Prospectus.
(s) In the case of an offering of Depositary Shares,
including any Depositary Shares constituting Option Securities,
the Preferred Shares being paid for, delivered to the Depositary
and represented by the Depositary Shares at such Closing Date
have been duly authorized; the Preferred Shares delivered to the
Depositary and represented by Depositary Shares at such Closing
Date, assuming that such Depositary Shares have been issued, paid
for and delivered to the Depositary against delivery of
depositary receipts evidencing the applicable Depositary Shares
to the Underwriters, have been validly issued and are fully paid
and nonassessable; the Contract Securities, when issued,
delivered and sold pursuant to the Delayed Delivery Contracts,
will be duly issued, fully paid and nonassessable; the Contract
Securities, when so issued, delivered and sold, will conform, to
the descriptions thereof contained in the Final Prospectus; and
the stockholders of the Company have no preemptive rights with
respect to any of such Depositary Shares or the Preferred Shares
represented thereby. If Preferred Shares represented by
Depositary Shares being delivered at such Closing Date are
convertible into Common Shares or other securities, such
Preferred Shares are, and the Preferred Shares represented by
Depositary Shares constituting Contract Securities, when so
issued, delivered and sold, will be, convertible into Common
Shares or other securities of the Company in accordance with
their terms; the Common Shares initially issuable upon conversion
of Preferred Shares represented by Depositary Shares will have
been duly authorized and reserved for issuance upon such
conversion and, when issued upon such conversion, will be duly
issued, fully paid and nonassessable; such Common Shares have
been validly authorized and issued, are fully paid and
nonassessable and conform to the description thereof contained in
the Final Prospectus.
(t) In the case of an offering of Depositary Shares,
assuming due authorization, execution and delivery of the Deposit
Agreement by the Depositary, the Deposit Agreement has been duly
authorized, executed and delivered by the Company and is a valid
and binding agreement of the Company enforceable in accordance
with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights generally
or by general equitable principles; and the depositary receipts
when executed, paid for and delivered pursuant to the Deposit
Agreement upon deposit of the Preferred Shares thereunder, will
be validly issued and will entitle the holders thereof to the
rights in respect of the applicable Depositary Shares specified
therein and in the Deposit Agreement.
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(u) In the case of an offering of Common Shares, including
any Common Shares constituting Option Securities, the Common
Shares being delivered and paid for at such Closing Date have
been duly authorized, validly issued and are fully paid and
nonassessable; the related Rights (if the Rights Agreement is
then in effect) have been duly authorized and validly issued
under the Rights Agreement and are entitled to the benefits
thereof; the Contract Securities, when issued, delivered and
sold, pursuant to the Delayed Delivery Contracts, will be duly
issued, fully paid and nonassessable; the Contract Securities,
when so issued, delivered and sold, will conform to the
description thereof contained in the Final Prospectus; neither
the issuance of the Common Shares nor the issuance of the related
Rights is subject to preemptive rights; and the Company has
reserved one one-hundredth share of Series C Preferred for
issuance upon exercise of each Right.
(v) In the case of an offering of Preferred Shares Warrants
and Common Shares Warrants, the applicable Warrant Agreement has
been duly authorized, executed and delivered by the Company; and,
assuming due authorization, execution and delivery by the
applicable Warrant Agent, the applicable Warrant Agreement
constitutes a valid and binding instrument enforceable against
the Company in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles;
the applicable Warrants have been duly and validly authorized
and, when executed by the proper officers of the Company,
countersigned by the applicable Warrant Agent under the
applicable Warrant Agreement and in all cases delivered pursuant
to the applicable Warrant Agreement and delivered to and paid for
by the Underwriters pursuant to this Agreement (or by the
purchasers thereof pursuant to the Delayed Delivery Contracts in
the case of any Contract Securities) will in each case constitute
a valid and binding obligation of the Company enforceable against
the Company in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles;
and will be entitled to the benefits of the applicable Warrant
Agreement; and in the case of Preferred Shares Warrants and
Common Shares Warrants, the Preferred Shares or Common Shares
initially issuable upon the exercise thereof have been duly and
validly authorized and reserved for issuance upon such exercise
and such shares, when issued upon such exercise in accordance
with the terms of the respective Warrant Agreement and at the
prices therein provided for, will be duly authorized, validly
issued, fully paid and nonassessable.
(w) The Securities, the Rights, the Company's Series C
Junior Participating Preferred Shares (the "Series C Preferred")
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and, in the case of an offering of Debt Securities and/or Debt
Warrants, the applicable Indenture, will conform in all material
respects to the respective statements relating thereto contained
in the Final Prospectus and the Registration Statement and will
be in substantially the respective forms filed or incorporated by
reference, as the case may be, as exhibits to the Registration
Statement.
(x) The Senior Debt Securities rank and will rank on a
parity with all unsecured indebtedness (other than subordinated
indebtedness) of the Company that is outstanding on the date
hereof or that may be incurred hereafter, and senior to all
subordinated indebtedness of the Company that is outstanding on
the date hereof or that may be incurred hereafter.
(y) There are no holders of securities of the Company with
currently exercisable registration rights to have any securities
so held included in the offering contemplated by this Agreement
and the Registration Statement.
(z) The Company meets, and on the effective date of the
Registration Statement met and on each Closing Date will meet,
the requirements for use of Form S-3 under the Act and the rules
and regulations thereunder.
Any certificate signed by any officer of the Company and
delivered to the Representatives or counsel for the Underwriters in
connection with the offering and sale of the Securities pursuant to
this Agreement shall be deemed a representation and warranty by the
Company to each Underwriter as to the matters covered thereby.
SECTION 2. Purchase and Sale. (a) Subject to the terms and
conditions and in reliance upon the representations and warranties
herein set forth, the Company agrees to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase from
the Company, at the respective purchase prices and upon the terms and
conditions set forth in Schedule I hereto the principal amount or
number of Purchased Securities set forth opposite such Underwriter's
name in Schedule II hereto, except that, if Schedule I hereto provides
for the sale of Purchased Securities pursuant to delayed delivery
arrangements, the respective principal amount or number of such
Purchased Securities to be purchased by the Underwriters, shall be as
set forth in Schedule II hereto less the respective amounts or number
of Contract Securities determined as provided below. Purchased
Securities to be purchased by the Underwriters are herein sometimes
called the "Underwriters' Securities" and Purchased Securities to be
purchased pursuant to delayed delivery contracts ("Delayed Delivery
Contracts") as hereinafter provided are herein called "Contract
Securities".
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<PAGE>
(b) If so provided in Schedule I hereto, the Underwriters are
authorized to solicit offers to purchase Purchased Securities from the
Company pursuant to Delayed Delivery Contracts, substantially in the
form of Schedule III hereto but with such changes therein as the
Company may authorize or approve. The Underwriters will endeavor to
make such arrangements and, as compensation therefor, the Company will
pay to the Representatives, for the account of the Underwriters, on
the applicable Closing Date, an amount as follows: (i) in the case of
Debt Securities, Debt Warrants and Units consisting of Debt Securities
and Debt Warrants, an amount equal to the percentage set forth in
Schedule II hereto of the principal amount of the Debt Securities or
number of Debt Warrants for which such Delayed Delivery Contracts are
made, (ii) in the case of Preferred Shares, Depositary Shares and
Units consisting of Preferred Shares and any other Securities, an
amount equal to the percentage set forth in Schedule II hereto of the
aggregate liquidation preference of Preferred Shares, including shares
represented by such Depositary Shares, for which Delayed Delivery
Contracts are made, (iii) in the case of all other Securities, an
amount as set forth in Schedule II hereto with respect to Securities
for which such Delayed Delivery Contracts are made. Delayed Delivery
Contracts are to be with institutional investors, including commercial
and savings banks, insurance companies, pension funds, investment
companies, educational and charitable institutions. The Company will
enter into Delayed Delivery Contracts in all cases where sales of
Contract Securities arranged by the Underwriters, and the parties to
such Delayed Delivery Contracts, have been approved by the Company
but, except as the Company may otherwise agree, each such Delayed
Delivery Contract must (x) in the case of Debt Securities, Debt
Warrants or Units consisting of Debt Securities and Debt Warrants, be
for not less than the minimum principal amount set forth in Schedule I
hereto and the aggregate principal amount of Contract Securities may
not exceed the maximum aggregate principal amount set forth in
Schedule I hereto, (y) in the case of Preferred Shares, Depositary
Shares or Units consisting of Preferred Shares and any other
Securities, be for not less than the minimum number of Preferred
Shares set forth in Schedule I hereto and the aggregate number of
Preferred Shares, including shares represented by such Depositary
Shares, of Contract Securities may not exceed the maximum aggregate
number of Preferred Shares set forth in Schedule I hereto and (z) in
the case of all other Securities, be for not less than the minimum
number of each of such Securities respectively set forth in Schedule I
hereto and the aggregate number of each of such Securities
constituting Contract Securities may not exceed the maximum number of
each of such Securities respectively set forth in Schedule I hereto.
The Underwriters will not have any responsibility in respect of the
validity or performance of Delayed Delivery Contracts. The principal
amount or number of Purchased Securities to be purchased by each
Underwriter as set forth in Schedule II hereto shall be reduced by an
amount which shall bear the same proportion to the total principal
amount or number of Contract Securities as the principal amount or
number set forth opposite the name of such Underwriter bears to the
aggregate principal amount or number of such Purchased Securities set
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<PAGE>
forth in Schedule II hereto, except to the extent that you determine
that such reduction shall be otherwise than in such proportion and so
advise the Company in writing; provided, however, that the total
principal amount or number of the Purchased Securities to be purchased
by all Underwriters shall be the aggregate principal amount or number
set forth in Schedule II hereto less the aggregate principal amount or
number of Contract Securities. The Company will advise the
Representatives not later than the business day prior to the
applicable Closing Date of the aggregate principal amount or number,
as the case may be, of the Contract Securities.
SECTION 3. Delivery and Payment. (a) Delivery of the
Underwriters' Securities shall be made at the office of Mayer, Brown &
Platt, 190 South LaSalle Street, Chicago, Illinois, or at such other
place as shall be agreed upon by the Representatives and the Company,
or at the office of The Depositary Trust Company ("DTC") if the
Underwriters' Securities are issued in book-entry form, and payment
for such Securities shall be made at the above office of Mayer, Brown
& Platt, or at such other place as shall be agreed upon by the
Representatives and the Company, on the date and at the time specified
in Schedule I hereto, which date and time may be postponed by
agreement between the Representatives and the Company or as provided
in Section 11 hereof (such date and time of delivery and payment for
the Underwriters' Securities being herein referred to in the case of
Purchased Securities as the "Purchased Securities Closing Date", in
the case of Option Securities as the "Option Securities Closing Date"
and each such date being referred to herein as a "Closing Date").
Delivery of the Underwriters' Securities (which, in the case of
Depositary Shares, shall be deemed to occur upon confirmation of
delivery of the applicable number of Preferred Shares to the
Depositary against delivery of the depositary receipts evidencing the
Depositary Shares in respect thereof) shall be made to the
Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of
the Company by certified or official bank check or checks drawn on or
by a Chicago Clearing House bank and payable in next day funds or by
such other means as are specified in Schedule I hereto.
(b) If specified in Schedule I hereto, the several Underwriters
will be compensated for their respective commitments and obligations
by separate payment to the Representatives for the respective accounts
of such Underwriters. Any such payment by the Company to the
Underwriters shall be made simultaneously with the payment by the
Underwriters to the Company of the purchase price of the Underwriters'
Securities as specified herein. Any separate payment of compensation
by the Company to the Underwriters shall be made by certified or
official bank check or checks drawn on or by a Chicago Clearing House
bank and payable in next day funds to the order of the Representatives
or by such other means as are specified in Schedule I hereto.
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(c) If specified in Schedule I and the Underwriters' Securities
are issued in book-entry form, payment shall be made in immediately
available funds by fed wire. Certificates for the Underwriters'
Securities shall be registered in such names and in such denominations
as the Representatives may request not less than two full business
days in advance of the applicable Closing Date, provided that, if the
Underwriters' Securities are in book-entry form, the registration
thereof, including the determination of the denominations thereof,
shall be in accordance with the regulations of DTC.
(d) The Company agrees to have the Underwriters' Securities
available for inspection, checking or packaging by the Representatives
in New York, New York, not later than 1:00 P.M., New York City time,
on the business day prior to the applicable Closing Date, unless the
Underwriters' Securities are in book-entry form.
SECTION 4. Covenants of the Company. The Company covenants
with each Underwriter as follows:
(a) Immediately following the execution of this Agreement,
the Company will prepare a Final Prospectus setting forth the
principal amount or number of Securities covered thereby and
their terms (not otherwise specified in the applicable Indenture
in the case of Debt Securities and/or Debt Warrants), the names
of the Underwriters and the principal amount or number of
Securities which each severally has agreed to purchase, the names
of the Representatives, the price at which the Securities are to
be purchased by the Underwriters from the Company, the initial
public offering price, the selling concession and reallowance, if
any, and such other information as the Representatives and the
Company deem appropriate in connection with the offering of the
Securities. The Company will promptly transmit copies of the
Final Prospectus to the Commission for filing pursuant to Rule
424 of the Act and will furnish to the Underwriters named therein
as many copies of the Final Prospectus and any Preliminary Final
Prospectus as such Underwriters shall reasonably request.
(b) The Company will notify the Representatives
immediately, and promptly confirm the notice in writing, (i) of
the effectiveness of any amendment to the Registration Statement,
(ii) of the mailing or the delivery to the Commission for filing
of any supplement to the Final Prospectus or any document to be
filed pursuant to the Exchange Act which will be incorporated by
reference into the Registration Statement or Final Prospectus,
(iii) of the receipt of any comments or other communications from
the Commission with respect to the Registration Statement, the
Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, (iv) of any request by the Commission for any
amendment to the Registration Statement or any amendment or
supplement to the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus or for additional information,
and (v) of the issuance by the Commission of any stop order
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suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The Company will
make every reasonable effort to prevent the issuance of any stop
order and, if any stop order is issued, to obtain the lifting
thereof at the earliest possible moment.
(c) For so long as a Final Prospectus is required to be
delivered in connection with the sale of Securities covered by
this Agreement, the Company will give the Representatives notice
of its intention to file any amendment to the Registration
Statement or any amendment or supplement to the Final Prospectus
(including through the filing of documents under the Exchange Act
or a prospectus filed pursuant to Rule 424(b) which differs from
the prospectus on file at the Commission), whether pursuant to
the Act, the Exchange Act or otherwise, will furnish the
Representatives with copies of any such amendment or supplement
or other documents proposed to be filed a reasonable time in
advance of filing, and will not file any such amendment or
supplement to which the Representatives or counsel for the
Underwriters shall reasonably object.
(d) The Company will deliver to the Representatives as many
signed and conformed copies of the registration statement (as
originally filed) and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference in the Prospectus pursuant to
Item 12 of Form S-3 under the Act) as the Representatives may
reasonably request, and will also deliver to the Representatives
a conformed copy of the Registration Statement and each amendment
thereto for each of the Underwriters.
(e) If any event shall occur or condition exist as a result
of which it is necessary, in the opinion of counsel for the
Underwriters or counsel for the Company, to further amend or
supplement the Final Prospectus in order that the Final
Prospectus will not include an untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein not misleading in the light of circumstances
existing at the time it is delivered to a purchaser or
prospective purchaser or if it shall be necessary, in the opinion
of either such counsel, at any such time to amend or supplement
the Registration Statement or the Final Prospectus in order to
comply with the requirements of the Act or rules and regulations
thereunder, the Company will promptly prepare and file with the
Commission such amendment or supplement, whether by filing
documents pursuant to the Exchange Act or otherwise, as may be
necessary to correct such untrue statement or omission or to make
the Registration Statement comply with such requirements.
(f) The Company will endeavor, in cooperation with the
Underwriters, to qualify the Securities and any Debt Securities,
Common Shares or Preferred Shares which may be issuable pursuant
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to the exercise or conversion, as the case may be, of Securities
offered by the Company, for offering and sale under the
applicable securities laws of such states and other jurisdictions
of the United States as the Representatives may designate, and
will maintain such qualifications in effect for as long as may be
required for the distribution of the Securities. The Company
will file such statements and reports as may be required by the
laws of each jurisdiction in which the Securities have been
qualified as provided above.
(g) With respect to each sale of Securities, the Company
will make generally available to its security holders as soon as
practicable, but not later than 60 days (or 90 days in the case
of periods which are a fiscal year of the Company) after the
close of the period covered thereby, earnings statements (in form
complying with the provisions of Rule 158 under the Act) covering
twelve-month periods beginning, in each case, not later than the
first day of the Company's fiscal quarter next following the
"effective date" (as defined in Rule 158) of the Registration
Statement relating to such Securities that satisfies the
provisions of Section 11(a) of the Act and the rules and
regulations thereunder.
(h) The Company will use the net proceeds received by it
from the sale of the Securities in the manner specified in the
Final Prospectus relating to such Securities under "Use of
Proceeds".
(i) The Company will use its best efforts to (i) arrange
for the listing of any Common Shares constituting Securities
hereunder or issuable upon conversion or exercise of any of the
Securities upon notice of issuance on the New York Stock
Exchange, Inc. or such other national securities exchanges on
which the Company's outstanding Common Shares are then listed and
(ii) list any other Securities on the exchanges, if any,
specified in Schedule I hereto.
(j) The Company, during the period when the Final
Prospectus is required to be delivered under the Act, will file
promptly all documents required to be filed with the Commission
pursuant to Section 13, 14 or 15 of the Exchange Act within the
time periods required by the Exchange Act and the rules and
regulations thereunder.
(k) For a period of five years after each Closing Date, the
Company will furnish to the Representatives copies of all reports
and communications delivered to shareholders or holders of any of
the Securities as a class and will also furnish copies of all
reports (excluding exhibits, unless requested by the
Representatives) filed with the Commission on Forms 8-K, 10-Q and
10-K.
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(l) In the event that the Securities being issued and sold
pursuant to this Agreement are Common Shares or Common Share
Warrants, for a period of 90 days from the date of this
Agreement, the Company will not, without the Representatives'
prior written consent, directly or indirectly, sell, offer to
sell, grant any option for the sale of, enter into an agreement
to sell, or otherwise dispose of, any Securities to which this
Agreement relates or securities similar to such Securities, or
any securities convertible into or exercisable for any such
Securities or any such similar securities, except for Securities
sold pursuant to this Agreement, securities issued upon
conversion of Securities issued under this Agreement and Common
Shares issued pursuant to employee benefit, executive
compensation and dividend reinvestment plans of the Company, and
the Company will not file a registration statement under the Act
with respect to any such Securities or securities similar to such
securities of the Company held by others.
(m) In the event that the Securities being issued and sold
pursuant to this Agreement are Securities other than Common
Shares or Common Share Warrants, for a period of 21 days from the
date of this Agreement, the Company will not, without the
Representatives' prior written consent, directly or indirectly,
sell, offer to sell, grant any option for the sale of, enter into
an agreement to sell, or otherwise dispose of, any Securities to
which this Agreement relates or securities similar to such
Securities, or any securities convertible into or exchangeable or
exercisable for any such Securities or any such similar
securities, except for Securities sold pursuant to this Agreement
and securities issued upon conversion of Securities issued under
this Agreement, and the Company will not file a registration
statement under the Act with respect to any such Securities or
securities similar to such securities of the Company held by
others.
(n) If necessary or otherwise required, the Company will
comply with all of the provisions of Section 517.075 of the
Florida Statutes, and all rules and regulations promulgated
thereunder, relating to issuers doing business in Cuba.
SECTION 5. Payment of Expenses. The Company will pay all
expenses incident to the performance of its obligations under this
Agreement, including (i) the preparation, printing, filing and
delivery of the registration statement (as originally filed) and all
amendments thereto, (ii) the preparation, issuance and delivery to the
Underwriters of the certificates for the Securities, (iii) the fees
and disbursements of the Company's counsel and accountants, (iv) the
qualification of the Securities under applicable state securities laws
in accordance with the provisions of Section 4(f), including filing
fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the
preparation of any Blue Sky Survey and Legal Investment Survey, (v)
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the printing and delivery to the Underwriters in quantities as
hereinabove stated of copies of the registration statement (as
originally filed) and any amendments thereto, and of the Final
Prospectus and any amendments or supplements thereto, (vi) the
printing and delivery to the Underwriters of copies of the applicable
Indenture and any Blue Sky Survey and Legal Investment Survey, (vii)
the fees, if any, of rating agencies, (viii) the fees and expenses, if
any, incurred in connection with the listing of the Securities on any
securities exchange, (ix) the fees and expenses of the Trustees, if
any, including the fees and disbursements of counsel for the Trustees
in connection with the Indentures and the Securities, and (x) the
fees, if any, of the National Association of Securities Dealers, Inc.
If this Agreement is terminated by the Representatives in
accordance with the provisions of Section 6 or Section 10(i), the
Company shall reimburse the Underwriters named in this Agreement for
all of their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
SECTION 6. Conditions of Underwriters' Obligations. The
obligations of the Underwriters hereunder are subject to the accuracy
of the representations and warranties on the part of the Company
herein contained, to the accuracy of the statements of the Company's
officers made in any certificate furnished pursuant to the provisions
hereof, to the performance by the Company of its obligations,
covenants and agreements hereunder, and to the following further
conditions:
(a) The Final Prospectus shall have been filed with the
Commission pursuant to Rule 424 under the Act not later than 5:30
p.m., New York City time, on the second business day following
the date hereof; and at the applicable Closing Date (i) no stop
order suspending the effectiveness of the Registration Statement
shall have been issued under the Act or proceedings therefor
initiated or threatened by the Commission and any request on the
part of the Commission for additional information shall have been
complied with to the satisfaction of counsel for the
Underwriters, (ii) except where the only Securities are Common
Shares or Common Shares Warrants, the rating assigned by any
nationally recognized securities rating agency to any debt
securities or preferred shares of the Company as of the date of
this Agreement shall not have been lowered since the execution of
this Agreement and no such agency shall have publicly announced
that it has placed any of such debt securities or preferred
shares on what is commonly termed a "watch list" for possible
downgrading, and (iii) there shall not have come to the attention
of the Representatives any facts that cause them, after
disclosing such facts to, and discussing them with, the Company,
reasonably to believe that the Final Prospectus, at the time it
was required to be delivered to a purchaser of the Securities,
contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements
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therein, in light of the circumstances existing at such time, not
misleading.
(b) At the applicable Closing Date, the Representatives
shall have received:
(1) The favorable opinion, dated as of the
applicable Closing Date, of Schiff Hardin & Waite,
counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, with such
specificity as is necessary to reflect particularly the
Securities purchased on such Closing Date to the effect
that:
(i) The Company has been duly incorporated and is
validly existing as a corporation under the laws of the
State of Indiana and a certificate of existence has been
issued with respect thereto as of a recent date pursuant to
Section 23-1-18-9 of the Indiana Business Corporation Law.
(ii) The Company has corporate power and authority to
own, lease and operate its properties and to conduct its
business as described in the Registration Statement and the
Final Prospectus.
(iii) To the best of their knowledge and information,
the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each
jurisdiction in which such qualification is required, except
where the failure to so qualify would not in the aggregate
have a material adverse effect on the business or assets of
the Company and its subsidiaries considered as one
enterprise.
(iv) In the case of an offering of Preferred Shares,
Depositary Shares or Common Shares, the authorized, issued
and outstanding capital stock of the Company is as set forth
in the Registration Statement and the Final Prospectus under
the caption "Capitalization" (except for subsequent
issuances, if any, pursuant to reservations or agreements
referred to in the Final Prospectus), and the shares of
issued and outstanding capital stock of the Company set
forth therein have been duly authorized and validly issued
and are fully paid and nonassessable; the certificate for
each outstanding Common Share also represents one Right per
share; and the outstanding Rights have been duly authorized
and validly issued under the Rights Agreement.
(v) Each Significant Subsidiary of the Company
incorporated in a jurisdiction in the United States of
America and set forth on Schedule A to this Agreement has
been duly incorporated and is validly existing as a
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corporation under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own,
lease and operate its properties and conduct its business as
described in the Registration Statement and the Final
Prospectus; all of the issued and outstanding capital stock
of each such subsidiary which is held by the Company or any
direct or indirect subsidiary of the Company has been duly
authorized and validly issued.
(vi) This Agreement and the Delayed Delivery Contracts,
if any, have been duly authorized, executed and delivered by
the Company.
(vii) The Registration Statement is effective under the
Act and, to the best of their knowledge and information, no
stop order suspending the effectiveness of the Registration
Statement has been issued under the Act or proceedings
therefor initiated or threatened by the Commission.
(viii) At the time the Registration Statement became
effective, at the date of this Agreement and at the
applicable Closing Date, the Registration Statement (other
than the financial statements, supporting schedules or other
financial or statistical information or data included or
incorporated by reference therein, as to which no opinion
need be rendered) complied as to form in all material
respects with the requirements of the Act, the rules and
regulations thereunder, the Trust Indenture Act and the
rules and regulations thereunder, and nothing has come to
their attention that leads them to believe that the
Registration Statement (other than the financial statements,
supporting schedules and other financial or statistical
information or data included or incorporated by reference
therein, as to which no opinion need be rendered), at the
time it became effective or at the date of this Agreement or
at the applicable Closing Date, contained an untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading or that the Final
Prospectus, as amended or supplemented at the applicable
Closing Date, including the documents incorporated by
reference therein (other than the financial statements,
supporting schedules and other financial or statistical
information or data included or incorporated by reference
therein, as to which no opinion need be rendered) included
an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading.
(ix) To the best of their knowledge and information,
there are no legal or governmental proceedings pending or
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threatened which are required to be disclosed in the
Registration Statement, other than those disclosed in the
Final Prospectus or in any document incorporated by
reference therein.
(x) Each document filed pursuant to the Exchange Act
(other than the financial statements, supporting schedules
and other financial or statistical information or data
included therein, as to which no opinion need be rendered)
and incorporated by reference in the Final Prospectus at the
applicable Closing Date, complied when so filed (or, if
amended, when and as amended prior to the date of the Final
Prospectus) as to form in all material respects with the
Exchange Act and the rules and regulations thereunder.
(xi) To the best of their knowledge and information,
there are no contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments required to
be described, referred to or incorporated by reference in
the Registration Statement at the applicable Closing Date or
to be filed as exhibits thereto other than those described,
referred to or incorporated by reference therein or filed as
exhibits thereto, and the descriptions thereof or references
thereto in the Registration Statement at the applicable
Closing Date are correct.
(xii) No authorization, approval, consent or order of
any court or governmental authority or agency is required in
connection with the consummation by the Company of the
transactions contemplated by this Agreement, except such as
may be required under the Act, the rules and regulations
thereunder, the Exchange Act, the rules and regulations
thereunder or state securities laws and the qualification of
the applicable Indenture under the Trust Indenture Act (in
the case of an offering of Debt Securities or Debt
Warrants); the execution and delivery by the Company of this
Agreement, the applicable Indenture (in the case of an
offering of Debt Securities or Debt Warranties), any Delayed
Delivery Contracts and the Securities and the consummation
of the transactions contemplated herein and therein will not
result in any violation of the provisions of the charter or
by-laws of the Company; and to the best of their knowledge
and information, the execution and delivery by the Company
of this Agreement, the applicable Indenture (in the case of
an offering of Debt Securities or Debt Warrants), any
Delayed Delivery Contracts and the Securities and the
consummation of the transactions contemplated herein and
therein will not conflict with or constitute a breach of, or
default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets
of the Company or any of its subsidiaries pursuant to, any
contract, indenture, mortgage, loan agreement, note, lease
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or other instrument identified to such counsel by the
Company as being material and to which the Company or any of
its subsidiaries is a party or by which it or any of them
may be bound, or to which any of the property or assets of
the Company or any of its subsidiaries is subject, nor will
such action result in any violation of any applicable law,
administrative regulation or any administrative or court
order or decree known to them.
(xiii) The information in the Final Prospectus
describing the Securities, the Rights and the Series C
Preferred (and the applicable Indenture in the case of an
offering of Debt Securities or Debt Warrants), has been
reviewed by them and is correct (subject to the limitations
stated therein) and complete in all material respects.
(xiv) In the case of an offering of Debt Securities or
Debt Warrants, each of the applicable Indenture and Debt
Warrant Agreement, if any, has been duly and validly
authorized, executed and delivered by the Company and is
substantially in the form filed or incorporated by
reference, as the case may be, as an exhibit to the
Registration Statement at the time the Registration
Statement became effective; the applicable Indenture has
been duly qualified under the Trust Indenture Act; and,
assuming due authorization, execution and delivery by the
Trustee and/or Debt Warrant Agent, each of the applicable
Indenture and Debt Warrant Agreement, if any, constitutes a
valid and binding agreement of the Company, enforceable
against the Company in accordance with its respective terms,
except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally or by
general equitable principles; the Debt Securities are in the
form contemplated by the applicable Indenture and the Debt
Securities and Debt Warrants have been duly and validly
authorized by the Company and, when executed by the proper
officers of the Company, countersigned by the Debt Warrant
Agent under the Debt Warrant Agreement and authenticated in
accordance with the provisions of the applicable Indenture
and delivered pursuant to the Debt Warrant Agreement, in the
case of Debt Warrants, and in all cases delivered to and
paid for by the Underwriters pursuant to this Agreement, in
the case of all of the Underwriters' Securities, or by the
purchasers thereof pursuant to the Delayed Delivery
Contracts, in the case of any Contract Securities, will in
each case constitute a valid and binding obligation of the
Company, be convertible (in the case of those Subordinated
Securities that by their terms are so convertible) for
Common Shares or other securities of the Company in
accordance with their terms as set forth in the Final
Prospectus and will be entitled to the benefits of the
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applicable Indenture enforceable against the Company in
accordance with their terms, except as enforcement thereof
may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable
principles; if the Debt Securities are convertible into
Common Shares or other securities of the Company, the Common
Shares or other securities issuable upon such conversion
will have been duly authorized and reserved for issuance
upon such conversion and, when issued upon such conversion,
will be validly issued, fully paid (assuming the underlying
Debt Securities have been paid for) and nonassessable; such
Common Shares or other securities will have been duly
authorized and issued, will be fully paid (assuming the
underlying Debt Securities have been paid for) and
nonassessable and will conform to the description thereof
contained in the Final Prospectus; and the stockholders of
the Company have no preemptive rights with respect to any of
such Common Shares or other securities issuable upon such
conversion.
(xv) In the case of an offering of Preferred Shares,
including any Preferred Shares constituting Option
Securities, the Preferred Shares being delivered and paid
for at such Closing Date have been duly authorized, validly
issued and are fully paid and nonassessable; the Contract
Securities, when issued, delivered and sold pursuant to the
Delayed Delivery Contracts, will be duly issued, fully paid
and nonassessable; the Contract Securities, when so issued,
delivered and sold, will conform, to the descriptions
thereof contained in the Final Prospectus; and the
stockholders of the Company have no preemptive rights with
respect to any of such Preferred Shares. If the Preferred
Shares being delivered and paid for at such Closing Date are
convertible into Common Shares or other securities, such
Preferred Shares are, and the Contract Securities, when so
issued, delivered and sold, will be, convertible into Common
Shares or other securities of the Company in accordance with
their terms; the Common Shares or other securities initially
issuable upon conversion of such Preferred Shares will have
been duly authorized and reserved for issuance upon such
conversion and, when issued upon such conversion, will be
duly issued, fully paid (assuming the underlying Preferred
Shares have been paid for) and nonassessable; the Common
Shares have been duly authorized and issued, are fully paid
and nonassessable and conform to the description thereof
contained in the Final Prospectus.
(xvi) In the case of an offering of Depositary Shares,
including any Depositary Shares constituting Option
Securities, the Preferred Shares being delivered to the
Depositary and represented by the Depositary Shares at such
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Closing Date have been duly authorized; the Preferred Shares
delivered to the Depositary and represented by Depositary
Shares at such Closing Date, assuming that such Depositary
Shares have been issued, paid for and delivered to the
Depositary against delivery of depositary receipts
evidencing the applicable Depositary Shares to the
Underwriters, have been validly issued and are fully paid
and nonassessable; the Contract Securities, when issued,
delivered, paid for and sold pursuant to the Delayed
Delivery Contracts, will be duly issued, fully paid and
nonassessable; the Contract Securities, when so issued,
delivered and sold, will conform, to the descriptions
thereof contained in the Final Prospectus; and the
stockholders of the Company have no preemptive rights with
respect to any of such Depositary Shares or the Preferred
Shares represented thereby. If Preferred Shares represented
by Depositary Shares being delivered at such Closing Date
are convertible into Common Shares or other securities, such
Preferred Shares are, and the Preferred Shares represented
by Depositary Shares constituting Contract Securities, when
so issued, delivered and sold, will be, convertible into
Common Shares or other securities of the Company in
accordance with their terms; the Common Shares initially
issuable upon conversion of Preferred Shares represented by
Depositary Shares will have been duly authorized and
reserved for issuance upon such conversion and, when issued
upon such conversion, will be duly issued, fully paid
(assuming the underlying Depositary Shares have been paid
for) and nonassessable; the Common Shares have been validly
authorized and issued, are fully paid and nonassessable and
conform to the description thereof contained in the Final
Prospectus.
(xvii) In the case of an offering of Depositary Shares,
assuming due authorization, execution and delivery of the
Deposit Agreement by the Depositary, the Deposit Agreement
has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company
enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally or by
general equitable principles; and the depositary receipts
when executed, delivered and paid for pursuant to the
Deposit Agreement upon deposit of the Preferred Shares
thereunder, will be validly issued and will entitle the
holders thereof to the rights in respect of the applicable
Depositary Shares specified therein and in the Deposit
Agreement.
(xviii) In the case of an offering of Common Shares,
including any Common Shares constituting Option Securities,
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the Common Shares being delivered and paid for at such
Closing Date have been duly authorized, validly issued and
are fully paid and nonassessable; the related Rights have
been duly authorized and validly issued under the Rights
Agreement and are entitled to the benefits thereof; the
Contract Securities, when issued, delivered and sold,
pursuant to the Delayed Delivery Contracts, will be duly
issued, fully paid and nonassessable; the Contract
Securities, when so issued, delivered and sold, will conform
to the description thereof contained in the Final
Prospectus; neither the issuance of the Common Shares nor
the issuance of the related Rights is subject to preemptive
rights; and the Company has reserved one one-hundredth share
of Series C Preferred for issuance upon exercise of each
Right.
(xix) In the case of an offering of Preferred Shares
Warrants and Common Shares Warrants, the applicable Warrant
Agreement has been duly authorized, executed and delivered
by the Company; and, assuming due authorization, execution
and delivery by the applicable Warrant Agent, the applicable
Warrant Agreement constitutes a valid and binding instrument
enforceable against the Company in accordance with its
terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights
generally or by general equitable principles; the applicable
Warrants have been duly and validly authorized and, when
executed by the proper officers of the Company,
countersigned by the applicable Warrant Agent under the
applicable Warrant Agreement and in all cases delivered
pursuant to the applicable Warrant Agreement and delivered
to and paid for by the Underwriters pursuant to this
Agreement (or by the purchasers thereof pursuant to the
Delayed Delivery Contracts in the case of any Contract
Securities) will in each case constitute a valid and binding
obligation of the Company enforceable against the Company in
accordance with its terms, except as enforcement thereof may
be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable
principles; and will be entitled to the benefits of the
applicable Warrant Agreement; and in the case of Preferred
Shares Warrants and Common Shares Warrants, the Preferred
Shares or Common Shares initially issuable upon the exercise
thereof have been duly and validly authorized and reserved
for issuance upon such exercise and such shares, when issued
upon such exercise in accordance with the terms of the
respective Warrant Agreement and at the prices therein
provided for, will be duly authorized, validly issued, fully
paid and nonassessable.
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(xx) If the Securities being delivered on such Closing
Date are to be listed on any stock exchange, authorization
therefor has been given, subject to official notice of
issuance and evidence of satisfactory distribution, or the
Company has filed a preliminary listing application and all
required supporting documents with respect to the Securities
with such stock exchange and such counsel has no reason to
believe that such Securities will not be authorized for
listing, subject to official notice of issuance and evidence
of satisfactory distribution.
(2) The favorable opinion, dated as of the
applicable Closing Date, of Ronald R. Snyder, Esq.,
Vice President, General Counsel and Secretary of the
Company, in form and substance satisfactory to counsel
for the Underwriters, to the effect that:
(i) To the best of his knowledge and information, the
Company is duly qualified as a foreign corporation to
transact business and is in good standing in each
jurisdiction in which such qualification is required, except
where the failure to so qualify would not in the aggregate
have a material adverse effect on the business or assets of
the Company and its subsidiaries considered as one
enterprise.
(ii) To the best of his knowledge and information, each
Significant Subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own,
lease or operate its properties and to conduct its business
as described in the Registration Statement and the Final
Prospectus, and is duly qualified as a foreign corporation
to transact business and is in good standing in each
jurisdiction in which such qualification is required, except
where the failure to so qualify would not in the aggregate
have a material adverse effect on the business or assets of
the Company and its subsidiaries considered as one
enterprise; all of the issued and outstanding capital stock
of each such Significant Subsidiary shown as owned by the
Company on Schedule A to this Agreement has been duly
authorized and validly issued, is fully paid and
nonassessable, and such interest is owned by the Company,
directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance or
claim.
(iii) Nothing has come to such counsel's attention
that leads him to believe that the Registration Statement,
at the time it became effective or at the applicable Closing
Date, contained an untrue statement of a material fact or
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omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading or that the Final Prospectus, as amended or
supplemented at the applicable Closing Date, included an
untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading.
(iv) To the best of his knowledge and information, no
authorization, approval consent or order of any court or
governmental authority or agency is required in connection
with the consummation by the Company of the transactions
contemplated by this Agreement, except such as may be
required under the Act, the rules and regulations
thereunder, the Exchange Act and the rules and regulations
thereunder or state securities laws and, in the case of an
offering of Debt Securities or Debt Warrants, the
qualification of the applicable Indenture under the Trust
Indenture Act.
(v) To the best of his knowledge and information,
except as described in the Registration Statement, at the
time it became effective or at the applicable Closing Date,
there is no action, suit or proceeding before or by any
court or governmental agency or body now pending or
threatened against or affecting the Company or any of its
subsidiaries in which it is probable that such action, suit
or proceeding, except in cases in which such consequences
are considered remote, will have any material adverse effect
on the condition, financial or otherwise, or in the
earnings, affairs, assets, properties or business prospects
of the Company and its subsidiaries considered as one
enterprise.
(vi) To the best of his knowledge and information, no
default exists in the due performance or observance of any
material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument described,
referred to, or filed or incorporated by reference in the
Registration Statement, at the time it became effective or
at the applicable Closing Date, or the Company's most recent
Annual Report on Form 10-K filed with the Commission under
the Exchange Act, which defaults in the aggregate are
material to the Company and its subsidiaries considered as
one enterprise.
(3) The favorable opinion or opinions, dated as
of the applicable Closing Date, of Mayer, Brown &
Platt, counsel for the Underwriters, with respect to
the incorporation of the Company, the validity of the
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Securities being sold at the Closing Date, the
Registration Statement, the Final Prospectus and other
related matters as the Underwriters may reasonably
request, and such counsel shall have received such
papers and information as they reasonably request to
enable them to pass upon such matters. In giving their
opinion, Mayer, Brown & Platt may rely as to matters of
Indiana corporate law upon the opinion of Schiff Hardin
& Waite.
(c) At the applicable Closing Date there shall not have
been, since the date of this Agreement or since the respective
dates as of which information is given in the Registration
Statement and the Final Prospectus, any material adverse change
in the condition, financial or otherwise, or in the earnings,
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the
ordinary course of business, and the Representatives shall have
received a certificate of the President or a Vice President of
the Company and of the Chief Financial Officer, Chief Accounting
Officer or Treasurer of the Company, dated as of such Closing
Date, to the effect that (i) there has been no such material
adverse change; (ii) the representations and warranties in
Section 1 are true and correct with the same force and effect as
though expressly made again at and as of such Closing Date; (iii)
the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior
to such Closing Date; and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been initiated or threatened
by the Commission.
(d) The Representatives shall have received from Price
Waterhouse and any other independent certified public accountants
who have reviewed financial statements included in the
Registration Statement or the Final Prospectus letters, dated as
of the date of this Agreement and as of the applicable Closing
Date, in form and substance satisfactory to the Representatives
to the effect that:
(i) They are independent public accounts with respect
to the Company and its subsidiaries within the meaning of
the Act and the rules and regulations thereunder.
(ii) It is their opinion that the financial statements
and supporting schedules included or incorporated by
reference in the Registration Statement and covered by their
opinion therein comply as to form in all material respects
with the applicable accounting requirements of the Act, the
rules and regulations thereunder, the Exchange Act and the
rules and regulations thereunder.
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<PAGE>
(iii) Based upon limited procedures set forth in detail
in such letter, nothing has come to their attention which
causes them to believe that:
(A) The unaudited financial statements and
supporting schedules of the Company and its
subsidiaries included or incorporated by reference in
the Registration Statement and the Final Prospectus do
not comply as to form in all material respects with the
applicable accounting requirements of the Act, the
rules and regulations thereunder, the Exchange Act and
the rules and regulations thereunder or are not
presented in conformity with generally accepted
accounting principles applied on a basis substantially
consistent with that of the audited financial
statements included or incorporated by reference in the
Registration Statement and the Final Prospectus;
(B) The amounts set forth under the caption
"Selected Financial Data" (or other similar caption) in
the Final Prospectus are not in agreement with the
corresponding amounts in the Company's audited
financial statements included or incorporated by
reference in the Registration Statement and the Final
Prospectus; or
(C) At a specified date not more than five days
prior to the date of the letters, there has been any
change in the capital stock of the Company or any
increase in the consolidated long-term debt of the
Company and its subsidiaries or any decrease in
consolidated net current assets or net assets as
compared with the amounts shown in the Company's most
recent consolidated balance sheet included or
incorporated by reference in the Registration Statement
and the Final Prospectus or, during the period from the
date of such balance sheet to a specified date not more
than five days prior to the date of the letters, there
were any decreases, as compared with the corresponding
period in the preceding year, in consolidated net
sales, net earnings or primary net earnings per share
of the Company and its subsidiaries, except in all
instances for changes, increases or decreases which the
Registration Statement and the Final Prospectus
disclose have occurred or may occur.
(iv) In addition to the examination referred to in
their opinions and the limited procedures referred to in
clause (iii) above, they have carried out certain specified
procedures, not constituting an audit, with respect to
certain amounts, percentages and financial information which
are included or incorporated by reference in the
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<PAGE>
Registration Statement and Prospectus and which have been
specified by the Representatives, and have found such
amounts, percentages and financial information to be in
agreement with the relevant accounting, financial and other
records of the Company and its subsidiaries identified in
such letter.
(v) If pro forma financial statements are included or
incorporated in the Registration Statement and Final
Prospectus, on the basis of a reading of the unaudited pro
forma financial statements, carrying out certain specified
procedures, inquiries of certain officials of the Company
and the acquired company who have responsibility for
financial and accounting matters, and proving the arithmetic
accuracy of the application of the pro forma adjustments to
the historical amounts in the pro forma financial
statements, nothing came to their attention which caused
them to believe that the pro forma financial statements do
not comply in form in all material respects with the
applicable accounting requirements of Rule 11-02 of
Regulation S-X or that the pro forma adjustments have not
been properly applied to the historical amounts in the
compilation of such statements.
(e) At the applicable Closing Time, counsel for the
Underwriters shall have been furnished with such documents and
opinions as they may require for the purpose of enabling them to
pass upon the issuance and sale of the Securities as herein
contemplated and related proceedings, or in order to evidence the
accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the issuance
and sale of the Securities as herein contemplated shall be
satisfactory in form and substance to the Representatives and
counsel for the Underwriters.
(f) If any of the Securities are to be listed on the New
York Stock Exchange, Inc. or any other national stock exchange,
such Securities shall have been duly listed, subject to notice of
issuance, on such stock exchange.
(g) The Company shall have accepted Delayed Delivery
Contracts in any case where sales of Contract Securities arranged
by Underwriters, and the parties to such Delayed Delivery
Contracts, have been approved by the Company.
If any condition specified in this Section shall not have
been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Representatives by notice to
the Company at any time at or prior to the applicable Closing
Date, and such termination shall be without liability of any
party to any other party except as provided in Section 5.
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<PAGE>
SECTION 7. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Act as follows:
(1) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any
untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any
amendment thereto), including all documents incorporated by
reference therein, or the omission or alleged omission
therefrom of a material fact required to be stated therein
or necessary to make the statements therein not misleading
or arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Basic
Prospectus, any Preliminary Final Prospectus or the Final
Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading;
(2) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or
any investigation or proceeding by any governmental agency
or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, if such
settlement is effected with the written consent of the
Company; and
(3) against any and all expense whatsoever, as
incurred (including, subject to Section 7(c) hereof, the
fees and disbursements of counsel chosen by you) reasonably
incurred in investigating, preparing or defending against
any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission,
to the extent that any such expense is not paid under (1) or
(2) above;
provided, however, that this indemnity shall not apply to any loss,
claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to
the Company by any Underwriter through you expressly for use in the
Registration Statement (or any amendment thereto) or the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus
(or any amendment or supplement thereto).
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<PAGE>
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, its directors, each of its officers who
signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the Act
against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements
or omissions, or alleged untrue statements or omissions, made in
the Registration Statement (or any amendment thereto) or the
Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to the
Company by such Underwriter through the Representatives expressly
for use in the Registration Statement (or any amendment thereto)
the Basic Prospectus, Preliminary Final Prospectus or the Final
Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action
commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall
not relieve such indemnifying party from any liability which it
may have otherwise than on account of this indemnity agreement.
An indemnifying party may participate at its own expense in the
defense of such action. In no event shall the indemnifying
parties be liable for the fees and expenses of more than one
counsel (in addition to any local counsel) separate from their
own counsel for all indemnified parties in connection with any
one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances.
SECTION 8. Contribution. In order to provide for just and
equitable contribution in circumstances in which the indemnity
agreement provided for in Section 7 is for any reason held to be
unenforceable by the indemnified parties although applicable in
accordance with its terms, the Company and the Underwriters shall
contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement
incurred by the Company and one or more of the Underwriters, as
incurred, in such proportions that the Underwriters are responsible
for that portion represented by the percentage that the underwriting
discount appearing on the cover page of the Final Prospectus bears to
the initial public offering price of the Securities appearing thereon
and the Company is responsible for the balance; provided, however,
that no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section, each person, if any,
who controls an Underwriter within the meaning of Section 15 of the
Act shall have the same rights to contribution as such Underwriter,
and each director of the Company, each officer of the Company who
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signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the Act shall
have the same rights to contribution as the Company.
SECTION 9. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements
contained in this Agreement, or contained in certificates of officers
of the Company submitted pursuant hereto, shall remain operative and
in full force and effect, regardless of any termination of this
Agreement, or any investigation made by or on behalf of any
Underwriter or any controlling person, or by or on behalf of the
Company, and shall survive delivery of any Securities to the
Underwriters.
SECTION 10. Termination. The Representatives may terminate
this Agreement, by notice to the Company, at any time at or prior to
the applicable Closing Date (i) if there has been, since the date of
this Agreement or since the respective dates as of which information
is given in the Registration Statement, any material adverse change in
the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or any outbreak
or escalation of hostilities or other calamity or crisis, the effect
of which is such as to make it, in the Representatives' sole judgment,
impracticable to market the Securities or enforce contracts for the
sale of the Securities, or (iii) if trading in the Common Shares has
been suspended by the Commission, or if trading generally on either
the American Stock Exchange or the New York Stock Exchange has been
suspended, or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices for securities have been required, by
either of said exchanges or by order of the Commission or any other
governmental authority, or if a banking moratorium has been declared
by either Federal, New York, Indiana or Illinois authorities. In the
event of any such termination, such termination shall be without
liability of any party to any other party except as provided in
Section 5. Notwithstanding any such termination, the provisions of
Sections 7 and 8 shall remain in effect.
SECTION 11. Default. If one or more of the Underwriters shall
fail at the applicable Closing Date to purchase the Securities which
it or they are obligated to purchase under this Agreement (the
"Defaulted Securities"), then the Representatives shall have the
right, within 24 hours thereafter, to make arrangements for one or
more of the non-defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Securities in
such amounts as may be agreed upon and upon the terms herein set
forth; if, however, the Representatives shall not have completed such
arrangements within such 24-hour period, then:
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(a) if the aggregate principal amount of Defaulted
Securities does not exceed 10% of the aggregate principal amount
of the Securities to be purchased pursuant to this Agreement, the
non-defaulting Underwriters shall be obligated to purchase the
full amount thereof in the proportions that their respective
underwriting obligations under this Agreement bear to the
underwriting obligations of all such non-defaulting Underwriters,
or
(b) if the aggregate principal amount of Defaulted
Securities exceeds 10% of the aggregate principal amount of the
Securities to be purchased pursuant to this Agreement, this
Agreement shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of any default of
such Underwriter under the applicable Terms Agreement or this
Agreement.
In the event of any such default which does not result in a
termination of this Agreement, either the Representatives or the
Company shall have the right to postpone the applicable Closing Date
for a period not exceeding seven days in order to effect any required
changes in the Registration Statement or Final Prospectus, or in any
other documents or arrangements.
SECTION 12. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly
given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed to
____________________________________________________________,
Attention: ____________________. Notices to the Company shall be
directed to it at One Noblitt Plaza, Post Office Box 3000, Columbus,
Indiana 47202, Attention: Ronald R. Snyder, Esq., Vice President,
General Counsel and Secretary, with a copy to Schiff Hardin & Waite,
7200 Sears Tower, Chicago, Illinois 60606, Attention: Frederick L.
Hartmann, Esq.
SECTION 13. Parties. This Agreement shall inure to the
benefit of and be binding upon the Underwriters and the Company and
their respective successors. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person, firm
or corporation, other than the parties hereto and their respective
successors and the controlling persons and officers and directors
referred to in Sections 7 and 8 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under
or in respect of this Agreement or any provision herein contained.
This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the parties and their
respective successors and said controlling persons and officers and
directors and their heirs and legal representatives, and for the
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<PAGE>
benefit of no other person, firm or corporation. No purchaser of
Securities from any Underwriter shall be deemed to be a successor by
reason merely of such purchase.
SECTION 14. Governing Law and Time. This Agreement shall be
governed by and construed in accordance with the laws of the State of
New York applicable to agreements made and to be performed in said
State. Except as otherwise set forth herein, specified times of day
refer to New York City time.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding
agreement among the Company and the several Underwriters.
Very truly yours,
Arvin Industries, Inc.
By: Name:_________________________
Title:________________________
The foregoing Agreement is hereby
confirmed and accepted as of the
date specified in Schedule I hereto.
[Name, address and signature block
for Underwriters or Representatives.]
For themselves and the other several
Underwriters, if any, named in
Schedule II to the foregoing Agreement.
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Schedule A
Jurisdiction
Subsidiary Name of Organization
Maremont Corporation Delaware
Arvin International Holding, Inc. Indiana
Roll Coater, Inc. Indiana
Arvin Cheswick B.V. The Netherlands
Arvin International U.K., plc United Kingdom
Arvin Ride Control Products, Inc. Canada
Arvin Cheswick International B.V. The Netherlands
<PAGE>
SCHEDULE I
Debt Securities
Debt Warrants
Underwriting Agreement dated
Trustee:
Title, Purchase Price and Description of Debt Securities:
Title:
Principal amount:
Interest rate:
Interest payable:
Commencing:
Date of maturity:
Public offering price:
Purchase price:
Form of payment:
Form of Securities:
Redemption provisions:
Sinking fund requirements:
Lockup provisions:
Convertibility into other Securities:
Other provisions:
Other Provisions of or Amendments to Underwriting Agreement:
Description of Debt Warrants:
Title of Debt Warrant Agreement:
Debt Warrant Agent:
I-1
<PAGE>
Debt Warrant exercise price and currency:
Principal amount and currency of Debt Warrant:
Securities issuable upon exercise of one Debt Warrant:
Date after which Debt Warrants may be exercised:
Expiration date:
Detachable date (if applicable):
Description of Debt Warrant Securities:
Title:
Trustee:
Principal amount and currency:
Purchase price and currency:
Sinking fund provisions:
Redemption provisions:
Other provisions:
Purchased Securities Closing Date, Time and Location:
Delayed Delivery Arrangement:
Fee:
Minimum principal amount of each contract:
Maximum aggregate principal amount of all contracts:
Modification of items to be covered by the letter from Price
Waterhouse delivered pursuant to Section 6(d) at the Closing Date:
I-2
<PAGE>
PREFERRED SHARES
Underwriting Agreement dated
Designation, Purchase Price and Description of Preferred Shares:
Designation:
Liquidation preference per share:
Number of shares:
Purchase price per share (include accrued
dividends, if any):
Other provisions:
Over-allotment option:
Other Provisions of or Amendments to Underwriting Agreement:
Deposit Agreement: Terms and Conditions
Purchased Securities Closing Date, Time and Location:
Delayed Delivery Arrangements:
Fee:
Minimum principal amount of each contract:
Maximum aggregate principal amount of all contracts:
Convertibility into Common Stock or other securities:
Modification of items to be covered by the letter from Price
Waterhouse delivered pursuant to Section 6(d) at the Closing Date:
I-3
<PAGE>
DEPOSITARY SHARES REPRESENTING PREFERRED SHARES
Underwriting Agreement dated
Designation, Purchase Price and Description of Preferred Shares:
Designation:
Liquidation preference per share:
Number of shares:
Purchase price per share (include accrued
dividends, if any):
Other provisions:
Over-allotment option:
Other Provisions of or Amendments to Underwriting Agreement:
Purchased Securities Closing Date, Time and Location:
Delayed Delivery Arrangements:
Fee:
Minimum principal amount of each contract:
Maximum aggregate principal amount of all contracts:
Modification of items to be covered by the letter from Price
Waterhouse delivered pursuant to Section 6(d) at the Closing Date:
I-4
<PAGE>
PREFERRED SHARES WARRANTS
Number of Preferred Shares Warrants to be issued:
Warrant Agreement:
Form of Preferred Shares Warrants: [Registered] [Bearer]
Issuable jointly with other Securities: [Yes] [No]
[Number of Preferred Shares Warrants issued with each ________
amount or $__________ principal amount of other Securities]
[Detachable Date:]
Date from which Preferred Shares Warrants are exercisable:
Date on which Preferred Shares Warrants expire:
Exercise price(s) of Preferred Shares Warrants:
Public offering price: $______________
Purchase price: $______________
Title and terms of Preferred Shares:
Principal Amount of Preferred Shares purchasable upon exercise of one
Warrant:
Other Provisions of or Amendments to the Underwriting Agreement:
Purchased Securities Closing Date, Time and Location:
Delayed Delivery Arrangements:
I-5
<PAGE>
COMMON SHARES
Underwriting Agreement dated
Number of shares:
Purchase price per share:
Over-allotment option:
Other Provisions of or Amendments to Underwriting Agreement:
Purchased Securities Closing Date, Time and Location:
Delayed Delivery Arrangements:
Fee:
Minimum principal amount of each contract:
Maximum principal amount of each contract:
Modification of items to be covered by the letter from Price
Waterhouse delivered pursuant to Section 6(d) at the Closing Date:
I-6
<PAGE>
COMMON SHARES WARRANTS
Number of Common Shares Warrants to be issued:
Warrant Agreement:
Form of Common Shares Warrants: [Registered] [Bearer]
Issuable jointly with other Securities: [Yes] [No]
[Number of Common Shares Warrants issued with each _______ amount
or $__________ principal amount of other Securities]
[Detachable Date:]
Date from which Common Shares Warrants are exercisable:
Date on which Common Shares Warrants expire:
Exercise price(s) of Common Shares Warrants:
Public offering price: $______________
Purchase price: $________________
Principal Amount of Common Shares purchasable upon exercise of one
Warrant:
Other Provisions of or Amendments to the Underwriting Agreement:
Purchased Securities Closing Date, Time and Location:
Delayed Delivery Arrangements:
Fee:
Minimum principal amount of each contract:
Maximum aggregate principal amount of all contracts:
I-7
<PAGE>
UNITS
Title and principal amount of Debt Securities or title and number of
Preferred Shares or Common Shares and title and number of Warrants
included in one Unit:
Purchase Price and currency:
Detachable Date:
Other provisions:
I-8
<PAGE>
SCHEDULE II
Debt Securities/Debt Warrants
Firm Name $Amount<*>
------------- -------------------
Total ______________
$_____________
ALL OTHER SECURITIES
Firm Name Participation*
----------- -------------------
Total ______________
$______________
<*> If Option Securities are offered, should include the minimum and
maximum principal amount or number of shares of Securities, as
the case may be.
II-1
<PAGE>
SCHEDULE III
FORM OF DELAYED DELIVERY CONTRACT
__________________, 19__
[Name and address of Underwriters
or Representatives]
Dear Sirs:
The undersigned hereby agrees to purchase from Arvin Industries,
Inc. (the "Company"), and the Company agrees to sell to the
undersigned, on ____________, 19__, (the "Delivery Date"),
____________ [aggregate principal amount] [number of
[shares][warrants]] of the Company's [title of securities] (the
"Securities") offered by the Company's Prospectus, dated
______________, 19__, and Prospectus Supplement, dated __________,
19__, receipt of a copy of which is hereby acknowledged, at a purchase
price of [____% of the] [principal amount thereof, plus accrued
interest (amortization of original issue discount), if any, thereon
from ___________, 19__ to the date of payment and delivery]
[liquidation preference thereof or shares represented thereby, plus
accrued dividends, if any, thereon from _____________, 19__ to the
date of payment and delivery] [_________ per Debt Warrant, Preferred
Shares Warrant or Common Shares Warrant] [$_____ per share], and on
the further terms and conditions set forth in this contract.
Payment for the Securities to be purchased by the undersigned
shall be made on or before 11:00 A.M., New York City time, on the
Delivery Date to or upon the order of the Company by certified or
official bank check in New York Clearing House (next day) funds, at
your office or at such other place as shall be agreed between the
Company and the undersigned, upon delivery to the undersigned of the
Securities in definitive fully registered form [and in such authorized
denominations] and registered in such names [and for such number of
[shares] [warrants]] as the undersigned may request by written,
telegraphic or facsimile communication addressed to the Company not
less than five full business days prior to the Delivery Date. If no
request is received, the Securities will be registered in the name of
the undersigned and issued [for the total number of [shares]
[warrants]] [in a denomination equal to the aggregate principal amount
of Securities] to be purchased by the undersigned on the Delivery
Date.
II-1
<PAGE>
The obligation of the undersigned to take delivery of and make
payment for Securities on the Delivery Date, and the obligation of the
Company to sell and deliver Securities on the Delivery Date, shall be
subject to the conditions (and neither party shall incur any liability
by reason of the failure thereof) that (1) the purchase of Securities
to be made by the undersigned, which purchase the undersigned
represents is not prohibited on the date hereof, shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to
which the undersigned is subject, and (2) the Company, on or before
the Delivery Date, shall have sold to certain underwriters (the
"Underwriters") such [number of [shares] [warrants]] [principal
amount] of the Securities as is to be sold to them pursuant to the
Underwriting Agreement referred to in the Prospectus and Prospectus
Supplement mentioned above. Promptly after completion of such sale to
the Underwriters, the Company will mail or deliver to the undersigned
at its address set forth below notice to such effect, accompanied by a
copy of the opinion of counsel for the Company delivered to the
Underwriters in connection therewith. The obligation of the
undersigned to take delivery of and make payment for the Securities,
and the obligation of the Company to cause the Securities to be sold
and delivered, shall not be affected by the failure of any purchaser
to take delivery of and make payment for the Securities pursuant to
other contracts similar to this contract.
This contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be
assignable by either party hereto without the written consent of the
other.
It is understood that acceptance of this contract and other
similar contracts is in the Company's sole discretion and, without
limiting the foregoing, need not be on a first come, first served
basis. If this contract is acceptable to the Company, it is required
that the Company sign the form of acceptance below and mail or deliver
one of the counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company
and the undersigned, as of the date first above written, when such
counterpart is so mailed or delivered.
III-2
<PAGE>
This agreement shall be governed by and construed in accordance
with the laws of the State of New York.
Very truly yours,
[Name of Purchaser]
By: ______________________
[Title of Officer]
[Address]
Accepted:
Arvin Industries, Inc.
By: ____________________________
[Authorized Signature]
III-3
<PAGE>
EXHIBIT 4-4
=================================================================
ARVIN INDUSTRIES, INC.
AND
HARRIS TRUST AND SAVINGS BANK,
Trustee
--------
INDENTURE
Dated as of July 3, 1990
Debt Securities
--------
=====================================================================
<PAGE>
ARVIN INDUSTRIES, INC.
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of July 3, 1990
Trust Indenture
Act Section Indenture Section
Section 310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 608, 610
Section 311(a) . . . . . . . . . . . . . . . . . . . . . 613(a), (c)
(b) . . . . . . . . . . . . . . . . . . . . . . . . 613(b), (c)
(b)(2) . . . . . . . . . . . . . . . . . . . . 703(a)(2), 703(b)
Section 312(a) . . . . . . . . . . . . . . . . . . . . . 701, 702(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(c)
Section 313(a) . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(b)(1) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 703(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(c)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(d)
Section 314(a) . . . . . . . . . . . . . . . . . . . . . . . . . 704
(b) . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Section 315(a) . . . . . . . . . . . . . . . . . . . . . . . . 601(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . 602, 703(a)(6)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(b)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(c)
(d)(1) . . . . . . . . . . . . . . . . . . . . . 601(a)(1),(c)(1)
(d)(2) . . . . . . . . . . . . . . . . . . . . . . . . 601(c)(2)
(d)(3) . . . . . . . . . . . . . . . . . . . . . . . . 601(c)(3)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 514
Section 316(a) . . . . . . . . . . . . . . . . . . . . . . . . . 101
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . 502, 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 508
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . . . . 108
___________
NOTE: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture
<PAGE>
TABLE OF CONTENTS
Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions. . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . 1
Authenticating Agent . . . . . . . . . . . . . . . . . . . . 2
Authorized Newspaper . . . . . . . . . . . . . . . . . . . . 2
Bearer Security . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company Request and Company Order . . . . . . . . . . . . . 2
Consolidated Net Tangible Assets . . . . . . . . . . . . . . 2
Corporate Trust Office . . . . . . . . . . . . . . . . . . . 3
Corporation . . . . . . . . . . . . . . . . . . . . . . . . 3
Coupon . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . 3
Dollars or $ . . . . . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . . . . 3
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . 3
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Interest Payment Date . . . . . . . . . . . . . . . . . . . 3
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Officers' Certificate . . . . . . . . . . . . . . . . . . . 3
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . 3
Original Issue Discount Security . . . . . . . . . . . . . . 3
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . 3
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . 4
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Predecessor Security . . . . . . . . . . . . . . . . . . . . 4
Principal Facility . . . . . . . . . . . . . . . . . . . . . 4
Redemption Date . . . . . . . . . . . . . . . . . . . . . . 5
Redemption Price . . . . . . . . . . . . . . . . . . . . . . 5
Registered Security . . . . . . . . . . . . . . . . . . . . 5
Regular Record Date . . . . . . . . . . . . . . . . . . . . 5
Responsible Officer . . . . . . . . . . . . . . . . . . . . 5
Restricted Subsidiary . . . . . . . . . . . . . . . . . . . 5
Sale and Leaseback Transaction . . . . . . . . . . . . . . . 5
Secured Debt . . . . . . . . . . . . . . . . . . . . . . . . 5
Security or Securities . . . . . . . . . . . . . . . . . . . 6
ii
<PAGE>
Security Interest . . . . . . . . . . . . . . . . . . . . . 6
Security Register and Security Registrar . . . . . . . . . . 6
Senior Funded Debt . . . . . . . . . . . . . . . . . . . . . 6
Special Record Date . . . . . . . . . . . . . . . . . . . . 6
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . 6
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . 6
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . 6
United States . . . . . . . . . . . . . . . . . . . . . . . 6
Unrestricted Subsidiary . . . . . . . . . . . . . . . . . . 6
U.S. Depository or Depository . . . . . . . . . . . . . . . 7
U.S. Government Obligations . . . . . . . . . . . . . . . . 7
Vice President . . . . . . . . . . . . . . . . . . . . . . . 7
Voting Stock . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 102. Compliance Certificates and Opinions. . . . . . . 7
SECTION 103. Form of Documents Delivered to Trustee. . . . . . 8
SECTION 104. Acts of Holders. . . . . . . . . . . . . . . . . . 8
SECTION 105. Notices, etc., to Trustee and Company. . . . . . . 10
SECTION 106. Notice to Holders of Securities; Waiver. . . . . . 10
SECTION 107. Language of Notices. . . . . . . . . . . . . . . . 11
SECTION 108. Conflict with Trust Indenture Act. . . . . . . . . 11
SECTION 109. Effect of Headings and Table of Contents. . . . . 11
SECTION 110. Successors and Assigns. . . . . . . . . . . . . . 11
SECTION 111. Separability Clause. . . . . . . . . . . . . . . . 11
SECTION 112. Benefits of Indenture. . . . . . . . . . . . . . . 11
SECTION 113. Governing Law. . . . . . . . . . . . . . . . . . . 11
SECTION 114. Legal Holidays. . . . . . . . . . . . . . . . . . 11
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally. . . . . . . . . . . . . . . . . . 11
SECTION 202. Form of Trustee's Certificate of Authentication. . 12
SECTION 203. Securities in Global Form. . . . . . . . . . . . . 12
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. . . . . . . 12
SECTION 302. Denominations. . . . . . . . . . . . . . . . . . . 14
SECTION 303. Execution, Authentication, Delivery and Dating. . 14
SECTION 304. Temporary Securities. . . . . . . . . . . . . . . 15
SECTION 305. Registration, Transfer and Exchange. . . . . . . . 16
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities. 18
SECTION 307. Payment of Interest; Interest Rights Preserved. . 19
SECTION 308. Persons Deemed Owners. . . . . . . . . . . . . . . 20
SECTION 309. Cancellation. . . . . . . . . . . . . . . . . . . 21
SECTION 310. Computation of Interest. . . . . . . . . . . . . . 21
iii
<PAGE>
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. . . . . . 21
SECTION 402. Application of Trust Money. . . . . . . . . . . . 22
SECTION 403. Satisfaction, Discharge and Defeasance of
Securities of Any Series. . . . . . . . . . . . . 22
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default. . . . . . . . . . . . . . . . . 24
SECTION 502. Acceleration of Maturity; Rescission and
Annulment. . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee. . . . . . . . . . . . . . 25
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . 26
SECTION 505. Trustee May Enforce Claims without Possession of
Securities or Coupons. . . . . . . . . . . . . . . 27
SECTION 506. Application of Money Collected. . . . . . . . . . 27
SECTION 507. Limitation on Suits. . . . . . . . . . . . . . . . 27
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest. . . . . . . . . . 28
SECTION 509. Restoration of Rights and Remedies. . . . . . . . 28
SECTION 510. Rights and Remedies Cumulative. . . . . . . . . . 28
SECTION 511. Delay or Omission Not Waiver. . . . . . . . . . . 28
SECTION 512. Control by Holders of Securities. . . . . . . . . 28
SECTION 513. Waiver of Past Defaults. . . . . . . . . . . . . . 29
SECTION 514. Undertaking for Costs. . . . . . . . . . . . . . . 29
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities. . . . . . . . 29
SECTION 602. Notice of Defaults. . . . . . . . . . . . . . . . 30
SECTION 603. Certain Rights of Trustee. . . . . . . . . . . . . 30
SECTION 604. Not Responsible for Recitals or Issuance of
Securities. . . . . . . . . . . . . . . . . . . . 31
SECTION 605. May Hold Securities. . . . . . . . . . . . . . . . 31
SECTION 606. Money Held in Trust. . . . . . . . . . . . . . . . 31
SECTION 607. Compensation and Reimbursement. . . . . . . . . . 31
SECTION 608. Disqualifications; Conflicting Interests. . . . . 32
(a) Elimination of Conflicting Interest or Resignation . 32
(b) Notice of Failure to Eliminate Conflicting Interest or
Resign . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
(c) "Conflicting Interest" Defined . . . . . . . . . . . 32
(d) Definitions of Certain Terms Used in this Section . 34
(e) Calculation of Percentages of Securities . . . . . . 35
SECTION 609. Corporate Trustee Required; Eligibility. . . . . . 36
SECTION 610. Resignation and Removal; Appointment of
Successor. . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 611. Acceptance of Appointment by Successor. . . . . . 37
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business. . . . . . . . . . . . . . . . . . . . . 38
<PAGE>
SECTION 613. Preferential Collection of Claims Against
Company. . . . . . . . . . . . . . . . . . . . . . . . . . . 38
(a) Segregation and Apportionment of Certain Collections by
Trustee; Certain Exceptions . . . . . . . . . . . . . . . . . . . . 38
(b) Certain Creditor Relationships Excluded From
Segregation and Apportionment . . . . . . . . . . . . . . . . . . . 40
(c) Definitions of Certain Terms Used in this Section . 40
SECTION 614. Appointment of Authenticating Agent. . . . . . . . 41
iv
<PAGE>
ARTICLE SEVEN
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders. . . . . . . . . . . . . . . . . . . . . . 42
SECTION 702. Preservation of Information; Communications to
Holders. . . . . . . . . . . . . . . . . . . . . . 43
SECTION 703. Reports by Trustee . . . . . . . . . . . . . . . . . 44
SECTION 704. Reports by the Company. . . . . . . . . . . . . . 45
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Company May Consolidate, Etc., on Certain Terms. . 45
SECTION 802 Securities to be Secured in Certain Events. . . . 46
SECTION 803. Successor Corporation to be Substituted. . . . . . 46
SECTION 804. Opinion of Counsel to be Given Trustee. . . . . . 46
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of
Holders. . . . . . . . . . . . . . . . . . . . . . 47
SECTION 902. Supplemental Indentures with Consent of Holders. . 47
SECTION 903. Execution of Supplemental Indentures. . . . . . . 48
SECTION 904. Effect of Supplemental Indentures. . . . . . . . . 48
SECTION 905. Conformity with Trust Indenture Act. . . . . . . . 48
SECTION 906. Reference in Securities to Supplemental
Indentures. . . . . . . . . . . . . . . . . . . . 48
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and
Interest. . . . . . . . . . . . . . . . . . . . . 49
SECTION 1002. Maintenance of Office or Agency. . . . . . . . . . 49
SECTION 1003. Money for Securities Payments to Be Held in
Trust. . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 1004. Corporate Existence. . . . . . . . . . . . . . . . 51
SECTION 1005. Restriction on Creation of Secured Debt. . . . . . 51
SECTION 1006. Restriction on Sale and Leaseback Transactions. . 53
SECTION 1007. Restriction on Transfer of Principal Facility to
Unrestricted Subsidiaries. . . . . . . . . . . . . 53
SECTION 1008. Statement by Officers as to Default. . . . . . . . 54
SECTION 1009. Waiver of Certain Covenants. . . . . . . . . . . . 54
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article. . . . . . . . . . . . . 54
SECTION 1102. Election to Redeem; Notice to Trustee. . . . . . . 54
SECTION 1103. Selection by Trustee of Securities to be
Redeemed. . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 1104. Notice of Redemption. . . . . . . . . . . . . . . 55
<PAGE>
SECTION 1105. Deposit of Redemption Price. . . . . . . . . . . . 56
SECTION 1106. Securities Payable on Redemption Date. . . . . . . 56
SECTION 1107. Securities Redeemed in Part. . . . . . . . . . . . 56
v
<PAGE>
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article. . . . . . . . . . . . . 57
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
57
SECTION 1203. Redemption of Securities for Sinking Fund. . . . . 57
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. . . . . . . . . . . . . 58
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
SECTION 1401. Securities in Foreign Currencies. . . . . . . . . 58
Testimonium . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Signatures and Seals . . . . . . . . . . . . . . . . . . . . . . 59
Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . 59
vi
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INDENTURE, dated as of July 3, 1990, between ARVIN INDUSTRIES,
INC., an Indiana corporation (hereinafter called the "Company"),
having its principal executive office at One Noblitt Plaza, Columbus,
Indiana 47202, and HARRIS TRUST AND SAVINGS BANK, a banking
organization organized under the laws of Illinois (hereinafter called
the "Trustee"), having its Corporate Trust Office at 111 West Monroe
Street, Chicago, Illinois 60603.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its
unsecured and unsubordinated debentures, notes or other evidences of
indebtedness (such debt securities being hereinafter called the
"Securities"), unlimited as to principal amount, to bear such rates of
interest, to mature at such time or times, to be issued in one or more
series and to have such other provisions as shall be fixed as
hereinafter provided.
The Company has duly authorized the execution and delivery of
this Indenture, and all things necessary to make this Indenture a
valid agreement of the Company, in accordance with its terms, have
been done.
NOW, THEREFORE, in consideration of the premises and the sum of
one dollar duly paid by the Company to the Trustee, the receipt of
which is hereby acknowledged, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of Securities,
as follows:
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as defined below) thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Securities or of series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well
as the singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein,
have the meanings assigned to them therein;
<PAGE>
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally
accepted accounting principles and, except as otherwise herein
expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted at the date of such computation; and
(4) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in
that Article.
"Act" when used with respect to any Holders has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes
of this definition, "control" when used with respect to any specified
Person means the power to direct
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the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have the
meanings correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to
authenticate Securities of one or more series.
"Authorized Newspaper" means a newspaper, in an official language
of the country of publication or in the English language, customarily
published on each Business Day, whether or not published on Saturdays,
Sundays or holidays, and of general circulation in the place in
connection with which the term is used or in the financial community
of such place. Where successive publications are required to be made
in Authorized Newspapers, the successive publications may be made in
the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security in the form established
pursuant to Section 201 which is payable to bearer.
"Board of Directors" means the Board of Directors of the Company
or the Executive Committee thereof.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect
on the date of such certification, and delivered to the Trustee.
"Business Day," except as may otherwise be provided in the form
of Securities of any particular series pursuant to the provisions of
this Indenture, with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions or trust companies in that Place of Payment
are authorized or obligated by law to close.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange
Act of 1934, or if at any time after the execution of this instrument
such Commission is not existing and performing the duties now assigned
to it under the Trust Indenture Act, then the body performing such
duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have
become such pursuant to the applicable provisions of this Indenture,
and thereafter "Company" shall mean such successor corporation, and
any other obligor upon the Securities.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by the
Chairman, the Vice Chairman, the President, a Vice President or the
Treasurer, and by a Vice President, an Assistant Treasurer, the
<PAGE>
Secretary or an Assistant Secretary of the Company, and delivered to
the Trustee.
"Consolidated Net Tangible Assets" means (a) the total amount of
assets (less applicable reserves and other properly deductible items)
after deducting therefrom (i) all liabilities and liability items,
except for indebtedness payable by its terms more than one year from
the date of incurrence thereof (or renewable or extendable at the
option of the obligor for a period ending more than one year after
such date of incurrence), capitalized rent, capital stock (including
the Company's redeemable preferred shares) and surplus, surplus
reserves and deferred income taxes and credits and other non-current
liabilities, and (ii) all goodwill, trade names, trademarks, patents,
unamortized debt discount, unamortized expense incurred in the
issuance of debt, and other like intangibles which, in each case,
under generally accepted accounting principles in effect on the date
hereof would be included on a consolidated balance sheet of the
Company and its Restricted Subsidiaries, less (b) loans, advances,
equity investments and guarantees (other than accounts receivable
arising from the sale of merchandise in the
2
<PAGE>
ordinary course of business) at the time outstanding which were made
or incurred by the Company and its Restricted Subsidiaries to, in or
for Unrestricted Subsidiaries or to, in or for corporations while they
were Restricted Subsidiaries and which at the time of computation are
Unrestricted Subsidiaries.
"Corporate Trust Office" means the principal office of the
Trustee, at which at any particular time its corporate trust business
shall be administered, which office at the date of original execution
of this Indenture is located at 111 West Monroe Street, Chicago,
Illinois, Attention: Corporate Trust Administration.
"Corporation" includes corporations, associations, companies and
business trusts.
"Coupon" means any interest coupon appertaining to a Bearer
Security.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollars" or "$" or any similar reference shall mean the currency
of the United States, except as may otherwise be provided in the form
of Securities of any particular series pursuant to the provisions of
this Indenture.
"Event of Default" has the meaning specified in Section 501.
"Holder," when used with respect to any Security, means, in the
case of a Registered Security, the Person in whose name the Security
is registered in the Security Register, and, in the case of a Bearer
Security, the bearer thereof and, when used with respect to any
coupon, means the bearer thereof.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof.
"Interest," when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the applicable Securities.
"Maturity" when used with respect to any Security means the date
on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the
Stated Maturity or by declaration of acceleration, notice of
redemption, request for repayment or otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the Vice Chairman of the Board, the President
or a Vice President and by the Treasurer, an Assistant Treasurer, the
<PAGE>
Secretary or an Assistant Secretary of the Company, and delivered to
the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may
(except as otherwise expressly provided in this Indenture) be an
employee of or counsel for the Company, or other counsel who shall be
reasonably acceptable to the Trustee.
"Original Issue Discount Security" means a Security issued
pursuant to this Indenture which provides for declaration of an amount
less than the principal thereof to be due and payable upon
acceleration pursuant to Section 502.
"Outstanding" when used with respect to Securities means, as of
the date of determination, all Securities theretofore authenticated
and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee
or any Paying Agent (other than the Company) in trust or
3
<PAGE>
set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such
Securities and any coupons thereto appertaining, provided that,
if such Securities are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section
306 or in exchange for or in lieu of which other Securities have
been authenticated and delivered pursuant to this Indenture,
other than any such Securities in respect of which there shall
have been presented to the Trustee proof satisfactory to it that
such Securities are held by a bona fide purchaser in whose hands
such Securities are valid obligations of the Company; provided,
however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any
request, demand, authorization, direction, notice, consent or
waiver hereunder, the principal amount of an Original Issue
Discount Security that may be counted in making such
determination and that shall be deemed to be Outstanding for such
purposes shall be equal to the amount of the principal thereof
that could be declared to be due and payable pursuant to the
terms of such Original Issue Discount Security at the time the
taking of such action by the Holders of such requisite principal
amount is evidenced to the Trustee as provided in Section 104(a),
and, provided further, that Securities owned by the Company or
any other obligor upon the Securities or any Affiliate of the
Company or such other obligor, shall be disregarded and deemed
not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate
of the Company or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay
the principal of (and premium, if any) or interest on any Securities
on behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision
thereof.
"Place of Payment," when used with respect to the Securities of
any series, means the place or places where the principal of (and
premium, if any) and interest on the Securities of that series are
payable as specified as provided pursuant to Section 301.
<PAGE>
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306
in exchange for or in lieu of a lost, destroyed, mutilated or stolen
Security or a Security to which a mutilated, destroyed, lost or stolen
coupon appertains shall be deemed to evidence the same debt as the
lost, destroyed, mutilated or stolen Security or the Security to which
a mutilated, destroyed, lost or stolen coupon appertains.
"Principal Facility" means any manufacturing plant, warehouse,
office building or parcel of real property (including fixtures but
excluding leases and other contract rights which might otherwise be
deemed real property) owned by the Company, or any Restricted
Subsidiary, whether owned on the date hereof or thereafter, provided
each such plant, warehouse, office building or parcel of real property
has a gross book value (without deduction for any depreciation
reserves) at the date as of which the determination is being made of
in excess of three percent of the Consolidated Net Tangible Assets,
other than any such plant, warehouse, office building or parcel of
real property or portion thereof which, in the opinion of the Board of
Directors (evidenced by a Board Resolution), is not of material
importance to the business conducted by the Company and its
Subsidiaries taken as a whole.
4
<PAGE>
"Redemption Date" when used with respect to any Security to be
redeemed means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price" when used with respect to any Security to be
redeemed means the price at which it is to be redeemed as determined
pursuant to the provisions of this Indenture.
"Registered Security" means any Security established pursuant to
Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on a Registered
Security on any Interest Payment Date means the date, if any,
specified in such Security as the "Regular Record Date."
"Responsible Officer" when used with respect to the Trustee means
any officer of the Trustee in its Corporate Trust Office and also
means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Subsidiary" means (a) any Subsidiary other than an
Unrestricted Subsidiary and (b) any Subsidiary which was an
Unrestricted Subsidiary but which, subsequent to the date hereof, is
designated by the Company (evidenced by a Board Resolution) to be a
Restricted Subsidiary; provided, however, that the Company may not
designate any such Subsidiary to be a Restricted Subsidiary if the
Company would thereby breach any covenant or agreement herein
contained (on the assumption that any transaction to which such
Subsidiary was a party at the time of such designation and which would
have given rise to Secured Debt or constituted a Sale and Leaseback
Transaction at the time it was entered into had such Subsidiary then
been a Restricted Subsidiary was entered into at the time of such
designation).
"Sale and Leaseback Transaction" means any sale or transfer made
by the Company or one or more Restricted Subsidiaries (except a sale
or transfer made to the Company or one or more Restricted
Subsidiaries) of any Principal Facility which (in the case of a
Principal Facility which is a manufacturing plant, warehouse or office
building) has been in operation, use, or commercial production
(exclusive of test and startup periods) by the Company or any
Restricted Subsidiary for more than 180 days prior to such sale or
transfer, or which (in the case of a Principal Facility which is a
parcel of real property other than a manufacturing plant, warehouse or
office building) has been owned by the Company or any Restricted
Subsidiary for more than 180 days prior to such sale or transfer, if
such sale or transfer is made with the intention of leasing, or as
part of an arrangement involving the lease, of such Principal Facility
to the Company or a Restricted Subsidiary (except a lease for a period
not exceeding 36 months, made with the intention that the use of the
leased Principal Facility by the Company or such Restricted Subsidiary
will be discontinued on or before the expiration of such period). Any
<PAGE>
Secured Debt permitted under Section 1005 hereof shall not be deemed
to create or be defined to be a Sale and Leaseback Transaction.
"Secured Debt" means any indebtedness for money borrowed by, or
evidenced by a note or other similar instrument of, the Company or a
Restricted Subsidiary, and any other indebtedness of the Company or a
Restricted Subsidiary on which by the terms of such indebtedness
interest is paid or payable, including obligations evidenced or
secured by leases, instalment sales agreements or other instruments in
connection with private activity bonds which are qualified bonds under
Section 141 of the Internal Revenue Code of 1986 (other than
indebtedness owed by a Restricted Subsidiary to the Company, by a
Restricted Subsidiary to another Restricted Subsidiary or by the
Company to a Restricted Subsidiary), which in any such case is secured
by (a) a Security Interest in any Principal Facility, or (b) a
Security Interest in any shares of stock owned directly or indirectly
by the Company in a Restricted Subsidiary or in indebtedness for money
borrowed by a Restricted Subsidiary from the Company or another
Restricted Subsidiary. The securing in the foregoing manner of any
previously
5
<PAGE>
unsecured debt shall be deemed to be the creation of Secured Debt at
the time such security is given. The amount of Secured Debt at any
time outstanding shall be the maximum aggregate amount then owing
thereon by the Company and its Restricted Subsidiaries.
"Security" or "Securities" means any Security or Securities, as
the case may be, authenticated and delivered under this Indenture.
"Security Interest" means any mortgage, pledge, lien, encumbrance
or other security interest which secures payment or performance of an
obligation.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Funded Debt" means any obligation of the Company or any
Restricted Subsidiary which constituted funded debt as of the date of
its creation and which, in the case of such funded debt of the
Company, is not subordinate and junior in right of payment to the
prior payment of the Securities. As used herein "funded debt" shall
mean any obligation payable by its terms more than one year from the
date of incurrence thereof (or renewable or extendable at the option
of the obligor for a period ending more than one year after such date
of incurrence), which under generally accepted accounting principles
should be shown on the balance sheet as a liability.
"Special Record Date" for the payment of any Defaulted Interest
on the Registered Securities of any series means a date fixed by the
Trustee pursuant to Section 307.
"Stated Maturity" when used with respect to any Security or any
installment of principal thereof or interest thereon means the date
specified in such Security or a coupon representing such installment
of interest as the fixed date on which the principal of such Security
or such installment of principal or interest is due and payable.
"Subsidiary" means any corporation of which at the time of
determination the Company and/or one or more Subsidiaries owns or
controls directly or indirectly more than 50 percent of the shares of
Voting Stock. "Wholly-owned," when used with reference to a
Subsidiary, means a Subsidiary of which all of the outstanding capital
stock (except for qualifying shares) is owned by the Company or by one
or more wholly-owned Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have
become such with respect to one or more series of Securities pursuant
to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" shall
mean each such Person and as used with respect to the Securities of
any series shall mean the Trustee with respect to the Securities of
that series.
<PAGE>
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as
provided in Section 905.
"United States" means the United States of America (including the
States and the District of Columbia), its territories and possessions
and other areas subject to its jurisdiction.
"Unrestricted Subsidiary" means (a) any Subsidiary acquired or
organized after the date hereof, provided, however, that such
Subsidiary is not a successor, directly or indirectly, to, and does
not directly or Indirectly own any equity interest in, any Restricted
Subsidiary, (b) any Subsidiary the principal business and assets of
which are located outside the United States of America (including its
territories and possessions) or Canada or both, (c) any Subsidiary the
principal business of which consists of financing the acquisition or
disposition of machinery, equipment, inventory, accounts receivable
and other real, personal and intangible property by Persons including
the Company or a Subsidiary, (d) any Subsidiary the principal business
of which is owning, leasing, dealing in or developing real property
for residential or office building purposes, and (e) any Subsidiary
substantially all the
6
<PAGE>
assets of which consist of stock or other securities of an
Unrestricted Subsidiary or Unrestricted Subsidiaries of the character
described in clauses (a) through (d) of this paragraph, unless and
until, in each of the cases specified in this paragraph, any such
Subsidiary shall have been designated to be a Restricted Subsidiary
pursuant to clause (b) of the definition of "Restricted Subsidiary."
"U.S. Depository" or "Depository" means, with respect to the
Securities of any series issuable or issued in whole or in part in the
form of one or more global Securities, the Person designated as U.S.
Depository by the Company pursuant to Section 301, which must be a
clearing agency registered under the Securities Exchange Act of 1934,
as amended, and, if so provided pursuant to Section 301 with respect
to the Securities of any series, any successor to such Person. If at
any time there is more than one such Person, "U.S. Depository" shall
mean, with respect to any series of Securities, the qualifying entity
which has been appointed with respect to the Securities of that
series.
"U.S. Government Obligations" means direct obligations of the
United States for the payment of which its full faith and credit is
pledged, or obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States and the
payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States which, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall
also include a depository receipt issued by a bank (as defined in
Section 3(a) (2) of the Securities Act of 1933, as amended) as
custodian with respect to any such U.S. Government Obligations or a
specific payment of principal of or interest on any such U.S.
Government Obligations held by such custodian for the account of the
holder of such depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from
the amount payable to the holder of such depository receipt from any
amount received by the custodian in respect of the U.S. Government
Obligations or the specific payment of principal of or interest on the
U.S. Government Obligations evidenced by such depository receipt.
"Vice President" when used with respect to the Company shall mean
any Vice President of the Company whether or not designated by a
number or a word or words added before or after the title "Vice
President."
"Voting Stock" means stock of the class or classes having general
voting power under ordinary circumstances to elect at least a majority
of the board of directors, managers or trustees of such corporation
provided that, for the purposes hereof, stock which carries only the
right to vote conditionally on the happening of an event shall not be
considered voting stock whether or not such event shall have happened.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company
<PAGE>
shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with and an Opinion of
Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in
the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this
Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such
certificate or opinion has read such condition or covenant and
the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
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<PAGE>
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such condition or covenant has been complied with;
and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the
opinion of, only one such Person, or that they be so certified or
covered by only one document, but one such Person may certify or give
an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give
an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows,
or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the matters
upon which his certificate or opinion is based are erroneous. Any
such certificate or Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that
the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions
or other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given
or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in
person or by agent duly appointed in writing. Except as herein
otherwise expressly provided, such action shall become effective when
such instrument or instruments or record or both are delivered to the
Trustee and, where it is hereby expressly required, to the Company.
Such instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Holders signing such instrument or instruments
and so voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing as such agent, or of the holding
<PAGE>
by any Person of a Security, shall be sufficient for any purpose of
this Indenture and (subject to Section 601) conclusive in favor of the
Trustee and the Company and any agent of the Trustee or the Company,
if made in the manner provided in this Section.
Without limiting the generality of this Section 104, unless
otherwise established in or pursuant to a Board Resolution or set
forth or determined in an Officers' Certificate, or established in one
or more indentures supplemental hereto, pursuant to Section 301, a
Holder, including a U.S. Depository that is a Holder of a global
Security, may make, give or take, by a proxy, or proxies, duly
appointed in writing, any request, demand, authorization, direction,
notice, consent, waiver or other action provided in this Indenture to
be made, given or taken by Holders, and a U.S. Depository that is a
Holder of a global Security may provide its proxy or proxies to the
beneficial owners of interests in any such global Security through
such U.S. Depository's standing instructions and customary practices.
The Trustee shall fix a record date for the purpose of
determining the Persons who are beneficial owners of interest in any
permanent global Security held by a U.S. Depository entitled under the
8
<PAGE>
procedures of such U.S. Depository to make, give or take, by a proxy
or proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action
provided in this Indenture to be made, given or taken by Holders. If
such a record date is fixed, the Holders on such record date or their
duly appointed proxy or proxies, and only such Persons, shall be
entitled to make, give or take such request, demand, authorization,
direction, notice, consent, waiver or other action, whether or not
such Holders remain Holders after such record date. No such request,
demand, authorization, direction, notice, consent, waiver or other
action shall be valid or effective if made, given or taken more than
90 days after such record date.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the
Trustee deems sufficient and in accordance with such reasonable rules
as the Trustee may determine; and the Trustee may in any instance
require further proof with respect to any of the matters referred to
in this Section.
(c) The ownership of Registered Securities and the principal
amount and serial numbers of Registered Securities held by any Person,
and the date of holding the same, shall be proved by the Security
Register.
(d) The principal amount and serial numbers of Bearer Securities
held by any Person, and the date of holding the same, may be proved by
the production of such Bearer Securities or by a certificate executed,
as depositary, by any trust company, bank, banker or other depositary
reasonably acceptable to the Company, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing
that at the date therein mentioned such Person had on deposit with
such depositary, or exhibited to it, the Bearer Securities therein
described; or such facts may be proved by the certificate or affidavit
of the Person holding such Bearer Securities, if such certificate or
affidavit is deemed by the Trustee to the satisfactory. The Trustee
and the Company may assume that such ownership of any Bearer Security
continues until (1) another certificate or affidavit bearing a later
date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other Person
or (3) such Bearer Security is surrendered in exchange for a
Registered Security, or (4) such Bearer Security is no longer
Outstanding. The principal amount and serial numbers of Bearer
Securities held by the Person so executing such instrument or writing
and the date of holding the same may also be proved in any other
manner which the Trustee deems sufficient.
(e) If the Company shall solicit from the Holders of any
Registered Securities any request, demand, authorization, direction,
notice, consent, waiver or other Act, the Company may, at its option,
by Board Resolution, fix in advance a record date for the
determination of Holders of Registered Securities entitled to give
such request, demand, authorization, direction, notice, consent,
waiver or other Act, but the Company shall have no obligation to do
<PAGE>
so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be
given before or after such record date, but only the Holders of
Registered Securities of record at the close of business on such
record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities shall be computed
as of such record date; provided that no such authorization, agreement
or consent by the Holders of Registered Securities on such record date
shall become effective pursuant to the provisions of this Indenture
not later than six months after the record date.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Security shall
bind every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done or
suffered to be done by the Trustee, any Security Registrar, any Paying
Agent or the Company in reliance thereon, whether or not notation of
such action is made upon such Security.
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<PAGE>
SECTION 105. Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished
or filed in writing to or with the Trustee at its Corporate Trust
Office, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to the attention of its
Treasurer at the address of its principal office specified in the
first paragraph of this instrument or at any other address
previously furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein or in the form of
Securities of any particular series pursuant to the provisions of this
Indenture, where this Indenture provides for notice to Holders of
Securities of any event,
(1) such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed, first-class
postage prepaid, to each Holder of a Registered Security affected
by such event, at his address as it appears in the Security
Register, not later than the latest date, and not earlier than
the earliest date, prescribed for the giving of such Notice; and
(2) such notice shall be sufficiently given to Holders of
Bearer Securities, if any, if published in an Authorized
Newspaper in The City of New York and, if the Securities of such
series are then listed on any stock exchange outside the United
States, in an Authorized Newspaper in such city as the Company
shall advise the Trustee that such stock exchange so requires, on
a Business Day at least twice, the first such publication to be
not earlier than the earliest date and not later than the latest
date prescribed for the giving of such notice.
In any case where notice to Holders of Registered Securities is
given by mail, neither the failure to mail such notice, nor any defect
in any notice so mailed, to any particular Holder of a Registered
Security shall affect the sufficiency of such notice with respect to
other Holders of Registered Securities or the sufficiency of any
notice to Holders of Bearer Securities given as provided herein. Any
notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given or provided. In the
case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the
<PAGE>
Trustee shall constitute a sufficient notification for every purpose
hereunder.
In case by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any
other cause it shall be impracticable to publish any notice to Holders
of Bearer Securities as provided above, then such notification to
Holders of Bearer Securities as shall be given with the approval of
the Trustee shall constitute sufficient notice to such Holders for
every purpose hereunder. Neither failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any
defect in any notice so published, shall affect the sufficiency of any
notice mailed to Holders of Registered Securities as provided above.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders of Securities
shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance
upon such waiver.
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<PAGE>
SECTION 107. Language of Notices.
Any request, demand, authorization, direction, notice, consent,
election or waiver required or permitted under this Indenture shall be
in the English language, except that, if the Company so elects, any
published notice may be in an official language of the country of
publication.
SECTION 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this
Indenture by any of the provisions of the Trust Indenture Act, such
required provisions shall control.
SECTION 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 111. Separability Clause.
In case any provision in this Indenture or in the Securities or
coupons shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 112. Benefits of Indenture.
Nothing in this Indenture or in the Securities or coupons,
express or implied, shall give to any Person, other than the parties
hereto, any Security Registrar, any Paying Agent and their successors
hereunder and the Holders of Securities or coupons, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
SECTION 113. Governing Law.
This Indenture and the Securities and coupons shall be governed
by and construed in accordance with the laws of the State of New York.
SECTION 114. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security shall not be a Business Day at any
Place of Payment, then (notwithstanding any other provision of this
Indenture or the Securities or coupons other than a provision in the
Securities which specifically states that such provision shall apply
in lieu of this Section) payment of interest or principal (and
premium, if any) need not be made at such Place of Payment on such
date, but may be made on the next succeeding Business Day at such
<PAGE>
Place of Payment with the same force and effect as if made on the
Interest Payment Date or Redemption Date, or at the Stated Maturity,
and no interest shall accrue on the amount so payable for the period
from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons, if any, and
temporary global Securities, if any, shall be in the form established
by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, shall have appropriate insertions, omissions,
substitutions and other variations as are required or permitted by
this Indenture or any indenture supplemental hereto and may have such
letters, numbers or other marks of
11
<PAGE>
identification and such legends or endorsements placed thereon as may,
consistently herewith, be determined by the officers of the Company
executing such Securities, as evidenced by their execution of such
Securities.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, the Securities of each series
shall be issuable in registered form without coupons. If so provided
as contemplated by Section 301, the Securities of a series also shall
be issuable in bearer form, with or without interest coupons attached.
The definitive Securities and coupons shall be printed,
lithographed or engraved or produced by any combination of these
methods on a steel engraved border or steel engraved borders or may be
produced in any other manner, all as determined by the officers of the
Company executing such Securities, as evidenced by their execution of
such Securities or coupons.
SECTION 202. 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 therein
referred to in the within-mentioned Indenture.
[Trustee], as Trustee
By______________________________________
Authorized Officer
SECTION 203. Securities in Global Form.
If Securities of a series are issuable in global form, any such
Security may provide that it shall represent the aggregate amount of
Outstanding Securities from time to time endorsed thereon and may also
provide that the aggregate amount of Outstanding Securities
represented thereby may from time to time be reduced to reflect
exchanges. Any endorsement of a Security in global form to reflect
the amount, or any increase or decrease in the amount or changes in
the rights of Holders of Outstanding Securities represented thereby
shall be made in such manner and by such Person or Persons as shall be
specified therein. Any instructions by the Company with respect to a
Security in global form shall be in writing but need not comply with
Section 102.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
<PAGE>
The Securities may be issued in one or more series. There shall
be established in or pursuant to a Board Resolution, and set forth in
an Officers' Certificate, or established in one or more indentures
supplemental hereto:
(1) the title of the Securities and the series in which such
Securities shall be included;
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<PAGE>
(2) any limit upon the aggregate principal amount of the
Securities of such title or the Securities of such series which may be
authenticated and delivered under this Indenture (except for
Securities authenticated and delivered upon registration or transfer
of, or in exchange for, or in lieu of, other Securities of the series
pursuant to Section 304, 305, 306, 906 or 1107);
(3) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or
both; any restrictions applicable to the offer, sale or delivery of
Bearer Securities and the terms upon which Bearer Securities of the
series may be exchanged for Registered Securities of the series and
vice versa; and whether any Securities of the series are to be
issuable initially in global form and, if so, (i) whether beneficial
owners of interests in any such global Security may exchange such
interest for Securities of such series and of like tenor of any
authorized form and denomination and the circumstances under which any
such exchanges may occur, if other than in the manner specified in
Section 305 and (ii) the name of the depository or the U.S.
Depository, as the case may be, with respect to any global Security;
(4) the date as of which any Bearer Securities of the series and
any temporary global Security representing Outstanding Securities of
the series shall be dated if other than the date of original issuance
of the first Security of the series to be issued;
(5) if Securities of the series are to be issuable as Bearer
Securities, whether interest in respect of any portion of a temporary
Bearer Security in global form (representing all of the Outstanding
Bearer Securities of the series) payable in respect of an Interest
Payment Date prior to the exchange of such temporary Bearer Security
for definitive Securities of the series shall be paid to any clearing
organization with respect to the portion of such temporary Bearer
Security held for its account and, in such event, the terms and
conditions (including any certification requirements) upon which any
such interest payment received by a clearing organization will be
credited to the Persons entitled to interest payable on such Interest
Payment Date;
(6) the date or dates on which the principal of such Securities
is payable;
(7) the rate or rates at which such Securities shall bear
interest, if any, or method in which such rate or rates are
determined, the date or dates from which such interest shall accrue,
the Interest Payment Dates on which such interest shall be payable and
the Regular Record Date for the interest payable on Registered
Securities on any Interest Payment Date, and the basis upon which
interest shall be calculated if other than that of a 360-day year of
twelve 30-day months;
(8) the place or places, if any, in addition to or other than
the Borough of Manhattan, The City of New York, where the principal of
<PAGE>
(and premium, if any) and interest on such Securities shall be
payable;
(9) the period or periods within which, the price or prices at
which and the terms and conditions upon which such Securities may be
redeemed, in whole or in part, at the option of the Company;
(10) the obligation, if any, of the Company to redeem or purchase
such Securities pursuant to any sinking fund or at the option of a
Holder thereof and the period or periods within which, the price or
prices at which and the terms and conditions upon which such
Securities shall be redeemed or purchased, in whole or in part,
pursuant to such obligation, and any provisions for the remarketing of
such Securities;
(11) the denominations in which Registered Securities of the
series, if any, shall be issuable if other than denominations of
$1,000 and any integral multiple thereof, and the denominations in
which Bearer Securities of the series, if any, shall be issuable if
other than the denomination of $5,000;
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<PAGE>
(12) if other than the principal amount thereof, the portion of
the principal amount of such Securities which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to
Section 502;
(13) if other than such coin or currency of the United States of
America as at the time of payment is legal tender for payment of
public or private debts, the coin or currency, including composite
currencies, in which payment of the principal of (and premium, if any)
or interest, if any, on such Securities shall be payable;
(14) if the principal of (and premium, if any) or interest, if
any, on such Securities are to be payable, at the election of the
Company or a Holder thereof, in a coin or currency, including
composite currencies, other than that in which the Securities are
stated to be payable, 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 premium, if
any) or interest, if any, on such Securities may be determined with
reference to an index, formula or other method based on a coin or
currency other than that in which the Securities are stated to be
payable, the manner in which such amounts shall be determined;
(16) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
then the form and terms of such certificates, documents or conditions;
and
(17) any other terms of such Securities (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and coupons appertaining to
Bearer Securities of such series, if any, shall be substantially
identical except as to denomination and the rate or rates of interest,
if any, and Stated Maturity, the date from which interest, if any,
shall accrue and except as may otherwise be provided in or pursuant to
such Board Resolution and set forth in such Officers' Certificate or
in any 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.
If any of the terms of the Securities of any series were
established by action taken pursuant to a Board Resolution, a copy of
an appropriate record of such action shall be certified by the
Secretary or an Assistant Secretary of the Company and delivered to
the Trustee at or prior to the delivery of the Officers' Certificate
setting forth the terms of such series.
SECTION 302. Denominations.
<PAGE>
Unless other denominations and amounts may from time to time be
fixed by or pursuant to a Board Resolution, the Registered Securities
of each series, if any, shall be issuable in registered form without
coupons in denominations of $1,000 and any integral multiple thereof,
and the Bearer Securities of each series, if any, shall be issuable in
the denomination of $5,000, or in such other denominations and amounts
as may from time to time be fixed by or pursuant to a Board
Resolution.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, Vice Chairman of the Board, President, Vice
President serving as Chief Financial Officer or its Treasurer under
its corporate seal reproduced thereon and attested by its Secretary or
one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile. Coupons shall
bear the facsimile signature of the Treasurer or any Assistant
Treasurer of the Company.
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<PAGE>
Securities and coupons bearing the manual or facsimile signatures
of individuals who were at any time the proper officers of the Company
shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication
and delivery of such Securities or did not hold such offices at the
date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any
series, together with any coupons appertaining thereto, executed by
the Company to the Trustee for authentication, together with the Board
Resolution and Officers' Certificate or supplemental indenture with
respect to such Securities referred to in Section 301 and a Company
Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order and subject to the
provisions hereof shall authenticate and deliver such Securities. In
authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Section 601)
shall be fully protected in relying upon, an Opinion of Counsel
stating, to the effect that
(a) the form and terms of such Securities and coupons, if
any, have been established in conformity with the provisions of
this Indenture;
(b) all necessary corporate action for the issuance and
delivery of such Securities together with the coupons, if any,
appertaining thereto, has been taken and that such Securities,
and coupons, when authenticated and delivered by the Trustee and
issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute legally
valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms, subject to
bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights
generally, and subject to general principles of equity
(regardless of whether enforcement is sought in a proceeding in
equity or at law); such Opinion of Counsel need express no
opinion as to the availability of equitable remedies; and
(c) as to such other matters as the Trustee may reasonably
request.
The Trustee shall not be required to authenticate such Securities
if the issue of such Securities pursuant to this Indenture will affect
the Trustee's own rights, duties or immunities under the Securities
and this Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee or if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken.
Each Registered Security shall be dated the date of its
authentication. Each Bearer Security and any temporary Bearer
<PAGE>
Security in global form shall be dated as of the date specified as
contemplated by Section 301.
No Security or coupon appertaining thereto shall be entitled to
any benefit under this Indenture or be valid or obligatory for any
purpose, unless there appears on such Security a certificate of
authentication substantially in the form provided for in Section 202
or 614 executed by or on behalf of the Trustee by the manual signature
of one of its authorized officers, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that
such Security has been duly authenticated and delivered hereunder.
Except as permitted by Section 305 or 306, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant
coupons for interest then matured have been detached and cancelled.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series,
the Company may execute and deliver to the Trustee, and upon Company
Order the Trustee shall authenticate and deliver, in the manner
provided in Section 303, temporary Securities of such series which are
printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor
of the definitive Securities in lieu of which they are issued, in
registered form, or, if authorized, in bearer form with one or more
coupons or without coupons and with such appropriate insertions,
15
<PAGE>
omissions, substitutions and other variations as the officers of the
Company executing such Securities may determine, as evidenced by their
execution of such Securities. In the case of Bearer Securities of any
series, such temporary Securities may be in global form, representing
all of the Outstanding Bearer Securities of such series.
Except in the case of temporary Securities in global form, which
shall be exchanged in accordance with the provisions thereof, if
temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities,
the temporary Securities of such series shall be exchangeable upon
request for definitive Securities of such series containing identical
terms and provisions upon surrender of the temporary Securities of
such series at an office or agency of the Company maintained for such
purpose pursuant to Section 1002, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of
any series (accompanied by any unmatured coupons appertaining
thereto), the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a like principal amount of definitive
Securities of authorized denominations of the same series containing
identical terms and provisions; provided, however, that no definitive
Bearer Security, except as provided pursuant to Section 301, shall be
delivered in exchange for a temporary Registered Security; and
provided, further, that a definitive Bearer Security shall be
delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth therein. Unless otherwise
specified as contemplated by Section 301 with respect to a temporary
global Security, until so exchanged the temporary Securities of any
series shall in all respects be entitled to the same benefits under
this Indenture as definitive Securities of such series.
SECTION 305. Registration, Transfer and Exchange.
With respect to the Registered Securities of each series, if any,
the Company shall cause to be kept, at an office or agency of the
Company maintained pursuant to Section 1002, a register (herein
sometimes referred to as the "Security Register") in which, subject to
such reasonable regulations as it may prescribe, the Company shall
provide for the registration of the Registered Securities of each
series and of transfers of the Registered Securities of each series.
In the event that the Trustee shall not be the Security Registrar, it
shall have the right to examine the Security Register at all
reasonable times.
Upon surrender for registration of transfer of any Registered
Security of any series at any office or agency of the Company
maintained for that series pursuant to Section 1002, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name
of the designated transferee or transferees, one or more new
Registered Securities of the same series of any authorized
denominations, of a like aggregate principal amount bearing a number
not contemporaneously outstanding and containing identical terms and
provisions.
<PAGE>
At the option of the Holder, Registered Securities of any series
may be exchanged for other Registered Securities of the same series
containing identical terms and provisions, in any authorized
denominations, and of a like aggregate principal amount, upon
surrender of the Securities to be exchanged at any such office or
agency. Whenever any Registered Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities which the Holder
making the exchange is entitled to receive.
If so provided with respect to Securities of a series, at the
option of the Holder, Bearer Securities of any such series may be
exchanged for Registered Securities of the same series containing
identical terms and provisions, of any authorized denominations and
aggregate principal amount, upon surrender of the Bearer Securities to
be exchanged at any such office or agency, with all unmatured coupons
and all matured coupons in default thereto appertaining. If the
Holder of a Bearer Security is unable to produce any such unmatured
coupon or coupons or matured coupon or coupons in default, such
exchange may be effected if the Bearer Securities are accompanied by
payment in funds acceptable to the Company and the Trustee in an
amount equal to the face amount of such missing coupon or coupons, or
the surrender of such missing coupon or coupons may be waived by the
Company and the
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<PAGE>
Trustee if there is furnished to them such security or indemnity as
they may require to save each of them and any Paying Agent harmless.
If thereafter the Holder of such Security shall surrender to any
Paying Agent any such missing coupon in respect of which such a
payment shall have been made, such Holder shall be entitled to receive
the amount of such payment; provided, however, that, except as
otherwise provided in Section 1002, interest represented by coupons
shall be payable only upon presentation and surrender of those coupons
at an office or agency located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such office or agency in exchange for a
Registered Security of the same series and like tenor after the close
of business at such office or agency on (i) any Regular Record Date
and before the opening of business at such office or agency on the
relevant Interest Payment Date, or (ii) any Special Record Date and
before the opening of business at such office or agency on the related
date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such Interest Payment Date
or proposed date of payment, as the case may be (or, if such coupon is
so surrendered with such Bearer Security, such coupon shall be
returned to the person so surrendering the Bearer Security), and
interest or Defaulted Interest, as the case may be, will not be
payable on such Interest Payment Date or proposed date for payment, as
the case may be, in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of
this Indenture.
If expressly provided with respect to the Securities of any
series, at the option of the Holder, Registered Securities of such
series may be exchanged for Bearer Securities upon such terms and
conditions as may be provided with respect to such series.
Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver,
the Securities which the Holder making the exchange is entitled to
receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any global Security shall be exchangeable
only if (i) the Depository is at any time unwilling or unable to
continue as Depository and a successor depository is not appointed by
the Company within 60 days, (ii) the Company executes and delivers to
the Trustee a Company Order to the effect that such global Security
shall be so exchangeable, or (iii) an Event of Default has occurred
and is continuing with respect to the Securities. If the beneficial
owners of interests in a global Security are entitled to exchange such
interests for Securities of such series and of like tenor and
principal amount of any authorized form and denomination, as specified
as contemplated by Section 301, then without unnecessary delay but in
any event not later than the earliest date on which such interests may
be so exchanged, the Company shall deliver to the Trustee definitive
Securities of that series in aggregate principal amount equal to the
principal amount of such global Security, executed by the Company. On
<PAGE>
or after the earliest date on which such Interests may be so
exchanged, such global Securities shall be surrendered from time to
time by the U.S. Depository or such other depository as shall be
specified in the Company Order with respect thereto, and in accordance
with instructions given to the Trustee and the U.S. Depository or such
depository, as the case may be (which instructions shall be in writing
but need not comply with Section 102 or be accompanied by an Opinion
of Counsel), as shall be specified in the Company Order with respect
thereto to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or in part, for definitive Securities of the same
series without charge. The Trustee shall authenticate and make
available for delivery, in exchange for each portion of such
surrendered global Security, a like aggregate principal amount of
definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such global Security to be
exchanged which (unless the Securities of the series are not issuable
both as Bearer Securities and as Registered Securities, in which case
the definitive Securities exchanged for the global Security shall be
issuable only in the form in which the Securities are issuable, as
specified as contemplated by Section 301) shall be in the form of
Bearer Securities or Registered Securities, or any combination
thereof, as shall be specified by the beneficial owner thereof;
provided, however, that no such exchanges may occur during
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a period beginning at the opening of business 15 days before any
selection of Securities of that series to be redeemed and ending on
the relevant Redemption Date; and provided, further, that (unless
other-wise specified as contemplated by Section 301) no Bearer
Security delivered in exchange for a portion of a global Security
shall be mailed or otherwise delivered to any location in the United
States. Promptly following any such exchange in part, such global
Security shall be returned by the Trustee to such depository or the
U.S. Depository, as the case may be, or such other depository or U.S.
Depository referred to above in accordance with the instructions of
the Company referred to above. If a Registered Security is issued in
exchange for any portion of a global Security after the close of
business at the office or agency where such exchange occurs on (i) any
Regular Record Date and before the opening of business at such office
or agency on the relevant Interest Payment Date, or (ii) any Special
Record Date and before the opening of business at such office or
agency on the related proposed date for payment of interest or
Defaulted Interest, as the case may be, interest will not be payable
on such Interest Payment Date or proposed date for payment, as the
case may be, in respect of such Registered Security, but will be
payable on such Interest Payment Date or proposed date for payment, as
the case may be, only to the Person to whom interest in respect of
such portion of such global Security is payable in accordance with the
provisions of this Indenture.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of
transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange or redemption shall (if so
required by the Company or the Security Registrar for such series of
Security presented) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and such
Security Registrar duly executed by the Holder thereof or his attorney
duly authorized in writing.
No service charge shall be made for any registration of transfer
or exchange, or redemption of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant to
Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange any Securities of any series during a period
beginning at the opening of business 15 days before the day of the
selection for redemption of Securities of that series under Section
1103 and ending at the close of business on the day of such selection,
or (ii) to register the transfer of or exchange any Registered
Security so selected for redemption in whole or in part, except in the
case of any Security to be redeemed in part, the portion thereof not
<PAGE>
to be redeemed, or (iii) to exchange any Bearer Security so selected
for redemption except, to the extent provided with respect to
Securities of a series, that such a Bearer Security may be exchanged
for a Registered Security of that series, provided that such
Registered Security shall be immediately surrendered for redemption
with written instruction for payment consistent with the provisions of
this Indenture.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series containing identical terms
and of like principal amount and bearing a number not
contemporaneously outstanding, with coupons corresponding to the
coupons, if any, appertaining to the surrendered Security.
If there be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of
any Security or coupon, and (ii) such security or indemnity as may be
required by them to save each of them and any agent of either of them
harmless, then, in the absence of notice to the Company or the Trustee
that such Security or coupon has been acquired by a bona fide
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<PAGE>
purchaser, the Company shall execute and upon its request the Trustee
shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Security or in exchange for the
Security to which a destroyed, lost or stolen coupon appertains with
all appurtenant coupons not destroyed, lost or stolen, a new Security
of the same series containing identical terms and of like principal
amount and bearing a number not contemporaneously outstanding, with
coupons corresponding to the coupons, if any, appertaining to such
destroyed, lost or stolen Security or to the Security to which such
destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or
coupon has become or is about to become due and payable, the Company
in its discretion may, instead of issuing a new Security, pay such
Security or coupon; provided, however, that payment of principal of
(and premium, if any) and any interest on Bearer Securities shall,
except as otherwise provided in Section 1002, be payable only at an
office or agency located outside the United States and, unless
otherwise specified as contemplated by Section 301, any interest on
Bearer Securities shall be payable only upon presentation and
surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation thereto
and any other expenses (including the fees and expenses of the
Trustee) connected therewith.
Every new Security of any series, with its coupons, if any,
issued pursuant to this Section in lieu of any destroyed, lost or
stolen Security and its coupons, if any, or the destroyed, lost or
stolen coupon shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series and
their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen
Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall, if so
provided in such Security, be paid, in the case of Registered
Securities, to the Person in whose name that Security (or one or more
Predecessor Securities) is registered as of the close of business on
the Regular Record Date for such interest and, in the case of Bearer
Securities, upon surrender of the coupon appertaining thereto in
respect of the interest due on such Interest Payment Date. In case a
Bearer Security of any series is surrendered in exchange for a
Registered Security of such series after the close of business (at an
office or agency in a Place of Payment for such series) on any Regular
<PAGE>
Record Date and before the opening of business (at such office or
agency) on the next succeeding Interest Payment Date, such Bearer
Security shall be surrendered without the coupon relating to such
Interest Payment Date and interest will not be payable on such
Interest Payment Date in respect of the Registered Security issued in
exchange of such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of
this Indenture.
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Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any
Interest Payment Date for such Registered Security (herein called
"Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been
such Holder; and such Defaulted Interest may be paid by the Company,
at its election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities
affected (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid
on each such Registered Security and the date of the proposed
payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior
to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and
not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at
the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each
Holder of such Registered Securities at his address as it appears
in the Security Register not less than 10 days prior to such
Special Record Date. The Trustee may, in its discretion, in the
name and at the expense of the Company, cause a similar notice to
be published at least once in a newspaper, customarily published
in the English language on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York,
but such publication shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special
Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names
such Registered Securities (or their respective Predecessor
Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to
the following Clause (2).
(2) The Company may make payment of any Defaulted Interest
in any other lawful manner not inconsistent with the requirements
of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the
<PAGE>
proposed payment pursuant to this Clause, such payment shall be
deemed practicable by the Trustee.
At the option of the Company, interest on Registered Securities
of any series that bear interest may be paid by mailing a check to the
address of the person entitled thereto as such address shall appear in
the Security Register.
Subject to the foregoing provisions of this Section and Section
305, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall
carry the rights to interest accrued and unpaid, and to accrue, which
were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for
registration of transfer, the Company, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose name such
Registered Security is registered as the owner of such Registered
Security for the purpose of receiving payment of principal of (and
premium, if any), and (subject to Sections 305 and 307) interest on
such
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Registered Security and for all other purposes whatsoever, whether or
not such Registered Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected
by notice to the contrary.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of
any coupon as the absolute owner of such Security or coupon for the
purpose of receiving payment thereof or on account thereof and for all
other purposes whatsoever, whether or not such Security or coupon be
overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.
SECTION 309. Cancellation.
All Securities and coupons surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking
fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee, and any such Securities and
coupons and Securities and coupons surrendered directly to the Trustee
for any such purpose shall be promptly cancelled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may
have acquired in any manner whatsoever, and all Securities so
delivered shall be promptly canceled by the Trustee. No Securities
shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted
by this Indenture. All cancelled Securities and coupons held by the
Trustee shall be destroyed by it unless by a Company Order the Company
directs their return to it.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series
shall be computed on the basis of a 360-day year of twelve 30-day
months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
Upon the direction of the Company by a Company Order, this
Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities
herein expressly provided for), and the Trustee, on demand of and at
the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and
delivered and all coupons appertaining thereto (other than
<PAGE>
(i) coupons appertaining to Bearer Securities surrendered
for exchange for Registered Securities and maturing after
such exchange, whose surrender is not required or has been
waived as provided in Section 305, (ii) Securities and
coupons which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 306, (iii)
coupons appertaining to Securities called for redemption and
maturing after the relevant Redemption Date, whose surrender
has been waived as provided in Section 1107, and (iv)
Securities and coupons for whose payment money has
theretofore been deposited in trust or segregated and held
in trust by the Company and thereafter repaid to the Company
or discharged from such trust, as provided in Section 1003)
have been delivered to the Trustee for cancellation; or
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<PAGE>
(B) all such Securities and, in the case of (i) or
(ii) below, any such coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Company,
are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and
at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose, lawful money of the United States, U.S.
Government Obligations which through the payment of interest and
principal in respect thereof in accordance with their terms will
provide not later than the opening of business on the due dates of any
payment of principal (and premium, if any) and interest, or a
combination thereof, in an amount sufficient to pay and discharge the
entire indebtedness on such Securities and coupons not theretofore
delivered to the Trustee for cancellation, for principal (and premium,
if any) and interest, to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied
with
In the event there are Securities of two or more series
hereunder, the Trustee shall be required to execute an instrument
acknowledging satisfaction and discharge of this Indenture only if
requested to do so with respect to Securities of all series as to
which it is Trustee and if the other conditions thereto are met. In
the event there are two or more Trustees hereunder, then the
effectiveness of any such instrument shall be conditioned upon receipt
of such instruments from all Trustees hereunder.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 607 and,
if money shall have been deposited with the Trustee pursuant to
subclause (B) of Clause (1) of this Section, the obligations of the
Trustee under Section 402 and the last paragraph of Section 1003 shall
survive.
<PAGE>
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003,
all money deposited with the Trustee pursuant to Section 401 shall be
held in trust and applied by it, in accordance with the provisions of
the Securities, the coupons and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as
its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any) and any
interest for whose payment such money has been deposited with the
Trustee; but such money need not be segregated from other funds except
to the extent required by law.
SECTION 403. Satisfaction, Discharge and Defeasance of Securities of
Any Series.
The Company shall be deemed to have paid and discharged the
entire indebtedness on all the Outstanding Securities of any series
and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of such
indebtedness, when
(1) either
(A) with respect to all Outstanding Securities of such
series,
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(i) the Company has deposited or caused to be deposited
with the Trustee, as trust funds in trust for such purpose,
an amount sufficient to pay and discharge the entire
indebtedness on all Outstanding Securities of such series
for principal (and premium, if any) and interest to the
Stated Maturity or any Redemption Date as contemplated by
the penultimate paragraph of this Section 403, as the case
may be; or
(ii) with respect to any series of Securities which are
denominated in Dollars, the Company has deposited or caused
to be deposited with the Trustee, as obligations in trust
for such purpose, such amount of direct obligations of, or
obligations the timely payment of the principal of and
interest on which are fully guaranteed by, the United States
of America and which are not callable at the option of the
issuer thereof as will, together with the income to accrue
thereon without consideration of any reinvestment thereof,
be sufficient to pay and discharge the entire indebtedness
on all Outstanding Securities of such series for principal
(and premium, if any) and interest to the Stated Maturity or
any Redemption Date as contemplated by the penultimate
paragraph of this Section 403; or
(B) the Company has properly fulfilled such other
means of satisfaction and discharge as is specified, as
contemplated by Section 301, to be applicable to the
Securities of such series; and
(2) the Company has paid or caused to be paid all other sums
payable hereunder with respect to the Outstanding Securities of
such series; and
(3) the Company has delivered to the Trustee a certificate
signed by a nationally recognized firm of independent public
accountants (who may be the independent public accountants
regularly retained by the Company or who may be other independent
public accountants) certifying as to the sufficiency of the
amounts deposited pursuant to Subsections (A) (i) or (ii) of this
Section for payment of the principal (and premium, if any) and
interest on the dates such payments are due, an Officers'
Certificate and an Opinion of Counsel, each such Certificate and
Opinion stating that all conditions precedent herein provided for
relating to the satisfaction and discharge of the entire
indebtedness on all Outstanding Securities of any such series
have been complied with; and
(4) the Company has delivered to the Trustee
(A) an opinion of independent counsel that the holders
of the Securities of such series will have no federal income
tax consequences as a result of such deposit and
termination; and
<PAGE>
(B) if the Securities of such series are then listed
on the New York Stock Exchange, an opinion of counsel that
the Securities of such series will not be delisted as a
result of the exercise of this option.
Any deposits with the Trustee referred to in Section 403(1) (A)
above shall be irrevocable and shall be made under the terms of an
escrow trust agreement in form and substance satisfactory to the
Trustee. If any Outstanding Securities of such series are to be
redeemed prior to their Stated Maturity, whether pursuant to any
optional redemption provisions or in accordance with any mandatory
sinking fund requirement, the Company shall make such arrangements as
are satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of the Company.
Upon the satisfaction of the conditions set forth in this Section
403 with respect to all the Outstanding Securities of any series, the
terms and conditions of such series, including the terms and
conditions with respect thereto set forth in this Indenture, other
than the provisions of Sections 305, 306, and 1002 and other than the
right of Holders of Securities of such series to receive, from the
trust fund described in this Section, payment of the principal (and
premium, if any) of, the interest on such Securities when such
payments are due, and the rights, powers, duties and immunities of the
Trustee hereunder, shall no longer be binding upon, or applicable to,
the Company; provided that the Company
23
<PAGE>
shall not be discharged from any payment obligations in respect of
Securities of such series which are deemed not be Outstanding under
clause (iii) of the definition thereof if such obligations continue to
be valid obligations of the Company under applicable law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default," wherever used herein with respect to
Securities of any series, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be
voluntary or be effected by operation of law pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) A default in the payment of any interest upon any
Security of that series when such interest becomes due and
payable, and continuance of such default for a period of 30 days;
or
(2) default in the payment of the principal of (and
premium, if any, on) any Security of that series when it becomes
due and payable at Maturity; or
(3) default in the deposit of any sinking fund payment,
when and as due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant
or warranty of the Company in this Indenture (other than a
covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with or
which has been expressly included in this Indenture solely for
the benefit of series of Securities other than that series), and
continuance of such default or breach for a period of 90 days
after there has been given, by registered or certified mail, to
the Company by the Trustee or to the Company and the Trustee by
the Holders of at least 25 percent 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" hereinunder; or
(5) a default in the payment of principal of or interest on
any other obligation for borrowed money of the Company (including
a default under any other series of Securities and including
default by the Company on any guaranty of an obligation for
borrowed money of a Restricted Subsidiary) beyond any period of
grace with respect thereto if (i) the aggregate principal amount
of any such obligation is in excess of $10,000,000 (or in the
case of any such obligation in which the amount payable upon
acceleration is less than the amount payable at stated maturity,
the amount then payable upon acceleration is in excess of
$10,000,000, (ii) the default in such payment is not being
<PAGE>
contested by the Company in good faith and by appropriate
proceedings, and (iii) the default in such payment has not been
cured or waived prior to the notice in writing to the Company
given pursuant to Section 502; or
(6) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or (B) a decree or order adjudging the Company a
bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of
or in respect of the Company under any applicable Federal or
State law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the
Company or of 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 60 consecutive
days; or
(7) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other
24
<PAGE>
case or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in respect
of the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under
any applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking possession
by a custodian, receiver, liquidator, assignee, trustee, sequestrator
or similar official of the Company or of any substantial part of its
property, or the making of an assignment for the benefit of creditors,
or the admission by it in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action by the
Company in furtherance of any such action; or
(8) any other Event of Default provided with respect to
Securities of that series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default specified in Section 501(6) or (7) occurs,
all unpaid principal of, premium, if any, and accrued interest on the
Securities of any series at the time Outstanding shall ipso facto
become and shall be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder, and
if any other Event of Default with respect to Securities of any series
occurs and is continuing, then the Trustee or the Holders of not less
than 25 percent in principal amount of the Outstanding Securities of
that series may declare the principal of all the Securities of that
series, or such lesser amount as may be provided for in the Securities
of that series, to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by the Holders),
and upon any such declaration such principal or such lesser amount
shall become immediately due and payable.
At any time after such a declaration of acceleration with respect
to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee
as hereinafter in this Article provided, the Holders of a majority in
principal amount of the Outstanding Securities of that series, by
written notice to the Company and the Trustee, may rescind and annul
such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue installments of interest on all
Securities of that series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise
than by such declaration of acceleration and interest
<PAGE>
thereon at the rate or rates borne by or provided for in
such Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue installments of interest at
the rate or rates borne by or provided for in such
Securities, and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities
of that series which has become due solely by such declaration of
acceleration, have been cured or waived as provided in Section
513.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of
interest on any Security when such interest shall have become due
and payable and such default continues for a period of 30 days,
or
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<PAGE>
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at its Maturity,
the Company will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities and coupons, the whole
amount then due and payable on such Securities and coupons for
principal (and premium, if any) and interest, with interest upon the
overdue principal (and premium, if any) and, to the extent that
payment of such interest shall be legally enforceable, upon overdue
installments of interest, at the rate or rates borne by or provided
for in such Securities, and, in addition thereto, such further amount
as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express
trust, may institute a judicial proceeding for the collection of the
sums so due and unpaid, and may prosecute such proceeding to judgment
or final decree, and may enforce the same against the Company or any
other obligor upon such Securities and collect the moneys adjudged or
decreed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon such Securities,
wherever situated.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of
Securities of such series and any related coupons by such appropriate
judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid
of the exercise of any power granted herein, or to enforce any other
proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company or
any other obligor upon the Securities or the property of the Company
or of such other obligor or their creditors, the Trustee (irrespective
of whether the principal of the Securities shall then be due and
payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the
Company for the payment of overdue principal or interest) shall be
entitled and empowered, by intervention in such proceeding or
otherwise,
(i) to file and prove a claim for the whole amount or such
lesser amount as may be provided for in the Securities of that
series, of principal (and premium, if any) and interest owing and
unpaid in respect of the Securities and to file such other papers
or documents as may be necessary or advisable in order to have
<PAGE>
the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents or counsel) and of the Holders allowed in
such judicial proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the
same;
and any receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby
authorized by each Holder of Securities and coupons to make such
payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders of
Securities and coupons, to pay to the Trustee any amount due to it for
the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel and any other amounts due the
Trustee under Section 607.
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Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder
of a Security or coupon any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or coupons or the
rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder of a Security or coupon in any such
proceeding.
SECTION 505. Trustee May Enforce Claims without Possession of
Securities or Coupons.
All rights of action and claims under this Indenture or any of
the Securities or coupons may be prosecuted and enforced by the
Trustee without the possession of any of the Securities or coupons or
the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery or judgment
shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel, be for the ratable benefit of the Holders of the Securities
and coupons in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall
be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of
principal (and premium, if any) or interest, upon presentation of the
Securities or coupons, or both, as the case may be, and the notation
thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amount due the Trustee under
Section 607;
SECOND: To the payment of the amounts then due and unpaid upon
the Securities and coupons for principal (and premium, if any) and
interest payable in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of
any kind, according to the aggregate amounts due and payable on such
Securities and coupons for principal (and premium, if any) and
interest, respectively;
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series or any related coupons
shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless
<PAGE>
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25 percent in aggregate
principal amount of the Outstanding Securities of that series
shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities,
to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute
any such proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the
Holders of a majority in aggregate principal amount of the
Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders
shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or
27
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prejudice the rights of any other such Holders or Holders of any other
series, or to obtain or to seek to obtain priority or preference over
any other Holders or to enforce any right under this Indenture, except
in the manner herein provided and for the equal and ratable benefit of
all such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder
of any Security or coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if
any) and (subject to Sections 305 and 307) interest on such Security
or payment of such coupon on the respective Stated Maturity or
Maturities expressed in such Security or coupon (or, in the case of
redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such right shall not be impaired
without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or coupon has
instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for
any reason, or has been determined adversely to the Trustee or to such
Holder, then and in every such case the Company, the Trustee and the
Holders of Securities and coupons shall, subject to any determination
in such proceeding, be restored severally and respectively to their
former positions hereunder, and thereafter all rights and remedies of
the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons
in the last paragraph of Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders of
Securities or coupons is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Security or coupon to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every
right and remedy given by this Article or by law to the Trustee or to
the Holders of Securities or coupons may be exercised from time to
<PAGE>
time, and as often as may be deemed expedient, by the Trustee or by
the Holders of Securities or coupons, as the case may be.
SECTION 512. Control by Holders of Securities.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available
to the Trustee or exercising any trust or power conferred on the
Trustee with respect to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction, and
(3) such direction is not unduly prejudicial to the rights
of other Holders of Securities of such series.
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SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of
the Outstanding Securities of any series may on behalf of the Holders
of all the Securities of such series and any related coupons waive any
past default hereunder with respect to such series and its
consequences, except a default
(1) in the payment of the principal of (and premium, if any)
or interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of
the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other default or impair any right consequent
thereon.
SECTION 514. Undertaking for Costs.
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, other
than the Trustee, 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, against any party litigant in
such suit, including the Trustee, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but
the provisions of this Section shall not apply to any suit instituted
by the Company, the Trustee or by any Holder, or group of Holders,
holding in the aggregate more than 10 percent in principal amount of
the Outstanding Securities of any series, or to any suit instituted by
any Holder of any Security or coupon for the enforcement of the
payment of the principal of (and premium, if any) or interest on any
Security or the payment of any coupon on or after the respective
Stated Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date) or interest on any
overdue principal of any Security.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties, and only
such duties, as are specifically set forth in this Indenture, and
<PAGE>
no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such
certificates or opinions which by any provisions hereof are
specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his own affairs.
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<PAGE>
(c) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it
shall be proved that the Trustee was negligent in ascertaining
the pertinent facts;
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Securities of any series,
relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this
Indenture with respect to the Securities of such series, provided
such direction shall not be in conflict with any rule of law or
with this Indenture; and
(4) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or
in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not
reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject
to the provisions of this Section.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by
mail to all Holders of Securities of such series entitled to receive
reports pursuant to Section 703(c), notice of such default hereunder
known to the Trustee, unless such default shall have been cured or
waived; provided, however, that, except in the case of a default in
the payment of the principal of (and premium, if any) or interest on
any Security of such series or in the payment of any sinking fund
installment with respect to Securities of such series, the Trustee
shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interests of
the Holders of Securities and coupons of such series; and provided
further, that in the case of any default of the character specified in
Section 501(4) with respect to Securities of such series, no such
<PAGE>
notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time
or both would become, an Event of Default, with respect to Securities
of such series.
SECTION 603. Certain Rights of Trustee.
Except as otherwise provided in Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, or other paper
or document reasonably believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company
Order (other than delivery of any Security to the Trustee for
authentication and delivery pursuant to Section 303 which shall
be sufficiently evidenced as provided therein) and any resolution
of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
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<PAGE>
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders of Securities of any
series or any related coupons pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture or other paper or
document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine
the books, records and premises of the Company, personally or by
agent or attorney; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by
or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any coupons shall be
taken as the statements of the Company, and the Trustee or any
Authenticating Agent assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency
of this Indenture or of the Securities or coupons. The Trustee or any
Authenticating Agent shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its
<PAGE>
individual or any other capacity, may become the owner or pledgee of
Securities and coupons and, subject to Sections 608 and 613, may
otherwise deal with the Company with the same rights it would have if
it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any money received
by it hereunder except as otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the
Trustee in
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<PAGE>
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or
advance as may be attributable to its negligence or bad faith;
and
(3) to indemnify the Trustee and its agents for, and to hold
them harmless against, any loss, liability or expense incurred
without negligence or bad faith on their part, arising out of or
in connection with the acceptance or administration of the trust
or trusts hereunder, including the costs and expenses of
defending themselves against any claim or liability in connection
with the exercise or performance of any of their powers or duties
hereunder; provided, that:
(i) with respect to any such claim, the Trustee shall
have given the Company written notice thereof promptly after
the Trustee shall have knowledge thereof, but failure by the
Trustee to give such notice shall not affect the Trustee's
right or the Company's obligation to indemnify hereunder;
(ii) while maintaining absolute control over its own
defense, the Trustee shall cooperate and consult with the
Company in preparing such defense; and
(iii) notwithstanding anything to the contrary in this
Section 607(3), the Company shall not be liable for
settlement of any such claim by the Trustee entered into
without the prior consent of the Company, which consent
shall not be unreasonably withheld.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the
Securities of any series upon all property and funds held or collected
by the Trustee as such, except funds held in trust for the payment of
principal of (or premium, if any) or interest on Securities.
SECTION 608. Disqualifications; Conflicting Interests.
(a) If the Trustee has or shall acquire any conflicting interest,
as defined in this Section, with respect to the Securities of any
series, it shall, within 90 days after ascertaining that it has such
conflicting interest, either eliminate such conflicting interest or
resign with respect to the Securities of that series, in the manner
and with the effect hereinafter specified in this Article.
(b) In the event that the Trustee shall fail to comply with the
provisions of Subsection (a) of this Section with respect to the
Securities of any series, the Trustee shall, within ten days after the
expiration of such 90-day period, transmit, in the manner and to the
extent provided in Section 703(c) to all Holders of Securities of that
series notice of such failure.
<PAGE>
(c) For the purposes of this Section, the Trustee shall be deemed
to have a conflicting interest with respect to the Securities of any
series, if
(1) the Trustee is trustee under this Indenture with respect
to the Outstanding Securities of any series other than that
series or is trustee under another indenture under which any
other securities, or certificates of interest or participation in
any other securities, of the Company are outstanding, unless such
other indenture is a collateral trust indenture under which the
only collateral consists of Securities issued under this
Indenture, provided that there shall be excluded from the
operation of this paragraph (A) this Indenture with respect to
the Securities of any series other than that series, and (B) any
indenture or indentures (including the indenture dated March 1,
1987, relating to the Company's 9 1/8 percent Sinking Fund
Debentures due March 1, 2017, and 8 3/8 percent Notes due March
1, 1997, and the indenture dated of even date herewith relating
to the Company's guarantees of debt securities to be issued by
Arvin Overseas Finance B.V.) under which other securities, or
certificates of interest or participation in other securities, of
the Company are outstanding, if
(i) this Indenture and such other indenture or
indentures are wholly unsecured and such other indenture or
indentures are hereafter qualified under the Trust Indenture
Act, unless
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<PAGE>
the Commission shall have found and declared by order
pursuant to Section 305(b) or Section 307(c) of the Trust
Indenture Act that differences exist between the provisions
of this Indenture with respect to Securities of that series
and one or more other series or the provisions of such other
indenture or indentures which are so likely to involve a
material conflict of interest as to make it necessary in the
public interest or for the protection of investors to
disqualify the Trustee from acting as such under this
Indenture with respect to the Securities of that series and
such other series or under such other indenture or
indentures, or
(ii) the Company shall have sustained the burden of
proving, on application to the Commission and after
opportunity for hearing thereon, that trusteeship under this
Indenture with respect to the Securities of that series and
such other series or such other indenture or indentures is
not so likely to involve a material conflict of interest as
to make it necessary in the public interest or for the
protection of investors to disqualify the Trustee from
acting as such under this Indenture with respect to the
Securities of that series and such other series under such
other indenture or indentures;
(2) the Trustee or any of its directors or executive
officers is an obligor upon the Securities or an underwriter for
the Company;
(3) the Trustee directly or indirectly controls or is
directly or indirectly controlled by or is under direct or
indirect common control with the Company or an underwriter for
the Company;
(4) the Trustee or any of its directors or executive
officers is a director, officer, partner, employee, appointee or
representative of the Company, or of an underwriter (other than
the Trustee itself) for the Company who is currently engaged in
the business of underwriting, except that (i) one individual may
be a director or an executive officer, or both, of the Trustee
and a director or an executive officer, or both, of the Company
but may not be at the same time an executive officer of both the
Trustee and the Company; (ii) if and so long as the number of
directors of the Trustee in office is more than nine, one
additional individual may be a director or an executive officer,
or both, of the Trustee and a director of the Company; and (iii)
the Trustee may be designated by the Company or by any
underwriter for the Company to act in the capacity of transfer
agent, registrar, custodian, paying agent, fiscal agent, escrow
agent, or depositary, or in any other similar capacity, or,
subject to the provisions of paragraph (1) of this Subsection, to
act as trustee, whether under an indenture or otherwise;
<PAGE>
(5) 10 percent or more of the voting securities of the
Trustee is beneficially owned either by the Company or by any
director, partner, or executive officer thereof, or 20 percent or
more of such voting securities is beneficially owned,
collectively, by any two or more of such persons; or 10 percent
or more of the voting securities of the Trustee is beneficially
owned either by an underwriter for the Company or by any
director, partner or executive officer thereof, or is
beneficially owned, collectively, by any two or more such
persons;
(6) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this Subsection defined), (i) 5 percent or more of
the voting securities, or 10 percent or more of any other class
of security, of the Company not including the Securities issued
under this Indenture and securities issued under any other
indenture under which the Trustee is also trustee, or (ii) 10
percent or more of any class of security of an underwriter for
the Company;
(7) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this Subsection defined), 5 percent or more of the
voting securities of any person who, to the knowledge of the
Trustee, owns 10 percent or more of the voting securities of, or
controls directly or indirectly or is under direct or indirect
common control with, the Company;
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<PAGE>
(8) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this Subsection defined), 10 percent or more of
any class of security of any person who, to the knowledge of the
Trustee, owns 50 percent or more of the voting securities of the
Company; or
(9) the Trustee owns, on May 15 in any calendar year, in the
capacity of executor, administrator, testamentary or inter vivos
trustee, guardian, committee or conservator, or in any other
similar capacity, an aggregate of 25 percent or more of the
voting securities, or of any class of security, of any person,
the beneficial ownership of a specified percentage of which would
have constituted a conflicting interest under paragraph (6), (7)
or (8) of this Subsection. As to any such securities of which
the Trustee acquired ownership through becoming executor,
administrator, or testamentary trustee of an estate which
included them, the provisions of the preceding sentence shall not
apply, for a period of two years from the date of such
acquisition, to the extent that such securities included in such
estate do not exceed 25 percent of such voting securities or 25
percent of any such class of security. Promptly after May 15 in
each calendar year, the Trustee shall make a check of its
holdings of such securities in any of the above-mentioned
capacities as of such May 15. If the Company fails to make
payment in full of the principal of (or premium, if any) or
interest on any of the Securities when and as the same becomes
due and payable, and such failure continues for 30 days
thereafter, the Trustee shall make a prompt check of its holdings
of such securities in any of the above-mentioned capacities as of
the date of the expiration of such 30-day period, and after such
date, notwithstanding the foregoing provisions of this paragraph,
all such securities so held by the Trustee, with sole or joint
control over such securities vested in it, shall, but only so
long as such failure shall continue, be considered as though
beneficially owned by the Trustee for the purposes of paragraphs
(6), (7) and (8) of this Subsection.
The specification of percentages in paragraphs (5) to (9),
inclusive, of this Subsection shall not be construed as indicating
that the ownership of such percentages of the securities of a person
is or is not necessary or sufficient to constitute direct or indirect
control for the purposes of paragraph (3) or (7) of this Subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of this
Subsection only, (i) the terms "security" and "securities" shall
include only such securities as are generally known as corporate
securities, but shall not include any note or other evidence of
indebtedness issued to evidence an obligation to repay moneys lent to
a person by one or more banks, trust companies or banking firms, or
any certificate of interest or participation in any such note or
evidence of indebtedness; (ii) an obligation shall be deemed to be "in
default" when a default in payment of principal shall have continued
for 30 days or more and shall not have been cured; and (iii) the
<PAGE>
Trustee shall not be deemed to be the owner or holder of (A) any
security which it holds as collateral security, as trustee or
otherwise, for an obligation which is not in default as defined in
clause (ii) above, or (B) any security which it holds as collateral
security under this Indenture, irrespective of any default hereunder,
or (C) any security which it holds as agent for collection, or as
custodian, escrow agent, or depositary, or in any similar
representative capacity.
(d) For the purposes of this Section:
(1) The term "underwriter," when used with reference to the
Company, means every person who, within three years prior to the
time as of which the determination is made, has purchased from
the Company with a view to, or has offered or sold for the
Company in connection with, the distribution of any security of
the Company outstanding at such time, or has participated or has
had a direct or indirect participation in any such undertaking,
or has participated or has had a participation in the direct or
indirect underwriting of any such undertaking, but such term
shall not include a person whose interest was limited to a
commission from an underwriter or dealer not in excess of the
usual and customary distributors' or sellers' commission.
(2) The term "director" means any director of a corporation,
or any individual performing similar functions with respect to
any organization, whether incorporated or unincorporated.
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<PAGE>
(3) The term "person" means an individual, a corporation, a
partnership, an association, a joint-stock company, a trust, an
unincorporated organization, or a government or political
subdivision thereof. As used in this paragraph, the term "trust"
shall include only a trust where the interest or interests of the
beneficiary or beneficiaries are evidenced by a security.
(4) The term "voting security" means any security presently
entitling the owner or holder thereof to vote in the direction or
management of the affairs of a person, or any security issued
under or pursuant to any trust, agreement or arrangement whereby
a trustee or trustees or agent or agents for the owner or holder
of such security are presently entitled to vote in the direction
or management of the affairs of a person.
(5) The term "Company" means any obligor upon the
Securities.
(6) The term "executive officer" means the president, every
vice president, every trust officer, the cashier, the secretary,
and the treasurer of a corporation, and any individual
customarily performing similar functions with respect to any
organization whether incorporated or unincorporated, but shall
not include the chairman of the board of directors.
(e) The percentages of voting securities and other securities
specified in this Section shall be calculated in accordance with the
following provisions:
(1) A specified percentage of the voting securities of the
Trustee, the Company or any other person referred to in this
Section (each of whom is referred to as a "person" in this
paragraph) means such amount of the outstanding voting securities
of such person as entitles the holder or holders thereof to cast
such specified percentage of the aggregate votes which the
holders of all the outstanding voting securities of such person
are entitled to cast in the direction or management of the
affairs of such person.
(2) A specified percentage of a class of securities of a
person means such percentage of the aggregate amount of
securities of the class outstanding.
(3) The term "amount," when used in regard to securities,
means the principal amount if relating to evidences of
indebtedness, the number of shares if relating to capital shares,
and the number of units if relating to any other kind of
security.
(4) The term "outstanding" means issued and not held by or
for the account of the issuer. The following securities shall
not be deemed outstanding within the meaning of this definition:
<PAGE>
(i) securities of an issuer held in a sinking fund
relating to securities of the issuer of the same class;
(ii) securities of an issuer held in a sinking fund
relating to another class of securities of the issuer, if
the obligation evidenced by such other class of securities
is not in default as to principal or interest or otherwise;
(iii) securities pledged by the issuer thereof as
security for an obligation of the issuer not in default as
to principal or interest or otherwise; and
(iv) securities held in escrow if placed in escrow by
the issuer thereof;
provided, however, that any voting securities of an issuer shall
be deemed outstanding if any person other than the issuer is
entitled to exercise the voting rights thereof.
(5) A security shall be deemed to be of the same class as
another security if both securities confer upon the holder or
holders thereof substantially the same rights and privileges;
provided, however, that, in the case of secured evidences of
indebtedness, all of which are issued under a single indenture,
differences in the interest rates or maturity dates of various
series thereof shall not be deemed sufficient to constitute such
series as different classes; and provided, further, that,
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in the case of unsecured evidences of indebtedness, differences
in the interest rates or maturity dates thereof shall not be
deemed sufficient to constitute them securities of different
classes, whether or not they are issued under a single indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United
States of America, any State or the District of Columbia, authorized
under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000 and subject to supervision
or examination by Federal or State authority. If such corporation
publishes reports of condition at least annually, pursuant to law or
to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in
this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee under
Section 611.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to
the Company. If the instrument of acceptance by a successor Trustee
required by Section 611 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fall to comply with Section 608(a)
after written request therefor by the Company or by any Holder of
a Security who has been a bona fide Holder of a Security for at
least six months, or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the
Company or by any such Holder of a Security, or
<PAGE>
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or
of its property shall be appointed, or any public officer shall
take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by a Board Resolution may
remove the Trustee with respect to all Securities, or (ii) subject to
Section 514, any Holder of a Security who has been a bona fide Holder
of a Security of any series for at least six months may, on behalf of
himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with respect to
all Securities of such series and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Securities of one or more series, the
Company, by a Board Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of that or those
series (it being understood that any such successor Trustee may be
appointed with respect to the Securities of one or more or all of such
series and that at any time there
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<PAGE>
shall be only one Trustee with respect to the Securities of any
particular series) and shall comply with the applicable requirements
of Section 611. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor
Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of
the Outstanding Securities of such series delivered to the Company and
the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with
the applicable requirements of Section 611, become the successor
Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders of
Securities and accepted appointment in the manner required by Section
611, any Holder of a Security who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of
himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series
and each appointment of a successor Trustee with respect to the
Securities of any series by mailing written notice of such event by
first-class mail, postage prepaid, to the Holders of Registered
Securities, if any, of such series as their names and addresses appear
in the Security Register and, if Securities of such series are issued
as Bearer Securities, by publishing notice of such event once in an
Authorized Newspaper in each Place of Payment located outside the
United States. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address
of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee appointed
shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall
become effective, and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring
to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series,
the Company, the retiring Trustee and each successor Trustee with
<PAGE>
respect to the Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each successor
Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm
to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring
with respect to all Securities, shall contain such provisions as shall
be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee is
not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, it being understood
that nothing herein or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust, that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such
Trustee and that no Trustee shall be responsible for any notice given
to, or received by, or any act or failure to act on the part of any
other Trustee hereunder, and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein, such
retiring Trustee shall with respect to the Securities of that
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<PAGE>
or those series to which the appointment of such successor Trustee
relates have no further responsibility for the exercise of rights and
powers or for the performance of the duties and obligations vested in
the Trustee under this Indenture other than as hereinafter expressly
set forth, and each such successor Trustee without any further act,
deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any
successor Trustee, such retiring Trustee shall duly assign, transfer
and deliver to such successor Trustee, to the extent contemplated by
such supplemental indenture, the property and money held by such
retiring Trustee hereunder with respect to the Securities of that or
those series to which the appointment of such successor Trustee
relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights,
powers and trusts referred to in paragraph (a) or (b) of this Section,
as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified
and eligible under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further
act on the part of any of the parties hereto. In case any Securities
shall have been authenticated, but not delivered, by the Trustee then
in office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and deliver
the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
(a) Subject to Subsection (b) of this Section, if the Trustee
shall be or shall become a creditor, directly or indirectly, secured
or unsecured, of the Company within four months prior to a default, as
defined in Subsection (c) of this Section, or subsequent to such a
default, then, unless and until such default shall be cured, the
Trustee shall set apart and hold in a special account for the benefit
of the Trustee individually, the Holders of the Securities and coupons
<PAGE>
and the holders of other indenture securities (as defined in
Subsection (c) of this Section):
(1) an amount equal to any and all reductions in the amount
due and owing upon any claim as such creditor in respect of
principal or interest, effected after the beginning of such four-
month period and valid as against the Company and its other
creditors, except any such reduction resulting from the receipt
or disposition of any property described in paragraph (2) of this
Subsection, or from the exercise of any right of set-off which
the Trustee could have exercised if a petition in bankruptcy had
been filed by or against the Company upon the date of such
default; and
(2) all property received by the Trustee in respect of any
claim as such creditor, either as security therefor, or in
satisfaction or composition thereof, or otherwise, after the
beginning of such four-month period, or an amount equal to the
proceeds of any such property, if disposed of, subject, however,
to the rights, if any, of the Company and its other creditors in
such property or such proceeds.
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<PAGE>
Nothing herein contained, however, shall affect the right of the
Trustee:
(A) to retain for its own account (i) payments made on
account of any such claim by any Person (other than the
Company) who is liable thereon, and (ii) the proceeds of the
bona fide sale of any such claim by the Trustee to a third
Person, and (iii) distributions made in cash, securities or
other property in respect of claims filed against the
Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Code or
applicable State law;
(B) to realize, for its own account, upon any property
held by it as security for any such claim, if such property
was so held prior to the beginning of such four-month
period;
(C) to realize, for its own account, but only to the
extent of the claim hereinafter mentioned, upon any property
held by it as security for any such claim, if such claim was
created after the beginning of such four-month period and
such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee
shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause
to believe that a default, as defined in Subsection (c) of
this Section, would occur within four months; or
(D) to receive payment on any claim referred to in
paragraph (B) or (C), against the release of any property
held as security for such claim as provided in paragraph (B)
or (C), as the case may be, to the extent of the fair value
of such property.
For the purposes of paragraphs (B), (C) and (D), property
substituted after the beginning of such four-month period for property
held as security at the time of such substitution shall, to the extent
of the fair value of the property released, have the same status as
the property released, and, to the extent that any claim referred to
in any of such paragraphs is created in renewal of or in substitution
for or for the purpose of repaying or refunding any pre-existing claim
of the Trustee as such creditor, such claim shall have the same status
as such pre-existing claim.
If the Trustee shall be required to account, the funds and
property held in such special account and the proceeds thereof shall
be apportioned between the Trustee, the Holders of Securities and the
holders of other indenture securities in such manner that the Trustee,
the Holders of Securities and the holders of other indenture
securities realize, as a result of payments from such special account
and payments of dividends on claims filed against the Company in
bankruptcy or receivership or in proceedings for reorganization
pursuant to the Federal Bankruptcy Code or applicable State law, the
<PAGE>
same percentage of their respective claims, figured before crediting
to the claim of the Trustee anything on account of the receipt by it
from the Company of the funds and property in such special account and
before crediting to the respective claims of the Trustee and the
Holders of Securities and the holders of other indenture securities
dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the
Federal Bankruptcy Code or applicable State law, but after crediting
thereon receipts on account of the indebtedness represented by their
respective claims from all sources other than from such dividends and
from funds and property so held in such special account. As used in
this paragraph, with respect to any claim, the term "dividends" shall
include any distribution with respect to such claim, in bankruptcy or
receivership or proceedings for reorganization pursuant to the Federal
Bankruptcy Code or applicable State law, whether such distribution is
made in cash, securities or other property, but shall not include any
such distribution with respect to the secured portion, if any, of such
claim. The court in which such bankruptcy, receivership or
proceedings for reorganization is pending shall have jurisdiction (i)
to apportion among the Trustee and the Holders of Securities and the
holders of other indenture securities, in accordance with the
provisions of this paragraph, the funds and property held in such
special account and proceeds thereof, or (ii) in lieu of such
apportionment, in whole or in part, to give to the provisions of this
paragraph due consideration in determining the fairness of the
distributions to be made to the Trustee and the Holders of Securities
and the holders of other indenture securities with respect to their
respective
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<PAGE>
claims, in which event it shall not be necessary to liquidate or to
appraise the value of any securities or other property held in such
special account or as security for any such claim, or to make a
specific allocation of such distributions as between the secured and
unsecured portions of such claims, or otherwise to apply the
provisions of this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the
beginning of such four-month period shall be subject to the provisions
of this Subsection as though such resignation or removal had not
occurred. If any Trustee has resigned or been removed prior to the
beginning of such four-month period, it shall be subject to the
provisions of this Subsection if and only if the following conditions
exist:
(i) the receipt of property or reduction of claim, which
would have given rise to the obligation to account, if such
Trustee had continued as Trustee, occurred after the beginning of
such four-month period; and
(ii) such receipt of property or reduction of claim occurred
within four months after such resignation or removal.
(b) There shall be excluded from the operation of Subsection (a)
of this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under
any indenture, or any security or securities having a maturity of
one year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy
court of competent jurisdiction, or by this Indenture, for the
purpose of preserving any property which shall at any time be
subject to the lien of this Indenture or of discharging tax liens
or other prior liens or encumbrances thereon, if notice of such
advances and of the circumstances surrounding the making thereof
is given to the Holders of Securities at the time and in the
manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in
the capacity of trustee under an indenture, transfer agent,
registrar, custodian, paying agent, fiscal agent or depositary,
or other similar capacity;
(4) an indebtedness created as a result of services rendered
or premises rented; or an indebtedness created as a result of
goods or securities sold in a cash transaction, as defined in
Subsection (c) of this Section;
(5) the ownership of stock or of other securities of a
corporation which is organized under the provisions of Section
25(a) of the Federal Reserve Act, as amended, and which is
directly or indirectly a creditor of the Company; or
<PAGE>
(6) the acquisition, ownership, acceptance or negotiation of
any drafts, bills of exchange, acceptances or obligations which
fall within the classification of self-liquidating paper as
defined in Subsection (c) of this Section.
(c) For the purpose of this Section only:
(1) the term "default" means any failure to make payment in
full of the principal of or interest on any of the Securities or
upon the other indenture securities when and as such principal or
interest becomes due and payable;
(2) the term "other indenture securities" means securities
upon which the Company is an obligor outstanding under any other
indenture (i) under which indenture and as to which securities
the Trustee is also trustee, (ii) which contains provisions
substantially similar to the provisions of this Section, and
(iii) under which a default exists at the time of the
apportionment of the funds and property held in such special
account;
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<PAGE>
(3) the term "cash transaction" means any transaction in
which full payment for goods or securities sold is made within
seven days after delivery of the goods or securities in currency
or in checks or other orders drawn upon banks or bankers and
payable upon demand;
(4) the term "self-liquidating paper" means any draft, bill
of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Company for the purpose of
financing the purchase, processing, manufacture, shipment,
storage or sale of goods, wares or merchandise and which is
secured by documents evidencing title to, possession of, or lien
upon, the goods, wares or merchandise or the receivables or
proceeds arising from the sale of the goods, wares or merchandise
previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation;
(5) the term "Company" means any obligor upon the
Securities; and
(6) the term "Federal Bankruptcy Code" means the Bankruptcy
Act or Title 11 of the United States Code.
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with
respect to one or more series of Securities which shall be authorized
to act on behalf of the Trustee to authenticate Securities of such
series issued upon original issue or exchange, registration of
transfer or partial redemption thereof or pursuant to Section 306, and
Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in
this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference
shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an Authenticating
Agent. Each Authenticating Agent shall be acceptable to the Company
and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or
the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not
less than $10,000,000 and subject to supervision or examination by
Federal or State authority. If such Authenticating Agent publishes
reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be
<PAGE>
eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with
the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding
to the corporate agency or corporate trust business of an
Authenticating Agent, shall continue to be an Authenticating Agent,
provided such corporation shall be otherwise eligible under this
Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving
written notice thereof to such Authenticating Agent and to the
Company. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating Agent shall
cease to be eligible in accordance with the provisions of this
Section, the Trustee may appoint a successor Authenticating Agent
which shall be acceptable to the Company and shall (i) mail written
notice of such appointment by first-class mail, postage prepaid, to
all Holders of Registered Securities,
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<PAGE>
if any, of the series with respect to which such Authenticating Agent
will serve, as their names and addresses appear in the Security
Register, and (ii) if Securities of the series are issued as Bearer
Securities, publish notice of such appointment at least once in an
Authorized Newspaper in the place where such successor Authenticating
Agent has its principal office if such office is located outside the
United States. Any successor Authenticating Agent upon acceptance of
its appointment hereunder shall become vested with all the rights,
powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay each Authenticating Agent from time to
time reasonable compensation for its services under this Section. If
the Trustee makes such payments, it shall be entitled to be reimbursed
for such payments, subject to the provisions of Section 607.
The provisions of Sections 308, 604 and 605 shall be applicable
to each Authenticating Agent.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have
endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in the
following form:
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
[Trustee]
As Trustee
By__________________________________
As Authenticating Agent
By__________________________________
Authorized Signatory
If all of the Securities of any series may not be originally
issued at one time, and if the Trustee does not have an office capable
of authenticating Securities upon original issuance located in a Place
of Payment where the Company wishes to have Securities of such series
authenticated upon original issuance, the Trustee, if so requested in
writing (which writing need not comply with Section 102) by the
Company, shall appoint in accordance with this Section 614 an
Authenticating Agent having an office in a Place of Payment designated
by the Company with respect to such series of Securities.
The Trustee is hereby appointed as an Authenticating Agent.
<PAGE>
ARTICLE SEVEN
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not later than 15 days after the Regular
Record Date for interest for each series of Securities, a list,
in such form as the Trustee may reasonably require, of the names
and addresses of the Holders of Registered Securities of such
series as of such Regular Record Date, or if there is no Regular
Record Date for interest for such series of Securities, semi-
annually, upon such dates as are set forth in the Board
Resolution or indenture supplemental hereto authorizing such
series, and
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<PAGE>
(b) at such other times the Trustee may request in writing,
within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more
than 15 days prior to the time such list is furnished,
provided, however, that, so long as the Trustee is the Security
Registrar, no such list shall be required to be furnished.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of
Securities (i) contained in the most recent list furnished to the
Trustee for each series as provided in Section 701, (ii) received by
the Trustee for each series in the capacity of Security Registrar if
the Trustee is then acting in such capacity and (iii) filed with it
within the two preceding years pursuant to Section 703(c)(2). The
Trustee may destroy any list furnished to it as provided in Section
701 upon receipt of a new list so furnished, and destroy not earlier
than two years after filing, any information filed with it pursuant to
Section 703(c)(2).
(b) If three or more Holders of Securities of any series
(hereinafter referred to as "applicants") apply in writing to the
Trustee, and furnish to the Trustee reasonable proof that each such
applicant has owned a Security of such series for a period of at least
six months preceding the date of such application, and such
application states that the applicants desire to communicate with
other Holders of Securities of such series with respect to their
rights under this Indenture or under the Securities and is accompanied
by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five
business days after the receipt of such application, at its election,
either
(i) afford such applicants access to the information
preserved at the time by the Trustee in accordance with Section
702(a), or
(ii) inform such applicants as to the approximate number of
Holders of Securities whose names and addresses appear in the
information preserved at the time by the Trustee in accordance
with Section 702(a), and as to the approximate cost of mailing to
such Holders the form of proxy or other communication, if any,
specified in such application.
If the Trustee shall elect not to afford such applicants access
to such information, the Trustee shall, upon the written request of
such applicants, mail to each Holder of Securities of such series
whose name and address appears in the information preserved at the
time by the Trustee in accordance with Section 702(a), a copy of the
form of proxy or other communication which is specified in such
request, with reasonable promptness after a tender to the Trustee of
the material to be mailed and of payment, or provision for the
<PAGE>
payment, of the reasonable expenses of mailing, unless within five
days after such tender the Trustee shall mail to such applicants and
file with the Commission, together with a copy of the material to be
mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of the
Holders of Securities of such series or would be in violation of
applicable law. Such written statement shall specify the basis of
such opinion. If the Commission, after opportunity for a hearing upon
the objections specified in the written statement so filed, shall
enter an order refusing to sustain any of such objections, or if,
after the entry of an order sustaining one or more of such objections,
the Commission shall find, after notice and opportunity for hearing,
that all the objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail copies of such material to
all such Holders of Securities of such series with reasonable
promptness after the entry of such order and the renewal of such
tender.
(c) Every Holder of Securities or coupons, by receiving and
holding the same, agrees with the Company and the Trustee that neither
the Company nor the Trustee nor any Paying Agent nor any Security
Registrar shall be held accountable by reason of the disclosure of any
such information as to
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the names and addresses of the Holders of Securities in accordance
with Section 702(b), regardless of the source from which such
information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request
made under Section 702(b).
SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with
the year following the first issuance of Securities pursuant to
Section 301, the Trustee shall transmit by mail to all Holders of
Securities, as their names and addresses appear in the Security
Register, a brief report dated as of such May 15 with respect to:
(1) its eligibility under Section 609 and its
qualifications under Section 608, or in lieu thereof, if to the
best of its knowledge it has continued to be eligible and
qualified under said Sections, a written statement to such
effect;
(2) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the
making thereof) made by the Trustee (as such) which remain unpaid
on the date of such report, and for the reimbursement of which it
claims or may claim a lien or charge, prior to that of the
Securities, on any property or funds held or collected by it as
Trustee, except that the Trustee shall not be required (but may
elect) to report such advances if such advances so remaining
unpaid aggregate not more than 1/2 of 1 percent of the principal
amount of the Securities Outstanding on the date of such report;
(3) the amount, interest rate and maturity date of all
other indebtedness owing by the Company (or by any other obligor
on the Securities) to the Trustee in its individual capacity, on
the date of such report, with a brief description of any property
held as collateral security therefor, except an indebtedness
based upon a creditor relationship arising in any manner
described in Section 613(b)(2), (3), (4) or (6);
(4) the property and funds, if any, physically in the
possession of the Trustee as such on the date of such report;
(5) any additional issue of Securities which the Trustee
has not previously reported; and
(6) any action taken by the Trustee in the performance of
its duties hereunder which it has not previously reported and
which in its opinion materially affects the Securities, except
action in respect of a default, notice of which has been or is to
be withheld by the Trustee in accordance with Section 602.
(b) The Trustee shall transmit by mail to all Holders of
Securities, as provided in Subsection (c) of this Section, a brief
report with respect to the character and amount of any advances (and
<PAGE>
if the Trustee elects so to state, the circumstances surrounding the
making thereof) made by the Trustee (as such) since the date of the
last report transmitted pursuant to Subsection (a) of this Section (or
if no such report has yet been so transmitted, since the date of
execution of this instrument) for the reimbursement of which it claims
or may claim a lien or charge, prior to that of the Securities, on
property or funds collected by it as Trustee, and which it has not
previously reported pursuant to this Subsection, except that the
Trustee shall not be required (but may elect) to report such advances
if such advances remaining unpaid at any time aggregate 10 percent or
less of the principal amount of the Securities Outstanding at such
time, such report to be transmitted within 90 days after such time.
(c) Reports pursuant to this Section shall be transmitted by
mail:
(1) to all Holders of Registered Securities, as the names
and addresses of such Holders appear in the Security Register,
(2) to such Holders of Bearer Securities as have, within the
two years preceding such transmission, filed their names and
addresses with the Trustee for that purpose; and
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(3) except in the case of reports pursuant to Subsection (b)
of this Section, to each Holder of a Security whose name and
address is preserved at the time by the Trustee, as provided in
Section 702(a).
(d) A copy of each such report shall, at the time of such
transmission to Holders of Securities, be filed by the Trustee with
each stock exchange upon which the Securities are listed, with the
Commission and with the Company. The Company will notify the Trustee
when any Securities are listed on any stock exchange.
SECTION 704. Reports by the Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company
is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not
required to file information, documents or reports pursuant to
either of said Sections, then it shall file with the Trustee and
the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports
which may be required pursuant to Section 13 of the Securities
Exchange Act of 1934 in respect of a security listed and
registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports
with respect to compliance by the Company with the conditions and
covenants of this Indenture as may be required from time to time
by such rules and regulations; and
(3) transmit within 30 days after the filing thereof with
the Trustee, in the manner and to the extent provided in Section
703(c) with respect to reports pursuant to Section 703(a), such
summaries of any information, documents and reports required to
be filed by the Company pursuant to paragraphs (1) and (2) of
this Section as may be required by rules and regulations
prescribed from time to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Company May Consolidate, Etc., on Certain Terms.
<PAGE>
Subject to the provisions of Section 802, nothing contained in
this Indenture or in any of the Securities shall prevent any
consolidation or merger of the Company with or into any other
corporation or corporations (whether or not affiliated with the
Company), or successive consolidations or mergers in which the Company
or its successor or successors shall be a party or parties, or shall
prevent any sale or conveyance of all or substantially all of the
property of the Company to any other corporation (whether or not
affiliated with the Company) authorized to acquire and operate the
same; provided, however, and the Company hereby covenants and agrees,
that any such consolidation, merger, sale or conveyance shall be upon
the condition that (a) immediately after such consolidation, merger,
sale or conveyance the corporation (whether the Company or such other
corporation) formed by or surviving any such consolidation or merger,
or to which such sale or conveyance shall have been made, shall not be
in default in the performance or observance of any of the terms,
covenants and conditions of this Indenture to be kept or performed by
the Company; (b) the corporation (if other than the Company) formed by
or surviving any such consolidation or merger, or to which such sale
or conveyance shall have been made, shall be a corporation organized
under the laws of the United States of America or any state
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thereof; and (c) the due and punctual payment of the principal of and
premium, if any, and interest on all of 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 Company, shall be expressly assumed, by
supplemental indenture satisfactory in form to the Trustee, executed
and delivered to the Trustee by the corporation (if other than the
Company) formed by such consolidation, or into which the Company shall
have been merged, or by the corporation which shall have acquired such
property.
SECTION 802 Securities to be Secured in Certain Events.
If, upon any such consolidation or merger, or upon any such sale
or conveyance, or upon any acquisition by the Company by purchase or
otherwise of all or any part of the properties of any other
corporation, any Principal Facility owned by the Company or a
Restricted Subsidiary immediately prior thereto would thereupon become
subject to any Security Interest securing indebtedness not permitted
to be incurred by Section 1005, the Company, prior to such
consolidation, merger, sale, conveyance or acquisition, will by
indenture supplemental hereto satisfactory in form to the Trustee
secure the due and punctual payment of the principal of and premium,
if any, and interest on the Securities of each series then Outstanding
(equally and ratably with any other indebtedness of the Company then
entitled thereto, subject to applicable priorities of payment) by a
direct lien on such Principal Facility which would thereupon become
subject to any such Security Interest, prior in rank (subject to the
preceding parenthetical) to all liens other than any theretofore
existing thereon.
SECTION 803. Successor Corporation to be Substituted.
In case of any such consolidation, merger, sale or conveyance and
upon the assumption by the successor corporation, by supplemental
indenture, executed and delivered to the Trustee and satisfactory in
form to the Trustee, of the due and punctual payment of the principal
of and premium, if any, and interest on all of the Securities 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
Company, such successor corporation shall succeed to and be
substituted for the Company, with the same effect as if it had been
named herein as the party of the first part, and (except in the event
of a conveyance by way of lease) the predecessor corporation shall be
relieved of any further obligation under this Indenture and the
Securities. Such successor corporation thereupon may cause to be
signed, and may issue either in its own name or in the name of Arvin
Industries, Inc. any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Company and delivered to
the Trustee; and upon the order of such successor corporation instead
of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities which previously shall
have been signed and delivered by the officers of the Company to the
<PAGE>
Trustee for authentication, and any Securities which such successor
corporation thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All the Securities of each series so issued
shall in all respects have the same legal rank and benefit under this
Indenture as the Securities of such series theretofore or thereafter
issued in accordance with the terms of this Indenture as though all of
such Securities had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale or conveyance
such changes in phraseology and form (but not in substance) may be
made in the Securities thereafter to be issued as may be appropriate.
SECTION 804. Opinion of Counsel to be Given Trustee.
The Trustee, subject to Sections 601 and 603, may receive an
Opinion of Counsel as conclusive evidence that any such consolidation,
merger, sale or conveyance and any such assumption complies with the
provisions of this Article Eight.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders of Securities or coupons, the
Company, when authorized by a Board Resolution, and the Trustee, at
any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of
the following purposes:
(1) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the
covenants of the Company herein and in the Securities contained;
or
(2) to add to the covenants of the Company for the benefit
of the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being
included solely for the benefit of such series) or to surrender
any right or power herein conferred upon the Company; or
(3) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as
to principal, to change or eliminate any restrictions on the
payment of principal (or premium, if any) on Registered
Securities or of principal (or premium, if any) or any interest
on Bearer Securities, to permit Registered Securities to be
exchanged for Bearer Securities or to permit the issuance of
Securities in uncertified form, provided any such action shall
not adversely affect the interests of the Holders of Securities
of any series or any related coupons in any material respect; or
(4) to establish the form or terms of Securities of any
series as permitted by Sections 201 and 301; or
(5) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of
the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by
more than one Trustee, pursuant to the requirements of Section
611(b); or
(6) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any
other provision herein, or to make any other provisions with
respect to matters or questions arising under this Indenture
which shall not be inconsistent with the provisions of this
Indenture and which shall not adversely affect the interest of
the Holders of Securities of any series or any related coupons in
any material respect; or
<PAGE>
(7) to add to, delete from or revise the conditions,
limitations and restrictions on the authorized amount, terms or
purposes of issue, authentication and delivery of Securities, as
herein set forth; or
(8) to secure the Securities pursuant to Section 802 or
1005; or
(9) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the Trust Indenture Act or
under any similar federal statute hereafter enacted and to add to
this Indenture such other provisions as may be expressly required
under the Trust Indenture Act.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of each
series affected by such supplemental indenture, by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized
by a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of
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modifying in any manner the rights of the Holders of Securities of
such series under this Indenture; provided, however, that no such
supplemental Indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon, or any premium
payable upon the redemption thereof, or reduce the amount of the
principal of an Original Issue Discount Security that would be
due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502, or change the coin or
currency in which any Security or any premium or the interest
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the
Redemption Date), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose
Holders is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, or Section
513, or Section 1009, except to increase any such percentage or
to provide that certain other provisions of this Indenture cannot
be modified or waived without the consent of the Holder of each
Outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities,
or which modifies the rights of the Holders of Securities of such
series with respect to such covenant or other provision, shall be
deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series.
It shall not be necessary for any Act of Holders of Securities
under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act shall
approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications
thereby of the trust created by this Indenture, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully
protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by
this Indenture. The Trustee may, but shall not be obligated to, enter
<PAGE>
into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and
such supplemental indenture shall form a part of this Indenture for
all purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder and of any coupons appertaining
thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then
in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may,
and shall if required by the Trustee, bear a notation in form approved
by the Trustee as to any matter provided for in such supplemental
indenture. If the Company
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shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and Interest.
The Company covenants and agrees for the benefit of the Holders
of each series of Securities that it will duly and punctually pay the
principal of (and premium, if any), interest on the Securities of that
series in accordance with the terms of such series of Securities, any
coupons appertaining thereto and this Indenture. Any interest due on
Bearer Securities on or before Maturity shall be payable only upon
presentation and surrender of the several coupons for such interest
installments as are evidenced thereby as they severally mature.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series
of Securities an office or agency where Securities of that series (but
not Bearer Securities, except as otherwise provided below, unless such
Place of Payment is located outside the United States) may be
presented or surrendered for payment, where Securities of that series
may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. If
Securities of a series are issuable as Bearer Securities, the Company
will maintain, subject to any laws or regulations applicable thereto,
an office or agency in a Place of Payment for such series which is
located outside the United States where Securities of such series and
the related coupons may be presented and surrendered for payment;
provided, however, that if the Securities of such series are listed on
The Stock Exchange of the United Kingdom and the Republic of Ireland
or the Luxembourg Stock Exchange or any other stock exchange located
outside the United States and such stock exchange shall so require,
the Company will maintain a Paying Agent in London, Luxembourg or any
other required city located outside the United States, as the case may
be, so long as the Securities of such series are listed on such
exchange. The Company will give prompt written notice to the Trustee
of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fall to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the
Trustee, except that Bearer Securities of that series and the related
coupons may be presented and surrendered for payment at the place
specified for the purpose pursuant to Section 301, and the Company
hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
<PAGE>
Except as otherwise provided in the form of Bearer Security of
any particular series pursuant to the provisions of this Indenture, no
payment of principal, premium or interest on Bearer Securities shall
be made at any office or agency of the Company in the United States or
by check mailed to any address in the United States or by transfer to
an account maintained with a bank located in the United States;
provided, however, payment of principal of and any premium and
interest in U.S. dollars on any Bearer Security may be made at the
office of the Paying Agent in the Borough of Manhattan, The City of
New York if (but only if) payment of the full amount of such
principal, premium or interest at all offices outside the United
States maintained for the purpose by the Company in accordance with
this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.
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The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series
may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations; provided, however, that
no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in each
Place of Payment for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any
such other office or agency. Unless otherwise set forth in a Board
Resolution or indenture supplemental hereto with respect to a series
of Securities, the Company hereby designates as the Place of Payment
for each series of Securities the Corporate Trust Office of the
Trustee in the City of Chicago, Illinois, and the corporate trust
office of Bank of Montreal Trust Company in the Borough of Manhattan,
The City of New York.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due
date of the principal of (and premium, if any), or interest on, any of
the Securities of that series, segregate and hold in trust for the
benefit of the Person entitled thereto a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due until such
sums shall be paid to such Persons or otherwise disposed of as herein
provided, and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or prior to each due date of the
principal of (and premium, if any), or interest on, any Securities of
that series, deposit with any Paying Agent a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due, such sum
to be held in trust for the benefit of the Persons entitled to such
principal, premium or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such Paying
Agent will:
(1) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest on Securities of
that series in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company
(or any other obligor upon the Securities of that series) in the
<PAGE>
making of any payment of principal (and premium, if any) or
interest on the Securities of that series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose,
pay, or by Company Order direct any Paying Agent to pay, to the
Trustee all sums held in trust by the Company or such Paying Agent,
such sums to be held by the Trustee upon the same terms as those upon
which such sums were held by the Company or such Paying Agent; and,
upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to
such money.
Except as otherwise provided in the form of Securities of any
particular series pursuant to the provisions of this Indenture, any
money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (and
premium, if any) or Interest on any Security of any series and
remaining unclaimed for two years after such principal (and premium,
if any) or interest has become due and payable shall be paid to the
Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security or any
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coupon appertaining thereto shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such
trust money, and all liability of the Company as trustee thereof,
shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at
the expense of the Company cause to be published once, in an
Authorized Newspaper in each Place of Payment or to be mailed to
Holders of Registered Securities, or both, notice that such money
remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication or
mailing nor shall it be later than two years after such principal (and
premium, if any) or interest has become due and payable, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 1004. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its
corporate existence, rights (charter and statutory) and franchises;
provided, however, that the Company shall not be required to preserve
any such right or franchise if the Board of Directors shall determine
that the preservation thereof is no longer desirable in the conduct of
the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Holders.
SECTION 1005. Restriction on Creation of Secured Debt.
So long as the Securities of any series remain Outstanding, the
Company will not at any time create, incur, assume or guarantee, and
will not cause or permit a Restricted Subsidiary to create, incur,
assume or guarantee, any Secured Debt, and the Company will not at any
time create, and will not cause or permit a Restricted Subsidiary to
create, any Security Interest securing any indebtedness existing on
the date hereof which would constitute Secured Debt if it were secured
by a Security Interest in a Principal Facility, without first making
effective provision (and the Company covenants that in such case it
will first make or cause to be made effective provision) whereby the
Securities of each series then Outstanding and any other indebtedness
of or guaranteed by the Company or such Restricted Subsidiary then
entitled thereto, subject to applicable priorities of payment, shall
be secured by the Security Interest securing such Secured Debt equally
and ratably with any and all other obligations and indebtedness
thereby secured, so long as any such other obligations and
indebtedness shall be so secured, provided, however, that the
foregoing covenants shall not be applicable to Secured Debt secured
solely by one or more of the following Security Interests:
(a) (i) Any Security Interest upon any property hereafter
acquired, constructed, developed or improved by the Company or a
Restricted Subsidiary and created prior to or contemporaneously with,
or within 180 days after, (1) in the case of the acquisition of
property which is a parcel of real property, a manufacturing plant, a
warehouse or an office building, the completion of such acquisition
<PAGE>
and (2) in the case of the acquisition, construction, development or
improvement of any other Principal Facility, the later to occur of
such acquisition, construction, development or improvement and
commencement of operation, use or commercial production (exclusive of
test and start-up periods) of the property which was acquired,
constructed, developed or improved, which Security Interest secures or
provides for the payment of all or any part of the acquisition cost of
such property or the cost of construction, development or improvement
thereof, as the case may be; or (ii) the acquisition by the Company or
a Restricted Subsidiary of property subject to any Security Interest
upon such property existing at the time of the acquisition thereof,
which Security Interest secures obligations assumed by the Company or
a Restricted Subsidiary; or (iii) any conditional sales agreement or
other title retention agreement with respect to any property acquired
by the Company or a Restricted Subsidiary; or (iv) any Security
Interest existing on the property or on the outstanding shares or
indebtedness of a corporation or firm at the time such corporation or
firm shall become a Restricted Subsidiary or is merged into or
consolidated with the Company or a Restricted Subsidiary or at the
time of a sale, lease or other disposition of the properties of a
corporation or firm as an entirety or substantially as an entirety to
the
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Company or a Restricted Subsidiary; provided in each case that any
such Security Interest described in clause (ii), (iii) or (iv) does
not attach to or affect property owned by the Company or such
Restricted Subsidiary prior to the creation thereof; or
(b) Any Security Interest to secure indebtedness of a Restricted
Subsidiary to the Company or to another Restricted Subsidiary; or
(c) Mechanics', materialmen's, carriers' or other like liens
arising in the ordinary course of business (including construction of
facilities) in respect of obligations which are not due or which are
being contested in good faith; or
(d) Any Security Interest arising by reason of deposits with, or
the giving of any form of security to, any governmental agency or any
body created or approved by law or governmental regulations, which is
required by law or governmental regulation as a condition to the
transaction of any business, or the exercise of any privilege,
franchise or license; or
(e) Security Interests for taxes, assessments or governmental
charges or levies not yet delinquent, or the Security Interests for
taxes, assessments or governmental charges or levies already
delinquent but the validity of which is being contested in good faith;
or
(f) Security Interests (including judgment liens) arising in
connection with legal proceedings so long as such proceedings are
being contested in good faith and, in the case of judgment liens,
execution thereon is stayed; or
(g) Landlords' liens on fixtures located on the premises leased
by the Company or a Restricted Subsidiary in the ordinary course of
business; or
(h) Security Interests arising in connection with contracts and
subcontracts with or made at the request of Canada, or any province
thereof, the United States of America, or any state thereof, or any
department, agency or instrumentality of Canada or the United States;
or
(i) Security Interests in property of the Company or a
Restricted Subsidiary to secure partial, progress, advance or other
payments or any indebtedness incurred for the purpose of financing all
or any part of the purchase price or the cost of construction,
development, or substantial repair, alteration or improvement of the
property subject to such Security Interests if the commitment for the
financing is obtained not later than 180 days after the later of the
completion of or the placing into operation (exclusive of test and
start-up periods) of such constructed, developed, repaired, altered or
improved property; or
(j) Any Security Interest in favor of Canada, or any province
thereof, the United States of America, or any state, county or local
<PAGE>
government, or any agency of Canada or the United States, or any
holder of bonds or other securities thereof issued, in connection with
the financing of the cost of acquiring, constructing or improving
property of the Company or any Restricted Subsidiary (including,
without limitation, any such property designed primarily for the
purpose of pollution control), and any transfers of title to any such
property and any related property or Security Interest in any such
property and any related property, in favor of such government or
governmental agency or any such security holders in connection with
the acquisition, construction, improvement, attachment or removal of
such property; provided that such transfer of title and the lien of
any such Security Interest does not apply to any Principal Facility
now or hereafter owned by the Company or any Restricted Subsidiary; or
(k) Any extension, renewal or refunding (or successive
extensions, renewals or refundings) in whole or in part of any Secured
Debt secured by any Security Interest referred to in the foregoing
subparagraphs (a) through (j), inclusive, provided that the principal
amount of such Secured Debt secured thereby shall not exceed the
principal amount outstanding at the time of such extension,
52
<PAGE>
renewal or refunding, and that the Security Interest securing such
Secured Debt shall be limited to the property which secured the
Secured Debt so extended, renewed or refunded and additions to such
property.
Notwithstanding the foregoing provisions of this Section
1005, the Company and any one or more Restricted Subsidiaries may
issue, incur, assume or guarantee Secured Debt (not including Secured
Debt permitted to be secured under subparagraphs (a) through (k),
inclusive, above) in an aggregate amount which, together with all
other Secured Debt (not including Secured Debt to be secured under
subparagraphs (a) through (k), inclusive, above) of the Company and
its Restricted Subsidiaries which is issued incurred, assumed or
guaranteed after the date hereof and the aggregate value of the Sale
and Leaseback Transactions entered into after the date hereof (not
including Sale and Leaseback Transactions referred to in clause (b) of
Section 1006), does not at the time exceed 10 percent of Consolidated
Net Tangible Assets. The term "value" shall mean, with respect to a
Sale and Leaseback Transaction, as of any particular time, the amount
equal to the net proceeds of the property sold or transferred or to be
sold or to be transferred pursuant to such Sale and Leaseback
Transaction divided first by the number of full years of the term of
the lease and then multiplied by the number of full years of such term
remaining at the time of determination, without regard to any renewal
or extension options contained in the lease.
SECTION 1006. Restriction on Sale and Leaseback Transactions.
So long as the Securities of any series remain Outstanding, the
Company will not, and will not permit any Restricted Subsidiary to,
enter into any Sale and Leaseback Transaction, unless (a) the Company
or such Restricted Subsidiary would be entitled to incur Secured Debt
only by reason of the last paragraph of Section 1005 equal in amount
to the net proceeds of the property sold or transferred or to be sold
or to be transferred pursuant to such Sale and Leaseback Transaction
and secured by a Security Interest on the property to be leased
without equally and ratably securing the Securities of any series as
provided in said Section, or (b) the Company or a Restricted
Subsidiary shall apply, within 180 days after the effective date of
such sale or transfer, an amount equal to such net proceeds to (i) the
acquisition, construction, development or improvement of properties,
facilities or equipment which are, or, upon such acquisition,
construction, development or improvement will be, a Principal Facility
or Facilities or a part thereof or (ii) the redemption of Securities
in accordance with the provisions of Article Eleven, or to the
repayment of Senior Funded Debt of the Company or of any Restricted
Subsidiary (other than Senior Funded Debt owed to any Restricted
Subsidiary), or in part to such acquisition, construction, development
or improvement and in part to such redemption and/or repayment,
provided that, in lieu of applying an amount equal to such net
proceeds to such redemption, the Company may, within 180 days after
such sale or transfer, deliver to the Trustee Securities (other than
Securities made the basis of a reduction in a mandatory sinking fund
payment pursuant to Section 1202) for cancellation and thereby reduce
<PAGE>
the amount to be applied to the redemption of Securities pursuant to
clause (ii) above by an amount equivalent to the aggregate principal
amount of Securities so delivered (for the purposes of making such
calculation the principal amount of Original Issue Discount Securities
so cancelled shall mean the portion thereof that could have been
declared due and payable pursuant to Section 502 at the time
cancelled). Redemption of Securities pursuant to this Section 1006
shall not be used as credits against mandatory sinking fund payments.
SECTION 1007. Restriction on Transfer of Principal Facility to
Unrestricted Subsidiaries.
So long as the Securities of any series remain Outstanding, the
Company will not itself, and will not cause, suffer or permit any
Restricted Subsidiary to, transfer (whether by merger, consolidation
or otherwise) any Principal Facility to any Unrestricted Subsidiary,
unless it shall apply, within 180 days after the effective date of
such transaction, an amount equal to the fair value of such Principal
Facility at the time of such transfer, as determined by the Board of
Directors, to (a) the acquisition, construction, development or
improvement of properties, facilities or equipment which are, or, upon
such acquisition, construction, development or improvement will be, a
Principal Facility or Facilities or a part thereof or (b) the
redemption of Securities of any series in accordance with the
provisions of
53
<PAGE>
Article Eleven, or to the repayment of Senior Funded Debt of the
Company or of any Restricted Subsidiary (other than any Senior Funded
Debt owed to any Restricted Subsidiary), or in part to such
acquisition, construction, development or improvement and in part to
such redemption and/or repayment; provided that, in lieu of applying
an amount equivalent to all or any part of such fair value to such
redemption, the Company may, within 180 days after such transfer,
deliver to the Trustee Securities (other than Securities made the
basis of a reduction in a mandatory sinking fund payment pursuant to
Section 1202) for cancellation and thereby reduce the amount to be
applied to the redemption of the Securities of that series pursuant to
clause (b) above by an amount equivalent to the aggregate principal
amount of Securities so delivered (for purposes of making such
calculation the principal amount of Original Issue Discount Securities
so cancelled shall mean the portion thereof that could have been
declared due and payable pursuant to Section 502 at the time
cancelled). Redemption of Securities pursuant to this Section 1009
shall not be used as credits against mandatory sinking fund payments.
SECTION 1008. Statement by Officers as to Default.
(a) The Company will deliver to the Trustee, within 120 days
after the end of each fiscal year of the Company ending after the date
hereof, an Officers' Certificate, stating whether or not to the best
knowledge of the signers thereof the Company is in default in the
performance and observance of any of the terms, provisions and
conditions of this Indenture, setting forth the arithmetical
computations required to show compliance with the provisions of
Sections 1005 to 1007 during the previous year, and, if the Company
shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
(b) The Company will deliver to the Trustee, within five days
after the occurrence thereof, written notice of any event which after
notice or lapse of time or both would become an Event of Default
pursuant to Clause (4) of Section 501.
SECTION 1009. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any term, provision or condition set forth in Sections 1005 to 1007,
inclusive, with respect to the Securities of any series if before the
time for such compliance the Holders of at least a majority in
principal amount of the Outstanding Securities of such series shall,
by Act of such Holders, either waive such compliance in such instance
or generally waive compliance with such term, provision or condition,
but no such waiver shall extend to or affect such term, provision or
condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
<PAGE>
SECTION 1101. Applicability of Article.
Redemption of Securities of any series at the option of the
Company as permitted or required by the terms of such Securities shall
be made in accordance with the terms of such Securities and this
Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the
election of the Company of the Securities of any series, with the same
issue date, interest rate and Stated Maturity, the Company shall, at
least 45 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of
Securities of such series to be redeemed.
54
<PAGE>
SECTION 1103. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities of any series with the same issue
date, interest rate, and Stated Maturity are to be redeemed, the
particular Securities to be redeemed shall be selected not more than
60 days prior to the Redemption Date by the Trustee from the
Outstanding Securities of such series not previously called for
redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of
portions of the principal amount of Registered Securities of such
series; provided, however, that no such partial redemption shall
reduce the portion of the principal amount of a Registered Security of
such series not redeemed to less than the minimum denomination for a
Security of that series established pursuant to Section 302.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected
for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed
only in part, to the portion of the principal of such Securities which
has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in
Section 106, not less than 30 nor more than 60 days prior to the
Redemption Date, unless a shorter period is specified in the
Securities to be redeemed, to the Holders of Securities to be
redeemed. Failure to give notice by mailing in the manner herein
provided to the Holder of any Registered Securities designated for
redemption as a whole or in part, or any defect in the notice to any
such Holder, shall not affect the validity of the proceedings for the
redemption of any other Securities or portion thereof.
Any notice that is mailed to the Holder of any Registered
Securities in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not such Holder receives
the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of
partial redemption, the principal amount) of the particular
Securities to be redeemed,
<PAGE>
(4) in case any Registered Security is to be redeemed in
part only, the notice which relates to such Security shall state
that on and after the Redemption Date, upon surrender of such
Security, the Holder of such Security will receive, without
charge, a new Registered Security or Registered Securities of
authorized denominations for the principal amount thereof
remaining unredeemed,
(5) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed,
and, if applicable, that interest thereon shall cease to accrue
on and after said date,
(6) the place or places where such Securities, together, in
the case of Bearer Securities with all coupons appertaining
thereto, if any, maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price, and
(7) that the redemption is for a sinking fund, if such is
the case.
A notice of redemption published as contemplated by Section 106
need not identify particular Registered Securities to be redeemed.
55
<PAGE>
Notice of redemption of Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting
as its own Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Securities or portions
thereof which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due
and payable at the Redemption Price therein specified, and from and
after such date (unless the Company shall default in the payment of
the Redemption Price and accrued interest) such Securities shall cease
to bear interest and the coupons for such interest appertaining to any
Bearer Securities so to be redeemed, except to the extent provided
below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all coupons,
if any, appertaining thereto maturing after the Redemption Date, such
Security shall be paid by the Company at the Redemption Price,
together with accrued interest to the Redemption Date; provided,
however, that installments of interest on Bearer Securities whose
Stated Maturity is on or prior to the Redemption Date shall be payable
only upon presentation and surrender of coupons for such interest (at
an office or agency located outside the United States except as
otherwise provided in Section 1002), and provided, further, that
installments of interest on Registered Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the Regular Record
Dates according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption
Date, such Security may be paid after deducting from the Redemption
Price an amount equal to the face amount of all such missing coupons,
or the surrender of such missing coupon or coupons may be waived by
the Company and the Trustee if there be furnished to them such
security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the
Redemption Price, such Holder shall be entitled to receive the amount
so deducted; provided, however, that interest represented by coupons
shall be payable only upon presentation and surrender of those coupons
at an office or agency located outside of the United States except as
otherwise provided in Section 1002.
<PAGE>
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate
prescribed therefor in the Security.
SECTION 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part
shall be surrendered at any office or agency of the Company maintained
for that purpose pursuant to Section 1002 (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in
writing) and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security without
service charge, a new Registered Security or Securities of the same
series, containing identical terms and provisions, of any authorized
denomination as requested by such Holder in aggregate principal amount
equal to and in exchange for the unredeemed portion of the principal
of the Security so surrendered. If a Security in global form is so
surrendered, the Company shall execute, and the Trustee shall
authenticate and deliver to the U.S. Depository or other depository
56
<PAGE>
for such Security in global form as shall be specified in the Company
Order with respect thereto to the Trustee, without service charge, a
new Security in global form in a denomination equal to and in exchange
for the unredeemed portion of the principal of the Security in global
form so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of a series, except as otherwise
permitted or required by any form of Security of such series issued
pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a
"mandatory sinking fund payment," and any payment in excess of such
minimum amount provided for by the terms of Securities of such series
is herein referred to as an "optional sinking fund payment." If
provided for by the terms of Securities of any series, the cash amount
of any sinking fund payment may be subject to reduction as provided in
Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company may, in satisfaction of all or any part of any
sinking fund payment with respect to the Securities of such series to
be made pursuant to the terms of such Securities as provided for by
the terms of such series (1) deliver Outstanding Securities of such
series (other than any of such Securities previously called for
redemption or any of such Securities in respect of which cash shall
have been released to the Company), together in the case of any Bearer
Securities of such series with all unmatured coupons appertaining
thereto, and (2) apply as a credit Securities of such series which
have been redeemed either at the election of the Company pursuant to
the terms of such series of Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, provided that such series of Securities have not been
previously so credited. Such Securities shall be received and
credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be
reduced accordingly. If as a result of the delivery or credit of
Securities of any series in lieu of cash payments pursuant to this
Section 1202, the principal amount of Securities of such series to be
redeemed in order to exhaust the aforesaid cash payment shall be less
than $100,000, the Trustee need not call Securities of such series for
redemption, except upon Company Request, and such cash payment shall
be held by the Trustee or a Paying Agent and applied to the next
succeeding sinking fund payment, provided, however, that the Trustee
<PAGE>
or such Paying Agent shall at the request of the Company from time to
time pay over and deliver to the Company any cash payment so being
held by the Trustee or such Paying Agent upon delivery by the Company
to the Trustee of Securities of that series purchased by the Company
having an unpaid principal amount equal to the cash payment requested
to be released to the Company.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for
any series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing
mandatory
57
<PAGE>
sinking fund payment for that series pursuant to the terms of that
series, the portion thereof, if any, which is to be satisfied by
payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting of Securities of that series
pursuant to Section 1202, and the optional amount, if any, to be added
in cash to the next ensuing mandatory sinking fund payment, and will
also deliver to the Trustee any Securities to be so credited and not
theretofore delivered. If such Officers' Certificate shall specify an
optional amount to be added in cash to the next ensuing mandatory
sinking fund payment, the Company shall thereupon be obligated to pay
the amount therein specified. Not less than 30 days before each such
sinking fund payment date, the Trustee shall select the Securities to
be redeemed upon such sinking fund payment date in the manner
specified in Section 1103 and cause notice of the redemption thereof
to be given in the name of and at the expense of the Company in the
manner provided in Section 1104. Such notice having been duly given,
the redemption of such Securities shall be made upon the terms and in
the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article.
Securities of any series which are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in
accordance with the terms of the Securities of such series. The
repayment of any principal amount of Securities pursuant to such
option of the Holder to require repayment of Securities before their
Stated Maturity, for purposes of Section 309, shall not operate as a
payment, redemption or satisfaction of the indebtedness represented by
such Securities unless and until the Company, at its option, shall
deliver or surrender the same to the Trustee with a directive that
such Securities be cancelled. Notwithstanding anything to the
contrary contained in this Article Thirteen, in connection with any
repayment of Securities, the Company may arrange for the purchase of
any Securities by an agreement with one or more investment bankers or
other purchasers to purchase such Securities by paying to the Holders
of such Securities on or before the close of business on the repayment
date an amount not less than the repayment price payable by the
Company on repayment of such Securities, and the obligation of the
Company to pay the repayment price of such Securities shall be
satisfied and discharged to the extent such payment is so paid by such
purchasers.
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
SECTION 1401. Securities in Foreign Currencies.
Whenever this Indenture provides for (i) any action by, or the
determination of any of the rights of, Holders of Securities of any
series in which not all of such Securities are denominated in the same
currency, or (ii) any distribution to Holders of Securities, in the
<PAGE>
absence of any provision to the contrary in the form of Security of
any particular series, any amount in respect of any Security
denominated in a currency other than Dollars shall be treated for any
such action or distribution as that amount of Dollars that could be
obtained for such amount on such reasonable basis of exchange and as
of the record date with respect to Registered Securities of such
series (if any) for such action, determination of rights or
distribution (or, if there shall be no applicable record date, such
other date reasonably proximate to the date of such action,
determination of rights or distribution) as the Company may specify in
a written notice to the Trustee or, in the absence of such written
notice, as the Trustee may determine.
* * * *
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all
such counterparts shall together constitute but one and the same
Instrument.
58
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be
hereunto affixed, all as of the day and year first above written.
ARVIN INDUSTRIES, INC.
[SEAL] By /s/ V. William Hunt
------------------------------
Vice President-Administration
Attest:
/s/ Page E. Gifford
------------------------
Assistant Secretary
HARRIS TRUST AND SAVINGS BANK
[SEAL] By /s/ R. G. Mason
---------------------------
Authorized Officer
Attest:
/s/ C. Potter
---------------------------
Assistant Secretary
59
<PAGE>
STATE OF ________________ )
) ss.:
COUNTY OF ________________ )
On the ____ day of _____________, before me personally came
______________________ to me known, who, being by me duly sworn, did
depose and say that he resides at
________________________________________, that he is Vice President-
Administration of Arvin Industries, Inc., one of the corporations
described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority
of the Board of Directors of said corporation, and that he signed his
name thereto by like authority.
_________________________________________
Notary Public
STATE OF ________________ )
) ss.:
COUNTY OF ________________ )
On the ____ day of _____________, before me personally came
_________________________ to me known, who, being by me duly sworn,
did depose and say that he resides at
________________________________________, that he is a
______________________ of Harris Trust and Savings Bank, one of the
corporations described in and which executed the foregoing instrument;
that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
_________________________________________
Notary Public
<PAGE>
EXHIBIT 4-5
======================================================================
======================================================================
ARVIN INDUSTRIES, INC.
AND
NBD BANK, NATIONAL ASSOCIATION,
Trustee
________________
Indenture
Dated as of ___________, 1994
________________
CONVERTIBLE AND NON-CONVERTIBLE SUBORDINATED DEBT SECURITIES
======================================================================
======================================================================
<PAGE>
ARVIN INDUSTRIES, INC.
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of __________, 1994
Trust Indenture
Act Section Indenture Section
Section 310(a)(1) . . . . . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . 609
(b) . . . . . . . . . . . . . . . . . . . . . . . 608, 610
(c) . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 311(a) . . . . . . . . . . . . . . . . . . . 613(a), (c), (d)
(b) . . . . . . . . . . . . . . . . . . . . . 613(b), (c)
(c) . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 312(a) . . . . . . . . . . . . . . . . . . . . . 701, 702(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . 702(c)
Section 313(a) . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(b)(1) . . . . . . . . . . . . . . . . . . . . Not Applicable
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . 703(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . 703(c)
(d) . . . . . . . . . . . . . . . . . . . . . . . . 703(d)
Section 314(a) . . . . . . . . . . . . . . . . . . . . . . . . . 704
(b) . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . 102
(f) . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 315(a) . . . . . . . . . . . . . . . . . . . . . . . . 601(a)
(b) . . . . . . . . . . . . . . . . . . . . 602, 703(a)(7)
(c) . . . . . . . . . . . . . . . . . . . . . . . . 601(b)
(d) . . . . . . . . . . . . . . . . . . . . . . . . 601(c)
(d)(1) . . . . . . . . . . . . . . . . . . . . . . 601(c)(1)
(d)(2) . . . . . . . . . . . . . . . . . . . . . . 601(c)(2)
(d)(3) . . . . . . . . . . . . . . . . . . . . . . 601(c)(3)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . 514
Section 316(a) . . . . . . . . . . . . . . . . . . . . . . . . . 101
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . 502, 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 104
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 1003
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . . . . 108
NOTE: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture
<PAGE>
TABLE OF CONTENTS
Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . 2
Authorized Newspaper . . . . . . . . . . . . . . . . . . . . 2
Bearer Security . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . . . . . 3
Common Shares . . . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Request . . . . . . . . . . . . . . . . . . . . . . 3
Company Order . . . . . . . . . . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . . . 3
Corporation . . . . . . . . . . . . . . . . . . . . . . . . 3
Coupon . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . 3
Dollars . . . . . . . . . . . . . . . . . . . . . . . . . . 3
$ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . 4
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date . . . . . . . . . . . . . . . . . . . 4
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Officers' Certificate . . . . . . . . . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . 5
Original Issue Discount Security . . . . . . . . . . . . . . 5
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . 5
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . 6
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Place of Payment . . . . . . . . . . . . . . . . . . . . . . 6
Predecessor Security . . . . . . . . . . . . . . . . . . . . 6
Redemption Date . . . . . . . . . . . . . . . . . . . . . . 6
Redemption Price . . . . . . . . . . . . . . . . . . . . . . 6
Registered Security . . . . . . . . . . . . . . . . . . . . 6
Regular Record Date . . . . . . . . . . . . . . . . . . . . 6
Responsible Officer . . . . . . . . . . . . . . . . . . . . 6
Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Rights Agreement . . . . . . . . . . . . . . . . . . . . . . 7
Security . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Securities . . . . . . . . . . . . . . . . . . . . . . . . . 7
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Security Register . . . . . . . . . . . . . . . . . . . . . 7
Security Registrar . . . . . . . . . . . . . . . . . . . . . 7
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . 7
Special Record Date . . . . . . . . . . . . . . . . . . . . 7
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . 7
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . 7
United States . . . . . . . . . . . . . . . . . . . . . . . 7
U.S. Depository . . . . . . . . . . . . . . . . . . . . . . 8
Depository . . . . . . . . . . . . . . . . . . . . . . . . . 8
U.S. Government Obligations . . . . . . . . . . . . . . . . 8
Vice President . . . . . . . . . . . . . . . . . . . . . . . 8
Voting Stock . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 102. Compliance Certificates and Opinions. . . . . . . 8
SECTION 103. Form of Documents Delivered to Trustee. . . . . . 9
SECTION 104. Acts of Holders. . . . . . . . . . . . . . . . . . 10
SECTION 105. Notices, etc., to Trustee and Company. . . . . . . 12
SECTION 106. Notice to Holders of Securities; Waiver. . . . . . 12
SECTION 107. Language of Notices. . . . . . . . . . . . . . . . 13
SECTION 108. Conflict with Trust Indenture Act. . . . . . . . . 13
SECTION 109. Effect of Headings and Table of Contents. . . . . 14
SECTION 110. Successors and Assigns. . . . . . . . . . . . . . 14
SECTION 111. Separability Clause. . . . . . . . . . . . . . . . 14
SECTION 112. Benefits of Indenture. . . . . . . . . . . . . . . 14
SECTION 113. Governing Law. . . . . . . . . . . . . . . . . . . 14
SECTION 114. Legal Holidays. . . . . . . . . . . . . . . . . . 14
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally. . . . . . . . . . . . . . . . . . 15
SECTION 202. Form of Trustee's Certificate of Authentication. . 15
SECTION 203. Securities in Global Form. . . . . . . . . . . . . 15
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. . . . . . . 16
SECTION 302. Denominations. . . . . . . . . . . . . . . . . . . 19
SECTION 303. Execution, Authentication, Delivery and Dating. . 19
SECTION 304. Temporary Securities. . . . . . . . . . . . . . . 20
SECTION 305. Registration, Transfer and Exchange. . . . . . . . 21
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities. 25
SECTION 307. Payment of Interest; Interest Rights Preserved. . 26
SECTION 308. Persons Deemed Owners. . . . . . . . . . . . . . . 28
SECTION 309. Cancellation. . . . . . . . . . . . . . . . . . . 29
SECTION 310. Computation of Interest. . . . . . . . . . . . . . 29
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. . . . . . 29
SECTION 402. Application of Trust Money. . . . . . . . . . . . 31
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SECTION 403. Satisfaction, Discharge and Defeasance of
Securities of Any Series. . . . . . . . . . . . . 31
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default. . . . . . . . . . . . . . . . . 33
SECTION 502. Acceleration of Maturity; Rescission and
Annulment. . . . . . . . . . . . . . . . . . . . . 35
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee. . . . . . . . . . . . . . 36
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . 37
SECTION 505. Trustee May Enforce Claims without Possession of
Securities or Coupons. . . . . . . . . . . . . . . 38
SECTION 506. Application of Money Collected. . . . . . . . . . 38
SECTION 507. Limitation on Suits. . . . . . . . . . . . . . . . 38
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest. . . . . . . . . . 39
SECTION 509. Restoration of Rights and Remedies. . . . . . . . 39
SECTION 510. Rights and Remedies Cumulative. . . . . . . . . . 40
SECTION 511. Delay or Omission Not Waiver. . . . . . . . . . . 40
SECTION 512. Control by Holders of Securities. . . . . . . . . 40
SECTION 513. Waiver of Past Defaults. . . . . . . . . . . . . . 40
SECTION 514. Undertaking for Costs. . . . . . . . . . . . . . . 41
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities. . . . . . . . 41
SECTION 602. Notice of Defaults. . . . . . . . . . . . . . . . 43
SECTION 603. Certain Rights of Trustee. . . . . . . . . . . . . 43
SECTION 604. Not Responsible for Recitals or Issuance of
Securities. . . . . . . . . . . . . . . . . . . . 44
SECTION 605. May Hold Securities. . . . . . . . . . . . . . . . 44
SECTION 606. Money Held in Trust. . . . . . . . . . . . . . . . 45
SECTION 607. Compensation and Reimbursement. . . . . . . . . . 45
SECTION 608. Disqualifications; Conflicting Interests. . . . . 46
SECTION 609. Corporate Trustee Required; Eligibility. . . . . . 46
SECTION 610. Resignation and Removal; Appointment of
Successor. . . . . . . . . . . . . . . . . . . . . 46
SECTION 611. Acceptance of Appointment by Successor. . . . . . 48
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business. . . . . . . . . . . . . . . . . . . . . 49
SECTION 613. Preferential Collection of Claims Against
Company. . . . . . . . . . . . . . . . . . . . . . 49
SECTION 614. Appointment of Authenticating Agent. . . . . . . . 54
ARTICLE SEVEN
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders. . . . . . . . . . . . . . . . . . . . . . 56
SECTION 702. Preservation of Information; Communications to
Holders. . . . . . . . . . . . . . . . . . . . . . 56
SECTION 703. Reports by Trustee . . . . . . . . . . . . . . . . 58
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SECTION 704. Reports by the Company. . . . . . . . . . . . . . 59
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Company May Consolidate, Etc., on Certain Terms . 60
SECTION 802. Successor Corporation to be Substituted. . . . . . 61
SECTION 803. Opinion of Counsel to be Given Trustee . . . . . . 62
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of
Holders. . . . . . . . . . . . . . . . . . . . . . 62
SECTION 902. Supplemental Indentures with Consent of Holders. . 63
SECTION 903. Execution of Supplemental Indentures. . . . . . . 64
SECTION 904. Effect of Supplemental Indentures. . . . . . . . . 64
SECTION 905. Conformity with Trust Indenture Act. . . . . . . . 65
SECTION 906. Reference in Securities to Supplemental
Indentures. . . . . . . . . . . . . . . . . . . . 65
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and
Interest. . . . . . . . . . . . . . . . . . . . . 65
SECTION 1002. Maintenance of Office or Agency. . . . . . . . . . 65
SECTION 1003. Money for Securities Payments to Be Held in
Trust. . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 1004. Corporate Existence . . . . . . . . . . . . . . . 68
SECTION 1005. Statement by Officers as to Default. . . . . . . . 68
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article. . . . . . . . . . . . . 68
SECTION 1102. Election to Redeem; Notice to Trustee. . . . . . . 69
SECTION 1103. Selection by Trustee of Securities to be
Redeemed. . . . . . . . . . . . . . . . . . . . . 69
SECTION 1104. Notice of Redemption. . . . . . . . . . . . . . . 69
SECTION 1105. Deposit of Redemption Price. . . . . . . . . . . . 71
SECTION 1106. Securities Payable on Redemption Date. . . . . . . 71
SECTION 1107. Securities Redeemed in Part. . . . . . . . . . . . 72
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article. . . . . . . . . . . . . 72
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities. . . . . . . . . . . . . . . . . . . . 73
SECTION 1203. Redemption of Securities for Sinking Fund. . . . . 73
ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES
SECTION 1301. Securities Subordinate to Senior Indebtedness . . 74
SECTION 1302. Dissolution, Liquidation, Insolvency, etc . . . . 74
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SECTION 1303. Default on Senior Indebtedness . . . . . . . . . . 75
SECTION 1304. Payments and Distributions Received . . . . . . . 76
SECTION 1305. Payment Permitted If No Default . . . . . . . . . 76
SECTION 1306. Subrogation to Rights of Holders of Senior
Indebtedness . . . . . . . . . . . . . . . . . . . 76
SECTION 1307. Provisions Solely to Define Relative Rights . . . 77
SECTION 1308. Trustee to Effectuate Subordination . . . . . . . 77
SECTION 1309. No Waiver of Subordination Provisions . . . . . . 77
SECTION 1310. Notice to Trustee . . . . . . . . . . . . . . . . 78
SECTION 1311. Reliance on Judicial Order or Certificate of
Liquidating Agent . . . . . . . . . . . . . . . . 79
SECTION 1312. Trustee Not Fiduciary for Holders of Senior
Indebtedness . . . . . . . . . . . . . . . . . . . 79
SECTION 1313. Rights of Trustee as a Holder of Senior
Indebtedness; Preservation of Trustee's Rights . . 80
SECTION 1314. Article Applicable to Paying Agents . . . . . . . 80
SECTION 1315. No Suspension of Remedies . . . . . . . . . . . . 80
SECTION 1316. Trust Moneys Not Subordinated . . . . . . . . . . 80
ARTICLE FOURTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1401. Applicability of Article. . . . . . . . . . . . . 81
ARTICLE FIFTEEN
CONVERSION OF SECURITIES
SECTION 1501. Conversion Privilege and Conversion Price . . . . 81
SECTION 1502. Exercise of Conversion Privilege . . . . . . . . . 82
SECTION 1503. Fractions of Shares . . . . . . . . . . . . . . . 83
SECTION 1504. Adjustment of Conversion Price. . . . . . . . . . 83
SECTION 1505. Notice of Adjustments of Conversion Price. . . . . 86
SECTION 1506. Notice of Certain Corporate Actions. . . . . . . . 86
SECTION 1507. Company to Reserve Common Shares. . . . . . . . . 88
SECTION 1508. Taxes on Conversions. . . . . . . . . . . . . . . 88
SECTION 1509. Covenant as to Common Shares. . . . . . . . . . . 88
SECTION 1511. Cancellation of Converted Securities. . . . . . . 88
SECTION 1512. Provisions as to Reclassification, Consolidation,
Merger or Sale of Assets. . . . . . . . . . . . . 88
SECTION 1513. Trustee Not Responsible For Determining Conversion
Price or Adjustments. . . . . . . . . . . . . . . 89
SECTION 1514. Rights Issued in Respect of Common Shares Issued
on Certain Conversions. . . . . . . . . . . . . . 90
ARTICLE SIXTEEN
MISCELLANEOUS PROVISIONS
SECTION 1601. Securities in Foreign Currencies. . . . . . . . . 90
Testimonium . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Signatures and Seals . . . . . . . . . . . . . . . . . . . . . . . 91
Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . 92
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<PAGE>
INDENTURE, dated as of ___________, 1994, between ARVIN
INDUSTRIES, INC., an Indiana corporation (hereinafter called the
"Company"), having its principal executive office at One Noblitt
Plaza, Columbus, Indiana 47202, and NBD Bank, N.A., a banking
organization organized under the laws of Michigan (hereinafter called
the "Trustee"), having its Corporate Trust Office at 611 Woodward
Avenue, Detroit, Michigan 48226.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its
unsecured and subordinated debentures, notes or other evidences of
indebtedness (such debt securities being hereinafter called the
"Securities"), unlimited as to principal amount, to bear such rates of
interest, to mature at such time or times, to be issued in one or more
series and to have such other provisions as shall be fixed as
hereinafter provided.
The Company has duly authorized the execution and delivery of
this Indenture, and all things necessary to make this Indenture a
valid agreement of the Company, in accordance with its terms, have
been done.
NOW, THEREFORE, in consideration of the premises and the sum of
one dollar duly paid by the Company to the Trustee, the receipt of
which is hereby acknowledged, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of Securities,
as follows:
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as defined below) thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Securities or of series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well
as the singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein,
have the meanings assigned to them therein;
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(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally
accepted accounting principles and, except as otherwise herein
expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted at the date of such computation; and
(4) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in
that Article.
"Act" when used with respect to any Holders has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes
of this definition, "control" when used with respect to any specified
Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have the meanings correlative to the
foregoing.
"Authenticating Agent" means the Trustee or any Person authorized
by the Trustee pursuant to Section 614 to act on behalf of the Trustee
to authenticate Securities of one or more series.
"Authorized Newspaper" means a newspaper, in an official language
of the country of publication or in the English language, customarily
published on each Business Day, whether or not published on Saturdays,
Sundays or holidays, and of general circulation in the place in
connection with which the term is used or in the financial community
of such place. Where successive publications are required to be made
in Authorized Newspapers, the successive publications may be made in
the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security in the form established
pursuant to Section 201 which is payable to bearer.
"Board of Directors" means the Board of Directors of the Company
or a duly authorized Committee thereof.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors or a duly authorized Committee
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<PAGE>
thereof and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day," except as may otherwise be provided in the form
of Securities of any particular series pursuant to the provisions of
this Indenture, with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions or trust companies in that Place of Payment
are authorized or obligated by law to close.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange
Act of 1934, or if at any time after the execution of this instrument
such Commission is not existing and performing the duties now assigned
to it under the Trust Indenture Act, then the body performing such
duties at such time.
"Common Shares" means shares of the class designated as Common
Shares, $2.50 par value, of the Company at the date of this Indenture
or shares of any class or classes resulting from any reclassification
or reclassifications thereof.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have
become such pursuant to the applicable provisions of this Indenture,
and thereafter "Company" shall mean such successor corporation, and
any other obligor upon the Securities.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by the
Chairman, the Vice Chairman, the President, a Vice President or the
Treasurer, and by a Vice President, an Assistant Treasurer, the
Secretary or an Assistant Secretary of the Company, and delivered to
the Trustee.
"Corporate Trust Office" means the principal office of the
Trustee, at which at any particular time its corporate trust business
shall be administered, which office at the date of original execution
of this Indenture is located at 611 Woodward Avenue, 11th Floor,
Detroit, Michigan 48226.
"Corporation" includes corporations, associations, companies and
business trusts.
"Coupon" means any interest coupon appertaining to a Bearer
Security.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollars" or "$" or any similar reference shall mean the currency
of the United States, except as may otherwise be provided in the form
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<PAGE>
of Securities of any particular series pursuant to the provisions of
this Indenture.
"Event of Default" has the meaning specified in Section 501.
"Holder," when used with respect to any Security, means, in the
case of a Registered Security, the Person in whose name the Security
is registered in the Security Register, and, in the case of a Bearer
Security, the bearer thereof and, when used with respect to any
coupon, means the bearer thereof.
"Indebtedness," as applied to any Person, means all indebtedness,
whether or not represented by bonds, debentures, notes or other
securities, created or assumed by such Person for the repayment of
money borrowed, and obligations, computed in accordance with generally
accepted accounting principles, as lessee under leases that should be,
in accordance with generally accepted accounting principles, treated
as capital leases. All Indebtedness secured by a lien upon property
owned by the Company or any Subsidiary and upon which Indebtedness
such Person customarily pays interest, although such Person has not
assumed or become liable for the payment of such Indebtedness, shall
be deemed to be Indebtedness of such Person. All Indebtedness of
others guaranteed as to payment of principal by such Person or in
effect guaranteed by such Person through a contingent agreement to
purchase such Indebtedness shall also be deemed to be Indebtedness of
such Person.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof.
"Interest," when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the applicable Securities.
"Maturity" when used with respect to any Security means the date
on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the
Stated Maturity or by declaration of acceleration, notice of
redemption, request for repayment or otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the Vice Chairman of the Board, the President
or a Vice President and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of the Company, and delivered to
the Trustee.
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"Opinion of Counsel" means a written opinion of counsel, who may
(except as otherwise expressly provided in this Indenture) be an
employee of or counsel for the Company, or other counsel who shall be
reasonably acceptable to the Trustee.
"Original Issue Discount Security" means a Security issued
pursuant to this Indenture which provides for declaration of an amount
less than the principal thereof to be due and payable upon
acceleration pursuant to Section 502.
"Outstanding" when used with respect to Securities means, as of
the date of determination, all Securities theretofore authenticated
and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee
or any Paying Agent (other than the Company) in trust or set
aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such
Securities and any coupons thereto appertaining, provided that,
if such Securities are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section
306 or in exchange for or in lieu of which other Securities have
been authenticated and delivered pursuant to this Indenture,
other than any such Securities in respect of which there shall
have been presented to the Trustee proof satisfactory to it that
such Securities are held by a bona fide purchaser in whose hands
such Securities are valid obligations of the Company; provided,
however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any
request, demand, authorization, direction, notice, consent or
waiver hereunder, the principal amount of an Original Issue
Discount Security that may be counted in making such
determination and that shall be deemed to be Outstanding for such
purposes shall be equal to the amount of the principal thereof
that could be declared to be due and payable pursuant to the
terms of such Original Issue Discount Security at the time the
taking of such action by the Holders of such requisite principal
amount is evidenced to the Trustee as provided in Section 104(a),
and, provided further, that Securities owned by the Company or
any other obligor upon the Securities or any Affiliate of the
Company or such other obligor, shall be disregarded and deemed
not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so
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disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate
of the Company or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay
the principal of (and premium, if any) or interest on any Securities
on behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision
thereof.
"Place of Payment," when used with respect to the Securities of
any series, means the place or places where the principal of (and
premium, if any) and interest on the Securities of that series are
payable as specified as provided pursuant to Section 301.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306
in exchange for or in lieu of a lost, destroyed, mutilated or stolen
Security or a Security to which a mutilated, destroyed, lost or stolen
coupon appertains shall be deemed to evidence the same debt as the
lost, destroyed, mutilated or stolen Security or the Security to which
a mutilated, destroyed, lost or stolen coupon appertains.
"Redemption Date" when used with respect to any Security to be
redeemed means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price" when used with respect to any Security to be
redeemed means the price at which it is to be redeemed as determined
pursuant to the provisions of this Indenture.
"Registered Security" means any Security established pursuant to
Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on a Registered
Security on any Interest Payment Date means the date, if any,
specified in such Security as the "Regular Record Date."
"Responsible Officer" when used with respect to the Trustee means
any officer of the Trustee in its Corporate Trust Office and also
means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
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"Rights" has the meaning specified in Section 1514.
"Rights Agreement" means the Rights Agreement dated as of May 29,
1986, as amended February 23, 1989, between the Company and Harris
Trust and Savings Bank, as Rights Agent.
"Security" or "Securities" means any Security or Securities, as
the case may be, authenticated and delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" means Indebtedness of the Company, either
outstanding as of the date of this Indenture or issued subsequent to
the date of this Indenture, that by its terms is not subordinated in
right of payment to any unsecured Indebtedness of the Company or is
pari passu with subordinated Indebtedness of any series of the
Company.
"Special Record Date" for the payment of any Defaulted Interest
on the Registered Securities of any series means a date fixed by the
Trustee pursuant to Section 307.
"Stated Maturity" when used with respect to any Security or any
installment of principal thereof or interest thereon means the date
specified in such Security or a coupon representing such installment
of interest as the fixed date on which the principal of such Security
or such installment of principal or interest is due and payable.
"Subsidiary" means any corporation of which at the time of
determination the Company and/or one or more Subsidiaries owns or
controls directly or indirectly more than 50 percent of the shares of
Voting Stock.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have
become such with respect to one or more series of Securities pursuant
to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" shall
mean each such Person and as used with respect to the Securities of
any series shall mean the Trustee with respect to the Securities of
that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as
provided in Section 905.
"United States" means the United States of America (including the
States and the District of Columbia), its territories and possessions
and other areas subject to its jurisdiction.
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"U.S. Depository" or "Depository" means, with respect to the
Securities of any series issuable or issued in whole or in part in the
form of one or more global Securities, the Person designated as U.S.
Depository by the Company pursuant to Section 301, which must be a
clearing agency registered under the Securities Exchange Act of 1934,
as amended, and, if so provided pursuant to Section 301 with respect
to the Securities of any series, any successor to such Person. If at
any time there is more than one such Person, "U.S. Depository" shall
mean, with respect to any series of Securities, the qualifying entity
which has been appointed with respect to the Securities of that
series.
"U.S. Government Obligations" means direct obligations of the
United States for the payment of which its full faith and credit is
pledged, or obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States and the
payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States which, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall
also include a depository receipt issued by a bank (as defined in
Section 3(a) (2) of the Securities Act of 1933, as amended) as
custodian with respect to any such U.S. Government Obligations or a
specific payment of principal of or interest on any such U.S.
Government Obligations held by such custodian for the account of the
holder of such depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from
the amount payable to the holder of such depository receipt from any
amount received by the custodian in respect of the U.S. Government
Obligations or the specific payment of principal of or interest on the
U.S. Government Obligations evidenced by such depository receipt.
"Vice President" when used with respect to the Company shall mean
any Vice President of the Company whether or not designated by a
number or a word or words added before or after the title "Vice
President."
"Voting Stock" means stock of the class or classes having general
voting power under ordinary circumstances to elect at least a majority
of the board of directors, managers or trustees of such corporation
provided that, for the purposes hereof, stock which carries only the
right to vote conditionally on the happening of an event shall not be
considered voting stock whether or not such event shall have happened.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company
shall furnish to the Trustee 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
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the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this
Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than
certificates provided pursuant to Section 704(4)) shall include:
(1) a statement that each individual signing such
certificate or opinion has read such condition or covenant and
the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such condition or covenant has been complied with;
and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the
opinion of, only one such Person, or that they be so certified or
covered by only one document, but one such Person may certify or give
an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give
an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows,
or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the matters
upon which his certificate or opinion is based are erroneous. Any
such certificate or Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that
the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are erroneous.
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Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions
or other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given
or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in
person or by agent duly appointed in writing. Except as herein
otherwise expressly provided, such action shall become effective when
such instrument or instruments or record or both are delivered to the
Trustee and, where it is hereby expressly required, to the Company.
Such instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Holders signing such instrument or instruments
and so voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing as such agent, or of the holding
by any Person of a Security, shall be sufficient for any purpose of
this Indenture and (subject to Section 601) conclusive in favor of the
Trustee and the Company and any agent of the Trustee or the Company,
if made in the manner provided in this Section 104.
Without limiting the generality of this Section 104, unless
otherwise established in or pursuant to a Board Resolution or set
forth or determined in an Officers' Certificate, or established in one
or more indentures supplemental hereto, pursuant to Section 301, a
Holder, including a U.S. Depository that is a Holder of a global
Security, may make, give or take, by a proxy, or proxies, duly
appointed in writing, any request, demand, authorization, direction,
notice, consent, waiver or other action provided in this Indenture to
be made, given or taken by Holders, and a U.S. Depository that is a
Holder of a global Security may provide its proxy or proxies to the
beneficial owners of interests in any such global Security through
such U.S. Depository's standing instructions and customary practices.
The Trustee shall fix a record date for the purpose of
determining the Persons who are beneficial owners of interest in any
permanent global Security held by a U.S. Depository entitled under the
procedures of such U.S. Depository to make, give or take, by a proxy
or proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action
provided in this Indenture to be made, given or taken by Holders. If
such a record date is fixed, the Holders on such record date or their
duly appointed proxy or proxies, and only such Persons, shall be
entitled to make, give or take such request, demand, authorization,
direction, notice, consent, waiver or other action, whether or not
such Holders remain Holders after such record date. No such request,
demand, authorization, direction, notice, consent, waiver or other
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action shall be valid or effective if made, given or taken more than
90 days after such record date.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the
Trustee deems sufficient and in accordance with such reasonable rules
as the Trustee may determine; and the Trustee may in any instance
require further proof with respect to any of the matters referred to
in this Section 104.
(c) The ownership of Registered Securities and the principal
amount and serial numbers of Registered Securities held by any Person,
and the date of holding the same, shall be proved by the Security
Register.
(d) The principal amount and serial numbers of Bearer Securities
held by any Person, and the date of holding the same, may be proved by
the production of such Bearer Securities or by a certificate executed,
as depositary, by any trust company, bank, banker or other depositary
reasonably acceptable to the Company, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing
that at the date therein mentioned such Person had on deposit with
such depositary, or exhibited to it, the Bearer Securities therein
described; or such facts may be proved by the certificate or affidavit
of the Person holding such Bearer Securities, if such certificate or
affidavit is deemed by the Trustee to the satisfactory. The Trustee
and the Company may assume that such ownership of any Bearer Security
continues until (1) another certificate or affidavit bearing a later
date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other Person
or (3) such Bearer Security is surrendered in exchange for a
Registered Security, or (4) such Bearer Security is no longer
Outstanding. The principal amount and serial numbers of Bearer
Securities held by the Person so executing such instrument or writing
and the date of holding the same may also be proved in any other
manner which the Trustee deems sufficient.
(e) If the Company shall solicit from the Holders of any
Registered Securities any request, demand, authorization, direction,
notice, consent, waiver or other Act, the Company may, at its option,
by Board Resolution, fix in advance a record date for the
determination of Holders of Registered Securities entitled to give
such request, demand, authorization, direction, notice, consent,
waiver or other Act, but the Company shall have no obligation to do
so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be
given before or after such record date, but only the Holders of
Registered Securities of record at the close of business on such
record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other
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Act, and for that purpose the Outstanding Securities shall be computed
as of such record date; provided that no such authorization, agreement
or consent by the Holders of Registered Securities on such record date
shall be deemed effective unless such authorization, agreement or
consent shall be given no later than six months after the record date
fixed pursuant to the provisions of this Section 104.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Security shall
bind every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done or
suffered to be done by the Trustee, any Security Registrar, any Paying
Agent or the Company in reliance thereon, whether or not notation of
such action is made upon such Security.
SECTION 105. Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished
or filed in writing to or with the Trustee at its Corporate Trust
Office, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to the attention of its
Treasurer at the address of its principal office specified in the
first paragraph of this instrument or at any other address
previously furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein or in the form of
Securities of any particular series pursuant to the provisions of this
Indenture, where this Indenture provides for notice to Holders of
Securities of any event,
(1) such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed, first-class
postage prepaid, to each Holder of a Registered Security affected
by such event, at his address as it appears in the Security
Register, not later than the latest date, and not earlier than
the earliest date, prescribed for the giving of such Notice; and
(2) such notice shall be sufficiently given to Holders of
Bearer Securities, if any, if published in an Authorized
Newspaper in The City of New York and, if the Securities of such
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series are then listed on any stock exchange outside the United
States, in an Authorized Newspaper in such city as the Company
shall advise the Trustee that such stock exchange so requires, on
a Business Day at least twice, the first such publication to be
not earlier than the earliest date and not later than the latest
date prescribed for the giving of such notice.
In any case where notice to Holders of Registered Securities is
given by mail, neither the failure to mail such notice, nor any defect
in any notice so mailed, to any particular Holder of a Registered
Security shall affect the sufficiency of such notice with respect to
other Holders of Registered Securities or the sufficiency of any
notice to Holders of Bearer Securities given as provided herein. Any
notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given or provided. In the
case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose
hereunder.
In case by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any
other cause it shall be impracticable to publish any notice to Holders
of Bearer Securities as provided above, then such notification to
Holders of Bearer Securities as shall be given with the approval of
the Trustee shall constitute sufficient notice to such Holders for
every purpose hereunder. Neither failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any
defect in any notice so published, shall affect the sufficiency of any
notice mailed to Holders of Registered Securities as provided above.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders of Securities
shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance
upon such waiver.
SECTION 107. Language of Notices.
Any request, demand, authorization, direction, notice, consent,
election or waiver required or permitted under this Indenture shall be
in the English language, except that, if the Company so elects, any
published notice may be in an official language of the country of
publication.
SECTION 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this
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Indenture by any of the provisions of the Trust Indenture Act, such
required provisions shall control.
SECTION 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 111. Separability Clause.
In case any provision in this Indenture or in the Securities or
coupons shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 112. Benefits of Indenture.
Nothing in this Indenture or in the Securities or coupons,
express or implied, shall give to any Person, other than the parties
hereto, any Security Registrar, any Paying Agent and their successors
hereunder and the Holders of Securities or coupons, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
SECTION 113. Governing Law.
This Indenture and the Securities and coupons shall be governed
by and construed in accordance with the laws of the State of New York.
SECTION 114. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security shall not be a Business Day at any
Place of Payment, then (notwithstanding any other provision of this
Indenture or the Securities or coupons other than a provision in the
Securities which specifically states that such provision shall apply
in lieu of this Section 114) payment of interest or principal (and
premium, if any) need not be made at such Place of Payment on such
date, but may be made on the next succeeding Business Day at such
Place of Payment with the same force and effect as if made on the
Interest Payment Date or Redemption Date, or at the Stated Maturity,
and no interest shall accrue on the amount so payable for the period
from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be.
ARTICLE TWO
SECURITY FORMS
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SECTION 201. Forms Generally.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons, if any, and
temporary global Securities, if any, shall be in the form established
by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, shall have appropriate insertions, omissions,
substitutions and other variations as are required or permitted by
this Indenture or any indenture supplemental hereto and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistently herewith, be
determined by the officers of the Company executing such Securities,
as evidenced by their execution of such Securities.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, the Securities of each series
shall be issuable in registered form without coupons. If so provided
as contemplated by Section 301, the Securities of a series also shall
be issuable in bearer form, with or without interest coupons attached.
The definitive Securities and coupons shall be printed,
lithographed or engraved or produced by any combination of these
methods on a steel engraved border or steel engraved borders or may be
produced in any other manner, all as determined by the officers of the
Company executing such Securities, as evidenced by their execution of
such Securities or coupons.
SECTION 202. 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 therein
referred to in the within-mentioned Indenture.
[Trustee], as Trustee
By ________________________
Authorized Officer
SECTION 203. Securities in Global Form.
If Securities of a series are issuable in global form, any such
Security may provide that it shall represent the aggregate amount of
Outstanding Securities from time to time endorsed thereon and may also
provide that the aggregate amount of Outstanding Securities
represented thereby may from time to time be reduced to reflect
exchanges. Any endorsement of a Security in global form to reflect
the amount, or any increase or decrease in the amount or changes in
the rights of Holders of Outstanding Securities represented thereby
shall be made in such manner and by such Person or Persons as shall be
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specified therein. Any instructions by the Company with respect to a
Security in global form shall be in writing but need not comply with
Section 102.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited. The
Securities shall be subordinated in right of payment to the Senior
Indebtedness of the Company to the extent and in the manner set forth
in Article Thirteen (as the provisions of such Article may be revised
pursuant to Section 301(17)).
The Securities shall rank equally and pari passu and may be
issued in one or more series. There shall be established in or
pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental
hereto:
(1) the title of the Securities and the series in which such
Securities shall be included;
(2) any limit upon the aggregate principal amount of the
Securities of such title or the Securities of such series which may be
authenticated and delivered under this Indenture (except for
Securities authenticated and delivered upon registration or transfer
of, or in exchange for, or in lieu of, other Securities of the series
pursuant to Section 304, 305, 306, 906 or 1107);
(3) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or
both; any restrictions applicable to the offer, sale or delivery of
Bearer Securities and the terms upon which Bearer Securities of the
series may be exchanged for Registered Securities of the series and
vice versa; and whether any Securities of the series are to be
issuable initially in global form and, if so, (i) whether beneficial
owners of interests in any such global Security may exchange such
interest for Securities of such series and of like tenor of any
authorized form and denomination and the circumstances under which any
such exchanges may occur, if other than in the manner specified in
Section 305 and (ii) the name of the depository or the U.S.
Depository, as the case may be, with respect to any global Security;
(4) the date as of which any Bearer Securities of the series and
any temporary global Security representing Outstanding Securities of
the series shall be dated if other than the date of original issuance
of the first Security of the series to be issued;
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(5) if Securities of the series are to be issuable as Bearer
Securities, whether interest in respect of any portion of a temporary
Bearer Security in global form (representing all of the Outstanding
Bearer Securities of the series) payable in respect of an Interest
Payment Date prior to the exchange of such temporary Bearer Security
for definitive Securities of the series shall be paid to any clearing
organization with respect to the portion of such temporary Bearer
Security held for its account and, in such event, the terms and
conditions (including any certification requirements) upon which any
such interest payment received by a clearing organization will be
credited to the Persons entitled to interest payable on such Interest
Payment Date;
(6) the date or dates on which the principal of such Securities
is payable;
(7) the rate or rates at which such Securities shall bear
interest, if any, or method in which such rate or rates are
determined, the date or dates from which such interest shall accrue,
the Interest Payment Dates on which such interest shall be payable and
the Regular Record Date for the interest payable on Registered
Securities on any Interest Payment Date, and the basis upon which
interest shall be calculated if other than that of a 360-day year of
twelve 30-day months;
(8) the place or places, if any, in addition to or other than the
Borough of Manhattan, The City of New York and the City of Detroit,
Michigan, where the principal of (and premium, if any) and interest on
such Securities shall be payable;
(9) the period or periods within which, the price or prices at
which and the terms and conditions upon which such Securities may be
redeemed, in whole or in part, at the option of the Company;
(10) the obligation, if any, of the Company to redeem or purchase
such Securities pursuant to any sinking fund or at the option of a
Holder thereof and the period or periods within which, the price or
prices at which and the terms and conditions upon which such
Securities shall be redeemed or purchased, in whole or in part,
pursuant to such obligation, and any provisions for the remarketing of
such Securities;
(11) the denominations in which Registered Securities of the
series, if any, shall be issuable if other than denominations of
$1,000 and any integral multiple thereof, and the denominations in
which Bearer Securities of the series, if any, shall be issuable if
other than the denomination of $5,000;
(12) if other than the principal amount thereof, the portion of
the principal amount of such Securities which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to
Section 502;
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(13) if other than such coin or currency of the United States of
America as at the time of payment is legal tender for payment of
public or private debts, the coin or currency, including composite
currencies, in which payment of the principal of (and premium, if any)
or interest, if any, on such Securities shall be payable;
(14) if the principal of (and premium, if any) or interest, if
any, on such Securities are to be payable, at the election of the
Company or a Holder thereof, in a coin or currency, including
composite currencies, other than that in which the Securities are
stated to be payable, 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 premium, if
any) or interest, if any, on such Securities may be determined with
reference to an index, formula or other method based on a coin or
currency other than that in which the Securities are stated to be
payable, the manner in which such amounts shall be determined;
(16) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
then the form and terms of such certificates, documents or conditions;
(17) any provisions in modification of, in addition to or in lieu
of the provisions of Article Thirteen (or the definition of the term
"Senior Indebtedness" contained in Section 101 or any other term used
in such definition or in Article Thirteen) that shall be applicable to
the Securities of such series;
(18) any provisions in modification of, in addition to or in lieu
of the provisions of Article Fifteen for the conversion of Securities
of the series into or for another security or securities of the
Company, including the security or securities into which, the period
or periods within which, the price or prices, including any
adjustments thereto, at which and other terms and conditions upon
which any Securities of the series shall be converted;
(19) any additions to the covenants of the Company for the
benefit of the Holders of Securities of such series; and
(20) any other terms of such Securities (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and coupons appertaining to
Bearer Securities of such series, if any, shall be substantially
identical except as to denomination and the rate or rates of interest,
if any, and Stated Maturity, the date from which interest, if any,
shall accrue and except as may otherwise be provided in or pursuant to
such Board Resolution and set forth in such Officers' Certificate or
in any such indenture supplemental hereto. All Securities of any one
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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.
If any of the terms of the Securities of any series were
established by action taken pursuant to a Board Resolution, a copy of
an appropriate record of such action shall be certified by the
Secretary or an Assistant Secretary of the Company and delivered to
the Trustee at or prior to the delivery of the Officers' Certificate
setting forth the terms of such series.
SECTION 302. Denominations.
Unless other denominations and amounts may from time to time be
fixed by or pursuant to a Board Resolution, the Registered Securities
of each series, if any, shall be issuable in registered form without
coupons in denominations of $1,000 and any integral multiple thereof,
and the Bearer Securities of each series, if any, shall be issuable in
the denomination of $5,000, or in such other denominations and amounts
as may from time to time be fixed by or pursuant to a Board
Resolution.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, Vice Chairman of the Board, President, Vice
President serving as Chief Financial Officer or its Treasurer under
its corporate seal reproduced thereon and attested by its Secretary or
one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile. Coupons shall
bear the facsimile signature of the Treasurer or any Assistant
Treasurer of the Company.
Securities and coupons bearing the manual or facsimile signatures
of individuals who were at any time the proper officers of the Company
shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication
and delivery of such Securities or did not hold such offices at the
date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any
series, together with any coupons appertaining thereto, executed by
the Company to the Trustee for authentication, together with the Board
Resolution and Officers' Certificate or supplemental indenture with
respect to such Securities referred to in Section 301 and a Company
Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order and subject to the
provisions hereof shall authenticate and deliver such Securities. In
authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Section 601)
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shall be fully protected in relying upon, an Opinion of Counsel
stating, to the effect that
(a) the form and terms of such Securities and coupons, if
any, have been established in conformity with the provisions of
this Indenture;
(b) all necessary corporate action for the issuance and
delivery of such Securities together with the coupons, if any,
appertaining thereto, has been taken and that such Securities,
and coupons, when authenticated and delivered by the Trustee and
issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute legally
valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms, subject to
bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights
generally, and subject to general principles of equity
(regardless of whether enforcement is sought in a proceeding in
equity or at law); such Opinion of Counsel need express no
opinion as to the availability of equitable remedies; and
(c) as to such other matters as the Trustee may reasonably
request.
The Trustee shall not be required to authenticate such Securities
if the issue of such Securities pursuant to this Indenture will affect
the Trustee's own rights, duties or immunities under the Securities
and this Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee or if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken.
Each Registered Security shall be dated the date of its
authentication. Each Bearer Security and any temporary Bearer
Security in global form shall be dated as of the date specified as
contemplated by Section 301.
No Security or coupon appertaining thereto shall be entitled to
any benefit under this Indenture or be valid or obligatory for any
purpose, unless there appears on such Security a certificate of
authentication substantially in the form provided for in Section 202
or 614 executed by or on behalf of the Trustee by the manual signature
of one of its authorized officers, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that
such Security has been duly authenticated and delivered hereunder.
Except as permitted by Section 305 or 306, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant
coupons for interest then matured have been detached and cancelled.
SECTION 304. Temporary Securities.
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Pending the preparation of definitive Securities of any series,
the Company may execute and deliver to the Trustee, and upon Company
Order the Trustee shall authenticate and deliver, in the manner
provided in Section 303, temporary Securities of such series which are
printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor
of the definitive Securities in lieu of which they are issued, in
registered form, or, if authorized, in bearer form with one or more
coupons or without coupons and with such appropriate insertions,
omissions, substitutions and other variations as the officers of the
Company executing such Securities may determine, as evidenced by their
execution of such Securities. In the case of Bearer Securities of any
series, such temporary Securities may be in global form, representing
all of the Outstanding Bearer Securities of such series.
Except in the case of temporary Securities in global form, which
shall be exchanged in accordance with the provisions thereof, if
temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities,
the temporary Securities of such series shall be exchangeable upon
request for definitive Securities of such series containing identical
terms and provisions upon surrender of the temporary Securities of
such series at an office or agency of the Company maintained for such
purpose pursuant to Section 1002, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of
any series (accompanied by any unmatured coupons appertaining
thereto), the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a like principal amount of definitive
Securities of authorized denominations of the same series containing
identical terms and provisions; provided, however, that no definitive
Bearer Security, except as provided pursuant to Section 301, shall be
delivered in exchange for a temporary Registered Security; and
provided, further, that a definitive Bearer Security shall be
delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth therein. Unless otherwise
specified as contemplated by Section 301 with respect to a temporary
global Security, until so exchanged the temporary Securities of any
series shall in all respects be entitled to the same benefits under
this Indenture as definitive Securities of such series.
SECTION 305. Registration, Transfer and Exchange.
With respect to the Registered Securities of each series, if any,
the Company shall cause to be kept, at an office or agency of the
Company maintained pursuant to Section 1002, a register (herein
sometimes referred to as the "Security Register") in which, subject to
such reasonable regulations as it may prescribe, the Company shall
provide for the registration of the Registered Securities of each
series and of transfers of the Registered Securities of each series.
In the event that the Trustee shall not be the Security Registrar, it
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shall have the right to examine the Security Register at all
reasonable times.
Upon surrender for registration of transfer of any Registered
Security of any series at any office or agency of the Company
maintained for that series pursuant to Section 1002, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name
of the designated transferee or transferees, one or more new
Registered Securities of the same series of any authorized
denominations, of a like aggregate principal amount bearing a number
not contemporaneously outstanding and containing identical terms and
provisions.
At the option of the Holder, Registered Securities of any series
may be exchanged for other Registered Securities of the same series
containing identical terms and provisions, in any authorized
denominations, and of a like aggregate principal amount, upon
surrender of the Securities to be exchanged at any such office or
agency. Whenever any Registered Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities which the Holder
making the exchange is entitled to receive.
If so provided with respect to Securities of a series, at the
option of the Holder, Bearer Securities of any such series may be
exchanged for Registered Securities of the same series containing
identical terms and provisions, of any authorized denominations and
aggregate principal amount, upon surrender of the Bearer Securities to
be exchanged at any such office or agency, with all unmatured coupons
and all matured coupons in default thereto appertaining. If the
Holder of a Bearer Security is unable to produce any such unmatured
coupon or coupons or matured coupon or coupons in default, such
exchange may be effected if the Bearer Securities are accompanied by
payment in funds acceptable to the Company and the Trustee in an
amount equal to the face amount of such missing coupon or coupons, or
the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there is furnished to them such security or
indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security shall
surrender to any Paying Agent any such missing coupon in respect of
which such a payment shall have been made, such Holder shall be
entitled to receive the amount of such payment; provided, however,
that, except as otherwise provided in Section 1002, interest
represented by coupons shall be payable only upon presentation and
surrender of those coupons at an office or agency located outside the
United States. Notwithstanding the foregoing, in case a Bearer
Security of any series is surrendered at any such office or agency in
exchange for a Registered Security of the same series and like tenor
after the close of business at such office or agency on (i) any
Regular Record Date and before the opening of business at such office
or agency on the relevant Interest Payment Date, or (ii) any Special
Record Date and before the opening of business at such office or
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agency on the related date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the coupon relating to
such Interest Payment Date or proposed date of payment, as the case
may be (or, if such coupon is so surrendered with such Bearer
Security, such coupon shall be returned to the person so surrendering
the Bearer Security), and interest or Defaulted Interest, as the case
may be, will not be payable on such Interest Payment Date or proposed
date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but will be
payable only to the Holder of such coupon when due in accordance with
the provisions of this Indenture.
If expressly provided with respect to the Securities of any
series, at the option of the Holder, Registered Securities of such
series may be exchanged for Bearer Securities upon such terms and
conditions as may be provided with respect to such series.
Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver,
the Securities which the Holder making the exchange is entitled to
receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any global Security shall be exchangeable
only if (i) the Depository is at any time unwilling or unable to
continue as Depository and a successor depository is not appointed by
the Company within 60 days, (ii) the Company executes and delivers to
the Trustee a Company Order to the effect that such global Security
shall be so exchangeable, or (iii) an Event of Default has occurred
and is continuing with respect to the Securities. If the beneficial
owners of interests in a global Security are entitled to exchange such
interests for Securities of such series and of like tenor and
principal amount of any authorized form and denomination, as specified
as contemplated by Section 301, then without unnecessary delay but in
any event not later than the earliest date on which such interests may
be so exchanged, the Company shall deliver to the Trustee definitive
Securities of that series in aggregate principal amount equal to the
principal amount of such global Security, executed by the Company. On
or after the earliest date on which such Interests may be so
exchanged, such global Securities shall be surrendered from time to
time by the U.S. Depository or such other depository as shall be
specified in the Company Order with respect thereto, and in accordance
with instructions given to the Trustee and the U.S. Depository or such
depository, as the case may be (which instructions shall be in writing
but need not comply with Section 102 or be accompanied by an Opinion
of Counsel), as shall be specified in the Company Order with respect
thereto to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or in part, for definitive Securities of the same
series without charge. The Trustee shall authenticate and make
available for delivery, in exchange for each portion of such
surrendered global Security, a like aggregate principal amount of
definitive Securities of the same series of authorized denominations
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and of like tenor as the portion of such global Security to be
exchanged which (unless the Securities of the series are not issuable
both as Bearer Securities and as Registered Securities, in which case
the definitive Securities exchanged for the global Security shall be
issuable only in the form in which the Securities are issuable, as
specified as contemplated by Section 301) shall be in the form of
Bearer Securities or Registered Securities, or any combination
thereof, as shall be specified by the beneficial owner thereof;
provided, however, that no such exchanges may occur during a period
beginning at the opening of business 15 days before any selection of
Securities of that series to be redeemed and ending on the relevant
Redemption Date; and provided, further, that (unless other-wise
specified as contemplated by Section 301) no Bearer Security delivered
in exchange for a portion of a global Security shall be mailed or
otherwise delivered to any location in the United States. Promptly
following any such exchange in part, such global Security shall be
returned by the Trustee to such depository or the U.S. Depository, as
the case may be, or such other depository or U.S. Depository referred
to above in accordance with the instructions of the Company referred
to above. If a Registered Security is issued in exchange for any
portion of a global Security after the close of business at the office
or agency where such exchange occurs on (i) any Regular Record Date
and before the opening of business at such office or agency on the
relevant Interest Payment Date, or (ii) any Special Record Date and
before the opening of business at such office or agency on the related
proposed date for payment of interest or Defaulted Interest, as the
case may be, interest will not be payable on such Interest Payment
Date or proposed date for payment, as the case may be, in respect of
such Registered Security, but will be payable on such Interest Payment
Date or proposed date for payment, as the case may be, only to the
Person to whom interest in respect of such portion of such global
Security is payable in accordance with the provisions of this
Indenture.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of
transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange or redemption shall (if so
required by the Company or the Security Registrar for such series of
Security presented) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and such
Security Registrar duly executed by the Holder thereof or his attorney
duly authorized in writing.
No service charge shall be made for any registration of transfer
or exchange, or redemption of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of
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transfer or exchange of Securities, other than exchanges pursuant to
Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange any Securities of any series during a period
beginning at the opening of business 15 days before the day of the
selection for redemption of Securities of that series under Section
1103 and ending at the close of business on the day of such selection,
or (ii) to register the transfer of or exchange any Registered
Security so selected for redemption in whole or in part, except in the
case of any Security to be redeemed in part, the portion thereof not
to be redeemed, or (iii) to exchange any Bearer Security so selected
for redemption except, to the extent provided with respect to
Securities of a series, that such a Bearer Security may be exchanged
for a Registered Security of that series, provided that such
Registered Security shall be immediately surrendered for redemption
with written instruction for payment consistent with the provisions of
this Indenture.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series containing identical terms
and of like principal amount and bearing a number not
contemporaneously outstanding, with coupons corresponding to the
coupons, if any, appertaining to the surrendered Security.
Upon delivery to the Company and to the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security
or coupon, and (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or the Trustee that such
Security or coupon has been acquired by a bona fide purchaser, the
Company shall execute and upon its request the Trustee shall
authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Security or in exchange for the
Security to which a destroyed, lost or stolen coupon appertains with
all appurtenant coupons not destroyed, lost or stolen, a new Security
of the same series containing identical terms and of like principal
amount and bearing a number not contemporaneously outstanding, with
coupons corresponding to the coupons, if any, appertaining to such
destroyed, lost or stolen Security or to the Security to which such
destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or
coupon has become or is about to become due and payable, the Company
in its discretion may, instead of issuing a new Security, pay such
Security or coupon; provided, however, that payment of principal of
(and premium, if any) and any interest on Bearer Securities shall,
except as otherwise provided in Section 1002, be payable only at an
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office or agency located outside the United States and, unless
otherwise specified as contemplated by Section 301, any interest on
Bearer Securities shall be payable only upon presentation and
surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section 306, the
Company may require the payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation thereto
and any other expenses (including the fees and expenses of the
Trustee) connected therewith.
Every new Security of any series, with its coupons, if any,
issued pursuant to this Section 306 in lieu of any destroyed, lost or
stolen Security and its coupons, if any, or the destroyed, lost or
stolen coupon shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series and
their coupons, if any, duly issued hereunder.
The provisions of this Section 306 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall, if so
provided in such Security, be paid, in the case of Registered
Securities, to the Person in whose name that Security (or one or more
Predecessor Securities) is registered as of the close of business on
the Regular Record Date for such interest and, in the case of Bearer
Securities, upon surrender of the coupon appertaining thereto in
respect of the interest due on such Interest Payment Date. In case a
Bearer Security of any series is surrendered in exchange for a
Registered Security of such series after the close of business (at an
office or agency in a Place of Payment for such series) on any Regular
Record Date and before the opening of business (at such office or
agency) on the next succeeding Interest Payment Date, such Bearer
Security shall be surrendered without the coupon relating to such
Interest Payment Date and interest will not be payable on such
Interest Payment Date in respect of the Registered Security issued in
exchange of such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of
this Indenture.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any
Interest Payment Date for such Registered Security (herein called
"Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been
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such Holder; and such Defaulted Interest may be paid by the Company,
at its election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities
affected (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid
on each such Registered Security and the date of the proposed
payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior
to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and
not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at
the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each
Holder of such Registered Securities at his address as it appears
in the Security Register not less than 10 days prior to such
Special Record Date. The Trustee may, in its discretion, in the
name and at the expense of the Company, cause a similar notice to
be published at least once in a newspaper, customarily published
in the English language on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York,
but such publication shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special
Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names
such Registered Securities (or their respective Predecessor
Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to
the following Clause (2).
(2) The Company may make payment of any Defaulted Interest
in any other lawful manner not inconsistent with the requirements
of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this Clause, such payment shall be
deemed practicable by the Trustee..
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At the option of the Company, interest on Registered Securities
of any series that bear interest may be paid by mailing a check to the
address of the person entitled thereto as such address shall appear in
the Security Register.
In the case of any Security that is converted after the close of
business on any Regular Record Date and on or prior to the next
succeeding Interest Payment Date (other than any Security whose
Maturity is prior to such Interest Payment Date), interest whose
Stated Maturity is on such Interest Payment Date shall be payable on
such Interest Payment Date notwithstanding such conversion (and
consequent cancellation pursuant to Section 309) or, subject to the
proviso below and the provisions of Section 1105, any call of such
Security for redemption, and such interest (whether or not punctually
paid or duly provided for) shall be paid to the Person in whose name
the Security (or one or more Predecessor Securities) is registered at
the close of business on such Regular Record Date; provided, however,
that Securities so surrendered for conversion shall (except in the
case of Securities or portions thereof which have been called for
redemption on a Redemption Date that is prior to such Interest Payment
Date) be accompanied by payment in New York Clearing House funds or
other funds acceptable to the Company of an amount equal to the
interest payable on such Interest Payment Date on the principal amount
being surrendered for conversion. Except as otherwise expressly
provided in the immediately preceding sentence, in the case of any
Security which is converted, interest whose Stated Maturity is after
the date of conversion of such Security shall not be payable.
Subject to the foregoing provisions of this Section 307 and
Section 305, each Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any other
Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for
registration of transfer, the Company, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose name such
Registered Security is registered as the owner of such Registered
Security for the purpose of receiving payment of principal of (and
premium, if any), and (subject to Sections 305 and 307) interest on
such Registered Security and for all other purposes whatsoever,
whether or not such Registered Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall
be affected by notice to the contrary.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of
any coupon as the absolute owner of such Security or coupon for the
purpose of receiving payment thereof or on account thereof and for all
other purposes whatsoever, whether or not such Security or coupon be
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overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.
SECTION 309. Cancellation.
All Securities and coupons surrendered for payment, redemption,
conversion, registration of transfer or exchange or for credit against
any sinking fund payment shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee, and any such Securities
and coupons and Securities and coupons surrendered directly to the
Trustee for any such purpose shall be promptly cancelled by it. The
Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the
Company may have acquired in any manner whatsoever, and all Securities
so delivered shall be promptly canceled by the Trustee. No Securities
shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section 309, except as expressly
permitted by this Indenture. All cancelled Securities and coupons
held by the Trustee shall be destroyed by it unless by a Company Order
the Company directs their return to it.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series
shall be computed on the basis of a 360-day year of twelve 30-day
months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
Upon the direction of the Company by a Company Order, this
Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities
herein expressly provided for), and the Trustee, on demand of and at
the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and
delivered and all coupons appertaining thereto (other than
(i) coupons appertaining to Bearer Securities surrendered
for exchange for Registered Securities and maturing after
such exchange, whose surrender is not required or has been
waived as provided in Section 305, (ii) Securities and
coupons which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 306, (iii)
coupons appertaining to Securities called for redemption and
maturing after the relevant Redemption Date, whose surrender
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has been waived as provided in Section 1107, and (iv)
Securities and coupons for whose payment money has
theretofore been deposited in trust or segregated and held
in trust by the Company and thereafter repaid to the Company
or discharged from such trust, as provided in Section 1003)
have been delivered to the Trustee for cancellation; or
(B) all such Securities and, in the case of (i) or
(ii) below, any such coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Company,
are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and
at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above,
has deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose, lawful money of the
United States, U.S. Government Obligations which through the
payment of interest and principal in respect thereof in
accordance with their terms will provide not later than the
opening of business on the due dates of any payment of
principal (and premium, if any) and interest, or a
combination thereof, in an amount sufficient to pay and
discharge the entire indebtedness on such Securities and
coupons not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and
interest, to the date of such deposit (in the case of
Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied
with.
In the event there are Securities of two or more series
hereunder, the Trustee shall be required to execute an instrument
acknowledging satisfaction and discharge of this Indenture only if
requested to do so with respect to Securities of all series as to
which it is Trustee and if the other conditions thereto are met. In
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the event there are two or more Trustees hereunder, then the
effectiveness of any such instrument shall be conditioned upon receipt
of such instruments from all Trustees hereunder.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 607 and,
if money shall have been deposited with the Trustee pursuant to
subclause (B) of Clause (1) of this Section 401, the obligations of
the Trustee under Section 402 and the last paragraph of Section 1003
shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of Section 1302, Section 1303 and the
last paragraph of Section 1003, all money deposited with the Trustee
pursuant to Section 401 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the coupons and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee
may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and any interest for whose payment such money has
been deposited with the Trustee; but such money need not be segregated
from other funds except to the extent required by law.
SECTION 403. Satisfaction, Discharge and Defeasance of Securities of
Any Series.
The Company shall be deemed to have paid and discharged the
entire indebtedness on all the Outstanding Securities of any series
and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of such
indebtedness, when
(1) either
(A) with respect to all Outstanding Securities of such
series,
(i) the Company has deposited or caused to be
deposited with the Trustee, as trust funds in trust for
such purpose, an amount sufficient to pay and discharge
the entire indebtedness on all Outstanding Securities
of such series for principal (and premium, if any) and
interest to the Stated Maturity or any Redemption Date
as contemplated by the penultimate paragraph of this
Section 403, as the case may be; or
(ii) with respect to any series of Securities
which are denominated in Dollars, the Company has
deposited or caused to be deposited with the Trustee,
as obligations in trust for such purpose, such amount
of U.S. Government Obligations as will, together with
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the income to accrue thereon without consideration of
any reinvestment thereof, be sufficient to pay and
discharge the entire indebtedness on all Outstanding
Securities of such series for principal (and premium,
if any) and interest to the Stated Maturity or any
Redemption Date as contemplated by the penultimate
paragraph of this Section 403; or
(B) the Company has properly fulfilled such other
means of satisfaction and discharge as is specified, as
contemplated by Section 301, to be applicable to the
Securities of such series; and
(2) the Company has paid or caused to be paid all other sums
payable hereunder with respect to the Outstanding Securities of
such series; and
(3) the Company has delivered to the Trustee a certificate
signed by a nationally recognized firm of independent public
accountants (who may be the independent public accountants
regularly retained by the Company or who may be other independent
public accountants) certifying as to the sufficiency of the
amounts deposited pursuant to Subsections (A) (i) or (ii) of this
Section 403 for payment of the principal (and premium, if any)
and interest on the dates such payments are due, an Officers'
Certificate and an Opinion of Counsel, each such Certificate and
Opinion stating that all conditions precedent herein provided for
relating to the satisfaction and discharge of the entire
indebtedness on all Outstanding Securities of any such series
have been complied with; and
(4) the Company has delivered to the Trustee
(A) an opinion of independent counsel that the holders
of the Securities of such series will have no federal income
tax consequences as a result of such deposit and
termination; and
(B) if the Securities of such series are then listed
on the New York Stock Exchange, an opinion of counsel that
the Securities of such series will not be delisted as a
result of the exercise of this option.
Any deposits with the Trustee referred to in Section 403(1) (A)
above shall be irrevocable and shall be made under the terms of an
escrow trust agreement in form and substance satisfactory to the
Trustee. If any Outstanding Securities of such series are to be
redeemed prior to their Stated Maturity, whether pursuant to any
optional redemption provisions or in accordance with any mandatory
sinking fund requirement, the Company shall make such arrangements as
are satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of the Company.
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Upon the satisfaction of the conditions set forth in this Section
403 with respect to all the Outstanding Securities of any series, the
terms and conditions of such series, including the terms and
conditions with respect thereto set forth in this Indenture, other
than the provisions of Sections 305, 306, and 1002 and other than the
right of Holders of Securities of such series to receive, from the
trust fund described in this Section 403, payment of the principal
(and premium, if any) of, the interest on such Securities when such
payments are due, and the rights, powers, duties and immunities of the
Trustee hereunder, shall no longer be binding upon, or applicable to,
the Company; provided that the Company shall not be discharged from
any payment obligations in respect of Securities of such series which
are deemed not be Outstanding under clause (iii) of the definition
thereof if such obligations continue to be valid obligations of the
Company under applicable law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default," wherever used herein with respect to
Securities of any series, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be
voluntary or be effected by operation of law pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) A default in the payment of any interest upon any
Security of that series when such interest becomes due and
payable, and continuance of such default for a period of 30 days;
or
(2) default in the payment of the principal of (and
premium, if any, on) any Security of that series when it becomes
due and payable at Maturity; or
(3) default in the deposit of any sinking fund payment,
when and as due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant
or warranty of the Company in this Indenture or as specified in
relation to the Securities of such series pursuant to Section 301
(other than a covenant or warranty a default in whose performance
or whose breach is elsewhere in this Section 501 specifically
dealt with or which has been expressly included in this Indenture
solely for the benefit of series of Securities other than that
series), and continuance of such default or breach for a period
of 90 days after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25 percent in principal amount
of the Outstanding Securities of that series a written notice
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specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default"
hereinunder; or
(5) a default in the payment of principal of or interest on
any other obligation for borrowed money of the Company (including
a default under any other series of Securities) beyond any period
of grace with respect thereto if (i) the aggregate principal
amount of any such obligation is in excess of $10,000,000 (or in
the case of any such obligation in which the amount payable upon
acceleration is less than the amount payable at stated maturity,
the amount then payable upon acceleration is in excess of
$10,000,000), (ii) the default in such payment is not being
contested by the Company in good faith and by appropriate
proceedings, and (iii) the default in such payment has not been
cured or waived prior to the notice in writing to the Company
given pursuant to Section 502; provided, however, that subject to
the provisions of Section 601, the Trustee shall not be charged
with knowledge of any such event of default unless either (i) a
Responsible Officer of the Trustee assigned to its corporate
trust department shall, as such officer, have actual knowledge of
such default or (ii) written notice thereof shall have been given
to the Trustee by the Company, by the holder or an agent of the
holder of any such indebtedness, by the trustee then acting under
any indenture or other instrument under which such default shall
have occurred, or by the Holders of not less than 25 percent in
aggregate principal amount of Outstanding Securities of any
series; or
(6) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or (B) a decree or order adjudging the Company a
bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of
or in respect of the Company under any applicable Federal or
State law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the
Company or of 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 120 consecutive
days; or
(7) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other
case or proceeding to be adjudicated a bankrupt or insolvent, or
the consent by it to the entry of a decree or order for relief in
respect of the Company in an involuntary case or proceeding under
any applicable Federal or State bankruptcy, insolvency,
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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 Company or of any substantial part of its property, or the
making of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action
by the Company in furtherance of any such action; or
(8) any other Event of Default provided with respect to
Securities of that series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default specified in Section 501(6) or (7) occurs,
all unpaid principal of, premium, if any, and accrued interest on the
Securities of any series at the time Outstanding shall ipso facto
become and shall be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder, and
if any other Event of Default with respect to Securities of any series
occurs and is continuing, then the Trustee or the Holders of not less
than 25 percent in principal amount of the Outstanding Securities of
that series may declare the principal of all the Securities of that
series, or such lesser amount as may be provided for in the Securities
of that series, to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by the Holders),
and upon any such declaration such principal or such lesser amount
shall become immediately due and payable.
At any time after such a declaration of acceleration with respect
to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee
as hereinafter in this Article provided, the Holders of a majority in
principal amount of the Outstanding Securities of that series, by
written notice to the Company and the Trustee, may rescind and annul
such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue installments of interest on all
Securities of that series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise
than by such declaration of acceleration and interest
thereon at the rate or rates borne by or provided for in
such Securities,
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(C) to the extent that payment of such interest is
lawful, interest upon overdue installments of interest at
the rate or rates borne by or provided for in such
Securities, and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities
of that series which has become due solely by such declaration of
acceleration, have been cured or waived as provided in Section
513.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of
interest on any Security when such interest shall have become due
and payable and such default continues for a period of 30 days,
or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at its Maturity,
the Company will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities and coupons, the whole
amount then due and payable on such Securities and coupons for
principal (and premium, if any) and interest, with interest upon the
overdue principal (and premium, if any) and, to the extent that
payment of such interest shall be legally enforceable, upon overdue
installments of interest, at the rate or rates borne by or provided
for in such Securities, and, in addition thereto, such further amount
as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express
trust, may institute a judicial proceeding for the collection of the
sums so due and unpaid, and may prosecute such proceeding to judgment
or final decree, and may enforce the same against the Company or any
other obligor upon such Securities and collect the moneys adjudged or
decreed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon such Securities,
wherever situated.
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If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of
Securities of such series and any related coupons by such appropriate
judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid
of the exercise of any power granted herein, or to enforce any other
proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company or
any other obligor upon the Securities or the property of the Company
or of such other obligor or their creditors, the Trustee (irrespective
of whether the principal of the Securities shall then be due and
payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the
Company for the payment of overdue principal or interest) shall be
entitled and empowered, by intervention in such proceeding or
otherwise,
(i) to file and prove a claim for the whole amount or such
lesser amount as may be provided for in the Securities of that
series, of principal (and premium, if any) and interest owing and
unpaid in respect of the Securities and to file such other papers
or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents or counsel) and of the Holders allowed in
such judicial proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the
same;
and any receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby
authorized by each Holder of Securities and coupons to make such
payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders of
Securities and coupons, to pay to the Trustee any amount due to it for
the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel and any other amounts due the
Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder
of a Security or coupon any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or coupons or the
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rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder of a Security or coupon in any such
proceeding.
SECTION 505. Trustee May Enforce Claims without Possession of
Securities or Coupons.
All rights of action and claims under this Indenture or any of
the Securities or coupons may be prosecuted and enforced by the
Trustee without the possession of any of the Securities or coupons or
the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery or judgment
shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel, be for the ratable benefit of the Holders of the Securities
and coupons in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Subject to the provisions of Section 1302 and Section 1303, any
money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of
principal (and premium, if any) or interest, upon presentation of the
Securities or coupons, or both, as the case may be, and the notation
thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amount due the Trustee under
Section 607;
SECOND: To the payment of the amounts then due and unpaid upon
the Securities and coupons for principal (and premium, if any) and
interest payable in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of
any kind, according to the aggregate amounts due and payable on such
Securities and coupons for principal (and premium, if any) and
interest, respectively;
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series or any related coupons
shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless
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(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25 percent in aggregate
principal amount of the Outstanding Securities of that series
shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities,
to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute
any such proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the
Holders of a majority in aggregate principal amount of the
Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders
shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or
prejudice the rights of any other such Holders or Holders of any other
series, or to obtain or to seek to obtain priority or preference over
any other Holders or to enforce any right under this Indenture, except
in the manner herein provided and for the equal and ratable benefit of
all such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Subject to the provisions of Article Thirteen hereof, but
notwithstanding any other provision in this Indenture, the Holder of
any Security or coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if
any) and (subject to Sections 305 and 307) interest on such Security
or payment of such coupon on the respective Stated Maturity or
Maturities expressed in such Security or coupon (or, in the case of
redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such right shall not be impaired
without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or coupon has
instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for
any reason, or has been determined adversely to the Trustee or to such
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Holder, then and in every such case the Company, the Trustee and the
Holders of Securities and coupons shall, subject to any determination
in such proceeding, be restored severally and respectively to their
former positions hereunder, and thereafter all rights and remedies of
the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons
in the last paragraph of Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders of
Securities or coupons is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Security or coupon to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every
right and remedy given by this Article or by law to the Trustee or to
the Holders of Securities or coupons may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by
the Holders of Securities or coupons, as the case may be.
SECTION 512. Control by Holders of Securities.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available
to the Trustee or exercising any trust or power conferred on the
Trustee with respect to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction, and
(3) such direction is not unduly prejudicial to the rights
of other Holders of Securities of such series.
SECTION 513. Waiver of Past Defaults.
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The Holders of not less than a majority in principal amount of
the Outstanding Securities of any series may on behalf of the Holders
of all the Securities of such series and any related coupons waive any
past default hereunder with respect to such series and its
consequences, except a default
(1) in the payment of the principal of (and premium, if any)
or interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of
the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other default or impair any right consequent
thereon.
SECTION 514. Undertaking for Costs.
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, other
than the Trustee, 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, against any party litigant in
such suit, including the Trustee, 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 514 shall not apply to any suit
instituted by the Company, the Trustee or by any Holder, or group of
Holders, holding in the aggregate more than 10 percent in principal
amount of the Outstanding Securities of any series, or to any suit
instituted by any Holder of any Security or coupon for the enforcement
of the payment of the principal of (and premium, if any) or interest
on any Security or the payment of any coupon on or after the
respective Stated Maturities expressed in such Security (or, in the
case of redemption, on or after the Redemption Date) or interest on
any overdue principal of any Security.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties, and only
such duties, as are specifically set forth in this Indenture, and
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no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such
certificates or opinions which by any provisions hereof are
specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section 601;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it
shall be proved that the Trustee was negligent in ascertaining
the pertinent facts;
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Securities of any series,
relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this
Indenture with respect to the Securities of such series, provided
such direction shall not be in conflict with any rule of law or
with this Indenture; and
(4) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or
in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not
reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
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liability of or affording protection to the Trustee shall be subject
to the provisions of this Section 601.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by
mail to all Holders of Securities of such series entitled to receive
reports pursuant to Section 703(c), notice of such default hereunder
known to the Trustee, unless such default shall have been cured or
waived; provided, however, that, except in the case of a default in
the payment of the principal of (and premium, if any) or interest on
any Security of such series or in the payment of any sinking fund
installment with respect to Securities of such series, the Trustee
shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interests of
the Holders of Securities and coupons of such series; and provided
further, that in the case of any default of the character specified in
Section 501(4) with respect to Securities of such series, no such
notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section 602, the term
"default" means any event which is, or after notice or lapse of time
or both would become, an Event of Default, with respect to Securities
of such series.
SECTION 603. Certain Rights of Trustee.
Except as otherwise provided in Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, or other paper
or document reasonably believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company
Order (other than delivery of any Security to the Trustee for
authentication and delivery pursuant to Section 303 which shall
be sufficiently evidenced as provided therein) and any resolution
of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
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(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders of Securities of any
series or any related coupons pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture or other paper or
document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine
the books, records and premises of the Company, personally or by
agent or attorney; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by
or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any coupons shall be
taken as the statements of the Company, and the Trustee or any
Authenticating Agent assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency
of this Indenture or of the Securities or coupons. The Trustee or any
Authenticating Agent shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of
Securities and coupons and, subject to Sections 608 and 613, may
otherwise deal with the Company with the same rights it would have if
it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
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SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any money received
by it hereunder except as otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee and its agents for, and to hold
them harmless against, any loss, liability or expense incurred
without negligence or bad faith on their part, arising out of or
in connection with the acceptance or administration of the trust
or trusts hereunder, including the costs and expenses of
defending themselves against any claim or liability in connection
with the exercise or performance of any of their powers or duties
hereunder; provided, that:
(i) with respect to any such claim, the Trustee shall
have given the Company written notice thereof promptly after
the Trustee shall have knowledge thereof, but failure by the
Trustee to give such notice shall not affect the Trustee's
right or the Company's obligation to indemnify hereunder;
(ii) while maintaining absolute control over its own
defense, the Trustee shall cooperate and consult with the
Company in preparing such defense; and
(iii) notwithstanding anything to the contrary in this
Section 607(3), the Company shall not be liable for
settlement of any such claim by the Trustee entered into
without the prior consent of the Company, which consent
shall not be unreasonably withheld.
As security for the performance of the obligations of the Company
under this Section 607, the Trustee shall have a lien prior to the
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Securities of any series upon all property and funds held or collected
by the Trustee as such, except funds held in trust for the payment of
principal of (or premium, if any) or interest on Securities.
SECTION 608. Disqualifications; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act
and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United
States of America, any State or the District of Columbia, authorized
under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000 and subject to supervision
or examination by Federal or State authority. If such corporation
publishes reports of condition at least annually, pursuant to law or
to the requirements of said supervising or examining authority, then
for the purposes of this Section 609, the combined capital and surplus
of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. No obligor upon the Securities or an Affiliate of such
obligor shall serve as Trustee upon the Securities. If at any time
the Trustee shall cease to be eligible in accordance with the
provisions of this Section 609, it shall resign immediately in the
manner and with the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee under
Section 611.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to
the Company. If the instrument of acceptance by a successor Trustee
required by Section 611 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Company.
(d) If at any time:
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(1) the Trustee shall fall to comply with Section 608 after
written request therefor by the Company or by any Holder of a
Security who has been a bona fide Holder of a Security for at
least six months, or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the
Company or by any such Holder of a Security, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or
of its property shall be appointed, or any public officer shall
take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by a Board Resolution may
remove the Trustee with respect to all Securities, or (ii) subject to
Section 514, any Holder of a Security who has been a bona fide Holder
of a Security of any series for at least six months may, on behalf of
himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with respect to
all Securities of such series and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Securities of one or more series, the
Company, by a Board Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of that or those
series (it being understood that any such successor Trustee may be
appointed with respect to the Securities of one or more or all of such
series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply
with the applicable requirements of Section 611. If, within one year
after such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee with respect to the Securities of
any series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section
611, become the successor Trustee with respect to the Securities of
such series and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Company
or the Holders of Securities and accepted appointment in the manner
required by Section 611, any Holder of a Security who has been a bona
fide Holder of a Security of such series for at least six months may,
on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
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(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series
and each appointment of a successor Trustee with respect to the
Securities of any series by mailing written notice of such event by
first-class mail, postage prepaid, to the Holders of Registered
Securities, if any, of such series as their names and addresses appear
in the Security Register and, if Securities of such series are issued
as Bearer Securities, by publishing notice of such event once in an
Authorized Newspaper in each Place of Payment located outside the
United States. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address
of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee appointed
shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall
become effective, and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring
to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series,
the Company, the retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each successor
Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm
to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring
with respect to all Securities, shall contain such provisions as shall
be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee is
not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, it being understood
that nothing herein or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust, that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart
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from any trust or trusts hereunder administered by any other such
Trustee and that no Trustee shall be responsible for any notice given
to, or received by, or any act or failure to act on the part of any
other Trustee hereunder, and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein, such
retiring Trustee shall with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates have
no further responsibility for the exercise of rights and powers or for
the performance of the duties and obligations vested in the Trustee
under this Indenture other than as hereinafter expressly set forth,
and each such successor Trustee without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver
to such successor Trustee, to the extent contemplated by such
supplemental indenture, the property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights,
powers and trusts referred to in paragraph (a) or (b) of this Section
611, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified
and eligible under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further
act on the part of any of the parties hereto. In case any Securities
shall have been authenticated, but not delivered, by the Trustee then
in office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and deliver
the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
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(a) Subject to Subsection (b) of this Section 613, if the Trustee
shall be, or shall become, a creditor, directly or indirectly, secured
or unsecured, of the Company within three months prior to a default,
as defined in Subsection (c) of this Section 613, or subsequent to
such a default, then, unless and until such default shall be cured,
the Trustee shall set apart and hold in a special account for the
benefit of the Trustee individually, the Holders of the Securities and
coupons and the holders of other indenture securities (as defined in
Subsection (c) of this Section 613):
(1) an amount equal to any and all reductions in the amount
due and owing upon any claim as such creditor in respect of
principal or interest, effected after the beginning of such
three-month period and valid as against the Company and its other
creditors, except any such reduction resulting from the receipt
or disposition of any property described in paragraph (2) of this
Subsection, or from the exercise of any right of set-off which
the Trustee could have exercised if a petition in bankruptcy had
been filed by or against the Company upon the date of such
default; and
(2) all property received by the Trustee in respect of any
claim as such creditor, either as security therefor, or in
satisfaction or composition thereof, or otherwise, after the
beginning of such three-month period, or an amount equal to the
proceeds of any such property, if disposed of, subject, however,
to the rights, if any, of the Company and its other creditors in
such property or such proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee:
(A) to retain for its own account (i) payments made on
account of any such claim by any Person (other than the
Company) who is liable thereon, and (ii) the proceeds of the
bona fide sale of any such claim by the Trustee to a third
Person, and (iii) distributions made in cash, securities or
other property in respect of claims filed against the
Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Code or
applicable State law;
(B) to realize, for its own account, upon any property
held by it as security for any such claim, if such property
was so held prior to the beginning of such three-month
period;
(C) to realize, for its own account, but only to the
extent of the claim hereinafter mentioned, upon any property
held by it as security for any such claim, if such claim was
created after the beginning of such three-month period and
such property was received as security therefor
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simultaneously with the creation thereof, and if the Trustee
shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause
to believe that a default, as defined in Subsection (c) of
this Section 613, would occur within three months; or
(D) to receive payment on any claim referred to in
paragraph (B) or (C), against the release of any property
held as security for such claim as provided in paragraph (B)
or (C), as the case may be, to the extent of the fair value
of such property.
For the purposes of paragraphs (B), (C) and (D), property
substituted after the beginning of such three-month period for
property held as security at the time of such substitution shall, to
the extent of the fair value of the property released, have the same
status as the property released, and, to the extent that any claim
referred to in any of such paragraphs is created in renewal of or in
substitution for or for the purpose of repaying or refunding any pre-
existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and
property held in such special account and the proceeds thereof shall
be apportioned between the Trustee, the Holders of Securities and the
holders of other indenture securities in such manner that the Trustee,
the Holders of Securities and the holders of other indenture
securities realize, as a result of payments from such special account
and payments of dividends on claims filed against the Company in
bankruptcy or receivership or in proceedings for reorganization
pursuant to the Federal Bankruptcy Code or applicable State law, the
same percentage of their respective claims, figured before crediting
to the claim of the Trustee anything on account of the receipt by it
from the Company of the funds and property in such special account and
before crediting to the respective claims of the Trustee and the
Holders of Securities and the holders of other indenture securities
dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the
Federal Bankruptcy Code or applicable State law, but after crediting
thereon receipts on account of the indebtedness represented by their
respective claims from all sources other than from such dividends and
from funds and property so held in such special account. As used in
this paragraph, with respect to any claim, the term "dividends" shall
include any distribution with respect to such claim, in bankruptcy or
receivership or proceedings for reorganization pursuant to the Federal
Bankruptcy Code or applicable State law, whether such distribution is
made in cash, securities or other property, but shall not include any
such distribution with respect to the secured portion, if any, of such
claim. The court in which such bankruptcy, receivership or
proceedings for reorganization is pending shall have jurisdiction (i)
to apportion among the Trustee and the Holders of Securities and the
holders of other indenture securities, in accordance with the
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provisions of this paragraph, the funds and property held in such
special account and proceeds thereof, or (ii) in lieu of such
apportionment, in whole or in part, to give to the provisions of this
paragraph due consideration in determining the fairness of the
distributions to be made to the Trustee and the Holders of Securities
and the holders of other indenture securities with respect to their
respective claims, in which event it shall not be necessary to
liquidate or to appraise the value of any securities or other property
held in such special account or as security for any such claim, or to
make a specific allocation of such distributions as between the
secured and unsecured portions of such claims, or otherwise to apply
the provisions of this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the
beginning of such three-month period shall be subject to the
provisions of this Subsection as though such resignation or removal
had not occurred. If any Trustee has resigned or been removed prior
to the beginning of such three-month period, it shall be subject to
the provisions of this Subsection if and only if the following
conditions exist:
(i) the receipt of property or reduction of claim, which
would have given rise to the obligation to account, if such
Trustee had continued as Trustee, occurred after the beginning of
such three-month period; and
(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
(b) There shall be excluded from the operation of Subsection (a)
of this Section 613, a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under
any indenture, or any security or securities having a maturity of
one year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy
court of competent jurisdiction, or by this Indenture, for the
purpose of preserving any property which shall at any time be
subject to the lien of this Indenture or of discharging tax liens
or other prior liens or encumbrances thereon, if notice of such
advances and of the circumstances surrounding the making thereof
is given to the Holders of Securities at the time and in the
manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in
the capacity of trustee under an indenture, transfer agent,
registrar, custodian, paying agent, fiscal agent or depositary,
or other similar capacity;
(4) an indebtedness created as a result of services rendered
or premises rented; or an indebtedness created as a result of
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goods or securities sold in a cash transaction, as defined in
Subsection (c) of this Section 613;
(5) the ownership of stock or of other securities of a
corporation which is organized under the provisions of Section
25(a) of the Federal Reserve Act, as amended, and which is
directly or indirectly a creditor of the Company; or
(6) the acquisition, ownership, acceptance or negotiation of
any drafts, bills of exchange, acceptances or obligations which
fall within the classification of self-liquidating paper as
defined in Subsection (c) of this Section 613.
(c) For the purpose of this Section 613 only:
(1) the term "default" means any failure to make payment in
full of the principal of or interest on any of the Securities or
upon the other indenture securities when and as such principal or
interest becomes due and payable;
(2) the term "other indenture securities" means securities
upon which the Company is an obligor outstanding under any other
indenture (i) under which indenture and as to which securities
the Trustee is also trustee, (ii) which contains provisions
substantially similar to the provisions of this Section 613, and
(iii) under which a default exists at the time of the
apportionment of the funds and property held in such special
account;
(3) the term "cash transaction" means any transaction in
which full payment for goods or securities sold is made within
seven days after delivery of the goods or securities in currency
or in checks or other orders drawn upon banks or bankers and
payable upon demand;
(4) the term "self-liquidating paper" means any draft, bill
of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Company for the purpose of
financing the purchase, processing, manufacture, shipment,
storage or sale of goods, wares or merchandise and which is
secured by documents evidencing title to, possession of, or lien
upon, the goods, wares or merchandise or the receivables or
proceeds arising from the sale of the goods, wares or merchandise
previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation;
(5) the term "Company" means any obligor upon the
Securities; and
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(6) the term "Federal Bankruptcy Code" means the Bankruptcy
Act or Title 11 of the United States Code.
(d) In any case commenced under the Bankruptcy Act of July 1,
1898, or any amendment thereto prior to November 6, 1978, all
references in this Section 613 to periods of three months shall be
deemed to be references to four months.
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with
respect to one or more series of Securities which shall be authorized
to act on behalf of the Trustee to authenticate Securities of such
series issued upon original issue or exchange, registration of
transfer or partial redemption thereof or pursuant to Section 306, and
Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in
this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference
shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an Authenticating
Agent. Each Authenticating Agent shall be acceptable to the Company
and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or
the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not
less than $10,000,000 and subject to supervision or examination by
Federal or State authority. If such Authenticating Agent publishes
reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the
purposes of this Section 614, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 614, such
Authenticating Agent shall resign immediately in the manner and with
the effect specified in this Section 614.
Any corporation into which an Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding
to the corporate agency or corporate trust business of an
Authenticating Agent, shall continue to be an Authenticating Agent,
provided such corporation shall be otherwise eligible under this
Section 614, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at
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any time terminate the agency of an Authenticating Agent by giving
written notice thereof to such Authenticating Agent and to the
Company. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section
614, the Trustee may appoint a successor Authenticating Agent which
shall be acceptable to the Company and shall (i) mail written notice
of such appointment by first-class mail, postage prepaid, to all
Holders of Registered Securities, if any, of the series with respect
to which such Authenticating Agent will serve, as their names and
addresses appear in the Security Register, and (ii) if Securities of
the series are issued as Bearer Securities, publish notice of such
appointment at least once in an Authorized Newspaper in the place
where such successor Authenticating Agent has its principal office if
such office is located outside the United States. Any successor
Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section 614.
The Company agrees to pay each Authenticating Agent from time to
time reasonable compensation for its services under this Section 614.
If the Trustee makes such payments, it shall be entitled to be
reimbursed for such payments, subject to the provisions of Section
607.
The provisions of Sections 308, 604 and 605 shall be applicable
to each Authenticating Agent.
If an appointment with respect to one or more series is made
pursuant to this Section 614, the Securities of such series may have
endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in the
following form:
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
[Trustee]
As Trustee
By ________________________
As Authenticating Agent
By ________________________
Authorized Signatory
If all of the Securities of any series may not be originally
issued at one time, and if the Trustee does not have an office capable
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of authenticating Securities upon original issuance located in a Place
of Payment where the Company wishes to have Securities of such series
authenticated upon original issuance, the Trustee, if so requested in
writing (which writing need not comply with Section 102) by the
Company, shall appoint in accordance with this Section 614 an
Authenticating Agent having an office in a Place of Payment designated
by the Company with respect to such series of Securities.
The Trustee is hereby appointed as an Authenticating Agent.
ARTICLE SEVEN
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not later than 15 days after the Regular
Record Date for interest for each series of Securities, a list,
in such form as the Trustee may reasonably require, of the names
and addresses of the Holders of Registered Securities of such
series as of such Regular Record Date, or if there is no Regular
Record Date for interest for such series of Securities, semi-
annually, upon such dates as are set forth in the Board
Resolution or indenture supplemental hereto authorizing such
series, and
(b) at such other times the Trustee may request in writing,
within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more
than 15 days prior to the time such list is furnished,
provided, however, that, so long as the Trustee is the Security
Registrar, no such list shall be required to be furnished.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of
Securities (i) contained in the most recent list furnished to the
Trustee for each series as provided in Section 701, (ii) received by
the Trustee for each series in the capacity of Security Registrar if
the Trustee is then acting in such capacity and (iii) filed with it
within the two preceding years pursuant to Section 703(c)(2). The
Trustee may destroy any list furnished to it as provided in Section
701 upon receipt of a new list so furnished, and destroy not earlier
than two years after filing, any information filed with it pursuant to
Section 703(c) (2).
(b) If three or more Holders of Securities of any series
(hereinafter referred to as "applicants") apply in writing to the
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Trustee, and furnish to the Trustee reasonable proof that each such
applicant has owned a Security of such series for a period of at least
six months preceding the date of such application, and such
application states that the applicants desire to communicate with
other Holders of Securities of such series with respect to their
rights under this Indenture or under the Securities and is accompanied
by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five
business days after the receipt of such application, at its election,
either
(i) afford such applicants access to the information
preserved at the time by the Trustee in accordance with Section
702(a), or
(ii) inform such applicants as to the approximate number of
Holders of Securities whose names and addresses appear in the
information preserved at the time by the Trustee in accordance
with Section 702(a), and as to the approximate cost of mailing to
such Holders the form of proxy or other communication, if any,
specified in such application.
If the Trustee shall elect not to afford such applicants access
to such information, the Trustee shall, upon the written request of
such applicants, mail to each Holder of Securities of such series
whose name and address appears in the information preserved at the
time by the Trustee in accordance with Section 702(a), a copy of the
form of proxy or other communication which is specified in such
request, with reasonable promptness after a tender to the Trustee of
the material to be mailed and of payment, or provision 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 Securities of such series or would be in violation of
applicable law. Such written statement shall specify the basis of
such opinion. If the Commission, after opportunity for a hearing upon
the objections specified in the written statement so filed, shall
enter an order refusing to sustain any of such objections, or if,
after the entry of an order sustaining one or more of such objections,
the Commission shall find, after notice and opportunity for hearing,
that all the objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail copies of such material to
all such Holders of Securities of such series with reasonable
promptness after the entry of such order and the renewal of such
tender.
(c) Every Holder of Securities or coupons, by receiving and
holding the same, agrees with the Company and the Trustee that neither
the Company nor the Trustee nor any Paying Agent nor any Security
Registrar shall be held accountable by reason of the disclosure of any
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such information as to the names and addresses of the Holders of
Securities in accordance with Section 702(b), regardless of the source
from which such information was derived, and that the Trustee shall
not be held accountable by reason of mailing any material pursuant to
a request made under Section 702(b).
SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with
the year following the first issuance of Securities pursuant to
Section 301, the Trustee shall transmit by mail to all Holders of
Securities, as their names and addresses appear in the Security
Register, a brief report dated as of such May 15 with respect to any
of the following events which may have occurred within the previous 12
months (but if no such event has occurred within such period, no
report need be transmitted):
(1) any change to its eligibility under Section 609 and its
qualifications under Section 608;
(2) the creation of or any material change to a
relationship specified in paragraphs (1) through (10) of Section
310(b) of the Trust Indenture Act;
(3) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the
making thereof) made by the Trustee (as such) which remain unpaid
on the date of such report, and for the reimbursement of which it
claims or may claim a lien or charge, prior to that of the
Securities, on any property or funds held or collected by it as
Trustee, except that the Trustee shall not be required (but may
elect) to report such advances if such advances so remaining
unpaid aggregate not more than 1/2 of 1 percent of the principal
amount of the Securities Outstanding on the date of such report;
(4) the amount, interest rate and maturity date of all
other indebtedness owing by the Company (or by any other obligor
on the Securities) to the Trustee in its individual capacity, on
the date of such report, with a brief description of any property
held as collateral security therefor, except an indebtedness
based upon a creditor relationship arising in any manner
described in Section 613(b)(2), (3), (4) or (6);
(5) any change to the property and funds, if any,
physically in the possession of the Trustee as such on the date
of such report;
(6) any additional issue of Securities which the Trustee
has not previously reported; and
(7) any action taken by the Trustee in the performance of
its duties hereunder which it has not previously reported and
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which in its opinion materially affects the Securities, except
action in respect of a default, notice of which has been or is to
be withheld by the Trustee in accordance with Section 602.
(b) The Trustee shall transmit by mail to all Holders of
Securities, as provided in Subsection (c) of this Section 703, a brief
report with respect to the character and amount of any advances (and
if the Trustee elects so to state, the circumstances surrounding the
making thereof) made by the Trustee (as such) since the date of the
last report transmitted pursuant to Subsection (a) of this Section 703
(or if no such report has yet been so transmitted, since the date of
execution of this instrument) for the reimbursement of which it claims
or may claim a lien or charge, prior to that of the Securities, on
property or funds collected by it as Trustee, and which it has not
previously reported pursuant to this Subsection, except that the
Trustee shall not be required (but may elect) to report such advances
if such advances remaining unpaid at any time aggregate 10 percent or
less of the principal amount of the Securities Outstanding at such
time, such report to be transmitted within 90 days after such time.
(c) Reports pursuant to this Section 703 shall be transmitted
by mail:
(1) to all Holders of Registered Securities, as the names
and addresses of such Holders appear in the Security Register,
(2) to such Holders of Bearer Securities as have, within
the two years preceding such transmission, filed their names and
addresses with the Trustee for that purpose; and
(3) except in the case of reports pursuant to Subsection (b)
of this Section 703, to each Holder of a Security whose name and
address is preserved at the time by the Trustee, as provided in
Section 702(a).
(d) A copy of each such report shall, at the time of such
transmission to Holders of Securities, be filed by the Trustee with
each stock exchange upon which the Securities are listed, with the
Commission and with the Company. The Company will notify the Trustee
when any Securities are listed on any stock exchange.
SECTION 704. Reports by the Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company
is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the
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Securities Exchange Act of 1934; or, if the Company is not
required to file information, documents or reports pursuant to
either of said Sections, then it shall file with the Trustee and
the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports
which may be required pursuant to Section 13 of the Securities
Exchange Act of 1934 in respect of a security listed and
registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports
with respect to compliance by the Company with the conditions and
covenants of this Indenture as may be required from time to time
by such rules and regulations;
(3) transmit to the Holders of Securities within 30 days
after the filing thereof with the Trustee, in the manner and to
the extent provided in Section 703(c) with respect to reports
pursuant to Section 703(a), such summaries of any information,
documents and reports required to be filed by the Company
pursuant to paragraphs (1) and (2) of this Section 704 as may be
required by rules and regulations prescribed from time to time by
the Commission; and
(4) furnish to the Trustee, not less than annually, a brief
certificate from the principal executive officer, principal
financial officer or principal accounting officer as to his or
her knowledge of the Company's compliance with all conditions and
covenants under this Indenture. For purposes of this Section
704, such compliance shall be determined without regard to any
period of grace or requirement of notice provided under this
Indenture.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Company May Consolidate, Etc., on Certain Terms.
Nothing contained in this Indenture or in any of the Securities
shall prevent any consolidation or merger of the Company with or into
any other corporation or corporations (whether or not affiliated with
the Company), or successive consolidations or mergers in which the
Company or its successor or successors shall be a party or parties, or
shall prevent any sale or conveyance of all or substantially all of
the property of the Company to any other corporation (whether or not
affiliated with the Company) authorized to acquire and operate the
same; provided, however, and the Company hereby covenants and agrees,
that any such consolidation, merger, sale or conveyance shall be upon
the condition that (a) immediately after such consolidation, merger,
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sale or conveyance the corporation (whether the Company or such other
corporation) formed by or surviving any such consolidation or merger,
or to which such sale or conveyance shall have been made, shall not be
in default in the performance or observance of any of the terms,
covenants and conditions of this Indenture to be kept or performed by
the Company; (b) the corporation (if other than the Company) formed by
or surviving any such consolidation or merger, or to which such sale
or conveyance shall have been made, shall be a corporation organized
under the laws of the United States of America or any state thereof;
and (c) the due and punctual payment of the principal of and premium,
if any, and interest on all of 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 Company, shall be expressly assumed, by supplemental
indenture satisfactory in form to the Trustee, executed and delivered
to the Trustee by the corporation (if other than the Company) formed
by such consolidation, or into which the Company shall have been
merged, or by the corporation which shall have acquired such property.
SECTION 802. Successor Corporation to be Substituted.
In case of any such consolidation, merger, sale or conveyance and
upon the assumption by the successor corporation, by supplemental
indenture, executed and delivered to the Trustee and satisfactory in
form to the Trustee, of the due and punctual payment of the principal
of and premium, if any, and interest on all of the Securities 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
Company, such successor corporation shall succeed to and be
substituted for the Company, with the same effect as if it had been
named herein as the party of the first part, and (except in the event
of a conveyance by way of lease) the predecessor corporation shall be
relieved of any further obligation under this Indenture and the
Securities. Such successor corporation thereupon may cause to be
signed, and may issue either in its own name or in the name of Arvin
Industries, Inc. any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Company and delivered to
the Trustee; and upon the order of such successor corporation instead
of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities which previously shall
have been signed and delivered by the officers of the Company to the
Trustee for authentication, and any Securities which such successor
corporation thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All the Securities of each series so issued
shall in all respects have the same legal rank and benefit under this
Indenture as the Securities of such series theretofore or thereafter
issued in accordance with the terms of this Indenture as though all of
such Securities had been issued at the date of the execution hereof.
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In case of any such consolidation, merger, sale or conveyance
such changes in phraseology and form (but not in substance) may be
made in the Securities thereafter to be issued as may be appropriate.
SECTION 803. Opinion of Counsel to be Given Trustee.
The Trustee, subject to Sections 601 and 603, may receive an
Opinion of Counsel as conclusive evidence that any such consolidation,
merger, sale or conveyance and any such assumption complies with the
provisions of this Article Eight.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders of Securities or coupons, the
Company, when authorized by a Board Resolution, and the Trustee, at
any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of
the following purposes:
(1) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the
covenants of the Company herein and in the Securities contained;
or
(2) to add to the covenants of the Company for the benefit
of the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being
included solely for the benefit of such series) or to surrender
any right or power herein conferred upon the Company; or
(3) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as
to principal, to change or eliminate any restrictions on the
payment of principal (or premium, if any) on Registered
Securities or of principal (or premium, if any) or any interest
on Bearer Securities, to permit Registered Securities to be
exchanged for Bearer Securities or to permit the issuance of
Securities in uncertificated form, provided any such action shall
not adversely affect the interests of the Holders of Securities
of any series or any related coupons in any material respect; or
(4) to establish the form or terms of Securities of any
series as permitted by Sections 201 and 301; or
(5) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of
the provisions of this Indenture as shall be necessary to provide
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for or facilitate the administration of the trusts hereunder by
more than one Trustee, pursuant to the requirements of Section
611(b); or
(6) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any
other provision herein, or to make any other provisions with
respect to matters or questions arising under this Indenture
which shall not be inconsistent with the provisions of this
Indenture and which shall not adversely affect the interest of
the Holders of Securities of any series or any related coupons in
any material respect; or
(7) to add to, delete from or revise the conditions,
limitations and restrictions on the authorized amount, terms or
purposes of issue, authentication and delivery of Securities, as
herein set forth; or
(8) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the Trust Indenture Act or
under any similar federal statute hereafter enacted and to add to
this Indenture such other provisions as may be expressly required
under the Trust Indenture Act.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of each
series affected by such supplemental indenture, by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized
by a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights
of the Holders of Securities of such series under this Indenture;
provided, however, that no such supplemental Indenture shall, without
the consent of the Holder of each Outstanding Security affected
hereby,
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon, or any premium
payable upon the redemption thereof, or reduce the amount of the
principal of an Original Issue Discount Security that would be
due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502, or change the coin or
currency in which any Security or any premium or the interest
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the
Redemption Date), or
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(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose
Holders is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section 902, or
Section 513, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Security affected thereby, or
(4) modify any of the provisions of this Indenture relating
to the subordination of the Securities in a manner adverse to the
Holders.
A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities,
or which modifies the rights of the Holders of Securities of such
series with respect to such covenant or other provision, shall be
deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series.
It shall not be necessary for any Act of Holders of Securities
under this Section 902 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act shall
approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications
thereby of the trust created by this Indenture, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully
protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by
this Indenture. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and
such supplemental indenture shall form a part of this Indenture for
all purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder and of any coupons appertaining
thereto shall be bound thereby.
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SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then
in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may,
and shall if required by the Trustee, bear a notation in form approved
by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of any
series so modified as to conform, in the opinion of the Trustee and
the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee
in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and Interest.
The Company covenants and agrees for the benefit of the Holders
of each series of Securities that it will duly and punctually pay the
principal of (and premium, if any), interest on the Securities of that
series in accordance with the terms of such series of Securities, any
coupons appertaining thereto and this Indenture. Any interest due on
Bearer Securities on or before Maturity shall be payable only upon
presentation and surrender of the several coupons for such interest
installments as are evidenced thereby as they severally mature.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series
of Securities an office or agency where Securities of that series (but
not Bearer Securities, except as otherwise provided below, unless such
Place of Payment is located outside the United States) may be
presented or surrendered for payment, where Securities of that series
may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. If
Securities of a series are issuable as Bearer Securities, the Company
will maintain, subject to any laws or regulations applicable thereto,
an office or agency in a Place of Payment for such series which is
located outside the United States where Securities of such series and
the related coupons may be presented and surrendered for payment;
provided, however, that if the Securities of such series are listed on
The Stock Exchange of the United Kingdom and the Republic of Ireland
or the Luxembourg Stock Exchange or any other stock exchange located
outside the United States and such stock exchange shall so require,
the Company will maintain a Paying Agent in London, Luxembourg or any
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other required city located outside the United States, as the case may
be, so long as the Securities of such series are listed on such
exchange. The Company will give prompt written notice to the Trustee
of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fall to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the
Trustee, except that Bearer Securities of that series and the related
coupons may be presented and surrendered for payment at the place
specified for the purpose pursuant to Section 301, and the Company
hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
Except as otherwise provided in the form of Bearer Security of
any particular series pursuant to the provisions of this Indenture, no
payment of principal, premium or interest on Bearer Securities shall
be made at any office or agency of the Company in the United States or
by check mailed to any address in the United States or by transfer to
an account maintained with a bank located in the United States;
provided, however, payment of principal of and any premium and
interest in U.S. dollars on any Bearer Security may be made at the
office of the Paying Agent in the Borough of Manhattan, The City of
New York and the City of Detroit, Michigan if (but only if) payment of
the full amount of such principal, premium or interest at all offices
outside the United States maintained for the purpose by the Company in
accordance with this Indenture is illegal or effectively precluded by
exchange controls or other similar restrictions and the Trustee and
each Paying Agent other than the Trustee is advised of such
illegality, preclusion or other restriction in writing by the Company.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series
may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations; provided, however, that
no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in each
Place of Payment for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any
such other office or agency. Unless otherwise set forth in a Board
Resolution or indenture supplemental hereto with respect to a series
of Securities, the Company hereby designates as the Place of Payment
for each series of Securities, 611 Woodward Avenue, 11th floor,
Detroit, Michigan 48226, and 61 Broadway TP, Concourse Level, New
York, New York 10006.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due
date of the principal of (and premium, if any), or interest on, any of
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the Securities of that series, segregate and hold in trust for the
benefit of the Person entitled thereto a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due until such
sums shall be paid to such Persons or otherwise disposed of as herein
provided, and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or prior to each due date of the
principal of (and premium, if any), or interest on, any Securities of
that series, deposit with any Paying Agent a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due, such sum
to be held in trust for the benefit of the Persons entitled to such
principal, premium or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section 1003, that such
Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest on Securities of
that series in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee written notice of any default by the
Company (or any other obligor upon the Securities of that series)
in the making of any payment of principal (and premium, if any)
or interest on the Securities of that series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose,
pay, or by Company Order direct any Paying Agent to pay, to the
Trustee all sums held in trust by the Company or such Paying Agent,
such sums to be held by the Trustee upon the same terms as those upon
which such sums were held by the Company or such Paying Agent; and,
upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to
such money.
Except as otherwise provided in the form of Securities of any
particular series pursuant to the provisions of this Indenture, any
money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (and
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premium, if any) or Interest on any Security of any series and
remaining unclaimed for two years after such principal (and premium,
if any) or interest has become due and payable shall be paid to the
Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security or any
coupon appertaining thereto shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such
trust money, and all liability of the Company as trustee thereof,
shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at
the expense of the Company cause to be published once, in an
Authorized Newspaper in each Place of Payment or to be mailed to
Holders of Registered Securities, or both, notice that such money
remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication or
mailing nor shall it be later than two years after such principal (and
premium, if any) or interest has become due and payable, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 1004. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its
corporate existence, rights (charter and statutory) and franchises;
provided, however, that the Company shall not be required to preserve
any such right or franchise if the Board of Directors shall determine
that the preservation thereof is no longer desirable in the conduct of
the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Holders.
SECTION 1005. Statement by Officers as to Default.
(a) The Company will deliver to the Trustee, within 120 days
after the end of each fiscal year of the Company ending after the date
hereof, an Officers' Certificate, stating whether or not to the best
knowledge of the signers thereof the Company is in default in the
performance and observance of any of the terms, provisions and
conditions of this Indenture and, if the Company shall be in default,
specifying all such defaults and the nature and status thereof of
which they may have knowledge.
(b) The Company will deliver to the Trustee, within five days
after the occurrence thereof, written notice of any event which after
notice or lapse of time or both would become an Event of Default
pursuant to Clause (4) of Section 501.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
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Redemption of Securities of any series at the option of the
Company as permitted or required by the terms of such Securities shall
be made in accordance with the terms of such Securities and this
Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the
election of the Company of the Securities of any series, with the same
issue date, interest rate and Stated Maturity, the Company shall, at
least 45 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of
Securities of such series to be redeemed.
SECTION 1103. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities of any series with the same issue
date, interest rate, and Stated Maturity are to be redeemed, the
particular Securities to be redeemed shall be selected not more than
60 days prior to the Redemption Date by the Trustee from the
Outstanding Securities of such series not previously called for
redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of
portions of the principal amount of Registered Securities of such
series; provided, however, that no such partial redemption shall
reduce the portion of the principal amount of a Registered Security of
such series not redeemed to less than the minimum denomination for a
Security of that series established pursuant to Section 302.
If any Security selected for partial redemption is converted in
part before termination of the conversion right with respect to the
portion of the Security so selected, the converted portion of such
Security shall be deemed (so far as may be) to be the portion selected
for redemption. Securities which have been converted during a
selection of Securities to be redeemed shall be treated by the Trustee
as Outstanding for the purpose of such selection.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected
for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed
only in part, to the portion of the principal of such Securities which
has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
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Notice of redemption shall be given in the manner provided in
Section 106, not less than 30 nor more than 60 days prior to the
Redemption Date, unless a shorter period is specified in the
Securities to be redeemed, to the Holders of Securities to be
redeemed. Failure to give notice by mailing in the manner herein
provided to the Holder of any Registered Securities designated for
redemption as a whole or in part, or any defect in the notice to any
such Holder, shall not affect the validity of the proceedings for the
redemption of any other Securities or portion thereof.
Any notice that is mailed to the Holder of any Registered
Securities in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not such Holder receives
the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of
partial redemption, the principal amount) of the particular
Securities to be redeemed,
(4) in case any Registered Security is to be redeemed in
part only, the notice which relates to such Security shall state
that on and after the Redemption Date, upon surrender of such
Security, the Holder of such Security will receive, without
charge, a new Registered Security or Registered Securities of
authorized denominations for the principal amount thereof
remaining unredeemed,
(5) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed,
and, if applicable, that interest thereon shall cease to accrue
on and after said date,
(6) the place or places where such Securities, together, in
the case of Bearer Securities with all coupons appertaining
thereto, if any, maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price, and
(7) that the redemption is for a sinking fund, if such is
the case.
A notice of redemption published as contemplated by Section 106
need not identify particular Registered Securities to be redeemed.
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Notice of redemption of Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
Subject to the provisions of Section 1302 and Section 1303, on or
prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its
own Paying Agent, segregate and hold in trust as provided in Section
1003) an amount of money sufficient to pay the Redemption Price of,
and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities or portions thereof which are
to be redeemed on that date. Notwithstanding the foregoing sentence,
if the Redemption Date shall be subsequent to a Regular Record Date
and on or prior to an Interest Payment Date relating thereto, interest
whose Stated Maturity is after the Redemption Date of such Security
shall not be payable.
If any Security or portion thereof called for redemption is
converted pursuant to the provisions of Article Fifteen prior to the
Redemption Date, any money deposited with the Trustee or any Paying
Agent or so segregated and held in trust for the redemption of such
Security or portion thereof shall be paid to the Company upon a
Company Request, or, if then held by the Company shall be discharged
from such trust.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due
and payable at the Redemption Price therein specified, and from and
after such date (unless the Company shall default in the payment of
the Redemption Price and accrued interest) such Securities shall cease
to bear interest and the coupons for such interest appertaining to any
Bearer Securities so to be redeemed, except to the extent provided
below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all coupons,
if any, appertaining thereto maturing after the Redemption Date, such
Security shall be paid by the Company at the Redemption Price,
together with accrued interest to the Redemption Date; provided,
however, that installments of interest on Bearer Securities whose
Stated Maturity is on or prior to the Redemption Date shall be payable
only upon presentation and surrender of coupons for such interest (at
an office or agency located outside the United States except as
otherwise provided in Section 1002), and provided, further, that
installments of interest on Registered Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the Regular Record
Dates according to their terms and the provisions of Section 307.
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If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption
Date, such Security may be paid after deducting from the Redemption
Price an amount equal to the face amount of all such missing coupons,
or the surrender of such missing coupon or coupons may be waived by
the Company and the Trustee if there be furnished to them such
security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the
Redemption Price, such Holder shall be entitled to receive the amount
so deducted; provided, however, that interest represented by coupons
shall be payable only upon presentation and surrender of those coupons
at an office or agency located outside of the United States except as
otherwise provided in Section 1002.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate
prescribed therefor in the Security.
SECTION 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part
shall be surrendered at any office or agency of the Company maintained
for that purpose pursuant to Section 1002 (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in
writing) and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security without
service charge, a new Registered Security or Securities of the same
series, containing identical terms and provisions, of any authorized
denomination as requested by such Holder in aggregate principal amount
equal to and in exchange for the unredeemed portion of the principal
of the Security so surrendered. If a Security in global form is so
surrendered, the Company shall execute, and the Trustee shall
authenticate and deliver to the U.S. Depository or other depository
for such Security in global form as shall be specified in the Company
Order with respect thereto to the Trustee, without service charge, a
new Security in global form in a denomination equal to and in exchange
for the unredeemed portion of the principal of the Security in global
form so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of a series, except as otherwise
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permitted or required by any form of Security of such series issued
pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a
"mandatory sinking fund payment," and any payment in excess of such
minimum amount provided for by the terms of Securities of such series
is herein referred to as an "optional sinking fund payment." If
provided for by the terms of Securities of any series, the cash amount
of any sinking fund payment may be subject to reduction as provided in
Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company may, in satisfaction of all or any part of any
sinking fund payment with respect to the Securities of such series to
be made pursuant to the terms of such Securities as provided for by
the terms of such series (1) deliver Outstanding Securities of such
series (other than any of such Securities previously called for
redemption or any of such Securities in respect of which cash shall
have been released to the Company), together in the case of any Bearer
Securities of such series with all unmatured coupons appertaining
thereto, and (2) apply as a credit Securities of such series which
have been redeemed either at the election of the Company pursuant to
the terms of such series of Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, provided that such series of Securities have not been
previously so credited. Such Securities shall be received and
credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be
reduced accordingly. If as a result of the delivery or credit of
Securities of any series in lieu of cash payments pursuant to this
Section 1202, the principal amount of Securities of such series to be
redeemed in order to exhaust the aforesaid cash payment shall be less
than $100,000, the Trustee need not call Securities of such series for
redemption, except upon Company Request, and such cash payment shall
be held by the Trustee or a Paying Agent and applied to the next
succeeding sinking fund payment, provided, however, that the Trustee
or such Paying Agent shall at the request of the Company from time to
time pay over and deliver to the Company any cash payment so being
held by the Trustee or such Paying Agent upon delivery by the Company
to the Trustee of Securities of that series purchased by the Company
having an unpaid principal amount equal to the cash payment requested
to be released to the Company.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for
any series of Securities, the Company will deliver to the Trustee an
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Officers' Certificate specifying the amount of the next ensuing
mandatory sinking fund payment for that series pursuant to the terms
of that series, the portion thereof, if any, which is to be satisfied
by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting of Securities of that series
pursuant to Section 1202, and the optional amount, if any, to be added
in cash to the next ensuing mandatory sinking fund payment, and will
also deliver to the Trustee any Securities to be so credited and not
theretofore delivered. If such Officers' Certificate shall specify an
optional amount to be added in cash to the next ensuing mandatory
sinking fund payment, the Company shall thereupon be obligated to pay
the amount therein specified. Not less than 30 days before each such
sinking fund payment date, the Trustee shall select the Securities to
be redeemed upon such sinking fund payment date in the manner
specified in Section 1103 and cause notice of the redemption thereof
to be given in the name of and at the expense of the Company in the
manner provided in Section 1104. Such notice having been duly given,
the redemption of such Securities shall be made upon the terms and in
the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES
SECTION 1301. Securities Subordinate to Senior Indebtedness.
Except as otherwise specified pursuant to Section 301 for
Securities of any series, the Company covenants and agrees, and each
Holder of any of the Securities or any coupon appertaining thereto, by
such Holder's acceptance thereof, likewise covenants and agrees, for
the benefit of the holders, from time to time, of Senior Indebtedness
of the Company that, to the extent and in the manner hereinafter set
forth in this Article, the Indebtedness represented by the Securities
and the payment of the principal of (and premium, if any) and interest
on each and all of the Securities and the payment of any coupon is
hereby expressly made subordinate and subject in right of payment as
provided in this Article to the prior payment in full of all Senior
Indebtedness.
SECTION 1302. Dissolution, Liquidation, Insolvency, etc.
In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other
similar case or proceeding in connection therewith, relative to the
Company or to a substantial part of its assets, or (b) any
liquidation, dissolution or other winding up of the Company, whether
voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or (c) any assignment for the benefit of creditors or any
other marshalling of assets and liabilities of the Company then, and
in any such event:
(1) the holders of all Senior Indebtedness shall first be
entitled to receive payment in full of the principal thereof (and
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premium, if any, thereon) and interest thereon (including,
without limitation, all interest accruing after the commencement
of any bankruptcy, insolvency, receivership or similar
proceeding), before the Holders of the Securities or coupons
appertaining thereto are entitled to receive any payment or
distribution of any kind or character on account of principal of
(or premium, if any) or interest on the Securities or the coupons
appertaining thereto; and
(2) any payment or distribution of assets of any kind or
character, whether in cash, property or securities, by set-off or
otherwise, to which the Holders or the Trustee as such would be
entitled but for the provisions of this Article, including any
such payment or distribution that may be payable or deliverable
by reason of the payment of any other indebtedness of the Company
being subordinated to the payment of the Securities, shall be
paid by the Company, by the liquidating trustee or agent or other
person making such payment or distribution, whether a trustee in
bankruptcy, a receiver or otherwise, directly to the holders of
Senior Indebtedness or their representative or representatives,
or to the trustee or trustees under any indenture under which any
instrument evidencing any of such Senior Indebtedness may have
been issued, ratably according to the aggregate amounts remaining
unpaid on account of the Senior Indebtedness held or represented
by each, to the extent necessary to pay all Senior Indebtedness
in full, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Indebtedness.
The consolidation or merger of the Company with or into any other
corporation or corporations (whether or not affiliated with the
Company),or successive consolidations or mergers in which the Company
or its successor or successors shall be a party or parties or the
liquidation or dissolution of the Company following the sale or
conveyance of all or substantially all of the property of the Company
to any other corporation (whether or not affiliated with the Company)
upon the terms and conditions set forth in Article Eight shall be
deemed not to be a dissolution, winding-up, liquidation,
reorganization, assignment for the benefit of creditors or marshalling
of assets or liabilities of the Company for the purposes of this
Section 1302 if the corporation or corporations formed by such
consolidation or into which the Company is merged or which acquires by
sale or conveyance all or substantially all of the property of the
Company, shall, as part of such consolidation, merger, sale or
conveyance, comply with the conditions set forth in Article Eight.
SECTION 1303. Default on Senior Indebtedness.
Unless otherwise provided in Section 301, no payment shall be
made with respect to the principal of (or premium, if any) or interest
on the Securities or for the payment of any coupon or to acquire any
of the Securities or on account of any redemption or sinking fund
provisions for the Securities if, at the time of such payment, there
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exists a default in payment (beyond any grace period applicable
thereto) of all or any portion of any Senior Indebtedness, and such
default shall not have been cured or waived in writing or the benefits
of this sentence waived in writing by or on behalf of the holders of
such Senior Indebtedness.
SECTION 1304. Payments and Distributions Received.
If any payment or distribution of any character whether in cash,
property or securities, including any such payment or distribution
that may be payable or deliverable by reason of the payment of any
other indebtedness of the Company being subordinated to the payment of
the Securities, shall be received by the Trustee or any Holder of any
of the Securities in contravention of any of the terms of this Article
and before all Senior Indebtedness shall have been paid in full, such
payment or distribution shall be held in trust for the benefit of, and
shall be paid over or delivered and transferred to, the holders of the
Senior Indebtedness or their representative or representatives, or to
the trustee or trustees under any indenture under which any
instruments evidencing any of such Senior Indebtedness may have been
issued, for application to the payment of all Senior Indebtedness
remaining unpaid, ratably according to the aggregate amounts remaining
unpaid on account of the Senior Indebtedness held or represented by
each, to the extent necessary to pay all such Senior Indebtedness in
full, after giving effect to any concurrent payment or distribution to
or for the holders of such Senior Indebtedness.
SECTION 1305. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture
or in any of the Securities shall prevent the Company at any time
except during the pendency of any case, proceeding, liquidation,
dissolution or other winding up, assignment for the benefit of
creditors or other marshalling of assets and liabilities of the
Company referred to in Section 1302 or under the conditions described
in Section 1303, from making payments at any time of principal of (or
premium, if any) or interest on the Securities or the payment of any
coupon.
SECTION 1306. Subrogation to Rights of Holders of Senior
Indebtedness.
Subject to the payment in full of all Senior Indebtedness (or the
making of provision therefor in money or money's worth), the Holders
of the Securities or coupons appertaining thereto shall be subrogated
to the extent of the payments or distributions made to the holders of
such Senior Indebtedness pursuant to the provisions of this Article
(equally and ratably with the holders of all indebtedness of the
Company which by its terms is subordinated to other indebtedness of
the Company to substantially the same extent as the Securities are
subordinated and is entitled to like rights of subrogation) to the
rights of the holders of such Senior Indebtedness to receive payments
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and distributions of cash, property and securities applicable to the
Senior Indebtedness until the principal of (and premium, if any) and
interest on the Securities shall be paid in full. For purposes of
such subrogation, no payments or distributions to the holders of
Senior Indebtedness of any cash, property or securities to which the
Holders of the Securities or coupons appertaining thereto or the
Trustee would be entitled except for the provisions of this Article,
and no payments pursuant to the provisions of this Article to the
holders of Senior Indebtedness by Holders of the Securities or coupons
appertaining thereto or the Trustee, shall, as among the Company, its
creditors other than holders of Senior Indebtedness, and the Holders
of the Securities or coupons appertaining thereto, be deemed to be a
payment or distribution to or on account of the Senior Indebtedness.
SECTION 1307. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for
the purpose of defining the relative rights of the Holders of the
Securities or coupons appertaining thereto on the one hand, and the
holders of Senior Indebtedness on the other hand. Nothing contained
in this Article or elsewhere in this Indenture or in the Securities is
intended to or shall (1) impair, as among the Company, its creditors
other than holders of Senior Indebtedness and the Holders of the
Securities or coupons appertaining thereto, the obligation of the
Company, which is absolute and unconditional, to pay to the Holders of
the Securities or coupons appertaining thereto the principal of (and
premium, if any) and interest on the Securities or coupons
appertaining thereto as and when the same shall become due and payable
in accordance with their terms; or (2) affect the relative rights
against the Company of the Holders of the Securities or coupons
appertaining thereto and creditors of the Company other than the
holders of Senior Indebtedness; or (3) prevent the Trustee or the
Holder of any Security or coupon from exercising all remedies
otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article of the
holders of Senior Indebtedness to receive cash, property or securities
otherwise payable or deliverable to the Trustee or such Holder.
SECTION 1308. Trustee to Effectuate Subordination.
Each Holder of a Security or coupon by such Holder's acceptance
thereof authorizes and directs the Trustee on such Holder's behalf to
take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article and appoints the Trustee such
Holder's attorney-in-fact for any and all such purposes.
SECTION 1309. No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided (and as the
subordination provisions of this Article Thirteen may be amended or
supplemented from time to time in accordance with the provisions of
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this Indenture) shall at any time in any way be prejudiced or impaired
by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any non-
compliance by the Company with the terms, provisions and covenants of
this Indenture, regardless of any knowledge thereof any such holder
may have or be otherwise charged with.
(b) Without in any way limiting the generality of paragraph (a)
of this Section 1309, the holders of Senior Indebtedness may, at any
time and from time to time, without the consent of or notice to the
Trustee or the Holders of the Securities, without incurring
responsibility to the Holders of the Securities or coupons
appertaining thereto and without impairing or releasing the
subordination provided in this Article or the obligations hereunder of
the Holders of the Securities or coupons appertaining thereto to the
holders of Senior Indebtedness, do any one or more of the following:
(1) change the manner, place or terms of payment or extend the time
of payment of, or renew or alter, Senior Indebtedness or otherwise
amend or supplement in any manner Senior Indebtedness or any
instrument evidencing the same or any agreement under which Senior
Indebtedness is outstanding; (2) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (3) release any Person liable in any manner for the
collection of Senior Indebtedness; and (4) exercise or refrain from
exercising any rights against the Company and any other Person.
SECTION 1310. Notice to Trustee.
(a) The Company shall give prompt written notice to the Trustee
of any fact known to it which would prohibit the making of any payment
to or by the Trustee in respect of the Securities or coupons
appertaining thereto pursuant to the provisions of this Article.
Notwithstanding the provisions of this Article or any provisions of
this Indenture, the Trustee shall not be charged with knowledge of the
existence of any fact that would prohibit the making of any payment to
or by the Trustee in respect of the Securities or coupons appertaining
thereto pursuant to the provisions of this Article, unless and until
the Trustee shall have received written notice thereof from the
Company, or a holder of Senior Indebtedness or from any trustee,
fiduciary or agent therefor at least ten Business Days prior to such
payment date; and, prior to the receipt of any such written notice,
the Trustee, subject to the provisions of Section 601, shall be
entitled in all respects to assume that no such facts exist; provided,
however, that, if the Trustee shall not have received the notice
provided for in this Section 1310 at least ten Business Days prior to
the date upon which by the terms hereof any money may become payable
for any purpose (including, without limitation, the payment of the
principal of (or premium, if any) or interest on any Security or
coupon), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purpose for which such
money was received and shall not be affected by any notice to the
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contrary which may be received by it within ten Business Days prior to
such date.
(b) Subject to the provisions of Section 601, the Trustee shall
be entitled to rely on the delivery to it of a written notice by a
Person representing himself to be a holder of Senior Indebtedness (or
such holder's representative or a trustee therefor) to establish that
such notice has been given by a holder of Senior Indebtedness (or such
holder's representative or a trustee on behalf of such holder). In
the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a
holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of Senior Indebtedness held by such Person,
the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of
such Person under this Article 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 1311. Reliance on Judicial Order or Certificate of
Liquidating Agent.
Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee, subject to the provisions of
Section 601, and the Holders of the Securities shall be entitled to
rely upon any order or decree entered by any court of competent
jurisdiction in which such insolvency, bankruptcy, receivership,
liquidation, reorganization, dissolution, winding up or similar case
or proceeding of the Company is pending, or a certificate of the
trustee in bankruptcy, receiver, liquidating trustee, custodian,
assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Trustee or to the
Holders of Securities or coupons appertaining thereto, for the purpose
of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other
indebtedness of the Company, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article.
SECTION 1312. Trustee Not Fiduciary for Holders of Senior
Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such
holders if it shall in good faith mistakenly pay over or distribute to
Holders of the Securities or coupons appertaining thereto or to the
Company or to any other Person cash, property or securities to which
any holder of Senior Indebtedness shall be entitled by virtue of this
Article or otherwise.
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SECTION 1313. Rights of Trustee as a Holder of Senior Indebtedness;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all
the rights set forth in this Article with respect to any Senior
Indebtedness which may at any time be held by it, to the same extent
as any other holder of Senior Indebtedness, and nothing in this
Indenture shall deprive the Trustee of any of its rights as such
holder. Notwithstanding anything to the contrary in this Indenture,
nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 607.
SECTION 1314. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall
have been appointed by the Company and be then acting hereunder, the
term "Trustee" as used in this Article shall in such case (unless the
context otherwise requires) be construed as extending to and including
such Paying Agent within its meaning as fully for all intents and
purposes as if such Paying Agent were named in this Article in
addition to or in place of the Trustee; provided, however, that
Section 1311 shall not apply to the Company or any of its respective
Affiliates if it or such Affiliate acts as Paying Agent.
SECTION 1315. No Suspension of Remedies.
Nothing contained in this Article shall limit the right of the
Trustee or the Holders of Securities to take any action to accelerate
the maturity of the Securities pursuant to Article Five or to pursue
any rights or remedies hereunder or under applicable law.
SECTION 1316. Trust Moneys Not Subordinated.
Notwithstanding anything contained herein to the contrary,
payments from cash or the proceeds of U.S. Government Obligations held
in trust under Section 403, Section 1105 or Section 1203 hereof, or
the delivery of Securities held in trust under Section 1203 hereof, by
the Trustee (or other qualifying trustee) and which were deposited
without violation of the terms of this Article (as this Article may be
amended or supplemented from time to time in accordance with the
provisions of this Indenture) for the payment of principal of (and
premium, if any) and interest on the Securities or the payment of the
coupons appertaining thereto or on account of any redemption or
sinking fund provisions for the Securities shall not be subordinated
to the prior payment of any Senior Indebtedness or subject to the
restrictions set forth in this Article, and none of the Holders shall
be obligated to pay over any such amount to the Company or any holder
of Senior Indebtedness or any other creditor of the Company.
ARTICLE FOURTEEN
REPAYMENT AT THE OPTION OF HOLDERS
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SECTION 1401. Applicability of Article.
Securities of any series which are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in
accordance with the terms of the Securities of such series. The
repayment of any principal amount of Securities pursuant to such
option of the Holder to require repayment of Securities before their
Stated Maturity, for purposes of Section 309, shall not operate as a
payment, redemption or satisfaction of the indebtedness represented by
such Securities unless and until the Company, at its option, shall
deliver or surrender the same to the Trustee with a directive that
such Securities be cancelled. Notwithstanding anything to the
contrary contained in this Article, in connection with any repayment
of Securities, the Company may arrange for the purchase of any
Securities by an agreement with one or more investment bankers or
other purchasers to purchase such Securities by paying to the Holders
of such Securities on or before the close of business on the repayment
date an amount not less than the repayment price payable by the
Company on repayment of such Securities, and the obligation of the
Company to pay the repayment price of such Securities shall be
satisfied and discharged to the extent such payment is so paid by such
purchasers.
ARTICLE FIFTEEN
CONVERSION OF SECURITIES
SECTION 1501. Conversion Privilege and Conversion Price.
As specified in relation to the Securities of any series pursuant
to Section 301, and subject to and upon compliance with the provisions
of this Article, at the option of the Holder thereof, any Security
which by its terms may be converted, or any portion of the principal
amount of any such Security which equals $1,000 or an integral
multiple thereof, may be converted at the principal amount thereof, or
of such portion thereof, into fully paid and non-assessable Common
Shares (calculated as to each conversion to the nearest 1/100 of a
share) or other securities of the Company as specified in relation to
such Securities pursuant to Section 301, at the conversion price,
determined as hereinafter provided, in effect at the time of
conversion. Such conversion right shall expire at the close of
business on the date specified for Securities of such series; provided
that, if a Security or portion thereof is called for redemption, such
conversion right in respect of the Security or portion so called shall
expire at the close of business on the Business Day immediately
preceding the Redemption Date, unless the Company defaults in making
the payment due upon redemption.
The price at which Common Shares or other securities of the
Company shall be delivered upon conversion (herein called the
"conversion price") shall be the price specified in relation to the
Securities of such series pursuant to Section 301. The conversion
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price shall be adjusted in certain instances as provided in this
Article.
SECTION 1502. Exercise of Conversion Privilege.
In order to exercise the conversion privilege, the Holder of any
Security to be converted shall surrender such Security, duly endorsed
or assigned to the Company or in blank, at any office or agency of the
Company maintained pursuant to Section 1002, accompanied by written
notice to the Company in the form provided in the Security (or such
other notice as is acceptable to the Company) that the Holder elects
to convert such Security or, if less than the entire principal amount
thereof is to be converted, the portion thereof to be converted. In
the case of any Security that is surrendered for conversion during the
period from the close of business on any Regular Record Date through
and including the next succeeding Interest Payment Date (other than
any Security whose Maturity is prior to such Interest Payment Date),
interest whose Stated Maturity is on such Interest Payment Date shall
be payable on such Interest Payment Date notwithstanding such
conversion (and consequent cancellation pursuant to Section 309) or,
subject to the proviso below and the provisions of Section 1105, any
call of such Security for redemption, and such interest (whether or
not punctually paid or duly provided for) shall be paid to the Person
in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on such Regular Record Date;
provided, however, that Securities so surrendered for conversion shall
(except in the case of Securities or portions thereof which have been
called for redemption on a Redemption Date that is prior to such
Interest Payment Date) be accompanied by payment in New York Clearing
House funds or other funds acceptable to the Company of an amount
equal to the interest payable on such Interest Payment Date on the
principal amount being surrendered for conversion. Except as provided
in the immediately preceding sentence, in the case of any Security
which is converted (a) interest whose Stated Maturity is after the
date of conversion of such Security shall not be payable, and (b) no
adjustment shall be made for interest accrued on such Security.
Securities shall be deemed to have been converted immediately
prior to the close of business on the day of surrender of such
Securities for conversion in accordance with the foregoing provisions,
and at such time the rights of the Holders of such Securities as
Holders shall cease, and the Person or Persons entitled to receive the
Common Shares or other securities of the Company issuable upon
conversion shall be treated for all purposes as the record holder or
holders of such Common Shares or securities as and after such time.
As promptly as practicable on or after the conversion date the Company
shall issue and shall deliver at such office or agency of the Company
maintained pursuant to Section 1002 a certificate or certificates for
the number of full Common Shares or a certificate, instrument or other
document evidencing such other securities of the Company issuable upon
conversion, together with any payment in lieu of any fraction of a
share or security, as provided in Section 1503.
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In the case of any Security which is converted in part only, upon
such conversion the Company shall execute and the Trustee shall
authenticate and deliver to the Holder thereof, at the expense of the
Company, a new Security or Securities of authorized denominations in
aggregate principal amount equal to the unconverted portion of the
principal amount of such Security.
No payment or adjustment shall be made upon any conversion on
account of any dividends or distributions on the Common Shares or any
interest, dividends or distributions on other securities of the
Company issued upon conversion.
SECTION 1503. Fractions of Shares.
No fractional Common Shares or scrip representing fractions of
shares or, except as otherwise specified pursuant to Section 301,
fractions of other securities of the Company shall be issued upon
conversion of Securities. If more than one Security shall be
surrendered for conversion at one time by the same Holder, the number
of full shares or securities of the Company which shall be issuable
upon conversion thereof shall be computed on the basis of the
aggregate principal amount of the Securities (or specified portions
thereof) so surrendered. If any fractional Common Share or, except as
otherwise specified pursuant to Section 301, other security of the
Company would, except for the provisions of this Section 1503, be
issuable upon conversion of any Security or Securities, the Company
shall make an adjustment therefor in cash at the current market value
thereof. The market value of a Common Share shall be the closing
price on the Business Day immediately preceding the day on which the
Securities (or specified portions thereof) are deemed to have been
converted and such closing price shall be determined as provided in
subsection 1504(a)(4). The market value of securities of the Company
other than Common Shares which are issuable upon conversion of the
Securities shall be specified in relation to the Securities of such
series pursuant to Section 301. When any payment is required, the
Company shall give the Trustee and any conversion agent a written
notification of the closing price used to determine the amount of such
payment and the Trustee and any conversion agent shall be entitled to
rely on such notification.
SECTION 1504. Adjustment of Conversion Price.
(a) Except as otherwise specified pursuant to Section 301, the
conversion price for Securities of any series, which by the terms of
such Securities may be converted in Common Shares, shall be adjusted
from time to time as follows:
(1) In case the Company shall (i) pay a dividend or
make a distribution on its Common Shares in Common Shares, (ii)
subdivide its outstanding Common Shares into a greater number of
shares, or (iii) combine its outstanding Common Shares into a
smaller number of shares, the conversion price in effect
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immediately prior thereto shall be adjusted so that the Holder of
any Security thereafter surrendered for conversion shall be
entitled to receive the number of Common Shares of the Company
which he would have owned or have been entitled to receive after
the happening of any of the events described above had such
Security been converted immediately prior to the happening of
such event. An adjustment made pursuant to this subsection (1)
shall become effective immediately, except as provided in
subsection (7) below, after the record date in the case of a
dividend and shall become effective immediately after the
effective date in the case of subdivision or combination.
(2) In case the Company shall issue rights (other than
the Rights) or warrants to all holders of its Common Shares
entitling them (for a period expiring within 45 days after the
record date mentioned below) to subscribe for or purchase Common
Shares at a price per share less than the current market price
per Common Share (as defined in subsection (4) below) at the
record date for the determination of shareholders entitled to
receive such rights or warrants, the conversion price in effect
immediately prior thereto shall be adjusted so that the same
shall equal the price determined by multiplying the conversion
price in effect immediately prior to the date of issuance of such
rights or warrants by a fraction of which the numerator shall be
the number of Common Shares outstanding on the date of issuance
of such rights or warrants plus the number of shares which the
aggregate offering price of the total number of shares so offered
would purchase at such current market price, and of which the
denominator shall be the number of Common Shares outstanding on
the date of issuance of such rights or warrants plus the number
of additional Common Shares offered for subscription or purchase.
Such adjustment shall be made successively, whenever any such
rights or warrants are issued, and shall become effective
immediately, except as provided in subsection (7) below, after
such record date. In determining whether any rights or warrants
entitle the Holders of the Securities to subscribe for or
purchase Common Shares at less than such current market price,
and in determining the aggregate offering price of such Common
Shares, there shall be taken into account any consideration
received by the Company for such rights or warrants, the value of
such consideration, if other than cash, to be determined by the
Board of Directors.
(3) In case the Company shall distribute to all
holders of its Common Shares evidences of its indebtedness or
assets (excluding cash dividends or distributions paid from
retained earnings of the Company) or rights (other than the
Rights) or warrants to subscribe for or purchase any of its
securities (excluding those referred to in subsection (2) above),
then in each such case, unless the Company elects to reserve
shares or other units of any of the foregoing for distribution to
the Holders upon the conversion of the Securities so that any
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Holder converting Securities will receive upon such conversion,
in addition to the Common Shares to which such Holder is
entitled, the amount and kind of any of the foregoing which such
Holder would have received if such Holder had, immediately prior
to the record date for the distribution of any of the foregoing,
converted its Securities into Common Shares, the conversion price
shall be adjusted so that the same shall equal the price
determined by multiplying the conversion price in effect
immediately prior to the date of such distribution by a fraction
of which the numerator shall be the current market price per
Common Share (as defined in subsection (4) below) on the record
date mentioned below less the then fair market value (as
determined by the Board of Directors of the Company, whose
determination shall, if made in good faith, be conclusive, and
described in a certificate filed with the Trustee) of the portion
of the Common Shares or assets or evidences of indebtedness so
distributed or of such rights or warrants applicable to one
Common Share, and of which the denominator shall be the current
market price per Common Share (as defined in subsection (4)
below). Such adjustment shall become effective immediately,
except as provided in subsection (7) below, after the record date
for the determination of shareholders entitled to receive such
distribution.
(4) For the purpose of any computation under
subsections (2) and (3) above, the current market price per
Common Share on any date shall be deemed to be the average of the
daily closing prices for the thirty consecutive Trading Days
before the date in question. The closing price for each day
shall be the last reported sale price regular way on the New York
Stock Exchange, or, if not reported for such Exchange, on the
Composite Tape, or, in case no such reported sale takes place on
such day, the average of the reported closing bid and asked
quotations on the New York Stock Exchange, or, if the Common
Shares are not listed on such Exchange or no such quotations are
available, the average of the high bid and low asked quotations
in the over-the-counter market as reported by the National
Quotation Bureau, Incorporated, or similar organization, or, if
no such quotations are available, the fair market value of such
class of stock as determined by a member firm of the New York
Stock Exchange, Inc. selected by the Company. As used herein the
term "Trading Days" with respect to Common Shares means (i) if
the Common Shares are listed or admitted for trading on the New
York Stock Exchange or any national securities exchange, days on
which the New York Stock Exchange or such national securities
exchange is open for business or (ii) if the Common Shares are
quoted on the National Market of the National Association of
Securities Dealers, Inc. Automated Quotation System or any sim-
ilar system of automated dissemination of quotations of
securities prices, days on which trades may be made on such
system.
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(5) No adjustment in the conversion price shall be
required unless such adjustment would require an increase or
decrease of at least 1 percent in such price; provided, however,
that any adjustments which by reason of this subsection (5) are
not required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under
this Article shall be made to the nearest cent or to the nearest
one hundredth of a share, as the case may be. Anything in this
Section 1504 to the contrary notwithstanding, the Company shall
be entitled to make such reductions in the conversion price, in
addition to those required by this Section 1504, as it in its
discretion shall determine to be advisable in order that any
stock dividends, subdivision of shares, distribution of rights or
warrants to purchase stock or securities, or a distribution of
other assets (other than cash dividends) hereafter made by the
Company to its shareholders shall not be taxable.
(6) In any case in which this Section 1504 provides
that an adjustment shall become effective immediately after a
record date for an event, the Company may defer until the
occurrence of such event (i) issuing to the Holder of any
Security converted after such record date and before the
occurrence of such event the additional Common Shares issuable
upon such conversion by reason of the adjustment required by such
event over and above the Common Shares issuable upon such
conversion before giving effect to such adjustment and (ii)
paying to such holder any amount in cash in lieu of any fraction
pursuant to Section 1503.
(b) The conversion price for Securities, which by the terms of
such Securities may be converted into securities of the Company other
than Common Shares, shall be adjusted from time to time as specified
in relation to the Securities of such series pursuant to Section 301.
SECTION 1505. Notice of Adjustments of Conversion Price.
Whenever the conversion price is adjusted, as herein provided,
the Company shall promptly file with the Trustee and any conversion
agent other than the Trustee an Officers' Certificate setting forth
the conversion price after such adjustment and setting forth a brief
statement of the facts requiring such adjustment, which certificate
shall be conclusive evidence of the correctness of such adjustment.
Promptly after delivery of such certificate, the Company shall prepare
a notice of such adjustment of the conversion price setting forth the
adjusted conversion price and the date on which such adjustment
becomes effective and shall mail such notice of such adjustment of the
conversion price to the Holder of each Security of that series at his
last address appearing on the Security Register.
SECTION 1506. Notice of Certain Corporate Actions.
In case:
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(a) the Company shall declare a dividend (or any other
distribution) on its Common Shares payable otherwise than exclusively
in cash;
(b) the Company shall authorize the granting to the holders of
its Common Shares of rights, options or warrants to subscribe for or
purchase any capital shares of any class or of any other rights
(excluding capital shares or options for capital shares issued
pursuant to a benefit plan for employees, officers or directors of the
Company or its Subsidiaries or Affiliates); or
(c) of any reclassification of the Common Shares (other than a
subdivision or combination of the outstanding Common Shares), or of
any consolidation, merger or share exchange to which the Company is a
party and for which approval of any shareholders of the Company is
required, or of the sale or transfer of substantially all the assets
of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company; or
(e) the Company or any Subsidiary or Affiliate shall commence a
tender offer for all or a portion of the outstanding Common Shares (or
shall amend any such tender offer to change the maximum number of
shares being sought or the amount or type of consideration being
offered therefor);
then the Company shall cause to be delivered to each office or agency
maintained pursuant to Section 1002, and shall cause to be mailed to
all Holders of Securities of each series which may be converted
pursuant to Section 1501 at their last addresses as they shall appear
in the Security Register, at least 20 days (or 10 days in any case
specified in clause (a), (b) or (c) above) prior to the applicable
record, effective or expiration date hereinafter specified, a notice
stating (x) the date on which a record is to be taken for the purpose
of such dividend, distribution or granting of rights or warrants, or,
if a record is not to be taken, the date as of which the holders of
Common Shares of record who will be entitled to such dividend,
distribution, rights or warrants are to be determined, (y) the date on
which such reclassification, consolidation, merger, share exchange,
sale, transfer, dissolution, liquidation or winding up is expected to
become effective, and the date as of which it is expected that holders
of Common Shares of record shall be entitled to exchange their Common
Shares for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, share exchange, sale,
transfer, dissolution, liquidation or winding up, or (z) the date on
which such tender offer commenced, the date on which such tender offer
is scheduled to expire unless extended, the consideration offered and
the other material terms thereof (or the material terms of any
amendment thereto). Neither the failure to give any such notice nor
any defect therein shall affect the legality or validity of any action
described in clauses (a) through (e) of this Section 1506.
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SECTION 1507. Company to Reserve Common Shares.
The Company shall at all times reserve and keep available, free
from preemptive rights, out of the authorized but unissued Common
Shares or out of the Common Shares held in treasury, for the purpose
of effecting the conversion of Securities, the full number of shares
of Common Shares then issuable upon the conversion of all outstanding
Securities.
SECTION 1508. Taxes on Conversions.
The Company will pay any and all original issuance, transfer,
stamp and other similar taxes that may be payable in respect of the
issue or delivery of Common Shares or other securities of the Company
on conversion of Securities pursuant hereto. The Company shall not,
however, be required to pay any tax which may be payable in respect of
any transfer involved on the issue and delivery of Common Shares or
other securities of the Company in a name other than that of the
Holder of the Security or Securities to be converted, and no such
issue or delivery shall be made unless and until the Person requesting
such issue has paid to the Company the amount of any such tax, or has
established to the satisfaction of the Company that such tax has been
paid.
SECTION 1509. Covenant as to Common Shares.
The Company covenants that all shares of Common Shares which may
be issued upon conversion of Securities will upon issue be validly
issued, fully paid and non assessable.
SECTION 1511. Cancellation of Converted Securities.
All Securities delivered for conversion shall be delivered to the
Trustee to be cancelled by or at the direction of the Trustee as
provided in Section 309.
SECTION 1512. Provisions as to Reclassification, Consolidation,
Merger or Sale of Assets.
If any of the following events, namely (i) the reclassification
or change of outstanding Common Shares (other than a change in par
value, or from par value to no par value, or from no par value to par
value, or as a result of a subdivision or combination), (ii) any
consolidation, merger or combination of the Company with another
corporation as a result of which holders of Common Shares shall be
entitled to receive stock, securities or other property or assets
(including cash) with respect to or in exchange for such Common
Shares, or (iii) any sale or conveyance of the properties and assets
of the Company as, or substantially as, an entirety to any other
entity as a result of which holders of Common Shares shall be entitled
to receive stock, securities or other property or assets (including
cash) with respect to or in exchange for such Common Shares, shall
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occur, then the Company or the successor or purchasing entity, as the
case may be, shall execute with the Trustee a supplemental indenture
(which shall conform to the Trust Indenture Act as in force at the
date of execution of such supplemental indenture) providing that each
Security shall be convertible into the kind and amount of shares of
stock and other securities or property or assets (including cash)
receivable upon such reclassification, change, consolidation, merger,
combination, sale or conveyance by a holder of the number of Common
Shares issuable upon conversion of such Security immediately prior to
such reclassification, change, consolidation, merger, combination,
sale or conveyance, assuming such holder of Common Shares (i) is not a
Person with which the Company consolidated or into which the Company
merged or which merged into the Company or to which such sale or
transfer was made, as the case may be (a "Constituent Person"), or an
Affiliate of a Constituent Person and (ii) failed to exercise his
rights of election, if any, as to the kind or amount of securities,
cash and other property receivable upon such consolidation, merger,
sale or transfer (provided that if the kind or amount of securities,
cash and other property receivable upon such consolidation, merger,
sale or transfer is not the same for each Common Share held
immediately prior to such consolidation, merger, sale or transfer by
other than a Constituent Person or an Affiliate thereof and in respect
of which such rights of election shall not have been exercised
("nonelecting share"), then for the purpose of this Section 1512 the
kind and amount of securities, cash and other property receivable upon
such consolidation, merger, sale or transfer by each nonelecting share
shall be deemed to be the kind and amount so receivable per share by a
plurality of the nonelecting shares). Such supplemental indenture
shall provide for adjustments that for events subsequent to the
effective date of such supplemental indenture shall be a nearly
equivalent as may be practicable to the adjustments provided for in
this Article. The above provisions of this Section 1512 shall
similarly apply to successive consolidations, mergers, sales or
transfers.
SECTION 1513. Trustee Not Responsible For Determining Conversion
Price or Adjustments.
Neither the Trustee nor any conversion agent shall at any time be
under any duty or responsibility to any Holder of any Security to
determine whether any facts exist which may require any adjustment of
the conversion price, or with respect to the nature or extent of any
such adjustment when made, or with respect to the method employed, or
herein or in any supplemental indenture provided to be employed, in
making the same. Neither the Trustee nor any conversion agent shall
be accountable with respect to the validity or value (or the kind or
amount) of any Common Shares or of any securities or property, which
may at any time be issued or delivered upon the conversion of any
Security; and neither the Trustee nor any conversion agent makes any
representation with respect thereto. Neither the Trustee nor any
conversion agent shall be responsible for any failure of the Company
to make any cash payment or to issue, transfer or deliver any Common
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Shares or stock certificates or other securities or property upon the
surrender of any Security for the purpose of conversion.
SECTION 1514. Rights Issued in Respect of Common Shares Issued on
Certain Conversions.
Each Common Share issued upon conversion of Securities pursuant
to this Article on or prior to the close of business on the earliest
of (i) the Distribution Date (as defined in the Rights Agreement),
(ii) any date on which the Rights (as defined in the Rights Agreement)
are redeemed in accordance with the Rights Agreement or (iii) the
Final Expiration Date (as defined in the Rights Agreement), shall in
accordance with the Rights Agreement also evidence one Right, and the
certificates for such Common Shares shall bear the legend set forth in
Section Three of the Rights Agreement. In addition, holders of the
Securities converted into Common Shares after the Distribution Date,
but prior to the earlier of (x) any date fixed for redemption of the
Rights in accordance with the Rights Agreement and (y) the Final
Expiration Date, shall be entitled to the issuance, in the manner
provided in the Rights Agreement, of Rights Certificates (as defined
in the Rights Agreement) representing the appropriate number of Rights
in connection with the issuance of Common Shares upon conversion of
Securities. Notwithstanding the foregoing, Holders of Securities
converted into Common Shares shall not be entitled to Rights or the
issuance of Rights Certificates if at the time of conversion all
Rights under the Rights Agreement have been terminated or cancelled.
Holders who have not converted Securities on or prior to any such date
fixed for redemption of Rights will not be entitled to the redemption
price in respect thereof or to any adjustment therefor.
ARTICLE SIXTEEN
MISCELLANEOUS PROVISIONS
SECTION 1601. Securities in Foreign Currencies.
Whenever this Indenture provides for (i) any action by, or the
determination of any of the rights of, Holders of Securities of any
series in which not all of such Securities are denominated in the same
currency, or (ii) any distribution to Holders of Securities, in the
absence of any provision to the contrary in the form of Security of
any particular series, any amount in respect of any Security
denominated in a currency other than Dollars shall be treated for any
such action or distribution as that amount of Dollars that could be
obtained for such amount on such reasonable basis of exchange and as
of the record date with respect to Registered Securities of such
series (if any) for such action, determination of rights or
distribution (or, if there shall be no applicable record date, such
other date reasonably proximate to the date of such action,
determination of rights or distribution) as the Company may specify in
a written notice to the Trustee.
* * * *
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This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all
such counterparts shall together constitute but one and the same
Instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be
hereunto affixed, all as of the day and year first above written.
ARVIN INDUSTRIES, INC.
[SEAL] By ________________________
Vice President-Finance
Attest:
________________________
Assistant Secretary
NBD BANK, NATIONAL ASSOCIATION
[SEAL] By ________________________
Authorized Officer
Attest:
________________________
Assistant Secretary
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STATE OF _________ )
) ss.:
COUNTY OF _______ )
On the ____ day of ______________ before me personally came
_________________________ to me known, who, being by me duly sworn,
did depose and say that he resides at
________________________________, that he is
_________________________________ of Arvin Industries, Inc., one of
the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation,
and that he signed his name thereto by like authority.
________________________________
Notary Public
STATE OF _________ )
) ss.:
COUNTY OF _______ )
On the ____ day of ______________, before me personally came
________________________ to me known, who, being by me duly sworn, did
depose and say that he resides at ________________________________,
that he is a ___________________________________________ of NBD Bank,
National Association, one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by
like authority.
________________________________
Notary Public
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EXHIBIT 4-6
-------------------------------------------
DEPOSIT AGREEMENT<*>
-------------------------------------------
Dated as of _______________, 19___
among
ARVIN INDUSTRIES, INC.,
______________________, as Depositary
and
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
<*>OPTIONS REPRESENTED BY BRACKETED OR BLANK SECTIONS HEREIN SHALL BE
DETERMINED IN CONFORMITY WITH APPLICABLE PROSPECTUS SUPPLEMENT OR
SUPPLEMENTS.
TABLE OF CONTENTS<*>
Page
------
ARTICLE I DEFINITIONS
SECTION 1.01. "Agent" . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. "Articles of Incorporation" . . . . . . . . . 1
SECTION 1.03. "Common Shares" . . . . . . . . . . . . . . . 1
SECTION 1.04. "Company" . . . . . . . . . . . . . . . . . . 1
SECTION 1.05. "Corporate Office" . . . . . . . . . . . . . . 1
SECTION 1.06. "Deposit Agreement" . . . . . . . . . . . . . 2
SECTION 1.07. "Depositary" . . . . . . . . . . . . . . . . 2
SECTION 1.08. "Depositary Share" . . . . . . . . . . . . . . 2
SECTION 1.09. "Holder" . . . . . . . . . . . . . . . . . . . 2
SECTION 1.10. "Preferred Share Amendment" . . . . . . . . . 2
SECTION 1.11. "Preferred Shares" . . . . . . . . . . . . . 2
SECTION 1.12. "Receipt" . . . . . . . . . . . . . . . . . . 2
SECTION 1.13. "Registrar" . . . . . . . . . . . . . . . . . 2
SECTION 1.14. "Securities Act" . . . . . . . . . . . . . . 2
ARTICLE II FORM OF RECEIPTS, DEPOSIT OF PREFERRED SHARES,
EXECUTION AND DELIVERY, TRANSFER, SURRENDER AND REDEMPTION
OF RECEIPTS
SECTION 2.01. Form and Transferability of Receipts. . . . . 2
SECTION 2.02. Deposit of Preferred Shares; Execution and
Delivery of Receipts in Respect Thereof. . . . . . . . 4
SECTION 2.03. Optional Redemption of Preferred Shares. . . 5
SECTION 2.04. Registration of Transfer of Receipts. . . . . 7
SECTION 2.05. Combinations and Split-Ups of Receipts. . . . 7
SECTION 2.06. Limitations on Execution and Delivery,
Transfer, Split-up, Combination, Surrender and Exchange
of Receipts . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.07. Lost Receipts, Etc. . . . . . . . . . . . . . 8
SECTION 2.08. Cancellation and Destruction of Surrendered
Receipts . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.09. Conversion or Exchange of Preferred Shares
Into Common Shares or Other Securities . . . . . . . . 8
SECTION 2.10. Prohibition Against Lending Depositary Shares
or Receipts . . . . . . . . . . . . . . . . . . . . . . 11
[Section 2.11. Surrender of Receipts and Withdrawal of
Preferred Shares . . . . . . . . . . . . . . . . . . . 12
ARTICLE III CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE
COMPANY
SECTION 3.01. Filing Proofs, Certificates and Other
Information . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 3.02. Payment of Fees and Expenses . . . . . . . . 13
SECTION 3.03. Representations and Warranties as to
Preferred Shares . . . . . . . . . . . . . . . . . . . 13
SECTION 3.04. Representation and Warranty as to Receipts . 14
<*>The Table of Contents is not part of the Deposit Agreement.
SECTION 3.05. Covenants and Representation and Warranty as
to Common Shares or Other Securities . . . . . . . . . 14
ARTICLE IV THE PREFERRED SHARES; NOTICES
SECTION 4.01. Rights of Owners of Depositary Shares . . . . 14
SECTION 4.02. Cash Distributions . . . . . . . . . . . . . 14
SECTION 4.03. Distributions Other Than Cash . . . . . . . . 15
SECTION 4.04. Subscription Rights, Preferences or
Privileges . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 4.05. Notice of Dividends; Fixing of Record Date
for Holders of Receipts . . . . . . . . . . . . . . . . 16
SECTION 4.06. Voting Rights . . . . . . . . . . . . . . . . 17
SECTION 4.07. Changes Affecting Preferred Shares and
Reclassifications, Recapitalizations, Etc. . . . . . . 17
SECTION 4.08. Inspection of Reports . . . . . . . . . . . . 18
SECTION 4.09. Lists of Receipt Holders . . . . . . . . . . 18
SECTION 4.10. Tax and Regulatory Compliance . . . . . . . . 18
ARTICLE V THE DEPOSITARY AND THE COMPANY
SECTION 5.01. Maintenance of Offices, Agencies and Transfer
Books by the Depositary and the Registrar . . . . . . . 18
SECTION 5.02. Prevention or Delay in Performance by the
Depositary, Any Agent, the Registrar or the Company . . 19
SECTION 5.03. Obligations of the Depositary, any Agent, the
Registrar and the Company . . . . . . . . . . . . . . . 19
SECTION 5.04. Resignation and Removal of the Depositary;
Appointment of Successor Depositary . . . . . . . . . . 21
SECTION 5.05. Corporate Notices and Reports . . . . . . . . 22
SECTION 5.06 Indemnification by the Company . . . . . . . . 22
SECTION 5.07. Fees, Charges and Expenses . . . . . . . . . 22
ARTICLE VI AMENDMENT AND TERMINATION
SECTION 6.01. Amendment. . . . . . . . . . . . . . . . . . 23
SECTION 6.02. Termination . . . . . . . . . . . . . . . . . 23
ARTICLE VII MISCELLANEOUS
SECTION 7.01. Counterparts . . . . . . . . . . . . . . . . 25
SECTION 7.02. Exclusive Benefits of Parties . . . . . . . . 25
SECTION 7.03. Invalidity of Provisions . . . . . . . . . . 25
SECTION 7.04. Notices . . . . . . . . . . . . . . . . . . . 25
SECTION 7.05. Holders of Receipts are Parties . . . . . . . 26
SECTION 7.06. Governing Law . . . . . . . . . . . . . . . . 26
SECTION 7.07. Inspection of Deposit Agreement and Preferred
Share Amendment. . . . . . . . . . . . . . . . . . . . 26
SECTION 7.08. Headings . . . . . . . . . . . . . . . . . . 26
-ii-
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of ________, 19___, among ARVIN
INDUSTRIES, INC. an Indiana corporation, ____________________, as
Depositary, and all Holders from time to time of the Receipts
described herein.
WITNESSETH:
WHEREAS, it is desired to provide, as hereinafter set forth in
this Deposit Agreement, for the deposit by the Company of certain of
the Company's Preferred Shares with the Depositary for the purposes
set forth in this Deposit Agreement and for the issuance hereunder of
the Receipts evidencing Depositary Shares representing an interest in
the Preferred Shares deposited; and
WHEREAS, the Receipts are to be substantially in the form of
Exhibit A annexed to this Deposit Agreement, with appropriate
insertions, modifications and omissions, as hereinafter provided in
this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises contained
herein, it is agreed by and among the parties hereto as follows:
ARTICLE I
DEFINITIONS
The following definitions shall apply to the respective terms (in
the singular and plural forms of such terms) used in this Deposit
Agreement and the Receipts:
SECTION 1.01. "Agent" shall mean any agent of the Depositary
appointed by the Depositary from time to time to act in any respect
for the Depositary for purposes of this Deposit Agreement and the
appointment of which may be modified or terminated by the Depositary.
The Depositary will notify the Company of any such action.
SECTION 1.02. "Articles of Incorporation" shall mean the Restated
Articles of Incorporation, as amended and/or restated from time to
time, of the Company.
SECTION 1.03. "Common Shares" shall mean the Company's Common
Shares, $2.50 par value per share, or shares of any class resulting
from any reclassification thereof.
SECTION 1.04. "Company" shall mean Arvin Industries, Inc., an
Indiana corporation, and its successors.
SECTION 1.05. "Corporate Office" shall mean the corporate office
of the Depositary in _________________________________ at which at any
particular time its business in respect of matters governed by this
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Deposit Agreement shall be administered, which at the date of this
Deposit Agreement is located at ____________________.
SECTION 1.06. "Deposit Agreement" shall mean this agreement, as
the same may be amended, modified or supplemented from time to time.
SECTION 1.07. "Depositary" shall mean ____________________, a
company having its principal office in the United States and having a
combined capital and surplus of at least $50,000,000, and any
successor as depositary hereunder.
SECTION 1.08. "Depositary Share" shall mean an interest in the
following specified fraction, namely one ______ (1/__), of one share
of the Preferred Shares deposited by the Company with the Depositary
hereunder and the same proportionate interest in any and all other
property received by the Depositary in respect of such Preferred
Shares and held under this Deposit Agreement, all as evidenced by the
Receipts.
SECTION 1.09. "Holder", as applied to a Receipt, shall mean the
person in whose name an outstanding Receipt is registered on the books
maintained by the Depositary for such purpose.
SECTION 1.10. "Preferred Share Amendment" shall mean the
Preferred Share Amendment of the Restated Articles of Incorporation
filed with the Secretary of State of Indiana establishing the
Preferred Shares as a series of Preferred Shares.
SECTION 1.11. "Preferred Shares" shall mean shares of the
Company's ________________________________ Preferred Shares, with no
par value per share, as specified in the Preferred Share Amendment.
SECTION 1.12. "Receipt" shall mean a depositary receipt issued
hereunder to evidence one or more Depositary Shares, whether in
definitive or temporary form, substantially in the form set forth as
Exhibit A hereto.
SECTION 1.13. "Registrar" shall mean any bank or trust company
appointed to register ownership and transfers of Receipts as herein
provided.
SECTION 1.14. "Securities Act" shall mean the Securities Act of
1933, as amended.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF PREFERRED SHARES, EXECUTION AND
DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.01. Form and Transferability of Receipts. Definitive
Receipts shall be engraved, printed or lithographed, with steel-
engraved borders and underlying tint, and shall be substantially in
the form set forth in Exhibit A attached hereto, with appropriate
-2-
insertions, modifications and omissions, as hereinafter provided.
Pending the preparation of definitive Receipts, the Depositary, upon
the written order of the Company, delivered in compliance with Section
2.02, shall execute and deliver temporary Receipts, which may be
printed, lithographed, typewritten, reproduced or otherwise,
substantially of the tenor of the definitive Receipts in lieu of which
they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the persons executing such
Receipts may determine, as evidenced by their execution of such
Receipts. If temporary Receipts are issued, the Company and the
Depositary will cause definitive Receipts to be prepared without
unreasonable delay. After the preparation of definitive Receipts, the
temporary Receipts shall be exchangeable for definitive Receipts upon
surrender of the temporary Receipts at the Corporate Office or such
other office or offices, if any, as the Depositary may designate,
without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Receipts, the Depositary shall execute and
deliver in exchange therefor definitive Receipts representing the same
number of Depositary Shares represented by the surrendered temporary
Receipt or Receipts. Such exchange shall be made at the Company's
expense and without any charge therefor. Until so exchanged, the
temporary Receipts shall in all respects be entitled to the same
benefits under this Agreement, and with respect to the Preferred
Shares deposited hereunder, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual
signature of a duly authorized signatory of the Depositary, provided
that such signature may be a facsimile if a Registrar (other than the
Depositary) shall have countersigned the Receipts by manual signature
of a duly authorized signatory of the Registrar. No Receipt shall be
entitled to any benefits under this Deposit Agreement or be valid or
obligatory for any purpose unless it shall have been executed as
provided in the preceding sentence. The Depositary shall record on
its books each Receipt executed as provided above and delivered as
hereinafter provided.
Except as the Depositary may otherwise determine, Receipts shall
be in denominations of any number of whole Depositary Shares. All
Receipts shall be dated the date of their issuance.
Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or changes not inconsistent with the
provisions of this Deposit Agreement as may be required by the
Depositary or required to comply with any applicable law or regulation
or with the rules and regulations of any securities exchange upon
which the Preferred Shares, the Depositary Shares or the Receipts may
be listed or to conform with any usage with respect thereto, or to
indicate any special limitations or restrictions to which any
particular Receipts are subject.
Title to any Receipt (and to the Depositary Shares evidenced by
such Receipt) that is properly endorsed or accompanied by a properly
-3-
executed instrument of transfer or endorsement shall be transferable
by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until a Receipt shall be
transferred on the books of the Depositary as provided in Section
2.04, the Depositary and the Company may, notwithstanding any notice
to the contrary, treat the Holder thereof at such time as the absolute
owner thereof for the purpose of determining the person entitled to
receive dividends and other distributions and notices provided for in
this Deposit Agreement and for all other purposes.
SECTION 2.02. Deposit of Preferred Shares; Execution and
Delivery of Receipts in Respect Thereof. Subject to the terms and
conditions of this Deposit Agreement, the Company may from time to
time deposit Preferred Shares under this Deposit Agreement by delivery
to the Depositary of a certificate or certificates for the Preferred
Shares to be deposited, properly endorsed or accompanied, if required
by the Depositary, by a duly executed instrument of transfer or
endorsement, in form satisfactory to the Depositary, together with (i)
all such certifications as may be required by the Depositary in
accordance with the provisions of this Deposit Agreement and (ii) a
written order of the Company directing the Depositary to execute and
deliver to or upon the written order of the person or persons stated
in such order a Receipt or Receipts for the number of Depositary
Shares representing such deposited Preferred Shares.
Upon receipt by the Depositary of a certificate or certificates
for Preferred Shares to be deposited hereunder, together with the
other documents specified above, the Depositary shall, as soon as
transfers and registration can be accomplished, present such
certificate or certificates to the registrar and transfer agent of the
Preferred Shares for transfer and registration in the name of the
Depositary or its nominee of the Preferred Shares being deposited.
Deposited Preferred Shares shall be held by the Depositary in an
account to be established by the Depositary at the Corporate Office or
at such other office as the Depositary shall determine.
Upon receipt by the Depositary of a certificate or certificates
for Preferred Shares to be deposited hereunder, together with the
other documents specified above, and upon registration of the
Preferred Shares on the books of the Company in the name of the
Depositary or its nominee, the Depositary, subject to the terms and
conditions of this Deposit Agreement, shall execute and deliver to or
upon the order of the person or persons named in the written order
delivered to the Depositary referred to in the first paragraph of this
Section 2.02, a Receipt or Receipts for the number of whole Depositary
Shares representing the Preferred Shares so deposited, registered in
such name or names as may be requested by such person or persons. The
Depositary shall execute and deliver such Receipt or Receipts at the
Corporate Office, except that, at the request, risk and expense of any
person requesting such delivery, such delivery may be made at such
other place as may be designated by such person. In each case,
delivery will be made only upon payment to the Depositary of all taxes
-4-
and other governmental charges and any fees payable in connection with
such deposit and the transfer of the deposited Preferred Shares.
Other than in the case of splits, combinations or other
reclassifications affecting the Preferred Shares or in the case of
dividends or other distributions of Preferred Shares, if any, there
shall be deposited hereunder not more than the number of shares
constituting the Preferred Shares as set forth in the Preferred Share
Amendment, as it may be amended.
The Company shall deliver to the Depositary from time to time
such quantities of Receipts as the Depositary may request to enable
the Depositary to perform its obligations under this Deposit
Agreement.
SECTION 2.03. Optional Redemption of Preferred Shares. If the
Preferred Share Amendment provides for redemption of the Preferred
Shares at the option of the Company, the Company (unless otherwise
agreed in writing with the Depositary), whenever it elects to redeem
Preferred Shares, shall give the Depositary not less than _____ days'
prior written notice of the date of such proposed redemption and of
the number of Preferred Shares held by the Depositary to be redeemed
and the applicable redemption price, as set forth in the Preferred
Share Amendment, including the amount, if any, of accrued and unpaid
dividends to the date of such redemption. Provided that the Company
shall have paid such redemption price in full to the Depositary on or
prior to the date of such redemption, the Depositary shall redeem
(using the proceeds of such redemption) the number of Depositary
Shares representing such Preferred Shares so redeemed by the Company.
The Depositary shall mail, first-class postage prepaid, notice of the
redemption of Preferred Shares and the proposed simultaneous
redemption of the Depositary Shares representing the Preferred Shares
to be redeemed, not less than [30] nor more than [60] days prior to
the date fixed for redemption of such Preferred Shares and Depositary
Shares (the "redemption date"), to the Holders on the record date
fixed for such redemption, pursuant to Section 4.04 hereof, of the
Receipts evidencing the Depositary Shares to be so redeemed, at the
addresses of such Holders as the same appear on the records of the
Depositary; but neither failure to mail any such notice to one or more
such Holders nor any defect in any notice shall affect the sufficiency
of the redemption as to other Holders. The Company shall provide the
Depositary with such notice, and each such notice shall state: (i) the
record date for the purposes of such redemption; (ii) the redemption
date; (iii) the number of Depositary Shares to be redeemed; (iv) if
fewer than all the Depositary Shares held by any Holder are to be
redeemed, the number of such Depositary Shares held by such Holder to
be so redeemed; (v) the redemption price; (vi) the place or places
where Receipts evidencing Depositary Shares to be redeemed are to be
surrendered for payment of the redemption price; (vii) that, from and
after the redemption date, dividends in respect of the Preferred
Shares represented by the Depositary Shares to be redeemed will cease
to accrue and all other rights with respect to such Depositary Shares
-5-
will cease and terminate; and (viii) in the event that the Depositary
Shares evidence Preferred Shares convertible into or exchangeable for
Common Shares or other securities of the Company, that all conversion
and exchange rights, as the case may be, in respect of such Preferred
Shares will terminate at the close of business on the last business
day preceding such redemption date. If fewer than all the outstanding
Depositary Shares are to be redeemed, the Depositary Shares to be
redeemed shall be selected by lot or pro rata (as nearly as may be) or
in any other equitable manner, in each case as may be determined by
the Company.
From and after the redemption date (unless the Company shall have
failed to redeem the Preferred Shares to be redeemed by it as set
forth in the Company's notice mailed by the Depositary in accordance
with the preceding paragraph), (i) all dividends in respect of the
Preferred Shares called for redemption shall cease to accrue; (ii) in
the event that the Depositary Shares evidence Preferred Shares
convertible into or exchangeable for Common Shares or other securities
of the Company, the conversion and exchange rights, as the case may
be, in respect of such Preferred Shares shall terminate; (iii) the
Depositary Shares called for redemption shall be deemed no longer to
be outstanding; and (iv) all rights of the Holders of Receipts
evidencing such Depositary Shares (except the right to receive the
redemption price) shall cease and terminate. Upon surrender in
accordance with said notice of the Receipts evidencing such Depositary
Shares (properly endorsed or assigned for transfer, if the Depositary
shall so require), such Depositary Shares shall be redeemed at a
redemption price per Depositary Share equal to [specify fraction] of
the redemption price per share paid in respect of the Preferred Shares
pursuant to the Preferred Share Amendment plus any other money and
other property represented by each such Depositary Share. The
foregoing shall be further subject to the terms and conditions of the
Preferred Share Amendment.
If fewer than all of the Depositary Shares evidenced by a Receipt
are called for redemption, the Depositary will deliver to the Holder
of such Receipt upon its surrender to the Depositary, together with
payment of the redemption price for the Depositary Shares called for
redemption, a new Receipt evidencing the Depositary Shares evidenced
by such prior Receipt and not called for redemption.
[The Depositary shall not be required (a) to issue, transfer or
exchange any Receipts for a period beginning at the opening of
business 15 days next preceding any selection of Depositary Shares and
Preferred Shares to be redeemed and ending at the close of business on
the day of the mailing of notice of redemption of Depositary Shares or
(b) to transfer or exchange for another Receipt any Receipt evidencing
Depositary Shares called or being called for redemption in whole or in
part, except as provided in the preceding paragraph of this Section
2.03.]
-6-
SECTION 2.04. Registration of Transfer of Receipts. Subject to
the terms and conditions of this Deposit Agreement, the Depositary
shall register on its books transfers of Receipts upon any surrender
thereof by the Holder in person or by a duly authorized attorney,
properly endorsed or accompanied by a properly executed instrument of
transfer or endorsement, together with evidence of the payment of any
transfer taxes and other governmental charges as may be required by
law. Upon such surrender, the Depositary shall execute a new Receipt
or Receipts and deliver the same to or upon the order of the person
entitled thereto evidencing the same aggregate number of Depositary
Shares evidenced by the Receipt or Receipts surrendered.
SECTION 2.05. Combinations and Split-Ups of Receipts. Upon
surrender by a Holder of a Receipt or Receipts at the Corporate Office
or such other office as the Depositary may designate for the purpose
of effecting a split-up or combination of Receipts, subject to the
terms and conditions of this Deposit Agreement, the Depositary shall
execute and deliver a new Receipt or Receipts in the authorized
denominations requested evidencing the same aggregate number of
Depositary Shares evidenced by the Receipt or Receipts surrendered;
provided, however, that the Depositary shall not issue any Receipt
evidencing a fractional Depositary Share.
SECTION 2.06. Limitations on Execution and Delivery, Transfer,
Split-up, Combination, Surrender and Exchange of Receipts. As a
condition precedent to the execution and delivery, transfer, split-up,
combination, surrender or exchange of any Receipt or, in the event
that the Depositary Shares evidence Preferred Shares convertible into
or exchangeable for Common Shares or other securities of the Company,
to the exercise of any conversion or exchange right referred to in
Section 2.09, the Depositary, any Agent or the Company may require any
or all of the following: (i) payment to it of a sum sufficient for
the payment (or, in the event that the Depositary or Company shall
have made such payment, the reimbursement) of any tax or other
governmental charge with respect thereto (including any such tax or
charge with respect to the Preferred Shares being deposited or
withdrawn, provided that, in the event that the Depositary Shares
evidence Preferred Shares convertible into or exchangeable for Common
Shares or other securities of the Company, the Company shall pay any
documentary, stamp or similar issue or transfer tax or other
governmental charge due on the issuance of Common Shares or other
securities upon such conversion or exchange, as the case may be; and
provided further that the Holder of such Receipt shall pay the amount
of any tax or other governmental charge due if such Common Shares or
such other securities are to be issued in a name other than that of
such Holder); (ii) the production of proof satisfactory to it as to
the identity and genuineness of any signature (or the authority of any
signature); and (iii) compliance with such regulations, if any, as the
Depositary or the Company may establish consistent with the provisions
of this Deposit Agreement.
-7-
The delivery of Receipts against Preferred Shares may be
suspended, the transfer of Receipts may be refused, the transfer,
split-up, combination, surrender or exchange of outstanding Receipts
may be suspended and, in the event that the Depositary Shares evidence
Preferred Shares convertible into or exchangeable for Common Shares or
other securities of the Company, the exercise of any conversion or
exchange right referred to in Section 2.09 may be suspended (i) during
any period when the register of holders of the Preferred Shares is
closed or (ii) if any such action is deemed necessary or advisable by
the Depositary or any Agent at any time or from time to time because
of any requirement of law or of any government or governmental body or
commission, or under any provision of this Deposit Agreement. Without
limitation of the foregoing, the Depositary shall not knowingly accept
for deposit under this Deposit Agreement any Preferred Shares that are
required to be, but are not, registered under the Securities Act and
the Company shall deliver to the Depositary written notice that, at
the time of deposit, a registration statement under the Securities Act
is in effect as to such Preferred Shares.
SECTION 2.07. Lost Receipts, Etc. In case any Receipt shall be
mutilated or destroyed or lost or stolen, the Depositary in its
discretion may execute and deliver a Receipt of like form and tenor in
exchange and substitution for such mutilated Receipt or in lieu of and
in substitution for such destroyed, lost or stolen Receipt, provided
that the Holder thereof provides the Depositary with (i) evidence
satisfactory to the Depositary of such destruction, loss or theft of
such Receipt, of the authenticity thereof and of his or her ownership
thereof and (ii) reasonable indemnification satisfactory to the
Depositary and the Company.
SECTION 2.08. Cancellation and Destruction of Surrendered
Receipts. All Receipts surrendered to the Depositary or any Agent
shall be cancelled by the Depositary. Except as prohibited by
applicable law or regulation, the Depositary is authorized to destroy
such cancelled Receipts.
SECTION 2.09. Conversion or Exchange of Preferred Shares Into
Common Shares or Other Securities. (a) The Depositary Shares are not
convertible into or exchangeable for Common Shares or any other
securities or property of the Company. Nevertheless, as a matter of
convenience, in the event that the Depositary Shares evidence
Preferred Shares that are convertible into or exchangeable for Common
Shares or other securities of the Company, the Company hereby agrees
to cause the Depositary to accept (or to cause the Company's
conversion agent or exchange agent, as the case may be, to accept) the
delivery of Receipts for the purpose of effecting conversions or
exchanges of the Preferred Shares utilizing the same procedures as
those provided for delivery of Preferred Share certificates to effect
such conversions or exchanges in accordance with the terms and
conditions of the Preferred Share Amendment; provided, however, that
only whole Depositary Shares may be so submitted for conversion or
exchange.
-8-
(b) Receipts may be surrendered with written instructions to the
Depositary to instruct the Company to cause the conversion or exchange
of any specified number of whole or fractional Preferred Shares,
convertible into or exchangeable for Common Shares or other securities
of the Company, that is represented by the Depositary Shares evidenced
by such Receipts into the number of whole Common Shares or whole
number of such other securities of the Company obtained by dividing
the aggregate [liquidation preference] of such Depositary Shares by
the [Conversion Price] (as such term is defined in the Preferred Share
Amendment) or exchange ratio, as the case may be, then in effect, as
such [Conversion Price] or exchange ratio may be adjusted by the
Company from time to time as provided in the Preferred Share
Amendment. Subject to the terms and conditions of this Deposit
Agreement and the Preferred Share Amendment, a Holder of a Receipt or
Receipts evidencing Depositary Shares representing whole or fractional
Preferred Shares may surrender such Receipt or Receipts to the
Depositary at the Corporate Office or to such office or to such Agents
as the Depositary may designate for such purpose, together with (i) a
notice of conversion or exchange thereof, as the case may be, duly
completed and executed (a "Notice of Conversion/Exchange"), and (ii)
any payment in respect of dividends required by Section 2.09(e),
thereby directing the Depositary to instruct the Company to cause the
conversion or exchange, as the case may be, of the number of whole
shares or fractions thereof of underlying Preferred Shares specified
in such Notice of Conversion/Exchange into whole Common Shares or a
whole number of such other securities of the Company. In the event
that a Holder delivers to the Depositary for conversion or exchange a
Receipt or Receipts which in the aggregate are convertible into or
exchangeable for less than (i) one whole Common Shares or any number
of whole Common Shares plus an excess constituting less than one whole
Common Share or (ii) any whole number of such other securities plus an
excess constituting less than one security, the Holder shall receive
payment in lieu of such fractional Common Shares or fractional
interest in such securities otherwise issuable in accordance with
Section 2.09(g). If more than one Receipt shall be delivered for
conversion or exchange, as the case may be, at one time by the same
Holder, the number of whole Common Shares or the whole number of such
other securities issuable upon conversion or exchange, as the case may
be, thereof shall be computed on the basis of the aggregate number of
Receipts so delivered.
(c) Upon receipt by the Depositary of one or more Receipts,
together with a duly completed and executed Notice of
Conversion/Exchange, the Depositary shall, on the date of receipt of
such Notice of Conversion/Exchange, instruct the Company (i) to cause
the conversion or exchange, as the case may be, of the Depositary
Shares evidenced by the Receipts so surrendered for conversion or
exchange as specified in the Notice of Conversion/Exchange and (ii) to
cause the delivery to the Holder or Holders of such Receipts of a
certificate or certificates evidencing the number of whole Common
Shares or the whole number of such other securities and the amount of
money, if any, to be delivered to the Holders of Receipts surrendered
-9-
for conversion or exchange in payment of any fractional Common Shares
or of any fractional interest in such other securities otherwise
issuable, as the case may be. The Company shall, as promptly as
practicable after receipt thereof, cause the delivery to such Holder
or Holders of (i) a certificate or certificates evidencing the number
of whole Common Shares or the whole number of such other securities
into or for which the Preferred Shares represented by the Depositary
Shares evidenced by such Receipt or Receipts has been converted or
exchanged, as the case may be, and (ii) any money or other property to
which the Holder or Holders are entitled. The person or persons in
whose name or names any certificate or certificates for Common Shares
or for such securities shall be issuable upon such conversion or
exchange, as the case may be, shall be deemed to have become the
holder or holders of record of the shares or securities represented
thereby at the close of business on the date such Receipt or Receipts
shall have been surrendered to and a Notice of Conversion/Exchange
received by the Depositary, unless the share or securities transfer
books of the Company shall be closed on that date, in which event such
person or persons shall be deemed to have become such Holder or
Holders of record on the next succeeding day on which such share or
securities transfer books are open. Upon such conversion or exchange,
the Depositary (i) shall deliver to the Holder a Receipt evidencing
the number of Depositary Shares, if any, which such Holder has elected
not to convert or exchange in excess of the number of Depositary
Shares representing Preferred Shares which has been so converted or
exchanged, as the case may be, (ii) shall cancel the Depositary Shares
evidenced by Receipts surrendered for conversion or exchange, as the
case may be, and (iii) shall deliver for cancellation to the transfer
agent for the Preferred Shares the Preferred Shares represented by the
Depositary Shares evidenced by the Receipts so surrendered and so
converted or exchanged, as the case may be.
(d) If any Preferred Shares convertible into or exchangeable for
Common Shares or other securities of the Company shall be called by
the Company for redemption, the Depositary Shares representing such
Preferred Shares may be converted or exchanged into Common Shares or
such securities as provided in this Deposit Agreement until and
including, but not after, the close of business on the redemption date
(as defined in Section 2.03) unless the Company shall default in
making payment of the redemption price pursuant to the Preferred Share
Agreement and this Depositary Agreement. Upon receipt by the
Depositary of a Receipt or Receipts representing any Preferred Shares
called for redemption, together with a properly completed and executed
Notice of Conversion/Exchange, the Preferred Shares held by the
Depositary represented by such Depositary Shares as to which
conversion or exchange, as the case may be, is requested shall be
deemed to have been received by the Company for conversion or
exchange.
(e) Upon any conversion or exchange, as the case may be, of the
Preferred Shares underlying the Depositary Shares, no allowance,
adjustment or payment shall be made with respect to accrued dividends
-10-
upon such Preferred Shares[, except that if any Holder of a Receipt
surrenders such Receipt with instructions to the Depositary for
conversion or exchange of the underlying Preferred Shares evidenced
thereby during the period between the opening of business on any
dividend record date and the close of business on the corresponding
dividend payment date (except shares called for redemption on a
redemption date during such period), such Receipt must be accompanied
by a payment equal to the dividend thereon, if any, which the Holder
of such Receipt is entitled to receive on such dividend payment date
in respect of the underlying Preferred Shares to be converted or
exchanged.]
(f) Upon the conversion or exchange, as the case may be, of any
Preferred Shares for which a duly completed and executed Notice of
Conversion/Exchange has been received by the Depositary, all dividends
in respect of such Depositary Shares shall cease to accrue, such
Depositary Shares shall be deemed no longer outstanding, all rights of
the Holder of the Receipt with respect to such Depositary Shares
(except the right to receive the Common Shares or other securities of
the Company, any cash payable with respect to any fractional Common
Shares or fractional interest in such securities, as the case may be,
as provided herein and under the Preferred Share Amendment and any
cash payable on account of accrued dividends in respect of the
Preferred Shares so converted or exchanged and any Receipts evidencing
Depositary Shares not so converted or exchanged) shall terminate, and
the Receipt evidencing such Depositary Shares shall be cancelled in
accordance with Section 2.08 hereof.
(g) No fractional Common Shares or fractional interest in such
other securities shall be issuable upon conversion or exchange of
Preferred Shares underlying the Depositary Shares. If, except for the
provisions of this Section 2.09 and the Preferred Share Amendment, any
Holder of Receipts surrendered to the Depositary for conversion or
exchange of the underlying Preferred Shares would be entitled to a
fractional Common Share or a fractional security upon such conversion
or exchange, the Company shall cause to be delivered to such Holder an
amount in cash for such fractional share or security determined in
accordance with the Preferred Share Amendment.
(h) In the event that there exists any inconsistency between
this Section 2.09 and any provisions of the Preferred Share Amendment
then in effect, the applicable provisions of the Preferred Share
Amendment shall control.
SECTION 2.10. Prohibition Against Lending Depositary Shares or
Receipts. The Depositary shall not lend any Depositary Shares or
Receipts at any time held hereunder.
[Section 2.11. Surrender of Receipts and Withdrawal of Preferred
Shares. Any Holder of a Receipt or Receipts may withdraw any or all
of the Preferred Shares represented by the Depositary Shares evidenced
by such Receipts and all money and other property, if any, represented
-11-
by such Depositary Shares by surrendering such Receipt or Receipts at
the Corporate Office or at such other office as the Depositary may
designate for such withdrawals; provided that a Holder may not
withdraw Preferred Shares (or money and other property, if any,
represented thereby) which has previously been called for redemption.
Thereafter, without unreasonable delay, the Depositary shall deliver
to such Holder, or to the person or persons designated by such Holder
as hereinafter provided, the number of whole Preferred Shares and all
such money and other property, if any, represented by the Depositary
Shares evidenced by the Receipt or Receipts so surrendered for
withdrawal, but holders of such whole Preferred Shares will not be
entitled to deposit such Preferred Shares hereunder or to receive
Depositary Shares therefor. If the Receipt or Receipts delivered by
the Holder to the Depositary in connection with such withdrawal shall
evidence a number of Depositary Shares in excess of the number of
whole Depositary Shares representing the number of whole Preferred
Shares to be withdrawn, the Depositary shall at the same time, in
addition to such number of whole Preferred Shares and such money and
other property, if any, to be withdrawn, deliver to such Holder, or
(subject to Sections 2.04 and 2.05) upon his order, a new Receipt or
Receipts evidencing such excess number of whole Depositary Shares. In
no event will fractional Preferred Shares or Receipts evidencing
fractional Depositary Shares be distributed or issued by the
Depositary. Delivery of the Preferred Shares and such money and other
property being withdrawn may be made by the delivery of such
certificates, documents of title and other instruments as the
Depositary may deem appropriate, which, if required by the Depositary,
shall be properly endorsed or accompanied by proper instruments of
transfer.
If the Preferred Shares and the money and other property being
withdrawn are to be delivered to a person or persons other than the
Holder of the Receipt or Receipts being surrendered for withdrawal of
Preferred Shares, such Holder shall execute and deliver to the
Depositary a written order so directing the Depositary, and the
Depositary may require that the Receipt or Receipts surrendered by
such Holder for withdrawal of such Preferred Shares be properly
endorsed in blank or accompanied by a properly executed instrument of
transfer or endorsement in blank; provided that the Holder of such
Receipt shall pay the amount of any tax or other governmental charge
due.
The Depositary shall deliver the Preferred Shares and the money
and other property, if any, represented by the Depositary Shares
evidenced by Receipts surrendered for withdrawal at the Corporate
Office, except that, at the request, risk and expense of the Holder
surrendering such Receipt or Receipts and for the account of the
Holder thereof, such delivery may be made at such other place as may
be designated by such Holder.]
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
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SECTION 3.01. Filing Proofs, Certificates and Other Information.
Any Holder may be required from time to time to file such proof of
residence or other information, to execute such certificate and to
make such representations and warranties as the Depositary or the
Company may reasonably deem necessary or proper. The Depositary or
the Company may withhold or delay the delivery, transfer, redemption
or exchange of any Receipt, [the withdrawal of the Preferred Shares
represented by the Depositary Shares evidenced by any Receipt,] the
distribution of any dividend or other distribution, the sale of any
rights or of the proceeds thereof, the exercise of any conversion or
exchange right referred to in Section 2.09 or the delivery of any
Common Shares or other securities of the Company upon such conversion
or exchange until such proof or other information is filed, such
certificates are executed or such representations and warranties are
made.
SECTION 3.02. Payment of Fees and Expenses. Holders of Receipts
shall be obligated to make payments to the Depositary of certain fees
and expenses, as provided in Section 5.07, or provide evidence
reasonably satisfactory to the Depositary that such fees and expenses
have been paid. Until such payment is made, transfer of any Receipt
[or any withdrawal of the Preferred Shares or money or other property,
if any, represented by the Depositary Shares evidenced by such
Receipt] may be refused, any dividend or other distribution may be
withheld, any conversion or exchange right may be refused and any part
or all of the Preferred Shares or other property represented by the
Depositary Shares evidenced by such Receipt may be sold for the
account of the Holder thereof (after attempting by reasonable means to
obtain such payment prior to such sale), provided that notice of such
sale shall be sent by the Depositary to such Holder. Any dividend or
other distribution so withheld and the proceeds of any such sale may
be applied to any payment of such fees or expenses, the Holder of such
Receipt remaining liable for any deficiency. In the event the
Depositary is required to pay any such amounts, the Company shall
reimburse the Depositary for payment thereof upon the request of the
Depositary and the Depositary shall, upon the Company's request and as
instructed by the Company, pursue its rights against such Holder at
the Company's expense.
SECTION 3.03. Representations and Warranties as to Preferred
Shares. The Company hereby represents and warrants that (i) the
Preferred Shares deposited hereunder have been duly authorized and,
when issued and deposited hereunder, will be validly issued, fully
paid and nonassessable, (ii) the Depositary Shares have been duly
authorized and, when the Receipts are executed, countersigned, issued
and delivered in the manner provided for herein, such Depositary
Shares will represent legal and valid interests in the Preferred
Shares deposited hereunder, and (iii) all corporate action required to
be taken for the authorization, issuance and delivery of such
Preferred Shares and Depositary Shares has been validly taken. Such
representations and warranties shall survive the deposit of the
Preferred Shares and the issuance of Receipts.
-13-
SECTION 3.04. Representation and Warranty as to Receipts. The
Company hereby represents and warrants that the Depositary Shares,
when the Receipts evidenced thereby are duly executed by the
Depositary or duly countersigned by an authorized signatory of the
Registrar and issued, will represent legal and valid interests in the
Preferred Shares. Such representation and warranty shall survive the
deposit of the Preferred Shares and the issuance of Receipts.
SECTION 3.05. Covenants and Representation and Warranty as to
Common Shares or Other Securities. In the event that the Depositary
Shares evidence Preferred Shares convertible into or exchangeable for
Common Shares or other securities of the Company, the Company
covenants that it will give written notice to the Depositary of any
adjustments in the conversion price or exchange ratio made pursuant to
the Preferred Share Amendment. The Company hereby represents and
warrants that the Common Shares or other securities of the Company
issuable upon conversion or exchange of the Preferred Shares, when
issued, will be duly authorized, validly issued, fully paid and
nonassessable. Such representation and warranty shall survive the
conversion or exchange of the Preferred Shares into such Common Shares
or other securities.
ARTICLE IV
THE PREFERRED SHARES; NOTICES
SECTION 4.01. Rights of Owners of Depositary Shares. Subject to
the terms of this Deposit Agreement, each owner of a Depositary Share
is entitled, in proportion to the applicable fractional interests in
the Preferred Shares, to all the rights, preferences and privileges of
the Preferred Shares represented by such Depositary Share, including
any and all dividend, voting, redemption, conversion, exchange and
liquidation rights provided for in the Certificate of Designations.
SECTION 4.02. Cash Distributions. Whenever the Depositary shall
receive any cash dividend or other cash distribution on the Preferred
Shares, except for any cash received upon redemption of any Preferred
Shares pursuant to Section 2.03 that is not to be distributed pro
rata, the Depositary shall, subject to Section 3.02, distribute to
Holders of Receipts on the record date fixed pursuant to Section 4.05
such amounts of such sum as are, as nearly as practicable, in
proportion to the respective numbers of Depositary Shares evidenced by
the Receipts held by such Holders; provided, however, that in case the
Company or the Depositary shall withhold from any cash dividend or
other cash distribution in respect of the Preferred Shares represented
by the Receipts held by any Holder an amount on account of taxes or as
otherwise required by law, regulation or court order, the amount made
available for distribution or distributed in respect of Depositary
Shares represented by such Receipts subject to such withholding shall
be reduced accordingly. The Depositary shall distribute or make
available for distribution, as the case may be, only such amount,
however, as can be distributed without attributing to any Holder of
Depositary Shares a fraction of one cent, and any balance not so
-14-
distributable shall be held by the Depositary (without liability for
interest thereon) and shall be added to and be treated as part of the
next sum received by the Depositary for distribution to Holders of
Receipts then outstanding.
SECTION 4.03. Distributions Other Than Cash. Whenever the
Depositary shall receive any distribution other than cash on the
Preferred Shares, the Depositary shall, subject to Section 3.02,
distribute to Holders of Receipts on the record date fixed pursuant to
Section 4.05 such amounts of the securities or property received by it
as are, as nearly as practicable, in proportion to the respective
numbers of Depositary Shares evidenced by the Receipts held by such
Holders, in any manner that the Depositary and the Company may deem
equitable and practicable for accomplishing such distribution. If, in
the opinion of the Depositary after consultation with the Company,
such distribution cannot be made proportionately among such Holders,
or if for any other reason (including any requirement that the Company
or the Depositary withhold an amount on account of taxes or as
otherwise required by law, regulation or court order), the Depositary
deems, after consultation with the Company, such distribution not to
be feasible, the Depositary may, with the approval of the Company,
adopt such method as it deems equitable and practicable for the
purpose of effecting such distribution, including the public or
private sale of the securities or property thus received, or any part
thereof, at such place or places and upon such terms as it may deem
proper. The net proceeds of any such sale shall, subject to section
3.02, be distributed or made available for distribution, as the case
may be, by the Depositary to Holders of Receipts as provided by
Section 4.02 in the case of a distribution received in cash. The
Depositary shall not make any distribution of such securities to the
Holders of Receipts unless the Company shall have provided to the
Depositary an opinion of counsel stating that such securities have
been registered under the Securities Act or do not need to be
registered.
SECTION 4.04. Subscription Rights, Preferences or Privileges.
If the Company shall at any time offer or cause to be offered to the
persons in whose names Preferred Shares are registered on the books of
the Company any rights, preferences or privileges to subscribe for or
to purchase any securities or any rights, preferences or privileges of
any other nature, such rights, preferences or privileges shall, if the
Company so directs, in each such instance be made available by the
Depositary to the Holders in such manner as the Company shall instruct
(including, if so directed, by the issue to such Holders of warrants
representing such rights, preferences or privileges); provided,
however, that (a) if at the time of the issuance or offering of any
such rights, preferences or privileges the Company determines that it
is not lawful or feasible to make such rights, preferences or
privileges available to some or all Holders of Receipts (by the issue
of warrants or otherwise) or (b) if and to the extent instructed by
Holders who do not desire to exercise such rights, preferences or
privileges, the Depositary shall, if so instructed by the Company, and
-15-
if applicable laws or the terms of such rights, preferences or
privileges so permit, sell such rights, preferences or privileges of
such Holders at public or private sale, at such place or places and
upon such terms as it may deem proper. The net proceeds of any such
sale shall, subject to Section 3.02, be distributed by the Depositary
to the Holders of Receipts entitled thereto as provided by Section
4.02 in the case of a distribution received in cash. The Company
shall not make any distribution of such rights, preferences or
privileges, unless the Company shall have provided to the Depositary
an opinion of counsel stating that such rights, preferences or
privileges have been registered under the Securities Act or do not
need to be registered.
If registration under the Securities Act of any securities to
which any rights, preferences or privileges relate is required in
order for Holders to be offered or sold the securities to which such
rights, preferences or privileges relate, the Company agrees that it
will promptly file a registration statement pursuant to the Securities
Act with respect to such rights, preferences or privileges and
securities and use all reasonable efforts to cause such registration
statement to become effective sufficiently in advance of the
expiration of such rights, preferences or privileges to enable such
Holders to exercise such rights, preferences or privileges. In no
event shall the Depositary make available to the Holders of Receipts
any right, preference or privilege to subscribe for or to purchase any
securities unless and until such a registration statement shall have
become effective or unless the offering and sale of such securities to
such Holders shall be exempt from registration under the Securities
Act and the Company shall have provided to the Depositary an opinion
of counsel to such effect.
If any other action under the law of any jurisdiction or any
governmental or administrative authorization, consent or permit is
required in order for such rights, preferences or privileges to be
made available to Holders, the Company agrees to use all reasonable
efforts to take such action or obtain such authorization, consent or
permit sufficiently in advance of the expiration of such rights,
preferences or privileges to enable such Holders to exercise such
rights, preferences or privileges.
SECTION 4.05. Notice of Dividends; Fixing of Record Date for
Holders of Receipts. Whenever any cash dividend or other cash
distribution shall become payable, any distribution other than cash
shall be made, or any rights, preferences or privileges shall at any
time be offered, with respect to the Preferred Shares, or whenever the
Depositary shall receive notice of (i) any meeting at which holders of
Preferred Shares are entitled to vote or of which they are entitled to
notice or (ii) any election on the part of the Company to redeem any
Preferred Shares, the Depositary shall in each such instance fix a
record date (which shall be the same date as the record date therefor
fixed by the Company with respect to the Preferred Shares) for the
determination of the Holders who shall be entitled to receive such
-16-
dividend, distribution, rights, preferences or privileges or the net
proceeds of the sale thereof, to give instructions for the exercise of
voting rights at any such meeting or to receive notice of such meeting
or whose Depositary Shares are to be so redeemed.
SECTION 4.06. Voting Rights. Upon receipt of notice of any
meeting at which the holders of Preferred Shares are entitled to vote,
the Depositary shall, as soon as practicable thereafter, mail to the
Holders of Receipts a notice, which shall be provided by the Company
and which shall contain (i) such information as is contained in such
notice of meeting, (ii) a statement that the Holders of Receipts at
the close of business on a specified record date fixed pursuant to
Section 4.04 will be entitled, subject to any applicable provision of
law, the Articles of Incorporation or the Preferred Share Amendment,
to instruct the Depositary as to the exercise of the voting rights
pertaining to the amount of Preferred Shares represented by their
respective Depositary Shares and (iii) a brief statement as to the
manner in which such instructions may be given. Upon the written
request of a Holder of a Receipt on such record date, the Depositary
shall, to the extent practicable, vote or cause to be voted the amount
of Preferred Shares represented by the Depositary Shares evidenced by
such Receipt in accordance with the instructions set forth in such
request. The Company hereby agrees to take all reasonable action that
may be deemed necessary by the Depositary in order to enable the
Depositary to vote such Preferred Shares or cause such Preferred
Shares to be voted. In the absence of specific instructions from the
Holder of a Receipt, the Depositary will abstain from voting to the
extent of the Preferred Shares represented by the Depositary Shares
evidenced by such Receipt. The Depositary shall not be required to
exercise discretion in voting any Preferred Shares represented by the
Depositary Shares evidenced by such Receipt.
SECTION 4.07. Changes Affecting Preferred Shares and
Reclassifications, Recapitalizations, Etc. Upon any change in the par
value, or upon any split-up, combination or any other
reclassification, of the Preferred Shares, or upon any
recapitalization, reorganization, merger, amalgamation or
consolidation affecting the Company or to which it is a party or the
sale of all or substantially all of the Company's assets, the
Depositary shall, upon the instructions of the Company, treat any
shares of capital stock or other securities or property (including
cash) that shall be received by the Depositary in exchange for or upon
conversion of or in respect of the Preferred Shares as new deposited
property under this Deposit Agreement, and Receipts then outstanding
shall thenceforth represent the proportionate interests of Holders
thereof in the new deposited property so received in exchange for or
upon conversion of or in respect of such Preferred Shares. In any
such case the Depositary may, in its discretion, with the approval of
the Company, execute and deliver additional Receipts, or may call for
the surrender of all outstanding Receipts to be exchanged for new
Receipts specifically describing such new deposited property.
[Subject to the provisions of the Preferred Share Amendment, Holders
-17-
of Receipts shall have the right from and after the effective date of
any such change in par value, or upon any such split-up, combination
or other reclassification, of the Preferred Shares or any such
recapitalization, reorganization, merger, amalgamation or
consolidation affecting the Company, or sale of all or substantially
all of the Company's assets to surrender such Receipts to the
Depositary with instructions to convert, exchange or surrender the
Preferred Shares represented thereby only into or for, as the case may
be, the kind and amount of shares of capital stock and other
securities and property and cash into which the Preferred Shares
represented by such Receipts might have been converted or for which
such Preferred Shares might have been exchanged or surrendered
immediately prior to the effective date of such transaction.]
SECTION 4.08. Inspection of Reports. The Depositary shall
furnish to Holders of Receipts any reports and communications received
from the Company that are received by the Depositary as the holder of
Preferred Shares and that the Company is required to furnish to
Holders of the Preferred Shares.
SECTION 4.09. Lists of Receipt Holders. Promptly upon request
from time to time by the Company, the Depositary shall furnish to the
Company a list, as of a recent date specified by the Company, of the
names, addresses and holdings of Depositary Shares of all persons in
whose names Receipts are registered on the books of the Depositary.
[SECTION 4.10. Tax and Regulatory Compliance. The Depositary
shall be responsible for (i) preparation and mailing of form 1099s (or
successor forms) for all open and closed accounts, (ii) foreign tax
withholding, (iii) withholding of tax on dividends payable to eligible
Holders of Receipts, (iv) mailing W-9 forms (or successor forms) to
new Holders of Receipts without a certified taxpayer identification
number, (v) processing certified W-9 forms (or successor forms), (vi)
preparation and filing of state information returns and (vii)
escheatment services.]
ARTICLE V
THE DEPOSITARY AND THE COMPANY
SECTION 5.01. Maintenance of Offices, Agencies and Transfer
Books by the Depositary and the Registrar. Upon execution of this
Deposit Agreement in accordance with its terms, the Depositary shall
maintain at the Corporate Office facilities for the execution and
delivery, transfer, surrender and exchange, split-up, combination and
redemption of Receipts and deposit and [withdrawal of Preferred
Shares] and at the offices of any Agent, facilities for the delivery,
transfer, surrender and exchange, split-up, combination and redemption
of Receipts and deposit and [withdrawal of Preferred Shares,] all in
accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at the Corporate Office for the
registration and transfer of Receipts, which books shall be open at
-18-
all reasonable times for inspection by the Holders of Receipts, as
provided by applicable law. The Depositary shall consult with the
Company upon receipt of any request for inspection. The Depositary
may close such books, at any time or from time to time, when deemed
expedient by it in connection with the performance of its duties
hereunder.
If the Receipts or the Depositary Shares evidenced thereby or the
Preferred Shares represented by such Depositary Shares shall be listed
on any stock exchange, and if required by any such stock exchange, the
Depositary shall appoint, at the expense of the Company, a Registrar
(acceptable to the Company) for registry of Receipts or Depositary
Shares in accordance with the requirements of such exchange. Such
Registrar (which may be the Depositary if so permitted by such
exchange) may be removed, and a substitute registrar appointed, by the
Depositary upon the request or with the approval of the Company.
The Company hereby also appoints the Depositary as Registrar and
Transfer Agent in respect of the Receipts, and the Depositary hereby
accepts such appointments.
SECTION 5.02. Prevention or Delay in Performance by the
Depositary, Any Agent, the Registrar or the Company. Neither the
Depositary, any Agent, any Registrar nor the Company shall incur any
liability to any Holder of any Receipt, if by reason of any provision
of any present or future law or regulation thereunder of the United
States of America or of any other governmental authority, or by reason
of any present or future provision of the Articles of Incorporation or
the Preferred Share Amendment, or by reason of any act of God or war
or other circumstance beyond the control of the relevant party, the
Depositary, any Agent, the Registrar or the Company shall be prevented
or forbidden from doing or performing any act or thing that the terms
of this Deposit Agreement provide shall be done or performed; nor
shall the Depositary, any Agent, any Registrar or the Company incur
any liability to any Holder of a Receipt by reason of any
nonperformance or delay, caused as aforesaid, in the performance of
any act or thing that the terms of this Deposit Agreement provide
shall or may be done or performed, or by reason of any exercise of, or
failure to exercise, any discretion provided for in this Deposit
Agreement.
SECTION 5.03. Obligations of the Depositary, any Agent, the
Registrar and the Company. Neither the Depositary, any Agent, any
Registrar nor the Company assumes any obligation or shall be subject
to any liability under this Deposit Agreement or any Receipt to
Holders of Receipts so long as each of them acts in good faith in the
performance of such duties as are specifically set forth in this
Deposit Agreement.
Neither the Depositary, any Agent, any Registrar nor the Company
shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding with respect to Preferred Shares,
-19-
Depositary Shares or Receipts that in its opinion may subject it to
expense or liability, unless indemnity satisfactory to it against all
such expense and liability be furnished.
Neither the Depositary, any Agent, any Registrar nor the Company
shall be liable for any action taken or any failure to act in reliance
upon the advice of legal counsel, or the advice of or information
provided by any accountant, any Holder of a Receipt or any other
person believed by it in good faith to be competent to give such
advice or information. The Depositary, any Agent, any Registrar and
the Company may each rely and shall each be protected in acting upon
any written notice, request, direction or other document believed by
it to be genuine and to have been signed or presented by the proper
party or parties.
In the event the Depositary shall receive conflicting claims,
requests or instructions from any Holders of Receipts, on the one
hand, and the Company, on the other hand, the Depositary shall be
entitled to act on such claims, requests or instructions received from
the Company, and shall be entitled to the full indemnification set
forth in Section 5.06 hereof in connection with any action so taken.
The Depositary shall not be responsible for any failure to carry
out any instruction to vote any of the Preferred Shares or for the
manner or effect of any such vote, as long as any such action or non-
action is in good faith and does not result from negligence or willful
misconduct of the Depositary. The Depositary undertakes, and any
Registrar shall be required to undertake, to perform such duties and
only such duties as are specifically set forth in this Deposit
Agreement, and no covenants or obligations shall be implied against
the Depositary or any Registrar. The Depositary, its parents,
affiliates, or subsidiaries, any Depositary's Agent, and any Registrar
may own, buy, sell or deal in any class of securities of the Company
and its affiliates and in Receipts or Depositary shares or become
pecuniarily interested in any transaction in which the Company or its
affiliates may be interested or contract with or lend money to or
otherwise act as fully or as freely as if it were not the Depositary,
any Agent or the Registrar hereunder. The Depositary may also act as
transfer agent, registrar or indenture trustee of any of the
securities of the Company and its affiliates or act in any other
capacity for the Company or its affiliates.
Neither the Depositary nor any Agent shall be deemed to be an
"issuer" of the securities under the federal securities laws or
applicable state securities laws; the Depositary and any Agent are
acting only in a ministerial capacity as depositary for the Preferred
Shares; provided, however, that the Depositary agrees to comply with
all information reporting and withholding requirements applicable to
it under law or this Deposit Agreement in its capacity as Depositary.
Neither the Depositary (or its officers, directors, employees or
agents) nor any Depositary's Agent makes any representation or has any
-20-
responsibility with respect to any registration statement pursuant to
which the Depositary Shares, the Receipts or the Preferred Shares are
registered under the Securities Act, or as to the validity of the
Preferred Shares, the Depositary Shares, the Receipts (except as to
the authenticity of its countersignature thereon) or any instruments
referred to therein or herein, or as to the correctness of any
statement made therein or herein; provided, however, that the
Depositary is responsible for its representations in this Deposit
Agreement.
SECTION 5.04. Resignation and Removal of the Depositary;
Appointment of Successor Depositary. The Depositary may at any time
resign as Depositary hereunder by notice of its election to do so
delivered to the Company, such resignation to take effect upon the
appointment of a successor depositary and the acceptance of such
appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by
notice of such removal delivered to the Depositary, such removal to
take effect upon the appointment of a successor depositary and the
acceptance of such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign
or be removed, the Company shall, within 60 days after the delivery of
the notice of resignation or removal, as the case may be, appoint a
successor depositary, which shall be a bank or trust company having
its principal office in the United States of America and having a
combined capital and surplus of at least $50,000,000. If a successor
depositary shall not have been appointed in 60 days, the resigning or
removed Depositary may petition a court of competent jurisdiction to
appoint a successor Depositary. Every successor Depositary shall
execute and deliver to its predecessor and to the Company an
instrument in writing accepting its appointment hereunder, and
thereupon such successor Depositary, without any further act or deed,
shall become fully vested with all the rights, powers, duties and
obligations of its predecessor and for all purposes shall be the
Depositary under this Deposit Agreement, and such predecessor, upon
payment of all sums due it and on the written request of the Company,
shall promptly execute and deliver an instrument transferring to such
successor all rights and powers of such predecessor hereunder, shall
duly assign, transfer and deliver all rights, title and interest in
the Preferred Shares and any moneys or property held hereunder to such
successor and shall deliver to such successor a list of the Holders of
all outstanding Receipts and all records, books and other information
relating thereto. Any successor Depositary shall promptly mail notice
of its appointment to the Holders of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor Depositary without
the execution or filing of any document or any further act. Such
successor Depositary may execute the Receipts either in the name of
the predecessor Depositary or in the name of the successor Depositary.
-21-
SECTION 5.05. Corporate Notices and Reports. The Company agrees
that it will deliver to the Depositary, and the Depositary will,
promptly after receipt thereof, transmit to the Holders of Receipts,
in each case at the address recorded in the Depositary's books, copies
of all notices and reports (including financial statements) required
by law, by the rules of any national securities exchange upon which
the Preferred Shares, the Depositary Shares or the Receipts may be
listed or by the Articles of Incorporation and the Preferred Share
Amendment to be furnished by the Company to Holders of Preferred
Shares. Such transmission will be at the Company's expense, and the
Company will provide the Depositary with such number of copies of such
documents as the Depositary may reasonably request. In addition, the
Depositary will transmit to the Holders of Receipts at the Company's
expense such other documents as may be requested by the Company.
SECTION 5.06 Indemnification by the Company. The Company agrees
to indemnify the Depositary, any Agent and any Registrar against, and
hold each of them harmless from, any liability, costs and expenses
(including reasonable attorneys' fees) that may arise out of, or in
connection with, its acting as Depositary, Agent or Registrar,
respectively, under this Deposit Agreement and the Receipts, except
for any liability arising out of negligence or bad faith on the part
of any such entity. The obligations of the Company set forth in this
Section 5.06 shall survive any succession of any Depositary, Registrar
or Agent or termination of this Deposit Agreement.
SECTION 5.07. Fees, Charges and Expenses. The Company shall pay
all transfer and other taxes and governmental charges arising solely
from the existence of the depositary arrangements. The Company shall
pay all fees of the Depositary in connection with the initial deposit
of the Preferred Shares and the initial issuance of the Depositary
Shares evidenced by the Receipts, any redemption of the Preferred
Shares at the option of the Company [and all withdrawals of Preferred
Shares by Holders of Depositary Shares]. Other than payment of any
tax or other governmental charge due upon the issuance of Common
Shares or other securities of the Company issuable upon conversion or
exchange of the Preferred Shares or upon delivery of Preferred Shares
[and the money and/or other property being withdrawn pursuant to
Section 2.11 to a person other than the Holder as specified in the
conversion/exchange notice relating thereto] or in the written order
delivered to the Depositary by the Holder, the Company will pay any
and all issue and other taxes (other than taxes based on income) that
may be payable in respect of any issue or delivery of Common Shares or
other securities of the Company on conversion or exchange of the
Preferred Shares. All other transfer and other taxes and governmental
charges shall be at the expense of Holders of Depositary Shares. If a
Holder of Receipts requests the Depositary to perform duties not
required under this Deposit Agreement, the Depositary shall notify the
Holder of the cost of such performance of such duties before
performing such duties, and such Holder will be liable for the charges
and expenses related to such performance. Except as otherwise
provided herein, all other reasonable fees and expenses of the
-22-
Depositary and any Depositary's Agent hereunder and of any Registrar
(including, in each case, reasonable fees and expenses of counsel)
incident to the performance of their respective obligations hereunder
will be paid upon consultation and agreement between the Depositary
and the Company as to the amount and nature of such fees and expenses.
The Depositary shall present its statement for fees and expenses to
the Company at such interval as the Company and the Depositary may
agree.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment. The form of the Receipts and any
provisions of this Deposit Agreement may at any time and from time to
time be amended by agreement between the Company and the Depositary in
any respect that they may deem necessary or desirable; provided,
however, that no such amendment which (i) shall materially and
adversely alter the rights of the Holders of Receipts (provided that
any change in the fees of any Depositary, Registrar or transfer agent
shall be deemed not to materially and adversely alter the rights of
such Holders) or (ii) would be materially and adversely inconsistent
with the rights granted to the holders of the Preferred Shares
pursuant to the Preferred Share Amendment shall be effective unless
such amendment shall have been approved by the Holders of at least a
majority of the Depositary Shares then outstanding. Any amendment
that shall impose any fees, taxes or charges (other than fees and
charges provided for herein or in the Receipts), or that shall
otherwise prejudice any substantial existing right of Holders of
Receipts, shall not become effective as to Receipts until the
expiration of 90 days after notice of such amendment shall have been
given to the Holders. Every Holder of a Receipt at the time any such
amendment becomes effective shall be deemed, by continuing to hold
such Receipt, to consent and agree to such amendment and to be bound
by this Deposit Agreement as amended thereby. [In no event shall any
amendment impair the right of the Holder of any Receipt to surrender
such Receipt and receive the Preferred Shares therefor, subject to the
terms hereof.]
SECTION 6.02. Termination. (a) This Deposit Agreement may be
terminated by the Company at any time upon not less than [60] days'
prior written notice to the Depositary, in which case, upon a date
that is not later than [30] days after the date of such notice, the
Depositary shall deliver or make available for delivery to each
Holder, upon surrender of such Holder's Receipt or Receipts, such
number of whole Preferred Shares represented by such Receipt or
Receipts. In the event that such Receipt or Receipts should represent
a fractional number of Preferred Shares, the Depositary shall
aggregate all such interests in fractional Preferred Shares and, with
the approval of the Company, adopt such methods as it deems equitable
and practicable for the purpose of effecting the distribution of such
interests, including the public or private sale of the whole number of
Preferred Shares so aggregated, or any part thereof, at such place or
-23-
places and upon such terms as it may deem proper. The net proceeds of
any such sale shall be distributed or made available for distribution,
as the case may be, by the Depositary to Holders of such Receipts
evidencing an interest in fractional Preferred Shares. If a Holder
shall not have so surrendered such Holder's Receipt or Receipts in
exchange for whole Preferred Shares on or prior to the effective date
of termination of this Deposit Agreement, such Holder shall for all
purposes, including the payment of dividends, be deemed to be a Holder
of the appropriate number of Depositary Shares previously represented
by such Receipt or Receipts and shall thereafter surrender to the
Company such Receipt or Receipts in exchange for whole Preferred
Shares. In the event that such Receipt or Receipts should represent
an interest in fractional Preferred Shares, the Company shall
aggregate all such interests in fractional Preferred Shares and adopt
such method as it deems equitable and practicable for the purpose of
effecting the distribution of such interest, including the public or
private sale of the whole number of Preferred Shares so aggregated, or
any part thereof, at such place or places and upon such terms as it
may deem proper. The net proceeds of any such sale shall be
distributed by the Company to Holders of such Receipts evidencing an
interest in fractional Preferred Shares. Upon termination of this
Deposit Agreement, the Depositary shall surrender to the Company any
Preferred Shares held by the Depositary and the Company shall hold
such Preferred Shares for the benefit of the Holder of Receipts which
previously represented such Preferred Shares.
(b) This Agreement shall automatically terminate after (i) all
outstanding Depositary Shares shall have been redeemed pursuant to
section 2.03 [or withdrawn pursuant to Section 2.11], (ii) in the
event that the Depositary Shares represent Preferred Shares
convertible into or exchangeable for Common Shares or other securities
of the Company, each Preferred Share shall have been converted into or
exchanged for Common Shares or other securities of the Company
pursuant to Section 2.09, as the case may be, or (iii) there shall
have been made a final distribution in respect of the Preferred Shares
in connection with any liquidation, dissolution or winding up of the
Company and such distribution shall have been distributed to the
Holders of Receipts pursuant to Section 4.02 or 4.03, as applicable.
(c) Upon the termination of this Deposit Agreement pursuant to
this Section 6.02, the Company shall be discharged from all
obligations under this Deposit Agreement except for its obligations to
the Depositary, any Depositary's Agent and any Registrar under
Sections 5.06 and 5.07.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts. This Deposit Agreement may be
executed in any number of counterparts, and by each of the parties
hereto on separate counterparts, each of which counterparts, when so
executed and delivered, shall be deemed an original, but all such
-24-
counterparts taken together shall constitute one and the same
instrument. Delivery of an executed counterpart of a signature page
to this Deposit Agreement by telecopier shall be effective as delivery
of a manually executed counterpart of this Deposit Agreement.
SECTION 7.02. Exclusive Benefits of Parties. This Deposit
Agreement is for the exclusive benefit of the parties hereto,
including Holders of the Receipts, and their respective successors
hereunder, and shall not be deemed to give any legal or equitable
right, remedy or claim to any other person whatsoever.
SECTION 7.03. Invalidity of Provisions. In case any one or more
of the provisions contained in this Deposit Agreement or in the
Receipts should be or become invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining
provisions contained herein or therein shall in no way be affected,
prejudiced or disturbed thereby.
SECTION 7.04. Notices. Any and all notices to be given to the
Company hereunder or under the Receipts shall be in writing and shall
be deemed to have been duly given if personally delivered or sent by
mail, or by telegram, facsimile transmission or other electronic means
of communication confirmed by letter, addressed to the Company at:
ARVIN INDUSTRIES, INC.
One Noblitt Plaza
Columbus, Indiana 47202-3000
Attention: Treasurer (with a copy to Secretary)
Telephone No.: (812) 379-3000
Facsimile No.: (812) 379-3688
or at any other address of which the Company shall have notified the
Depositary in writing.
Any notices to be given to the Depositary hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly
given if personally delivered or sent by mail, or by telegram,
facsimile transmission or other electronic means of communication
confirmed by letter, addressed to the Depositary at the Corporate
Office.
Any notices given to any Holder of a Receipt hereunder or under
the Receipts shall be in writing and shall be deemed to have been duly
given if personally delivered or sent by mail, or by telegram,
facsimile transmission or other electronic means of communication,
addressed to such Holder at the address of such Holder as it appears
on the books of the Depositary or, if such Holder shall have filed
with the Depositary in a timely manner a written request that notices
intended for such Holder be mailed to some other address, at the
address designated in such request.
-25-
SECTION 7.05. Holders of Receipts are Parties. The Holders of
Receipts from time to time shall be deemed to be parties to this
Deposit Agreement and shall be bound by all of the terms and
conditions hereof and of the Receipts by acceptance of delivery
thereof.
SECTION 7.06. Governing Law. This Deposit Agreement and the
Receipts and all rights hereunder and thereunder and provisions hereof
and thereof shall be governed by, and construed in accordance with,
the law of the State of [__________] applicable to contracts made and
to be performed entirely within such State.
SECTION 7.07. Inspection of Deposit Agreement and Preferred
Share Amendment. Copies of this Deposit Agreement and the Preferred
Share Amendment shall be filed with the Depositary and any Agent and
shall be open to inspection by any Holder of a Receipt during business
hours at the Corporate Office and the respective offices of any Agent.
SECTION 7.08. Headings. The headings of articles and sections
in this Deposit Agreement and in the form of the Receipt set forth in
Exhibit A hereto have been inserted for convenience only and are not
to be regarded as a part of this Deposit Agreement or to have any
bearing upon the meaning or interpretation of any provision contained
herein or in the Receipts.
IN WITNESS WHEREOF, ARVIN INDUSTRIES, INC. and [Depositary] have
duly executed this Deposit Agreement as of the day and year first
above set forth, and all Holders of Receipts shall become parties
hereto by and upon acceptance by them of delivery of Receipts issued
in accordance with the terms hereof.
ARVIN INDUSTRIES, INC.
Attest: By: ________________________________
Authorized Officer
[Depositary]
Attest: By: _______________________________
Authorized Signatory
Exhibit A
FORM OF FACE OF RECEIPT
NUMBER DEPOSITARY SHARES
CERTIFICATE FOR NOT MORE THAN ________________ DEPOSITARY SHARES
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES, EACH
-26-
REPRESENTING ONE ________ (1/__) OF ONE ________ PREFERRED SHARE OF
ARVIN INDUSTRIES, INC.
CUSIP ___________
INCORPORATED UNDER THE LAWS SEE REVERSE FOR
OF THE STATE OF INDIANA CERTAIN DEFINITIONS
___________________________________, as Depositary (the "Depositary"),
hereby certifies that ______________________________________
______________________ is the registered owner of
__________________________________________ DEPOSITARY SHARES
("Depositary Shares"), each Depositary Shares representing [specify
fraction] of one _______ Preferred Share, no par value (the "Preferred
Shares") of ARVIN INDUSTRIES, INC., a corporation duly organized and
existing under the laws of the State of Indiana (the "Company"), on
deposit with the Depositary, subject to the terms and entitled to the
benefits of the Deposit Agreement dated as of ______________, 199__
(the "Deposit Agreement"), among the Company, the Depositary and the
Holders from time to time of Receipts for Depositary Shares. By
accepting this Receipt the Holder hereof becomes a party to and agrees
to be bound by all the terms and conditions of the Deposit Agreement.
This Receipt shall not be valid or obligatory for any purpose or
entitled to any benefits under the Deposit Agreement unless it shall
have been executed by the Depositary by the manual signature of a duly
authorized officer or, if executed in facsimile by the Depositary,
countersigned by a Registrar in respect of the Receipts by the manual
signature of a duly authorized officer thereof.
Dated: Countersigned:
By _____________________________ By _____________________________
Depositary Registrar
[FORM OF REVERSE OF RECEIPT]
ARVIN INDUSTRIES, INC.
ARVIN INDUSTRIES, INC. WILL FURNISH WITHOUT CHARGE TO EACH
REGISTERED HOLDER OF RECEIPTS WHO SO REQUESTS A COPY OF THE DEPOSIT
AGREEMENT AND A COPY OF THE PREFERRED SHARE AMENDMENT WITH RESPECT TO
THE ______ PREFERRED SHARES OF ARVIN INDUSTRIES, INC. ANY SUCH REQUEST
IS TO BE ADDRESSED TO THE DEPOSITARY NAMED ON THE FACE OF THIS
RECEIPT.
--------------------------------------
The following abbreviations when used in the instructions on the
face of this receipt shall be construed as though they were written
out in full according to applicable laws or regulations.
-27-
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT ENT -- as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT -- _________________ Custodian __________________
(Cust) (Minor)
Under Uniform Gifts to Minors
Act _________________________
(State)
Additional abbreviations may also be used though not in the above
list.
ASSIGNMENT
For value received, _______________ hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
[ ]
_____________________________________________________________________
_____________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE
OF ASSIGNEE
______________________________________________________________________
_________________________ Depositary Shares represented by the within
Receipt, and does hereby irrevocably constitute and appoint
_____________ [Attorney] to transfer the said Depositary Shares on the
books of the within named Depositary with full power of substitution
in the premises.
Dated _____________
_________________________________________
NOTICE: The signature to the
assignment must correspond with the name
as written upon the face of this Receipt
in every particular, without alteration
or enlargement or any change whatever.
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EXHIBIT 4-7
----------------------------------------------------------------------
ARVIN INDUSTRIES, INC.
and
_______________________________
Debt Warrant Agent
_________________
[SENIOR] [SUBORDINATED] DEBT WARRANT AGREEMENT
Dated as of ______________
________________
----------------------------------------------------------------------
-------------------
* OPTIONS REPRESENTED BY BRACKETED OR BLANK SECTIONS HEREIN SHALL BE
DETERMINED IN CONFORMITY WITH APPLICABLE PROSPECTUS SUPPLEMENT OR
SUPPLEMENTS
TABLE OF CONTENTS<**>
Page
----
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I ISSUANCE OF DEBT WARRANTS AND EXECUTION AND DELIVERY OF
DEBT WARRANT CERTIFICATES
Section 1.01. Issuance of Debt Warrants . . . . . . . . . . . . 1
Section 1.02. Form and Execution of Debt Warrant Certificates . 2
Section 1.03. Issuance and Delivery of Debt Warrant
Certificates . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.04. Temporary Debt Warrant Certificates . . . . . . . 3
Section 1.05. Payment of Certain Taxes . . . . . . . . . . . . . 4
Section 1.06. "Holder" . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE II DURATION AND EXERCISE OF DEBT WARRANTS
Section 2.01. Duration of Debt Warrants . . . . . . . . . . . . 4
Section 2.02. Exercise of Debt Warrants . . . . . . . . . . . . 5
ARTICLE III OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF DEBT
WARRANTS
Section 3.01. No Rights as Holder of Underlying Debt Securities
Conferred by Debt Warrants or Debt Warrant Certificates . . . . . 6
Section 3.02. Lost, Stolen, Destroyed or Mutilated Debt Warrant
Certificates . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 3.03. Holder of Debt Warrants May Enforce Rights . . . . 7
ARTICLE IV EXCHANGE AND TRANSFER OF DEBT WARRANTS
[Section 4.01. Debt Warrant Register; Exchange and Transfer of Debt
Warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 4.02. Treatment of Holders of Debt Warrants . . . . . . 8
Section 4.03. Cancellation of Debt Warrant Certificates . . . . 8
ARTICLE V CONCERNING THE DEBT WARRANT AGENT
Section 5.01. Debt Warrant Agent . . . . . . . . . . . . . . . . 9
Section 5.02. Conditions of Debt Warrant Agent's Obligations . . 9
Section 5.03. Resignation and Removal; Appointment of Successor 11
Section 5.04. Compliance With Applicable Laws . . . . . . . . . 13
Section 5.05. Office . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE VI MISCELLANEOUS
Section 6.01. Consolidation or Merger of the Company and Conveyance
or Transfer Permitted Subject to Certain Conditions . . . . . . . 14
Section 6.02. Rights and Duties of Successor Corporation . . . . 14
Section 6.03. Supplements and Amendments . . . . . . . . . . . . 14
<**> The Table of Contents is not part of the Debt Warrant Agreement.
-i-
Section 6.04. Notices and Demands to the Company and Debt
Warrant Agent . . . . . . . . . . . . . . . . . . . . . . . 15
Section 6.05. Addresses . . . . . . . . . . . . . . . . . . . . 15
Section 6.06. Applicable Law . . . . . . . . . . . . . . . . . . 15
Section 6.07. Delivery of Prospectus . . . . . . . . . . . . . . 15
Section 6.08. Governmental Approvals . . . . . . . . . . . . . . 15
Section 6.09. Persons Having Rights under Debt Warrant
Agreement . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 6.10. Delivery of Prospectus . . . . . . . . . . . . . . 16
Section 6.11. Headings . . . . . . . . . . . . . . . . . . . . . 16
Section 6.12. Counterparts . . . . . . . . . . . . . . . . . . . 16
Section 6.13. Inspection of Agreement . . . . . . . . . . . . . 16
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
-ii-
THIS [SENIOR] [SUBORDINATED] DEBT WARRANT AGREEMENT, dated
as of __________, between Arvin Industries, Inc., an Indiana
corporation (the "Company"), and ____________________, a __________
organized and existing under the laws of __________, as warrant agent
(the "Debt Warrant Agent").
WHEREAS, the Company and _____________________ has entered
into an Indenture dated as of __________, 19__ (the "Indenture") with
____________________, trustee (the "Trustee"), providing for the
issuance by the Company from time to time, in one or more series, of
debt securities evidencing its unsecured, ________________
indebtedness (such debt securities, being referred to as the
"Securities"); and
WHEREAS, the Company proposes to issue warrants (the "Debt
Warrants") representing the right to purchase Debt Securities of one
or more series (the "Underlying Debt Securities"); and
WHEREAS, the Company has duly authorized the execution and
delivery of this Debt Warrant Agreement to provide for the issuance of
Debt Warrants to be exercisable at such times and for such prices, and
to have such other provisions, as shall be fixed as hereinafter
provided;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein contained, the parties hereto agree as
follows:
ARTICLE I
ISSUANCE OF DEBT WARRANTS AND EXECUTION AND DELIVERY
OF DEBT WARRANT CERTIFICATES
Section 1.01. Issuance of Debt Warrants. Debt Warrants may be
issued from time to time, together with or separately from any
Securities (the "Offered Debt Securities"). Prior to the issuance of
any Debt Warrants, there shall be established by or pursuant to a
resolution or resolutions duly adopted by the Company's Board of
Directors or by any committee thereof duly authorized to act with
respect thereto (a "Board Resolution"):
(a) the title and aggregate number of such Debt Warrants;
(b) the offering price of such Debt Warrants, if any;
(c) whether such Debt Warrants are to be issued with any
Offered Debt Securities and, if so, the title, aggregate
principal amount and terms of any such Offered Debt Securities;
the number of Debt Warrants to be issued with each $1,000
principal amount of such Offered Debt Securities (or such other
principal amount of such Offered Debt Securities as is provided
for in the Board Resolution); and the date, if any, on and after
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which such Debt Warrants and such Offered Debt Securities will be
separately transferable (the "Detachable Date");
(d) the title, aggregate principal amount, ranking and
terms (including the subordination and conversion provisions) of
the Underlying Debt Securities that may be purchased upon
exercise of such Debt Warrants;
(e) the time or times at which, or period or periods during
which, such Debt Warrants may be exercised, the minimum or
maximum amount of Debt Warrants which may be exercised at any one
time and the final date on which such Debt Warrants may be
exercised (the "Expiration Date");
(f) the principal amount of Underlying Debt Securities that
may be purchased upon exercise of each Debt Warrant and the
price, or the manner of determining the price (the "Debt Warrant
Price"), at which such principal amount may be purchased upon
such exercise;
(g) the terms of any right to redeem or call such Debt
Warrants; and
(h) any other terms of such Debt Warrants not inconsistent
with the provisions of this Agreement.
Section 1.02. Form and Execution of Debt Warrant Certificates.
(a) The Debt Warrants shall be evidenced by warrant
certificates (the "Debt Warrant Certificates"), which may be in
registered or bearer form and otherwise shall be substantially in such
form or forms as shall be established by or pursuant to a Board
Resolution. Each Debt Warrant Certificate, whenever issued, shall be
dated the date it is countersigned by the Debt Warrant Agent and may
have such letters, numbers or other identifying marks and such legends
or endorsements printed, lithographed or engraved thereon as are not
inconsistent with the provisions of this Agreement, or as may be
required to comply with any applicable law, rule or regulation or with
any rule or regulation of any securities exchange on which the Debt
Warrants may be listed, or to conform to usage, as the officer of the
Company executing the same may approve (such officer's execution
thereof to be conclusive evidence of such approval). Each Debt
Warrant Certificate shall evidence one or more Debt Warrants.
(b) The Debt Warrant Certificates shall be signed in the
name and on behalf of the Company by its Chairman of the Board of
Directors, its Vice Chairman of the Board of Directors, its President,
any Executive Vice President, its Vice President - Finance, and by its
Secretary or an Assistant Secretary. Such signatures may be manual or
facsimile signatures of the present or any future holder of any such
office and may be imprinted or otherwise reproduced on the Debt
Warrant Certificates. The seal of the Company may be in the form of a
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facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Debt Warrant Certificates.
(c) No Debt Warrant Certificate shall be valid for any
purpose, and no Debt Warrant evidenced thereby shall be deemed issued
or exercisable, until such Debt Warrant Certificate has been
countersigned by the manual or facsimile signature of the Debt Warrant
Agent. Such signature by the Debt Warrant Agent upon any Debt Warrant
Certificate executed by the Company shall be conclusive evidence that
the Debt Warrant Certificate so countersigned has been duly issued
hereunder.
(d) In case any officer of the Company who shall have
signed any Debt Warrant Certificate either manually or by facsimile
signature shall cease to be such officer before the Debt Warrant
Certificate so signed shall have been countersigned and delivered by
the Debt Warrant Agent, such Debt Warrant Certificate nevertheless may
be countersigned and delivered as though the person who signed such
Debt Warrant Certificate had not ceased to be such officer of the
Company; and any Debt Warrant Certificate may be signed on behalf of
the Company by such person as, at the actual date of the execution of
such Debt Warrant Certificate, shall be the proper officer of the
Company, although at the date of the execution of this Agreement such
person was not such an officer.
Section 1.03. Issuance and Delivery of Debt Warrant
Certificates. At any time and from time to time after the execution
and delivery of this Agreement, the Company may deliver Debt Warrant
Certificates executed by the Company to the Debt Warrant Agent for
countersignature. Except as provided in the following sentence, the
Debt Warrant Agent shall thereupon countersign and deliver such Debt
Warrant Certificates to or upon the written request of the Company.
Subsequent to the original issuance of a Debt Warrant Certificate
evidencing Debt Warrants, the Debt Warrant Agent shall countersign a
new Debt Warrant Certificate evidencing such Debt Warrants only if
such Debt Warrant Certificate is issued in exchange or substitution
for one or more previously countersigned Debt Warrant Certificates
evidencing such Debt Warrants or in connection with their transfer, as
hereinafter provided.
Section 1.04. Temporary Debt Warrant Certificates. Pending the
preparation of definitive Debt Warrant Certificates, the Company may
execute, and upon the order of the Company the Debt Warrant Agent
shall countersign and deliver, temporary Debt Warrant Certificates
that are printed, lithographed, typewritten, mimeographed or otherwise
produced, substantially of the tenor of the definitive Debt Warrant
Certificates in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations
as the officer executing such Debt Warrant Certificates may determine,
as evidenced by such officer's execution of such Debt Warrant
Certificates.
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If temporary Debt Warrant Certificates are issued, the
Company will cause definitive Debt Warrant Certificates to be prepared
without unreasonable delay. After the preparation of definitive Debt
Warrant Certificates, the temporary Debt Warrant Certificates shall be
exchangeable for definitive Debt Warrant Certificates upon surrender
of the temporary Debt Warrant Certificates at the corporate trust
office of the Debt Warrant Agent or __________, without charge to the
Holder, as defined in Section 1.06 hereof. Upon surrender for
cancellation of any one or more temporary Debt Warrant Certificates,
the Company shall execute and the Debt Warrant Agent shall countersign
and deliver in exchange therefor definitive Debt Warrant Certificates
representing the same aggregate number of Debt Warrants. Until so
exchanged, the temporary Debt Warrant Certificates shall in all
respects be entitled to the same benefits under this Agreement as
definitive Debt Warrant Certificates.
Section 1.05. Payment of Certain Taxes. The Company will pay
all stamp and other duties, if any, to which this Agreement or the
original issuance of the Debt Warrants or Debt Warrant Certificates
may be subject under the laws of the United States of America or any
state or locality.
Section 1.06. "Holder". The term "Holder" or "Holders", as used
herein with reference to a Debt Warrant Certificate, shall mean [if
registered Debt Warrants the person or persons in whose name such Debt
Warrant Certificate shall then be registered as set forth in the Debt
Warrant Register to be maintained by the Debt Warrant Agent pursuant
to Section 4.01 for that purpose] [if bearer Debt Warrants - the
bearer of such Debt Warrant Certificate] or, in the case of Debt
Warrants that are issued with Offered Debt Securities and cannot then
be transferred separately therefrom, [if registered Offered Debt
Securities and Debt Warrants that are not then detachable - the person
or persons in whose name the related Offered Debt Securities shall be
registered as set forth in the security register to be maintained by
the Trustee for such Offered Debt Securities pursuant to the
Indenture] [if bearer Offered Debt Securities and Debt Warrants that
are not then detachable - the bearer of the related Offered Debt
Security], prior to the Detachable Date. [If registered Offered Debt
Securities and Debt Warrants that are not then detachable - The
Company will, or will cause the security registrar of any such Offered
Debt Securities to, make available to the Debt Warrant Agent at all
times (including on and after the Detachable Date, in the case of Debt
Warrants originally issued with Offered Debt Securities and not
subsequently transferred separately therefrom) such information as to
holders of Offered Debt Securities with Debt Warrants as may be
necessary to keep the Warrant Register up to date.]
ARTICLE II
DURATION AND EXERCISE OF DEBT WARRANTS
Section 2.01. Duration of Debt Warrants. Each Debt Warrant may
be exercised at the time or times, or during the period or periods,
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provided by or pursuant to the Board Resolution relating thereto and
specified in the Debt Warrant Certificate evidencing such Debt
Warrant. Each Debt Warrant not exercised at or before 5:00 P.M., New
York City time, on its Expiration Date shall become void, and all
rights of the Holder of such Debt Warrant thereunder and under this
Agreement shall cease, provided that the Company reserves the right
to, and may, in its sole discretion, at any time and from time to
time, at such time or times as the Company so determines, extend the
Expiration Date of the Warrants for such periods of time as it
chooses. Whenever the Expiration Date of the Debt Warrants is so
extended, the Company shall at least [20] days prior to the then
Expiration Date cause to be mailed to the Debt Warrant Agent and the
registered Holders of the Debt Warrants in accordance with the
provisions of Section 6.04 hereof a notice stating that the Expiration
Date has been extended and setting forth the new Expiration Date.
Section 2.02. Exercise of Debt Warrants. (a) The Holder of a
Debt Warrant shall have the right, at its option, to exercise such
Debt Warrant and, subject to subsection (f) of this Section 2.02,
purchase the principal amount of Underlying Debt Securities provided
for therein at the time or times or during the period or periods
referred to in Section 2.01 and specified in the Debt Warrant
Certificate evidencing such Debt Warrant. Except as may be provided
in a Debt Warrant Certificate, a Debt Warrant may be exercised by
completing the form of election to purchase set forth on the reverse
side of the Debt Warrant Certificate, by duly executing and delivering
the same, together with payment in full of the Debt Warrant Price in
lawful money of the United States of America, in cash or by certified
or official bank check or by bank wire transfer, to the Debt Warrant
Agent. Except as may be provided in a Debt Warrant Certificate, the
date on which such Debt Warrant Certificate and payment are received
by the Debt Warrant Agent as aforesaid shall be deemed to be the date
on which the Debt Warrant is exercised and the Underlying Debt
Securities are issued.
(b) Upon the exercise of a Debt Warrant, the Company shall
issue, pursuant to the Indenture, in authorized denominations to or
upon the order of the Holder of such Debt Warrant, the Underlying Debt
Securities to which such Holder is entitled, in the form required
under such Indenture, registered, in the case of Underlying Debt
Securities in registered form, in such name or names as may be
directed by such Holder.
(c) If fewer than all of the Debt Warrants evidenced by a
Debt Warrant Certificate are exercised, the Company shall execute, and
an authorized officer of the Debt Warrant Agent shall countersign and
deliver, a new Debt Warrant Certificate evidencing the number of Debt
Warrants remaining unexercised.
(d) The Debt Warrant Agent shall deposit all funds received
by it in payment of the Debt Warrant Price in the account of the
Company maintained with it for such purpose and shall advise the
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Company by telephone by 5:00 P.M., New York City time, of each day on
which a payment of the Debt Warrant Price for Debt Warrants is
received of the amount so deposited in its account. The Debt Warrant
Agent shall promptly confirm such telephone advice in writing to the
Company.
(e) The Debt Warrant Agent shall, from time to time, as
promptly as practicable, advise the Company and the Trustee of (i) the
number of Debt Warrants of each title exercised as provided herein,
(ii) the instructions of each Holder with respect to delivery of the
Underlying Debt Securities to which such Holder is entitled upon such
exercise, (iii) the delivery of Debt Warrant Certificates evidencing
the balance, if any, of the Debt Warrants remaining unexercised after
such exercise, and (iv) such other information as the Company or the
Trustee shall reasonably require. Such notice may be given by
telephone to be promptly confirmed in writing.
(f) The Holder, and not the Company, shall be required to
pay any stamp or other tax or other governmental charge that may be
imposed in connection with any transfer involved in the issuance of
the Underlying Debt Securities; and in the event that any such
transfer is involved, the Company shall not be required to issue any
Underlying Debt Securities (and the Holder's purchase of the
Underlying Debt Securities upon the exercise of such Holder's Debt
Warrant shall not be deemed to have been consummated) until such tax
or other charge shall have been paid or it has been established to the
Company's satisfaction that no such tax or other charge is due.
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
OF DEBT WARRANTS
Section 3.01. No Rights as Holder of Underlying Debt Securities
Conferred by Debt Warrants or Debt Warrant Certificates. No Debt
Warrant or Debt Warrant Certificate shall entitle the Holder to any of
the rights of a holder of Underlying Debt Securities, including,
without limitation, the right to receive the payment of principal of
(or premium, if any, on) or interest, if any, on Underlying Debt
Securities or to enforce any of the covenants in the Indenture.
Section 3.02. Lost, Stolen, Destroyed or Mutilated Debt Warrant
Certificates. Upon receipt by the Company and the Debt Warrant Agent
of evidence reasonably satisfactory to them of the ownership of and
the loss, theft, destruction or mutilation of any Debt Warrant
Certificate and of indemnity (other than in connection with any
mutilated Debt Warrant Certificates surrendered to the Debt Warrant
Agent for cancellation) reasonably satisfactory to them, the Company
shall execute, and the Debt Warrant Agent shall countersign and
deliver, in exchange for or in lieu of each lost, stolen, destroyed or
mutilated Debt Warrant Certificate, a new Debt Warrant Certificate
evidencing a like number of Debt Warrants of the same title. Upon the
issuance of a new Debt Warrant Certificate under this Section, the
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Company may require the payment of a sum sufficient to cover any stamp
or other tax or other governmental charge that may be imposed in
connection therewith and any other expenses (including the fees and
expenses of the Debt Warrant Agent) in connection therewith. Every
substitute Debt Warrant Certificate executed and delivered pursuant to
this Section in lieu of any lost, stolen or destroyed Debt Warrant
Certificate shall represent a contractual obligation of the Company,
whether or not such lost, stolen or destroyed Debt Warrant Certificate
shall be at any time enforceable by anyone, and shall be entitled to
the benefits of this Agreement equally and proportionately with any
and all other Debt Warrant Certificates, duly executed and delivered
hereunder, evidencing Debt Warrants of the same title. The provisions
of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement
of lost, stolen, destroyed or mutilated Debt Warrant Certificates.
Section 3.03. Holder of Debt Warrants May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, a Holder,
without the consent of the Debt Warrant Agent, the Trustee, the holder
of any Underlying Debt Securities or the Holder of any other Debt
Warrant, may, on its own behalf and for its own benefit, enforce, and
may institute and maintain any suit, action or proceeding against the
Company to enforce, or otherwise in respect of, its right to exercise
its Debt Warrant or Debt Warrants in the manner provided in this
Agreement and its Debt Warrant Certificate.
ARTICLE IV
EXCHANGE AND TRANSFER OF DEBT WARRANTS
[Section 4.01. Debt Warrant Register; Exchange and Transfer of
Debt Warrants. If registered Debt Warrants - The Debt Warrant Agent
shall maintain, at its corporate trust office [or at __________], a
register (the " Debt Warrant Register") in which, upon the issuance of
Debt Warrants, or on and after the Detachable Date in the case of Debt
Warrants not separately transferable prior thereto, and, subject to
such reasonable regulations as the Debt Warrant Agent may prescribe,
it shall register Debt Warrant Certificates and exchanges and
transfers thereof. The Debt Warrant Register shall be in written form
or in any other form capable of being converted into written form
within a reasonable time.]
Except as provided in the following sentence, upon surrender
at the corporate trust office of the Debt Warrant Agent [or at
__________] Debt Warrant Certificates may be exchanged for one or more
other Debt Warrant Certificates evidencing the same aggregate number
of Debt Warrants of the same title, or may be transferred in whole or
in part. A Debt Warrant Certificate evidencing Debt Warrants that are
not then transferable separately from the Offered Debt Security with
which they were issued may be exchanged or transferred prior to its
Detachable Date only together with such Offered Debt Security and only
for the purpose of effecting, or in conjunction with, an exchange or
transfer of such Offered Debt Security; and on or prior to the
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Detachable Date, [if registered Offered Debt Securities and Debt
Warrants - each exchange or transfer of such Offered Debt Security on
the security register of the Offered Debt Securities shall operate
also to exchange or transfer the related Debt Warrant] [if bearer
Offered Debt Securities and Debt Warrants - an exchange or transfer of
possession of the related Offered Debt Security shall operate also to
exchange or transfer the related Debt Warrants]. [If registered Debt
Warrants - A transfer shall be registered upon surrender of a Debt
Warrant Certificate to the Debt Warrant Agent at its corporate trust
office [or at __________ for transfer, properly endorsed or
accompanied by appropriate instruments of transfer and written
instructions for transfer, all in form satisfactory to the Company and
the Debt Warrant Agent duly signed by the registered holder or holders
thereof or by the duly appointed legal representative thereof or by a
duly authorized attorney, such signature to be guaranteed by (a) a
bank or trust company, (b) a broker or dealer that is a member of the
National Association of Securities Dealers, Inc. (the "NASD") or (c) a
member of a national securities exchange. Upon any such registration
of transfer, a new Debt Warrant Certificate shall be issued to the
transferee.] Whenever a Debt Warrant Certificate is surrendered for
exchange or transfer, the Debt Warrant Agent shall countersign and
deliver to the person or persons entitled thereto one or more Debt
Warrant Certificates duly executed by the Company, as so requested.
The Debt Warrant Agent shall not be required to effect any exchange or
transfer which will result in the issuance of a Debt Warrant
Certificate evidencing a fraction of a Debt Warrant. All Debt Warrant
Certificates issued upon any exchange or transfer of a Debt Warrant
Certificate shall be the valid obligations of the Company, evidencing
the same obligations, and entitled to the same benefits under this
Agreement, as the Debt Warrant Certificate surrendered for such
exchange or transfer.
No service charge shall be made for any exchange or transfer
of Debt Warrants, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any such exchange or transfer, in
accordance with Section 2.02(f) hereof.
Section 4.02. Treatment of Holders of Debt Warrants. Every
Holder of a Debt Warrant, by accepting the Debt Warrant Certificate
evidencing the same, consents and agrees with the Company, the Debt
Warrant Agent and with every other Holder of Debt Warrants of the same
title that the Company and the Debt Warrant Agent may treat the Holder
of a Debt Warrant Certificate (or, if the Debt Warrant Certificate is
not then detachable, the Holder of the related Offered Debt Security)
as the absolute owner of such Debt Warrant for all purposes and as the
person entitled to exercise the rights represented by such Debt
Warrant, any notice to the contrary notwithstanding.
Section 4.03. Cancellation of Debt Warrant Certificates. In the
event that the Company shall purchase, redeem or otherwise acquire any
Debt Warrants after the issuance thereof, the Debt Warrant Certificate
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or Certificates evidencing such Debt Warrants shall thereupon be
delivered to the Debt Warrant Agent and be cancelled by it. The Debt
Warrant Agent shall also cancel any Debt Warrant Certificate
(including any mutilated Debt Warrant Certificate) delivered to it for
exercise, in whole or in part, or for exchange [or transfer] [if Debt
Warrant Certificates are issued in bearer form - , except that Debt
Warrant Certificates delivered to the Debt Warrant Agent in exchange
for Debt Warrant Certificates of other denominations may be retained
by the Debt Warrant Agent for reissue]. Debt Warrant Certificates so
cancelled shall be delivered by the Debt Warrant Agent to the Company
from time to time, or disposed of in accordance with the instructions
of the Company.
ARTICLE V
CONCERNING THE DEBT WARRANT AGENT
Section 5.01. Debt Warrant Agent. The Company hereby appoints
_____________________ as Debt Warrant Agent of the Company in respect
of the Debt Warrants and the Debt Warrant Certificates upon the terms
and subject to the conditions set forth herein; and _______________
hereby accepts such appointment. The Debt Warrant Agent shall have
the powers and authority granted to and conferred upon it in the Debt
Warrant Certificates and hereby and such further powers and authority
acceptable to it to act on behalf of the Company as the Company may
hereafter grant to or confer upon it. All of the terms and provisions
with respect to such powers and authority contained in any Debt
Warrant Certificate are subject to and governed by the terms and
provisions hereof.
Section 5.02. Conditions of Debt Warrant Agent's Obligations.
The Debt Warrant Agent accepts its obligations set forth herein upon
the terms and conditions hereof, including the following, to all of
which the Company agrees and to all of which the rights hereunder of
the Holders shall be subject:
(a) Compensation and Indemnification. The Company agrees
to promptly pay the Debt Warrant Agent the compensation [set
forth in Exhibit A hereto] and to reimburse the Debt Warrant
Agent for reasonable out-of-pocket expenses (including counsel
fees) incurred by the Debt Warrant Agent in connection with the
services rendered hereunder by the Debt Warrant Agent. The
Company also agrees to indemnify the Debt Warrant Agent for, and
to hold it harmless against, any loss, liability or expense
(including the reasonable costs and expenses of defending against
any claim of liability) incurred without negligence or bad faith
on the part of the Debt Warrant Agent arising out of or in
connection with its appointment, status or service as Debt
Warrant Agent hereunder.
(b) Agent for the Company. In acting under this Agreement
and in connection with any Debt Warrant Certificate, the Debt
Warrant Agent is acting solely as agent of the Company and does
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not assume any obligation or relationship of agency or trust for
or with any Holder.
(c) Counsel. The Debt Warrant Agent may consult with
counsel satisfactory to it, and the advice of such counsel shall
be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good
faith and in accordance with the advice of such counsel.
(d) Documents. The Debt Warrant Agent shall be protected
and shall incur no liability for or in respect of any action
taken, suffered or omitted by it in reliance upon any notice,
direction, consent, certificate, affidavit, statement or other
paper or document reasonably believed by it to be genuine and to
have been presented or signed by the proper parties.
(e) Officer's Certificate. Whenever in the performance of
its duties hereunder the Debt Warrant Agent shall reasonably deem
it necessary that any fact or matter be proved or established by
the Company prior to taking, suffering or omitting any action
hereunder, the Debt Warrant Agent may (unless other evidence in
respect thereof be herein specifically prescribed), in the
absence of bad faith on its part, rely upon a certificate signed
by the Chairman of the Board of Directors, the Vice Chairman of
the Board of Directors, the President, an Executive Vice
President, and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of the Company (an "Officer's
Certificate") delivered by the Company to the Debt Warrant Agent.
(f) Actions Through Agents. The Debt Warrant Agent may
execute and exercise any of the rights or powers hereby vested in
it or perform any duty hereunder either itself or by or through
its attorneys or agents, and the Debt Warrant Agent shall not be
answerable or accountable for any act, default, neglect or
misconduct of any such attorney or agent or for any loss to the
Company resulting from such neglect or misconduct; provided,
however, that reasonable care shall have been exercised in the
selection and continued employment of such attorneys and agents.
(g) Certain Transactions. The Debt Warrant Agent, and any
officer, director or employee thereof, may become the owner of,
or acquire any interest in, any Debt Warrant, with the same
rights that he, she or it would have if it were not the Debt
Warrant Agent, and, to the extent permitted by applicable law,
he, she or it may engage or be interested in any financial or
other transaction with the Company and may serve on, or as
depository, trustee or agent for, any committee or body of
holders of Underlying Debt Securities or other obligations of the
Company as if it were not the Debt Warrant Agent. Nothing in
this Agreement shall be deemed to prevent the Debt Warrant Agent
from acting as Trustee under the Indenture.
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(h) No Liability for Interest. The Debt Warrant Agent
shall not be liable for interest on any monies at any time
received by it pursuant to any of the provisions of this
Agreement or of the Debt Warrant Certificates, except as
otherwise agreed with the Company.
(i) No Liability for Invalidity. The Debt Warrant Agent
shall incur no liability with respect to the validity of this
Agreement (except as to the due execution hereof by the Debt
Warrant Agent) or any Debt Warrant Certificate (except as to the
countersignature thereof by the Debt Warrant Agent).
(j) No Responsibility for Company Representations. The
Debt Warrant Agent shall not be responsible for any of the
recitals or representations contained herein (except as to such
statements or recitals as describe the Debt Warrant Agent or
action taken or to be taken by it) or in any Debt Warrant
Certificate (except as to the Debt Warrant Agent's
countersignature on such Debt Warrant Certificate), all of which
recitals and representations are made solely by the Company.
(k) No Implied Obligations. The Debt Warrant Agent shall
be obligated to perform only such duties as are specifically set
forth herein, and no other duties or obligations shall be
implied. The Debt Warrant Agent shall not be under any
obligation to take any action hereunder that may subject it to
any expense or liability, the payment of which within a
reasonable time is not, in its reasonable opinion, assured to it.
The Debt Warrant Agent shall not be accountable or under any duty
or responsibility for the use by the Company of any Debt Warrant
Certificate countersigned by the Debt Warrant Agent and delivered
by it to the Company pursuant to this Agreement or for the
application by the Company of the proceeds of the issuance or
exercise of Debt Warrants. The Debt Warrant Agent shall have no
duty or responsibility in case of any default by the Company in
the performance of its covenants or agreements contained herein
or in any Debt Warrant Certificate or in case of the receipt of
any written demand from a Holder with respect to such default,
including, without limiting the generality of the foregoing, any
duty or responsibility to initiate or attempt to initiate any
proceedings at law or otherwise or, except as provided in Section
6.04 hereof, to make any demand upon the Company.
Section 5.03. Resignation and Removal; Appointment of Successor.
(a) The Company agrees, for the benefit of the Holders of
the Debt Warrants, that there shall at all times be a Debt Warrant
Agent hereunder until all the Debt Warrants are no longer exercisable.
(b) The Debt Warrant Agent may at any time resign as such
by giving written notice to the Company, specifying the date on which
such resignation shall become effective; provided that such date shall
not be less than [90] days after the date on which such notice is
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given, unless the Company agrees to accept a shorter notice. Such
resignation is subject to the appointment and acceptance of a
successor Debt Warrant Agent, as hereinafter provided. The Debt
Warrant Agent hereunder may be removed at any time by the filing with
it of an instrument in writing signed by or on behalf of the Company
and specifying such removal and the date when it shall become
effective. Notwithstanding the provisions of this Section 5.03(b),
such resignation or removal shall take effect only upon the
appointment by the Company, as hereinafter provided, of a successor
Debt Warrant Agent (which shall be a bank or trust company organized
and doing business under the laws of the United States of America, any
State thereof or the District of Columbia, authorized under the laws
of such jurisdiction to exercise corporate trust powers and having at
the time of its appointment as Debt Warrant Agent a combined capital
and surplus (as set forth in its most recent published report of
financial condition) of at least [$50,000,000]) and the acceptance of
such appointment by such successor Debt Warrant Agent. In the event a
successor Debt Warrant Agent has not been appointed and has not
accepted its duties within [90] days of the Debt Warrant Agent's
notice of resignation, the Debt Warrant Agent may apply to any court
of competent jurisdiction for the designation of a successor Debt
Warrant Agent. The obligations of the Company under Section 5.02(a)
shall continue to the extent set forth therein notwithstanding the
resignation or removal of the Debt Warrant Agent.
(c) In case at any time the Debt Warrant Agent shall
resign, or shall be removed, or shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or shall file a petition
seeking relief under Title 11 of the United States Code, as now
constituted or hereafter amended, or under any other applicable
federal or state bankruptcy law or similar law, or make an assignment
for the benefit of its creditors, or consent to the appointment of a
receiver or custodian for all or any substantial part of its property,
or shall admit in writing its inability to pay or meet its debts as
they mature, or if a receiver or custodian for it or for all or any
substantial part of its property shall be appointed, or if an order of
any court shall be entered for relief against it under the provisions
of Title 11 of the United States Code, as now constituted or hereafter
amended, or under any other applicable federal or state bankruptcy or
similar law, or if any public officer shall have taken charge or
control of the Debt Warrant Agent or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, a
successor Debt Warrant Agent, qualified as aforesaid, shall be
appointed by the Company by an instrument in writing, filed with the
successor Debt Warrant Agent. Upon the appointment as aforesaid of a
successor Debt Warrant Agent and acceptance by the successor Debt
Warrant Agent of such appointment, the Debt Warrant Agent so
superseded shall cease to be Debt Warrant Agent hereunder.
(d) Any successor Debt Warrant Agent appointed hereunder
shall execute, acknowledge and deliver to its predecessor and to the
Company an instrument accepting such appointment hereunder, and
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thereupon such successor Debt Warrant Agent, without any further act,
deed or conveyance, shall become vested with all the authority,
rights, powers, trusts, immunities, duties and obligations of such
predecessor with like effect as if originally named as Debt Warrant
Agent hereunder, and such predecessor, upon payment of its charges and
disbursements then unpaid, shall thereupon become obligated to
transfer, deliver and pay over, and such successor Debt Warrant Agent
shall be entitled to receive, [the Debt Warrant Register and] all
monies, securities and other property on deposit with or held by such
predecessor (together with any books and records relating thereto), as
Debt Warrant Agent hereunder.
(e) The Company shall cause notice of the appointment of
any successor Debt Warrant Agent to be [if registered Debt Warrants -
mailed by first-class mail, postage prepaid, to each Holder at its
address appearing on the Debt Warrant Register or, in the case of Debt
Warrants that are issued with Offered Debt Securities and cannot then
be transferred separately therefrom, on the security register for the
Offered Debt Securities] [if bearer Debt Warrants - published in an
Authorized Newspaper (as defined in Section 101 of the Indenture) in
The City of New York and in such other city or cities as may be
specified by the Company at least twice, [the first such publication
to be not earlier than the earliest date and not later than the latest
date prescribed for the giving such notice]. Such notice shall set
forth the name and address of the successor Debt Warrant Agent.
Failure to give any notice provided for in this Section 5.03(e), or
any defect therein, shall not, however, affect the legality or
validity of the appointment of the successor Debt Warrant Agent.
(f) Any corporation into which the Debt Warrant Agent
hereunder may be merged or converted, or any corporation with which
the Debt Warrant Agent may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the
Debt Warrant Agent shall be a party, or any corporation to which the
Debt Warrant Agent shall sell or otherwise transfer all or
substantially all of its assets and business, provided that such
Corporation shall be qualified as aforesaid, shall be the successor
Debt Warrant Agent under this Agreement without the execution or
filing of any paper, the giving of any notice to Holders or any
further act on the part of the parties hereto.
Section 5.04. Compliance With Applicable Laws. The Debt
Warrant Agent agrees to comply with all applicable federal and state
laws imposing obligations on it in respect of the services rendered by
it under this Debt Warrant Agreement and in connection with the Debt
Warrants, including (but not limited to) the provisions of United
States federal income tax laws regarding information reporting and
backup withholding. The Debt Warrant Agent expressly assumes all
liability for its failure to comply with any such laws imposing
obligations on it, including (but not limited to) any liability for
failure to comply with any applicable provisions of United States
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federal income tax laws regarding information reporting and backup
withholding.
Section 5.05. Office. The Company will maintain an office or
agency where Debt Warrant Certificates may be presented for exchange,
transfer or exercise. The office initially designated for this
purpose shall be the corporate trust office of the Debt Warrant Agent
at _____________________.
ARTICLE VI
MISCELLANEOUS
Section 6.01. Consolidation or Merger of the Company and
Conveyance or Transfer Permitted Subject to Certain Conditions. To
the extent permitted in the Indenture, the Company may consolidate
with or merge into another corporation or other entity, or convey or
transfer all or substantially all of its properties and assets to any
other corporation or other entity.
Section 6.02. Rights and Duties of Successor Corporation. In
case of any such consolidation, merger, conveyance or transfer and
upon any assumption of the duties and obligations of the Company by
the successor corporation, such successor corporation shall succeed to
and be substituted for the Company, with the same effect as if it had
been named herein, and the Company shall be relieved of any further
obligation under this Agreement and the Debt Warrants. Such successor
corporation thereupon may cause to be signed, and may issue either in
its own name or in the name of the Company, any or all of the
Underlying Debt Securities issuable pursuant to the terms hereof. All
the Underlying Debt Securities so issued shall in all respects have
the same legal rank and benefit under the Indenture as the Underlying
Debt Securities theretofore or thereafter issued in accordance with
the terms of this Agreement and the Indenture.
In case of any such consolidation, merger, conveyance or
transfer, such changes in phraseology and form (but not in substance)
may be made in the Underlying Debt Securities thereafter to be issued
as may be appropriate. Section 6.03. Supplements and Amendments.
(a) The Company and the Debt Warrant Agent may from time to time
supplement or amend this Agreement without the approval or consent of
any Holder in order to cure any ambiguity, to correct or supplement
any provision contained herein that may be defective or inconsistent
with any other provision herein, or to make any other provision in
regard to matters or questions arising hereunder that the Company and
the Debt Warrant Agent may deem necessary or desirable and that shall
not adversely affect the interests of the Holders. Every Holder of
Debt Warrants, whether issued before or after any such supplement or
amendment, shall be bound thereby. Promptly after the effectiveness
of any supplement or amendment that affects the interests of the
Holders, the Company shall give notice thereof, as provided in Section
5.03(d) hereof, to the Holders affected thereby, setting forth in
general terms the substance of such supplement or amendment.
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(b) The Company and the Debt Warrant Agent may modify or
amend this Agreement and the Debt Warrant Certificates with the
consent of the Holders of not fewer than a majority in principal
amount of the underlying Debt Securities represented by the Debt
Warrants affected by such modification or amendment, for any purpose;
provided, however, that no such modification or amendment that
shortens the period of time during which the Debt Warrants may be
exercised, or otherwise materially and adversely affects the exercise
rights of the Holders or reduces the percentage of Holders of
outstanding Debt Warrants the consent of which is required for
modification or amendment of this Agreement or the Debt Warrants, may
be made without the consent of each Holder affected thereby.
Section 6.04. Notices and Demands to the Company and Debt
Warrant Agent. If the Debt Warrant Agent shall receive any notice or
demand addressed to the Company by a Holder pursuant to the provisions
of this Agreement or a Debt Warrant Certificate (other than notices
relating to the exchange[, transfer] or exercise of Debt Warrants),
the Debt Warrant Agent shall promptly forward such notice or demand to
the Company.
Section 6.05. Addresses. Any communications from the Company to
the Debt Warrant Agent with respect to this Agreement shall be
directed to ____________________, Attention: ____________________, and
any communications from the Debt Warrant Agent to the Company with
respect to this Agreement shall be directed to Arvin Industries, Inc.,
One Noblitt Plaza, Box Number 3000, Columbus, Indiana 47202-3000,
Attention: Treasurer, with a copy to the Secretary (or such other
address as shall be specified in writing by the Debt Warrant Agent or
by the Company, as the case may be).
Section 6.06. Applicable Law. This Agreement and the Debt
Warrants shall be governed by and construed in accordance with the
laws of the [State of Indiana] applicable to contracts made and to be
performed entirely within such State.
Section 6.07. Delivery of Prospectus. The Company will furnish
to the Debt Warrant Agent sufficient copies of a prospectus or
prospectuses relating to the Underlying Debt Securities deliverable
upon exercise of any outstanding Debt Warrants (each a "Prospectus"),
and the Debt Warrant Agent agrees to deliver to the Holder of a Debt
Warrant, prior to or concurrently with the delivery of the Underlying
Debt Securities issued upon the exercise thereof, a copy of the
Prospectus relating to such Underlying Debt Securities.
Section 6.08. Governmental Approvals. The Company will take
such action as may be necessary to obtain and keep effective any and
all permits, consents and approvals of governmental agencies and
authorities, and will make all filings under federal and state
securities laws (including, without limitation, the maintenance of the
effectiveness of a registration statement in respect of the Underlying
Debt Securities under the Securities Act of 1933), as may be or become
-15-
requisite in connection with the issuance, sale, transfer and delivery
of Debt Warrants and Debt Warrant Certificates, the exercise of Debt
Warrants and the issuance, sale and delivery of Underlying Debt
Securities issued upon exercise of Debt Warrants.
Section 6.09. Persons Having Rights under Debt Warrant
Agreement. Nothing in this Agreement, expressed or implied, and
nothing that may be inferred from any of the provisions hereof is
intended or shall be construed to confer upon or give to any person or
corporation other than the Company, the Debt Warrant Agent and the
Holders any right, remedy or claim under or by reason of this
Agreement or any covenant, condition, stipulation, promise or
agreement herein; and all covenants, conditions, stipulations,
promises and agreements herein shall be for the sole and exclusive
benefit of the Company, the Debt Warrant Agent and their respective
successors and the Holders.
Section 6.10. Delivery of Prospectus. The Company will
furnish to the Debt Warrant Agent sufficient copies of a prospectus or
prospectuses relating to the Underlying Debt Securities deliverable
upon exercise of any outstanding Debt Warrants (each a "Prospectus"),
and the Debt Warrant, prior to or concurrent with the delivery of the
Underlying Debt Securities issued upon the exercise thereof, a copy of
the Prospectus relating to such Debt Securities.
Section 6.11. Headings. The descriptive headings of the several
Articles and Sections of this Agreement are inserted for convenience
only and shall not control or affect the meaning or construction of
any of the provisions hereof.
Section 6.12. Counterparts. This Agreement may be executed in
one or more counterparts, each of which when so executed and delivered
shall be deemed to be an original; but all such counterparts taken
together shall constitute one and the same agreement.
Section 6.13. Inspection of Agreement. A copy of this Agreement
shall be available during business hours at the office of the Debt
Warrant Agent for inspection by any Holder. The Debt Warrant Agent
may require such Holder to submit its Debt Warrant Certificate for
inspection prior to making such copy available.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed all as of the day and year first above
written.
ARVIN INDUSTRIES, INC.
[Seal]
By _______________________________
Attest: Name and Title:
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_________________________________
Name and Title:
___________________________________
[Seal]
Attest: By ________________________________
Name and Title:
_________________________________
Name and Title:
-17-
Exhibit A
to
[Senior] [Subordinated] Debt Warrant Agreement
dated as of __________, 19__
[Compensation of Debt Warrant Agent]
EXHIBIT 4-8
STOCK WARRANT AGREEMENT<*>
dated as of _________, _____
FOR
UP TO ___ STOCK WARRANTS
EXPIRING __________, _____
between
ARVIN INDUSTRIES, INC.
and
[NAME OF STOCK WARRANT AGENT], as
Stock Warrant Agent
<*>OPTIONS REPRESENTED BY BRACKETED OR BLANK SECTIONS HEREIN SHALL BE
DETERMINED IN CONFORMITY WITH THE APPLICABLE PROSPECTUS SUPPLEMENT OR
SUPPLEMENTS.
TABLE OF CONTENTS<*>
ARTICLE I ISSUANCE OF STOCK WARRANTS AND EXECUTION AND DELIVERY
OF WARRANT CERTIFICATES
Section 1.01. Issuance of Stock Warrants . . . . . . . . . 1
Section 1.02. Form and Execution of Warrant Certificates . 2
Section 1.03. Issuance and Delivery of Warrant
Certificates . . . . . . . . . . . . . . . . . . . . . 3
Section 1.04. Temporary Warrant Certificates . . . . . . . 3
Section 1.05. Payment of Certain Taxes . . . . . . . . . . 4
Section 1.06. "Holder. . . . . . . . . . . . . . . . . . . 4
ARTICLE II DURATION AND EXERCISE OF STOCK WARRANTS
Section 2.01. Duration of Stock Warrants . . . . . . . . . 4
Section 2.02. Exercise of Stock Warrants . . . . . . . . . 5
Section 2.03. Stock Warrant Adjustments . . . . . . . . . . 6
ARTICLE III OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF
STOCK WARRANTS
Section 3.01. No Rights as Holder of Underlying
[Preferred/Common/Depositary] Shares Conferred by Stock
Warrants or Warrant Certificates . . . . . . . . . . . 6
Section 3.02. Lost, Stolen, Destroyed or Mutilated Warrant
Certificates . . . . . . . . . . . . . . . . . . . . . 6
Section 3.03. Holders of Stock Warrants May Enforce
Rights . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 3.04. Merger, Consolidation, Sale, Transfer or
Conveyance . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE IV EXCHANGE AND TRANSFER OF STOCK WARRANTS
Section 4.01. Stock Warrant Register; Exchange and Transfer
of Stock Warrants . . . . . . . . . . . . . . . . . . . 8
Section 4.02. Treatment of Holders of Warrant Certificates 9
Section 4.03. Cancellation of Warrant Certificates . . . . 9
ARTICLE V CONCERNING THE WARRANT AGENT
Section 5.01. Warrant Agent . . . . . . . . . . . . . . . . 10
Section 5.02. Conditions of Warrant Agent's Obligations . . 10
Section 5.03. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . . . . . . . . 12
Section 5.04. Compliance With Applicable Laws . . . . . . . 13
Section 5.05. Office . . . . . . . . . . . . . . . . . . . 14
ARTICLE VI MISCELLANEOUS
Section 6.01. Supplements and Amendments . . . . . . . . . 14
Section 6.02. Notices and Demands to the Company and
Warrant Agent . . . . . . . . . . . . . . . . . . . . . 14
Section 6.03. Addresses for Notices . . . . . . . . . . . . 14
Section 6.04. Governing Law . . . . . . . . . . . . . . . . 15
Section 6.05. Governmental Approvals . . . . . . . . . . . 15
<*>This Table of Contents is not a part of the Stock Warrant
Agreement.
Section 6.06. Persons Having Rights Under Stock Warrant
Agreement . . . . . . . . . . . . . . . . . . . . . . . 15
Section 6.07. Delivery of Prospectus . . . . . . . . . . . 15
Section 6.08. Headings . . . . . . . . . . . . . . . . . . 15
Section 6.09. Counterparts . . . . . . . . . . . . . . . . 15
Section 6.10. Inspection of Agreement . . . . . . . . . . . 16
This STOCK WARRANT AGREEMENT, dated as of ______
_______________, between Arvin Industries, an Indiana corporation (the
"Company"), and _______________, a ________________ organized and
existing under the laws of ________________ (the "Warrant Agent").
WHEREAS, the Company proposes to sell [title of debt
securities, preferred shares, common shares, depositary shares or
other securities being offered (the "Offered Securities")] with
certificates evidencing one or more warrants (the " Stock Warrants"
or, individually, a " Stock Warrant") representing the right to
purchase [common shares, par value $2.50 per share, of the Company
(the "Common Shares")] [shares of a series of preferred shares, no par
value per share, of the Company (the "Preferred Shares")] [depositary
shares relating to a series of Preferred Shares (the "Depositary
Shares")], such warrant certificates and other warrant certificates
issued pursuant to this Agreement being herein called the "Warrant
Certificates"; and
WHEREAS, the Company has duly authorized the execution and
delivery of this Stock Warrant Agreement to provide for the issuance
of Stock Warrants to be exercisable at such times and for such prices,
and to have such other provisions, as shall be fixed as hereinafter
provided;
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements herein contained, the parties hereto agree as
follows:
ARTICLE I
ISSUANCE OF STOCK WARRANTS AND EXECUTION AND DELIVERY OF WARRANT
CERTIFICATES
Section 1.01. Issuance of Stock Warrants. Stock Warrants
may be issued from time to time, together with or separately from
Offered Securities. Prior to the issuance of any Stock Warrants,
there shall be established by or pursuant to a resolution or
resolutions duly adopted by the Company's Board of Directors or by any
committee thereof duly authorized to act with respect thereto (a
"Board Resolution"):
(a) the title and aggregate number of such Stock Warrants;
(b) the offering price of such Stock Warrants, if any;
(c) whether such Stock Warrants are to be issued with any
Offered Securities and, if so, the number and terms of any such
Offered Securities and the number of Stock Warrants to be issued
with each Offered Security; and the date, if any, on and after
which the Stock Warrants and the Offered Securities will be
separately transferable (the "Detachable Date");
(d) the designation, number and terms (including any
subordination and conversion provisions) of any Preferred Shares
that are purchasable upon exercise of such Share Warrants or that
underlie Depositary Shares purchasable on such exercise;
(e) the time or times at which, or period or periods during
which, such Stock Warrants may be exercised and the final date on
which such Stock Warrants may be exercised (the "Expiration
Date");
(f) the number of [Preferred/Common/Depositary] Shares that
may be purchased upon exercise of such Stock Warrants; the
price, or the manner of determining the price (the "Warrant
Price"), at which such [Preferred/Common/Depositary] Shares may
be purchased upon exercise of the Stock Warrants; and any
minimum or maximum number of such Stock Warrants that are
exercisable at any one time;
(g) if applicable, any anti-dilution provisions of such
Stock Warrants;
(h) the terms of any right to redeem or call such Stock
Warrants;
(i) the terms of any right of the Company to accelerate the
Expiration Date of the Stock Warrants upon the occurrence of
certain events;
(j) any other terms of such Stock Warrants not
inconsistent with the provisions of this Agreement.
Section 1.02. Form and Execution of Warrant Certificates.
(a) The Stock Warrants shall be evidenced by the Warrant
Certificates, which shall be in registered form and substantially in
such form or forms as shall be established by or pursuant to a Board
Resolution. Each Warrant Certificate, whenever issued, shall be dated
the date it is countersigned by the Warrant Agent and may have such
letters, numbers or other marks of identification and such legends or
endorsements printed, lithographed or engraved thereon as are not
inconsistent with the provisions of this Agreement, or as may be
required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any securities
exchange on which the Stock Warrants may be listed, or to conform to
usage, as the officer of the Company executing the same may approve
(such officer's execution thereof to be conclusive evidence of such
approval). Each Warrant Certificate shall evidence one or more Stock
Warrants.
(b) The Warrant Certificates shall be signed in the name
and on behalf of the Company by its Chairman of the Board of
Directors, the Vice Chairman of the Board of Directors, its President,
an Executive Vice President or the Vice President-Finance and by its
Secretary or an Assistant Secretary. Such signatures may be manual or
facsimile signatures [of the present or any future holder of any such
office] and may be imprinted or otherwise reproduced on the Warrant
Certificates. The seal of the Company may be in the form of a
facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Warrant Certificates.
(c) No Warrant Certificate shall be valid for any purpose,
and no Stock Warrant evidenced thereby shall be deemed issued or
exercisable, until such Warrant Certificate has been countersigned by
the manual or facsimile signature of the Warrant Agent. Such
signature by the Warrant Agent upon any Warrant Certificate executed
by the Company shall be conclusive evidence that the Warrant
Certificate so countersigned has been duly issued hereunder.
(d) In case any officer of the Company who shall have
signed any Warrant Certificate either manually or by facsimile
signature shall cease to be such officer before the Warrant
Certificate so signed shall have been countersigned and delivered by
the Warrant Agent, such Warrant Certificate nevertheless may be
countersigned and delivered as though the person who signed such
Warrant Certificate had not ceased to be such officer of the Company;
and any Warrant Certificate may be signed on behalf of the Company by
such person as, at the actual date of the execution of such Warrant
Certificate, shall be the proper officer of the Company, although at
the date of the execution of this Agreement such person was not such
an officer.
Section 1.03. Issuance and Delivery of Warrant
Certificates. At any time and from time to time after the execution
and delivery of this Agreement, the Company may deliver Warrant
Certificates executed by the Company to the Warrant Agent for
countersignature. Subject to the provisions of this Section 1.03, the
Warrant Agent shall thereupon countersign and deliver such Warrant
Certificates to or upon the written request of the Company.
Subsequent to the original issuance of a Stock Warrant Certificate
evidencing Stock Warrants, the Warrant Agent shall countersign a new
Warrant Certificate evidencing such Stock Warrants only if such
Warrant Certificate is issued in exchange or substitution for one or
more previously countersigned Warrant Certificates evidencing such
Stock Warrants or in connection with their transfer, as hereinafter
provided.
Section 1.04. Temporary Warrant Certificates. Pending the
preparation of definitive Warrant Certificates, the Company may
execute, and upon the order of the Company the Warrant Agent shall
countersign and deliver, temporary Warrant Certificates that are
printed, lithographed, typewritten, mimeographed or otherwise
produced, substantially of the tenor of the definitive Warrant
Certificates in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations
as the officer executing such Warrant Certificates may determine, as
evidenced by his execution of such Warrant Certificates.
If temporary Warrant Certificates are issued, the Company
will cause definitive Warrant Certificates to be prepared without
unreasonable delay. After the preparation of definitive Warrant
Certificates, the temporary Warrant Certificates shall be exchangeable
for definitive Warrant Certificates upon surrender of the temporary
Warrant Certificates at the corporate trust office of the Warrant
Agent [or ______________], without charge to the Holder, as defined in
Section 1.06 hereof. Upon surrender for cancellation of any one or
more temporary Warrant Certificates, the Company shall execute and the
Warrant Agent shall countersign and deliver in exchange therefor
definitive Warrant Certificates representing the same aggregate number
of Stock Warrants. Until so exchanged, the temporary Warrant
Certificates shall in all respects be entitled to the same benefits
under this Agreement as definitive Warrant Certificates.
Section 1.05. Payment of Certain Taxes. The Company will
pay all stamp and other duties, if any, to which this Agreement or the
original issuance of the Stock Warrants or Warrant Certificates may be
subject under the laws of the United States of America or any state or
locality.
Section 1.06. "Holder." The term "Holder" or "Holders" as
used herein with reference to a Warrant Certificate shall mean the
person or persons in whose name such Warrant Certificate shall then be
registered as set forth in the Warrant Register to be maintained by
the Warrant Agent pursuant to Section 4.01 for that purpose or, in the
case of Stock Warrants that are issued with Offered Securities and
cannot then be transferred separately therefrom, [IF REGISTERED
OFFERED SECURITIES AND STOCK WARRANTS THAT ARE NOT THEN DETACHABLE --
the person or persons in whose name the related Offered Securities
shall be registered as set forth in the security register for such
Offered Securities, prior to the Detachable Date. The Company will,
or will cause the security registrar of any such Offered Securities
to, make available to the Warrant Agent at all times (including on and
after the Detachable Date, in the case of Stock Warrants originally
issued with Offered Securities and not subsequently transferred
separately therefrom) such information as to holders of Offered
Securities with Stock Warrants as may be necessary to keep the Warrant
Register up to date.]
ARTICLE II
DURATION AND EXERCISE OF STOCK WARRANTS
Section 2.01. Duration of Stock Warrants. Each Stock
Warrant may be exercised at the time or times, or during the period or
periods, provided by or pursuant to the Board Resolution relating
thereto and specified in the Warrant Certificate evidencing such Stock
Warrant. Each Stock Warrant not exercised at or before 5:00 P.M.,
New York City time, on its Expiration Date shall become void, and all
rights of the Holder of such Stock Warrant thereunder and under this
Agreement shall cease, provided that the Company reserves the right
to, and may, in its sole discretion, at any time and from time to
time, at such time or times as the Company so determines, extend the
Expiration Date of the Stock Warrants for such periods of time as it
chooses. Whenever the Expiration Date of the Stock Warrants is so
extended, the Company shall at least [20] days prior to the then
Expiration Date cause to be mailed to the Warrant Agent and the
registered Holders of the Stock Warrants in accordance with the
provisions of Section 6.03 hereof a notice stating that the Expiration
Date has been extended and setting forth the new Expiration Date. No
adjustment shall be made for any dividends on any [Preferred/
Common/Depositary] Shares issuable upon exercise of any Stock Warrant.
Section 2.02. Exercise of Stock Warrants. (a) The Holder
of a Stock Warrant shall have the right, at its option, to exercise
such Stock Warrant and, subject to subsection (f) of this Section
2.02, purchase the number of [Preferred/Common/Depositary] Shares
provided for therein at the time or times or during the period or
periods referred to in Section 2.01 and specified in the Warrant
Certificate evidencing such Stock Warrant. No fewer than the minimum
number of Stock Warrants as set forth in the Warrant Certificate may
be exercised by or on behalf of any one Holder at any one time.
Except as may be provided in a Warrant Certificate, a Stock Warrant
may be exercised by completing the form of election to purchase set
forth on the reverse side of the Warrant Certificate, by duly
executing the same, and by delivering the same, together with payment
in full of the Warrant Price, in lawful money of the United States of
America, in cash or by certified or official bank check or by bank
wire transfer, to the Warrant Agent. Except as may be provided in a
Warrant Certificate, the date on which such Warrant Certificate and
payment are received by the Warrant Agent as aforesaid shall be deemed
to be the date on which the Stock Warrant is exercised and the
relevant [Preferred/Common/Depositary] Shares are issued.
(b) Upon the exercise of a Stock Warrant, the Company
shall issue to or upon the order of the Holder of such Warrant, the
[Preferred/Common/Depositary] Shares to which such Holder is entitled,
registered, in the case of [Preferred/Common/Depositary] Shares in
registered form, in such name or names as may be directed by such
Holder.
(c) If fewer than all of the Stock Warrants evidenced by a
Warrant Certificate are exercised, the Company shall execute, and an
authorized officer of the Warrant Agent shall countersign and deliver,
a new Warrant Certificate evidencing the number of Stock Warrants
remaining unexercised.
(d) The Warrant Agent shall deposit all funds received by
it in payment of the Warrant Price for Stock Warrants in the account
of the Company maintained with it for such purpose and shall advise
the Company by telephone by 5:00 P.M., New York City time, of each day
on which a payment of the Warrant Price for Warrants is received of
the amount so deposited in its account. The Warrant Agent shall
promptly confirm such telephone advice in writing to the Company.
(e) The Warrant Agent shall, from time to time, as promptly
as practicable, advise the Company of (i) the number of Stock Warrants
of each title exercised as provided herein, (ii) the instructions of
each Holder of such Stock Warrants with respect to delivery of the
[Preferred/Common/Depositary] Shares issued upon exercise of such
Stock Warrants to which such Holder is entitled upon such exercise,
and (iii) such other information as the Company shall reasonably
require. Such notice may be given by telephone to be promptly
confirmed in writing.
(f) The Company will pay all documentary stamp taxes
attributable to the initial issuance of Stock Warrants or to the
issuance of [Preferred/Common/Depositary] Shares to the registered
Holder of such Stock Warrants upon exercise thereof; provided,
however, that the Holder, and not the Company, shall be required to
pay any stamp or other tax or other governmental charge that may be
imposed in connection with any transfer involved in the issuance of
the [Preferred/Common/Depositary] Shares; and in the event that any
such transfer is involved, the Company shall not be required to issue
any [Preferred/Common/Depositary] Shares (and the Holder's purchase of
the [Preferred/Common/Depositary] Shares issued upon the exercise of
such Holder's Stock Warrant shall not be deemed to have been
consummated) until such tax or other charge shall have been paid or it
has been established to the Company's satisfaction that no such tax or
other charge is due.
Section 2.03. Stock Warrant Adjustments. The terms and
conditions, if any, on which the exercise price of and/or the number
of [Preferred/Common/Depositary] Shares covered by a Stock Warrant are
subject to adjustments will be set forth in the Warrant Certificate
and in the Prospectus Supplement relating thereto. Such terms may
include the adjustment mechanism for the exercise price of, and the
number of [Preferred/Common/Depositary] Shares covered by, a Stock
Warrant, the events requiring such adjustments, the events upon which
the Company may, in lieu of making such adjustments, make proper
provisions so that the Holder, upon exercise of such Holder's Stock
Warrant, would be treated as if such Holder had been a holder of the
[Preferred/Common/Depositary] Shares received upon such exercise,
prior to the occurrence of such events, and provisions affecting
exercise of the Stock Warrants in the event of certain events
affecting the [Preferred/Common/Depositary] Shares.
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF STOCK WARRANTS
Section 3.01. No Rights as Holder of Underlying
[Preferred/Common/Depositary] Shares Conferred by Stock Warrants or
Warrant Certificates. No Stock Warrants or Warrant Certificates shall
entitle the Holder to any of the rights, preferences and privileges of
a holder of the underlying [Preferred/Common/Depositary] Shares,
including without limitation, any dividend, voting, redemption,
conversion, exchange and liquidation rights.
Section 3.02. Lost, Stolen, Destroyed or Mutilated Warrant
Certificates. Upon receipt by the Company and the Warrant Agent of
evidence reasonably satisfactory to them of the ownership of and the
loss, theft, destruction or mutilation of any Warrant Certificate and
of indemnity (other than in connection with any mutilated Warrant
Certificates surrendered to the Warrant Agent for cancellation)
reasonably satisfactory to them, the Company shall execute, and
Warrant Agent shall countersign and deliver, in exchange for or in
lieu of each lost, stolen, destroyed or mutilated Warrant Certificate,
a new Warrant Certificate evidencing a like number of Stock Warrants
of the same title. Upon the issuance of a new Warrant Certificate
under this Section, the Company may require the payment of a sum
sufficient to cover any stamp or other tax or other governmental
charge that may be imposed in connection therewith and any other
expenses (including the fees and expenses of the Warrant Agent) in
connection therewith. Every substitute Warrant Certificate executed
and delivered pursuant to this Section in lieu of any lost, stolen or
destroyed Warrant Certificate shall represent a contractual obligation
of the Company, whether or not such lost, stolen or destroyed Warrant
Certificate shall be at any time enforceable by anyone, and shall be
entitled to the benefits of this Agreement equally and proportionately
with any and all other Warrant rights and remedies with respect to the
replacement of lost, stolen, destroyed or mutilated Warrant
Certificates.
Section 3.03. Holders of Stock Warrants May Enforce
Rights. Notwithstanding any of the provisions of this Agreement, any
Holder may, without the consent of the Warrant Agent, enforce and may
institute and maintain any suit, action or proceeding against the
Company suitable to enforce, or otherwise in respect of, its right to
exercise his Stock Warrants as provided in the Stock Warrants and in
this Agreement.
Section 3.04. Merger, Consolidation, Sale, Transfer or
Conveyance. (a) In case any of the following shall occur while any
Stock Warrants are outstanding: (i) any reclassification or change of
the outstanding [Preferred/Common/Depositary] Shares; or (ii) any
consolidation or merger to which the Company is party (other than a
consolidation or a merger in which the Company is the continuing
corporation and which does not result in any reclassification of, or
change in, the outstanding [Preferred/Common] Shares issuable upon
exercise of the Stock Warrants [or underlying the Depositary Shares
issuable upon exercise of the Depositary Stock Warrants]); or (iii)
any sale, conveyance or lease to another corporation of the property
of the Company as an entirety or substantially as an entirety; then
the Company, or such successor or purchasing corporation, as the case
may be, shall make appropriate provision by amendment of this
Agreement or otherwise so that the Holders of the Stock Warrants then
outstanding shall have the right at any time thereafter, upon exercise
of such Stock Warrants, to purchase the kind and amount of capital
shares and other securities and property receivable upon such a
reclassification, change, consolidation, merger, sale, conveyance or
lease as would be received by a holder of the number of [Preferred/
Common] Shares issuable upon exercise of such Stock Warrant [or
underlying the Depositary Shares issuable upon exercise of the
Depositary Stock Warrants] immediately prior to such reclassification,
change, consolidation, merger, sale, conveyance or lease, and, in the
case of a consolidation, merger, sale, conveyance or lease, the
Company shall thereupon be relieved of any further obligation
hereunder or under the Stock Warrants, and the Company as the
predecessor corporation may thereupon or at any time thereafter be
dissolved, wound up or liquidated. Such successor or assuming
corporation thereupon may cause to be signed, and may issue either in
its own name or in the name of the Company, any of all of the Stock
Warrants issuable hereunder which theretofore shall not have been
signed by the Company, and may execute and deliver
[Preferred/Common/Depositary] Shares in its own name, in fulfillment
of its obligations to deliver Shares upon exercise of the Stock
Warrants. All the Stock Warrants so issued shall in all respects have
the same legal rank and benefit under this Agreement as the Stock
Warrants theretofore or thereafter issued in accordance with the terms
of this Agreement as though all of such Stock Warrants had been issued
at the date of the execution hereof. In any case of any such
reclassification, change, consolidation, merger, conveyance, transfer
or lease, such changes in phraseology and form (but not in substance)
may be made in the Stock Warrants thereafter to be issued as may be
appropriate.
(b) The Stock Warrant Agent may receive a written opinion
of legal counsel as conclusive evidence that any such merger,
consolidation, sale, transfer, conveyance or other disposition of
substantially all of the assets of the Company complies with the
provisions of this Section 3.04.
ARTICLE IV
EXCHANGE AND TRANSFER OF STOCK WARRANTS
Section 4.01. Stock Warrant Register; Exchange and Transfer
of Stock Warrants. The Warrant Agent shall maintain, at its corporate
trust office [or at __________ ________], a register (the "Warrant
Register") in which, upon the issuance of Stock Warrants, or on and
after the Detachable Date in the case of Stock Warrants not separately
transferable prior thereto, and, subject to such reasonable
regulations as the Warrant Agent may prescribe, it shall register
Warrant Certificates and exchanges and transfers thereof. The Warrant
Register shall be in written form or in any other form capable of
being converted into written form within a reasonable time.
Except as provided in the following sentence, upon surrender
at the corporate trust office of the Warrant Agent [or at _________
__________], Warrant Certificates may be exchanged for one or more
other Warrant Certificates evidencing the same aggregate number of
Stock Warrants of the same title, or may be transferred in whole or in
part. A Warrant Certificate evidencing Stock Warrants that are not
then transferable separately from the Offered Security with which they
were issued may be exchanged or transferred prior to its Detachable
Date only together with such Offered Security and only for the purpose
of effecting, or in conjunction with, an exchange or transfer of such
Offered Security; and on or prior to the Detachable Date, each
exchange or transfer of such Offered Security on the Security Register
of the Offered Securities shall operate also to exchange or transfer
the related Stock Warrants. A transfer shall be registered upon
surrender of a Warrant Certificate to the Warrant Agent at its
corporate trust office [or at __________ __________] for transfer,
properly endorsed or accompanied by appropriate instruments of
transfer and written instructions for transfer, all in form
satisfactory to the Company and the Warrant Agent, duly signed by the
registered holder or holders thereof or by the duly appointed legal
representative thereof or by a duly authorized attorney, such
signature to be guaranteed by (a) a bank or trust company, (b) a
broker or dealer that is a member of the National Association of
Securities Dealers, Inc. (the "NASD") or (c) a member of a national
securities exchange. Upon any such registration of transfer, a new
Warrant Certificate shall be issued to the transferee. Whenever a
Warrant Certificate is surrendered for exchange or transfer, the
Warrant Agent shall countersign and deliver to the person or persons
entitled thereto one or more Warrant Certificates duly executed by the
Company, as so requested. The Stock Warrant Agent shall not be
required to effect any exchange or transfer which will result in the
issuance of a Warrant Certificate evidencing a fraction of a Stock
Warrant. All Warrant Certificates issued upon any exchange or
transfer of a Warrant Certificate shall be the valid obligations of
the Company, evidencing the same obligations, and entitled to the same
benefits under this Agreement, as the Warrant Certificate surrendered
for such exchange or transfer.
No service charge shall be made for any exchange or transfer
of Stock Warrants, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any such exchange or transfer, in
accordance with Section 2.02(f) hereof.
Section 4.02. Treatment of Holders of Warrant Certificates.
(a) In the event that the Stock Warrants are offered
together with, and, prior to the Detachable Date, are not detachable
from, Offered Securities, the Company, the Warrant Agent and all other
persons may, prior to such Detachable Date, treat the holder of the
Offered Security as the Holder of the Warrant Certificates initially
attached thereto for any purpose and as the person entitled to
exercise the rights represented by the Stock Warrants evidenced by
such Warrant Certificates, any notice to the contrary notwithstanding.
After the Detachable Date and prior to due presentment of a Warrant
Certificate for registration or transfer, the Company and the Warrant
Agent may treat the registered Holder of a Warrant Certificate as the
absolute Holder thereof for any purpose and as the person entitled to
exercise the rights represented by the Stock Warrants evidenced
thereby, any notice to the contrary notwithstanding.
(b) In all other cases, the Company and the Warrant Agent
may treat the registered Holder of a Warrant Certificate as the
absolute Holder thereof for any purpose and as the person entitled to
exercise the rights represented by the Stock Warrants evidenced
thereby, any notice to the contrary notwithstanding.
Section 4.03. Cancellation of Warrant Certificates. In the
event that the Company shall purchase, redeem or otherwise acquire any
Stock Warrants after the issuance thereof, the Warrant Certificate or
Warrant Certificates evidencing such Stock Warrants shall thereupon be
delivered to the Warrant Agent and be cancelled by it. The Warrant
Agent shall also cancel any Warrant Certificate (including any Warrant
Certificate) delivered to it for exercise, in whole or in part, or for
exchange or transfer. Warrant Certificates so cancelled shall be
delivered by the Warrant Agent to the Company from time to time, or
disposed of in accordance with the instructions of the Company.
ARTICLE V
CONCERNING THE WARRANT AGENT
Section 5.01. Warrant Agent. The Company hereby appoints
_______________ as Warrant Agent of the Company in respect of the
Stock Warrants upon the terms and subject to the conditions set forth
herein; and ___________ hereby accepts such appointment. The Warrant
Agent shall have the powers and authority granted to and conferred
upon it in the Warrant Certificates and hereby, and such further
powers and authority acceptable to it to act on behalf of the Company
as the Company may hereafter grant to or confer upon it. All of the
terms and provisions with respect to such powers and authority
contained in the Warrant Certificates are subject to and governed by
the terms and provisions hereof.
Section 5.02. Conditions of Warrant Agent's Obligations.
The Warrant Agent accepts its obligations set forth herein upon the
terms and conditions hereof, including the following, to all of which
the Company agrees and to all of which the rights hereunder of the
Holders shall be subject:
(a) Compensation and Indemnification. The Company agrees
to promptly pay the Warrant Agent the compensation set forth in
Exhibit A hereto and to reimburse the Warrant Agent for
reasonable out-of-pocket expenses (including counsel fees)
incurred by the Warrant Agent in connection with the services
rendered hereunder by the Warrant Agent. The Company also agrees
to indemnify the Warrant Agent for, and to hold it harmless
against, any loss, liability or expense (including the reasonable
costs and expenses of defending against any claim of liability)
incurred without negligence or bad faith on the part of the
Warrant Agent arising out of or in connection with its
appointment, status or service as Warrant Agent hereunder.
(b) Agent for the Company. In acting under this Agreement
and in connection with any Warrant Certificate, the Warrant Agent
is acting solely as agent of the Company and does not assume any
obligation or relationship of agency or trust for or with any
Holder.
(c) Counsel. The Warrant Agent may consult with counsel
satisfactory to it, and the advice of such counsel shall be full
and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith
and in accordance with the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and
shall incur no liability for or in respect of any action taken,
suffered or omitted by it in reliance upon any notice, direction,
consent, certificate, affidavit, statement or other paper or
document reasonably believed by it to be genuine and to have been
presented or signed by the proper parties.
(e) Officer's Certificate. Whenever in the performance of
its duties hereunder the Warrant Agent shall reasonably deem it
necessary that any fact or matter be proved or established by the
Company prior to taking, suffering or omitting any action
hereunder, the Warrant Agent may (unless other evidence in
respect thereof be herein specifically prescribed), in the
absence of bad faith on its part, rely upon a certificate signed
by the Chairman of the Board of Directors, the Vice Chairman of
the Board of Directors, the President, an Executive Vice
President, the Treasurer, an Assistant Treasurer, the Secretary
or an Assistant Secretary of the Company (an "Officer's
Certificate") delivered by the Company to the Warrant Agent.
(f) Actions Through Agents. The Warrant Agent may execute
and exercise any of the rights or powers hereby vested in it or
perform any duty hereunder either itself or by or through its
attorneys or agents, and the Warrant Agent shall not be
answerable or accountable for any act, default, neglect or
misconduct of any such attorney or agent or for any loss to the
Company resulting from such neglect or misconduct; provided,
however, that reasonable care shall have been exercised in the
selection and continued employment of such attorneys and agents.
(g) Certain Transactions. The Warrant Agent, and any
officer, director or employee thereof, may become the owner of,
or acquire any interest in, any Stock Warrant, with the same
rights that he, she or it would have if it were not the Warrant
Agent, and, to the extent permitted by applicable law, he, she or
it may engage or be interested in any financial or other
transaction with the Company and may serve on, or as depository,
trustee or agent for, any committee or body of holders of
[Preferred/Common/Depositary] Shares or other obligations of the
Company as if it were not the Warrant Agent.
(h) No Liability For Interest. The Warrant Agent shall not
be liable for interest on any monies at any time received by it
pursuant to any of the provisions of this Agreement or of the
Warrant Certificates, except as otherwise agreed with the
Company.
(i) No Liability For Invalidity. The Warrant Agent shall
incur no liability with respect to the validity of this Agreement
(except as to the due execution hereof by the Warrant Agent) or
any Warrant Certificate (except as to the countersignature
thereof by the Warrant Agent).
(j) No Responsibility For Company Representations. The
Warrant Agent shall not be responsible for any of the recitals or
representations contained herein (except as to such statements or
recitals as describe the Warrant Agent or action taken or to be
taken by it) or in any Warrant Certificate (except as to the
Warrant Agent's countersignature on such Warrant Certificate),
all of which recitals and representations are made solely by the
Company.
(k) No Implied Obligations. The Warrant Agent shall be
obligated to perform only such duties as are specifically set
forth herein, and no other duties or obligations shall be
implied. The Warrant Agent shall not be under any obligation to
take any action hereunder that may subject it to any expense or
liability, the payment of which within a reasonable time is not,
in its reasonable opinion, assured to it. The Warrant Agent
shall not be accountable or under any duty or responsibility for
the use by the Company of any Warrant Certificate countersigned
by the Warrant Agent and delivered by it to the Company pursuant
to this Agreement or for the application by the Company of the
proceeds of the issuance or exercise of Stock Warrants. The
Warrant Agent shall have no duty or responsibility in case of any
default by the Company in the performance of its covenants or
agreements contained herein or in any Warrant Certificate or in
case of the receipt of any written demand from a Holder with
respect to such default, including, without limiting the
generality of the foregoing, any duty or responsibility to
initiate or attempt to initiate any proceedings at law or
otherwise or, except as provided in Section 6.02 hereof, to make
any demand upon the Company.
Section 5.03. Resignation and Removal; Appointment of
Successor. (a) The Company agrees, for the benefit of the Holders of
the Stock Warrants, that there shall at all times be a Warrant Agent
hereunder until all the Stock Warrants are no longer exercisable.
(b) The Warrant Agent may at any time resign as such by
giving written notice to the Company, specifying the date on which its
desired resignation shall become effective; provided that such date
shall not be less than [90] days after the date on which such notice
if given unless the Company agrees to accept a shorter notice. The
Warrant Agent hereunder may be removed at any time by the filing with
it of an instrument in writing signed by or on behalf of the Company
and specifying such removal and the date when it shall become
effective. Notwithstanding the provisions of this Section 5.03(b),
such resignation or removal shall take effect upon the appointment by
the Company, as hereinafter provided, of a successor Warrant Agent
(which shall be a banking institution organized and doing business
under the laws of the United States of America, any State thereof or
the District of Columbia, authorized under the laws of such
jurisdiction to exercise corporate trust powers and having at the time
of its appointment as Warrant Agent a combined capital and surplus (as
set forth in its most recent published report of financial condition)
of at least [$50,000,000])and the acceptance of such appointment by
such successor Warrant Agent. In the event a successor Warrant Agent
has not been appointed and has not accepted its duties within [90]
days of the Warrant Agent's notice of resignation, the Warrant Agent
may apply to any court of competent jurisdiction for the designation
of a successor Warrant Agent. The obligations of the Company under
Section 5.02(a) shall continue to the extent set forth therein
notwithstanding the resignation or removal of the Warrant Agent.
(c) In case at any time the Warrant Agent shall resign, or
shall be removed, or shall become incapable of acting, or shall file a
petition seeking relief under Title 11 of the United States Code, as
now constituted or hereafter amended or under any other applicable
federal or state bankruptcy law or similar law, or make an assignment
for the benefit of its creditors or consent to the appointment of a
receiver or custodian of all or any substantial part of its property,
or shall admit in writing its inability to pay or meet its debts as
they mature, or if a receiver or custodian of it or all or any
substantial part of its property shall be appointed, or if an order of
any court shall be entered for relief against it under the provisions
of Title 11 of the United States Code, as now constituted or hereafter
amended, or under any other applicable federal or state bankruptcy or
similar law, or if any public officer shall have taken charge or
control of the Warrant Agent or of its property or affairs, for the
purpose of rehabilitation, conservation or liquidation, a successor
Warrant Agent, qualified as aforesaid, shall be appointed by the
Company by an instrument in writing, filed with the successor Warrant
Agent. Upon the appointment as aforesaid of a successor Warrant Agent
and acceptance by the latter of such appointment, the Warrant Agent so
superseded shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall
execute, acknowledge and deliver to its predecessor and to the Company
an instrument accepting such appointment hereunder, and thereupon such
successor Warrant Agent, without any further act, deed or conveyance,
shall become vested with all the authority, rights, powers, trusts,
immunities, duties and obligations of such predecessor with like
effect as if originally named as Warrant Agent hereunder, and such
predecessor, upon payment of its charges and disbursements then
unpaid, shall thereupon become obligated to transfer, deliver and pay
over, and such successor Warrant Agent shall be entitled to receive
all moneys, securities and other property on deposit with or held by
such predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder
may be merged or converted or any corporation with which the Warrant
Agent may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Warrant Agent shall
be a party, or any corporation to which the Warrant Agent shall sell
or otherwise transfer all or substantially all of the assets and
business of the Warrant Agent, provided that such Corporation shall be
qualified as aforesaid, shall be the successor Warrant Agent under
this Agreement without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
Section 5.04. Compliance With Applicable Laws. The Warrant
Agent agrees to comply with all applicable federal and state laws
imposing obligations on it in respect of the services rendered by it
under this Warrant Agreement and in connection with the Stock
Warrants, including (but not limited to) the provisions of United
States federal income tax laws regarding information reporting and
backup withholding. The Warrant Agent expressly assumes all liability
for its failure to comply with any such laws imposing obligations on
it, including (but not limited to) any liability for failure to comply
with any applicable provisions of United States federal income tax
laws regarding information reporting and backup withholding.
Section 5.05. Office. The Company will maintain an office
or agency where Warrant Certificates may be presented for exchange,
transfer or exercise. The office initially designated for this
purpose shall be the corporate trust office of the Warrant Agent at
________________.
ARTICLE VI
MISCELLANEOUS
Section 6.01. Supplements and Amendments. (a) The Company
and Warrant Agent may from time to time supplement or amend this
Agreement without the approval or consent of any Holder in order to
cure any ambiguity, to correct or supplement any provision contained
herein that may be defective or inconsistent with any other provisions
herein, or to make any other provision in regard to matters or
questions arising hereunder that the Company and the Warrant Agent may
deem necessary or desirable and that shall not adversely affect the
interests of the Holders. Every Holder of Debt Warrants, whether
issued before or after any such supplement or amendment, shall be
bound thereby. Promptly after the effectiveness of any supplement or
amendment that affects the interest of the Holders, the Company shall
give notice thereof, as provided in Section 6.03 hereof, to the
Holders affected thereby, setting forth in general terms the substance
of such supplement or amendment.
(b) The Company and the Warrant Agent may modify or amend
this Agreement and the Warrant Certificates with the consent of the
Holders of not fewer than a majority in number of the underlying
[Preferred/Common/Depositary] Shares affected by such modification or
amendment, for any purpose; provided, however, that no such
modification or amendment that shortens the period of time during
which the Stock Warrants may be exercised, or otherwise materially and
adversely affects the exercise rights of the Holders or reduces the
percentage of Holders of outstanding Stock Warrants the consent of
which is required for modification or amendment of this Agreement or
the Stock Warrants, may be made without the consent of each Holder
affected thereby.
Section 6.02. Notices and Demands to the Company and
Warrant Agent. If the Warrant Agent shall receive any notice or
demand addressed to the Company by any Holder pursuant to the
provisions of the Warrant Certificates, the Warrant Agent shall
promptly forward such notice or demand to the Company.
Section 6.03. Addresses for Notices. Any communications
from the Company to the Warrant Agent with respect to this Agreement
shall be addressed to [name of Warrant Agent, _______________,
Attention: Corporate Trust Department;] any communications from the
Warrant Agent to the Company with respect to this Agreement shall be
addressed to Arvin Industries, Inc., One Noblitt Plaza, Columbus, Ohio
47202-3000, Attention: Treasurer (with a copy to the Secretary); or
such other addresses as shall be specified in writing by the Warrant
Agent or by the Company, as the case may be.
Section 6.04. Governing Law. This Agreement and the Stock
Warrants shall be governed by the laws of the [State of Indiana]
applicable to contracts made and to be performed entirely within such
State.
Section 6.05. Governmental Approvals. The Company will
from time to time use all reasonable efforts to obtain and keep
effective any and all permits, consents and approvals of governmental
agencies and authorities and the national securities exchange on which
the Stock Warrants may be listed or authorized for trading from time
to time and will make all filings under the federal and state
securities laws (including without limitation the Securities Act of
1933), as may be or become requisite in connection with the issuance,
sale, trading, transfer or delivery of the Stock Warrants and Warrant
Certificates, the exercise of the Stock Warrants and the issuance,
sale and delivery of the underlying [Preferred/Common/Depositary]
Shares issued upon the exercise of the Stock Warrants.
Section 6.06. Persons Having Rights Under Stock Warrant
Agreement. Nothing in this Agreement expressed or implied and nothing
that may be inferred from any of the provisions hereof is intended, or
shall be construed, to confer upon, or give to, any person or
corporation other than the Company, the Warrant Agent and the Holders
any right, remedy or claim under or by reason of this Agreement or of
any covenant, condition, stipulation, promise or agreement hereof; and
all covenants, conditions, stipulations, promises and agreements in
this Agreement contained shall be for the sole and exclusive benefit
of the Company and the Warrant Agent and their respective successors
and of the Holders of Warrant Certificates.
Section 6.07. Delivery of Prospectus. The Company will
furnish to the Warrant Agent sufficient copies of a prospectus or
prospectuses relating to the [Preferred/Common/Depositary] Shares
deliverable upon exercise of any outstanding Stock Warrants (each a
"Prospectus"), and prior to or concurrent with the delivery of the
[Preferred/Common/Depositary] Shares issued upon the exercise thereof,
a copy of the Prospectus relating to such [Preferred/
Common/Depositary] Shares.
Section 6.08. Headings. The descriptive headings of the
several Articles and Sections and the Table of Contents of this
Agreement are for convenience only and shall not control or affect the
meaning or construction of any of the provisions hereof.
Section 6.09. Counterparts. This Agreement may be executed
by the parties hereto in any number of counterparts, each of which
when so executed and delivered shall be deemed to be an original; but
all such counterparts shall together constitute but one and the same
instrument.
Section 6.10. Inspection of Agreement. A copy of this
Agreement shall be available at all reasonable times at the principal
corporate trust office of the Warrant Agent, for inspection by the
Holders of Stock Warrants.
* * * * *
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above
written.
ARVIN INDUSTRIES, INC.
Seal
By: __________________________
Attest: Name and Title
______________________________
Name and Title:
STOCK WARRANT AGENT
Seal
By: __________________________
Attest: Name and Title
______________________________
NAME AND TITLE:
Exhibit A
to
Stock Warrant Agreement
dated as of ____________, 19__
[Compensation of Warrant Agent]
SCHIFF HARDIN & WAITE EXHIBIT 5-1
A Partnership Including Professional Corporations
7200 Sears Tower, Chicago, Illinois 60606-6473
Telephone (312) 876-1000 Facsimile (312) 258-5600
Frederick L. Hartmann
(312) 258-5656
April 11, 1994
Arvin Industries, Inc.
One Noblitt Plaza, Box 3000
Columbus, IN 47202-3000
Re: Arvin Industries, Inc. Registration Statement on Form S-3
Gentlemen:
We have acted as counsel to Arvin Industries, Inc., an Indiana
corporation (the "Company"), in connection with the filing of a
Registration Statement on Form S-3 (the "Registration Statement") with
the Securities and Exchange Commission pursuant to the Securities Act
of 1933, as amended (the "Act"). The Registration Statement relates
to the registration under the Act of up to $225,000,000 of (i) the
Company's unsecured, senior and subordinated debt securities,
consisting of debentures, notes or other evidences of indebtedness in
one or more series ("Debt Securities"); (ii) Preferred Shares, no par
value, of the Company in one or more series ("Preferred Shares"),
which may be issued in the form of depositary shares ("Depositary
Shares") evidenced by depositary receipts; (iii) Common Shares, $2.50
par value ("Common Shares"), of the Company and related rights to
purchase Series C Junior Participating Preferred Shares of the
Company; (iv) warrants ("Warrants") to purchase any of the Debt
Securities, Preferred Shares, Depositary Shares and Common Shares as
designated by the Company; and (v) any such Debt Securities, Preferred
Shares and Common Shares as may be issuable on conversion of
subordinated Debt Securities or Preferred Shares. The Debt
Securities, Preferred Shares, Depositary Shares, Common Shares and
Warrants are collectively referred to as the "Securities."
The senior Debt Securities are to be issued under an indenture,
dated as of July 3, 1990, between the Company and Harris Trust and
Savings Bank, as trustee. The subordinated Debt Securities are to be
issued under an indenture, to be entered into between the Company and
NBD Bank, N.A., as trustee. (Each such indenture is referred to as an
"Indenture" and, together, as the "Indentures.") The Depositary
Shares are to be issued under one or more deposit agreements among the
Company, the depositary named therein and the holders from time to
Arvin Industries, Inc.
Re: Registration Statement
on Form S-3
April 11, 1994
Page 2
time of the depositary receipts described therein (a "Deposit
Agreement"). The Warrants are to be issued pursuant to either a
warrant agreement relating to warrants to purchase Debt Securities or
a warrant agreement relating to warrants to purchase Common Shares,
Preferred Shares or Depositary Shares, each such warrant agreement to
be between the Company, as issuer, and a warrant agent (collectively,
the "Warrant Agreements"). The Securities may be offered and sold
pursuant to one or more underwriting agreements (each, together with
any related schedule of terms, an "Underwriting Agreement") between
the Company and the underwriters named therein, or as otherwise
provided pursuant to the Registration Statement.
In this regard, we have reviewed the Registration Statement and
the exhibits thereto and have examined such other documents and made
such investigation as we have deemed necessary in order to enable us
to render the opinions set forth below. In rendering such opinions,
we have assumed that (i) the Registration Statement will have become
effective under the Act and the Indentures will have been qualified
under the Trust Indenture Act of 1939, as amended, (ii) a Prospectus
Supplement (a "Prospectus Supplement") relating to the Securities to
be offered and sold as contemplated by the Registration Statement will
be prepared, delivered and filed as contemplated by the Act, (iii) the
Indenture with respect to the subordinated Debt Securities will have
been authorized, executed and delivered by NBD Bank, N.A., as trustee,
in substantially the form filed as an exhibit to the Registration
Statement, (iv) each of the Indentures will represent the valid and
binding obligation of the respective trustee, (v) each Deposit
Agreement, Warrant Agreement and Underwriting Agreement, as
applicable, will be executed and delivered in substantially the
respective form filed as an exhibit to the Registration Statement,
(vi) each Deposit Agreement will be authorized, executed and delivered
by the depositary named therein and will represent a valid and binding
obligation of the depositary, (vii) each Warrant Agreement will be
authorized, executed and delivered by the warrant agent named therein
and will represent a valid and binding obligation of the warrant
agent, and (viii) each Underwriting Agreement will be authorized,
executed and delivered by or on behalf of the underwriters named
therein and will represent a valid and binding obligation of each such
underwriter.
Based on the foregoing, we are of the opinion that:
1. The Company is a corporation duly incorporated and validly
existing under the laws of the State of Indiana.
2. The Debt Securities will be valid and binding obligations of
the Company, enforceable in accordance with their terms (except as
enforcement thereof may be limited by bankruptcy, insolvency,
Arvin Industries, Inc.
Re: Registration Statement
on Form S-3
April 11, 1994
Page 3
reorganization, moratorium or other laws relating to or affecting
enforcement of creditors' rights generally or by general equity
principles and except that a claim in respect of any Debt Securities
denominated other than in U.S. dollars may be converted into U.S.
dollars at a rate of exchange prevailing at a date determined by
applicable law), at such time as: (a) the board of directors of the
Company or a duly authorized committee thereof (the "Board of
Directors") shall have established by resolution, not inconsistent
with the applicable Indenture, a series in which such Debt Securities
are to be issued and the terms of such Debt Securities, and such
series and terms shall have been set forth in an officers' certificate
or established in a supplemental indenture in accordance with the
requirements of the Indenture; and (b) the issuance and sale of such
Debt Securities shall have been duly authorized by the Board of
Directors, and such Debt Securities shall have been duly executed,
authenticated, issued and delivered pursuant to the provisions of the
applicable Indenture and, if applicable, in accordance with a duly
authorized, completed and executed Underwriting Agreement, as
contemplated in the Registration Statement and the related Prospectus
Supplement, against payment of the agreed consideration therefor.
3. At such time as: (a) the Board of Directors shall have
established by resolution a series in which such Preferred Shares are
to be issued and the terms of such Preferred Shares in accordance with
the Indiana Business Corporation Law and the Company's Restated
Articles of Incorporation, and an amendment to the Company's Restated
Articles of Incorporation setting forth such terms shall have been
filed with the Secretary of State of Indiana; and (b) such Preferred
Shares are issued and sold pursuant to resolutions of the Board of
Directors and, if applicable, in accordance with a duly authorized,
completed and executed Underwriting Agreement, as contemplated in the
Registration Statement and the related Prospectus Supplement, against
payment of the consideration fixed therefor by the Board of Directors,
the Preferred Shares covered by the Registration Statement will be
duly authorized, legally issued, fully paid and non-assessable.
4. When duly issued, authenticated and delivered pursuant to a
Deposit Agreement that has been duly authorized, executed and
delivered by the Company, against payment of the consideration fixed
therefor by the Board of Directors and, if applicable, in accordance
with a duly authorized, completed and executed Underwriting Agreement,
as contemplated in the Registration Statement and the related
Prospectus Supplement, the Depositary Shares covered by the
Registration Statement will be duly authorized, legally issued, fully
paid and non-assessable.
5. When duly issued and sold pursuant to resolutions of the
Board of Directors and, if applicable, in accordance with a duly
Arvin Industries, Inc.
Re: Registration Statement
on Form S-3
April 11, 1994
Page 4
authorized, completed and executed Underwriting Agreement, as
contemplated in the Registration Statement and the related Prospectus
Supplement, against payment of the consideration fixed therefor by the
Board of Directors, the Common Shares covered by the Registration
Statement will be duly authorized, legally issued, fully paid and non-
assessable and the related rights to purchase Series C Junior
Participating Preferred Shares will be entitled to the benefits of the
amended Rights Agreement incorporated by reference as an exhibit to
the Registration Statement.
6. When duly issued, authenticated and delivered pursuant to a
Warrant Agreement that has been duly authorized, executed and
delivered by the Company, against payment of the consideration fixed
therefor by the Board of Directors and, if applicable, in accordance
with a duly authorized, completed and executed Underwriting Agreement,
as contemplated in the Registration Statement and the related
Prospectus Supplement, the Warrants covered by the Registration
Statement will be duly authorized, legally issued, fully paid and non-
assessable.
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement and to the use of our name under the
caption "Legal Opinions" in the prospectus constituting a part of the
Registration Statement.
Very truly yours,
SCHIFF HARDIN & WAITE
By: /s/ Frederick L. Hartmann
______________________________
Frederick L. Hartmann
EXHIBIT 12-1
<TABLE>
<CAPTION>
ARVIN INDUSTRIES, INC.
Computation of Ratio of Earnings to Fixed Charges
(in thousands, except ratios)
Fiscal Year Ended
Dec. 31, Dec. 30, Dec. 29, Jan. 3, Jan. 2,
1989 1990 1991 1993 1994
-------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
Earnings before income taxes $ 34,358 $ 56,970 $ 38,835 $ 66,482 $ 40,341
Adjustments:
Earnings of less-
than-fifty-percent-
owned affiliates (2,999) (4,547) (5,408) (8,282) (7,986)
Losses of less-than-
fifty-percent-owned
affiliates 1,469 288 339 433 3,771
Dividends of less-
than-fifty-percent-
owned affiliates 974 1,139 2,018 324 72
Minority interest in
the income/(loss) of
majority-owned
subsidiaries that 1,659 658 431 (539) 675
have fixed charges -------- -------- -------- -------- --------
Adjusted Earnings $ 35,461 $ 54,508 $ 36,215 $ 58,418 $ 36,873
Before Income Taxes ======== ======== ========= ========= =========
Fixed Charges
Interest expense 42,231 45,154 44,334 40,823 38,525
Portion of rents
representative of 5,200 5,853 5,349 5,399 4,625
Interest Factor -------- -------- -------- -------- --------
Total Fixed Charges $ 47,431 $ 51,007 $ 49,683 $ 46,222 $ 43,150
Preferred Dividends 15,093 16,728 15,431 12,712 0
-------- -------- -------- -------- --------
Total Fixed Charges
and Preferred $ 62,524 $ 67,735 $ 65,114 $ 58,934 $ 43,150
Dividends ======== ======== ======== ======== ========
Earnings Before Income Taxes $ 82,892 $105,515 $ 85,898 $ 104,640 $ 80,023
and Fixed Charges ======== ======== ======== ======== ========
Ratio of Earnings to Fixed 1.75 2.07 1.73 2.26 1.85
Charges ======== ======== ======== ======== ========
Ratio of Earnings to Combined
fixed charges and Preferred 1.33 1.56 1.32 1.78 1.85
Dividends ======== ======== ======== ======== ========
</TABLE>
EXHIBIT 23-1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our
report on the financial statements of Arvin Industries, Inc. for the
year ended January 2, 1994 dated February 1, 1994 except as to Note 5
which is as of February 16, 1994 appearing in the Annual Report on
Form 10-K of Arvin Industries, Inc. for the year ended January 2,
1994. We also consent to the reference to us under the heading
"Experts" in such Prospectus.
Price Waterhouse
Indianapolis, Indiana
April 11, 1994
EXHIBIT 23-2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration
statement on Form S-3 of Arvin Industries, Inc. of our report dated
January 25, 1994, relating to the consolidated balance sheets of Space
Industries International, Inc. and subsidiaries as of January 2, 1994
and the related consolidated statement of operations, shareholders'
equity, and cash flows for the year then ended which report appears in
the January 2, 1994 annual report on Form 10-K of Arvin Industries,
Inc. We also consent to the reference to our firm under the heading
"Experts" in the registration statement.
Our report dated January 25, 1994, contains an explanatory
paragraph that states that the consolidated balance sheet as of
January 2, 1994 includes $18,154,619 of capitalized costs related to
the Space Facility Technology. As described in Note 4 to the Space
Industries International, Inc. financial statements, the recovery of
these costs is dependent on the future success in selling the Space
Facility Technology or the Industrial Space Facility or the related
service, at profitable terms, or the sale of the engineering designs
of the Industrial Space Facility.
KPMG Peat Marwick
Houston, Texas
April 11, 1994
EXHIBIT 25-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
Statement of Eligibility
Under the Trust Indenture Act of 1939
of a Corporation Designated to Act as
Trustee
Check if an Application to Determine
Eligibility of a Trustee Pursuant to Section
305(b)(2) _______________
HARRIS TRUST AND SAVINGS BANK
(Name of Trustee)
Illinois 36-1194448
(I.R.S. Employer
(State of Incorporation) Identification No.)
111 West Monroe Street; Chicago, Illinois 60603
(Address of principal executive offices)
Carolyn C. Potter, Harris Trust and Savings Bank,
111 West Monroe Street, Chicago, Illinois, 60603
312-461-2531
(Name, address and telephone number for agent for service)
ARVIN INDUSTRIES, INC.
(Name of obligor)
Indiana 35-0550190
(I.R.S. Employer
(State of Incorporation) Identification No.)
One Noblitt Plaza
Box 3000
Columbus, Indiana 47202-3000
(Address of principal executive offices)
Debt Securities
(Title of indenture securities)
1. GENERAL INFORMATION. Furnish the following information as to the
Trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Commissioner of Banks and Trust Companies, State of
Illinois, Springfield, Illinois; Chicago Clearing House
Association, 164 West Jackson Boulevard, Chicago, Illinois;
Federal Deposit Insurance Corporation, Washington, D.C.; The
Board of Governors of the Federal Reserve System,Washington,
D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Harris Trust and Savings Bank is authorized to exercise
corporate trust powers.
2. AFFILIATIONS WITH OBLIGOR. If the Obligor is an affiliate of the
Trustee, describe each such affiliation.
The Obligor is not an affiliate of the Trustee.
3. thru 15.
NO RESPONSE NECESSARY
16. LIST OF EXHIBITS.
1. A copy of the articles of association of the Trustee is now
in effect which includes the authority of the trustee to
commence business and to exercise corporate trust powers.
A copy of the Certificate of Merger dated April 1, 1972
between Harris Trust and Savings Bank, HTS Bank and Harris
Bankcorp, Inc. which constitutes the articles of association
of the Trustee as now in effect and includes the authority
of the Trustee to commence business and to exercise
corporate trust powers was filed in connection with the
Registration Statement of Louisville Gas and Electric
Company, File No. 2-44295, and is incorporated herein by
reference.
2. A copy of the existing by-laws of the Trustee.
A copy of the existing by-laws of the Trustee was filed in
connection with the Registration Statement of Hillenbrand
Industries, Inc., File No. 33-44086, and is incorporated
herein by reference.
3. The consents of the Trustee required by Section 321(b) of
the Act.
-1-
(included as Exhibit A on page 2 of this statement)
4. A copy of the latest report of condition of the Trustee
published pursuant to law or the requirements of its
supervising or examining authority.
(included as Exhibit B on page 3 of this statement)
-2-
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, HARRIS TRUST AND SAVINGS BANK, a corporation organized and
existing under the laws of the State of Illinois, has duly caused this
statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Chicago,
and State of Illinois, on the 1st day of April, 1994.
HARRIS TRUST AND SAVINGS BANK
By: C. Potter
---------------------------------------------------
C. Potter
Assistant Vice President
EXHIBIT A
The consents of the trustee required by Section 321(b) of the Act.
Harris Trust and Savings Bank, as the Trustee herein named, hereby
consents that reports of examinations of said trustee by Federal and
State authorities may be furnished by such authorities to the
Securities and Exchange Commission upon request therefor.
HARRIS TRUST AND SAVINGS BANK
By: C. Potter
---------------------------------------------------
C. Potter
Assistant Vice President
-3-
EXHIBIT B
Attached is a true and correct copy of the statement of condition of
Harris Trust and Savings Bank as of December 31, 1994, as published in
accordance with a call made by the State Banking Authority and by the
Federal Reserve Bank of the Seventh Reserve District.
HARRIS BANK
Harris Trust and Savings Bank
111 West Monroe Street
Chicago, Illinois 60603
of Chicago, Illinois, And Foreign and Domestic Subsidiaries, at the
close of business on September 30, 1993, a state banking institution
organized and operating under the banking laws of this State and a
member of the Federal Reserve System. Published in accordance with a
call made by the Commissioner of Banks and Trust Companies of the
State of Illinois and by the Federal Reserve Bank of this District.
-4-
Bank's Transit Number 71000288
<TABLE> THOUSANDS
<CAPTION> OF DOLLARS
ASSETS
<S> <C> <C>
Cash and balances due from depository institutions:
Non-interest bearing balances and currency and coin . . . $975,066
Interest bearing balances . . . . . . . . . . . . . . . . $507,329
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . $1,963,274
Federal funds sold and securities purchased under agreements to
resell in domestic offices of the bank and of its Edge
and Agreement subsidiaries, and in IBF's:
Federal funds sold . . . . . . . . . . . . . . . . . . . . . . $159,506
Securities purchased under agreements to resell . . . . . . . . $328,039
Loans and lease financing receivables:
Loans and leases, net of unearned income . . . . . . . . . . . $5,848,781
LESS: Allowance for loan and lease losses . . . . . . . . . . $93,990
==========
Loans and leases, net of unearned income, allowance, and
reserve $5,754,791
(item 4. a minus 4.b) . . . . . . . . . . . . . . . . . . . . .
Assets held in trading accounts . . . . . . . . . . . . . . . . . . $50,061
Premises and fixed assets (including capitalized leases) . . . . . $141,460
Other real estate owned . . . . . . . . . . . . . . . . . . . . . . $3,568
Investments in unconsolidated subsidiaries and associated $429
companies . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Customer's liability to this bank on acceptances outstanding . . . $58,399
Intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . $31,638
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . $219,058
==========
TOTAL ASSETS $10,192,618
===========
LIABILITIES
Deposits:
In domestic offices . . . . . . . . . . . . . . . . . . . . . . . $4,858,793
Non-interest bearing . . . . . . . . . . . . . . . . . . . . . $2,569,574
Interest bearing . . . . . . . . . . . . . . . . . . . . . . . $2,289,219
In foreign offices, Edge and Agreement subsidiaries, and IBF's . . $1,598,561
Non-interest bearing . . . . . . . . . . . . . . . . . . . . . $17,768
Interest bearing . . . . . . . . . . . . . . . . . . . . . . . $1,580,793
Federal funds purchased and securities sold under agreements to
repurchase in domestic offices of the bank and of its Edge and
Agreement subsidiaries, and in IBF's:
Federal funds purchased . . . . . . . . . . . . . . . . . . . . $1,078,476
Securities sold under agreements to repurchase . . . . . . . . $984,642
Other borrowed money . . . . . . . . . . . . . . . . . . . . . . . $471,563
Bank's liability on acceptances executed and outstanding . . . . . $58,798
Subordinated notes and debentures . . . . . . . . . . . . . . . . . $235,000
Other liabilities . . . . . . . . . . . . . . . . . . . . . . . . . $172,334
===========
TOTAL LIABILITIES $9,458,167
EQUITY CAPITAL
-5-
Common stock . . . . . . . . . . . . . . . . . . . . . . . . . . . $100,000
Surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $275,000
Undivided profits and capital reserves . . . . . . . . . . . . . . $337,091
============
TOTAL EQUITY CAPITAL $734,451
============
Total liabilities, limited-life preferred stock, and equity $10,192,618
capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ============
</TABLE>
I, David H. Charney, Vice President of the above-named bank, do
hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of
the Federal Reserve System and is true to the best of my knowledge and
belief.
DAVID H. CHARNEY
1/26/1994
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us and,
to the best of our knowledge and belief, has been prepared in
conformance with the instructions issued by the Board of Governors of
the Federal Reserve System and the Commissioner of Banks and Trust
Companies of the State of Illinois and is true and correct.
ALAN G. McNALLY,
DONALD S. HUNT,
JAMES J GLASER
Directors.
STATE OF ILLINOIS, COUNTY OF COOK, ss:
Sworn to and subscribed before me this 26th day of January 1994.
My commission expires April 22, 1996.
DIANALYNN GIRTEN
919923\
-6-
EXHIBIT 25-2
----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
FORM T-1
-------------------------
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939, AS AMENDED,
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) ______
--------------------------
NBD BANK, NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
611 Woodward Avenue
Detroit, Michigan 48226 38-0864715
(Address of principal (Zip Code) (I.R.S. Employer
executive offices) Identification No.)
NBD Bank, National Association
611 Woodward Ave.
Detroit, Michigan 48226
Corporate Trust Department
Attn: K.D. O'Donoghue (313) 225-3185
(Name, address and telephone number of agent for service)
ARVIN INDUSTRIES, INC.
(Exact name of obligor as specified in its charter)
Indiana 35-055-0190
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One Noblitt Plaza
Box 3000
Columbus, Indiana 47202-3000
(Address of principal executive offices) (Zip Code)
CONVERTIBLE and NON-CONVERTIBLE
SUBORDINATED DEBT SECURITIES
(Title of the indenture securities)
1. General Information
(a) The following are the names and addresses of each examining
or supervising authority to which the Trustee is subject:
The Comptroller of the Currency, Washington, D.C.
Federal Reserve Bank of Chicago, Chicago, Illinois
Federal Deposit Insurance Corporation, Washington, D.C.
(b) The Trustee is authorized to exercise corporate trust
powers.
2. Affiliations with obligor.
The obligor is not an affiliate of the Trustee.
3. Voting Securities of the Trustee.
The following information is furnished as to each class of voting
securities of the Trustee:
As of March 30, 1994
----------------------------------------------------------------------
Column A Column B
----------------------------------------------------------------------
Title of Class Amount Outstanding
----------------------------------------------------------------------
Common Stock, par value $12.50 per share 8,948,648 shares
4. Trusteeships under other indentures.
The Trustee is not a Trustee under another indenture under which
any other securities, or certificates of interest or
participation in any other securities, of the obligor are
outstanding.
5. Interlocking directorates and similar relationships with the
obligor or underwriters.
Neither the Trustee nor any of the directors nor executive
officers of the Trustee is a director, officer, partner,
employee, appointee or representative of the obligor or of any
underwriter for the obligor.
6. Voting securities of the Trustee owned by the obligor or its
officials.
Voting securities of the Trustee owned by the obligor and its
directors, partners and executive officers, taken as a group, do
-2-
not exceed one percent of the outstanding voting securities of
the Trustee.
7. Voting securities of the Trustee owned by underwriters or their
officials.
Voting securities of the Trustee owned by any underwriter and its
directors, partners and executive officers, taken as a group, do
not exceed one percent of the outstanding voting securities of
the Trustee.
8. Securities of obligor owned or held by the Trustee.
The amount of securities of the obligor which the Trustee owns
beneficially or holds as collateral security for obligations in
default does not exceed one percent of the outstanding securities
of the obligor.
9. Securities of underwriters owned or held by the Trustee.
The Trustee does not own beneficially or hold as collateral
security for obligations in default any securities of an
underwriter for the obligor.
10. Ownership or holdings by the Trustee of voting securities of
certain affiliates or security holders of the obligor.
The Trustee does not own beneficially or hold as collateral
security for obligations in default voting securities of a person
who, to the knowledge of the Trustee (1) owns 10 per cent or more
of the voting securities of the obligor, or (2) is an affiliate,
other than a subsidiary, of the obligor.
11. Ownership or holdings by the Trustee of any securities of a
person owning 50 per cent or more of the voting securities of
the obligor.
The Trustee does not own beneficially or hold as collateral
security for obligations in default any securities of a person
who, to the knowledge of the Trustee, owns 50 percent or more of
the voting securities of the obligor.
12. Indebtedness of the obligor to the Trustee.
As of March 28, 1994 the Company is indebted to the Trustee in
the amount of $6,100,000.00 which is unsecured.
13. Defaults by the obligor.
Not applicable.
14. Affiliations with the underwriters.
-3-
No underwriter is an affiliate of the Trustee.
15. Foreign trustee.
Not applicable.
16. List of Exhibits.
(1) Articles of Association of the Trustee.
(2) Certificate of Authority of the Trustee to commence
business. Incorporated by reference to Exhibit (2) filed
with Amendment No. 1 to Form T-1 Statement, Registration No.
22-4501.
(3) Authorization of the Trustee to exercise corporate trust
powers. Incorporated by reference to Exhibit (3) filed with
Amendment No. 1 to Form T-1 Statement, Registration No.
22-4501.
(4) By-Laws of the Trustee.
(5) Not Applicable.
(6) Consent by the Trustee required by Section 321 (b) of the
Trust Indenture Act of 1939. Incorporated by reference to
Exhibit (6) filed with Amendment No. 1 to Form T-1
Statement, Registration No. 22-4501.
(7) Report of condition of Trustee.
(8) Not applicable.
(9) Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the Trustee, NBD BANK, NATIONAL ASSOCIATION, a national
association organized and existing under the laws of the United States
of America, has duly caused this statement of eligibility and
qualification to be signed on its behalf by the undersigned, thereunto
duly authorized, all in the City of Detroit, State of Michigan on the
30th day of March, 1994.
NBD BANK, NATIONAL ASSOCIATION
(Trustee)
By: /s/ Karen D. O'Donoghue
_____________________________
Karen D. O'Donoghue
Vice President
-4-
EXHIBIT 1
NBD BANK, NATIONAL ASSOCIATION
Detroit, Michigan
Charter No. 13671
ARTICLES OF ASSOCIATION
Effective January 1, 1973
(As amended effective May 1, 1990)
FIRST.
The title of the Association shall be NBD Bank, National Association.
SECOND.
The place where its banking house or office shall be located, and its
operations of discount and deposit carried on, and its general
business conducted, shall be the City of Detroit, Wayne County, State
of Michigan.
The Board of Directors shall have the power to change the location of
the main office to any other place within the limits of the City of
Detroit, without the approval of the shareholders and shall have the
power to establish or change the location of any branch or branches of
the Association to any other location, without the approval of the
shareholders.
THIRD.
The Board of Directors shall consist of such number of persons, not
less than five nor more than twenty-five, as from time to time shall
be determined by a majority of the votes to which all shareholders are
at the time entitled. Each Director, during the full term of his or
her directorship, shall own a minimum of $1,000 aggregate par value of
stock of this Association or a minimum par value, market value or
equity interest equivalent to $1,000 of common stock in the bank
holding company controlling this Association. The Board of Directors,
by vote of the majority of the entire Board, may, between annual
meetings of the shareholders, increase the number of members of the
Board of Directors by not more than two where the number of directors
last elected by shareholders was fifteen or less or by not more than
four where the number of directors last elected by shareholders was
sixteen or more, but in no event so that the total number of directors
shall exceed twenty-1five, and by like vote appoint qualified persons
to fill the vacancies created thereby.
FOURTH.
The regular annual meeting of the shareholders of this Association
shall be held at its main banking house, or other convenient place
duly authorized by the Board of Directors on such day of each year as
-5-
is specified therefor in the By-Laws. All elections shall be held
according to such regulations as may be prescribed by the
Board of Directors, not inconsistent with the provisions of the
National Bank Act and of these Articles of Association.
FIFTH.
The authorized amount of the capital stock of the Association shall be
10,000,000 shares of common stock of the par value of $12.50 each.
The authorized amount of the capital stock of the Association may be
increased or decreased from time to time in accordance with provisions
of the laws of the United States.
In case of the increase of the capital of the Association each
shareholder shall have the privilege of subscribing for such number of
shares of the proposed increase of the capital stock as he may be
entitled to according to the number of shares owned by him before the
stock is increased, provided that no holder of shares of the capital
stock of the Association shall have any preemptive right of
subscription to any shares of the capital stock of the Association
which are authorized and kept available for issuance in conversion of
obligations of the Association or any preferential right of
subscription to convertible obligations specifically authorized by the
shareholders to be issued free of such preferential right of
subscription.
The Association, at any time and from time to time, may authorize and
issue debt obligations not convertible into capital stock of the
Association, without the approval of the shareholders.
SIXTH.
(a) Powers of Board of Directors. The Board of Directors, a majority
of whom shall be a quorum to transact business, shall have power to
manage and administer the business and affairs of the Association and
to prescribe By-Laws for the regulation of the business of the
Association and the conduct of its affairs not inconsistent with law
and these Articles of Association. Except as expressly limited by
law, all corporate powers of the Association shall be vested in and
may be exercised by the Board of Directors.
(b) Officers and Employees. The Board of Directors shall have power
to elect or appoint such officers and employees as may be required to
transact the business of the Association, to define their duties, to
fix the salaries to be paid to them, to require bonds from them and to
fix the penalty thereof, and to continue them in office or dismiss
them.
(c) Indemnification of Directors, Officers and Employees. Any person
shall be indemnified and reimbursed by the Association for expenses
reasonably incurred by him and liabilities imposed upon him in
connection with or arising out of any action, suit or proceeding,
-6-
civil or criminal, or threat thereof, in which he may be involved by
reason of his being or having been a director, officer, or employee of
the Association or of any firm, corporation or organization which he
served in any capacity at the request of the Association; provided,
however, that no person shall be so indemnified or reimbursed (a) in
relation to any matter in such action, suit or proceeding as to which
he shall finally be adjudged to have been guilty of breach of duty as
a director, officer, or employee of the Association or (b) in relation
to any matter in such action, suit or proceeding, or threat thereof,
which has been made the subject of a compromise settlement, unless in
either such case such person acted in good faith for a purpose which
he reasonably believed to be in the best interest of the Association
and, in a criminal action or proceeding, in addition, had no
reasonable cause to believe that his conduct was unlawful or, (c)
against expenses, penalties, or other payments incurred in an
administrative proceeding or action instituted by an appropriate bank
regulatory agency which proceeding or action results in a final order
assessing civil money penalties or requiring affirmative action by
such person in the form of payments to the bank. The determination
whether the conduct of such person met the standard required in order
to entitle him to indemnification and reimbursement in relation to any
matter described in (a) or (b) of the preceding sentence may be made
by the Board of Directors of the Association, or by the holders of
record of a majority of the outstanding shares of the Association or
by a court of competent jurisdiction. No adjudication of liability or
guilt as to such person shall in itself create a presumption that he
did not meet the standard of conduct required in order to entitle him
to indemnification and reimbursement hereunder. Neither the
Association nor its directors or officers shall be liable to anyone
for any determination of such directors or officers as to the
existence or absence of conduct which would provide a basis for making
or refusing to make any payment hereunder or for taking or omitting to
take any other action hereunder, in reliance upon the advice of
counsel. A court of competent jurisdiction may make a determination
as to the right of a person to indemnification and reimbursement
hereunder in any specific case upon the application of such person,
despite the failure or refusal of the directors and shareholders to
make provision therefor. The foregoing right of indemnification and
reimbursement shall not be exclusive of other rights to which such
person may be entitled as a matter of law and shall inure to the
benefit of his heirs, executors and administrators.
SEVENTH.
The Association shall have succession from the date of its
organization certificate until such time as it may be dissolved by the
act of its shareholders according to law or until its franchise
becomes forfeited by reason of violation of law, or until terminated
by either a general or a special act of Congress or until its affairs
be placed in the hands of a receiver and finally wound up by him.
-7-
EIGHTH.
Except as otherwise specifically provided by statute, special meetings
of the shareholders may be called for any purpose at any time by the
Board of Directors or by the holders of at least ten per cent of the
then outstanding shares of stock. Every such special meeting shall be
called by mailing, not less than ten days before the time fixed for
the meeting, to all shareholders of record entitled to act and vote at
such meeting, at their respective addresses as shown on the books of
the Association, a notice stating the purposes of the meeting. Such
notice may be waived in writing.
NINTH.
These Articles of Association may be changed or amended at any time by
shareholders owning a majority of the stock of the Association in any
manner not inconsistent with the provisions of law.
TENTH.
Any action required or permitted to be taken at an annual or special
meeting of shareholders may be taken without a meeting, without prior
notice and without a vote, if all of the shareholders entitled to vote
thereon consent thereto in writing.
-8-
EXHIBIT 4
NBD BANK, NATIONAL ASSOCIATION
DETROIT, MICHIGAN
CHARTER NO. 13671
----------------------------------------------------------------------
BY-LAWS
Effective January 1, 1973
(As amended effective May 17, 1993)
----------------------------------------------------------------------
ARTICLE I
Shareholders' Meetings
Section 1. The regular Annual Meeting of the Shareholders of this
Bank for the election of directors and for the transaction of any
other business as may properly come before the meeting shall be held
on the third Monday in May of each year at eleven o'clock in the
forenoon or at such other date and hour as from time to time may be
designated by the Board of Directors.
Nominations for election to the Board of Directors may be made by the
Board of Directors or by any shareholder entitled to vote for the
election of directors. Notification of nominations, other than those
made by or on behalf of the existing management of the Bank, shall be
made in writing and shall be delivered or mailed to the President of
the Bank and to the Comptroller of the Currency, Washington, D.C. not
less than fourteen days nor more than fifty days prior to the annual
meeting of shareholders. Such notification shall contain the
following information, to the extent known to the notifying
shareholders: (a) The name and address of each proposed nominee; (b)
The principal occupation of each proposed nominee; (c) The total
number of shares of capital stock of the Bank that will be voted for
each proposed nominee; (d) The names and residence addresses of the
notifying shareholders; and (e) The number of shares of capital stock
of the Bank owned by the notifying shareholders. Any nomination not
made in accordance herewith may, in his discretion, be disregarded by
the chairman of the meeting, and upon his instructions, the vote
tellers may disregard all votes cast for such nominee unless otherwise
properly nominated in accordance herewith.
Section 2. All proxies secured for any annual or special meeting of
shareholders shall be dated and filed by the Cashier with the records
-9-
of the meeting. No officer or regular employee of the Bank shall act
as proxy at any shareholders' meeting, but any other person or group
of persons including attorneys of the Bank and Directors of the Bank
who are not officers, may act as proxy at any shareholders' meeting.
Section 3. The Cashier, upon receiving the returns of the judges of
election as aforesaid, shall cause the same to be recorded upon the
minute book of the Bank, and shall notify the directors-elect of their
election, and of the time at which they are required to meet at the
banking house of the Bank for the purpose of organizing the new Board
of Directors. If at the time fixed for the meeting of the directors-
elect there is not a quorum in attendance, the members present may
adjourn from time to time until a quorum is secured; and no business
shall be transacted prior to their taking the oath of office as
provided by law.
Section 4. If, for any cause, the annual election of Directors is not
held on the date fixed herein or in the Articles of Association, the
Directors in office shall order a special election to be held on some
other day which shall be designated and of which notice shall be given
in accordance with Section 5149, United States Revised Statutes, as
amended, and for which nominations for election to the Board of
Directors and notifications thereof shall be made, judges appointed,
returns made and recorded, and the directors-elect notified according
to the provisions of Sections 1, 2 and 3 of this Article I; except
that as to any nomination for election to the Board of Directors at
such special election, other than those made by or on behalf of the
existing management of the Bank, if less than twenty-one days' notice
of the meeting is given to shareholders, notification of such
nomination shall be delivered or mailed to the President of the Bank
and to the Comptroller of the Currency not later than the close of
business on the seventh day following the day on which the notice of
meeting was mailed.
Section 5. Special meetings of shareholders may be held as provided
in the Articles of Association and any amendments thereof.
Section 6. For the purpose of determining shareholders entitled to
notice of or to vote at any meeting of shareholders, annual or
special, or entitled to receive payment of any dividend, or in order
to make a determination of shareholders for any other proper purpose,
the Board of Directors shall fix in advance a record date and hour for
any such determination of shareholders, such date in any case to be
not more than fifty (50) days and, in case of a meeting of
shareholders, not less than ten (10) days prior to the date on which
the particular action, requiring such determination of shareholders,
is to be taken. When a determination of shareholders entitled to vote
at any meeting of shareholders has been made as provided in this
section, such determination shall apply to any adjournment thereof.
-10-
ARTICLE II
Directors' Meetings
Section 1. The regular meetings of the Board of Directors shall be
held on such date and at such time each month as shall from time to
time be determined by the Board of Directors, except that in the month
in which the regular annual meeting of the shareholders is held, the
regular meeting of the Board of Directors shall be held following and
on the same day as the regular meeting of the shareholders. When any
regular meeting of the Board of Directors falls upon a holiday, the
meeting shall be held on such other day as the Board of Directors may
previously designate. Special meetings of the Board of Directors may
be called at any time by the Cashier or by any officer of higher rank
than Vice President, or any three Directors. Notice of each special
meeting shall be given personally or by duly mailing, telephoning, or
telegraphing the same, at least twenty-four hours before the meeting.
Any or all Directors may waive notice of any meeting either before or
after the meeting.
ARTICLE III
Officers
Section 1. The officers of this Bank shall include a Chairman of the
Board and a President and may include one or more Vice Chairman of the
Board (each of whom shall be a member of the Board of Directors), and
shall include one or more Vice Presidents, a Cashier, one or more
Deputy Cashiers, and such other officers as may be from time to time
required for the prompt and orderly transaction of its business, to be
elected by the Board of Directors. The same person may hold any two
or more offices, and in any such case, these By-Laws shall be
construed and understood accordingly; provided that the same person
may not hold the offices of Chairman of the Board and Cashier or
President and Cashier. The duties and authorities of the officers of
the Bank, other than those mentioned in these By-Laws, shall be those
usually pertaining to their respective offices, or as may be
designated by the Chairman of the Board, subject to the supervision
and direction of the Board of Directors.
Section 2. The Chairman of the Board, the President and any Vice
Chairman of the Board shall hold office for the current year for which
the Board of Directors of which they shall be members was elected,
unless they shall resign, become disqualified, or be removed; and any
vacancy occurring in any of such offices may be filled by the
remaining members of the Board of Directors.
Section 3. The Chairman of the Board shall be the chief executive
officer of the Bank, shall preside at meetings of shareholders and
directors, shall have general supervision and direction of the
business of the Bank, and perform such other duties as may be
designated by the Board of Directors. The President shall perform
such duties as may be designated by the Board of Directors and, in the
event of the absence or disability of the Chairman of the Board, shall
-11-
have his powers and duties. The Vice Chairman of the Board shall
perform such duties as may be designated by the Board of Directors.
Section 4. The Cashier, the Deputy Cashiers, and all other officers
shall be elected, and employees shall be appointed, to hold their
respective offices and positions during the pleasure of the Board of
Directors, and shall have such duties, other than those mentioned
herein, as shall be prescribed by the Board of Directors.
Section 5. The Cashier of this Bank shall be responsible for all
moneys, funds, indemnity bonds, stock books, and records, and other
valuables of the Bank, and shall qualify under the bankers blanket
bond covering the bank officers and employees, approved as to type and
amount from year to year by the Board of Directors, conditioned for
the faithful and honest discharge of his duties as such Cashier, and
that he will faithfully apply and account for all such moneys, funds
and valuables, and deliver the same to the order of the Board of
Directors of this Bank, or to the person or persons authorized to
receive them.
Section 6. The other officers of this Bank shall be responsible for
all such sums of money and property of every kind as may be entrusted
to their care or placed in their hands by the Board of Directors or by
the Cashier, or otherwise come into their hands as officers, and shall
qualify under the bankers blanket bond covering the bank officers and
employees, approved as to type and amount from year to year by the
Board of Directors, conditioned for the faithful discharge of their
duties as such officers, and that they will faithfully and honestly
apply and account for all sums of money and other property of this
Bank that may come into their hands as such officers, and pay over and
deliver the same to the order of the Board of Directors, or to any
other person or persons authorized by the Board of Directors to
receive the same.
Section 7. All agents and employees shall be responsible for all such
sums of money, property and funds of every description as may from
time to time be placed in their hands by the Cashier, or otherwise
come into their possession as agents or employees; and shall qualify
under the bankers blanket bond covering the bank officers and
employees, approved as to type and amount from year to year by the
Board of Directors, conditioned for the honest and faithful discharge
of their duties as agents and employees, and that they will faithfully
apply, account for, and pay over all moneys, property, and funds of
every description that may come into their hands, by virtue of their
position, to the order of the Board of Directors aforesaid, or to such
person or persons as may be authorized to demand and receive the same.
-12-
ARTICLE IV
Seal
Section 1. The following is an impression of the seal adopted by the
Board of Directors of this Bank.
[Impression of seal]
Section 2. The Cashier shall be the official custodian of the seal
and shall be responsible for the safekeeping and proper use thereof.
The seal shall not be used or affixed to any paper or document
whatsoever except by him or any Deputy Cashier, or such other officers
or employees of the Bank as may be authorized by the Cashier to affix
the seal.
ARTICLE V
Conveyance of Real Estate
Section 1. All transfers and conveyances of real estate shall be made
by the Bank, under seal, in accordance with the orders of the Board of
Directors, and shall be signed by the President or any Vice President
or any other officer, employee or agent of the Bank as may be
designated by the Board of Directors, and shall be attested by the
Cashier or any Deputy Cashier, or such other officer or employee of
this Bank as may be authorized by the Cashier to affix the seal.
ARTICLE VI
Banking Hours
Section 1. The Bank shall be open for business upon such hours of
each day of the year as the Board of Directors shall from time to time
direct and the Board of Directors may, in its discretion, prescribe
different banking hours for different classes of business and
different banking hours for one or more branch offices, than it
prescribes for its principal banking office.
Section 2. The Board of Directors may delegate to the chief executive
officer this authority to establish the hours of each day of the year
that the bank shall be open for business, including the discretion to
prescribe different banking hours for one or more branch offices, than
it prescribed for the Bank's principal banking office; reserving,
however, to itself the authority to act concurrently in such matters.
ARTICLE VII
Executive Committee
Section 1. Committee. There shall be a committee composed of not
less than four (4) members to be known as the Executive Committee
which shall consist of all the officer-directors of the Bank and two
(2) other directors appointed as shall be provided by the Board of
Directors. Provision shall be made by the Board of Directors for the
-13-
appointment of alternates to act for members in the event of their
absence or disability.
Section 2. Presiding Officer. The Chairman of the Board shall act as
presiding officer at any meeting of the Executive Committee. In the
event of the absence or disability of the Chairman of the Board, the
President shall act as presiding officer. In the event of the absence
or disability of the Chairman of the Board and President, another
officer-director, if present, shall act as presiding officer. If no
officer-director member is present, an officer-director of the Bank's
parent holding company may serve as the presiding officer, and if no
officer-director of the parent holding company is present, the other
members present at the meeting shall elect one of their members as
presiding officer.
Section 3. Quorum. Any two (2) persons, each of whom is a member or
alternate member of the Executive Committee, of whom not less than one
(1) shall be non-officer directors, shall constitute a quorum for the
transaction of business at any meeting of the Executive Committee.
Section 4. Duties. The Executive Committee shall function from day
to day or such other short intervals as shall be found requisite and
expedient in the carrying on of the business and affairs of the Bank,
and between meetings of the Board of Directors, said Committee, within
the scope of the jurisdiction and functions assigned by the Board of
Directors to such Committee, shall have and may exercise, so far as
may be permitted by law, all power and authority of the Board of
Directors (including the right to authorize the seal of the Bank to be
affixed to all instruments on which the same may be required or
appropriate) and shall have power, but not by way of limitation of its
general powers, to discount and purchase bills, notes, and other
evidences of debt, and to buy and sell bills of exchange. A record of
the meetings of the Committee shall be kept, which shall be accessible
to inspection by the Directors at all times, and the Committee shall,
at each regular meeting of the Board of Directors and at such other
times as the Board of Directors may request, submit in writing a full
report of its actions, including a report of all bills, notes, and
other evidences of debt discounted and purchased by it for the Bank
since its last report. The Board of Directors shall approve or
disapprove the report of the Executive Committee, such action to be
recorded in the minutes of the meeting; provided, however, that no
rights of third parties shall be affected by any action of the Board
of Directors, if such rights have attached by virtue of action of the
Executive Committee within the scope of the jurisdiction and functions
assigned by the Board of Directors to said Committee.
ARTICLE VIII
Minute Book
Section 1. The organization papers of this Bank, the returns of the
judges of the elections, the proceedings of all regular and special
meetings of the Board of Directors and of the shareholders, the By-
-14-
Laws and any amendments thereto, and reports of the committees of the
Board of Directors shall be recorded in the minute book; and the
minutes of each meeting shall be signed by the person presiding at
such meeting and attested by the Cashier.
ARTICLE IX
Transfers of Stock
Section 1. The stock of this Bank shall be assignable and
transferable only on the books of this Bank, subject to the
restrictions and provisions of the National Banking Laws; and a
transfer book shall be provided in which all assignments and
transfers of stock shall be made.
Section 2. The stock transfer books of the Bank shall not be closed
for the determination of shareholders entitled to dividends, but any
dividend can be made payable to shareholders of record on the date
such dividend is declared, or any subsequent date. The Bank shall be
fully protected in giving notices of meetings, paying dividends and
doing such other things as require a knowledge of the names of the
shareholders of the Bank, in relying upon the names of the
shareholders as they appear upon the stock books of the Bank.
Section 3. Certificates of stock, bearing the manual or facsimile
signature of the Chairman of the Board, President or any Vice
President, and the Cashier, or the manual or facsimile signature of
any two of such other employees of the Bank as may be designated for
such purpose from time to time by resolution of the Board of
Directors, and bearing the impressed or facsimile seal of the Bank,
may be issued to shareholders. The death, resignation, discharge or
incapacity of any person whose manual or facsimile signature appears
on any certificate, shall not affect the validity of such certificate
of stock, whether such certificate has theretofore or is thereafter
issued. All certificates of stock shall state upon the face thereof
that the stock is transferable only upon the books of the Bank; and
when stock is transferred, the certificates therefor shall be returned
to the Bank, canceled, preserved and new certificates issued.
ARTICLE X
Expenses
Section 1. All the current expenses of the Bank shall be paid by the
Cashier and such other officers of the Bank as may be selected by the
Board of Directors, who shall, every month or more often, if required,
make a detailed statement thereof in writing to the Board of
Directors.
ARTICLE XI
Contracts
Section 1. All contracts, checks, drafts, etc., shall be signed by
the Cashier, or any officer of the rank of Vice President or higher
-15-
rank, or any other officer or employee designated by the Board of
Directors.
ARTICLE XII
Examining Committee
Section 1. (a) Committee. There shall be appointed annually by the
Board of Directors an Examining Committee composed of not less than
three Directors none of whom shall be officers of the Bank.
(b) Duties. The Examining Committee shall:
(i) Cause to be made by the Auditing Department of the Bank a
suitable examination of the financial records and operations
of the Bank through a program of continuous internal audits.
The Committee may employ independent certified public
accounting firms of recognized standing to make such ad-
ditional examinations and audits as it may deem advisable.
The examinations caused to be made by the Committee shall
meet any examination requirements prescribed from time to
time by the Comptroller of the Currency or other regulatory
authorities having jurisdiction and may be made in
conjunction with examinations of the Comptroller of the
Currency.
(ii) Report to the Board of Directors at least once in each
calendar year the results of the examinations made and such
conclusions and recommendations as the Committee deems
appropriate.
ARTICLE XIII
Trust Division
Section 1. Exercise of Fiduciary Powers. All fiduciary powers of the
Bank shall be exercised through the Trust Division, subject to such
regulations as the Comptroller of the Currency shall from time to time
establish. All books and records of the Trust Division shall be kept
separate and distinct from the other books and records of the Bank.
Section 2. Officer in Charge. The Trust Division shall be placed
under the management and immediate supervision of an officer appointed
by the Board of Directors. The duties of such officer shall be to
cause the policies and instructions of the Board of Directors, the
chief executive officer and the Trust Committee, with respect to the
fiduciary accounts entrusted to the Bank, to be carried out, and to
supervise the due performance of such accounts in accordance with law
and their terms.
Section 3. Other Officers. Any other officer specifically appointed
for Trust Division duties by the Board of Directors shall exercise
such powers and perform such duties as are prescribed by these By-
Laws, or as may be assigned to them by the Board of Directors, the
-16-
chief executive officer or the officer in charge of the Trust
Division.
Section 4. Signature and Authentication of Instruments. All instru-
ments in which the Bank is named as Trustee or in any other fiduciary
capacity and all authentications or certificates by the Bank as
Trustee under any mortgage, deed of trust or other instrument securing
bonds, debentures, notes or other obligations of any individual,
association or corporation, and all certificates as Registrar or
Transfer Agent and all certificates of deposit for stocks and bonds,
interim certificates, trust certificates and any other certificates,
document or instrument requiring execution may be signed or
countersigned in behalf of the Bank by any Trust Officer or officer of
higher rank specifically elected or appointed for Trust Division
duties or the Cashier or any officer of the rank of Vice President or
higher rank or by any other person appointed for that purpose by the
Board of Directors.
Section 5. Custody of Investments. The investments of each fiduciary
account shall be kept separate from the assets of the Bank, and shall
be placed in the joint custody or control of not less than two of the
officers or employees of the Bank designated for that purpose by the
Board of Directors. All such officers and employees shall be
adequately bonded. The investments of each such fiduciary account
shall be either: kept separate from those of all other accounts,
except as provided under the regulations of the Comptroller of the
Currency for collective investment, or adequately identified as the
property of the relevant account.
Section 6. Trust Committee. There shall be a Trust Committee which
shall be composed of not less than five (5) members of the Board of
Directors, at least three (3) of whom shall be non-officer directors,
and may include one or more officers of the Bank who are not
directors, appointed by the Board of Directors to serve during its
pleasure. The Trust Committee shall determine the policies of the
Trust Division. It shall have general supervision of the Trust
Division, the other committees to which the exercise of fiduciary
powers of the Bank are assigned, and the investment of funds and
disposition of investments held by the Bank in a fiduciary capacity.
It shall have such other powers and duties relating to the
administration of fiduciary accounts entrusted to the Bank as may be
conferred upon it from time to time by the Board of Directors. The
Trust Committee shall meet at least once a month and shall keep
minutes of its meetings showing the disposition of all matters
considered and passed upon, and shall make monthly reports to the
Board of Directors.
ARTICLE XIV
Quorum
Section 1. Except as otherwise provided by statute or in the Articles
of Association, a majority of all the shareholders or Directors, as
-17-
the case may be, shall be required to constitute a quorum to do
business. Should there be no quorum at any regular or special meeting
of shareholders or Directors, the shareholders or Directors present
may adjourn from day to day until a quorum is in attendance. In the
absence of a quorum no business shall be transacted.
ARTICLE XV
Changes in By-Laws
Section 1. These By-Laws may be repealed, altered, or amended, in
whole or in part, by the vote of a majority of the Directors, at any
regular or special meeting of the Board of Directors upon giving at
least one week's prior notice of such proposed change or changes.
I, ----------------------, ------------------------------ of NBD Bank,
National Association, Detroit, Michigan, do hereby certify that the
foregoing is a true and exact copy of the By-Laws of NBD Bank,
National Association as effective May 17, 1993.
IN WITNESS WHEREOF, I have hereunto affixed my name as ---------------
----- and have caused the corporate seal of said Bank to be hereto
affixed this date -----------------------.
-18-
EXHIBIT 7
Charter No. 13671 Comptroller of the Currency District
REPORT OF CONDITION CONSOLIDATING
DOMESTIC AND FOREIGN SUBSIDIARIES OF THE
NBD BANK, N.A.
in the State of Michigan, at the close of business on December 31,
1993 published in response to call made by Comptroller of the
Currency, under title 12, United States Code, Section 161.
<TABLE>
<CAPTION>
ASSETS
Thousands
of dollars
<S> <C> <C>
Cash and balances due from depository
institutions
Noninterest-bearing balances and currency 1,330,746
and coin
Interest-bearing balances 741,329
Securities 6,812,365
Federal funds sold and securities purchased
under agreements to resell in domestic
offices of the bank and of its Edge and
Agreement subsidiaries, and in IBFs:
Federal funds sold 700,800
Securities purchased under agreements to 243,831
resell
Loans and lease financing receivables:
Loans and leases, net of unearned income 14,752,976
LESS: Allowance for loan and lease losses 209,410
Loans and leases, net of unearned income 14,543,566
and allowance
Assets held in trading accounts 101,271
Premises and fixed assets (including 296,376
capitalized leases)
Other real estate owned 18,802
Investments in unconsolidated subsidiaries 256
and associated companies
Customers' liability to this bank on 163,082
acceptances outstanding
Intangible assets 47,887
Other assets 354,420
---------
Total assets 25,354,731
==========
LIABILITIES
Deposits:
In domestic offices 14,875,727
Noninterest-bearing 4,325,214
Interest-bearing 10,550,513
-19-
In foreign offices, Edge and Agreement 2,099,981
subsidiaries, and IBFs
Noninterest-bearing 65,729
Interest-bearing 2,034,252
Federal funds purchased and securities sold
under agreements to repurchase in domestic
offices of the bank and of its Edge and
Agreement subsidiaries, and in IBFs:
Federal funds purchased 1,675,519
Securities sold under agreements to 1,077,929
repurchase
Demand notes issued to the U.S. Treasury 1,094,693
Other borrowed money 1,663,185
Mortgage indebtedness and obligations under 17,884
capitalized leases
Bank's liability on acceptances executed 163,082
and outstanding
Notes and debentures subordinated to 450,166
deposits
Other liabilities 508,796
--------
Total liabilities 23,626,962
----------
EQUITY CAPITAL
Common stock 111,858
Surplus 617,048
Undivided profits and capital reserves 1,004,328
LESS: Net unrealized loss on marketable 9,849
equity securities
Cumulative foreign currency translation 4,384
adjustments --------
Total equity capital 1,727,769
----------
Total liabilities and equity capital 25,354,731
==========
</TABLE>
I, Jason N. Hansen, Second Vice President of the above-named bank
do hereby declare that this Report of Condition is true and correct to
the best of my knowledge and belief.
JASON N. HANSEN
January 27, 1994
We, the undersigned directors, attest to the correctness of this
statement of resources and liabilities. We declare that it has been
examined by us, and to the best of our knowledge and belief has been
prepared in conformance with the instructions and is true and correct.
THOMAS H. JEFFS II
VERNE G. ISTOCK
ALFRED E. GLANCY III
Directors
-20-
