SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report February 10, 1997
Date of earliest event reported January 28, 1997
ARVIN INDUSTRIES, INC.
(Exact Name of Registrant as Specified in Charter)
Indiana 1-302 35-0550190
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(State or other jurisdiction Commission File Number (IRS Employer
of incorporation) Identification No.)
One Noblitt Plaza, Box 3000
Columbus, IN 47202-3000
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(Address of principal executive offices) (Zip Code)
812-379-3000
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(Registrant's telephone number, including area code)
Item 5. Other Events.
On January 28, 1997, Arvin Capital I, a Delaware business trust (the
"Trust"), issued 100,000 of its 9.50% Capital Securities (the "Capital
Securities"), which represent beneficial interests in the Trust, in a
public offering registered under the Securities Act of 1933, as amended
(Registration Statement Nos. 333-18521 and 333-18521-01). The sole asset
of the Trust is $103,100,000 in aggregate principal amount of the
Registrant's 9.50% Junior Subordinated Deferrable Interest Debentures due
2027 (the "Subordinated Debentures").
Item 7. Financial Statements, Pro Forma Financial Information and
Exhibits.
(c) Exhibits
Certain documents relating to the Capital Securities and the
Subordinated Debentures were included as exhibits to the Registration
Statement. The following exhibits are filed herewith.
Exhibit
Number Description
======== ========================================================
4.3 Amended and Restated Declaration of Trust dated as of January 28,
1997 of Arvin Capital I, among Arvin Industries, Inc., as
sponsor,
the Administrative Trustees named therein and Wilmington Trust
Company, as Institutional Trustee.
4.5 First Supplemental Indenture dated as of January 28, 1997 between
Arvin Industries, Inc. and Wilmington Trust Company, as Trustee,
relating to the 9.50% Junior Subordinated Deferrable Interest
Debentures due 2027.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
ARVIN INDUSTRIES, INC.
By: /s/ Richard A. Smith
------------------------------
Name: Richard A. Smith
Title: Vice President-Finance and
Chief Financial Officer
Date: February 7, 1997
EXHIBIT INDEX
Exhibit
Number Description
==============================================================
4.3 Amended and Restated Declaration of Trust dated as of January 28,
1997 of Arvin Capital I, among Arvin Industries, Inc., as
sponsor,
the Administrative Trustees named therein and Wilmington Trust
Company, as Institutional Trustee.
4.5 First Supplemental Indenture dated as of January 28, 1997 between
Arvin Industries, Inc. and Wilmington Trust Company, as Trustee,
relating to the 9.50% Junior Subordinated Deferrable Interest
Debentures due 2027.
EXHIBIT 4.3
AMENDED AND RESTATED DECLARATION
OF TRUST
ARVIN CAPITAL I
DATED AS OF JANUARY 28, 1997
TABLE OF CONTENTS
ARTICLE I INTERPRETATION AND DEFINITIONS 1
SECTION 1.1 Definitions 1
SECTION 1.2 Interpretation. 7
ARTICLE II TRUST INDENTURE ACT 7
SECTION 2.1 Trust Indenture Act; Application. 7
SECTION 2.2 Lists of Holders of Securities. 7
SECTION 2.3 Reports by the Institutional Trustee. 8
SECTION 2.4 Periodic Reports to Institutional Trustee. 8
SECTION 2.5 Evidence of Compliance with Conditions Precedent. 8
SECTION 2.6 Events of Default; Waiver. 8
SECTION 2.7 Event of Default; Notice. 9
ARTICLE III ORGANIZATION 10
SECTION 3.1 Name. 10
SECTION 3.2 Office. 10
SECTION 3.3 Purpose. 10
SECTION 3.4 Authority. 11
SECTION 3.5 Title to Property of the Trust. 11
SECTION 3.6 Powers and Duties of the Administrative Trustees. 11
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees. 13
SECTION 3.8 Powers and Duties of the Institutional Trustee. 14
SECTION 3.9 Certain Duties and Responsibilities of the
Institutional Trustee. 15
SECTION 3.10 Certain Rights of the Institutional Trustee. 17
SECTION 3.11 Delaware Trustee. 19
SECTION 3.12 Execution of Documents. 19
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities. 19
SECTION 3.14 Duration of Trust. 19
SECTION 3.15 Mergers. 19
ARTICLE IV SPONSOR 21
SECTION 4.1 Sponsor's Purchase of Common Securities. 21
SECTION 4.2 Responsibilities of the Sponsor. 21
ARTICLE V TRUSTEES 21
SECTION 5.1 Number of Trustees. 21
SECTION 5.2 Delaware Trustee. 22
SECTION 5.3 Institutional Trustee; Eligibility. 22
SECTION 5.4 Qualifications of Administrative Trustees and Delaware
Trustee Generally. 23
SECTION 5.5 Initial Trustees. 23
SECTION 5.6 Appointment, Removal and Resignation of Trustees. 23
SECTION 5.7 Vacancies among Trustees. 24
SECTION 5.8 Effect of Vacancies. 25
SECTION 5.9 Meetings. 25
SECTION 5.10 Delegation of Power. 25
SECTION 5.11 Merger, Conversion, Consolidation or Succession
to Business. 25
ARTICLE VI DISTRIBUTIONS 26
SECTION 6.1 Distributions. 26
SECTION 6.2 Payments under Indenture or Pursuant to Direct Actions. 26
ARTICLE VII ISSUANCE OF SECURITIES 26
SECTION 7.1 General Provisions Regarding Securities. 26
SECTION 7.2 Paying Agent. 27
ARTICLE VIII DISSOLUTION OF TRUST 27
SECTION 8.1 Dissolution of Trust. 27
ARTICLE IX TRANSFER OF INTERESTS 28
SECTION 9.1 Transfer of Securities. 28
SECTION 9.2 Transfer of Certificates. 28
SECTION 9.3 Deemed Security Holders. 29
SECTION 9.4 Book Entry Interests. 29
SECTION 9.5 Notices to Clearing Agency. 30
SECTION 9.6 Appointment of Successor Clearing Agency. 30
SECTION 9.7 Definitive Capital Security Certificates. 30
SECTION 9.8 Mutilated, Destroyed, Lost or Stolen Certificates. 30
ARTICLE X LIMITATION OF LIABILITY OFHOLDERS OF SECURITIES,
TRUSTEES OR OTHERS 31
SECTION 10.1 Liability. 31
SECTION 10.2 Exculpation. 31
SECTION 10.3 Fiduciary Duty. 32
SECTION 10.4 Indemnification. 33
SECTION 10.5 Outside Businesses. 35
ARTICLE XI ACCOUNTING 35
SECTION 11.1 Fiscal Year. 35
SECTION 11.2 Certain Accounting Matters. 35
SECTION 11.3 Banking. 36
SECTION 11.4 Withholding. 36
ARTICLE XII AMENDMENTS AND MEETINGS 37
SECTION 12.1 Amendments. 37
SECTION 12.2 Meetings of the Holders of Securities; Action by
Written Consent .38
ARTICLE XIII REPRESENTATIONS OF INSTITUTIONAL
TRUSTEEAND DELAWARE TRUSTEE 40
SECTION 13.1 Representations and Warranties of Institutional
Trustee and Delaware Trustee. 40
SECTION 13.2 Representations and Warranties of Delaware Trustee. 40
ARTICLE XIV MISCELLANEOUS 41
SECTION 14.1 Notices. 41
SECTION 14.2 Governing Law. 42
SECTION 14.3 Intention of the Parties. 42
SECTION 14.4 Headings. 42
SECTION 14.5 Successors and Assigns 42
SECTION 14.6 Partial Enforceability. 42
SECTION 14.7 Counterparts. 42
SECTION 14.8 Incorporation by Reference of Annex I 43
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
ARVIN CAPITAL I
THIS AMENDED AND RESTATED DECLARATION OF TRUST (this "Declaration")
dated and effective as of January 28, 1997, by and among Arvin Industries,
Inc., an Indiana corporation, as Sponsor, and Richard A. Smith, A. R.
Sales, and Wilmington Trust Company, a Delaware banking corporation, not in
their individual capacities, but solely as trustees of the Trust, as
defined below (collectively, the "Trustees"), and the holders, from time to
time, of undivided beneficial interests in the Trust to be issued pursuant
to this Declaration.
WHEREAS, the Trustees and the Sponsor established Arvin Capital I (the
"Trust"), a trust under the Delaware Business Trust Act pursuant to a
Declaration of Trust, dated as of December 18, 1996 (the "Original
Declaration"), and a Certificate of Trust filed with the Secretary of State
of the State of Delaware on December 18, 1996, for the sole purpose of
issuing and selling certain securities representing undivided beneficial
interests in the assets of the Trust and investing the proceeds thereof in
certain Debentures of the Debenture Issuer;
WHEREAS, as of the date hereof, no interests in the Trust have been
issued; and
WHEREAS, all of the Trustees and the Sponsor, by this Declaration,
amend and restate each and every term and provision of the Original
Declaration.
NOW, THEREFORE, it being the intention of the parties hereto to
continue the Trust as a business trust under the Delaware Business Trust
Act, and that this Declaration constitute the governing instrument of such
business trust, the Trustees declare that all assets contributed to the
Trust will be held in trust for the benefit of the holders, from time to
time, of the securities representing undivided beneficial interests in the
assets of the Trust issued hereunder, subject to the provisions of this
Declaration.
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions.
(a) Capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in this
Section 1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to
this Declaration as modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles and Sections and
Annexes and Exhibits are to Articles and Sections of, and Annexes and
Exhibits to, this Declaration unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Declaration unless otherwise defined in this Declaration
or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"Administrative Trustee" means any Trustee other than the
Institutional Trustee and the Delaware Trustee.
"Affiliate" has the same meaning as given to that term in Rule
405 of the Securities Act or any successor rule thereunder.
"Authorized Officer" of a Person means any Person that is
authorized to bind such Person.
"Book Entry Interest" means a beneficial interest in a Global
Certificate, ownership and transfers of which shall be maintained and made
through book entries by a Clearing Agency as described in Section 9.4.
"Business Day" means any day other than a day on which state or
federal banking institutions in New York, New York or Wilmington, Delaware
are authorized or required by law, executive order or regulation to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code Section 3801 et seq., as it may be amended from time to
time, or any successor legislation.
"Capital Securities" has the meaning specified in Section 7.1.
"Capital Securities Guarantee" means the guarantee agreement to
be dated as of January 28, 1997, of the Sponsor in respect of the Capital
Securities.
"Capital Security Beneficial Owner" means, with respect to a Book
Entry Interest, a Person who is the beneficial owner of such Book Entry
Interest, as reflected on the books of the Clearing Agency, or on the books
of a Person maintaining an account with such Clearing Agency (directly as a
Clearing Agency Participant or as an indirect participant, in each case in
accordance with the rules of such Clearing Agency).
"Capital Security Certificate" means a certificate representing a
Capital Security substantially in the form of Exhibit A-1.
"Certificate" means a Common Security Certificate or a Capital
Security Certificate.
"Clearing Agency" means an organization registered as a "Clearing
Agency" pursuant to Section 17A of the Exchange Act that is acting as
depositary for the Capital Securities and in whose name or in the name of a
nominee of that organization a Global Certificate shall be registered and
which shall undertake to effect book entry transfers and pledges of the
Capital Securities.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the
Clearing Agency effects book entry transfers and pledges of securities
deposited with the Clearing Agency.
"Closing Date" means January 28, 1997.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time, or any successor legislation. A reference to a specific
section of the Code refers not only to such specific section but also to
any corresponding provision of any federal tax statute enacted after the
date of this Declaration, as such specific section or corresponding
provision is in effect on the date of application of the provisions of this
Declaration containing such reference.
"Commission" means the Securities and Exchange Commission.
"Common Securities Guarantee" means the guarantee agreement to be
dated as of January 28, 1997 of the Sponsor in respect to the Common
Securities.
"Common Securities" has the meaning specified in Section 7.1.
"Common Security Certificate" means a definitive certificate in
fully registered form representing a Common Security substantially in the
form of Exhibit A-2.
"Company Indemnified Person" means (a) any Administrative
Trustee, (b) any Affiliate of any Administrative Trustee, (c) any
officers, directors, shareholders, members, partners, employees,
representatives, or agents of any Administrative Trustee or any Affiliate
thereof, or (d) any officer, employee or agent of the Trust or its
Affiliates.
"Corporate Trust Office" means the office of the Institutional
Trustee at which the corporate trust business of the Institutional Trustee
and the Capital Securities Guarantee Trustee shall, at any particular time,
be principally administered, which office at the date of execution of this
Declaration is located at Rodney Square North, 1100 North Market Street,
Wilmington, Delaware 19890-0001.
"Covered Person" means: (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or (ii)
the Trust's Affiliates; and (b) any Holder of Securities.
"Debenture Issuer" means Arvin Industries, Inc. in its capacity
as issuer of the Debentures under the Indenture.
"Debentures" means the series of Debentures to be issued by the
Debenture Issuer under the Indenture to be held by the Institutional
Trustee, for which a specimen certificate is included as Exhibit B.
"Debt Trustee" means Wilmington Trust Company, not in its
individual capacity but solely as trustee under the Indenture until a
successor is appointed thereunder, and thereafter means such successor
trustee.
"Definitive Capital Security Certificates" has the meaning set
forth in Section 9.4.
"Delaware Trustee" has the meaning set forth in Section 5.2.
"Direction" by a Person means a written direction signed: (a) if
the Person is a natural person, by that Person; or (b) in any other case,
in the name of such Person by one or more Authorized Officers of that
Person.
"Distribution" means a distribution payable to Holders of
Securities in accordance with Section 6.1.
"Event of Default" in respect of the Securities means an Event of
Default (as defined in the Indenture) has occurred and is continuing in
respect of the Debentures.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in
Section 10.4(b).
"Fiscal Year" has the meaning set forth in Section 11.1.
"Global Certificate" has the meaning set forth in Section 9.4.
"Holder" means a Person in whose name a Certificate representing
a Security is registered, such Person being a beneficial owner within the
meaning of the Business Trust Act.
"Indemnified Person" means a Company Indemnified Person or a
Fiduciary Indemnified Person.
"Indenture" means the Indenture dated as of January 28, 1997,
between the Debenture Issuer and the Debt Trustee, and any indenture
supplemental thereto pursuant to which the Debentures are to be issued.
"Institutional Trustee" means the Trustee meeting the eligibility
requirements set forth in Section 5.3.
"Institutional Trustee Account" has the meaning set forth in
Section 3.8(c).
"Investment Company" means an investment company as defined in
the Investment Company Act.
"Investment Company Act" means the Investment Company Act of
1940, as amended from time to time, or any successor legislation.
"Legal Action" has the meaning set forth in Section 3.6(g).
"List of Holders" has the meaning set forth in Section 2.2.
"Majority in liquidation amount of the Securities" means, except
as provided in the terms of the Capital Securities or by the Trust
Indenture Act, Holder(s) of outstanding Securities voting together as a
single class or, as the context may require, Holders of outstanding Capital
Securities or Holders of outstanding Common Securities voting separately as
a class, who are the record owners of more than 50% of the aggregate
liquidation amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accrued and unpaid Distributions
to the date upon which the voting percentages are determined) of all
outstanding Securities of the relevant class.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Authorized Officers of such Person. Any
Officers' Certificate delivered with respect to compliance with a condition
or covenant provided for in this Declaration shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions relating
thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering the
Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is necessary to
enable such officer to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Paying Agent" has the meaning specified in Section 3.8(i).
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other
entity of whatever nature.
"Pricing Agreement" means the pricing agreement in substantially
the form attached as Exhibit A to the Underwriting Agreement among the
Trust, Arvin Industries, Inc., an Indiana corporation, and the underwriters
designated by the Administrative Trustees with respect to the offer and
sale of the Capital Securities.
"Quorum" means a majority of the Administrative Trustees or, if
there are only two Administrative Trustees, both of them.
"Related Party" means, with respect to the Sponsor, any direct or
indirect wholly owned subsidiary of the Sponsor or any other Person that
owns, directly or indirectly, 100% of the outstanding voting securities of
the Sponsor.
"Responsible Officer" means, with respect to the Institutional
Trustee, the chairman of the board of directors, the president, any vice-
president, any assistant vice-president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, any trust officer or
assistant trust officer or other officer of the Institutional Trustee
customarily performing functions similar to those performed by any of the
above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of that officer's knowledge of and familiarity with the particular
subject.
"Rule 3a-7" means Rule 3a-7 under the Investment Company Act or
any successor rule thereunder.
"Securities" means the Common Securities and the Capital
Securities.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, or any successor legislation.
"Securities Guarantee" means each of the Common Securities
Guarantee and the Capital Securities Guarantee.
"Sponsor" means Arvin Industries, Inc., an Indiana corporation,
or any successor entity in a merger, consolidation or amalgamation, in its
capacity as sponsor of the Trust.
"Successor Institutional Trustee" means a successor Trustee
possessing the qualifications to act as Institutional Trustee under Section
5.3(a).
"Super Majority" has the meaning set forth in Section 2.6(a)(ii).
"Tax Event" has the meaning set forth in Annex I hereto.
"10% in liquidation amount of the Securities" means, except as
provided in the terms of the Securities or by the Trust Indenture Act,
Holder(s) of outstanding Securities voting together as a single class or,
as the context may require, Holders of outstanding Capital Securities or
Holders of outstanding Common Securities voting separately as a class, who
are the record owners of 10% or more of the aggregate liquidation amount
(including the stated amount that would be paid on redemption, liquidation
or otherwise, plus accrued and unpaid Distributions to the date upon which
the voting percentages are determined) of all outstanding Securities of the
relevant class.
"Treasury Regulations" means the income tax regulations,
including temporary and proposed regulations, promulgated under the Code by
the United States Treasury, as such regulations may be amended from time to
time (including corresponding provisions of succeeding regulations).
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office
in accordance with the terms hereof, and all other Persons who may from
time to time be duly appointed, qualified and serving as Trustees in
accordance with the provisions hereof, and references herein to a Trustee
or the Trustees shall refer to such Person or Persons solely in their
capacity as trustees hereunder.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended from time to time, or any successor legislation.
"Underwriting Agreement" means the Purchase Agreement for the
offering and sale of Capital Securities in substantially the form of
Exhibit C.
SECTION 1.2 Interpretation.
References to the neuter gender include the masculine and feminine,
where appropriate. Terms which relate to accounting matters shall be
interpreted in accordance with generally accepted accounting principles in
effect from time to time. References to any statute mean such statute, as
amended at the time, and include any successor legislation. The word "or"
is not exclusive, and the words "herein," "hereof," and "hereunder" refer
to this Declaration as a whole.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of the Trust
Indenture Act that are required to be part of this Declaration and shall,
to the extent applicable, be governed by such provisions.
(b) The Institutional Trustee shall be the only Trustee which is a
trustee for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this Declaration
limits, qualifies or conflicts with the duties imposed by 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this Declaration
shall not affect the Trust's classification as a grantor trust for United
States Federal income tax purposes and shall not affect the nature of the
Securities as equity securities representing undivided beneficial interests
in the assets of the Trust.
SECTION 2.2 Lists of Holders of Securities.
(a) Each of the Sponsor and the Administrative Trustees, on behalf of
the Trust, shall provide the Institutional Trustee (i) within fourteen (14)
days after each record date for payment of Distributions, a list, in such
form as the Institutional Trustee may reasonably require, of the names and
addresses of the Holders of the Securities ("List of Holders") as of such
record date, provided that neither the Sponsor nor the Administrative
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Trustees, on behalf of the Trust, shall be obligated to provide such List
of Holders at any time the List of Holders does not differ from the most
recent List of Holders given to the Institutional Trustee by the Sponsor
and the Administrative Trustees, on behalf of the Trust, and (ii) at any
other time, within thirty (30) days of receipt by the Trust of a written
request from the Institutional Trustee for a List of Holders as of a date
no more than fourteen (14) days before such List of Holders is given to the
Institutional Trustee. The Institutional Trustee shall preserve, in as
current a form as is reasonably practicable, all information contained in
Lists of Holders given to it or which it receives in the capacity as Paying
Agent (if acting in such capacity); provided that the Institutional Trustee
may destroy any - ------- ----
List ofHolders previously given to it on receipt of a new List of Holders.
(b) The Institutional Trustee shall comply with its obligations under
311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Institutional Trustee.
On or before July 15 of each year (commencing with the year of the
first anniversary of the issuance of the Capital Securities), the
Institutional Trustee shall provide to the Holders of the Capital
Securities such reports as are required by 313 of the Trust Indenture
Act, if any, in the form and in the manner provided by 313 of the Trust
Indenture Act. The Institutional Trustee shall also comply with the
requirements of 313(d) of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Institutional Trustee.
Each of the Sponsor and the Administrative Trustees, on behalf of the
Trust, shall provide to the Institutional Trustee such documents, reports
and information as required by 314 (if any) and the compliance
certificate required by 314 of the Trust Indenture Act in the form, in
the manner and at the times required by 314 of the Trust Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Administrative Trustees, on behalf of the
Trust, shall provide to the Institutional Trustee such evidence of
compliance with any conditions precedent, if any, provided for in this
Declaration that relate to any of the matters set forth in 314(c) of the
Trust Indenture Act. Any certificate or opinion required to be given by an
officer pursuant to 314(c)(1) may be given in the form of an Officers'
Certificate.
SECTION 2.6 Events of Default; Waiver.
(a) The Holders of a Majority in liquidation amount of Capital
Securities may, by vote, on behalf of the Holders of all of the Capital
Securities, waive any past Event of Default in respect of the Capital
Securities and its consequences, provided that, if the underlying Event of
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Default under the Indenture:
(i) is not waivable under the Indenture, the Event of Default
under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of greater than a majority in
principal amount of the holders of the Debentures (a "Super Majority") to
be waived under the Indenture, the Event of Default under the Declaration
may only be waived by the vote of the Holders of at least the proportion in
liquidation amount of the Capital Securities that the relevant Super
Majority represents of the aggregate principal amount of the Debentures
outstanding.
The foregoing provisions of this Section 2.6(a) shall be in lieu of
316(a)(1)(B) of the Trust Indenture Act, and such 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Declaration and
the Securities, as permitted by the Trust Indenture Act. Upon such waiver,
any such default shall cease to exist, and any Event of Default with
respect to the Capital Securities arising therefrom shall be deemed to have
been cured, for every purpose of this Declaration, but no such waiver shall
extend to any subsequent or other default or an Event of Default with
respect to the Capital Securities or impair any right consequent thereon.
Any waiver by the Holders of the Capital Securities of an Event of Default
with respect to the Capital Securities shall also be deemed to constitute a
waiver by the Holders of the Common Securities of any such Event of Default
with respect to the Common Securities for all purposes of this Declaration
without any further act, vote, or consent of the Holders of the Common
Securities.
(b) The Holders of a Majority in liquidation amount of the
Common Securities may, by vote, on behalf of the Holders of all of the
Common Securities, waive any past Event of Default with respect to the
Common Securities and its consequences, provided that, if the underlying
Event of
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Default under the Indenture:
(i) is not waivable under the Indenture, except where the
Holders of the Common Securities are deemed to have waived such Event of
Default under the Declaration as provided below in this Section 2.6(b), the
Event of Default under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of a Super Majority to be
waived, except where the Holders of the Common Securities are deemed to
have waived such Event of Default under the Declaration as provided below
in this Section 2.6(b), the Event of Default under the Declaration may only
be waived by the vote of the Holders of at least the proportion in
liquidation amount of the Common Securities that the relevant Super
Majority represents of the aggregate principal amount of the Debentures
outstanding;
provided further, each Holder of Common Securities will be deemed to have
- --------
waived any such Event of Default and all Events of Default with respect to
the Common Securities and its consequences until all Events of Default with
respect to the Capital Securities have been cured, waived or otherwise
eliminated, and until such Events of Default have been so cured, waived or
otherwise eliminated, the Institutional Trustee will be deemed to be acting
solely on behalf of the Holders of the Capital Securities and only the
Holders of the Capital Securities will have the right to direct the
Institutional Trustee in accordance with the terms of the Securities. The
foregoing provisions of this Section 2.6(b) shall be in lieu of
316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act, and such
316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are hereby
expressly excluded from this Declaration and the Securities, as permitted
by the Trust Indenture Act. Subject to the foregoing provisions of this
Section 2.6(b), upon such waiver, any such default shall cease to exist,
and any Event of Default with respect to the Common Securities arising
therefrom shall be deemed to have been cured for every purpose of this
Declaration, but no such waiver shall extend to any subsequent or other
default or Event of Default with respect to the Common Securities or impair
any right consequent thereon.
(c) A waiver of an Event of Default under the Indenture by the
Institutional Trustee at the direction of the Holders of the Capital
Securities constitutes a waiver of the corresponding Event of Default under
this Declaration. The foregoing provisions of this Section 2.6(c) shall be
in lieu of 316(a)(1)(B) of the Trust Indenture Act, and such
316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from
this Declaration and the Securities, as permitted by the Trust Indenture
Act.
SECTION 2.7 Event of Default; Notice.
(a) The Institutional Trustee shall, within ninety (90) days after
the occurrence of an Event of Default, transmit by mail, first class
postage prepaid, to the Holders of the Securities, notices of all defaults
with respect to the Securities known to the Institutional Trustee, unless
such defaults have been cured before the giving of such notice (the term
"defaults" for the purposes of this Section 2.7(a) being hereby defined to
be an Event of Default as defined in the Indenture, not including any
periods of grace provided for therein and irrespective of the giving of any
notice provided therein); provided that, except for a default in the
payment -------- ----
of principal of (or premium, if any) or interest on any of the Debentures
or in the payment of any sinking fund installment established for the
Debentures, the Institutional Trustee shall be protected in withholding
such notice if and so long as a the board of directors, the executive
committee, or a trust committee of directors and/or Responsible Officer of
the Institutional Trustee in good faith deter mines that the withholding of
such notice is in the interests of the Holders of the Securities.
(b) The Institutional Trustee shall not be deemed to have knowledge
of any default except:
(i) a default under Sections 6.01(a)(1) and 6.01(a)(2) of the
Indenture; or
(ii) any default as to which the Institutional Trustee shall have
received written notice or of which a Responsible Officer of the
Institutional Trustee charged with the administration of the Declaration
shall have actual knowledge.
ARTICLE III
ORGANIZATION
SECTION 3.1 Name.
The Trust is named "Arvin Capital I," as such name may be modified
from time to time by the Administrative Trustees following written notice
to the Holders of Securities. The Trust's activities may be conducted
under the name of the Trust or any other name deemed advisable by the
Administrative Trustees.
SECTION 3.2 Office.
The address of the principal office of the Trust is c/o Arvin
Industries, Inc., One Noblitt Plaza, Box 3000, Columbus, Indiana 47202. On
ten (10) Business Days' prior written notice to the Holders of Securities,
the Administrative Trustees may designate another principal office.
SECTION 3.3 Purpose.
The exclusive purposes and functions of the Trust are (a) to issue and
sell Securities and use the proceeds from such sale to acquire the
Debentures, and (b) except as otherwise limited herein, to engage in only
those other activities necessary or incidental thereto. The Trust shall
not borrow money, issue debt or reinvest proceeds derived from investments,
pledge any of its assets, or otherwise undertake (or permit to be
undertaken) any activity that would cause the Trust not to be classified
for United States federal income tax purposes as a grantor trust.
The Trust will be classified as a grantor trust for United States
federal income tax purposes under Subpart E of Subchapter J of the Code,
pursuant to which the owners of the Capital Securities and the Common
Securities will be the owners of the Trust for United States federal income
tax purposes, and such owners will include directly in their gross income
the income, deductions and credits of the Trust as if the Trust did not
exist. By the acceptance of this Trust, none of the Trustees, the Sponsor,
the Holders of the Capital Securities or Common Securities or the Capital
Securities Beneficial Owners will take any position for United States
federal income tax purposes which is contrary to the classification of the
Trust as a grantor trust.
SECTION 3.4 Authority.
Subject to the limitations provided in this Declaration and to the
specific duties of the Institutional Trustee, the Administrative Trustees
shall have exclusive and complete authority to carry out the purposes of
the Trust. An action taken by the Administrative Trustees in accordance
with their powers shall constitute the act of and serve to bind the Trust,
and an action taken by the Institutional Trustee, on behalf of the Trust,
in accordance with its powers shall constitute the act of and serve to bind
the Trust. In dealing with a Trustee or the Trustees acting on behalf of
the Trust, no Person shall be required to inquire into the authority of
such Trustee or Trustees to bind the Trust. Persons dealing with the Trust
are entitled to rely conclusively on the power and authority of a Trustee
or the Trustees as set forth in this Declaration.
SECTION 3.5 Title to Property of the Trust.
Legal title to all assets of the Trust shall be vested in the
Institutional Trustee and shall be administered by the Institutional
Trustee for the benefit of the Holders in accordance with this Declaration.
The Holders shall not have legal title to any part of the assets of the
Trust, but shall have an undivided beneficial interest in the assets of the
Trust.
SECTION 3.6 Powers and Duties of the Administrative Trustees.
The Administrative Trustees shall have the exclusive power, duty and
authority to cause the Trust to engage in the following activities:
(a) to issue and sell the Capital Securities and the Common
Securities in accordance with this Declaration; provided, however, that
the Trust may
-------- -------
issue no more than one series of Capital Securities and no more than one
series of Common Securities, and, provided further, that there shall be no
-------- -------
interests in the Trust other than the Securities, and the issuance of the
Securities shall be limited to a one-time, simultaneous issuance of both
the Capital Securities and the Common Securities on the Closing Date;
(b) in the event that any action referred to below is required, by
the rules and regulations of the Commission or state securities or blue sky
laws, to be taken by the Trustees, on behalf of the Trust, in connection
with the issue and sale of the Capital Securities, to:
(i) execute and file with the Commission the registration
statement on Form S-3 prepared by the Sponsor, including any amendments
thereto, pertaining to the Capital Securities, the Capital Securities
Guarantee and the Debentures; and
(ii) execute and file any documents prepared by the Sponsor, or
take any acts as determined by the Sponsor to be necessary in order to
qualify or register all or part of the Capital Securities in any State in
which the Sponsor has determined to qualify or register such Capital
Securities for sale;
(c) to acquire the Debentures with the proceeds of the sale of the
Capital Securities and the Common Securities; provided, however, that the
-------- -------
Administrative Trustees shall cause legal title to the Debentures to be
held of record in the name of the Institutional Trustee for the benefit of
the Holders of the Capital Securities and the Holders of the Common
Securities;
(d) to give the Sponsor and the Institutional Trustee prompt written
notice of the occurrence of a Tax Event;
(e) to establish a record date with respect to all actions to be
taken hereunder that require a record date be established, including and
with respect to, for the purposes of "S"316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and exchanges, and to issue
relevant notices to the Holders of Capital Securities and Holders of Common
Securities as to such actions and applicable record dates;
(f) to take all actions and perform such duties as may be required of
the Administrative Trustees pursuant to the terms of the Securities;
(g) to bring or defend, pay, collect, compromise, arbitrate, resort
to legal action, or otherwise adjust claims or demands of or against the
Trust ("Legal Action"), unless pursuant to Section 3.8(f), the
Institutional Trustee has the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors,
and consultants and pay reasonable compensation for such services;
(i) to cause the Trust to comply with the Trust's obligations under
the Trust Indenture Act;
(j) to give the certificate required by 314(a)(4) of the Trust
Indenture Act to the Institutional Trustee, which certificate may be
executed by any Administrative Trustee;
(k) to incur expenses that are necessary or incidental to carry out
any of the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar and
transfer agent for the Securities;
(m) to give prompt written notice to the Holders of the Securities of
any notice received from the Debenture Issuer of its election to defer
payments of interest on the Debentures by extending the interest payment
period under the Indenture;
(n) to take all action necessary to cause all applicable tax returns
and tax information reports that are required to be filed with respect to
the Trust to be duly prepared and filed on behalf of the Trust;
(o) to take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of
the State of Delaware and of each other jurisdiction in which such
existence is necessary to protect the limited liability of the Holders of
the Capital Securities or to enable the Trust to effect the purposes for
which the Trust was created;
(p) to take any action, not inconsistent with this Declaration or
with applicable law, that the Administrative Trustees determine in their
discretion to be necessary or desirable in carrying out the activities of
the Trust as set out in this Section 3.6, including, but not limited to:
(i) causing the Trust not to be deemed to be an Investment
Company required to be registered under the Investment Company Act;
(ii) causing the Trust to be classified for United States federal
income tax purposes as a grantor trust; and
(iii) cooperating with the Debenture Issuer to ensure that
the Debentures will be treated as indebtedness of the Debenture Issuer for
United States federal income tax purposes,
provided that such action does not materially adversely affect the
interests
- -------- ----
of Holders; and
(q) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing.
The Administrative Trustees must exercise the powers set forth in this
Section 3.6 in a manner that is consistent with the purposes and functions
of the Trust set out in Section 3.3, and the Administrative Trustees shall
not take any action that is inconsistent with the purposes and functions of
the Trust set forth in Section 3.3.
Subject to this Section 3.6, the Administrative Trustees shall have
none of the powers or the authority of the Institutional Trustee set forth
in Section 3.8.
Any expenses incurred by the Administrative Trustees pursuant to this
Section 3.6 shall be reimbursed by the Debenture Issuer.
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees.
(a) The Trust shall not, and the Trustees (including the
Institutional Trustee) shall cause the Trust not to, engage in any activity
other than as required or authorized by this Declaration. In particular,
the Trust shall not and the Trustees (including the Institutional Trustee)
shall cause the Trust not to:
(i) invest any proceeds received by the Trust from holding the
Debentures, but shall distribute all such proceeds to Holders of Securities
pursuant to the terms of this Declaration and of the Securities;
(ii) acquire any assets other than as expressly provided herein;
(iii) possess Trust property for other than a Trust purpose;
(iv) make any loans or incur any indebtedness other than loans
represented by the Debentures;
(v) possess any power or otherwise act in such a way as to vary
the Trust assets or the terms of the Securities in any way whatsoever;
(vi) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than the
Securities; or
(vii) other than as provided in this Declaration or Annex I,
(A) direct the time, method and place of exercising any trust or power
conferred upon the Debenture Trustee with respect to the Debentures, (B)
waive any past default that is waivable under the Indenture, (C) exercise
any right to rescind or annul any declaration that the principal of all the
Debentures shall be due and payable, or (D) consent to any amendment,
modification or termination of the Indenture or the Debentures where such
consent shall be required unless the Trust shall have received an opinion
of counsel to the effect that such modification will not cause more than an
insubstantial risk that for United States federal income tax purposes the
Trust will not be classified as a grantor trust.
SECTION 3.8 Powers and Duties of the Institutional Trustee.
(a) The legal title to the Debentures shall be owned by and held of
record in the name of the Institutional Trustee in trust for the benefit of
the Holders of the Securities. The right, title and interest of the
Institutional Trustee to the Debentures shall vest automatically in each
Person who may hereafter be appointed as Institutional Trustee in
accordance with Section 5.6. Such vesting and cessation of title shall be
effective whether or not conveyancing documents with regard to the
Debentures have been executed and delivered.
(b) The Institutional Trustee shall not transfer its right, title and
interest in the Debentures to the Administrative Trustees or to the
Delaware Trustee (if the Institutional Trustee does not also act as
Delaware Trustee).
(c) The Institutional Trustee shall:
(i) establish and maintain a segregated non-interest bearing
trust account (the "Institutional Trustee Account") in the name of and
under the exclusive control of the Institutional Trustee on behalf of the
Holders of the Securities and, upon the receipt of payments of funds made
in respect of the Debentures held by the Institutional Trustee, deposit
such funds into the Institutional Trustee Account and make payments to the
Holders of the Capital Securities and Holders of the Common Securities from
the Institutional Trustee Account in accordance with Section 6.1. Funds in
the Institutional Trustee Account shall be held uninvested until disbursed
in accordance with this Declaration. The Institutional Trustee Account
shall be an account that is maintained with a banking institution the
rating on whose long-term unsecured indebtedness, as assigned by a
"nationally recognized statistical rating organization", as that term is
defined for purposes of Rule 436(g)(2) under the Securities Act, is at
least investment grade;
(ii) engage in such ministerial activities as shall be necessary
or appropriate to effect the redemption of the Capital Securities and the
Common Securities to the extent the Debentures are redeemed or mature; and
(iii) upon written notice of distribution issued by the
Administrative Trustees in accordance with the terms of the Securities,
engage in such ministerial activities as shall be necessary or appropriate
to effect the distribution of the Debentures to Holders of Securities upon
the occurrence of certain special events (as may be defined in the terms of
the Securities) arising from a change in law or a change in legal
interpretation or other specified circumstances pursuant to the terms of
the Securities.
(d) The Institutional Trustee shall take all actions and perform such
duties as may be specifically required of the Institutional Trustee
pursuant to the terms of the Securities.
(e) The Institutional Trustee shall take any Legal Action which
arises out of or in connection with an Event of Default of which a
Responsible Officer of the Institutional Trustee has actual knowledge or
the Institutional Trustee's duties and obligations under this Declaration
or the Trust Indenture Act.
(f) The Institutional Trustee shall not resign as a Trustee unless
either:
(i) the Trust has been completely liquidated and the proceeds of
the liquidation distributed to the Holders of Securities pursuant to the
terms of the Securities; or
(ii) a Successor Institutional Trustee has been appointed and has
accepted that appointment in accordance with Section 5.6.
(g) The Institutional Trustee shall have the legal power to exercise
all of the rights, powers and privileges of a holder of Debentures under
the Indenture and, if an Event of Default actually known to a Responsible
Officer of the Institutional Trustee occurs and is continuing, the
Institutional Trustee shall, for the benefit of Holders of the Securities,
enforce its rights as holder of the Debentures subject to the rights of the
Holders pursuant to the terms of such Securities.
(h) The Institutional Trustee may authorize one or more Persons
(each, a "Paying Agent") to pay Distributions, redemption payments or
liquidation payments, on behalf of the Trust, with respect to all
Securities, and any such Paying Agent shall comply with "S" 317(b) of the
Trust Indenture Act. Any Paying Agent may be removed by the Institutional
Trustee at any time and a successor Paying Agent or additional Paying
Agents may be appointed at any time by the Institutional Trustee.
(i) Subject to this Section 3.8, the Institutional Trustee shall have
none of the duties, liabilities, powers or the authority of the
Administrative Trustees set forth in Section 3.6.
The Institutional Trustee must exercise the powers set forth in this
Section 3.8 in a manner that is consistent with the purposes and functions
of the Trust set out in Section 3.3, and the Institutional Trustee shall
not take any action that is inconsistent with the purposes and functions of
the Trust set out in Section 3.3.
SECTION 3.9 Certain Duties and Responsibilities of the Institutional
Trustee.
(a) The Institutional Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically
set forth in this Declaration and in the terms of the Securities, and no
implied covenants shall be read into this Declaration against the
Institutional Trustee. In case an Event of Default has occurred (that has
not been cured or waived pursuant to Section 2.6), the Institutional
Trustee shall exercise such of the rights and powers vested in it by this
Declaration, 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 or her own affairs.
(b) No provision of this Declaration shall be construed to relieve
the Institutional Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Institutional Trustee
shall be determined solely by the express provisions of this Declaration
and the terms of the Securities, and the Institutional Trustee shall not be
liable except for the performance of such duties and obligations as are
specifically set forth in this Declaration and in the terms of the
Securities, and no implied covenants or obligations shall be read into this
Declaration against the Institutional Trustee; and
(B) in the absence of bad faith on the part of the
Institutional Trustee, the Institutional Trustee may conclusively rely, as
to the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to the
Institutional Trustee and conforming to the requirements of this
Declaration; but in the case of any such certificates or opinions that by
any provision hereof are specifically required to be furnished to the
Institutional Trustee, the Institutional Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Declaration;
(ii) the Institutional Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer of the
Institutional Trustee, unless it shall be proved that the Institutional
Trustee was negligent in ascertaining the pertinent facts;
(iii) the Institutional 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 not less than a Majority in
liquidation amount of the Securities relating to the time, method and place
of conducting any proceeding for any remedy available to the Institutional
Trustee, or exercising any trust or power conferred upon the Institutional
Trustee under this Declaration;
(iv) no provision of this Declaration shall require the
Institutional Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or in
the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Declaration or indemnity
reasonably satisfactory to the Institutional Trustee against such risk or
liability is not reasonably assured to it;
(v) the Institutional Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures and the
Institutional Trustee Account shall be to deal with such property in a
similar manner as the Institutional Trustee deals with similar property for
its own account, subject to the protections and limitations on liability
afforded to the Institutional Trustee under this Declaration and the Trust
Indenture Act;
(vi) the Institutional Trustee shall have no duty or liability
for or with respect to the value, genuineness, existence or sufficiency of
the Debentures or the payment of any taxes or assessments levied thereon or
in connection therewith;
(vii) the Institutional Trustee shall not be liable for any
interest on any money received by it except as it may otherwise agree with
the Sponsor. Money held by the Institutional Trustee need not be segregated
from other funds held by it except in relation to the Institutional Trustee
Account maintained by the Institutional Trustee pursuant to Section
3.8(c)(i) and except to the extent otherwise required by law; and
(viii) the Institutional Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the Sponsor
with their respective duties under this Declaration, nor shall the
Institutional Trustee be liable for any default or misconduct of the
Administrative Trustees or the Sponsor.
SECTION 3.10 Certain Rights of the Institutional Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Institutional Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and to
have been signed, sent or presented by the proper party or parties;
(ii) any direction or act of the Sponsor or the Administrative
Trustees contemplated by this Declaration shall be sufficiently evidenced
by a Direction or an Officers' Certificate;
(iii) whenever in the administration of this Declaration, the
Institutional Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder, the
Institutional Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
conclusively rely upon an Officers' Certificate which, upon receipt of such
request, shall be promptly delivered by the Sponsor or the Administrative
Trustees;
(iv) the Institutional Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or securities
laws) or any rerecording, refiling or registration thereof;
(v) the Institutional Trustee may consult with counsel or other
experts and the written advice or opinion of such counsel and experts with
respect to legal matters or advice within the scope of such experts' area
of expertise 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 such advice or opinion; such counsel may be
counsel to the Sponsor or any of its Affiliates, and may include any of its
employees. The Institutional Trustee shall have the right at any time to
seek instructions concerning the administration of this Declaration from
any court of competent jurisdiction;
(vi) the Institutional Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Declaration at
the request or direction of any Holder, unless such Holder shall have
provided to the Institutional Trustee security and indemnity which would
satisfy a reasonable person in the position of the Institutional Trustee,
against the costs, expenses (including attorneys' fees and expenses and the
expenses of the Institutional Trustee's agents, nominees or custodians) and
liabilities that might be incurred by it in complying with such request or
direction, including such reasonable advances as may be requested by the
Institutional Trustee; provided, that, nothing contained in this Section
3.10(a)(vi) shall
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be taken to relieve the Institutional Trustee, upon the occurrence of an
Event of Default, of its obligation to exercise the rights and powers
vested in it by this Declaration;
(vii) the Institutional Trustee shall not be bound to make
any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Institutional Trustee, in
its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit;
(viii) the Institutional Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or by
or through agents, custodians, nominees or attorneys, and the Institutional
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;
(ix) any action taken by the Institutional Trustee or its agents
hereunder shall bind the Trust and the Holders of the Securities, and the
signature of the Institutional Trustee or its agents alone shall be
sufficient and effective to perform any such action, and no third party
shall be required to inquire as to the authority of the Institutional
Trustee to so act or as to its compliance with any of the terms and
provisions of this Declaration, both of which shall be conclusively
evidenced by the Institutional Trustee's or its agent's taking such action;
(x) whenever in the administration of this Declaration the
Institutional Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Institutional Trustee (i) may request instructions from the
Holders of the Securities which instructions may only be given by the
Holders of the same proportion in liquidation amount of the Securities as
would be entitled to direct the Institutional Trustee under the terms of
the Securities in respect of such remedy, right or action, (ii) may refrain
from enforcing such remedy or right or taking such other action until such
instructions are received, and (iii) shall be protected in conclusively
relying on or acting in or accordance with such instructions; and
(xi) except as otherwise expressly provided by this Declaration,
the Institutional Trustee shall not be under any obligation to take any
action that is discretionary under the provisions of this Declaration.
(b) No provision of this Declaration shall be deemed to impose any
duty or obligation on the Institutional Trustee to perform any act or acts
or exercise any right, power, duty or obligation conferred or imposed on
it, in any jurisdiction in which it shall be illegal, or in which the
Institutional Trustee shall be unqualified or incompetent in accordance
with applicable law, to perform any such act or acts, or to exercise any
such right, power, duty or obligation. No permissive power or authority
available to the Institutional Trustee shall be construed to be a duty.
SECTION 3.11 Delaware Trustee.
Notwithstanding any other provision of this Declaration other than
Section 5.2, the Delaware Trustee shall not be entitled to exercise any
powers, nor shall the Delaware Trustee have any of the duties and
responsibilities of the Administrative Trustees or the Institutional
Trustee described in this Declaration. Except as set forth in Section 5.2,
the Delaware Trustee shall be a Trustee for the sole and limited purpose of
fulfilling the requirements of 3807 of the Business Trust Act.
SECTION 3.12 Execution of Documents.
Except as otherwise required by the Business Trust Act or as otherwise
set forth in this Declaration, a majority of or, if there are only two, any
Administrative Trustee or, if there is only one, such Administrative
Trustee is authorized to execute, on behalf of the Trust, any documents
that the Administrative Trustees have the power and authority to execute
pursuant to Section 3.6; provided that, the registration statement referred
to in
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Section 3.6(b)(i), including any amendments thereto, if required, by the
rules and regulations of the Commission, to be signed by the Trustees on
behalf of the Trust, shall be signed by all of the Administrative Trustees.
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities.
The recitals contained in this Declaration and the Securities shall be
taken as the statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations
as to the value or condition of the property of the Trust or any part
thereof. The Trustees make no representations as to the validity or
sufficiency of this Declaration or the Securities.
SECTION 3.14 Duration of Trust.
The Trust, unless terminated pursuant to the provisions of Article
VIII hereof, shall exist for fifty-five years from the Closing Date.
SECTION 3.15 Mergers.
(a) The Trust may not consolidate, amalgamate, merge with or into, or
be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, except as described in Section
3.15(b) and (c) and Annex I.
(b) The Trust may, with the consent of the Administrative Trustees
or, if there are more than two, a majority of the Administrative Trustees,
and without the consent of the Holders of the Securities, the Delaware
Trustee or the Institutional Trustee, consolidate, amalgamate, merge with
or into, or be replaced by a trust organized as such under the laws of any
State of the United States; provided that:
-------- ----
(i) such successor entity (the "Successor Entity") either:
(A) expressly assumes all of the obligations of the Trust
under the Securities; or
(B) substitutes for the Securities other securities having
substantially the same terms as the Capital Securities (the "Successor
Securities") so long as the Successor Securities rank the same as the
Capital Securities rank with respect to Distributions and payments upon
liquidation, redemption and otherwise;
(ii) the Debenture Issuer expressly acknowledges a trustee of the
Successor Entity that possesses the same powers and duties as the
Institutional Trustee as the Holder of the Debentures;
(iii) the Capital Securities or any Successor Securities are
listed, or any Successor Securities will be listed upon notification of
issuance, on any national securities exchange or with any other
organization on which the Capital Securities are then listed or quoted;
(iv) such merger, consolidation, amalgamation or replacement does
not cause the Capital Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating organization;
(v) such merger, consolidation, amalgamation or replacement does
not adversely affect the rights, preferences and privileges of the Holders
of the Securities (including any Successor Securities) in any material
respect (other than with respect to any dilution of such Holders' interests
in the new entity as a result of such merger, consolidation, amalgamation
or replacement);
(vi) such Successor Entity has a purpose substantially identical
to that of the Trust;
(vii) prior to such merger, consolidation, amalgamation or
replacement, the Sponsor has received an opinion of a nationally recognized
independent counsel to the Trust experienced in such matters to the effect
that:
(A) such merger, consolidation, amalgamation or replacement
does not adversely affect the rights, preferences and privileges of the
Holders of the Securities (including any Successor Securities) in any
material respect (other than with respect to any dilution of the Holders'
interest in the new entity);
(B) following such merger, consolidation, amalgamation or
replacement, neither the Trust nor the Successor Entity will be required to
register as an Investment Company; and
(C) following such merger, consolidation, amalgamation or
replacement, the Trust (or the Successor Entity) will continue to be
classified as a grantor trust for United States federal income tax
purposes; and
(viii) the Sponsor guarantees the obligations of such
Successor Entity under the Successor Securities at least to the extent
provided by the Capital Securities Guarantee.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except with
the consent of Holders of 100% in liquidation amount of the Securities,
consolidate, amalgamate, merge with or into, or be replaced by any other
entity or permit any other entity to consolidate, amalgamate, merge with or
into, or replace it if such consolidation, amalgamation, merger or
replacement would cause the Trust or Successor Entity to be classified as
other than a grantor trust for United States federal income tax purposes.
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities.
On the Closing Date the Sponsor will purchase all of the Common
Securities issued by the Trust, in an amount equal to at least 3% of the
capital of the Trust, at the same time as the Capital Securities are sold.
SECTION 4.2 Responsibilities of the Sponsor.
In connection with the issue and sale of the Capital Securities and
subject to the provisions of Section 3.6(b), the Sponsor shall have the
exclusive right and responsibility to engage in the following activities:
(a) to prepare, execute and file with the Commission, on behalf
of the Trust, a registration statement on Form S-3 in relation to the
Capital Securities, including any amendments thereto;
(b) to determine the States in which to take appropriate action
to qualify or register for sale all or part of the Capital Securities and
to do any and all such acts, and to prepare, execute and file any
documents, on behalf of the Trust, as the Sponsor deems necessary or
advisable in order to comply with the applicable laws of any such States;
and
(c) to negotiate, execute and deliver, on behalf of the Trust,
the Underwriting Agreement and Pricing Agreement providing for the sale of
the Capital Securities.
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees.
The number of Trustees initially shall be three (3), and:
(a) at any time before the issuance of any Securities, the
Sponsor may, by written instrument, increase or decrease the number of
Trustees;
(b) after the issuance of any Securities, the number of Trustees
may be increased or decreased by vote of the Holders of a majority in
liquidation amount of the Common Securities voting as a class at a meeting
of the Holders of the Common Securities or by written consent in lieu of a
meeting; provided however, that if the Institutional Trustee does not also
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act as Delaware Trustee, the number of Trustees shall be at least three
(3); provided further that (1) one Trustee shall be the Delaware Trustee,
as
- -------- -------
described in Section 5.2 hereof; (2) there shall be at least one Trustee
who is an employee or officer of, or is affiliated with the Parent (an
"Administrative Trustee"); and (3) one Trustee shall be the Institutional
Trustee for so long as this Declaration is required to qualify as an
indenture under the Trust Indenture Act, and such Trustee may also serve as
Delaware Trustee if it meets the applicable requirements.
SECTION 5.2 Delaware Trustee.
If required by the Business Trust Act, one Trustee (the "Delaware
Trustee") shall be:
(a) a natural person who is a resident of the State of Delaware; or
(b) if not a natural person, an entity which has its principal place
of business in the State of Delaware, and otherwise meets the requirements
of applicable law, provided that, if the Institutional Trustee has its
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principal place of business in the State of Delaware and otherwise meets
the requirements of applicable law, then the Institutional Trustee shall
also be the Delaware Trustee, and Section 3.11 shall have no application.
SECTION 5.3 Institutional Trustee; Eligibility.
(a) There shall at all times be one Trustee which shall act as
Institutional Trustee which shall:
(i) not be an Affiliate of the Sponsor;
(ii) be a corporation organized and doing business under the laws
of the United States of America or any State or Territory thereof or of the
District of Columbia, or a corporation or other Person permitted by the
Commission to act as an institutional trustee under the Trust Indenture
Act, authorized under such laws to exercise corporate trust powers, having
a combined capital and surplus of at least 50 million U.S. dollars
($50,000,000), and subject to supervision or examination by federal, state,
territorial or District of Columbia authority. If such corporation or other
Person publishes reports of condition at least annually, pursuant to law or
to the requirements of the supervising or examining authority referred to
above, then for the purposes of this Section 5.3(a)(ii), the combined
capital and surplus of such corporation or other Person shall be deemed to
be its combined capital and surplus as set forth in its most recent report
of condition so published; and
(iii) if the Trust is excluded from the definition of an
Investment Company solely by means of Rule 3a-7 and to the extent Rule 3a-7
requires a trustee having certain qualifications to hold title to the
"eligible assets" (as defined in Rule 3a-7) of the Trust, the Institutional
Trustee shall possess those qualifications.
(b) If at any time the Institutional Trustee shall cease to be
eligible to so act under Section 5.3(a), the Institutional Trustee shall
immediately resign in the manner and with the effect set forth in Section
5.6(c).
(c) If the Institutional Trustee has or shall acquire any
"conflicting interest" within the meaning of 310(b) of the Trust
Indenture Act, the Institutional Trustee and the Holder of the Common
Securities (as if it were the obligor referred to in 310(b) of the Trust
Indenture Act) shall in all respects comply with the provisions of 310(b)
of the Trust Indenture Act.
(d) The Capital Securities Guarantee shall be deemed to be
specifically described in this Declaration for purposes of clause (i) of
the first provision contained in Section 310(b) of the Trust Indenture Act.
SECTION 5.4 Qualifications of Administrative Trustees and Delaware
Trustee Generally.
Each Administrative Trustee and the Delaware Trustee (unless the
Institutional Trustee also acts as Delaware Trustee) shall be either a
natural person who is at least 21 years of age or a legal entity that shall
act through one or more Authorized Officers.
SECTION 5.5 Initial Trustees.
The initial Administrative Trustees shall be:
Richard A. Smith
A. R. Sales
The initial Institutional Trustee shall be:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
which shall also act as the initial Delaware Trustee.
SECTION 5.6 Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 5.6(b), Trustees may be appointed or removed
without cause at any time:
(i) until the issuance of any Securities, by written instrument
executed by the Sponsor; and
(ii) after the issuance of any Securities, by vote of the Holders
of a Majority in liquidation amount of the Common Securities, voting as a
class at a meeting of the Holders of the Common Securities.
(b)(i) The Trustee that acts as Institutional Trustee shall
not be removed in accordance with Section 5.6(a) until a Successor
Institutional Trustee has been appointed and has accepted such appointment
by written instrument executed by such Successor Institutional Trustee and
delivered to the Administrative Trustees and the Sponsor; and
(ii) the Trustee that acts as Delaware Trustee shall not be
removed in accordance with this Section 5.6(a) until a successor Trustee
possessing the qualifications to act as Delaware Trustee under Sections 5.2
and 5.4 (a "Successor Delaware Trustee") has been appointed and has
accepted such appointment by written instrument executed by such Successor
Delaware Trustee and delivered to the Administrative Trustees and the
Sponsor.
(c) A Trustee appointed to office shall hold office until his
successor shall have been appointed or until his death, removal or
resignation. Any Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument in writing signed by the Trustee
and delivered to the Sponsor and the Trust, which resignation shall take
effect upon such delivery or upon such later date as is specified therein;
provided, however, that:
(i) No such resignation of the Trustee that acts as the
Institutional Trustee shall be effective:
(A) until a Successor Institutional Trustee has been
appointed and has accepted such appointment by instrument executed by such
Successor Institutional Trustee and delivered to the Trust, the Sponsor,
and the resigning Institutional Trustee; or
(B) until the assets of the Trust have been completely
liquidated and the proceeds thereof distributed to the holders of the
Securities; and
(ii) no such resignation of the Trustee that acts as the Delaware
Trustee shall be effective until a Successor Delaware Trustee has been
appointed and has accepted such appointment by instrument executed by such
Successor Delaware Trustee and delivered to the Trust, the Sponsor and the
resigning Delaware Trustee.
(d) The Holders of the Common Securities shall use their best efforts
to promptly appoint a Successor Delaware Trustee or Successor Institutional
Trustee as the case may be if the Institutional Trustee or the Delaware
Trustee delivers an instrument of resignation in accordance with this
Section 5.6.
(e) If no Successor Institutional Trustee or Successor Delaware
Trustee shall have been appointed and accepted appointment as provided in
this Section 5.6 within sixty (60) days after delivery to the Sponsor and
the Trust of an instrument of resignation, the resigning Institutional
Trustee or Delaware Trustee, as applicable, may petition any court of
competent jurisdiction for appointment of a Successor Institutional Trustee
or Successor Delaware Trustee. Such court may thereupon, after prescribing
such notice, if any, as it may deem proper, appoint a Successor
Institutional Trustee or Successor Delaware Trustee, as the case may be.
(f) No Institutional Trustee or Delaware Trustee shall be liable for
the acts or omissions to act of any Successor Institutional Trustee or
Successor Delaware Trustee, as the case may be.
SECTION 5.7 Vacancies among Trustees.
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 5.1, or if the number of
Trustees is increased pursuant to Section 5.1, a vacancy shall occur. A
resolution certifying the existence of such vacancy by the Administrative
Trustees or, if there are more than two, a majority of the Administrative
Trustees, shall be conclusive evidence of the existence of such vacancy.
The vacancy shall be filled with a Trustee appointed in accordance with
Section 5.6.
SECTION 5.8 Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the duties of a Trustee
shall not operate to annul the Trust. Whenever a vacancy in the number of
Administrative Trustees shall occur, until such vacancy is filled by the
appointment of a Administrative Trustee in accordance with Section 5.6, the
Administrative Trustees in office, regardless of their number, shall have
all the powers granted to the Administrative Trustees and shall discharge
all the duties imposed upon the Administrative Trustees by this
Declaration.
SECTION 5.9 Meetings.
If there is more than one Administrative Trustee, meetings of the
Administrative Trustees shall be held from time to time upon the call of
any Administrative Trustee. Regular meetings of the Administrative
Trustees may be held at a time and place fixed by resolution of the
Administrative Trustees. Notice of any in-person meetings of the
Administrative Trustees shall be hand delivered or otherwise delivered in
writing (including by facsimile, with a hard copy by overnight courier) not
less than 48 hours before such meeting. Notice of any telephonic meetings
of the Administrative Trustees or any committee thereof shall be hand
delivered or otherwise delivered in writing (including by facsimile, with a
hard copy by overnight courier) not less than 24 hours before a meeting.
Notices shall contain a brief statement of the time, place and anticipated
purposes of the meeting. The presence (whether in person or by telephone)
of a Administrative Trustee at a meeting shall constitute a waiver of
notice of such meeting except where a Administrative Trustee attends a
meeting for the express purpose of objecting to the transaction of any
activity on the ground that the meeting has not been lawfully called or
convened. Unless provided otherwise in this Declaration, any action of the
Administrative Trustees may be taken at a meeting by vote of a majority of
the Administrative Trustees present (whether in person or by telephone) and
eligible to vote with respect to such matter, provided that a Quorum is
present, or without a meeting, by the unanimous written consent of the
Administrative Trustees. In the event there is only one Administrative
Trustee, any and all action of such Administrative Trustee shall be
evidenced by a written consent of such Administrative Trustee.
SECTION 5.10 Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of
21 his or her power for the purpose of executing any documents contemplated
in Section 3.6, including any registration statement or amendment thereto
filed with the Commission, or making any other governmental filing; and
(b) the Administrative Trustees shall have power to delegate from
time to time to such of their number or to officers of the Trust the doing
of such things and the execution of such instruments either in the name of
the Trust or the names of the Administrative Trustees or otherwise as the
Administrative Trustees may deem expedient, to the extent such delegation
is not prohibited by applicable law or contrary to the provisions of the
Trust, as set forth herein.
SECTION 5.11 Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Institutional Trustee or the Delaware
Trustee, as the case may be, may be merged or converted or with which
either may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which the Institutional Trustee or the
Delaware Trustee, as the case may be, shall be a party, or any Person
succeeding to all or substantially all the corporate trust business of the
Institutional Trustee or the Delaware Trustee, as the case may be, shall be
the successor of the Institutional Trustee or the Delaware Trustee, as the
case may be, hereunder, provided such Person 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.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions.
Holders shall receive Distributions in accordance with the applicable
terms of the relevant Holder's Securities. Distributions shall be made on
the Capital Securities and the Common Securities in accordance with the
preferences set forth in their respective terms. If and to the extent that
the Debenture Issuer makes a payment of interest (including Compounded
Interest (as defined in the Indenture) and Additional Interest (as defined
in the Indenture)), premium and/or principal on the Debentures held by the
Institutional Trustee (the amount of any such payment being a "Payment
Amount"), the Institutional Trustee shall and is directed, to the extent
funds are available for that purpose, to make a distribution (a
"Distribution") of the Payment Amount to Holders.
SECTION 6.2 Payments under Indenture or Pursuant to Direct Actions.
Any amount payable hereunder to any Holder of Capital Securities shall
be reduced by the amount of any corresponding payment such Holder (or a
Capital Security Beneficial Owner with respect to the Holder's Capital
Securities) has directly received pursuant to Section 6.4 of the Indenture
or Section 5(b) of the Securities.
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.
(a) The Administrative Trustees shall, on behalf of the Trust, issue
one class of preferred securities representing undivided beneficial
interests in the assets of the Trust having such terms as are set forth in
Annex I (the "Capital Securities") and one class of common securities
representing undivided beneficial interests in the assets of the Trust
having such terms as are set forth in Annex I (the "Common Securities").
The Trust shall issue no securities or other interests in the assets of the
Trust other than the Capital Securities and the Common Securities.
(b) The Certificates shall be signed, on behalf of the Trust, by an
Administrative Trustee. Any such signature shall be the manual signature of
any present or any future Administrative Trustee. In case any
Administrative Trustee of the Trust who shall have signed any of the
Certificates shall cease to be such a Administrative Trustee before the
Certificates so signed shall be delivered by the Trust, such Certificates
nevertheless may be delivered as though the person who signed such
Certificates had not ceased to be such Administrative Trustee; and any
Certificate may be signed, on behalf of the Trust, by such persons who, at
the actual date of execution of such Certificate shall be the
Administrative Trustees of the Trust, although at the date of the execution
and delivery of the Declaration any such person was not such an
Administrative Trustee. Certificates shall be printed, lithographed or
engraved or may be produced in any other manner as is reasonably acceptable
to the Administrative Trustees, as evidenced by their execution thereof,
and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements as the Administrative Trustees
may deem appropriate, or as may be required to comply with any law or with
any rule or regulation of any stock exchange on which the Securities may be
listed, or to conform to usage.
(c) The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and
shall not constitute a loan to the Trust.
(d) Upon issuance of the Securities as provided in this Declaration,
the Securities so issued shall be deemed to be validly issued, fully paid
and non-assessable, subject to Section 10.1(b) with respect to the Common
Securities. The issuance of the Securities as provided in this Declaration
is not subject to preemptive or other similar rights.
(e) Every Person, by virtue of having become a Holder or a Capital
Security Beneficial Owner in accordance with the terms of this Declaration,
shall be deemed to have expressly assented and agreed to the terms of, and
shall be bound by, this Declaration, the Securities Guarantees and the
Indenture.
SECTION 7.2 Paying Agent.
In the event that the Capital Securities are not in book-entry only
form, the Trust shall maintain in the Borough of Manhattan, City of New
York, State of New York, an office or agency where the Capital Securities
may be presented for payment ("Paying Agent"). The term "Paying Agent"
includes any additional paying agent. The Trust may change any Paying
Agent without prior notice to any Holder. The Trust shall notify the
Institutional Trustee of the name and address of any Agent not a party to
this Declaration. If the Trust fails to appoint or maintain another entity
as Paying Agent, the Institutional Trustee shall act as such. The Trust or
any of its Affiliates may act as Paying Agent. The Trust shall act as
Paying Agent for the Common Securities.
ARTICLE VIII
DISSOLUTION OF TRUST
SECTION 8.1 Dissolution of Trust.
(a) The Trust shall dissolve upon the earliest of:
(i) the bankruptcy of the Sponsor;
(ii) the filing of a certificate of dissolution or its equivalent
with respect to the Sponsor; the filing of a certificate of cancellation
with respect to the Trust after having obtained the consent of at least a
majority in liquidation amount of the Securities, voting together as a
single class, to file such certificate of cancellation; the revocation of
the Sponsor's charter and the expiration of ninety (90) days after the date
of revocation without a reinstatement thereof;
(iii) the entry of a decree of judicial dissolution of the
Holder of the Common Securities, the Sponsor or the Trust;
(iv) the time when all of the Securities shall have been called
for redemption and the amounts necessary for redemption thereof shall have
been paid to the Holders in accordance with the terms of the Securities;
(v) at the election of the Sponsor, after satisfaction of the
liabilities of creditors of the Trust as required by applicable law,
provided that all of the Debentures are distributed to the Holders of the
Capital Securities in liquidation of the Trust;
(vi) the time when all of the Administrative Trustees and the
Sponsor shall have consented to termination of the Trust, provided such
action is taken before the issuance of any Securities; or
(vii) the expiration of the term of the Trust, as set forth
in Section 3.14.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 8.1(a) and the completion of the winding up of the
affairs of the Trust, the Trustees shall file a certificate of cancellation
with the Secretary of State of the State of Delaware.
(c) The provisions of Section 3.9 and Article X shall survive the
termination of the Trust.
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities.
(a) Securities may only be transferred, in whole or in part, in
accordance with the terms and conditions set forth in this Declaration and
in the terms of the Securities. Any transfer or purported transfer of any
Security not made in accordance with this Declaration shall be null and
void.
(b) Subject to this Article IX, Capital Securities shall be freely
transferable.
(c) Subject to this Article IX, the Sponsor and any Related Party may
only transfer Common Securities to the Sponsor or a Related Party of the
Sponsor; provided that, any such transfer is subject to the condition
precedent that the transferor obtain the written opinion of nationally
recognized independent counsel experienced in such matters that such
transfer would not cause more than an insubstantial risk that:
(i) the Trust would not be classified for United States federal
income tax purposes as a grantor trust; and
(ii) the Trust would be an Investment Company or the transferee
would become an Investment Company.
SECTION 9.2 Transfer of Certificates.
The Administrative Trustees shall provide for the registration of
Certificates and of transfers of Certificates, which will be effected
without charge but only upon payment (with such indemnity as the
Administrative Trustees may require) in respect of any tax or other
governmental charges that may be imposed in relation to it. Upon surrender
for registration of transfer of any Certificate, the Administrative
Trustees shall cause one or more new Certificates to be issued in the name
of the designated transferee or transferees. Every Certificate surrendered
for registration of transfer shall be accompanied by a written instrument
of transfer in form satisfactory to the Administrative Trustees duly
executed by the Holder or such Holder's attorney duly authorized in
writing. Each Certificate surrendered for registration of transfer shall
be canceled by the Administrative Trustees. A transferee of a Certificate
shall be entitled to the rights and subject to the obligations of a Holder
hereunder upon the receipt by such transferee of a Certificate. By
acceptance of a Certificate, each transferee shall be deemed to have agreed
to be bound by this Declaration.
SECTION 9.3 Deemed Security Holders.
The Trustees may treat the Person in whose name any Certificate
shall be registered on the books and records of the Trust as the sole
holder of such Certificate and of the Securities represented by such
Certificate for purposes of receiving Distributions and for all other
purposes whatsoever and, accordingly, shall not be bound to recognize any
equitable or other claim to or interest in such Certificate or in the
Securities represented by such Certificate on the part of any Person,
whether or not the Trust shall have actual or other notice thereof.
SECTION 9.4 Book Entry Interests.
Unless otherwise specified in the terms of the Capital Securities, the
Capital Securities Certificates, on original issuance, will be issued in
the form of one or more, fully registered, global Capital Security
Certificates (each, a "Global Certificate"), to be delivered to The
Depository Trust Company, the initial Clearing Agency, by, or on behalf of,
the Trust. Such Global Certificate(s) shall initially be registered on the
books and records of the Trust in the name of Cede & Co., the nominee of
The Depository Trust Company, and no Capital Security Beneficial Owner will
receive a definitive Capital Security Certificate representing such Capital
Security Beneficial Owner's interests in such Global Certificate(s), except
as provided in Section 9.7. Unless and until definitive, fully registered
Capital Security Certificates (the "Definitive Capital Security
Certificates") have been issued to the Capital Security Beneficial Owners
pursuant to Section 9.7:
(a) the provisions of this Section 9.4 shall be in full force
and effect;
(b) the Trust and the Trustees shall be entitled to deal with
the Clearing Agency for all purposes of this Declaration (including the
payment of Distributions on the Global Certificate(s) and receiving
approvals, votes or consents hereunder) as the Holder of the Capital
Securities and the sole holder of the Global Certificate(s) and shall have
no obligation to the Capital Security Beneficial Owners;
(c) to the extent that the provisions of this Section 9.4
conflict with any other provisions of this Declaration, the provisions of
this Section 9.4 shall control; and
(d) the rights of the Capital Security Beneficial Owners shall
be exercised only through the Clearing Agency and shall be limited to those
established by law and agreements between such Capital Security Beneficial
Owners and the Clearing Agency and/or the Clearing Agency Participants.
The Depository Trust Company will make book entry transfers among the
Clearing Agency Participants and receive and transmit payments of
Distributions on the Global Certificate(s) to such Clearing Agency
Participants.
SECTION 9.5 Notices to Clearing Agency.
Whenever a notice or other communication to the Capital Security
Holders is required under this Declaration, unless and until Definitive
Capital Security Certificates shall have been issued to the Capital
Security Beneficial Owners pursuant to Section 9.7, the Administrative
Trustees shall give all such notices and communications specified herein to
be given to the Capital Security Holders to the Clearing Agency, and shall
have no notice obligations to the Capital Security Beneficial Owners.
SECTION 9.6 Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as
securities depositary with respect to the Capital Securities, the
Administrative Trustees may, in their sole discretion, appoint a successor
Clearing Agency with respect to such Capital Securities.
SECTION 9.7 Definitive Capital Security Certificates.
If:
(a) a Clearing Agency elects to discontinue its services as
securities depositary with respect to the Capital Securities and a
successor Clearing Agency is not appointed within ninety (90) days after
such discontinuance pursuant to Section 9.6; or
(b) the Administrative Trustees elect, after consultation with
the Sponsor, to terminate the book entry system through the Clearing Agency
with respect to the Capital Securities, then:
(i) Definitive Capital Security Certificates shall be prepared
by the Administrative Trustees, on behalf of the Trust, with respect to
such Capital Securities; and
(ii) upon surrender of the Global Certificate(s) by the Clearing
Agency, accompanied by registration instructions, the Administrative
Trustees shall cause Definitive Capital Security Certificates to be
delivered to Capital Security Beneficial Owners in accordance with the
instructions of the Clearing Agency. Neither the Trustees nor the Trust
shall be liable for any delay in delivery of such instructions and each of
them may conclusively rely on, and shall be protected in relying on, said
instructions of the Clearing Agency. The Definitive Capital Security
Certificates shall be printed, lithographed or engraved or may be produced
in any other manner as is reasonably acceptable to the Administrative
Trustees, as evidenced by their execution thereof, and may have such
letters, numbers or other marks of identification or designation and such
legends or endorsements as the Administrative Trustees may deem
appropriate, or as may be required to comply with any law or with any rule
or regulation made pursuant thereto, or to conform to usage.
SECTION 9.8 Mutilated, Destroyed, Lost or Stolen Certificates.
If:
(a) any mutilated Certificates should be surrendered to the
Administrative Trustees, or if the Administrative Trustees shall receive
evidence to their satisfaction of the destruction, loss or theft of any
Certificate; and
(b) there shall be delivered to the Administrative Trustees such
security or indemnity as may be required by them to keep each of them
harmless;
then, in the absence of notice that such Certificate shall have been
acquired by a bona fide purchaser, any Administrative Trustee, on behalf of
the Trust, shall execute and deliver, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Certificate, a new Certificate of
like denomination. In connection with the issuance of any new Certificate
under this Section 9.8, the Administrative Trustees may require the payment
of a sum sufficient to cover any tax or other governmental charge that may
be imposed in connection therewith. Any duplicate Certificate issued
pursuant to this Section shall constitute conclusive evidence of an
ownership interest in the relevant Securities, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at
any time.
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability.
(a) Except as expressly set forth in this Declaration, the Securities
Guarantees and the terms of the Securities, the Sponsor shall not be:
(i) personally liable for the return of any portion of the
capital contributions (or any return thereon) of the Holders of the
Securities which shall be made solely from assets of the Trust; and
(ii) required to pay to the Trust or to any Holder of Securities
any deficit upon termination of the Trust or otherwise.
(b) The Holder of the Common Securities shall be liable for all of
the debts and obligations of the Trust (other than with respect to the
Securities) to the extent not satisfied out of the Trust's assets.
(c) Pursuant to "S" 3803(a) of the Business Trust Act, the Holders of
the Capital Securities shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware.
SECTION 10.2 Exculpation.
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Trust or any Covered Person for any loss,
damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith, on behalf of the Trust,
and in a manner such Indemnified Person reasonably believed to be within
the scope of the authority conferred on such Indemnified Person by this
Declaration or by law, except that an Indemnified Person shall be liable
for any such loss, damage or claim incurred by reason of such Indemnified
Person's gross negligence (or in the case of the Institutional Trustee,
negligence, subject to the provisions of Section 3.9) or willful misconduct
with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters
the Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable
care by or on behalf of the Trust, including information, opinions, reports
or statements as to the value and amount of the assets, liabilities,
profits, losses, or any other facts pertinent to the existence and amount
of assets from which Distributions to Holders of Securities might properly
be paid.
SECTION 10.3 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified Person
has duties (including fiduciary duties) and liabilities relating thereto to
the Trust or to any other Covered Person, an Indemnified Person acting
under this Declaration shall not be liable to the Trust or to any other
Covered Person for its good faith reliance on the provisions of this
Declaration. The provisions of this Declaration, to the extent that they
restrict the duties and liabilities of an Indemnified Person otherwise
existing at law or in equity (other than the duties imposed on the
Institutional Trustee under the Trust Indenture Act), are agreed by the
parties hereto to replace such other duties and liabilities of such
Indemnified Person.
(b) Unless otherwise expressly provided herein or required by
applicable law:
(i) whenever a conflict of interest exists or arises between an
Indemnified Person and Covered Persons; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified Person shall
act in a manner that is, or provide terms that are, fair and reasonable to
the Trust or any Holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such
action or provide such terms, considering in each case the relative
interest of each party (including its own interest) to such conflict,
agreement, transaction or situation and the benefits and burdens relating
to such interests, any customary or accepted industry practices, and any
applicable generally accepted accounting practices or principles. In the
absence of bad faith by the Indemnified Person, the resolution, action or
term so made, taken or provided by the Indemnified Person shall not
constitute a breach of this Declaration or any other agreement contemplated
herein or of any duty or obligation of the Indemnified Person at law or in
equity or otherwise.
(c) Unless required by applicable law, whenever in this Declaration
an Indemnified Person is permitted or required to make a decision:
(i) in its "discretion" or under a grant of similar authority,
the Indemnified Person shall be entitled to consider such interests and
factors as it desires, including its own interests, and shall have no duty
or obligation to give any consideration to any interest of or factors
affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and shall not be
subject to any other or different standard imposed by this Declaration or
by applicable law.
SECTION 10.4 Indemnification.
(a)(i) The Debenture Issuer shall indemnify, to the full
extent permitted by law, any Company Indemnified Person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
the Trust) by reason of the fact that he is or was a Company Indemnified
Person against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the Trust, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a pleas of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the Company
Indemnified Person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Trust, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(ii) The Debenture Issuer shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is a party or
is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Trust to procure a judgment in its
favor by reason of the fact that he is or was a Company Indemnified Person
against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of such action
or suit if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Trust and except that no
such indemnification shall be made in respect of any claim, issue or matter
as to which such Company Indemnified Person shall have been adjudged to be
liable to the Trust unless and only to the extent that the Court of
Chancery of Delaware or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which such
Court of Chancery or such other court shall deem proper.
(iii) To the extent that a Company Indemnified Person shall
be successful on the merits or otherwise (including dismissal of an action
without prejudice or the settlement of an action without admission of
liability) in defense of any action, suit or proceeding referred to in
paragraphs (i) and (ii) of this Section 10.4(a), or in defense of any
claim, issue or matter therein, he shall be indemnified, to the full extent
permitted by law, against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
(iv) Any indemnification under paragraphs (i) and (ii) of
this Section 10.4(a) (unless ordered by a court) shall be made by the
Debenture Issuer only as authorized in the specific cause upon a
determination that indemnification of the Company Indemnified Person is
proper in the circumstances because he has met the applicable standard of
conduct set forth in paragraphs (i) and (ii). Such determination shall be
made (1) by the Administrative Trustees by a majority vote of a quorum
consisting of such Administrative Trustees who were not parties to such
action, suit or proceedings, (2) if such a quorum is not obtainable, or,
even if obtainable, if a quorum of disinterested Administrative Trustees so
directs, by independent legal counsel in a written opinion, or (3) by the
Common Security Holder of the Trust.
(v) Expenses (including attorneys' fees) incurred by a Company
Indemnified Person in defending a civil, criminal, administrative or
investigative action, suit or proceeding referred to in paragraphs (i) and
(ii) of this Section 10.4(a) shall be paid by the Debenture Issuer in
advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such Company Indemnified
Person to repay such amount if it shall ultimately be determined that he is
not entitled to be indemnified by the Debenture Issuer as authorized in
this Section 10.4(a). Notwithstanding the foregoing, no advance shall be
made by the Debenture Issuer if a determination is reasonably and promptly
made (i) by the Administrative Trustees by a majority vote of a quorum of
disinterested Administrative Trustees, (ii) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of disinterested
Administrative Trustees so directs, by independent legal counsel in a
written opinion or (iii) the Common Security Holder of the Trust, that,
based upon the facts known to the Administrative Trustees, counsel or the
Common Security Holder at the time such determination is made, such Company
Indemnified Person acted in bad faith or in a manner that such person did
not believe to be in or not opposed to the best interests of the Trust, or,
with respect to any criminal proceeding, that such Company Indemnified
Person believed or had reasonable cause to believe his conduct was
unlawful. In no event shall any advance be made in instances where the
Administrative Trustees, independent legal counsel or the Common Security
Holder reasonably determine that such person deliberately breached his duty
to the Trust or its Common or Capital Security Holders.
(vi) the indemnification and advancement of expenses provided by,
or granted pursuant to, the other paragraphs of this Section 10.4(a) shall
not be deemed exclusive of any other rights to which those seeking
indemnification and advancement of expenses may be entitled under any
agreement, vote of stockholders or disinterested directors of the Debenture
Issuer or Capital Security Holders of the Trust or otherwise, both as to
action in his official capacity and as to action in another capacity while
holding such office. All rights to indemnification under this Section
10.4(a) shall be deemed to be provided by a contract between the Debenture
Issuer and each Company Indemnified Person who serves in such capacity at
any time while this Section 10.4(a) is in effect. Any repeal or
modification of this Section 10.4(a) shall not affect any rights or
obligations then existing.
(vii) the Debenture Issuer or the Trust may purchase and
maintain insurance on behalf of any person who is or was a Company
Indemnified Person against any liability asserted against him and incurred
by him in any such capacity, or arising out of his status as such, whether
or not the Debenture Issuer would have the power to indemnify him against
such liability under the provisions of this Section 10.4(a).
(viii) For purposes of this Section 10.4(a), references to
"the Trust" shall include, in addition to the resulting or surviving
entity, any constituent entity (including any constituent of a constituent)
absorbed in a consolidation or merger, so that any person who is or was a
director, trustee, officer or employee of such constituent entity, or is or
was serving at the request of such constituent entity as a director,
trustee, officer, employee or agent of another entity, shall stand in the
same position under the provisions of this Section 10.4(a) with respect to
the resulting or surviving entity as he would have with respect to such
constituent entity if its separate existence had continued.
(ix) The indemnification and advancement of expenses provided by,
or granted pursuant to, this Section 10.4(a) shall, unless otherwise
provided when authorized or ratified, continue as to a person who has
ceased to be a Company Indemnified Person and shall inure to the benefit of
the heirs, executors and administrators of such a person.
(b) The Sponsor agrees to indemnify the (i) Institutional Trustee,
(ii) the Delaware Trustee, (iii) any Affiliate of the Institutional Trustee
and the Delaware Trustee, and (iv) any officers, directors, shareholders,
members, partners, employees, representatives, custodians, nominees or
agents of the Institutional Trustee and the Delaware Trustee (each of the
Persons in (i) through (iv) being referred to as a "Fiduciary Indemnified
Person") for, and to hold each Fiduciary Indemnified Person harmless
against, any loss, liability, taxes or expense incurred without negligence
or bad faith on its part, arising out of or in connection with the
acceptance or administration or the trust or trusts hereunder, including
the costs and expenses (including reasonable legal fees and expenses) of
defending itself against or investigating any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder. The obligation to indemnify as set forth in this Section
10.4(b) shall survive the satisfaction and discharge of this Declaration.
SECTION 10.5 Outside Businesses.
Any Covered Person, the Sponsor, the Delaware Trustee and the
Institutional Trustee may engage in or possess an interest in other
business ventures of any nature or description, independently or with
others, similar or dissimilar to the business of the Trust, and the Trust
and the Holders of Securities shall have no rights by virtue of this
Declaration in and to such independent ventures or the income or profits
derived therefrom, and the pursuit of any such venture, even if competitive
with the business of the Trust, shall not be deemed wrongful or improper.
No Covered Person, the Sponsor, the Delaware Trustee or the Institutional
Trustee shall be obligated to present any particular investment or other
opportunity to the Trust even if such opportunity is of a character that,
if presented to the Trust, could be taken by the Trust, and any Covered
Person, the Sponsor, the Delaware Trustee and the Institutional Trustee
shall have the right to take for its own account (individually or as a
partner or fiduciary) or to recommend to others any such particular
investment or other opportunity. Any Covered Person, the Delaware Trustee
and the Institutional Trustee may engage or be interested in any financial
or other transaction with the Sponsor or any Affiliate of the Sponsor, or
may act as depositary for, trustee or agent for, or act on any committee or
body of holders of, securities or other obligations of the Sponsor or its
Affiliates.
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the calendar
year, or such other year as is required by the Code.
SECTION 11.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust, the
Administrative Trustees shall keep, or cause to be kept, full books of
account, records and supporting documents, which shall reflect in
reasonable detail, each transaction of the Trust. The books of account
shall be maintained on the accrual method of accounting, in accordance with
generally accepted accounting principles, consistently applied. The Trust
shall use the accrual method of accounting for United States federal income
tax purposes. The books of account and the records of the Trust shall be
examined by and reported upon as of the end of each Fiscal Year of the
Trust by a firm of independent certified public accountants selected by the
Administrative Trustees.
(b) The Administrative Trustees shall cause to be prepared and
delivered to each of the Holders of Securities, within ninety (90) days
after the end of each Fiscal Year of the Trust, annual financial statements
of the Trust, including a balance sheet of the Trust as of the end of such
Fiscal Year, and the related statements of income or loss.
(c) The Administrative Trustees shall cause to be duly prepared and
delivered to each of the Holders of Securities any annual United States
federal income tax information statement, required by the Code, containing
such information with regard to the Securities held by each Holder as is
required by the Code and the Treasury Regulations. Notwithstanding any
right under the Code to deliver any such statement at a later date, the
Administrative Trustees shall endeavor to deliver all such statements
within thirty (30) days after the end of each Fiscal Year of the Trust.
(d) The Administrative Trustees shall cause to be duly prepared and
filed with the appropriate taxing authority, an annual United States
federal income tax return, on a Form 1041 or such other form required by
United States federal income tax law, and any other annual income tax
returns required to be filed by the Administrative Trustees, on behalf of
the Trust, with any state or local taxing authority.
SECTION 11.3 Banking.
The Trust shall maintain one or more bank accounts in the name and for
the sole benefit of the Trust; provided, however, that all payments of
funds in respect of the Debentures held by the Institutional Trustee shall
be made directly to the Institutional Trustee Account and no other funds of
the Trust shall be deposited in the Institutional Trustee Account. The
sole signatories for such accounts shall be designated by the
Administrative Trustees; provided, however, that the Institutional Trustee
shall designate the signatories for the Institutional Trustee Account.
SECTION 11.4 Withholding.
The Trust and the Administrative Trustees shall comply with all
withholding requirements under United States federal, state and local law.
The Trust shall request, and the Holders shall provide to the Trust, such
forms or certificates as are necessary to establish an exemption from
withholding with respect to each Holder, and any representations and forms
as shall reasonably be requested by the Trust to assist it in determining
the extent of, and in fulfilling, its withholding obligations. The
Administrative Trustees shall file required forms with applicable
jurisdictions and, unless an exemption from withholding is properly
established by a Holder, shall remit amounts withheld with respect to the
Holder to applicable jurisdictions. To the extent that the Trust is
required to withhold and pay over any amounts to any authority with respect
to distributions or allocations to any Holder, the amount withheld shall be
deemed to be a distribution in the amount of the withholding to the Holder.
In the event of any claimed over withholding, Holders shall be limited to
an action against the applicable jurisdiction. If the amount required to
be withheld was not withheld from actual Distributions made, the Trust may
reduce subsequent Distributions by the amount of such withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments.
(a) Except as otherwise provided in this Declaration or by any
applicable terms of the Securities, this Declaration may only be amended by
a written instrument approved and executed by:
(i) the Administrative Trustees (or, if there are more than two
Administrative Trustees a majority of the Administrative Trustees);
(ii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Institutional Trustee, the Institutional
Trustee; and
(iii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee, the Delaware Trustee.
(b) No amendment of this Declaration shall be made, and any such
purported amendment shall be void and ineffective:
(i) unless, in the case of any proposed amendment, the
Institutional Trustee shall have first received an Officers' Certificate
from each of the Trust and the Sponsor that such amendment is permitted by,
and conforms to, the terms of this Declaration (including the terms of the
Securities);
(ii) unless, in the case of any proposed amendment which affects
the rights, powers, duties, obligations or immunities of the Institutional
Trustee or the Delaware Trustee, the Institutional Trustee or the Delaware
Trustee, as the case may be, shall have first received:
(A) an Officers' Certificate from each of the Trust and the
Sponsor that such amendment is permitted by, and conforms to, the terms of
this Declaration (including the terms of the Securities); and
(B) an opinion of counsel (who may be counsel to the
Sponsor or the Trust) that such amendment is permitted by, and conforms to,
the terms of this Declaration (including the terms of the Securities); and
(iii) to the extent the result of such amendment would be to:
(A) cause the Trust to fail to continue to be classified
for purposes of United States federal income taxation as a grantor trust;
(B) reduce or otherwise materially adversely affect the
powers of the Institutional Trustee in contravention of the Trust Indenture
Act; or
(C) cause the Trust to be deemed to be an Investment
Company required to be registered under the Investment Company Act.
(c) At such time after the Trust has issued any Securities that
remain outstanding, any amendment that would materially adversely affect
the rights, privileges or preferences of any Holder of Securities may be
effected only with such additional requirements as may be set forth in the
terms of such Securities.
(d) Section 9.1(c) and this Section 12.1 shall not be amended without
the consent of all of the Holders of the Securities.
(e) Article IV shall not be amended without the consent of the
Holders of a Majority in liquidation amount of the Common Securities.
(f) The rights of the holders of the Common Securities under
Article V to increase or decrease the number of, and appoint and remove
Trustees shall not be amended without the consent of the Holders of a
Majority in liquidation amount of the Common Securities.
(g) Notwithstanding Section 12.1(c), this Declaration may be amended
without the consent of the Holders of the Securities to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this Declaration that
may be defective or inconsistent with any other provision of this
Declaration;
(iii) add to the covenants, restrictions or obligations of
the Sponsor;
(iv) to conform to any change in Rule 3a-7 or written change in
interpretation or application of Rule 3a-7 by any legislative body, court,
government agency or regulatory authority which amendment does not have a
material adverse effect on the right, preferences or privileges of the
Holders of Securities; and
(v) to modify, eliminate and add to any provision of this
Declaration, provided that such modification, elimination, or addition
would not adversely affect the rights, privileges, or preferences of any
Holder of the Securities.
SECTION 12.2 Meetings of the Holders of Securities; Action by Written
Consent.
(a) Meetings of the Holders of any class of Securities may be called
at any time by the Administrative Trustees (or as provided in the terms of
the Securities) to consider and act on any matter on which Holders of such
class of Securities are entitled to act under the terms of this
Declaration, the terms of the Securities or the rules of any stock exchange
on which the Capital Securities may be listed or admitted for trading. The
Administrative Trustees shall call a meeting of the Holders of such class
if directed to do so by the Holders of at least 10% in liquidation amount
of such class of Securities. Such direction shall be given by delivering to
the Administrative Trustees one or more calls in a writing stating that the
signing Holders of Securities wish to call a meeting and indicating the
general or specific purpose for which the meeting is to be called. Any
Holders of Securities calling a meeting shall specify in writing the
Certificates held by the Holders of Securities exercising the right to call
a meeting, and only those Securities specified shall be counted for
purposes of determining whether the required percentage set forth in the
second sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings of Holders of
Securities:
(i) notice of any such meeting shall be given to all the Holders
of Securities having a right to vote at such meeting at least seven (7)
days and not more than sixty (60) days before the date of such meeting.
Whenever a vote, consent or approval of the Holders of Securities is
permitted or required under this Declaration or the rules of any stock
exchange on which the Capital Securities may be listed or admitted for
trading, such vote, consent or approval may be given at a meeting of the
Holders of Securities. Any action that may be taken at a meeting of the
Holders of Securities may be taken without a meeting if a consent in
writing setting forth the action so taken is signed by the Holders of
Securities owning not less than the minimum amount of Securities in
liquidation amount that would be necessary to authorize or take such action
at a meeting at which all Holders of Securities having a right to vote
thereon were present and voting. Prompt notice of the taking of action
without a meeting shall be given to the Holders of Securities entitled to
vote who have not consented in writing. The Administrative Trustees may
specify that any written ballot submitted to the Security Holder for the
purpose of taking any action without a meeting shall be returned to the
Trust within the time specified by the Administrative Trustees;
(ii) each Holder of a Security may authorize any Person to act
for it by proxy on all matters in which a Holder of Securities is entitled
to participate, including waiving notice of any meeting, or voting or
participating at a meeting. No proxy shall be valid after the expiration of
eleven (11) months from the date thereof unless otherwise provided in the
proxy. Every proxy shall be revocable at the pleasure of the Holder of
Securities executing it. Except as otherwise provided herein, all matters
relating to the giving, voting or validity of proxies shall be governed by
the General Corporation Law of the State of Delaware relating to proxies,
and judicial interpretations thereunder, as if the Trust were a Delaware
corporation and the Holders of the Securities were stockholders of a
Delaware corporation;
(iii) each meeting of the Holders of the Securities shall be
conducted by the Administrative Trustees or by such other Person that the
Administrative Trustees may designate; and
(iv) unless the Business Trust Act, this Declaration, the terms
of the Securities, the Trust Indenture Act or the listing rules of any
stock exchange on which the Capital Securities are then listed or trading
otherwise provides, the Administrative Trustees, in their sole discretion,
shall establish all other provisions relating to meetings of Holders of
Securities, including notice of the time, place or purpose of any meeting
at which any matter is to be voted on by any Holders of Securities, waiver
of any such notice, action by consent without a meeting, the establishment
of a record date, quorum requirements, voting in person or by proxy or any
other matter with respect to the exercise of any such right to vote.
ARTICLE XIII
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Institutional Trustee and
Delaware Trustee.
The Trustee which acts as initial Institutional Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration,
and each Successor Institutional Trustee represents and warrants to the
Trust and the Sponsor at the time of the Successor Institutional Trustee's
acceptance of its appointment as Institutional Trustee that:
(a) the Institutional Trustee is a Delaware banking association with
trust powers, duly organized, validly existing and in good standing under
the laws of the State of Delaware, with trust power and authority to
execute and deliver, and to carry out and perform its obligations under the
terms of, the Declaration;
(b) the Institutional Trustee satisfies the requirements set forth in
Section 5.3(a);
(c) the execution, delivery and performance by the Institutional
Trustee of the Declaration have been duly authorized by all necessary
corporate action on the part of the Institutional Trustee. The Declaration
has been duly executed and delivered by the Institutional Trustee, and it
constitutes a legal, valid and binding obligation of the Institutional
Trustee, enforceable against it in accordance with its terms, subject to
applicable bankruptcy, reorganization, moratorium, insolvency, and other
similar laws affecting creditors' rights generally and to general
principles of equity and the discretion of the court (regardless of whether
the enforcement of such remedies is considered in a proceeding in equity or
at law);
(d) the execution, delivery and performance of the Declaration by the
Institutional Trustee does not conflict with or constitute a breach of the
Articles of Organization or By-laws of the Institutional Trustee; and
(e) no consent, approval or authorization of, or registration with or
notice to, any State or Federal banking authority is required for the
execution, delivery or performance by the Institutional Trustee, of the
Declaration.
SECTION 13.2 Representations and Warranties of Delaware Trustee.
The Trustee that acts as initial Delaware Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration,
and each Successor Delaware Trustee represents and warrants to the Trust
and the Sponsor at the time of the Successor Delaware Trustee's acceptance
of its appointment as Delaware Trustee, that:
(a) the Delaware Trustee is a Delaware banking corporation with trust
powers, duly organized, validly existing and in good standing under the
laws of the State of Delaware, with trust power and authority to execute
and deliver, and to carry out and perform its obligations under the terms
of, the Declaration;
(b) the Delaware Trustee has been authorized to perform its
obligations under the Certificate of Trust and the Declaration. The
Declaration under Delaware law constitutes a legal, valid and binding
obligation of the Delaware Trustee, enforceable against it in accordance
with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency and other similar laws affecting creditors' rights
generally and to general principles of equity and the discretion of the
court (regardless of whether the enforcement of such remedies is considered
in a proceeding in equity or at law);
(c) the execution, delivery and performance of the Declaration by the
Delaware Trustee does not conflict with or constitute a breach of the
Articles of Organization or By-laws of the Delaware Trustee;
(d) no consent, approval or authorization of, or registration with or
notice to, any state or federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee, of the
Declaration; and
(e) the Delaware Trustee has its principal place of business in the
State of Delaware.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices.
All notices provided for in this Declaration shall be in writing, duly
signed by the party giving such notice, and shall be delivered, telecopied
or mailed by registered or certified mail, as follows:
(a) if given to the Trust, in care of the Administrative Trustees at
the Trust's mailing address set forth below (or such other address as the
Trust may give notice of to the Holders of the Securities):
ARVIN CAPITAL I
c/o Arvin Industries, Inc.
One Noblitt Plaza, Box 3000
Columbus, Indiana 47202
Attention: Administrative Trustees
(b) if given to the Institutional Trustee or the Delaware Trustee, at
the mailing address set forth below (or such other address as the
Institutional Trustee or the Delaware Trustee may give notice of to the
Holders of the Securities):
WILMINGTON TRUST COMPANY
Rodney Square North 1100
North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
(c) if given to the Holder of the Common Securities, at the mailing
address of the Sponsor set forth below (or such other address as the Holder
of the Common Securities may give notice to the Trust):
ARVIN INDUSTRIES, INC.
One Noblitt Plaza, Box 3000
Columbus, Indiana 47202
Attention: Treasurer
(d) if given to any other Holder, at the address set forth on the
books and records of the Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no
notice was given, such notice or other document shall be deemed to have
been delivered on the date of such refusal or inability to deliver.
SECTION 14.2 Governing Law.
This Declaration and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the laws of the State of
Delaware and all rights and remedies shall be governed by such laws without
regard to principles of conflict of laws.
SECTION 14.3 Intention of the Parties.
It is the intention of the parties hereto that the Trust be classified
for United States federal income tax purposes as a grantor trust. The
provisions of this Declaration shall be interpreted to further this
intention of the parties.
SECTION 14.4 Headings.
Headings contained in this Declaration are inserted for convenience of
reference only and do not affect the interpretation of this Declaration or
any provision hereof.
SECTION 14.5 Successors and Assigns
Whenever in this Declaration any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the
Sponsor and the Trustees shall bind and inure to the benefit of their
respective successors and assigns, whether so expressed.
SECTION 14.6 Partial Enforceability.
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the
remainder of this Declaration, or the application of such provision to
Persons or circumstances other than those to which it is held invalid,
shall not be affected thereby.
SECTION 14.7 Counterparts.
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each party hereto to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and
they shall have the same force and effect as though all of the signers had
signed a single signature page
Section 14.8 Incorporation by Reference of Annex I
The terms and provisions of Annex I, attached hereto, are hereby
incorporated by reference in their entirety into this Declaration.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN
BY OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE
OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE HOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS DECLARATION AND
AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE SECURITIES
GUARANTEES AND THE INDENTURE AND SHALL CONSTITUTE THE AGREEMENT OF THE
TRUST, THE DEPOSITARY OR ITS NOMINEE, THE TRUSTEES, SUCH HOLDER AND SUCH
OTHERS THAT THE TERMS AND PROVISIONS OF THIS DECLARATION SHALL BE BINDING,
OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST, THE DEPOSITARY OR ITS
NOMINEE, THE TRUSTEES, SUCH HOLDER AND SUCH OTHERS.
IN WITNESS WHEREOF, the undersigned have caused these presents to be
executed as of the day and year first above written.
ARVIN INDUSTRIES, INC.
as Sponsor
By: /s/ Richard A. Smith
Name: Richard A. Smith
Title: Vice President-Finance and
Chief Financial Officer
WILMINGTON TRUST COMPANY
not in its individual capacity but
solely as Institutional Trustee and
Delaware Trustee
By: /s/ James P. Lawler
Name: James P. Lawler
Title: Vice President
/s/ Richard A. Smith
Richard A. Smith
not in his individual capacity
but solely as Administrative Trustee
/s/ A.R. Sales
A.R. Sales
not in his individual capacity
but solely as Administrative Trustee
ANNEX I
TERMS OF
9.50% CAPITAL SECURITIES
9.50% COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Declaration of
Trust, dated as of January 28, 1997 (as amended from time to time, the
"Declaration"), the designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Capital Securities and
the Common Securities are set out below (each capitalized term used but not
defined herein has the meaning set forth in the Declaration or, if not
defined in such Declaration, as defined in the Prospectus referred to
below):
1. Designation and Number.
(a) Capital Securities. One hundred thousand (100,000) Capital
Securities of the Trust with an aggregate liquidation amount with respect
to the assets of the Trust of one hundred million dollars ($100,000,000)
and a liquidation amount with respect to the assets of the Trust of $1,000
per Capital Security, are hereby designated, for the purposes of
identification, only as "9.50% Capital Securities (the "Capital
Securities"). The Capital Security Certificates evidencing the Capital
Securities shall be substantially in the form of Exhibit A-1 to the
Declaration, with such changes and additions thereto or deletions therefrom
as may be required by ordinary usage, custom or practice.
(b) Common Securities. Three thousand one hundred (3,100) Common
Securities of the Trust with an aggregate liquidation amount with respect
to the assets of the Trust of three million one hundred thousand dollars
($3,100,000) and a liquidation amount with respect to the assets of the
Trust of $1,000 per Common Security, are hereby designated, for the
purposes of identification only, as "9.50% Common Securities" (the "Common
Securities"). The Common Security Certificates evidencing the Common
Securities shall be substantially in the form of Exhibit A-2 to the
Declaration, with such changes and additions thereto or deletions therefrom
as may be required by ordinary usage, custom or practice.
2. Distributions.
(a) Distributions payable on each Security will be fixed at a rate
per annum of 9.50% (the "Coupon Rate") of the stated liquidation amount of
$1,000 per Security, such rate being the rate of interest payable on the
Debentures to be held by the Institutional Trustee. Distributions in
arrears for more than one semi-annual Distribution period will bear
interest thereon from and including the last day of such semi-annual
Distribution period compounded semi-annually at the Coupon Rate (to the
extent permitted by applicable law). The term "Distributions" as used
herein includes such cash distributions and any such interest payable
unless otherwise stated. A Distribution is payable only to the extent that
payments are made in respect of the Debentures held by the Institutional
Trustee and to the extent the Institutional Trustee has funds available
therefor. The amount of Distributions payable for any period will be
computed for any full semi-annual Distribution period on the basis of a 360-
day year of twelve 30-day months, and for any period shorter than a full
semi-annual Distribution period for which Distributions are computed,
Distributions will be computed on the basis of the actual number of days
elapsed.
(b) Distributions on the Securities will be cumulative, will accrue
from January 28, 1997 and will be payable semi-annually in arrears, on
February 1 and August 1 of each year, commencing August 1, 1997, except as
otherwise described below. The Debenture Issuer has the right under the
Indenture to defer payments of interest by extending the interest payment
period from time to time on the Debentures for a period not exceeding ten
(10) consecutive semi-annual interest payment periods (each an "Extension
Period"), during which Extension Period no interest shall be due and
payable on the Debentures, provided that no Extension Period shall last
beyond the
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date of maturity of the Debentures. There may be multiple Extension Periods
of varying lengths during the term of the Debentures. As a consequence of
such deferral, Distributions will also be deferred. Despite such deferral,
semiannual Distributions will continue to accrue with interest thereon (to
the extent permitted by applicable law) at the Coupon Rate compounded semi-
annually during any such Extension Period. Prior to the termination of any
such Extension Period, the Debenture Issuer may further extend such
Extension Period; provided that such Extension Period together with all
such
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previous and further extensions thereof may not exceed ten (10) consecutive
semi-annual interest payment periods or extend beyond the maturity date of
the Debentures. Payments of accrued Distributions will be payable to
Holders as they appear on the books and records of the Trust on the first
record date after the end of the Extension Period. Upon the termination of
any Extension Period and the payment of all amounts then due, the Debenture
Issuer may commence a new Extension Period, subject to the above
requirements.
(c) Distributions on the Securities will be payable to the Holders
thereof as they appear on the books and records of the Trust on the
relevant record dates. While the Capital Securities remain in book-entry
only form, the relevant record dates shall be one Business Day prior to the
relevant payment dates which payment dates correspond to the interest
payment dates on the Debentures. Subject to any applicable laws and
regulations and the provisions of the Declaration, each such payment in
respect of the Capital Securities will be made as described under the
heading "Description of the Capital Securities -- Book-Entry Issuance - The
Depository Trust Company" in the Prospectus dated January 23, 1997 (the
"Prospectus"), included in the Registration Statement on Form S-3 of the
Sponsor and the Trust. The relevant record dates for the Common Securities
shall be the same record dates as for the Capital Securities. If the
Capital Securities shall not continue to remain in book-entry only form,
the relevant record dates for the Capital Securities shall conform to the
rules of any securities exchange on which the securities are listed and, if
none, shall be selected by the Administrative Trustees, which dates shall
be at least one Business Day but fewer than sixty (60) Business Days before
the relevant payment dates, which payment dates correspond to the interest
payment dates on the Debentures. Distributions payable on any Securities
that are not punctually paid on any Distribution payment date, as a result
of the Debenture Issuer having failed to make a payment under the
Debentures, will cease to be payable to the Person in whose name such
Securities are registered on the relevant record date, and such defaulted
Distribution will instead be payable to the Person in whose name such
Securities are registered on the special record date or other specified
date determined in accordance with the Indenture. If any date on which
Distributions are payable on the Securities is not a Business Day, then
payment of the Distribution payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other
payment in respect of any such delay) except that, if such Business Day is
in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and
effect as if made on such date.
(d) In the event that there is any money or other property held by or
for the Trust that is not accounted for hereunder, such property shall be
distributed Pro Rata (as defined herein) among the Holders of the
Securities.
3. Liquidation Distribution Upon Dissolution.
In the event of any voluntary or involuntary liquidation, dissolution,
winding-up or termination of the Trust, the Holders of the Securities on
the date of the dissolution, winding-up or termination, as the case may be,
will be entitled to receive solely out of the assets of the Trust available
for distribution to Holders of Securities, after paying or making
reasonable provision to pay all claims against and obligations of the Trust
in accordance with Section 3808(e) of the Business Trust Act, an amount
equal to the aggregate of the stated liquidation amount of $1,000 per
Security plus accrued and unpaid Distributions thereon to the date of
payment (such amount being the "Liquidation Distribution"), unless, in
connection with such dissolution, winding-up or termination, and after
paying or making reasonable provision to pay all claims against and
obligations of the Trust in accordance with Section 3808(e) of the Business
Trust Act, Debentures in an aggregate stated principal amount equal to the
aggregate stated liquidation amount of such Securities, with an interest
rate equal to the Coupon Rate, and bearing accrued and unpaid interest in
an amount equal to the accrued and unpaid Distributions on such Securities,
shall be distributed on a Pro Rata basis to the Holders of the Securities
in exchange for such Securities in accordance with Section 4(e) hereof.
If, upon any such liquidation, dissolution, winding-up or termination,
the Liquidation Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate Liquidation
Distribution, then the amounts payable directly by the Trust on the
Securities shall be paid on a Pro Rata basis.
4. Redemption and Distribution.
(a) Redemption of the Securities will occur simultaneously with any
repayment or redemption of the Debentures. The Debentures will mature on
February 1, 2027 and are redeemable as set forth in this Section 4. Upon
the repayment of the Debentures in whole or in part, whether at maturity or
upon redemption, the proceeds from such repayment or redemption shall be
simultaneously applied to redeem Securities having an aggregate liquidation
amount equal to the aggregate principal amount of the Debentures so repaid
or redeemed at the Maturity Redemption Price or the Redemption Price, as
applicable, as defined below. If fewer than all of the outstanding Capital
Securities are to be so redeemed, the Securities will be redeemed Pro Rata,
and the Capital Securities will be redeemed as described in Section 4(f)(i)
below.
(b) Securities redeemed upon maturity of the Debentures will be
redeemed at a redemption price of $1,000 per Security, plus an amount equal
to accrued and unpaid Distributions thereon at the date of maturity,
payable in cash (the "Maturity Redemption Price").
(c) The Debenture Issuer shall have the right to redeem the
Debentures, (i) on or after February 1, 2007, in whole at any time or in
part from time to time, or (ii) in the event that a Tax Event shall occur
and be continuing, then prior to February 1, 2007, in whole (but not in
part) within 90 days following the occurrence of such Tax Event (as defined
below), upon not less than 30 nor more than 60 days' prior written notice,
at the redemption price specified below (the "Redemption Price"), plus any
accrued and unpaid interest, including Additional Interest, if any, thereon
to the date of such redemption (the "Redemption Date"); provided, however,
that the Debenture Issuer shall not redeem the Debentures in part unless
all accrued but unpaid interest has been paid in full on all of the
Debentures outstanding for all semi-annual interest periods terminating on
or prior to the Redemption Date.
The Redemption Price, in the case of a redemption under (i) above,
shall equal the following prices, expressed in percentages of the principal
amount of the Debentures, if the Debentures are redeemed during the 12-
month period beginning February 1 of the years indicated below:
REDEMPTION
YEAR PRICE
2007 104.192%
2008 103.772%
2009 103.353%
2010 102.934%
2011 102.515%
2012 102.096%
2013 101.677%
2014 101.257%
2015 100.838%
2016 100.419%
and at 100% on or after February 1, 2017.
The Redemption Price, in the case of a redemption prior to February 1,
2007, following a Tax Event, as described under (ii) above, shall equal a
"MakeWhole Amount" equal to the greater of (i) 100% of the principal amount
of the Debentures or (ii) as determined by a Quotation Agent (as defined
below), the sum of the present values of (A) the principal amount and
premium payable as part of the Redemption Price with respect to an optional
redemption of such Debentures on February 1, 2007, and (B) the scheduled
payments of interest from the Redemption Date to February 1, 2007 (the
"Remaining Life"), in each case discounted to the Redemption Date on a semi-
annual basis (assuming a 360-day year consisting of 30-day months) at the
Adjusted Treasury Rate (as defined below).
"Adjusted Treasury Rate" means, with respect to any Redemption Date,
the Treasury Rate (as defined below) plus (i) 1.50% if such Redemption Date
occurs on or before February 1, 1998 or (ii) 0.50% is such Redemption Date
occurs after February 1, 1998.
"Treasury Rate" means (i) the yield, under the heading which
represents the average for the immediately prior week, appearing in the
most recently published statistical release designated "H.15(519)" or any
successor publication which is published weekly by the Federal Reserve and
which establishes yields on actively traded United States Treasury
securities adjusted to constant maturity under the caption "Treasury
Constant Maturities," for the maturity corresponding to the Remaining Life
(if no maturity is within three months before or after the Remaining Life,
yields for the two published maturities most closely corresponding to the
Remaining Life shall be determined and the Treasury Rate shall be
interpolated or extrapolated from such yields on a straight-line basis,
rounding to the nearest month) or (ii) if such release (or any successor
release) is not published during the week preceding the calculation date or
does not contain such yields, the rate per annum equal to the semi-annual
equivalent yield to maturity of the Comparable Treasury Issue (as defined
below), calculated using a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Redemption Date. The Treasury Rate shall be
calculated on the third Business Day preceding the Redemption Date.
"Comparable Treasury Issue" means, with respect to any Redemption
Date, the United States Treasury security selected by the Quotation Agent
as having a maturity comparable to the Remaining Life that would be
utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities of
comparable maturity to the Remaining Life. If no United States Treasury
security has a maturity which is within a period from three months before
to three months after February 1, 2007, the two most closely corresponding
United States Treasury securities shall be used as the Comparable Treasury
Issue, and the Treasury Rate shall be interpolated or extrapolated on a
straight-line basis, rounding to the nearest month using such securities.
"Quotation Agent" means Merrill Lynch Government Securities, Inc. and
its successors; provided, however, that if the foregoing shall cease to be
a primary U.S. Government securities dealer in New York City (a "Primary
Treasury Dealer"), the Company shall substitute therefor another Primary
Treasury Dealer.
"Reference Treasury Dealer" means (i) the Quotation Agent and (ii) any
other Primary Treasury Dealer selected by the Debt Trustee after
consultation with the Company.
"Comparable Treasury Price" means, with respect to any Redemption
Date, (i) the average of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal
amount) on the third Business Day preceding such Redemption Date, as set
forth in the most recent weekly statistical release (or any successor
release) published by the Federal Reserve Board and designated "H.15(519)"
or (ii) if such release (or any successor release) is not published or does
not contain such prices during the week preceding such Business Day, (A)
the average of five Reference Treasury Dealer Quotations for such
Redemption Date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (B) if the Debt Trustee obtains fewer than
three such Reference Treasury Dealer Quotations, the average of all such
Reference Treasury Dealer Quotations.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as
determined by the Debt Trustee, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Debt Trustee by such Reference
Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day
preceding such Redemption Date.
"Tax Event" means that the Administrative Trustees shall have received
an opinion of independent tax counsel experienced in such matters to the
effect that, as a result of (a) any amendment to, or change (including any
announced prospective change) in, the laws (or any regulations thereunder)
of the United States or any political subdivision or taxing authority
thereof or therein, or (b) any official administrative pronouncement or
judicial decision interpreting or applying such laws or regulations, which
amendment or change is effective or such pronouncement or decision is
announced on or after the date of original issuance of the Capital
Securities, there is more than an insubstantial risk that (i) the Trust is,
or will be within 90 days of the date thereof, subject to United States
federal income tax with respect to income accrued or received on the
Debentures, (ii) the Trust is, or will be within 90 days of the date
thereof, subject to more than a de minimis amount of taxes, duties or other
governmental charges, or (iii) interest payable on the Debentures is not,
or within 90 days of the date thereof will not be, deductible, in whole or
in part, by the Debenture Issuer for United States federal income tax
purposes.
(d) The Trust may not redeem fewer than all the outstanding
Securities unless all accrued and unpaid Distributions have been paid on
all Securities for all semi-annual Distribution periods terminating on or
before the date of redemption.
(e) If the Sponsor makes the election referred to in Section
8.1(a)(v) of the Declaration, the Administrative Trustees shall dissolve
the Trust and, after paying or making reasonable provision to pay all
claims and obligations of the Trust in accordance with Section 3808(e) of
the Business Trust Act, shall cause Debentures, held by the Institutional
Trustee, having an aggregate principal amount equal to the aggregate stated
liquidation amount of, with an interest rate identical to the Coupon Rate
of, and accrued and unpaid interest equal to accrued and unpaid
Distributions on and having the same record date for payment, as the
Securities, to be distributed to the Holders of the Securities in
liquidation of such Holders' interests in the Trust. On and from the date
fixed by the Administrative Trustees for any distribution of Debentures and
dissolution of the Trust: (i) the Securities will no longer be deemed to be
outstanding, and (ii) the Depositary or its nominee (or any successor
Depositary or its nominee) will receive one or more global certificate or
certificates representing the Debentures to be delivered upon such
distribution, and having an aggregate principal amount equal to the
aggregate stated liquidation amount of, with an interest rate identical to
the Coupon Rate of, and accrued and unpaid interest equal to accrued and
unpaid Distributions on such Securities. Any certificates representing
Securities, except for certificates representing Capital Securities held by
the Depositary or its nominee (or any successor Clearing Agency or its
nominee), will be deemed to represent beneficial interests in the
Debentures having an aggregate principal amount equal to the aggregate
stated liquidation amount of, with an interest rate identical to the Coupon
Rate of, and accrued and unpaid interest equal to accrued and unpaid
Distributions on such Securities until such certificates are presented to
the Debenture Issuer or its agent for transfer or reissue.
(f) "Redemption or Distribution Procedures."
(i) Notice of any redemption of, or notice of distribution of
Debentures in exchange for the Securities (a "Redemption/Distribution
Notice") will be given by the Trust by mail to each Holder of Securities to
be redeemed or exchanged not fewer than thirty (30) nor more than sixty
(60) days before the date fixed for redemption or exchange thereof which,
in the case of a redemption, will be the date fixed for redemption of the
Debentures. For purposes of the calculation of the date of redemption or
exchange and the dates on which notices are given pursuant to this Section
4(f)(i), a Redemption/ Distribution Notice shall be deemed to be given on
the day such notice is first mailed by first-class mail, postage prepaid,
to Holders of Securities. Each Redemption/Distribution Notice shall be
addressed to the Holders of Securities at the address of each such Holder
appearing in the books and records of the Trust. No defect in the
Redemption/ Distribution Notice or in the mailing thereof of either with
respect to any Holder shall affect the validity of the redemption or
exchange proceedings with respect to any other Holder.
(ii) In the event that fewer than all the outstanding
Securities are to be redeemed, the Securities to be redeemed shall be
redeemed Pro Rata from each Holder of Capital Securities, it being
understood that, in respect of Capital Securities registered in the name of
and held of record by the Depositary or its nominee (or any successor
Clearing Agency or its nominee), the distribution of the proceeds of such
redemption will be made to each Clearing Agency Participant (or Person on
whose behalf such nominee holds such Securities) in accordance with the
procedures applied by such agency or nominee.
(iii) If Securities are to be redeemed and the Trust gives a
Redemption/Distribution Notice, which notice may only be issued if the
Debentures are redeemed as set out in this Section 4 (which notice will be
irrevocable), then (A) while the Capital Securities are in book-entry only
form, with respect to the Capital Securities, by 12:00 noon, New York City
time, on the redemption date, provided that the Debenture Issuer has paid
the Institutional Trustee a sufficient amount of cash in connection with
the related redemption or maturity of the Debentures, the Institutional
Trustee will deposit irrevocably with the Depositary or its nominee (or
successor Clearing Agency or its nominee) funds sufficient to pay the
applicable Redemption Price with respect to the Capital Securities and will
give the Depositary irrevocable instructions and authority to pay the
Redemption Price to the Holders of the Capital Securities, and (B) with
respect to Capital Securities issued in definitive form and Common
Securities, provided that the Debenture Issuer has paid the Institutional
Trustee a sufficient amount of cash in connection with the related
redemption or maturity of the Debentures, the Institutional Trustee will
pay the relevant Redemption Price to the Holders of such Securities by
check mailed to the address of the relevant Holder appearing on the books
and records of the Trust on the redemption date. If a Redemption/
Distribution Notice shall have been given and funds deposited as required,
if applicable, then immediately prior to the close of business on the date
of such deposit, or on the redemption date, as applicable, distributions
will cease to accrue on the Securities so called for redemption and all
rights of Holders of such Securities so called for redemption will cease,
except the right of the Holders of such Securities to receive the
Redemption Price, but without interest on such Redemption Price. Neither
the Administrative Trustees nor the Trust shall be required to register or
cause to be registered the transfer of any Securities that have been so
called for redemption. If any date fixed for redemption of Securities is
not a Business Day, then payment of the Redemption Price payable on such
date will be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such delay) except
that, if such Business Day falls in the next calendar year, such payment
will be made on the immediately preceding Business Day, in each case with
the same force and effect as if made on such date fixed for redemption. If
payment of the Redemption Price in respect of any Securities is improperly
withheld or refused and not paid either by the Institutional Trustee or by
the Sponsor as guarantor pursuant to the relevant Securities Guarantee,
Distributions on such Securities will continue to accrue from the original
redemption date to the actual date of payment, in which case the actual
payment date will be considered the date fixed for redemption for purposes
of calculating the Redemption Price.
(iv) Redemption/Distribution Notices shall be sent by the
Administrative Trustees on behalf of the Trust to (A) in respect of the
Capital Securities, the Depositary or its nominee (or any successor
Clearing Agency or its nominee) if the Global Certificate(s) have been
issued or, if Definitive Capital Security Certificates have been issued, to
the Holder thereof, and (B) in respect of the Common Securities, to the
Holder thereof.
(v) Subject to the foregoing and applicable law (including,
without limitation, United States federal securities laws), the Sponsor or
any of its subsidiaries may at any time and from time to time purchase
outstanding Capital Securities by tender, in the open market or by private
agreement.
5. Voting Rights - Capital Securities.
(a) Except as provided under Sections 5(b) and 7 and as otherwise
required by law and the Declaration, the Holders of the Capital Securities
will have no voting rights.
(b) Subject to the requirements set forth in this paragraph, the
Holders of a Majority in liquidation amount of the Capital Securities,
voting separately as a class, may direct the time, method, and place of
conducting any proceeding for any remedy available to the Institutional
Trustee, or direct the exercise of any trust or power conferred upon the
Institutional Trustee under the Declaration, including the right to direct
the Institutional Trustee, as Holder of the Debentures, to (i) exercise the
remedies available under the Indenture with respect to the Debentures, (ii)
waive any past default and its consequences that is waivable under the
Indenture or (iii) exercise any right to rescind or annul a declaration
that the principal of all the Debentures shall be due and payable, or
consent to any amendment, modification or termination of the Indenture or
the Debentures, where such consent would be required; provided, however,
that, where a consent or action under the Indenture would require the
consent or act of the Holders of greater than a majority of the Holders in
principal amount of Debentures affected thereby (a "Super-Majority"), the
Institutional Trustee may only give such consent or take such action at the
written direction of the Holders of at least the proportion in liquidation
amount of the Capital Securities which the relevant Super-Majority
represents of the aggregate principal amount of the Debentures outstanding.
The Institutional Trustee shall not revoke any action previously authorized
or approved by a vote of the Holders of the Capital Securities. The
Institutional Trustee shall notify all Holders of the Capital Securities of
any notice of default received from the Debt Trustee with respect to the
Debentures. Other than with respect to directing the time, method and place
of conducting any remedy available to the Institutional Trustee or the Debt
Trustee as set forth above, the Institutional Trustee shall not take any
action in accordance with the directions of the Holders of the Capital
Securities under this paragraph unless the Institutional Trustee has
obtained an opinion of tax counsel to the effect that for the purposes of
United States federal income tax the Trust will not be classified as other
than a grantor trust on account of such action. If the Institutional
Trustee fails to enforce its rights with respect to the Debentures held by
the Trust any Holder of Capital Securities may, to the fullest extent
permitted by law, institute legal proceedings directly against the
Debenture Issuer to enforce the Institutional Trustee's rights under the
Debentures without first instituting any legal proceedings against the
Institutional Trustee or any other person or entity. In addition, if an
Event of Default under the Declaration has occurred and is continuing and
such event is attributable to the failure of the Debenture Issuer to pay
interest, principal or other required payment on the Debentures issued to
the Trust on the date such interest, principal or other required payment is
otherwise payable (or, in the case of redemption, on the redemption date),
then a Holder of Capital Securities may directly institute a proceeding
against the Debenture Issuer for enforcement of payment to the Holder of
the Capital Securities of the principal, interest or other required payment
on Debentures having a principal amount equal to the liquidation amount of
the Capital Securities of such Holder on or after the respective due dates
specified in the Debentures. In connection with such Direct Action, Arvin
will be subrogated to the rights of such Holder of Capital Securities to
the extent of any payment made by Arvin to such Holder of Capital
Securities in such Direct Action.
Any approval or direction of Holders of Capital Securities may be
given at a separate meeting of Holders of Capital Securities convened for
such purpose, at a meeting of all of the Holders of Securities in the Trust
or pursuant to written consent. The Administrative Trustees will cause a
notice of any meeting at which Holders of Capital Securities are entitled
to vote, or of any matter upon which action by written consent of such
Holders is to be taken, to be mailed to each Holder of record of Capital
Securities. Each such notice will include a statement setting forth (i) the
date of such meeting or the date by which such action is to be taken, (ii)
a description of any resolution proposed for adoption at such meeting on
which such Holders are entitled to vote or of such matter upon which
written consent is sought, and (iii) instructions for the delivery of
proxies or consents.
No vote or consent of the Holders of the Capital Securities will be
required for the Trust to redeem and cancel Capital Securities or to
distribute the Debentures in accordance with the Declaration and the terms
of the Securities.
Notwithstanding that Holders of Capital Securities are entitled to
vote or consent under any of the circumstances described above, any of the
Capital Securities that are owned by the Sponsor or any Affiliate of the
Sponsor shall not be entitled to vote or consent and shall, for purposes of
such vote or consent, be treated as if they were not outstanding.
6. Voting Rights - Common Securities.
(a) Except as provided under Sections 6(b), (c) and 7 and as
otherwise required by law and the Declaration, the Holders of the Common
Securities will have no voting rights.
(b) The Holders of the Common Securities are entitled, in accordance
with Article V of the Declaration, to vote to appoint, remove, or replace
any Trustee or to increase or decrease the number of Trustees.
(c) Subject to Section 2.6 of the Declaration and only after the
Event of Default with respect to the Capital Securities has been cured,
waived, or otherwise eliminated and subject to the requirements set forth
in this paragraph, the Holders of a Majority in liquidation amount of the
Common Securities, voting separately as a class, may direct the time,
method, and place of conducting any proceeding for any remedy available to
the Institutional Trustee, or direct the exercise of any trust or power
conferred upon the Institutional Trustee under the Declaration, including
the right to direct the Institutional Trustee, as Holder of the Debentures,
to (i) exercise the remedies available under the Indenture with respect to
the Debentures, (ii) waive any past default and its consequences that are
waivable under the Indenture or (iii) exercise any right to rescind or
annul a declaration that the principal of all the Debentures shall be due
and payable or consent to any amendment, modification or termination of the
Indenture or the Debentures, where such consent would be required; provided
that, where a consent or action under the Indenture would require the
consent or act of a Super-Majority of the Holders of the Debentures
affected thereby, the Institutional Trustee may only give such consent or
take such action at the written direction of the Holders of at least the
proportion in liquidation amount of the Common Securities which the
relevant Super-Majority represents of the aggregate principal amount of the
Debentures outstanding. Pursuant to this Section 6(c), the Institutional
Trustee shall not revoke any action previously authorized or approved by a
vote of the Holders of the Capital Securities. Other than with respect to
directing the time, method and place of conducting any remedy available to
the Institutional Trustee or the Debt Trustee as set forth above, the
Institutional Trustee shall not take any action in accordance with the
directions of the Holders of the Common Securities under this paragraph
unless the Institutional Trustee has obtained an opinion of tax counsel to
the effect that for the purposes of United States federal income tax the
Trust will not be classified as other than a grantor trust on account of
such action. If the Institutional Trustee fails to enforce its rights with
respect to the Debentures held as assets of the Trust, any Holder of Common
Securities may, to the fullest extent permitted by law, institute legal
proceedings directly against any Person to enforce the Institutional
Trustee's rights under the Debentures, without first instituting a legal
proceeding against the Institutional Trustee or any other Person.
Notwithstanding the foregoing, if an Event of Default under the Declaration
has occurred and is continuing and such event is attributable to the
failure of the Debenture Issuer to pay interest, principal or other
required payment on the Debentures on the date such interest or principal
is otherwise payable, a Holder of Common Securities may directly institute
a proceeding against the Debenture Issuer for enforcement of payment to the
Holder of the Common Securities of the principal, interest or other
required payment on the Debentures on or after the respective due dates
specified in the Debentures, and the amount of the payment will be based on
the Holder's pro rata share of the amount due and owing on all of the
Common Securities.
Any approval or direction of Holders of Common Securities may be given
at a separate meeting of Holders of Common Securities convened for such
purpose, at a meeting of all of the Holders of Trust Securities or pursuant
to written consent. The Administrative Trustees will cause a notice of any
meeting at which Holders of Common Securities are entitled to vote, or of
any matter upon which action by written consent of such Holders is to be
taken, to be mailed to each Holder of record of Common Securities. Each
such notice will include a statement setting forth (i) the date of such
meeting or the date by which such action is to be taken, (ii) a description
of any resolution proposed for adoption at such meeting on which such
Holders are entitled to vote or of such matter upon which written consent
is sought and (iii) instructions for the delivery of proxies or consents.
No vote or consent of the Holders of the Common Securities will be
required for the Trust to redeem and cancel Common Securities or to
distribute the Debentures in accordance with the Declaration and the terms
of the Securities.
7. Amendments to Declaration and Indenture.
(a) In addition to any requirements under Section 12.1 of the
Declaration, if any proposed amendment to the Declaration provides for, or
the Administrative Trustees otherwise propose to effect, (i) any action
that would materially adversely affect the powers, preferences or special
rights of the Securities, whether by way of amendment to the Declaration or
otherwise, or (ii) the dissolution, winding-up or termination of the Trust,
other than as described in Section 8.1 of the Declaration, then the Holders
of outstanding Securities, voting together as a single class, will be
entitled to vote on such amendment or proposal (but not on any other
amendment or proposal) and such amendment or proposal shall not be
effective except with the approval of the Holders of at least a Majority in
liquidation amount of the Securities; provided, however, if any amendment
or proposal referred to in clause (i) above would materially adversely
affect only the Capital Securities or only the Common Securities, then only
the affected class will be entitled to vote on such amendment or proposal
and such amendment or proposal shall not be effective except with the
approval of a Majority in liquidation amount of such class of Securities.
Notwithstanding the foregoing, no amendment or modification may be made to
the Declaration if such amendment or modification would (i) cause the Trust
to be classified as other than a grantor trust for United States federal
income tax purposes, (ii) reduce or otherwise adversely affect the powers
of the Institutional Trustee, or (iii) cause the Trust to be deemed an
"investment company" which is required to be registered under the
Investment Company Act.
(b) In the event the consent of the Institutional Trustee as the
holder of the Debentures is required under the Indenture with respect to
any amendment, modification or termination on the Indenture or the
Debentures, the Institutional Trustee shall request the written direction
of the Holders of the Securities with respect to such amendment,
modification or termination and shall vote with respect to such amendment,
modification or termination as directed by a Majority in liquidation amount
of the Securities voting together as a single class; provided, however,
that where a consent under the Indenture would require the consent of the
holders of a Super-Majority of the Holders of the Debentures, the
Institutional Trustee may only give such consent at the direction of the
Holders of at least the proportion in liquidation amount of the Securities
which the relevant Super-Majority represents of the aggregate principal
amount of the Debentures outstanding; provided, further, that the
Institutional Trustee shall not take any action in accordance with the
directions of the Holders of the Securities under this Section 7(b) unless
the Institutional Trustee has obtained an opinion of tax counsel to the
effect that for the purposes of United States federal income tax the Trust
will not be classified as other than a grantor trust on account of such
action.
8. Pro Rata. A reference in these terms of the Securities to any
payment, distribution or treatment as being "Pro Rata" shall mean pro rata
to each Holder of Securities according to the aggregate liquidation amount
of the Securities held by the relevant Holder in relation to the aggregate
liquidation amount of all Securities outstanding unless, in relation to a
payment, an Event of Default under the Declaration has occurred and is
continuing, in which case any funds available to make such payment shall be
paid first to each Holder of the Capital Securities pro rata according to
the aggregate liquidation amount of Capital Securities held by the relevant
Holder relative to the aggregate liquidation amount of all Capital
Securities outstanding, and only after satisfaction of all amounts owed to
the Holders of the Capital Securities, to each Holder of Common Securities
pro rata according to the aggregate liquidation amount of Common Securities
held by the relevant Holder relative to the aggregate liquidation amount of
all Common Securities outstanding.
9. Ranking. The Capital Securities rank pari passu and payment
thereon shall be made Pro Rata with the Common Securities except that,
where an Event of Default occurs and is continuing under the Indenture in
respect of the Debentures held by the Institutional Trustee, the rights of
Holders of the Common Securities to payment in respect of Distributions and
payments upon liquidation, redemption and otherwise are subordinated to the
rights to payment of the Holders of the Capital Securities.
10. Acceptance of Securities Guarantees and Indenture. Each Holder
of Capital Securities and Common Securities, by the acceptance thereof,
agrees to the provisions of the Capital Securities Guarantee and the Common
Securities Guarantee, respectively, including the subordination provisions
therein, and to the provisions of the Indenture.
11. No Preemptive Rights. The Holders of the Securities shall have
no preemptive rights to subscribe for any additional securities.
12. Miscellaneous. These terms constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration, the Capital Securities
Guarantee or the Common Securities Guarantee (as may be appropriate), and
the Indenture to a Holder without charge on written request to the Sponsor
at its principal place of business.
EXHIBIT A-1
FORM OF CAPITAL SECURITY CERTIFICATE
[IF THE CAPITAL SECURITY CERTIFICATE IS TO BE A GLOBAL CERTIFICATE
INSERT - This Capital Security is a Global Certificate within the meaning
of the Declaration hereinafter referred to and is registered in the name of
a Depositary or a nominee of the Depositary. This Capital Security is
exchangeable for Capital Securities registered in the name of a person
other than the Depositary or its nominee only in the limited circumstances
described in the Declaration, and no transfer of this Capital Security
(other than a transfer of this Capital Security as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary
to the Depositary or another nominee of the Depositary) may be registered
except in limited circumstances described in the Declaration.
Unless this certificate is presented by an authorized representative
of the The Depositary Trust Company, a New York corporation ("DTC"), to
Arvin Capital I or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede & Co.
or in such other name as is requested by an authorized representative of
the DTC (and any payment hereon is made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.]
Certificate Number Number of Capital Securities
CUSIP NO. [ ]
Certificate Evidencing Capital Securities
of
ARVIN CAPITAL I
9.50% Capital Securities (liquidation amount $1,000 per Capital Security)
ARVIN CAPITAL I, a statutory business trust created under the laws of
the State of Delaware (the "Trust"), hereby certifies that ______________
(the "Holder") is the registered owner of capital securities of the Trust,
representing undivided beneficial interests in the assets of the Trust,
designated the 9.50% Capital Securities (liquidation amount $1,000 per
Capital Security) (the "Capital Securities"). The Capital Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and
in proper form for transfer. The designation, rights, privileges,
restrictions, preferences and other terms and provisions of the Capital
Securities are set forth in, and this certificate and the Capital
Securities represented hereby are issued and shall in all respects be
subject to the provisions of the Amended and Restated Declaration of Trust
of the Trust dated as of January 28, 1997, as the same may be amended from
time to time (the "Declaration"), including the designation of the terms of
the Capital Securities set forth in Annex I to the Declaration. Capitalized
terms used herein but not defined shall have the meaning given them in the
Declaration. The Holder is entitled to the benefits of the Capital
Securities Guarantee to the extent provided therein. The Sponsor will
provide a copy of the Declaration, the Capital Securities Guarantee and the
Indenture to a Holder without charge upon written request to the Trust at
its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Debentures as indebtedness and the Capital
Securities as evidence of indirect beneficial ownership in the Debentures.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust
has executed this certificate this ______ day of ___________, 199__.
ARVIN CAPITAL I
By:
Name: ,
as Administrative Trustee
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Capital Security will be fixed at a rate
per annum of 9.50% (the "Coupon Rate") of the stated liquidation amount of
$1,000 per Capital Security, such rate being the rate of interest payable
on the Debentures to be held by the Institutional Trustee. Distributions in
arrears for more than one semi-annual Distribution period will bear
interest thereon compounded semi-annually at the Coupon Rate (to the extent
permitted by applicable law). The term "Distributions" as used herein
includes such cash distributions and any such interest payable unless
otherwise stated. A Distribution is payable only to the extent that
payments are made in respect of the Debentures held by the Institutional
Trustee and to the extent the Institutional Trustee has funds available
therefor. The amount of Distributions payable for any period will be
computed for any full semi-annual Distribution period on the basis of a 360-
day year of twelve 30-day months, and for any period shorter than a full
semi-annual Distribution period for which distributions are computed,
distributions will be computed on the basis of the actual number of days
elapsed.
Except as otherwise described below, Distributions on the Capital
Securities will be cumulative, will accrue from the date of original
issuance and will be payable semi-annually in arrears, on February 1 and
August 1 of each year, commencing on August 1, 1997 to the Holders thereof
as they appear on the books and records of the Trust on the relevant record
dates. The Debenture Issuer has the right under the Indenture to defer
payments of interest by extending the interest payment period from time to
time on the Debentures for a period not exceeding 10 consecutive semi-
annual interest payment periods (each an "Extension Period") provided that
no Extension Period shall last beyond the date of the maturity of the
Debentures and, as a consequence of such deferral, Distributions will also
be deferred. Despite such deferral, semi-annual Distributions will continue
to accrue with interest thereon (to the extent permitted by applicable law)
at the Coupon Rate compounded semi-annually during any such Extension
Period. Prior to the termination of any such Extension Period, the
Debenture Issuer may further extend such Extension Period; provided that
such Extension Period together with all such previous and further
extensions thereof may not exceed 10 consecutive semi-annual interest
payment periods or extend beyond the date of maturity of the Debentures.
Payments of accrued Distributions will be payable to Holders as they appear
on the books and records of the Trust on the first record date after the
end of the Extension Period. Upon the termination of any Extension Period
and the payment of all amounts then due, the Debenture Issuer may commence
a new Extension Period, subject to the above requirements.
The Capital Securities shall be redeemable as provided in the
Declaration.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Capital
Security Certificate to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably
appoints________________________________________________________ agent to
transfer this Capital Security Certificate on the books of the Trust. The
agent may substitute another to act for him or her.
Date:
Signature:
(Sign exactly as your name appears on the other side of this
Capital Security Certificate)
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
Certificate Number Number of Common Securities
Certificate Evidencing Common Securities
of
ARVIN CAPITAL I
9.50% Common Securities
(liquidation amount $1,000 per Common Security)
ARVIN CAPITAL I, a statutory business trust created under the laws of
the State of Delaware (the "Trust"), hereby certifies that
_________________ (the "Holder") is the registered owner of common
securities of the Trust, representing undivided beneficial interests in the
assets of the Trust, designated the 9.50% Common Securities (liquidation
amount $1,000 per Common Security) (the "Common Securities"). The
designation, rights, privileges, restrictions, preferences and other terms
and provisions of the Common Securities are set forth in, and this
certificate and the Common Securities represented hereby are issued and
shall in all respects be subject to the provisions of the Amended and
Restated Declaration of Trust of the Trust dated as of January 28, 1997, as
the same may be amended from time to time (the "Declaration"), including
the designation of the terms of the Common Securities set forth in Annex I
to the Declaration. Capitalized terms used herein but not defined shall
have the meaning given them in the Declaration. The Holder is entitled to
the benefits of the Common Securities Guarantee to the extent provided
therein. The Sponsor will provide a copy of the Declaration, the Common
Securities Guarantee and the Indenture to a Holder without charge upon
written request to the Sponsor at its principal place of business. THE
COMMON SECURITIES ARE NOT TRANSFERRABLE EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE DECLARATION.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Debentures as indebtedness and the Common
Securities as evidence of indirect beneficial ownership in the Debentures.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust
has executed this certificate this ______ day of ____________, 199__.
ARVIN CAPITAL I
By:
Name:
as Administrative Trustee
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Common Security will be fixed at a rate
per annum of 9.50% (the "Coupon Rate") of the stated liquidation amount of
$1,000 per Common Security, such rate being the rate of interest payable on
the Debentures to be held by the Institutional Trustee. Distributions in
arrears for more than one semi-annual Distribution period will bear
interest thereon compounded semi-annually at the Coupon Rate (to the extent
permitted by applicable law). The term "Distributions" as used herein
includes such cash distributions and any such interest payable unless
otherwise stated. A Distribution is payable only to the extent that
payments are made in respect of the Debentures held by the Institutional
Trustee and to the extent the Institutional Trustee has funds available
therefor. The amount of Distributions payable for any period will be
computed for any full semi-annual Distribution period on the basis of a 360-
day year of twelve 30-day months, and for any period shorter than a full
quarterly Distribution period for which Distributions are computed,
distributions will be computed on the basis of the actual number of days
elapsed.
Except as otherwise described below, Distributions on the Common
Securities will be cumulative, will accrue from the date of original
issuance and will be payable semi-annually in arrears, on February 1 and
August 1 of each year, commencing on August 1, 1997, to the Holders thereof
as they appear on the books and records of the Trust on the relevant record
dates. The Debenture Issuer has the right under the Indenture to defer
payments of interest by extending the interest payment period from time to
time on the Debentures for a period not exceeding 10 consecutive semi-
annual interest payment periods (each an "Extension Period") provided that
no Extension Period shall last beyond the date of the maturity of the
Debentures and, as a consequence of such deferral, Distributions will also
be deferred. Despite such deferral, semi-annual Distributions will continue
to accrue with interest thereon (to the extent permitted by applicable law)
at the Coupon Rate compounded semi-annually during any such Extension
Period. Prior to the termination of any such Extension Period, the
Debenture Issuer may further extend such Extension Period; provided that
such Extension Period together with all such previous and further
extensions thereof may not exceed 10 consecutive semi-annual interest
payment periods or extend beyond the date of maturity of the Debentures.
Payments of accrued Distributions will be payable to Holders as they appear
on the books and records of the Trust on the first record date after the
end of the Extension Period. Upon the termination of any Extension Period
and the payment of all amounts then due, the Debenture Issuer may commence
a new Extension Period, subject to the above requirements.
The Common Securities shall be redeemable as provided in the
Declaration.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common
Security Certificate to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints agent to
transfer this Common Security Certificate on the books of the Trust. The
agent may substitute another to act for him or her.
Date:
Signature:
(Sign exactly as your name appears on the other side of this
Common Security Certificate)
EXHIBIT B
SPECIMEN OF DEBENTURE
EXHIBIT C
UNDERWRITING AGREEMENT
EXHIBIT 4.5
FIRST SUPPLEMENTAL INDENTURE
BETWEEN
ARVIN INDUSTRIES, INC.
AND
WILMINGTON TRUST COMPANY
DATED AS OF JANUARY 28, 1997
TABLE OF CONTENTS
ARTICLE I DEFINITIONS
SECTION 1.1 Definition of Terms. 1
ARTICLE II GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1 Designation and Principal Amount. 2
SECTION 2.2 Maturity. 3
SECTION 2.3 Form and Payment. 3
SECTION 2.4 Global Debenture. 3
SECTION 2.5 Interest. 4
ARTICLE III REDEMPTION OF THE DEBENTURES
SECTION 3.1 Redemption; Conditions to Redemption. 5
SECTION 3.2 No Sinking Fund. 7
ARTICLE IV EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1 Extension of Interest Payment Period. 7
SECTION 4.2 Notice of Extension. 8
ARTICLE V EXPENSES
SECTION 5.1 Payment of Expenses. 8
SECTION 5.2 Payment Upon Resignation or Removal. 9
ARTICLE VI FORM OF DEBENTURE
SECTION 6.1 Form of Debenture. 9
ARTICLE VII ORIGINAL ISSUE OF DEBENTURES
SECTION 7.1 Original Issue of Debentures. 17
ARTICLE VIII MISCELLANEOUS
SECTION 8.1 Ratification of Indenture. 17
SECTION 8.2 Trustee Not Responsible for Recitals. 17
SECTION 8.3 Governing Law. 17
SECTION 8.4 Separability. 17
SECTION 8.5 Counterparts. 18
FIRST SUPPLEMENTAL INDENTURE, dated as of January 28, 1997 (the
"First Supplemental Indenture"), between Arvin Industries, Inc., an Indiana
corporation (the "Company"), and Wilmington Trust Company, a Delaware
banking corporation, not in its individual capacity but solely as trustee
(the "Trustee") under the Indenture dated as of January 28, 1997 between
the Company and the Trustee (the "Indenture").
W I T N E S S E T H:
WHEREAS, the Company executed and delivered the Indenture to the
Trustee to provide for the future issuance of the Company's unsecured
junior subordinated debt securities to be issued from time to time in one
or more series as might be determined by the Company under the Indenture,
in an unlimited aggregate principal amount which may be authenticated and
delivered as provided in the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a new series of its Debt
Securities to be known as its 9.50% Junior Subordinated Deferrable Interest
Debentures due 2027 (the "Debentures"), the form and substance of such
Debentures and the terms, provisions and conditions thereof to be set forth
as provided in the Indenture and this First Supplemental Indenture;
WHEREAS, Arvin Capital I, a Delaware statutory business trust
(the "Trust"), has offered to the public $100,000,000 aggregate liquidation
amount of its 9.50% Capital Securities (the "Capital Securities"),
representing undivided beneficial interests in the assets of the Trust and
proposes to invest the proceeds from such offering, together with the
proceeds of the issuance and sale by the Trust to the Company of $3,100,000
aggregate liquidation amount of its 9.50% Common Securities, in
$103,100,000 aggregate principal amount of the Debentures; and
WHEREAS, the Company has requested that the Trustee execute and
deliver this First Supplemental Indenture and all requirements necessary to
make this First Supplemental Indenture a valid instrument in accordance
with its terms, and to make the Debentures, when executed by the Company
and authenticated and delivered by the Trustee, the valid obligations of
the Company, have been performed, and the execution and delivery of this
First Supplemental Indenture has been duly authorized in all respects;
NOW THEREFORE, in consideration of the purchase and acceptance of
the Debentures by the holders thereof, and for the purpose of setting
forth, as provided in the Indenture, the form and substance of the
Debentures and the terms, provisions and conditions thereof, the Company
covenants and agrees with the Trustee as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definition of Terms.
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when
used in this First Supplemental Indenture;
(b) a term defined anywhere in this First Supplemental Indenture
has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or
Article of this First Supplemental Indenture;
(e) headings are for convenience of reference only and do not
affect interpretation;
(f) the following terms have the meanings given to them in the
Declaration: (i) Administrative Trustee; (ii) Capital Security Certificate;
(iii) Clearing Agency; (iv) Delaware Trustee; (v) Distributions; (vi)
Pricing Agreement; (vii) Institutional Trustee; (viii) Tax Event; and (ix)
Underwriting Agreement;
(g) the following terms have the meanings given to them in this
Section 1.1(g):
"Additional Interest" shall have the meaning set forth in Section
2.5.
"Compounded Interest" shall have the meaning set forth in Section
4.1.
"Coupon Rate" shall have the meaning set forth in Section 2.5.
"Declaration" means the Amended and Restated Declaration of Trust
of Arvin Capital I, a Delaware statutory business trust, dated as of
January 28, 1997, including the Terms of Securities attached thereto as
Annex I.
"Deferred Interest" shall have the meaning set forth in Section
4.1.
"Extended Interest Payment Period" shall have the meaning set
forth in Section 4.1.
"Global Debenture" shall have the meaning set forth in Section
2.4.
"Maturity Date" means the date on which the Debentures mature and
on which the principal shall be due and payable together with all accrued
and unpaid interest thereon including Compounded Interest and Additional
Interest, if any.
"Non Book-Entry Capital Securities" shall have the meaning set
forth in Section 2.4.
"Redemption Price" shall have the meaning set forth in Section
3.2.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1 Designation and Principal Amount.
There is hereby authorized a series of Debt Securities designated
the "9.50% Junior Subordinated Deferrable Interest Debentures due 2027",
limited in aggregate principal amount to $103,100,000, which amount shall
be as set forth in any written order of the Company for the authentication
and delivery of Debentures pursuant to Section 2.4 of the Indenture.
SECTION 2.2 Maturity.
The Maturity Date is February 1, 2027.
SECTION 2.3 Form and Payment.
Except as provided in Section 2.4, the Debentures shall be issued
in fully registered certificated form without interest coupons. Principal
and interest on the Debentures issued in certificated form will be payable,
the transfer of such Debentures will be registrable and such Debentures
will be exchangeable for Debentures bearing identical terms and provisions
at the office or agency of the Trustee; provided, however, that payment of
interest may be made at the option of the Company by check mailed to the
holder at such address as shall appear in the Security Register or by wire
transfer to an account appropriately designated by such holder.
Notwithstanding the foregoing, so long as the holder of any Debentures is
the Institutional Trustee, the payment of the principal of and interest
(including Compounded Interest and Additional Interest, if any) on such
Debentures held by the Institutional Trustee will be made at such place and
to such account as may be designated by the Institutional Trustee.
SECTION 2.4 Global Debenture.
(a) In the event that the Debentures are distributed to holders
of Capital Securities in liquidation of such holders' interests in the
Trust:
(i) the Debentures may be presented to the Trustee by the
Institutional Trustee in exchange for a global Debenture in an aggregate
principal amount equal to the aggregate principal amount of all outstanding
Debentures (a "Global Debenture"), to be registered in the name of the
Depositary, or its nominee, and delivered by the Trustee to the Depositary
for crediting to the accounts of its participants pursuant to the
instructions of the Regular Trustees. The Company, upon any such
presentation, shall execute a Global Debenture in such aggregate principal
amount and deliver the same to the Trustee for authentication and delivery
in accordance with the Indenture and this First Supplemental Indenture.
Payments on the Debentures issued as a Global Debenture will be made to the
Depositary; and
(ii) if any Capital Securities are held in non book-entry
certificated form, the Debentures may be presented to the Trustee by the
Institutional Trustee and any Capital Security Certificate which represents
Capital Securities other than Capital Securities held by the Clearing
Agency or its nominee ("Non Book-Entry Capital Securities") will be deemed
to represent beneficial interests in Debentures presented to the Trustee by
the Institutional Trustee having an aggregate principal amount equal to the
aggregate liquidation amount of the Non Book-Entry Capital Securities until
such Capital Security Certificates are presented to the Security Registrar
for transfer or reissuance, at which time such Capital Security
Certificates will be cancelled and a Debenture, registered in the name of
the holder of the Capital Security Certificate or the transferee of the
holder of such Capital Security Certificate, as the case may be, with an
aggregate principal amount equal to the aggregate liquidation amount of the
Capital Security Certificate cancelled, will be executed by the Company and
delivered to the Trustee for authentication and delivery in accordance with
the Indenture and this First Supplemental Indenture. On issue of such
Debentures, Debentures with an equivalent aggregate principal amount that
were presented by the Institutional Trustee to the Trustee will be deemed
to have been cancelled.
(b) A Global Debenture may be transferred, in whole but not in
part, only to another nominee of the Depositary, or to a successor
Depositary selected or approved by the Company or to a nominee of such
successor Depositary.
(c) If at any time the Depositary notifies the Company that it
is unwilling or unable to continue as Depositary or if at any time the
Depositary shall no longer be registered or in good standing under the
Exchange Act, or other applicable statute or regulation, and a successor
Depositary is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such condition, as the case may
be, the Company will execute, and, subject to Article II of the Indenture,
the Trustee, upon written notice from the Company, will authenticate and
deliver the Debentures in definitive registered form, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Debenture in exchange for such Global Debenture. In
addition, the Company may at any time determine, in its sole discretion,
that the Debentures shall no longer be represented by a Global Debenture.
In such event the Company will execute, and subject to Section 2.11(c) of
the Indenture, the Trustee, upon receipt of an Officers' Certificate
evidencing such determination by the Company, will authenticate and deliver
the Debentures in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Debenture in exchange for such Global Debenture. Upon
the exchange of the Global Debenture for such Debentures in definitive
registered form without coupons, in authorized denominations, the Global
Debenture shall be cancelled by the Trustee. Such Debentures in definitive
registered form issued in exchange for the Global Debenture shall be
registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Debentures to the Depositary for delivery to the Persons in
whose names such Debentures are so registered.
SECTION 2.5 Interest.
(a) Each Debenture will bear interest at the rate of 9.50% per
annum (the "Coupon Rate") from the original date of issuance until the
principal thereof becomes due and payable, and on any overdue principal and
(to the extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest, at the Coupon Rate,
compounded semi-annually, payable (subject to the provisions of Article IV)
semi-annually in arrears on February 1 and August 1 of each year (each, an
"Interest Payment Date"), commencing August 1, 1997, to the Person in whose
name such Debenture or any predecessor Debenture is registered, at the
close of business on the regular record date for such interest installment,
which, in respect of any Debentures of which the Institutional Trustee is
the holder of a Global Debenture, shall be the close of business on the
Business Day next preceding that Interest Payment Date. Notwithstanding the
foregoing sentence, if the Capital Securities are no longer in book-entry
only form or if the Debentures are not held by the Institutional Trustee
and are not represented by a Global Debenture, the Company may select a
regular record date for such interest installment which shall be any date
at least one Business Day before an Interest Payment Date.
(b) The amount of interest payable for any period will be
computed on the basis of a 360-day year of twelve 30-day months. Except as
provided in the following sentence, the amount of interest payable for any
period shorter than a full semi-annual period for which interest is
computed will be computed on the basis of the actual number of days
elapsed. In the event that any date on which interest is payable on the
Debentures is not a Business Day, then payment of interest payable on such
date will be made on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of any such delay), except
that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each
case with the same force and effect as if made on such date.
(c) If, at any time while the Institutional Trustee is the
holder of any Debentures, the Trust or the Institutional Trustee is
required to pay any taxes, duties, assessments or governmental charges of
whatever nature (other than withholding taxes) imposed by the United
States, or any other taxing authority, then, in any case, the Company will
pay as additional interest ("Additional Interest") on the Debentures held
by the Institutional Trustee, such additional amounts as shall be required
so that the net amounts received and retained by the Trust and the
Institutional Trustee after paying such taxes, duties, assessments or other
governmental charges will be equal to the amounts the Trust and the
Institutional Trustee would have received had no such taxes, duties,
assessments or other governmental charges been imposed.
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1 Redemption; Conditions to Redemption.
(a) Subject to the provisions of Article III of the Indenture,
the Company shall have the right to redeem the Debentures, (i) on or after
February 1, 2007, in whole at any time or in part from time to time, or
(ii) in the event that a Tax Event shall occur and be continuing, then
prior to February 1, 2007 in whole (but not in part) within 90 days
following the occurrence of such Tax Event, upon not less than 30 nor more
than 60 days' prior written notice, at the redemption price specified in
Section 3.1(b) below (the "Redemption Price"), plus any accrued and unpaid
interest, including Additional Interest, if any, thereon to the date of
such redemption (the "Redemption Date"); provided, however, that the
Company
-------- -------
shall not redeem the Debentures in part unless all accrued but unpaid
interest has been paid in full on all of the Debentures Outstanding for all
semi-annual interest payment periods terminating on or prior to the
Redemption Date. If the Debentures are only partially redeemed pursuant to
this Section 3.1(a), the Debentures will be redeemed pro rata or by lot or
by any other method utilized by the Trustee; provided, that if at the time
of redemption the Debentures are registered as a Global Debenture, the
Depositary shall determine, in accordance with its procedures, the
principal amount of such Debentures held by each holder of Debentures to be
redeemed.
(b) The Redemption Price, in the case of a redemption under
Section 3.1(a)(i) above, shall equal the following prices, expressed in
percentages of the principal amount of the Debentures, if the Debentures
are redeemed during the 12-month period beginning February 1 of the years
indicated below:
REDEMPTION
YEAR PRICE
2007 104.192%
2008 103.772%
2009 103.353%
2010 102.934%
2011 102.515%
2012 102.096%
2013 101.677%
2014 101.257%
2015 100.838%
2016 100.419%
and at 100% on or after February 1, 2017.
The Redemption Price, in the case of a redemption prior to
February 1, 2007 following a Tax Event, as described under Section
3.1(a)(ii) above, shall equal a "Make-Whole Amount" equal to the greater of
(i) 100% of the principal amount of the Debentures or (ii) as determined by
a Quotation Agent (as defined below), the sum of the present values of (A)
the principal amount and premium payable as part of the Redemption Price
with respect to an optional redemption of such Debentures on February 1,
2007, and (B) scheduled payments of interest from the Redemption Date to
February 1, 2007 (the "Remaining Life"), in each case discounted to the
Redemption Date on a semi-annual basis (assuming a 360-day year consisting
of 30-day months) at the Adjusted Treasury Rate (as defined below).
"Adjusted Treasury Rate" means, with respect to any Redemption
Date, the Treasury Rate (as defined below) plus (i) 1.50% if such
Redemption Date occurs on or before February 1, 1998 or (ii) 0.50% if such
Redemption Date occurs after February 1, 1998.
"Treasury Rate" means (i) the yield, under the heading which
represents the average for the immediately prior week, appearing in the
most recently published statistical release designated "H.15(519)" or any
successor publication which is published weekly by the Federal Reserve and
which establishes yields on actively traded United States Treasury
securities adjusted to constant maturity under the caption "Treasury
Constant Maturities," for the maturity corresponding to the Remaining Life
(if no maturity is within three months before or after the Remaining Life,
yields for the two published maturities most closely corresponding to the
Remaining Life shall be determined and the Treasury Rate shall be
interpolated or extrapolated from such yields on a straight-line basis,
rounding to the nearest month) or (ii) if such release (or any successor
release) is not published during the week preceding the calculation date or
does not contain such yields, the rate per annum equal to the semi-annual
equivalent yield to maturity of the Comparable Treasury Issue (as defined
below), calculated using a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Redemption Date. The Treasury Rate shall be
calculated on the third Business Day preceding the Redemption Date.
"Comparable Treasury Issue" means, with respect to any Redemption
Date, the United States Treasury security selected by the Quotation Agent
as having a maturity comparable to the Remaining Life that would be
utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities of
comparable maturity to the Remaining Life. If no United States Treasury
security has a maturity which is within a period from three months before
to three months after February 1, 2007, the two most closely corresponding
United States Treasury securities shall be used as the Comparable Treasury
Issue, and the Treasury Rate shall be interpolated or extrapolated on a
straight-line basis, rounding to the nearest month using such securities.
"Quotation Agent" means Merrill Lynch Government Securities, Inc.
and its successors; provided, however, that if the foregoing shall cease to
-------- -------
be a primary U.S. Government securities dealer in New York City (a "Primary
Treasury Dealer"), the Company shall substitute therefor another Primary
Treasury Dealer.
"Reference Treasury Dealer" means (i) the Quotation Agent and
(ii) any other Primary Treasury Dealer selected by the Trustee after
consultation with the Company.
"Comparable Treasury Price" means, with respect to any Redemption
Date, (i) the average of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal
amount) on the third Business Day preceding such Redemption Date, as set
forth in the most recent weekly statistical release (or any successor
release) published by the Federal Reserve and designated "H.15(519)" or
(ii) if such release (or any successor release) is not published or does
not contain such prices during the week preceding such Business Day, (A)
the average of five Reference Treasury Dealer Quotations for such
Redemption Date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (B) if the Trustee obtains fewer than three
such Reference Treasury Dealer Quotations, the average of all such
Reference Treasury Dealer Quotations.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any Redemption Date, the average, as
determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal
amount) quoted in writing to the Trustee by such Reference Treasury Dealer
at 5:00 p.m., New York City time, on the third Business Day preceding such
Redemption Date.
(c) For so long as the Trust is the Holder of all Outstanding
Debentures, the proceeds of any redemption provided for in this Section 3.1
shall be used by the Trust to redeem Capital Securities in accordance with
their terms.
SECTION 3.2 No Sinking Fund.
The Subordinated Debentures are not entitled to the benefit of
any sinking fund.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1 Extension of Interest Payment Period.
The Company shall have the right, at any time and from time to time
during the term of the Debentures, to defer payments of interest by
extending the interest payment period of such Debentures for a period not
exceeding 10 consecutive semi-annual interest payment periods (the
"Extended Interest Payment Period"), during which Extended Interest Payment
Period no interest shall be due and payable; provided that no Extended
Interest Payment Period may extend beyond the Maturity Date. To the extent
permitted by applicable law, interest, the payment of which has been
deferred because of the extension of the interest payment period pursuant
to this Section 4.1, will bear interest thereon at the Coupon Rate
compounded quarterly for each semi-annual interest payment period of the
Extended Interest Payment Period ("Compounded Interest"). At the end of the
Extended Interest Payment Period, the Company shall pay all interest
accrued and unpaid on the Debentures, including any Additional Interest and
Compounded Interest (together, "Deferred Interest") that shall be payable
to the holders of the Debentures in whose names the Debentures are
registered in the Security Register on the first record date after the end
of the Extended Interest Payment Period. Before the termination of any
Extended Interest Payment Period, the Company may further extend such
period, provided that such period together with all such further extensions
thereof shall not exceed 10 consecutive semi-annual interest payment
periods or extend beyond the maturity date of the Debentures. Upon the
termination of any Extended Interest Payment Period and upon the payment of
all Deferred Interest then due, the Company may commence a new Extended
Interest Payment Period, subject to the foregoing requirements. No interest
shall be due and payable during an Extended Interest Payment Period, except
at the end thereof, but the Company may prepay at any time all or any
portion of the interest accrued during an Extended Interest Payment Period.
SECTION 4.2 Notice of Extension.
(a) If the Institutional Trustee is the only registered holder
of the Debentures at the time the Company elects an Extended Interest
Payment Period, the Company shall give written notice to the Trustee, the
Administrative Trustees, and the Institutional Trustee of its election of
such Extended Interest Payment Period at least one Business Day before the
earlier of (i) the next succeeding date on which Distributions on the Trust
Securities issued by the Trust are payable, or (ii) the date the Trust is
required to give notice of the record date, or the date such Distributions
are payable, to any applicable self-regulatory organization or to holders
of the Capital Securities, but in any event at least one Business Day
before such record date.
(b) If the Institutional Trustee is not the only holder of the
Debentures at the time the Company elects an Extended Interest Payment
Period, the Company shall give the holders of the Debentures and the
Trustee written notice of its election of such Extended Interest Payment
Period at least 10 Business Days before the earlier of (i) the next
succeeding Interest Payment Date, or (ii) the date the Company is required
to give notice of the record or payment date of such interest payment to
any applicable self-regulatory organization or to holders of the
Debentures.
(c) The semi-annual interest payment period in which any notice
is given pursuant to paragraphs (a) or (b) of this Section 4.2 shall be
counted as one of the 10 semi-annual interest payment periods permitted in
the maximum Extended Interest Payment Period permitted under Section 4.1.
ARTICLE V
EXPENSES
SECTION 5.1 Payment of Expenses.
(a) In connection with the offering, sale and issuance of the
Debentures to the Institutional Trustee and in connection with the sale of
the Trust Securities by the Trust, the Company, in its capacity as borrower
with respect to the Debentures, shall:
(1) pay all costs and expenses relating to the offering,
sale and issuance of the Debentures, including commissions to the
underwriters payable pursuant to the Underwriting Agreement and
compensation of the Trustee under the Indenture in accordance with the
provisions of Section 7.6 of the Indenture;
(2) pay all costs and expenses of the Trust (including, but
not limited to, costs and expenses relating to the organization of the
Trust, the offering, sale and issuance of the Trust Securities (including
commissions to the underwriters in connection therewith), the fees and
expenses of the Institutional Trustee and the Delaware Trustee, the costs
and expenses relating to the operation of the Trust, including without
limitation, costs and expenses of accountants, attorneys, statistical or
bookkeeping services, expenses for printing and engraving and computing or
accounting equipment, paying agent(s), registrar(s), transfer agent(s),
duplicating, travel and telephone and other telecommunications expenses and
costs and expenses incurred in connection with the acquisition, financing,
and disposition of Trust assets); and
(3) pay any and all taxes (other than United States
withholding taxes attributable to the Trust or its assets) and all
liabilities, costs and expenses with respect to such taxes of the Trust.
(b) The obligations of the Company under paragraphs (a)(2) and
(a)(3) of this Section 5.1 are for the benefit of, and shall be enforceable
by, any person to whom any such liabilities, costs, expenses, and taxes are
owed (a "Creditor"), whether or not such Creditor has received notice
thereof. Any such Creditor may enforce such obligations of the Company
directly against the Company, and the Company irrevocably waives any right
or remedy to require that any such Creditor take any action against the
Trust or any other person before proceeding against the Company. The
Company shall execute such additional agreements as may be necessary or
desirable to give full effect to the provisions of this Section 5.1(b).
SECTION 5.2 Payment Upon Resignation or Removal.
Upon termination of this First Supplemental Indenture or the
Indenture or the removal or resignation of the Trustee pursuant to Section
7.10 of the Indenture, the Company shall pay to the Trustee all amounts
accrued and owing to the Trustee to the date of such termination, removal
or resignation. Upon termination of the Declaration or the removal or
resignation of the Delaware Trustee or the Institutional Trustee, as the
case may be, pursuant to Section 5.7 of the Declaration, the Company shall
pay to the Delaware Trustee or Institutional Trustee, as applicable, all
amounts accrued and owing to such Trustee to the date of such termination,
removal or resignation.
ARTICLE VI
FORM OF DEBENTURE
SECTION 6.1 Form of Debenture.
The Debentures and the Trustee's Certificate of Authentication to
be endorsed thereon are to be substantially in the following forms:
(FORM OF FACE OF DEBENTURE)
[IF THE Debenture IS TO BE A GLOBAL Debenture, INSERT - This
Debenture is a Global Debenture within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee of a Depositary. This Debenture is exchangeable for Debentures
registered in the name of a person other than the Depositary or its nominee
only in the limited circumstances described in the Indenture, and no
transfer of this Debenture (other than a transfer of this Debenture as a
whole by the Depositary to a nominee of the Depositary or by a nominee of
the Depositary to the Depositary or another nominee of the Depositary) may
be registered except in limited circumstances.
Unless this Debenture is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York,
New York) to the issuer or its agent for registration of transfer, exchange
or payment, and any Debenture issued is registered in the name of Cede &
Co. or such other name as requested by an authorized representative of The
Depository Trust Company and any payment hereon is made to Cede & CO., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL since the registered owner hereof, Cede & CO., has an interest
herein.]
No.
ARVIN INDUSTRIES, INC.
9.50% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE
DUE 2027
Arvin Industries, Inc., an Indiana corporation (the "Company",
which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
______________, or registered assigns, the principal sum of $103,100,000 on
February 1, 2027, and to pay interest on said principal sum from January
28, 1997, or from the most recent interest payment date (each such date, an
"Interest Payment Date") to which interest has been paid or duly provided
for, semi-annually (subject to deferral as set forth herein) in arrears on
February 1 and August 1 of each year commencing August 1, 1997, at the rate
of 9.50% per annum until the principal hereof shall have become due and
payable, plus Additional Interest, if any, and on any overdue principal and
premium, if any, and (without duplication and to the extent that payment of
such interest is enforceable under applicable law) on any overdue
installment of interest at the same rate per annum compounded semiannually.
The amount of interest payable on any Interest Payment Date shall be
computed on the basis of a 360-day year of twelve 30-day months. The amount
of interest payable for any period shorter than a full semi-annual interest
payment period for which interest is computed will be computed on the basis
of actual number of days elapsed in a 360-day year of twelve 30-day months.
In the event that any date on which interest is payable on this Debenture
is not a Business Day, then payment of interest payable on such date will
be made on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay), except that, if
such Business Day is in the next succeeding calendar year, such payment
shall be made on the immediately preceding Business Day, in each case with
the same force and effect as if made on such date. The interest installment
so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in the Indenture, be paid to the person in
whose name this Debenture (or one or more Predecessor Securities, as
defined in said Indenture) is registered at the close of business on the
regular record date for such interest installment, which shall be the close
of business on the business day next preceding such Interest Payment Date.
[IF THE CAPITAL SECURITIES ARE NO LONGER REPRESENTED BY A GLOBAL
CERTIFICATE OR IF THE DEBENTURES ARE NOT HELD BY THE INSTITUTIONAL TRUSTEE
AND ARE NOT REPRESENTED BY A GLOBAL DEBENTURE -- which shall be the close
of business on [insert regular record date selected by the Company in
accordance with Section 2.5].] Any such interest installment not punctually
paid or duly provided for shall forthwith cease to be payable to the
registered holders on such regular record date and may be paid to the
Person in whose name this Debenture (or one or more Predecessor Securities)
is registered at the close of business on a special record date to be fixed
by the Trustee for the payment of such defaulted interest, notice of which
shall be given to the registered holders of this series of Debentures not
less than 10 days prior to such special record date, or may be paid at any
time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Debentures may be listed, and upon
such notice as may be required by such exchange, all as more fully provided
in the Indenture. The principal of (and premium, if any) and the interest
on this Debenture shall be payable at the office or agency of the Trustee
maintained for that purpose in any coin or currency of the United States of
America that at the time of payment is legal tender for payment of public
and private debts; provided, however, that payment of interest may be made
at the option of the Company by check mailed to the registered holder at
such address as shall appear in the Security Register or by wire transfer
to an account appropriately designated by such holder. Notwithstanding the
foregoing, so long as the holder of this Debenture is the Institutional
Trustee, the payment of the principal of (and premium, if any) and interest
on this Debenture will be made at such place and to such account as may be
designated by the Institutional Trustee.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and junior in right of payment to
the prior payment in full of all Senior Indebtedness of the Company, and
this Debenture is issued subject to the provisions of the Indenture with
respect thereto. Each holder of this Debenture, by accepting the same, (a)
agrees to and shall be bound by such provisions, (b) authorizes and directs
the Trustee on his or her behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination so provided, and
(c) appoints the Trustee his or her attorney-in-fact for any and all such
purposes. Each holder hereof, by his or her acceptance hereof, hereby
waives all notice of the acceptance of the subordination provisions
contained herein and in the Indenture by each holder of Senior Indebtedness
of the Company, whether now outstanding or hereafter incurred, and waives
reliance by each such holder upon said provisions.
This Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for any
purpose until the Certificate of Authentication hereon shall have been
signed by or on behalf of the Trustee.
The provisions of this Debenture are continued on the reverse
side hereof and such continued provisions shall for all purposes have the
same effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
Dated
ARVIN INDUSTRIES, INC.
By:
Name:
Title:
Attest:
By:
Name:
Title:
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures of the series of Debentures
described in the within-mentioned Indenture.
WILMINGTON TRUST COMPANY or
as Trustee as Authenticating Agent
By By
Authorized Signatory Authorized Signatory
(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of Debentures
of the Company (herein sometimes referred to as the "Debentures"),
specified in the Indenture, all issued or to be issued in one or more
series under and pursuant to an Indenture dated as of January 28, 1997,
duly executed and delivered between the Company and Wilmington Trust
Company, as Trustee (the "Trustee"), as supplemented by the First
Supplemented Indenture dated as of January 28, 1997, between the Company
and the Trustee (the Indenture as so supplemented, the "Indenture"), to
which Indenture and all indentures supplemental thereto reference is hereby
made for a description of the rights, limitations of rights, obligations,
duties and immunities thereunder of the Trustee, the Company and the
holders of the Debentures. By the terms of the Indenture, the Debentures
are issuable in series that may vary as to amount, date of maturity, rate
of interest and in other respects as provided in the Indenture. This series
of Debentures is limited in aggregate principal amount as specified in said
First Supplemental Indenture.
Subject to the provisions of Article III of the Indenture, the
Company has the right to redeem this Debenture (i) on or after February 1,
2007, in whole at any time or in part from time to time, or (ii) in the
event that a Tax Event (as defined in the First Supplemental Indenture)
shall occur and be continuing, then prior to February 1, 2007, in whole
(but not in part) within 90 days following the occurrence of such Tax Event
upon not less than 30 nor more than 60 days' prior written notice, at the
redemption price specified below (the "Redemption Price"), plus any accrued
and unpaid interest, including Additional Interest, if any, thereon to the
date of such redemption (the "Redemption Date"); provided, however, that
the
-------- -------
Company shall not redeem the Debentures in part unless all accrued but
unpaid interest has been paid in full on all of the Debentures for all semi-
annual interest payment periods terminating on or prior to the Redemption
Date.
The Redemption Price, in the case of a redemption under (i)
above, shall equal the following prices, expressed in percentages of the
principal amount of the Debentures, if the Debentures are redeemed during
the 12-month period beginning February 1 of the years indicated below:
REDEMPTION
YEAR PRICE
2007 104.192%
2008 103.772%
2009 103.353%
2010 102.934%
2011 102.515%
2012 102.096%
2013 101.677%
2014 101.257%
2015 100.838%
2016 100.419%
and at 100% on or after February 1, 2017.
The Redemption Price, in the case of a redemption prior to
February 1, 2007 following a Tax Event, as described under (ii) above,
shall equal a Make-Whole Amount, equal to the greater of (i) 100% of the
principal amount of the Debentures or (ii) as determined by a Quotation
Agent (as defined below), the sum of the present values of (A) the
principal amount and premium payable as part of the Redemption Price with
respect to an optional redemption of such Debentures on February 1, 2007,
and (B) the scheduled payments of interest from the Redemption Date to
February 1, 2007 (the "Remaining Life"), in each case discounted to the
Redemption Date on a semi-annual basis (assuming a 360-day year consisting
of 30-day months) at the Adjusted Treasury Rate (as defined below).
"Adjusted Treasury Rate" means, with respect to any Redemption
Date, the Treasury Rate (as defined below) plus (i) 1.50% if such
Redemption Date occurs on or before February 1, 1998 or (ii) 0.50% if such
Redemption Date occurs after February 1, 1998.
"Treasury Rate" mean (i) the yield, under the heading which
represents the average for the immediately prior week, appearing in the
most recently published statistical release designated "H.15(519)" or any
successor publication which is published weekly by the Federal Reserve and
which establishes yields on actively traded United States Treasury
securities adjusted to constant maturity under the caption "Treasury
Constant Maturities," for the maturity corresponding to the Remaining Life
(if no maturity is within three months before or after the Remaining Life,
yields for the two published maturities most closely corresponding to the
Remaining Life shall be determined and the Treasury Rate shall be
interpolated or extrapolated from such yields on a straight-line basis,
rounding to the nearest month) or (ii) if such release (or any successor
release) is not published during the week preceding the calculation date or
does not contain such yields, the rate per annum equal to the semi-annual
equivalent yield to maturity of the Comparable Treasury Issue (as defined
below), calculated using a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Redemption Date. The Treasury Rate shall be
calculated on the third Business Day preceding the Redemption Date.
"Comparable Treasury Issue" means, with respect to any Redemption
Date, the United States Treasury security selected by the Quotation Agent
as having a maturity comparable to the Remaining Life that would be
utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities of
comparable maturity to the Remaining Life. If no United States Treasury
security has a maturity which is within a period from three months before
to three months after February 1, 2007, the two most closely corresponding
United States Treasury securities shall be used as the Comparable Treasury
Issue, and the Treasury Rate shall be interpolated or extrapolated on a
straight-line basis, rounding to the nearest month using such securities.
"Quotation Agent" means Merrill Lynch Government Securities, Inc.
and its successors; provided, however, that if the foregoing shall cease to
-------- -------
be a primary U.S. Government securities dealer in New York City (a "Primary
Treasury Dealer"), the Company shall substitute therefor another Primary
Treasury Dealer.
"Reference Treasury Dealer" means (i) the Quotation Agent and
(ii) any other Primary Treasury Dealer selected by the Trustee after
consultation with the Company.
"Comparable Treasury Price" means, with respect to any Redemption
Date, (i) the average of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal
amount) on the third Business Day preceding such Redemption Date, as set
forth in the most recent weekly statistical release (or any successor
release) published by the Federal Reserve and designated "H.15(519)" or
(ii) if such release (or any successor release) is not published or does
not contain such prices during the week preceding such Business Day, (A)
the average of five Reference Treasury Dealer Quotations for such
Redemption Date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (B) if the Trustee obtains fewer than three
such Reference Treasury Dealer Quotations, the average of all such
Reference Treasury Dealer Quotations.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any Redemption Date, the average, as
determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal
amount) quoted in writing to the Trustee by such Reference Treasury Dealer
at 5:00 p.m., New York City time, on the third Business Day preceding such
Redemption Date.
If the Debentures are only partially redeemed by the Company, the
Debentures will be redeemed pro rata or by lot or by any other method
utilized by the Trustee; provided that if, at the time of redemption, the
Debentures are registered as a Global Debenture, the Depositary shall
determine the principal amount of such Debentures held by each holder to be
redeemed in accordance with its procedures.
In the event of redemption of this Debenture in part only, a new
Debenture or Debentures of this series for the unredeemed portion hereof
will be issued in the name of the holder hereof upon the cancellation
hereof.
In case an Event of Default, as defined in the Indenture, shall
have occurred and be continuing, the principal of all of the Debentures may
be declared, and upon such declaration shall become immediately due and
payable, in the manner, with the effect and subject to the conditions
provided in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of the Debentures of each series affected at the
time Outstanding, as defined in the Indenture, to execute supplemental
indentures for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Indenture or of any
supplemental indenture or of modifying in any manner the rights of the
holders of the Debentures; provided, however, that no such supplemental
-------- -------
indenture shall (i) extend the fixed maturity of any Debentures of any
series, or reduce the principal amount thereof, or reduce the rate or
extend the time of payment of interest thereon, or reduce any premium
payable upon the redemption thereof, without the consent of the holder of
each Debenture so affected, or (ii) reduce the aforesaid percentage of
Debentures, the holders of which are required to consent to any such
supplemental indenture, without the consent of the holders of each
Debenture then Outstanding and affected thereby. The Indenture also
contains provisions permitting the holders of a majority in aggregate
principal amount of the Debentures of any series at the time outstanding
affected thereby, on behalf of all of the holders of the Debentures of such
series, to waive any past default in the performance of any of the
covenants contained in the Indenture, or established pursuant to the
Indenture with respect to such series, and its consequences, except a
default in the payment of the principal of or premium, if any, or interest
on any of the Debentures of such series. Any such consent or waiver by the
registered holder of this Debenture (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such holder and upon all
future holders and owners of this Debenture and of any Debenture issued in
exchange herefor or in place hereof (whether by registration of transfer or
otherwise), irrespective of whether or not any notation of such consent or
waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest on this Debenture at the time and place and
at the rate and in the money herein prescribed.
The Company shall have the right at any time during the term of
the Debentures and from time to time to extend the interest payment period
of such Debentures for up to 10 consecutive semi-annual interest payment
periods (an "Extended Interest Payment Period"), at the end of which period
the Company shall pay all interest then accrued and unpaid (together with
interest thereon at the rate specified for the Debentures to the extent
that payment of such interest is enforceable under applicable law);
provided that no Extended Interest Payment Date may extend beyond the
maturity date of the Debentures. Before the termination of any such
Extended Interest Payment Period, the Company may further extend such
Extended Interest Payment Period, provided that such Extended Interest
Payment Period together with all such further extensions thereof shall not
exceed 10 consecutive semi-annual interest payment periods. At the
termination of any such Extended Interest Payment Period and upon the
payment of all accrued and unpaid interest and any additional amounts then
due, the Company may commence a new Extended Interest Payment Period.
As provided in the Indenture and subject to certain limitations
therein set forth, this Debenture is transferable by the registered holder
hereof on the Security Register of the Company, upon surrender of this
Debenture for registration of transfer at the Corporate Trust Office of the
Trustee or such other location designated by the Company pursuant to the
Indenture accompanied by a written instrument or instruments of transfer in
form satisfactory to the Company or the Trustee duly executed by the
registered holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Debentures of authorized denominations and for
the same aggregate principal amount and series will be issued to the
designated transferee or transferees. No service charge will be made for
any such transfer, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, any paying agent and the Security
Registrar may deem and treat the registered holder hereof as the absolute
owner hereof (whether or not this Debenture shall be overdue and
notwithstanding any notice of ownership or writing hereon made by anyone
other than the Security Registrar) for the purpose of receiving payment of
or on account of the principal hereof and premium, if any, and interest due
hereon and for all other purposes, and neither the Company nor the Trustee
nor any paying agent nor any Security Registrar shall be affected by any
notice to the contrary.
No recourse shall be had for the payment of the principal of or
the interest on this Debenture, or for any claim based hereon, or otherwise
in respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the
issuance hereof, expressly waived and released.
[The Debentures of this series are issuable only in registered
form without coupons in denominations of $1,000 and any integral multiple
thereof.] [This Global Debenture is exchangeable for Debentures in
definitive form only under certain limited circumstances set forth in the
Indenture. Debentures of this series so issued are issuable only in
registered form without coupons in denominations of $1,000 and any integral
multiple thereof.] As provided in the Indenture and subject to certain
limitations herein and therein set forth, Debentures of this series so
issued are exchangeable for a like aggregate principal amount of Debentures
of this series of a different authorized denomination, as requested by the
holder surrendering the same.
All terms used in this Debenture that are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
ARTICLE VII
ORIGINAL ISSUE OF DEBENTURES
SECTION 7.1 Original Issue of Debentures.
Debentures in the aggregate principal amount of $103,100,000 may,
upon execution of this First Supplemental Indenture, be executed by the
Company and delivered to the Trustee for authentication, and the Trustee
shall thereupon authenticate and deliver said Debentures to or upon the
written order of the Company, signed by its President, or any Vice
President and its Treasurer or an Assistant Treasurer, without any further
action by the Company.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 Ratification of Indenture.
The Indenture, as supplemented by this First Supplemental
Indenture, is in all respects ratified and confirmed, and this First
Supplemental Indenture shall be deemed part of the Indenture in the manner
and to the extent herein and therein provided.
SECTION 8.2 Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Company and not by
the Trustee, and the Trustee assumes no responsibility for the correctness
thereof. The Trustee makes no representation as to the validity or
sufficiency of this First Supplemental Indenture.
SECTION 8.3 Governing Law.
This First Supplemental Indenture and each Debenture shall be
deemed to be a contract made under the internal laws of the State of New
York, and for all purposes shall be construed in accordance with the laws
of said State.
SECTION 8.4 Separability.
In case any one or more of the provisions contained in this First
Supplemental Indenture or in the Debentures shall for any reason be held to
be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of
this First Supplemental Indenture or of the Debentures, but this First
Supplemental Indenture and the Debentures shall be construed as if such
invalid or illegal or unenforceable provision had never been contained
herein or therein.
SECTION 8.5 Counterparts.
This First Supplemental Indenture may be executed in any number
of counterparts each of which shall be an original, but such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed on the date or dates indicated
in the acknowledgments and as of the day and year first above written.
ARVIN INDUSTRIES, INC.
By: /s/ Richard A. Smith
Name: Richard A. Smith
Title: Vice President-Finance and
Chief Financial Officer
WILMINGTON TRUST COMPANY
not in its individual capacity
but solely as Trustee
By: /s/ James P. Lawler
Name: James P. Lawler
Title: Vice President
STATE OF INDIANA )
) SS:
COUNTY OF Bartholomew )
On the 28th day of January, 1997, before me personally came
Richard A. Smith to me known, who, being by me duly sworn, did depose and
say that he is the Vice President-Finance and Chief Financial Officer of
ARVIN INDUSTRIES, INC., one of the corporations described in and which
executed the above instrument, and that he signed his name thereto by
authority of the Board of Directors of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
seal of office this 28th day of January, 1997.
/s/ Patty S. Frazier
Notary Public Patty S. Frazier
My commission expires 4/28/99
STATE OF ILLINOIS )
) SS:
COUNTY OF COOK )
On the 28th day of January, 1997, before me personally came
James P. Lawler to me known, who, being by me duly sworn, did
depose and say he is Vice President of WILMINGTON TRUST
COMPANY, one of the corporations described in and which executed the above
instrument, and that he signed his name thereto by authority of the Board
of Directors of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
seal of office this 28th day of January, 1997.
/s/ Mary A. Spengler
----------------------------
Notary Public
OFFICIAL SEAL
MARY A. SPENGLER
NOTARY PUBLIC STATE OF ILLINOIS
MY COMMISSION EXP. AUG. 5, 1997
