Registration No. 333-_________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ARVIN INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
INDIANA 35-0550190
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification number)
ONE NOBLITT PLAZA
BOX 3000
COLUMBUS, INDIANA 47202-3000
(812) 379-3000
(ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER, INCLUDING AREA
CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICE)
-----------------------------
Ronald R. Snyder
Vice President, General Counsel and Secretary
Arvin Industries, Inc.
One Noblitt Plaza
Box 3000
Columbus, Indiana 47202-3000
(812) 379-3000
(Name, address, including zip code and telephone number,
including area code, of agent for service)
-----------------------
COPY TO:
FREDERICK L. HARTMANN
SCHIFF HARDIN & WAITE
6600 SEARS TOWER
CHICAGO, ILLINOIS 60606
-------------------------<PAGE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: FROM
TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
If the only securities being registered on the Form are being
offered pursuant to dividend or interest reinvestment plans, please
check the following box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in
connection with dividend or interest reinvestment plans, check the
following box. [X ]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for
the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. [ ]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Amount Maximum Maximum
Title of Each Class of to be Offering Price Aggregate Amount of
Securities to be Registered Registered<1> Per Unit<2> Offering Price<2> Registration Fee
<S> <C> <C> <C> <C>
Debt Securities<4> . . . . . . .
Preferred Shares, without
par value <5><6> . . . . . . . .
Depositary Shares<6> . . . . . . <3> <3> <3>
Common Shares, $2.50 par value,
and related Preferred Share
Purchase Rights<7> . . . . . . .
Share Purchase Contracts<7> . . .
Share Purchase Units<7> . . . . .
Warrants<8> . . . . . . . . . .
TOTAL $400,000,000<1> _________ $400,000,000<2> $111,200<PAGE>
<1> In no event will the initial offering price of all securities issued from time to time pursuant to this
Registration Statement exceed $400,000,000 (or the equivalent, based on the applicable exchange rate at the
time of sale, thereof in other currency or currency units if any securities are denominated in, or sold for,
other than U.S. dollars). Any securities registered hereunder may be sold separately or as units with other
securities registered hereunder.
<2> Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o).
<3> Not applicable pursuant to Form S-3, General Instruction II.D.
<4> Subject to note (1), there are being registered hereunder an indeterminate principal amount of Debt
Securities. See "Description of the Debt Securities." If any Debt Securities are being issued at an
original issue discount, then the offering shall be in such greater principal amount as shall result in an
approximate initial offering price not to exceed $400,000,000, less the amount of any securities previously
issued hereunder. There are also being registered hereunder an indeterminate number of Debt Securities as
shall be issuable upon conversion of subordinated Debt Securities or Preferred Shares registered hereby.
<5> Subject to note (1), there are being registered hereunder an indeterminate number of Preferred Shares as may
be sold, from time to time, by the Registrant. See "Description of Capital Shares -- Preferred Shares."
There are also being registered hereunder an indeterminate number of Preferred Shares as shall be issuable
upon conversion of subordinated Debt Securities or Preferred Shares registered hereby.
<6> Subject to note (1), there are being registered hereunder an indeterminate number of Depositary Shares to be
evidenced by Depositary Receipts issued pursuant to a Deposit Agreement. See "Description of Depositary
Shares." In the event the Registrant elects to offer to the public fractional interests in Preferred Shares
registered hereunder, the Preferred Shares may be issued to the depositary under a Deposit Agreement, and
Depositary Receipts will be issued by the depositary.
<7> Subject to note (1), there are being registered hereunder an indeterminate number of Common Shares and
related Preferred Share Purchase Rights as may be sold, from time to time, by the Registrant. The aggregate
amount of Common Shares registered is further limited to that which is permissible under Rule 415(a)(4) under
the Securities Act. Prior to the occurrence of certain events, the Rights will not be exercisable or
evidenced separately from the Common Shares. See "Description of Capital Shares -- Common Shares" and "--
Preferred Share Purchase Rights." There are also being registered hereunder an indeterminate number of
Common Shares and related Preferred Share Purchase Rights as shall be issuable upon conversion of
subordinated Debt Securities or Preferred Shares registered hereby. There are being registered hereunder an
indeterminate number of Common Shares as may be issued, from time to time, by the Registrant upon settlement
of the Share Purchase Contracts or Share Purchase Units. See "Description of Share Purchase Contracts and
Share Purchase Units."
<8> Subject to note (1), there are being registered hereunder an indeterminate amount and number of Warrants,
representing rights to purchase Preferred Shares, Common Shares or Debt Securities registered hereby.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO
DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY
STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION
8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH
DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
/TABLE
<PAGE>
SUBJECT TO COMPLETION MAY 7, 1999
PROSPECTUS
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[ARVIN LOGO]
ARVIN INDUSTRIES, INC.
$400,000,000
DEBT SECURITIES
PREFERRED SHARES
DEPOSITARY SHARES
COMMON SHARES
SHARE PURCHASE CONTRACTS
SHARE PURCHASE UNITS
WARRANTS
-------------------
WE WILL PROVIDE SPECIFIC TERMS OF THESE SECURITIES IN SUPPLEMENTS TO
THIS PROSPECTUS.
You should read this prospectus and any supplement carefully before
you invest.
-------------------
THESE SECURITIES HAVE NOT BEEN APPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAVE THESE
ORGANIZATIONS DETERMINED THAT THIS PROSPECTUS IS ACCURATE OR COMPLETE.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this prospectus is _________________, 1999.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE
CHANGED. WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION
STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS
EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES
AND IT IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE
WHERE THE OFFER OR SALE IS NOT PERMITTED. <PAGE>
TABLE OF CONTENTS
Page
----
SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
THE SECURITIES WE MAY OFFER . . . . . . . . . . . . . . . . 1
DEBT SECURITIES . . . . . . . . . . . . . . . . . . . . . . 1
PREFERRED SHARES AND DEPOSITARY SHARES . . . . . . . . . . . 2
COMMON SHARES . . . . . . . . . . . . . . . . . . . . . . . 3
SHARE PURCHASE CONTRACTS AND SHARE PURCHASE UNITS . . . . . 3
WARRANTS . . . . . . . . . . . . . . . . . . . . . . . . . . 3
RATIOS OF EARNINGS TO FIXED CHARGES AND EARNINGS TO
COMBINED FIXED CHARGES AND PREFERRED SHARE DIVIDENDS . . . . . . 3
WHERE YOU CAN FIND MORE INFORMATION . . . . . . . . . . . . . . . 4
ARVIN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
USE OF PROCEEDS . . . . . . . . . . . . . . . . . . . . . . . . . 5
DESCRIPTION OF THE DEBT SECURITIES . . . . . . . . . . . . . . . 5
PROVISIONS APPLICABLE TO BOTH SENIOR AND SUBORDINATED DEBT
SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . 5
GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . 5
REGISTRATION, TRANSFER AND EXCHANGE . . . . . . . . . . . . 7
CONSOLIDATION, MERGER AND SALE OF ASSETS . . . . . . . . . . 7
MODIFICATION AND WAIVER . . . . . . . . . . . . . . . . . . 7
SATISFACTION AND DISCHARGE OF AN INDENTURE . . . . . . . . . 8
EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . 9
BOOK-ENTRY DEBT SECURITIES . . . . . . . . . . . . . . . . . 10
YEAR 2000 COMPLIANCE . . . . . . . . . . . . . . . . . . . . 14
INFORMATION CONCERNING THE TRUSTEE . . . . . . . . . . . . . 15
GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . 15
PROVISIONS APPLICABLE SOLELY TO SENIOR DEBT SECURITIES . . . . . 15
COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . 15
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . 18
PROVISIONS APPLICABLE SOLELY TO SUBORDINATED DEBT SECURITIES . . 20
SUBORDINATION . . . . . . . . . . . . . . . . . . . . . . . 20
CONVERSION . . . . . . . . . . . . . . . . . . . . . . . . . 21
DESCRIPTION OF CAPITAL SHARES . . . . . . . . . . . . . . . . . . 23
GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . 23
COMMON SHARES . . . . . . . . . . . . . . . . . . . . . . . 23
PROVISIONS WITH POSSIBLE ANTI-TAKEOVER EFFECTS . . . . . . . 24
PREFERRED SHARE PURCHASE RIGHTS . . . . . . . . . . . . . . 26
PREFERRED SHARES . . . . . . . . . . . . . . . . . . . . . . 27
DESCRIPTION OF SHARE PURCHASE CONTRACTS AND SHARE PURCHASE UNITS 29
DESCRIPTION OF DEPOSITARY SHARES . . . . . . . . . . . . . . . . 29
GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . 29
DIVIDENDS AND OTHER DISTRIBUTIONS . . . . . . . . . . . . . 30
REDEMPTION OF DEPOSITARY SHARES . . . . . . . . . . . . . . 30<PAGE>
VOTING THE PREFERRED SHARES . . . . . . . . . . . . . . . . 31
AMENDMENT AND TERMINATION OF DEPOSITARY AGREEMENT . . . . . 31
CHANGES OF DEPOSITARY . . . . . . . . . . . . . . . . . . . 31
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . 32
DESCRIPTION OF WARRANTS . . . . . . . . . . . . . . . . . . . . . 32
DEBT WARRANTS . . . . . . . . . . . . . . . . . . . . . . . 32
EQUITY WARRANTS . . . . . . . . . . . . . . . . . . . . . . 33
PLAN OF DISTRIBUTION . . . . . . . . . . . . . . . . . . . . . . 34
LEGAL OPINIONS . . . . . . . . . . . . . . . . . . . . . . . . . 35
EXPERTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36<PAGE>
SUMMARY
This summary highlights selected information from this document
and does not contain all of the information that is important to you.
To understand the terms of our securities, you should carefully read
this document with the attached prospectus supplement. Together, these
documents will give the specific terms of the securities we are
offering. You should also read the documents we have incorporated by
reference into this prospectus for information about us and our
financial statements.
THE SECURITIES WE MAY OFFER
This prospectus is part of a registration statement that we filed
with the SEC utilizing a "shelf" registration process. Under this
shelf registration, we may offer from time to time up to $400,000,000
of any of the following securities, either separately or in units:
debt securities, preferred shares, depositary shares, common shares,
share purchase contracts relating to the common shares, share purchase
units, and warrants. This prospectus provides you with a general
description of the securities we may offer. Each time we offer
securities, we will provide you with a prospectus supplement that will
describe the specific amounts, prices and terms of the securities
being offered. The prospectus supplement may also add, update or
change information contained in this prospectus.
DEBT SECURITIES
We may offer unsecured general obligations of Arvin, which may be
senior or subordinate. In this prospectus, we refer to the senior debt
securities and the subordinated debt securities together as the "debt
securities." The senior debt securities will have the same rank as all
of our other unsecured and unsubordinated debt. The subordinated debt
securities will be entitled to payment only after payment on our
senior indebtedness. Senior indebtedness includes all indebtedness for
money borrowed by Arvin, except indebtedness that by its terms is not
superior to, or has the same rank as, the subordinated debt
securities.
The senior debt securities will be issued under an indenture
between us and Harris Trust and Savings Bank as the trustee. The
subordinated debt securities will be issued under an indenture between
us and the trustee we name in a prospectus supplement. We have
summarized general features of the debt securities from the
indentures. We encourage you to read the indentures which are exhibits
to the registration statement and our recent periodic and current
reports filed with the SEC.
SENIOR AND SUBORDINATED DEBT SECURITIES. The indentures do not
limit the amount of debt that we may issue. The indentures do not
provide holders any protection in the event of a recapitalization or
restructuring involving Arvin. Also, neither indenture provides
holders with any special protection in the event of a highly leveraged
transaction.
The indentures allow us to merge or consolidate with another
company, or to sell all or most of our assets to another company. If
1<PAGE>
these events occur, the other company will be required to assume all
our responsibilities relating to the debt securities.
The indentures provide that holders of a majority of the
outstanding principal amount of any series of debt securities may vote
to change our obligations or your rights concerning that series.
However, to change the amount or timing of principal, interest or
other payments under the debt securities, every holder in the series
must consent.
We may discharge our obligations under the indentures by
depositing with the trustee sufficient funds or government obligations
to pay the debt securities when due.
EVENTS OF DEFAULT. Each indenture provides that the following
are events of default:
- If we do not pay interest for 30 days after its due date.
- If we do not pay principal or any premium when due.
- If we do not make any sinking fund payment when due.
- If we continue to breach a covenant or warranty for 90 days
after notice.
- If we fail to pay principal or interest on other significant
indebtedness of Arvin when due.
- If we enter bankruptcy, become insolvent or reorganize.
Upon the bankruptcy, insolvency, or reorganization of Arvin, all
unpaid principal, accrued interest and any premium on any series of
outstanding debt securities will become immediately payable without
any declaration or act of the trustee or the holders. If any other
event of default occurs with respect to any series of debt securities,
the trustee or holders of at least 25% of the outstanding principal
amount of that series may declare the principal amount of the series
immediately payable. However, holders of a majority of the principal
amount may rescind this action.
SENIOR DEBT SECURITIES. The indenture relating to the senior
debt securities contains covenants restricting our ability to incur
secured indebtedness, to enter into sale and leaseback transactions
and to transfer assets to some of our subsidiaries.
SUBORDINATED DEBT SECURITIES. All payments on the subordinated
debt securities are subordinated in right of payment to the prior
payment in full of all senior indebtedness.
PREFERRED SHARES AND DEPOSITARY SHARES
We may issue our preferred shares, no par value, in one or more
series. Our board of directors will determine the dividend, voting,
conversion and other rights of the series of preferred shares being
offered. We may also issue fractional shares of the preferred shares
that will be represented by depositary shares and depositary receipts.
2<PAGE>
COMMON SHARES
We may issue our common shares, par value $2.50 per share.
Holders of common shares are entitled to receive dividends when
declared by the board of directors, subject to the rights of holders
of preferred shares. Each holder of common shares is entitled to one
vote per share. The holders of common shares have no preemptive rights
or cumulative voting rights.
SHARE PURCHASE CONTRACTS AND SHARE PURCHASE UNITS
We may issue share purchase contracts for the purchase of our
common shares. We also may issue share purchase units, each of which
will consist of a share purchase contract and a debt security or a
debt obligation of a third party, including a U.S. Treasury security.
The debt security or debt obligation of a third party may be pledged
as collateral to secure the holder's obligation to purchase common
shares under the share purchase contract. Our board of directors will
determine the terms of the offering, including the terms of the share
purchase contracts and information about the security or obligation
that will secure the holder's obligation to purchase common shares.
WARRANTS
We may issue warrants for the purchase of debt securities,
preferred shares, depositary shares or common shares. We may issue
warrants independently or together with other securities.
RATIOS OF EARNINGS TO FIXED CHARGES AND EARNINGS TO
COMBINED FIXED CHARGES AND PREFERRED SHARE DIVIDENDS
Our ratio of earnings to fixed charges and our ratio of earnings
to combined fixed charges and preferred share dividends for each of
the periods indicated are as follows:
<TABLE>
<CAPTION>
FISCAL YEAR ENDED
---------------------------------------------------------------
JAN. 3, DEC. 28, DEC. 29, DEC. 31, JAN. 1,
1999 1997 1996 1995 1995
----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges.................... 3.7 3.2 2.4 1.6 1.8
Ratio of Earnings to Combined Fixed Charges and
Preferred Dividends................................ 3.7 3.2 2.4 1.6 1.8
</TABLE>
For purposes of calculating the ratios, earnings consist of
earnings from continuing operations before income taxes, adjusted for
the portion of fixed charges deducted from these earnings. Fixed
charges consist of interest on all indebtedness, including capital
lease obligations and capitalized interest, amortization of debt
expense and the percentage of rental expense on operating leases
deemed representative of the interest factor. The ratio of earnings to
fixed charges, before the restructuring and special charges, for 1995
was 1.9 and for 1994 was 2.4. No preferred shares were outstanding
during the periods, and no preferred dividends were paid.
3<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements
and other information with the SEC. You may read and copy any document
we file at the SEC's public reference rooms in Washington, D.C., New
York, New York and Chicago, Illinois. Please call the SEC at (800)SEC-
0330 for further information on the public reference rooms. Our SEC
filings are also available to the public at the SEC's web site at
http://www.sec.gov.
The SEC allows us to "incorporate by reference" into this
prospectus the information we file with it, which means that we can
disclose important information to you by referring you to those
documents. The information incorporated by reference is considered to
be part of this prospectus, and later information that we file with
the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future
filings made with the SEC under section 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act of 1934 until our offering is completed:
(1) Arvin's Annual Report on Form 10-K for the fiscal year ended
January 3, 1999;
(2) Arvin's Current Reports on Form 8-K dated March 4, 1999 and
March 12, 1999; and
(3) The description of the common shares contained in Arvin's
registration statement on Form 8-A, filed June 19, 1950,
supplementing Arvin's registration statement on Form 10,
filed October 25, 1939, and the description of the
associated preferred share purchase rights contained in
Arvin's registration statement on Form 8-A, dated June 10,
1986, as amended February 28, 1989, December 9, 1994 and May
10, 1996, in each case as filed under section 12 of the
Securities Exchange Act.
You may request a copy of these filings at no cost, by writing to
or telephoning us at the following address and telephone number:
Arvin Industries, Inc., Shareholder Relations, One Noblitt Plaza, Box
3000, Columbus, Indiana 47202-3000 and (812)379-3000.
You should rely only on the information incorporated by reference
or provided in this prospectus or any prospectus supplement. We have
not authorized anyone else to provide you with different information.
We are not making an offer of these securities in any state where the
offer is not permitted. You should not assume that the information in
this prospectus or any prospectus supplement is accurate as of any
date other than the date on the front of the document.
ARVIN
We are a focused international manufacturer and supplier of
automotive parts with more than 50 manufacturing facilities and eight
technical centers located in 21 countries. We are a worldwide leader
in automotive exhaust systems and ride control products for the
original equipment and replacement markets. Through our acquisition
of the Purolator Products automotive filter business, we are also a
North American leader in the automotive filter market. Since our
4<PAGE>
founding in 1919, we have grown through internal development,
acquisitions and international joint ventures. In recent years, our
strategy has been to strengthen our automotive parts businesses by
achieving a mix of sales to both original equipment manufacturers and
replacement market parts suppliers on a global basis.
We were incorporated in Indiana in 1921. Our principal executive
offices are located at One Noblitt Plaza, Box 3000, Columbus, Indiana
47202-3000, and our telephone number is (812) 379-3000. Our common
shares are listed on the New York Stock Exchange and the Chicago Stock
Exchange under the symbol "ARV."
USE OF PROCEEDS
Unless otherwise specified in the applicable prospectus
supplement, the net proceeds we receive from the sale of the
securities offered by this prospectus and the attached prospectus
supplement will be used for general corporate purposes. General
corporate purposes may include the repayment of debt, working capital
expenditures and acquisitions or investments in businesses and assets.
The net proceeds may be invested temporarily or applied to repay
short-term debt until they are used for their stated purpose.
DESCRIPTION OF THE DEBT SECURITIES
The following description of the debt securities sets forth
general terms that may apply to the debt securities. The particular
terms of any debt securities will be described in a prospectus
supplement relating to those debt securities.
The debt securities will be either our senior debt securities or
our subordinated debt securities. The senior debt securities will be
issued under an indenture dated as of July 3, 1990, and supplemented
on March 31, 1994, between us and Harris Trust and Savings Bank as the
trustee. This indenture is referred to as the "senior indenture." The
subordinated debt securities will be issued under an indenture to be
entered into between us and a trustee named in the prospectus
supplement. This indenture is referred to as the "subordinated
indenture." The senior indenture and the subordinated indenture are
together called the "indentures."
The following is a summary of important provisions of the
indentures. Copies of the entire indentures are exhibits to the
registration statement of which this prospectus is a part. Section
references below are to the section in the applicable indenture. The
referenced sections of the indentures are incorporated by reference.
PROVISIONS APPLICABLE TO BOTH SENIOR AND SUBORDINATED DEBT SECURITIES
GENERAL
Neither indenture limits the total principal amount of debt
securities that we may issue. Each indenture provides that we may
issue debt securities in one or more series from time to time up to
the total principal amount that we have authorized. The senior debt
securities will be unsecured and will have the same rank as all of our
other unsecured and unsubordinated debt. The subordinated debt
securities will be unsecured and will be subordinated and junior to
5<PAGE>
all of our senior indebtedness. Neither indenture limits the amount
of other unsecured indebtedness or securities that we may issue.
The debt securities may be issued in one or more separate series
of senior debt securities or subordinated debt securities. The
prospectus supplement relating to the particular series of debt
securities being offered will specify the particular amounts, prices
and terms of those debt securities. These terms may include:
- the title of the debt securities;
- the series of the debt securities;
- their total principal amount and denominations;
- the date or dates on which they will mature;
- their interest rate or rates, or the method of determining
those rates;
- their interest payment dates and the record dates for
interest payments;
- any premium payments, including any conditions;
- the manner of making principal, interest and any premium
payments on the debt securities;
- the places where principal, interest and any premium
payments may be made;
- the currency or currencies in which payments on the debt
securities will be payable, if other than U.S. dollars;
- the ranking of the debt securities as senior or
subordinated;
- any mandatory or optional redemption provisions;
- any sinking fund provisions;
- any conversion provisions, in the case of subordinated debt
securities;
- any additional information about book-entry procedures;
- the portion of the principal amount of any debt security
payable upon the acceleration of maturity, if other than the
full principal amount;
- the method of determining the amount of any payments on the
debt securities which are linked to an index;
- whether the debt securities will be issued in fully
registered form without coupons or in bearer form, with or
without coupons, or both, and whether they will be issued in
global form; and
6<PAGE>
- any other specific terms of the debt securities.
Principal, interest and any premium will be payable in the
manner, at the places and subject to the restrictions provided in the
applicable indenture. Unless otherwise specified in the prospectus
supplement, payment of any interest may be made at our option by check
mailed to the holders of the registered debt securities at their
registered addresses.
The indentures permit us to issue debt securities with terms
different from those previously issued and to "reopen" a previous
issue and issue additional debt securities of that series.
REGISTRATION, TRANSFER AND EXCHANGE
The debt securities will be issued in fully registered form
without coupons, unless the prospectus supplement contains provisions
relating to bearer securities. The applicable indenture, debt
securities and prospectus supplement will describe the manner in which
and the places where the debt securities may be registered for
transfer or exchanged. No service charge will be payable upon the
registration of transfer or exchange of debt securities, except for
any applicable tax or governmental charge.
CONSOLIDATION, MERGER AND SALE OF ASSETS
We may consolidate with, or sell, lease or convey all or most of
our assets to, or merge with or into, any other corporation, as long
as:
- if we are not the continuing corporation, the successor
corporation is organized and existing under U.S. or state
law;
- the successor corporation by supplemental indenture
expressly assumes the payments on the debt securities and
duly and punctually performs and observes all covenants and
conditions of the applicable indenture to be performed by
us; and
- we or the successor corporation are not in default in the
performance of any of those covenants or conditions
immediately after the merger or consolidation or the sale,
lease or conveyance.
MODIFICATION AND WAIVER
Arvin and the applicable trustee may modify and amend either
indenture with the consent of the holders of at least a majority in
total principal amount of the outstanding debt securities of each
affected series. However, no modification or amendment may, without
the consent of the holder of each affected outstanding debt security:
- change the stated maturity of the principal or any interest;
- reduce the principal amount, the interest rate or any
premium upon redemption;
7<PAGE>
- reduce the principal amount of an original issue discount
debt security that would be due and payable upon
acceleration of its maturity;
- change the currency in which any debt security or interest
or any premium on the debt security is payable;
- impair the right to enforce any payment on or after its
stated maturity or the redemption or repayment date;
- in the case of subordinated debt securities, adversely
modify any subordination provision;
- reduce the percentage in principal amount of any series of
outstanding debt securities whose holders' consent is
required for any amendment or waiver; or
- modify any of the provisions described in this paragraph,
except to increase any percentage or to provide that other
provisions of the indenture cannot be modified or waived
without the consent of the holder of each affected
outstanding debt security. (Section 902)
Except for these matters, the holders of at least a majority in
principal amount of any series of outstanding debt securities may
waive past defaults, other than defaults in payment of principal,
interest or any premium, under and waive compliance by us with
provisions of the applicable indenture. (Sections 513 and 1009)
SATISFACTION AND DISCHARGE OF AN INDENTURE
If we deposit or cause to be deposited with the trustee cash or
direct obligations of the United States or obligations guaranteed by
the United States that are sufficient, together with any income that
accrues on those obligations, to pay and discharge the entire
indebtedness on all outstanding debt securities of any series when due
in compliance with the indenture, then we will be treated as having
paid and discharged the entire indebtedness, except for any surviving
obligations, including the rights of holders to be paid amounts when
due under the debt securities.
If we make these deposits with the trustee and either:
- all debt securities authenticated and delivered under the
applicable indenture are delivered for cancellation, other
than:
(1) debt securities that have been destroyed, lost or
stolen and which have been paid or replaced,
(2) coupons pertaining to bearer securities whose surrender
is not required or has been waived, and
(3) debt securities for which we deposited or segregated
and held in trust payment and which later was repaid to
us or discharged from the trust, or
8<PAGE>
- all debt securities are or will become due and payable at
their stated maturity within one year or will be called for
redemption within one year if redeemable at our option,
and we comply with any other conditions, the indenture will be of no
further effect, except for transfer or exchange rights. (Section 401)
EVENTS OF DEFAULT
Each indenture provides that the following are events of default
with respect to any series of debt securities:
- failure for 30 days to pay interest when due;
- failure to pay principal or any premium when due;
- failure to deposit any sinking fund payment when due;
- if we continue to breach a covenant or warranty in the
indenture for 90 days after appropriate notice;
- failure to pay principal of or interest on any other
obligation for borrowed money of Arvin, including default
under any other series of debt securities and, in the case
of the senior debt securities, including default on any
guaranty of an obligation for borrowed money of a restricted
subsidiary, beyond any grace period if:
(1) the total principal amount exceeds $10,000,000,
(2) we do not contest in appropriate proceedings default in
payment, and
(3) the default in payment has not been cured or waived
before written notice was given to us;
- events of bankruptcy, insolvency or reorganization; or
- any other event of default with respect to that series of
debt securities. (Section 501)
In the case of bankruptcy, insolvency or reorganization, all
unpaid principal of and any premium and accrued interest on any series
of outstanding debt securities will become and be immediately due and
payable without any declaration or other act of the trustee or any
holder. If any other event of default occurs and continues, the
trustee or the holders of at least 25% in total principal amount of
that series of outstanding debt securities may declare the principal
to be due and payable immediately. However, after this declaration of
acceleration has been made, but before a judgment or decree based on
the acceleration has been obtained, the holders of a majority in total
principal amount of that series of outstanding debt securities may
rescind the acceleration if all events of default other than the non-
payment of accelerated principal have been cured or waived.
The prospectus supplement relating to any original issue discount
debt security will contain provisions about acceleration of the
9<PAGE>
maturity of a portion of the principal amount upon the occurrence and
the continuation of an event of default.
Each indenture requires us to file annually with the trustee an
officer's certificate as to the absence of defaults under the
indenture. Each indenture requires the trustee, within 90 days after
the occurrence of a default with respect to any series of outstanding
debt securities which is continuing, to give to the holders notice of
all uncured defaults known to it. However, except in the case of
default in the payment of principal, interest or any premium or in the
payment of any sinking fund installment, the trustee will be protected
in withholding the notice if it in good faith determines that this
withholding of notice is in the interest of the holders of the debt
securities. (Section 602)
Each indenture provides that the trustee will be under no
obligation to exercise any of its rights or powers at the request or
direction of the holders of the debt securities unless they have
offered to the trustee reasonable indemnity. (Section 603) Each
indenture provides that the holders of a majority in total principal
amount of any series of outstanding debt securities will have the
right to direct the time, method and place of conducting any
proceeding for any remedy available to the trustee or exercising any
trust or power conferred on the trustee with respect to that series of
debt securities. (Section 601)
No holder of any series of debt security will have any right to
institute any legal proceeding with respect to or for any remedy under
the indenture unless:
- the holder has previously given written notice to the
trustee of a continuing event of default with respect to
that series of debt securities;
- the holders of at least 25% in total principal amount of
that series of outstanding debt securities have made a
written request to the trustee to institute the proceeding;
- the holder or holders have offered the trustee reasonable
indemnity;
- the trustee has failed to institute the proceeding within 60
days; and
- the trustee has not received a direction inconsistent with
the written request from the holders of a majority in total
principal amount of the outstanding debt securities.
(Section 507)
However, the holder of any debt security will have an absolute
right to receive payment of principal, interest and any premium on or
after the due dates expressed in the debt security and to institute
suit to enforce any payment. (Section 508)
10<PAGE>
BOOK-ENTRY DEBT SECURITIES
A series of debt securities may be issued in whole or in part in
the form of one or more global securities that will be deposited with,
or on behalf of, a depository identified in the prospectus supplement.
Payments of principal, interest and any premium on the series of debt
securities represented by a global security will be made to the
depository.
We anticipate that any global securities will be deposited with,
or on behalf of, The Depository Trust Company, New York, New York,
that the global securities will be registered in the name of DTC's
nominee, and that the following provisions will apply to the
depository arrangements with respect to the global securities. The
prospectus supplement will describe additional or differing terms of
the depository arrangement involving any series of debt securities
issued in the form of global securities.
So long as DTC or its nominee is the registered owner of a global
security, DTC or its nominee will be considered the sole holder of the
debt securities represented by the global security for all purposes
under the applicable indenture. Except as described below, owners of
beneficial interests in a global security:
- will not be entitled to have debt securities represented by
the global security registered in their names;
- will not receive or be entitled to receive physical delivery
of debt securities in the form of a certificate; and
- will not be considered the record owners or holders of debt
securities under the applicable indenture.
The laws of some states require that purchasers of securities
take physical delivery of the securities in certificated form. These
laws may limit the transferability of beneficial interests in a global
security.
If DTC is at any time unwilling or unable to continue as
depository with respect to any debt securities represented by a global
security and we do not appoint a successor depository within 60 days,
we will issue individual debt securities in certificated form in
exchange for the global security. In addition, we may at any time
determine not to have any debt securities of one or more series
represented by global securities and instead will issue the individual
debt securities in certificated form in exchange for the global
securities. In this instance, an owner of a beneficial interest in a
global security will be entitled to physical delivery of individual
debt securities in the form of a certificate equal in principal amount
to the beneficial interest and to have the debt securities in the form
of a certificate registered in its name.
We obtained the following information concerning DTC and its
book-entry system from sources, including DTC, that we believe to be
reliable, but we take no responsibility for the accuracy of this
information.
11<PAGE>
DTC will act as securities depository for the debt securities.
The debt securities will be issued as fully registered securities
registered in the name of Cede & Co., which is DTC's partnership
nominee.
One fully registered debt security certificate will be issued
with respect to up to $400,000,000 of principal amount of the series
of debt securities, and an additional certificate will be issued with
respect to any remaining principal amount of that series.
DTC is a limited-purpose trust company organized under the New
York Banking Law, a "banking organization" within the meaning of the
New York Banking Law, a member of the Federal Reserve System, a
"clearing corporation" within the meaning of the New York Commercial
Code, and a "clearing agency" registered pursuant to the provisions of
Section 17A of the Securities Exchange Act. DTC holds securities that
its participants deposit with DTC. DTC also facilitates the
settlement among participants of securities transactions, including
transfers and pledges, in deposited securities through electronic
computerized book-entry changes in participants' accounts, thereby
eliminating the need for physical movement of securities certificates.
Direct participants of DTC include securities brokers and dealers,
banks, trust companies, clearing corporations and other organizations.
A number of the direct participants and the New York Stock Exchange,
the American Stock Exchange, and the National Association of
Securities Dealers own DTC. Access to DTC's system also is available
to others, including securities brokers and dealers and banks and
trust companies that clear through or maintain a custodial
relationship with a direct participant, either directly or indirectly.
The rules applicable to DTC and its participants are on file with the
SEC.
Purchases of debt securities under the DTC system must be made by
or through direct participants, which will receive a credit for the
debt securities on DTC's records. The ownership interest of each
beneficial owner or each actual purchaser of each debt security is to
be recorded on the direct and indirect participants' records. A
beneficial owner of debt securities will not receive written
confirmation from DTC of its purchase, but is expected to receive a
written confirmation providing details of the transaction, as well as
periodic statements of its holdings, from the participant through
which the beneficial owner entered into the transaction. Transfers of
ownership interests in debt securities are to be accomplished by
entries made on the books of participants acting on behalf of
beneficial owners. Beneficial owners will not receive certificates
representing their ownership interests in the debt securities, unless
the use of the book-entry system for the debt securities is
discontinued.
To facilitate subsequent transfers, any certificate representing
debt securities which is deposited with, or on behalf of, DTC is
registered in the name of its nominee, Cede & Co. The deposit of the
certificate with, or on behalf of, DTC and its registration in the
name of Cede & Co. effect no change in beneficial ownership. DTC has
no knowledge of the actual beneficial owners of the certificate
representing the debt securities; DTC's records reflect only the
identity of the direct participants to whose accounts the debt
securities are credited, which may or may not be the beneficial
12<PAGE>
owners. The participants will remain responsible for keeping account
of their holdings on behalf of their customers.
Delivery of notices and other communications by DTC to direct
participants, by direct participants to indirect participants, and by
direct and indirect participants to beneficial owners, will be
governed by arrangements among them and any statutory or regulatory
requirements.
Neither DTC nor Cede & Co. will consent or vote with respect to
the debt securities. Under its usual procedures, DTC mails an omnibus
proxy to Arvin as soon as possible after the record date. The omnibus
proxy assigns Cede & Co.'s consenting or voting rights to those direct
participants identified on a list attached to the omnibus proxy to
whose accounts the debt securities are credited on the record date.
Principal, interest, and premium payments on the debt securities
will be made to DTC. DTC's practice is to credit direct participants'
accounts on the payable date with respect to their holdings as shown
on DTC's records unless DTC has reason to believe that it will not
receive payment on the payment date. Payments by participants to
beneficial owners will be governed by standing instructions and
customary practices, as is the case with securities held for the
accounts of customers in bearer form or registered in "street name,"
and will be the responsibility of the participant and not of DTC, the
trustee, or the paying agent, subject to any statutory or regulatory
requirements. Payment of principal and interest to DTC is the
responsibility of Arvin or the trustee or any paying agent.
Disbursement of payments to direct participants will be the
responsibility of DTC. Disbursement of payments to the beneficial
owners will be the responsibility of the direct and indirect
participants.
If applicable, redemption notices will be sent to Cede & Co. If
less than all of the debt securities within an issue are being
redeemed, DTC's practice is to determine by lot the amount of the
interest of each direct participant in the issue to be redeemed.
A beneficial owner will give notice of any option to elect to
have its debt securities repaid by Arvin, through its participant, to
the applicable trustee, and will effect delivery of the debt
securities by causing the direct participant to transfer the
participant's interest in the global security or securities
representing the debt securities, on DTC's records, to the trustee.
The requirement for physical delivery of debt securities in connection
with a demand for repayment will be deemed satisfied when the
ownership rights in the global security or securities representing the
debt securities are transferred by direct participants on DTC's
records.
DTC may discontinue providing its services as securities
depository with respect to the debt securities at any time by giving
reasonable notice to Arvin or the paying agent. If a successor
securities depository is not appointed, debt security certificates are
required to be printed and delivered.
13<PAGE>
Arvin may decide to discontinue use of the system of book-entry
transfers through DTC or a successor securities depository. In that
event, debt security certificates will be printed and delivered.
Unless stated otherwise in the applicable prospectus supplement,
any underwriters, dealers or agents with respect to any series of debt
securities issued as global securities will be direct participants in
DTC.
None of Arvin, any underwriter, dealer or agent, the applicable
trustee or any paying agent will have any responsibility or liability
for any aspect of the records relating to or payments made on account
of beneficial interests in a global security, or for maintaining,
supervising or reviewing any records relating to these beneficial
interests.
YEAR 2000 COMPLIANCE
DTC has advised us that its management is aware that some
computer applications, systems and the like for processing data that
are dependent upon calendar dates, including dates before, on, and
after January 1, 2000, may encounter "Year 2000 problems." DTC has
informed the industry, including direct and indirect participants and
other members of the financial community, that it has developed and is
implementing a program so that its systems, as the same relate to the
depository services, namely the timely payment of distributions,
including principal and interest payments, to security holders, book-
entry deliveries, and settlement of trades within the depository,
continue to function appropriately. This program includes a technical
assessment and a remediation plan, each of which is complete.
Additionally, DTC's plan includes a testing phase, which is expected
to be completed within appropriate time frames.
However, DTC's ability to perform its services properly also is
dependent upon other parties, including, without limitation, issuers
and their agents, as well as the direct and indirect participants,
third party vendors from whom it licenses software and hardware, and
third party vendors on whom it relies for information or the provision
of services, including telecommunication and electrical utility
service providers, among others. DTC has informed the industry that
it is contacting and will continue to contact third party vendors from
whom it acquires services to:
- impress upon them the importance of these services being
Year 2000 compliant; and
- determine the extent of their efforts for Year 2000
remediation and, as appropriate, testing of their services.
In addition, DTC is in the process of developing contingency plans as
it deems appropriate.
According to DTC, this information with respect to Year 2000
compliance has been provided to the industry for informational
purposes only and is not intended to serve as a representation,
warranty, or contract modification of any kind.
14<PAGE>
INFORMATION CONCERNING THE TRUSTEE
Harris Trust and Savings Bank is the trustee under the senior
indenture. The trustee under the subordinated indenture will be
identified in a prospectus supplement. Each trustee may also serve as
warrant agent with respect to any debt warrants to purchase underlying
debt securities issued under the indenture with respect to which it
acts as trustee. We also maintain banking relationships in the
ordinary course of business with Harris Trust and Savings Bank, and
Harris Trust and Savings Bank participates, along with several other
banks, in credit facilities with Arvin and its subsidiaries. At the
date of this prospectus, Harris Trust and Savings Bank is the trustee
with respect to our 6 7/8% Notes due February 15, 2001, 6 3/4% Notes
due March 15, 2008, and 7 1/8% Notes due March 15, 2009. As of April
4, 1999, Harris Trust and Savings Bank also was trustee with respect
to $36,000,000 aggregate principal amount of our Medium Term Notes
issued under the senior indenture. As of April 4, 1999, we had
outstanding $361,000,000 total principal amount of our debt securities
issued under the senior indenture.
GOVERNING LAW
The indentures are, and the debt securities will be, governed by
the laws of the State of New York.
PROVISIONS APPLICABLE SOLELY TO SENIOR DEBT SECURITIES
Senior debt securities will be issued under the senior indenture
and will rank pari passu with all our other unsecured and
unsubordinated debt.
COVENANTS
The senior indenture contains covenants, including those
described below with respect to the incurrence of secured debt by
Arvin and the restricted subsidiaries, sale and leaseback transactions
on the part of Arvin and the restricted subsidiaries, and the transfer
of principal facilities to unrestricted subsidiaries. Terms used in
these covenants are defined below under "Definitions." These
covenants do not focus on the amount of debt incurred in any
transaction and do not afford protection to holders of the debt
securities in the event of a highly leveraged transaction that is not
in violation of the covenants. At the date of this prospectus, we do
not intend to include any covenants or other provisions affording
protection to holders of any series of the debt securities. If we
desire to include the covenants or other provisions in the future, the
applicable prospectus supplement will describe them.
SECURED DEBT. The senior indenture provides that so long as the
senior debt securities are outstanding, we will not and will not cause
or permit a restricted subsidiary to create, incur, assume or
guarantee any secured debt or create any security interest securing
any indebtedness existing on the date of the indenture constituting
secured debt if it were secured by a security interest in a principal
facility, unless the senior debt securities will be secured equally
and ratably by that security interest. However, we and our restricted
subsidiaries may create, incur, assume or guarantee secured debt
15<PAGE>
without securing the senior debt securities in the case of
indebtedness secured by:
- security interests to secure payment of the cost of
acquisition, construction, development or improvement of
property;
- security interests on property at the time of acquisition
assumed by us or a restricted subsidiary, or on the property
or on the outstanding shares or indebtedness of a
corporation or firm when it becomes a restricted subsidiary
or is merged into or consolidated with or acquired as an
entirety or substantially as an entirety by us or a
restricted subsidiary;
- security interests arising from conditional sales agreements
or title retention agreements with respect to property
acquired by us or any restricted subsidiary;
- security interests securing indebtedness of a restricted
subsidiary owing to us or to another restricted subsidiary;
- mechanics' and other statutory liens arising in the ordinary
course of business for obligations that are not due or that
are being contested in good faith;
- liens for taxes, assessments or governmental charges not yet
due that are being contested in good faith;
- security interests, including judgment liens, arising in
connection with legal proceedings being contested in good
faith and, in the case of judgment liens, on which execution
is stayed;
- landlords' liens on fixtures;
- security interests to secure partial, progress, advance or
other payments or indebtedness that were incurred to finance
construction on or improvement of property; and
- security interests in favor, or made at the request of,
governmental bodies.
Permitted secured debt also includes, with limitations, any
extension, renewal or refunding of all or any part of any secured debt
that was permitted at the time it was originally incurred. In
addition, we and our restricted subsidiaries may incur secured debt,
without equally and ratably securing the senior debt securities, if
the sum of:
- the amount of secured debt entered into after the date of
the senior indenture and otherwise prohibited by the senior
indenture, plus
- the aggregate value of sale and leaseback transactions
entered into after the date of the senior indenture and
otherwise prohibited by the senior indenture does not exceed
16<PAGE>
ten percent of Arvin's consolidated net tangible assets.
(Section 1005)
SALE AND LEASEBACK TRANSACTIONS. The senior indenture provides
that so long as debt securities are outstanding, we will not, and will
not permit any restricted subsidiary to, enter into any sale and
leaseback transaction unless we or a restricted subsidiary:
- would be entitled to incur secured debt by reason of the
provision described in the last sentence of the preceding
paragraph equal in amount to the net proceeds of the
property sold or transferred or to be sold or transferred in
the sale and leaseback transaction and secured by a security
interest on the property to be leased, without equally and
ratably securing the debt securities, or
- will apply, within 180 days after the effective date of the
sale and leaseback transaction, an amount equal to the net
proceeds to:
(1) the acquisition, construction, development or
improvement of properties, facilities or equipment
which are, or will be, a principal facility or
facilities or a part of them;
(2) the redemption of senior debt securities; or
(3) the repayment of senior funded debt of Arvin or any
restricted subsidiary, except senior funded debt owed
to any restricted subsidiary, or in part to the
acquisition, construction, development or improvement
and in part to that redemption and/or payment.
Instead of applying an amount equal to the net proceeds to that
redemption, we may, within 180 days after that sale or transfer,
deliver to the trustee senior debt securities for cancellation and
reduce the amount to be applied to the redemption of the senior debt
securities by an amount equivalent to the total principal amount of
the senior debt securities delivered. (Section 1006)
ASSET TRANSFERS. The senior indenture provides that so long as
debt securities are outstanding, we will not, and will not cause or
permit any restricted subsidiary to, transfer any principal facility
to any unrestricted subsidiary unless, within 180 days of the
effective date of the transaction, it applies an amount equal to the
fair value of the principal facility at the time of transfer to:
- the acquisition, construction, development or improvement of
properties, facilities or equipment which are, or will be, a
principal facility or facilities or a part of them;
- the redemption of senior debt securities; or
- the repayment of senior funded debt of Arvin or any
restricted subsidiary, except senior funded debt owed to any
restricted subsidiary, or in part to the acquisition,
construction, development or improvement and in part to that
redemption and/or repayment.
17<PAGE>
Instead of applying all or any part of the amount to that
redemption, we may, within 180 days of that transfer, deliver to the
trustee senior debt securities for cancellation and reduce the amount
to be applied to the redemption of the senior debt securities by an
amount equivalent to the total principal amount of the senior debt
securities delivered. (Section 1007)
DEFINITIONS
Section 101 of the senior indenture defines the following terms,
which are used in the prospectus, substantially as follows:
"Consolidated net tangible assets" means with respect to us:
- the total amount of assets, less applicable reserves and
other properly deductible items, after deducting:
(1) all liabilities and liability items, except for
indebtedness payable, or renewable or extendable at the
option of the obligor, for more than one year from the
date of incurrence, capitalized rent, capital shares,
including redeemable preferred shares, and surplus,
surplus reserves and deferred income taxes and credits
and other non-current liabilities, and
(2) all goodwill, trade names, trademarks, patents,
unamortized debt discount, unamortized expenses
incurred in the issuance of debt, and other like
intangibles which under generally accepted accounting
principles in effect on July 3, 1990 would be included
on a consolidated balance sheet of Arvin and the
restricted subsidiaries, less:
- loans, advances, equity investments and guarantees, other
than accounts receivable arising from the sale of
merchandise in the ordinary course of business, at the time
outstanding that we and our restricted subsidiaries made or
incurred to, in or for unrestricted subsidiaries or to, in
or for corporations while they were restricted subsidiaries
and, when computed, are unrestricted subsidiaries.
"Principal facility" means any manufacturing plant, warehouse,
office building or parcel of real property, including fixtures, but
excluding leases and other contract rights which might otherwise be
deemed real property, owned by us or any restricted subsidiary,
whether owned on the date of the senior indenture or afterwards. Each
plant, warehouse, office building or parcel of real property must have
a gross book value, without deduction for any depreciation reserves,
at the date of the determination in excess of three percent of our
consolidated net tangible assets, other than any plant, warehouse,
office building or parcel of real property or portion which, in our
board of directors' opinion, is not materially important to our
business and that of our subsidiaries taken as a whole.
"Restricted subsidiary" means
- any subsidiary other than an unrestricted subsidiary, and
18<PAGE>
- any subsidiary that was an unrestricted subsidiary but
which, after the date of the applicable indenture, we
designate to be a restricted subsidiary by board resolution.
However, we may not designate any subsidiary as a restricted
subsidiary if we would breach any covenant or agreement contained in
the senior indenture as a result.
"Sale and leaseback transaction" means any sale or transfer made
by us or any restricted subsidiary of any principal facility that:
- in the case of any manufacturing plant, warehouse or office
building, has been in operation, use or commercial
production, exclusive of test and start-up periods, by us or
any restricted subsidiary for more than 190 days before the
sale or transfer, or
- in the case of a principal facility that is another parcel
of real property, has been owned by us or any restricted
subsidiary for more than 180 days before that sale or
transfer,
if that sale or transfer is made with the intention of leasing, or as
part of an arrangement involving the lease of the principal facility
to us or a restricted subsidiary, except for a lease for a period up
to 36 months made with the intention that the use of the leased
principal facility by us or a restricted subsidiary will be
discontinued on or before that period expires. Any sale or transfer
made to Arvin or any restricted subsidiary is not a sale and leaseback
transaction. Any secured debt permitted under the senior indenture
will not be deemed to create or be a sale and leaseback transaction.
"Secured debt" means any indebtedness for money borrowed by, or
evidenced by a note or other instrument of, us or a restricted
subsidiary, and any other indebtedness of us or a restricted
subsidiary on which interest is paid or payable, including obligations
evidenced or secured by leases, installment sales agreements or other
instruments in connection with private activity bonds qualified under
section 141 of the Internal Revenue Code, other than indebtedness that
a restricted subsidiary owes to us or another restricted subsidiary or
that we owe to a restricted subsidiary, secured by a security interest
in any principal facility, or a security interest in any shares that
we own directly or indirectly in a restricted subsidiary or in
indebtedness for money borrowed by a restricted subsidiary from us or
another restricted subsidiary. The securing in this manner of any
previously unsecured debt will be deemed to be the creation of secured
debt when security is given. The amount of secured debt at any time
outstanding will be the total amount then owing by us and our
restricted subsidiaries.
"Senior funded debt" means any obligation of Arvin or any
restricted subsidiary which was funded debt as of the date of creation
and that, in our case, is not subordinate and junior in right of
payment to the prior payment of the senior debt securities. "Funded
debt" means any obligation payable, or renewable or extendable at the
option of the obligor, for more than one year from the date of
incurrence, which under generally accepted accounting principles
should be shown on the balance sheet as a liability.
19<PAGE>
"Subsidiary" means any corporation of which we and/or one or more
subsidiaries own or control directly or indirectly more than 50
percent of the shares of voting stock.
"Unrestricted subsidiary" means:
- any subsidiary acquired or organized after the date of the
senior indenture, if that subsidiary is not a successor,
directly or indirectly, to and does not directly or
indirectly own any equity interest in, any restricted
subsidiary;
- any subsidiary whose principal business and assets are
located outside the United States and/or Canada or both;
- any subsidiary whose principal business consists of
financing the acquisition or disposition of machinery,
equipment, inventory, accounts receivable and other real,
personal and intangible property by persons including us or
a subsidiary;
- any subsidiary whose principal business is owning, leasing,
dealing in or developing real property for residential or
office building purposes; and
- any subsidiary, most of whose assets consist of shares or
other securities of an unrestricted subsidiary or
unrestricted subsidiaries of the character described in the
foregoing clauses of this definition, unless and until this
subsidiary has been designated a restricted subsidiary by
board resolution.
PROVISIONS APPLICABLE SOLELY TO SUBORDINATED DEBT SECURITIES
Subordinated debt securities will be issued under the
subordinated indenture and rank pari passu with our other outstanding
subordinated debt and rank junior to all of our outstanding senior
indebtedness. As described in the prospectus supplement, the
particular terms of the subordinated debt securities being offered,
including the subordination terms and the definition of senior
indebtedness, may differ from those described below.
SUBORDINATION
The payment of the principal, interest and any premium on the
subordinated debt securities is expressly subordinated, to the extent
and in the manner provided in the subordinated indenture, in right of
payment to the prior payment in full of all of our senior
indebtedness, as may be changed by the terms of the subordinated debt
securities in the prospectus supplement.
In the event of any dissolution or winding up, or total or
partial liquidation or reorganization of Arvin, whether in bankruptcy,
reorganization, insolvency, receivership or similar proceeding, the
holders of senior indebtedness will be entitled to receive payment in
full of all amounts due or to become due on all senior indebtedness
before the holders of the subordinated debt securities are entitled to
receive any payment on the subordinated debt securities, including
20<PAGE>
principal, interest or any premium. Except as indicated in the
prospectus supplement, no payment in respect of the subordinated debt
securities will be made if, at the time of payment, there is a default
in payment on any senior indebtedness, and this default has not been
cured or waived in writing or the benefits of subordination in the
subordinated indenture have not been waived in writing by or on behalf
of the holders of the senior indebtedness.
Notwithstanding the foregoing, if the trustee or the holder of
any of the subordinated debt securities receives any payment or
distribution of any kind before all senior indebtedness is paid in
full or payment is provided for, that payment or distribution will be
applied to the payment of all senior indebtedness remaining unpaid, to
the extent necessary to pay all senior indebtedness in full, after
giving effect to any concurrent payment or distribution to or for
holders of senior indebtedness.
The subordinated indenture defines "senior indebtedness" as
indebtedness, either outstanding as of the date of the subordinated
indenture or subsequently issued, that by its terms is neither
subordinated in right of payment to any of our unsecured indebtedness,
nor is pari passu with our subordinated indebtedness.
The subordinated indenture defines "indebtedness," as applied to
any person, as all indebtedness, whether represented by bonds,
debentures, notes or other securities, created or assumed by that
person for repayment of money borrowed, and obligations, computed
according to generally accepted accounting principles, as lessee under
leases that should be treated as capital leases. All indebtedness
secured by a lien upon property owned by us or any subsidiary and upon
which indebtedness that person customarily pays interest, without
assuming or becoming liable for the payment of this indebtedness, will
be deemed to be indebtedness of that person. All indebtedness of
others guaranteed as to payment of principal by that person or in
effect guaranteed by that person through a contingent agreement to
purchase it also will be deemed to be indebtedness of that person.
If subordinated debt securities are issued under the subordinated
indenture, the total principal amount of senior indebtedness
outstanding as of a recent date will be indicated in the prospectus
supplement. The subordinated indenture does not restrict the amount of
senior indebtedness that we may incur.
CONVERSION
The prospectus supplement will describe terms of conversion of
any series of subordinated debt securities into common shares or other
securities of Arvin. Unless the prospectus supplement provides
otherwise, any right to convert subordinated debt securities called
for redemption will terminate at the close of business on the
redemption date. In the case of subordinated debt securities
convertible into common shares, the initial conversion price will be
adjusted for particular events, including:
- a dividend or distribution on the common shares in the form
of common shares;
- a subdivision or combination of the common shares;
21<PAGE>
- an issuance to all holders of common shares of rights other
than the preferred share purchase rights described below, or
warrants entitling them to subscribe for or purchase common
shares at less than the current market price; and
- a distribution on the common shares of evidences of our
indebtedness, assets other than cash dividends or
distributions from retained earnings, rights other than the
preferred share purchase rights, or warrants to subscribe
for or purchase any of its securities, other than those
referred to above.
In addition, unless the prospectus supplement indicates
otherwise, in any of the following events, the holders of subordinated
debt securities that are convertible into common shares will have the
right to convert them into the kind and amount of shares and other
securities or assets that are receivable upon this event by a holder
of the number of common shares issuable upon their conversion
immediately before that event.
- the reclassification or change of outstanding common shares,
other than changes in par value or as a result of a
subdivision or combination;
- any consolidation, merger or combination of Arvin as a
result of which holders of common shares will be entitled to
receive shares, securities or other assets with respect to
or in exchange for the common shares; or
- any sale or conveyance of our assets as, or substantially
as, an entirety to any other entity in which holders of
common shares will be entitled to receive shares, securities
or other assets with respect to or in exchange for the
common shares.
No adjustment of the conversion price is necessary until
cumulative adjustments amount to at least one percent of the current
conversion price. We reserve the right to make reductions in the
conversion price, in addition to those required in the provisions
above, as we determine to be advisable so that share-related
distributions made by us to our shareholders will not be taxable. Each
common share issued upon conversion will sometimes include preferred
share purchase rights. We will not issue fractional common shares
upon conversion of subordinated debt securities that are convertible
into common shares, but instead will pay a cash adjustment based upon
the market price of the common shares.
Unless the prospectus supplement provides otherwise, subordinated
debt securities surrendered for conversion during the period from the
close of business on any regular record date next preceding any
interest payment date to the opening of business on the interest
payment date must be accompanied by payment of an amount equal to the
interest which the registered holder is to receive. In the case of any
subordinated debt security converted after any regular record date but
on or before the next interest payment date, interest whose stated
maturity is on that interest payment date will be payable on the
interest payment date notwithstanding the conversion, and that
interest will be paid to the holder on the regular record date. Except
22<PAGE>
as described above, no interest on converted securities will be
payable by us on any interest payment date after the date of
conversion. No other payment or adjustment for interest or dividends
will be made upon conversion.
The conversion price for any subordinated debt securities
convertible into our securities other than common shares will be
subject to the adjustment as may be indicated in the prospectus
supplement.
DESCRIPTION OF CAPITAL SHARES
GENERAL
Under our Restated Articles of Incorporation, we are authorized
to issue 50,000,000 common shares, par value $2.50 per share,
25,829,909 of which were issued and outstanding as of April 4, 1999
and 8,978,058 preferred shares, without par value, none of which were
outstanding as of April 4, 1999. The common shares and the preferred
shares may be issued at any time by our board of directors in any
series with terms as may be fixed by board resolution providing for
their issuance. The number of authorized preferred shares includes
500,000 authorized Series C junior participating preferred shares
reserved for issuance upon the exercise of rights, under the rights
agreement described below, none of which were outstanding as of April
4, 1999. The number of authorized Series C preferred shares may be
increased by board resolution. We may issue the remainder of the
preferred shares in one or more series.
COMMON SHARES
Subject to the prior dividend rights of the preferred shares,
holders of the common shares are entitled to receive dividends and
other distributions upon declaration by our board. Some of our long-
term debt obligations contain covenants that may indirectly restrict
the payment of dividends on our capital shares, although none
materially limits our ability to pay dividends at the date of this
prospectus. A prospectus supplement relating to common shares will
describe any material limitations.
Holders of common shares are entitled to one vote for each share.
Except as the Indiana Business Corporation Law requires or as may be
specifically provided in an amendment to our articles of
incorporation, holders of common shares vote together with any
preferred shares having general voting rights as a single class.
After the satisfaction of creditors and the prior rights of any
preferred shares upon any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of Arvin, the holders of the
common shares are entitled to share ratably in our remaining assets.
The common shares have no conversion privileges or preemptive
rights and, except as described below, are not subject to redemption
at our option. The articles of incorporation, the Indiana Business
Corporation Law, and various loan agreements to which we are or may
become a party may restrict our ability to redeem or repurchase our
shares in other situations.
23<PAGE>
The common shares are listed on the New York Stock Exchange and
the Chicago Stock Exchange. Harris Trust and Savings Bank is the
transfer agent and registrar of the common shares.
PROVISIONS WITH POSSIBLE ANTI-TAKEOVER EFFECTS
Our by-laws currently provide for the classification of the board
of directors into three classes. Our articles of incorporation:
- limit the number of directors that may be elected to at
least 12 but not more than 17, excluding the number of
directors as may be elected by any class of our shares other
than common shares on account of specific dividend
arrearages in accordance with our articles of incorporation,
- permit removal of directors only for cause and only by the
affirmative vote of two-thirds of the outstanding voting
shares,
- establish the power to make, alter, amend or repeal the by-
laws exclusively in the board of directors, and
- require that any merger, dissolution or other significant
restructuring of Arvin be approved by 80% of the directors
or by 80% of the shares outstanding and entitled to vote on
this.
Our by-laws also provide that amendments require an affirmative vote
of two-thirds of the directors then in office. Our articles of
incorporation provide that the by-laws may contain provisions
requiring the disclosure to us of the names of beneficial owners of
common shares and imposing sanctions in the event of nondisclosure,
including prohibiting voting by, withholding dividends to, and
redeeming the common shares held by the non-disclosing record holders.
However, our by-laws currently do not contain these provisions.
In addition, our articles of incorporation provide that if any
person who beneficially owns more than 50% of our outstanding common
shares acquires any additional shares in a tender offer or becomes the
beneficial owner of more than 50% of our outstanding common shares in
a tender offer, not approved by a majority of the board of directors
who are unaffiliated with the person or entity making the tender
offer, then all holders of common shares and all holders of rights,
options, warrants, and securities then exercisable or convertible into
common shares are entitled for a limited period to have us repurchase
any or all of their shares at the "repurchase price." The "repurchase
price" is the greater of:
- the highest per share price paid by the person or entity
making the tender offer within the prior eighteen months,
plus the aggregate earnings per common share for the
preceding four quarters less cash dividends paid on common
shares during those four quarters, or
- the shareholder equity per common share.
These provisions can be amended by only an 80% shareholder vote,
subject to other limitations. The Indiana Business Corporation Law
24<PAGE>
limits our obligation to repurchase shares. Also, the terms and
provisions of outstanding preferred shares or loans or other
agreements to which we might be a party also could limit our
obligation.
Chapter 42 of the Indiana Business Corporation Law eliminates the
voting rights of "control shares" held by "acquiring persons" who
acquire shares giving them one-fifth, one-third or a majority of the
voting power of particular corporations, including us. Control shares
acquired in a control share acquisition retain the same voting rights
as were accorded the shares before this acquisition only to the extent
granted by resolutions approved by the disinterested shareholders. If
shareholders approve the voting rights of control shares and a
shareholder has acquired control shares with a majority or more of the
voting power, all shareholders of the corporation are entitled to
exercise statutory dissenters' rights and to demand the value of their
shares in cash from the corporation. If the control shares have no
voting rights, the corporation has the right to redeem them. In
addition, if authorized in a corporation's articles of incorporation
or by-laws, the corporation may for a period of time redeem the shares
that caused a person to become an acquiring person at their fair value
unless the acquiring person provides information specified in the
Indiana Business Corporation Law to the corporation. Our by-laws
authorize this redemption. These Indiana Business Corporation Law
provisions do not apply to acquisitions of voting power pursuant to a
merger or share exchange agreement to which the corporation is a
party.
Chapter 43 of the Indiana Business Corporation Law imposes some
restrictions on the ability of an "interested shareholder," including
a beneficial owner of at least 10% of the outstanding voting shares,
of a "resident domestic corporation," like us, to engage in a
"business combination," as defined in the statute, with the resident
domestic corporation, unless specific requirements are met. These
requirements include a five-year waiting period after the shareholder
becomes an interested shareholder, unless the corporation's board of
directors has approved the acquisition of 10% or more of the voting
shares or the business combination before the date of the acquisition
of voting shares. Following this period, a business combination may
be effected with an interested shareholder only upon:
- the approval of the business contribution by the
corporation's shareholders, excluding the interested
shareholder and any of its affiliates or associates, or
- the consideration to be received by shareholders in the
business combination meets the fairness criteria described
in chapter 43.
Chapter 43 broadly defines "business combination" to include mergers,
sales or leases of assets, transfers of shares of the corporation,
proposals for liquidation and the receipt by an interested shareholder
of any financial assistance or tax advantage from the corporation,
except proportionately as a shareholder of the corporation.
The overall effect of the above provisions may be to discourage,
or render more difficult, a merger, tender offer, proxy contest, the
assumption of control of Arvin by a holder of a large block of our
25<PAGE>
shares or other person, or the removal of incumbent management, even
if these actions may be beneficial to our shareholders generally.
PREFERRED SHARE PURCHASE RIGHTS
Each outstanding common share includes one right to purchase one
one-hundredth of a Series C preferred share. A rights agreement dated
as of May 29, 1986, as amended by amendments dated as of February 23,
1989, November 10, 1994 and May 10, 1996, between Arvin and Harris
Trust and Savings Bank governs the terms and conditions of these
rights. This description of the rights is qualified by the rights
agreement, filed as part of our current report on Form 8-K dated June
16, 1986 and the amendments filed with our current reports on Form 8-K
dated February 23, 1989 and May 10, 1996 and with our quarterly report
on Form 10-Q for the quarter ended October 2, 1994.
Currently, the rights are not exercisable, certificates
representing rights have not been issued and the rights automatically
trade with the common shares. However, ten days after an acquiring
person or group either acquires beneficial ownership of 20% or more of
the outstanding common shares or makes an offer to acquire 20% or more
of the outstanding common shares, the rights become exercisable,
certificates representing the rights will be issued as soon as
practicable afterwards and the rights will begin to trade
independently from the common shares. The rights will not have any
voting power. When the rights become exercisable, a holder becomes
entitled to buy one one-hundredth of a newly-issued Series C preferred
share for each right at an exercise price of $90, subject to anti-
dilution adjustments. Each Series C preferred share will be entitled
to one vote per share, voting together with the common shares and to
other voting rights. Holders of Series C preferred shares also have
special rights to participate in the election of two additional
directors in the event of specified dividend arrearages. Each Series C
preferred share, if and when issued upon the exercise of a right, will
be entitled to a minimum preferential quarterly dividend at the rate
of $25 per share, but subject to adjustments, will be entitled to a
total dividend of 100 times the dividend declared per common share in
the preceding quarter. The holders of the Series C preferred shares
will receive a preferred liquidation payment of $100 per share, but
will be entitled to receive an aggregate liquidation payment equal to
100 times the payment made per common share.
If any person or group becomes an acquiring person or a
transaction occurs that increases the acquiring person's proportionate
ownership of the common shares, each right, other than those held by
an acquiring person, will become exercisable at the current exercise
price of the right, for that number of common shares then having a
market value of two times the exercise price of the right. If,
following the acquisition by a person or group of 20% or more of the
outstanding common shares, Arvin is involved in a merger or other
business combination transaction or sells or transfers assets or
earnings power totaling more than 50% of its assets or earning power,
each right will become exercisable, at the current exercise price, for
that number of shares of common stock of the acquiring company then
having a market value of two times the exercise price of each right.
The board of directors may redeem the rights for $.10 per right,
subject to adjustment, until a person or group becomes an acquiring
26<PAGE>
person. Any redemption is effective at the time, on the basis, and
with the conditions that the board of directors may establish. The
rights expire on June 13, 2006, unless earlier redeemed.
The purchase price payable, and the number of Series C preferred
shares or other securities or property issuable upon exercise of the
rights are subject to adjustment to prevent dilution in some
circumstances.
So long as the rights are attached to the common shares, we will
issue one right with each new common share. All common shares issued
will have attached rights. We also will issue one right with each new
common share:
- issuable upon conversion of any convertible security issued,
and
- issued upon exercise of options to purchase the common
shares granted by Arvin,
before the time that the rights are no longer attached to the common
shares.
The rights have anti-takeover effects. The rights will cause
substantial dilution to a person who attempts to acquire Arvin without
conditioning its offer on a substantial number of the rights being
acquired. The rights also will adversely affect a person who desires
to obtain control of Arvin. The rights will not affect a transaction
approved by our board of directors before the existence of an
acquiring person, because the rights can be redeemed.
PREFERRED SHARES
The following description of preferred shares sets forth general
terms and provisions of any series of preferred shares to which any
prospectus supplement may relate. The applicable prospectus supplement
will describe the specific terms of a particular series of preferred
shares, which may differ from the following terms. The descriptions
of preferred shares below and in the prospectus supplement are
qualified in their entirety by reference to the articles of
incorporation and any applicable amendments, which are filed or
incorporated by reference as an exhibit to the registration statement
of which this prospectus is a part.
Under the articles of incorporation, our board of directors is
authorized to issue preferred shares in one or more series and with
rights, preferences, privileges and restrictions, including dividend
rights, voting rights, conversion rights, terms of redemption and
liquidation preferences that they may fix or designate without any
further vote or action by our shareholders.
The specific terms of a particular series of preferred shares
offered will be described in the applicable prospectus supplement,
including:
- the maximum number of shares of the series and their
distinctive designations;
27<PAGE>
- any annual dividend rate on the shares of the series;
- any dates that dividends begin to accrue or accumulate;
- whether the dividends will be cumulative, and any dividend
preference;
- the price and the terms and conditions of any redemption;
- any liquidation preference applicable to the shares of the
series;
- whether the shares will be subject to, and the terms and
provisions of, a retirement or sinking fund;
- any terms and conditions for conversion or exchange of the
shares of the series into or for shares of any other class of
Arvin;
- any voting rights of the shares or the series;
- whether fractional interest in a series of the shares will be
offered in the form of depositary shares; and
- any or all other preferences or other rights or restrictions
of the shares of the series.
Any prospectus supplement that specifies the terms of preferred
shares also will describe any restriction on the repurchase or
redemption of shares by Arvin while there is any arrearage in the
payment of dividends or, if applicable, sinking fund installments, or
will state that there is no restriction.
In addition to the voting rights of any series of preferred
shares established by the board of directors, under the articles of
incorporation, the holders of at least two-thirds of the total number
of outstanding preferred shares, voting together as a single class,
must approve any amendment to Arvin's articles of incorporation that
would authorize any class of shares, or of securities convertible into
shares, which would rank before the then outstanding preferred shares
as to payment of dividends, or as to distribution of assets upon
liquidation, dissolution or winding up of Arvin or any amendment to
the articles of incorporation that would change the designation,
rights or preferences of the outstanding preferred shares and
adversely affect them. No change may be made without the approval of
the holders of at least two-thirds of the then outstanding shares of
the particular series that would be affected, voting separately as a
series. Arvin's articles of incorporation also provide that
additional preferred shares of a series may not be authorized and that
a class of shares that would rank on parity with outstanding preferred
shares as to assets or dividends may not be authorized without the
consent of the holders of at least a majority of the total number of
outstanding preferred shares, voting separately as a class, without
regard to series.
The holders of preferred shares also may have the right, voting
separately as a class or series, to cast one vote per share upon
28<PAGE>
matters for which the Indiana Business Corporation Law requires a
class vote of preferred shares.
In addition to any series of preferred shares that the applicable
prospectus supplement describes, the articles of incorporation,
without regard to series, authorize 500,000 Series C preferred shares
to be issued upon exercise of the rights under the rights agreement.
DESCRIPTION OF SHARE PURCHASE CONTRACTS AND SHARE PURCHASE UNITS
We may issue share purchase contracts, including contracts
obligating holders to purchase from Arvin, and Arvin to sell to the
holders, a specified number of common shares at a future date or
dates. The consideration per common share may be fixed at the time the
share purchase contracts are issued or may be determined by reference
to a specific formula described in the share purchase contracts. We
may issue the share purchase contracts separately or as a part of
share purchase units consisting of a share purchase contract and
either a debt security or a debt obligation of a third party,
including a U.S. Treasury security. The debt security or debt
obligation of a third party may serve as collateral to secure the
holders' obligations to purchase the common shares under the share
purchase contracts. The share purchase contracts may require us to
make periodic payments to the holders of share purchase contracts.
These payments may be unsecured or prefunded on some basis. The share
purchase contracts may require holders to secure their obligations in
a specified manner. The applicable prospectus supplement will describe
the specific terms of any share purchase contracts or share purchase
units.
DESCRIPTION OF DEPOSITARY SHARES
The descriptions below and in any prospectus supplement regarding
provisions of any deposit agreement, depositary shares and depositary
receipts are qualified by reference to the forms of deposit agreement
and depositary receipts relating to each series of preferred shares
which are filed or incorporated by reference as exhibits to the
registration statement.
GENERAL
We may, at our option, elect to offer fractional interests in
preferred shares instead of whole preferred shares. In that event, we
expect to provide for the issuance by a depositary of receipts for
depositary shares, each of which will represent a fractional interest
in preferred shares of a particular series, as described in the
prospectus supplement.
We will deposit any series of preferred shares underlying the
depositary shares under a separate deposit agreement between us, a
depositary of our selection that is a bank or trust company whose
principal office is in the United States and which has a combined
capital and surplus of at least $50,000,000, and the holders of the
depositary shares. The prospectus supplement will show the name and
address of the depositary. Subject to the terms of the deposit
agreement, each holder of depositary shares will be entitled, in
proportion to the applicable fractional interest in the preferred
shares underlying the depositary shares, to the rights and preferences
29<PAGE>
of the underlying preferred shares, including any dividend, voting,
redemption, conversion, exchange and liquidation rights.
The depositary shares will be evidenced by depositary receipts
issued under the deposit agreement. Depositary receipts will be
distributed to those persons purchasing the fractional interests in
the related series of preferred shares, as described in the prospectus
supplement.
DIVIDENDS AND OTHER DISTRIBUTIONS
Whenever the depositary receives any cash dividend or other cash
distribution on the preferred shares, except cash received upon their
redemption, the depositary will distribute those amounts to the record
holders of the depositary receipts in proportion to the number of
depositary shares evidenced by the depositary receipts. The
depositary will not attribute to any holder of depositary shares a
fraction of one cent. The depositary will hold, without liability for
interest, any balance not distributed. This balance will be treated
as part of the next sum received by the depositary for distribution to
the record holders of the depositary receipts.
In a distribution on the preferred shares other than in cash, the
depositary will distribute amounts of the property received to the
record holders of depositary receipts, in proportion to the number of
depositary shares evidenced by the depositary receipts. If the
depositary determines, after consulting us, that this distribution
cannot be made proportionately among the holders or otherwise is not
feasible, the depositary may, with our approval, sell the property and
distribute the net proceeds to these holders instead.
The deposit agreement also will contain provisions about the
manner that any subscription or similar rights offered by us to
holders of the preferred shares will be made available to the holders
of depositary receipts.
REDEMPTION OF DEPOSITARY SHARES
If a series of preferred shares underlying the depositary shares
is subject to redemption, the depositary will use the proceeds
received from the redemption of preferred shares it holds to redeem
the corresponding depositary shares. The depositary will mail notice
of redemption at least 30 but not more than 60 days before the
redemption date to the record holders of the depositary receipts at
their addresses appearing in its books. The redemption price per
depositary share being redeemed will be equal to the applicable
fraction of the redemption price per share payable with respect to the
preferred shares being redeemed. When we redeem preferred shares held
by the depositary, the depositary will redeem as of the same
redemption date the number of depositary shares relating to the
preferred shares redeemed. If not all of the depositary shares are to
be redeemed, the depositary shares to be redeemed will be selected by
lot or pro rata, as Arvin may determine.
After the redemption date, the depositary shares called for
redemption will no longer be deemed to be outstanding and all rights
of the holders of the depositary shares, except the right to receive
the redemption price, will cease and terminate.
30<PAGE>
VOTING THE PREFERRED SHARES
Upon receipt of notice of any meeting at which the holders of the
preferred shares are entitled to vote, the depositary will mail the
information in this notice of meeting to the record holders of the
depositary receipts. Upon the written request of a holder of a
depositary receipt on that record date, the depositary will, to the
extent practicable, vote or cause to be voted the amount of preferred
shares represented by that holder's depositary shares according to the
instructions in this request. Without specific instructions from the
holder of a depositary receipt, the depositary will not vote the
preferred shares represented by the depositary shares evidenced by the
depositary receipt.
AMENDMENT AND TERMINATION OF DEPOSITARY AGREEMENT
The form of depositary receipt and any provision of the deposit
agreement may be amended by agreement between Arvin and the
depositary. However, any amendment which:
- materially and adversely alters the rights of the existing
holders of depositary shares, or
- would be materially and adversely inconsistent with the rights
granted to the holders of preferred shares
requires approval by the holders of at least a majority of the
depositary shares then outstanding.
We may terminate a deposit agreement on at least 30 days' notice
to the depositary. In this case, upon surrender of depositary
receipts, the depositary will distribute to the holders the whole
number of preferred shares represented by the receipts surrendered.
The deposit agreement will terminate automatically upon:
- the redemption or conversion of all outstanding depositary
shares;
- the conversion or exchange into common shares or other
securities of each underlying preferred share, if applicable;
or
- the final distribution in respect of the underlying preferred
shares in connection with any liquidation, dissolution or
winding up of Arvin, which has been distributed to the holders
of the related depositary shares.
CHANGES OF DEPOSITARY
At any time, the depositary may resign by notice to Arvin, or
Arvin may remove the depositary. The resignation or removal of the
depository will take effect upon the appointment of and the acceptance
by a successor depositary. The successor depositary must be appointed
within 60 days after the notice of resignation or removal and must be
a bank or trust company whose principal office is in the United States
and which has a combined capital and surplus of at least $50,000,000.
If a successor depositary is not appointed within 60 days, the
31<PAGE>
resigning or removed depositary may petition a court to appoint a
successor depositary.
MISCELLANEOUS
We will pay all transfer and other taxes and governmental charges
arising solely from the depositary arrangements. We will pay charges
of the depositary for the initial deposit of the preferred shares and
any redemption of preferred shares. Holders of depositary shares will
pay transfer and other taxes and governmental charges and other
charges that the deposit agreement expressly provides are for their
accounts.
The depositary will forward to the holders of depositary receipts
all reports and notices received from Arvin and which Arvin must
furnish to the holders of the preferred shares.
Neither the depositary nor Arvin will be liable if it is
prevented or delayed by law or any circumstances beyond its control in
performing its obligations under the deposit agreement. The
obligations of Arvin and the depositary under the deposit agreement
will be limited to performance in good faith of their duties. Neither
Arvin nor the depositary will be obligated to prosecute or defend any
legal proceeding in respect of any depositary shares or preferred
shares unless satisfactory indemnity is furnished. Arvin and the
depositary may rely upon written advice of counsel or accountants, or
information provided by persons believed to be competent and on
documents believed to be genuine.
DESCRIPTION OF WARRANTS
We may issue warrants, including debt warrants, which are
warrants to purchase debt securities, and equity warrants, which
include warrants to purchase common shares, preferred shares or
depositary shares. We may issue warrants independently of or together
with any other securities, and warrants may be attached to or separate
from those securities. Each series of warrants will be issued under a
separate warrant agreement to be entered into between Arvin and a
warrant agent. The warrant agent will act solely as our agent in
connection with a series of warrants and will not assume any
obligation or relationship of agency for or with holders or beneficial
owners of warrants. The following describes the general terms and
provisions of the warrants offered by this prospectus. The applicable
prospectus supplement will show any other terms of the warrant and the
applicable warrant agreement.
DEBT WARRANTS
The applicable prospectus supplement will describe the terms of
any debt warrants, including the following:
- the title and aggregate number of the debt warrants;
- any offering price of the debt warrants;
- whether the debt warrants are to be issued with any debt
securities and, if so, the title, total principal amount and
terms;
32<PAGE>
- the number of debt warrants to be issued with each principal
amount;
- any date on and after the debt warrants and debt securities
will be separately transferable;
- the title, total principal amount, ranking and terms,
including subordination and conversion provisions, of the
underlying debt securities that may be purchased upon
exercise of the debt warrants;
- the time or period of when the debt warrants are
exercisable, the minimum or maximum amount of debt warrants
which may be exercised at any one time, and the final date
on which the debt warrants may be exercised;
- the principal amount of underlying debt securities that may
be purchased upon exercise of each debt warrant and the
price, or the manner of determining the price, at which the
principal amount may be purchased upon exercise;
- the terms of any right to redeem or call the debt warrants;
- any book-entry procedure information;
- any currency or currency units in which the offering price
and the exercise price are payable;
- if applicable, a discussion of U.S. federal income tax
considerations; and
- any other terms of the debt warrants not inconsistent with
the provisions of the debt warrant agreement.
EQUITY WARRANTS
The applicable prospectus supplement will describe the terms of
any equity warrants, including the following:
- the title and aggregate number of the equity warrants;
- any offering price of the equity warrants;
- the designation and terms of any preferred shares that are
purchasable upon exercise of the equity warrants or that
underlie depositary shares purchasable upon this exercise;
- if applicable, the designation and terms of the securities
with which the equity warrants are issued and the number of
the equity warrants issued with each security;
- if applicable, the date from and after the equity warrants
and any securities issued with them will be separately
transferrable;
- the number of common shares, preferred shares or depositary
shares purchasable upon exercise of an equity warrant and
the price;
33<PAGE>
- the time or period when the equity warrants are exercisable
and the final date on which the equity warrants may be
exercised and terms regarding any right of Arvin to
accelerate this final date;
- if applicable, the minimum or maximum amount of the equity
warrants exercisable at any one time;
- any currency or currency units in which the offering price
and the exercise price are payable;
- any applicable anti-dilution provisions of the equity
warrants;
- if applicable, a discussion of U.S. federal income tax
considerations;
- any applicable redemption or call provisions; and
- any additional terms of the equity warrants not inconsistent
with the provisions of the equity warrant agreement.
PLAN OF DISTRIBUTION
We may sell the securities:
- through underwriting syndicates represented by one or more
managing underwriters,
- through one or more firms acting as underwriters,
- through dealers or agents, or
- directly to investors.
The prospectus supplement with respect to the securities will
describe the terms of the offering, the purchase price of the
securities and the proceeds to us from the sale, any underwriters,
dealers or agents, any delayed delivery arrangements, any fees,
underwriting discounts and other underwriters' compensation. Any
initial public offering price and any discounts or concessions allowed
or reallowed or paid to dealers may change.
If the sale of securities involves underwriters, the underwriters
will acquire the securities for their own account and resell them in
one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the
time of sale. The cover of the prospectus supplement will name the
underwriter or underwriters or managing underwriters or underwriters,
with respect to an underwriting syndicate, for a particular
underwritten offering. Except as the prospectus supplement indicates,
the obligations of the underwriters to purchase the securities will be
subject to conditions precedent. The underwriters will be obligated
to purchase all the securities offered by the prospectus supplement if
any are purchased.
34<PAGE>
If the sale of securities involves dealers, we will sell the
securities to the dealers as principals. The dealers then may resell
the securities to the public at varying prices to be determined by the
dealers at the time of resale. The prospectus supplement will name
the dealers and describe the terms of the transaction.
The prospectus supplement will name any agent involved in the
offer or sale of the securities and will indicate any commissions
payable by Arvin to that agent. Unless the prospectus supplement
states otherwise, any agent will be acting on a best efforts basis for
the period of its appointment.
We will sell the securities directly to institutional investors or
others, who may be deemed to be underwriters within the meaning of the
Securities Act of 1933 with respect to any resale. The prospectus
supplement will describe the terms of any of those sales.
We also may sell the securities in connection with a remarketing
upon their purchase, in connection with a redemption or repayment, by
a remarketing firm acting as principal for its own account or as our
agent. Remarketing firms may be deemed to be underwriters in
connection with the securities that they remarket.
If the prospectus supplement indicates, we will authorize agents,
underwriters or dealers to solicit offers from institutions to
purchase securities from us at the public offering price indicated in
the prospectus supplement through delayed delivery contracts providing
for payment and delivery on a specified date in the future. The
prospectus supplement will specify the conditions of these contracts
and the commission payable for solicitation of the contracts.
Agents, dealers and underwriters may be entitled under agreements
with Arvin to indemnification by Arvin against civil liabilities,
including those under the Securities Act, or to contribution with
respect to those payments that agents, dealers or underwriters may be
required to make. Agents, dealers and underwriters may be customers
of, engage in transactions with, or perform services for Arvin in the
ordinary course of business.
Other than the common shares, which will be approved for listing
upon notice of issuance on the New York Stock Exchange and the Chicago
Stock Exchange, the securities may or may not be listed on a national
securities exchange. There is no assurance that a market for the
securities will exist.
LEGAL OPINIONS
Schiff Hardin & Waite, Chicago, Illinois, will pass upon the
validity of the securities offered by this prospectus for Arvin. The
opinions with respect to the securities may be subject to assumptions
regarding future action to be taken by Arvin and the applicable
trustee, depositary or warrant agent in connection with the issuance
and sale of particular securities, the specific terms of the
securities and other matters that may affect the validity of
securities but that cannot be ascertained on the date of those
opinions.
35<PAGE>
EXPERTS
The financial statements incorporated in this Prospectus by
reference to the Annual Report on Form 10-K of Arvin Industries, Inc.
for the year ended January 3, 1999 have been so incorporated in
reliance on the report of PricewaterhouseCoopers LLP, independent
accountants, given on the authority of said firm as experts in
auditing and accounting.
36<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following statement indicates the estimated amounts of
expenses to be borne by Arvin in connection with the offering
described in this registration statement:
<TABLE>
<CAPTION>
<S> <C>
Securities and Exchange Commission registration fee............. $ 111,200
Trustee's fees and expenses..................................... 20,000
Printing and engraving expenses................................. 75,000
Rating agency fees.............................................. 150,000
Accounting fees and expenses.................................... 50,000
Legal fees and expenses......................................... 50,000
Blue sky fees and expenses...................................... 20,000
Miscellaneous expenses.......................................... 23,800
-----------
Total ........................................................ $ 500,000
-----------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 8 of the Amended and Restated By-Laws of Arvin, as
amended, and Article 10 of its Restated Articles of Incorporation, as
amended, both provide for indemnification of officers and directors of
Arvin against expenses incurred by any of them in certain stated
proceedings and under certain stated conditions.
Chapter 37 of the Indiana Business Corporation Law authorizes
every Indiana corporation to indemnify its officers and directors
under certain circumstances against liability incurred in connection
with the defense of proceedings in which they are made parties, or
threatened to be made parties, by reason of such relationship to the
corporation, except where they are adjudged liable for specific types
of negligence or misconduct in the performance of their duties to the
corporation. Chapter 37 also requires every Indiana corporation to
indemnify any of its directors and, unless such corporation's articles
of incorporation provide otherwise, any of its officers who were
wholly successful, on the merits or otherwise, in the defense of any
such proceeding against reasonable expenses incurred by such director
in connection with such proceeding.
Officers and directors of Arvin are presently covered by insurance
which (with certain exceptions and within certain limitations)
indemnifies them against any losses or liabilities arising from any
alleged "wrongful act," including any breach of duty, neglect, error,
misstatement, misleading statement, omission or other acts done or
wrongfully attempted.
Section 7 of the form of Underwriting Agreement filed as Exhibit
1-1 hereto provides for indemnification by the Underwriters of
officers and directors of Arvin in certain circumstances.
37<PAGE>
ITEM 16. EXHIBITS.
1-1* Form of Underwriting Agreement.
3-1 Amended and Restated Articles of Incorporation and
amendments thereto (incorporated by reference to Exhibit
3(A) to Arvin's Form 10-K for its fiscal year ended December
30, 1990).
3-2 Amended and Restated By-Laws (incorporated by reference to
Exhibit 3(ii) to Arvin's Form 8-K dated May 10, 1996).
4-1 Amended and Restated Articles of Incorporation and
amendments thereto (See Exhibit 3-1).
4-2 Amended and Restated By-laws (See Exhibit 3-2).
4-3 Rights Agreement between the Company and Harris Trust and
Savings Bank, as amended (incorporated by reference to
Arvin's Current Report on Form 8-K dated May 10, 1996,
Arvin's Current Report on Form 8-K dated June 16, 1986 and
Arvin's Current Report on Form 8-K dated February 28, 1989).
4-4 Indenture, dated as of July 3, 1990, between Arvin and
Harris Trust and Savings Bank, as trustee, as amended by
First Supplemental Indenture dated as of March 31, 1994,
relating to the senior debt securities (incorporated by
reference to Exhibit 4-4 to Arvin's Registration Statement
on Form S-3, no. 33-53087).
4-5 Form of Indenture to be entered into between Arvin and a
trustee to be identified, relating to the subordinated debt
securities.
4-6 Form of Deposit Agreement, including form of depositary
receipt for depositary shares (incorporated by reference to
Exhibit 4-6 to Arvin's Registration Statement on Form S-3,
no. 33-53087).
4-7 Form of debt warrant agreement (incorporated by reference to
Exhibit 4-7 to Arvin's Registration Statement on Form S-3,
no. 33-53087).
4-8 Form of equity warrant agreement (incorporated by reference
to Exhibit 4-8 to Arvin's Registration Statement on Form S-
3, no. 33-53087).
4-9* Form of Purchase Contract Agreement.
4-10* Form of Pledge Agreement.
4-11* Form of Remarketing Agreement.
5-1* Opinion of Schiff Hardin & Waite.
12-1 Computation of Ratios of Earnings to Fixed Charges and
Earnings to Combined Fixed Charges and Preferred Dividends
38<PAGE>
(incorporated by reference to Exhibit 12 to Arvin's Form 10-
K for its fiscal year ended January 3, 1999).
23-1 Consent of PricewaterhouseCoopers LLP.
23-2 Consent of Schiff Hardin & Waite (to be included in Exhibit
5-1).
24-1 Power of Attorney is included below, beginning immediately
prior to "Signatures.
25-1 Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of trustee for senior
indenture.
-------------------
* To be filed by amendment.
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) to include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in the registration statement. Notwithstanding
the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high end
of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no
more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement; and
(iii) to include any material information with respect
to the plan of distribution not previously
disclosed in the registration statement or any
material change to such information in the
registration statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3, Form S-8 or Form
F-3, and the information required to be included in a post-effective
39<PAGE>
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) to remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Securities Exchange Act
of 1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person in the
successful defense of any action, suit or proceeding) is asserted by
such director, officer, or controlling person in connection with the
securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
of whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of
such issue.
(d) The undersigned registrant hereby undertakes to file an
application for the purpose of determining the eligibility of the
trustee to act under subsection (a) of Section 310 of the Trust
Indenture Act in accordance with the rules and regulations prescribed
by the Commission under Section 305(b)(2) of the Trust Indenture Act.
POWER OF ATTORNEY
Each person whose signature appears below appoints V. William
Hunt, Ronald R. Snyder and Richard A. Smith, or any of them, as such
person's true and lawful attorney-in-fact and agent, to sign, in the
name of each such person, and file any amendments (including post-
40<PAGE>
effective amendments) to this registration statement that any of such
attorneys-in-fact shall deem necessary or advisable, which amendments
may make such changes in such registration statement as any of the
above-named attorneys-in-fact deems appropriate, together with all
exhibits thereto and all documents in connection therewith, with the
Securities and Exchange Commission; and to sign, in the name of each
such person, and file any registration statement for the same offering
covered by this registration statement that is to be effective upon
filing pursuant to Rule 462 promulgated under the Securities Act of
1933, and all post-effective amendments thereto, together with all
exhibits thereto and all documents in connection therewith, with the
Securities and Exchange Commission; and each of the undersigned hereby
ratifies all that any of said attorneys-in-fact and agents shall do or
cause to be done by virtue thereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of Columbus, State
of Indiana, on this 3rd day of May, 1999.
ARVIN INDUSTRIES, INC.
By: /s/ V. William Hunt
---------------------------------
V. William Hunt
Chairman, President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
----------------------------- ------------------------ ------------------
<S> <C> <C>
/s/ V. William Hunt Chairman, President, Chief
------------------------------ Executive Officer and Director May 3, 1999
V. William Hunt
/s/ Richard A. Smith Vice President-Finance, Chief
------------------------------ Financial Officer and Director February 11, 1999
Richard A. Smith
/s/ William M. Lowe, Jr. Controller and Chief
------------------------------ Accounting Officer February 11, 1999
William M. Lowe, Jr.
41<PAGE>
/s/ Joseph P. Allen
------------------------------ Director February 11, 1999
Joseph P. Allen
/s/ Steven C. Beering
------------------------------ Director February 11, 1999
Steven C. Beering
/s/ Joseph P. Flannery
------------------------------ Director February 11, 1999
Joseph P. Flannery
/s/ Robert E. Fowler
------------------------------ Director May 3, 1999
Robert E. Fowler
/s/ William D. George
------------------------------ Director February 11, 1999
William D. George
/s/ Ivan W. Gorr
------------------------------ Director February 11, 1999
Ivan W. Gorr
/s/ Richard W. Hanselman
------------------------------ Director February 11, 1999
Richard W. Hanselman
/s/ Don J. Kacek
------------------------------ Director February 11, 1999
Don J. Kacek
/s/ Frederick R. Meyer
------------------------------ Director February 11, 1999
Frederick R. Meyer
/s/ Arthur R. Velasquez
------------------------------ Director February 11, 1999
Arthur R. Velasquez
/s/ Carolyn Y. Woo
------------------------------ Director May 3, 1999
Carolyn Y. Woo
</TABLE>
42
EXHIBIT 4-5
======================================================================
ARVIN INDUSTRIES, INC.
AND
_______________________________,
TRUSTEE
__________
Indenture
DATED AS OF _________, 1999
__________
CONVERTIBLE AND NON-CONVERTIBLE SUBORDINATED DEBT SECURITIES
=====================================================================
<PAGE>
ARVIN INDUSTRIES, INC.
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of __________, 1999
<PAGE>
TABLE OF CONTENTS
Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . -1-
Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . -1-
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS . . . . . . . . . . . . . . . . . -1-
Act, . . . . . . . . . . . . . . . . . . . . . . . . . -2-
Affiliate . . . . . . . . . . . . . . . . . . . . . . . -2-
Authenticating Agent . . . . . . . . . . . . . . . . . -2-
Authorized Newspaper . . . . . . . . . . . . . . . . . -2-
Bearer Security . . . . . . . . . . . . . . . . . . . . -2-
Board of Directors . . . . . . . . . . . . . . . . . . -2-
Board Resolution . . . . . . . . . . . . . . . . . . . -2-
Business Day . . . . . . . . . . . . . . . . . . . . . -3-
Commission . . . . . . . . . . . . . . . . . . . . . . -3-
Common Shares . . . . . . . . . . . . . . . . . . . . . -3-
Company . . . . . . . . . . . . . . . . . . . . . . . . -3-
Company Request . . . . . . . . . . . . . . . . . . . . -3-
Company Order . . . . . . . . . . . . . . . . . . . . . -3-
Corporate Trust Office . . . . . . . . . . . . . . . . -3-
Corporation . . . . . . . . . . . . . . . . . . . . . . -3-
Coupon . . . . . . . . . . . . . . . . . . . . . . . . -3-
Defaulted Interest . . . . . . . . . . . . . . . . . . -3-
Dollars . . . . . . . . . . . . . . . . . . . . . . . . -3-
$ . . . . . . . . . . . . . . . . . . . . . . . . . . . -3-
Event of Default . . . . . . . . . . . . . . . . . . . -4-
Holder, . . . . . . . . . . . . . . . . . . . . . . . . -4-
Indebtedness . . . . . . . . . . . . . . . . . . . . . -4-
Indenture . . . . . . . . . . . . . . . . . . . . . . . -4-
Interest, . . . . . . . . . . . . . . . . . . . . . . . -4-
Interest Payment Date . . . . . . . . . . . . . . . . . -4-
Maturity, . . . . . . . . . . . . . . . . . . . . . . . -4-
Officers' Certificate . . . . . . . . . . . . . . . . . -4-
Opinion of Counsel . . . . . . . . . . . . . . . . . . -5-
Original Issue Discount Security . . . . . . . . . . . -5-
Outstanding, . . . . . . . . . . . . . . . . . . . . . -5-
Paying Agent . . . . . . . . . . . . . . . . . . . . . -6-
Person . . . . . . . . . . . . . . . . . . . . . . . . -6-
Place of Payment . . . . . . . . . . . . . . . . . . . -6-
Predecessor Security . . . . . . . . . . . . . . . . . -6-
Redemption Date, . . . . . . . . . . . . . . . . . . . -6-
Redemption Price, . . . . . . . . . . . . . . . . . . . -6-
Registered Security . . . . . . . . . . . . . . . . . . -6-
Regular Record Date . . . . . . . . . . . . . . . . . . -6-
Responsible Officer, . . . . . . . . . . . . . . . . . -6-
Rights . . . . . . . . . . . . . . . . . . . . . . . . -7-
Rights Agreement . . . . . . . . . . . . . . . . . . . -7-
Security . . . . . . . . . . . . . . . . . . . . . . . -7-
Securities . . . . . . . . . . . . . . . . . . . . . . -7-
<PAGE>
Security Register . . . . . . . . . . . . . . . . . . . -7-
Security Registrar . . . . . . . . . . . . . . . . . . -7-
Senior Indebtedness . . . . . . . . . . . . . . . . . . -7-
Special Record Date . . . . . . . . . . . . . . . . . . -7-
Stated Maturity, . . . . . . . . . . . . . . . . . . . -7-
Subsidiary . . . . . . . . . . . . . . . . . . . . . . -7-
Trustee . . . . . . . . . . . . . . . . . . . . . . . . -7-
Trust Indenture Act . . . . . . . . . . . . . . . . . . -7-
United States . . . . . . . . . . . . . . . . . . . . . -7-
U.S. Depository . . . . . . . . . . . . . . . . . . . . -8-
Depository . . . . . . . . . . . . . . . . . . . . . . -8-
U.S. Government Obligations . . . . . . . . . . . . . . -8-
Vice President, . . . . . . . . . . . . . . . . . . . . -8-
Voting Stock . . . . . . . . . . . . . . . . . . . . . -8-
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS . . . . -8-
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE . . . -9-
SECTION 104. ACTS OF HOLDERS . . . . . . . . . . . . . . . -10-
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY . . . . -12-
SECTION 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER . . . -12-
SECTION 107. LANGUAGE OF NOTICES . . . . . . . . . . . . . -13-
SECTION 108. CONFLICT WITH TRUST INDENTURE ACT . . . . . . -13-
SECTION 109. EFFECT OF HEADINGS AND TABLE OF CONTENTS . . -14-
SECTION 110. SUCCESSORS AND ASSIGNS . . . . . . . . . . . -14-
SECTION 111. SEPARABILITY CLAUSE . . . . . . . . . . . . . -14-
SECTION 112. BENEFITS OF INDENTURE . . . . . . . . . . . . -14-
SECTION 113. GOVERNING LAW . . . . . . . . . . . . . . . . -14-
SECTION 114. LEGAL HOLIDAYS . . . . . . . . . . . . . . . -14-
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY . . . . . . . . . . . . . . . -15-
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF
AUTHENTICATION . . . . . . . . . . . . . . . -15-
SECTION 203. SECURITIES IN GLOBAL FORM . . . . . . . . . . -15-
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES . . . . -16-
SECTION 302. DENOMINATIONS . . . . . . . . . . . . . . . . -19-
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND
DATING . . . . . . . . . . . . . . . . . . . -19-
SECTION 304. TEMPORARY SECURITIES . . . . . . . . . . . . -21-
SECTION 305. REGISTRATION, TRANSFER AND EXCHANGE . . . . . -21-
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN
SECURITIES . . . . . . . . . . . . . . . . . -25-
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS
PRESERVED . . . . . . . . . . . . . . . . . . -26-
-ii-
<PAGE>
SECTION 308. PERSONS DEEMED OWNERS . . . . . . . . . . . . -28-
SECTION 309. CANCELLATION . . . . . . . . . . . . . . . . -29-
SECTION 310. COMPUTATION OF INTEREST . . . . . . . . . . . -29-
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE . . . -29-
SECTION 402. APPLICATION OF TRUST MONEY . . . . . . . . . -31-
SECTION 403. SATISFACTION, DISCHARGE AND DEFEASANCE OF
SECURITIES OF ANY SERIES . . . . . . . . . . -31-
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT . . . . . . . . . . . . . . -33-
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND
ANNULMENT . . . . . . . . . . . . . . . . . . -35-
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE . . . . . . . . . . . -36-
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM . . . . . . -37-
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION
OF SECURITIES OR COUPONS . . . . . . . . . . -38-
SECTION 506. APPLICATION OF MONEY COLLECTED . . . . . . . -38-
SECTION 507. LIMITATION ON SUITS . . . . . . . . . . . . . -39-
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST . . . . . . . -39-
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES . . . . . -40-
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE . . . . . . . -40-
SECTION 511. DELAY OR OMISSION NOT WAIVER . . . . . . . . -40-
SECTION 512. CONTROL BY HOLDERS OF SECURITIES . . . . . . -40-
SECTION 513. WAIVER OF PAST DEFAULTS . . . . . . . . . . . -41-
SECTION 514. UNDERTAKING FOR COSTS . . . . . . . . . . . . -41-
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES . . . . . -42-
SECTION 602. NOTICE OF DEFAULTS . . . . . . . . . . . . . -43-
SECTION 603. CERTAIN RIGHTS OF TRUSTEE . . . . . . . . . . -43-
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES . . . . . . . . . . . . . . . . . -44-
SECTION 605. MAY HOLD SECURITIES . . . . . . . . . . . . . -45-
SECTION 606. MONEY HELD IN TRUST . . . . . . . . . . . . . -45-
SECTION 607. COMPENSATION AND REIMBURSEMENT . . . . . . . -45-
SECTION 608. DISQUALIFICATIONS; CONFLICTING INTERESTS . . -46-
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY . . . -46-
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR . . . . . . . . . . . . . . . . . . -46-
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SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR . . . -48-
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR
SUCCESSION TO BUSINESS . . . . . . . . . . . -49-
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
COMPANY . . . . . . . . . . . . . . . . . . . -50-
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT . . . . . -54-
ARTICLE SEVEN
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND
ADDRESSES OF HOLDERS . . . . . . . . . . . . -56-
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS
TO HOLDERS . . . . . . . . . . . . . . . . . -57-
SECTION 703. REPORTS BY TRUSTEE . . . . . . . . . . . . . -58-
SECTION 704. REPORTS BY THE COMPANY . . . . . . . . . . . -60-
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ON CERTAIN
TERMS . . . . . . . . . . . . . . . . . . . . -61-
SECTION 802. SUCCESSOR CORPORATION TO BE SUBSTITUTED . . . -61-
SECTION 803. OPINION OF COUNSEL TO BE GIVEN TRUSTEE . . . -62-
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
HOLDERS . . . . . . . . . . . . . . . . . . . -62-
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF
HOLDERS . . . . . . . . . . . . . . . . . . . -63-
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES . . . . -65-
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES . . . . . . -65-
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT . . . . . -65-
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL
INDENTURES . . . . . . . . . . . . . . . . . -65-
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND
INTEREST . . . . . . . . . . . . . . . . . . -65-
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY . . . . . . . -66-
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN
TRUST . . . . . . . . . . . . . . . . . . . . -67-
SECTION 1004. CORPORATE EXISTENCE . . . . . . . . . . . . . -68-
SECTION 1005. STATEMENT BY OFFICERS AS TO DEFAULT . . . . . -69-
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE . . . . . . . . . . -69-
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE . . . . -69-
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE
REDEEMED . . . . . . . . . . . . . . . . . . -69-
SECTION 1104. NOTICE OF REDEMPTION . . . . . . . . . . . . -70-
SECTION 1105. DEPOSIT OF REDEMPTION PRICE . . . . . . . . . -71-
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE . . . . -72-
SECTION 1107. SECURITIES REDEEMED IN PART . . . . . . . . . -73-
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE . . . . . . . . . . -73-
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES . . . . . . . . . . . . . . . . . -73-
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND . . -74-
ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES
SECTION 1301. SECURITIES SUBORDINATE TO SENIOR
INDEBTEDNESS . . . . . . . . . . . . . . . . -75-
SECTION 1302. DISSOLUTION, LIQUIDATION, INSOLVENCY, ETC . . -75-
SECTION 1303. DEFAULT ON SENIOR INDEBTEDNESS . . . . . . . -76-
SECTION 1304. PAYMENTS AND DISTRIBUTIONS RECEIVED . . . . . -76-
SECTION 1305. PAYMENT PERMITTED IF NO DEFAULT . . . . . . . -77-
SECTION 1306. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR
INDEBTEDNESS . . . . . . . . . . . . . . . . -77-
SECTION 1307. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS . -77-
SECTION 1308. TRUSTEE TO EFFECTUATE SUBORDINATION . . . . . -78-
SECTION 1309. NO WAIVER OF SUBORDINATION PROVISIONS . . . . -78-
SECTION 1310. NOTICE TO TRUSTEE . . . . . . . . . . . . . . -79-
SECTION 1311. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF
LIQUIDATING AGENT . . . . . . . . . . . . . . -80-
SECTION 1312. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR
INDEBTEDNESS . . . . . . . . . . . . . . . . -80-
SECTION 1313. RIGHTS OF TRUSTEE AS A HOLDER OF SENIOR
INDEBTEDNESS; PRESERVATION OF TRUSTEE'S RIGHTS
-80-
SECTION 1314. ARTICLE APPLICABLE TO PAYING AGENTS . . . . . -80-
SECTION 1315. NO SUSPENSION OF REMEDIES . . . . . . . . . . -81-
SECTION 1316. TRUST MONEYS NOT SUBORDINATED . . . . . . . . -81-
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ARTICLE FOURTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1401. APPLICABILITY OF ARTICLE . . . . . . . . . . -81-
ARTICLE FIFTEEN
CONVERSION OF SECURITIES
SECTION 1501. CONVERSION PRIVILEGE AND CONVERSION PRICE . . -82-
SECTION 1502. EXERCISE OF CONVERSION PRIVILEGE . . . . . . -82-
SECTION 1503. FRACTIONS OF SHARES . . . . . . . . . . . . . -84-
SECTION 1504. ADJUSTMENT OF CONVERSION PRICE . . . . . . . -84-
SECTION 1505. NOTICE OF ADJUSTMENTS OF CONVERSION PRICE . . -87-
SECTION 1506. NOTICE OF CERTAIN CORPORATE ACTIONS . . . . . -87-
SECTION 1507. COMPANY TO RESERVE COMMON SHARES . . . . . . -88-
SECTION 1508. TAXES ON CONVERSIONS . . . . . . . . . . . . -89-
SECTION 1509. COVENANT AS TO COMMON SHARES . . . . . . . . -89-
SECTION 1511. CANCELLATION OF CONVERTED SECURITIES . . . . -89-
SECTION 1512. PROVISIONS AS TO RECLASSIFICATION,
CONSOLIDATION, MERGER OR SALE OF ASSETS . . . -89-
SECTION 1513. TRUSTEE NOT RESPONSIBLE FOR DETERMINING
CONVERSION PRICE OR ADJUSTMENTS . . . . . . . -90-
SECTION 1514. RIGHTS ISSUED IN RESPECT OF COMMON SHARES
ISSUED ON CERTAIN CONVERSIONS . . . . . . . . -90-
ARTICLE SIXTEEN
MISCELLANEOUS PROVISIONS
SECTION 1601. SECURITIES IN FOREIGN CURRENCIES . . . . . . -91-
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<PAGE>
INDENTURE, dated as of __________, 1999, between ARVIN
INDUSTRIES, INC., an Indiana corporation (hereinafter called the
"Company"), having its principal executive office at One Noblitt
Plaza, Columbus, Indiana 47202, and ______________________, a banking
organization organized under the laws of __________________
(hereinafter called the "Trustee"), having its Corporate Trust Office
at _______________________________________.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its
unsecured and subordinated debentures, notes or other evidences of
indebtedness (such debt securities being hereinafter called the
"Securities"), unlimited as to principal amount, to bear such rates of
interest, to mature at such time or times, to be issued in one or more
series and to have such other provisions as shall be fixed as
hereinafter provided.
The Company has duly authorized the execution and delivery of
this Indenture, and all things necessary to make this Indenture a
valid agreement of the Company, in accordance with its terms, have
been done.
NOW, THEREFORE, in consideration of the premises and the sum of
one dollar duly paid by the Company to the Trustee, the receipt of
which is hereby acknowledged, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of Securities,
as follows:
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as defined below) thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Securities or of series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well
as the singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein,
have the meanings assigned to them therein;
<PAGE>
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally
accepted accounting principles and, except as otherwise herein
expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted at the date of such computation; and
(4) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in
that Article.
"Act," when used with respect to any Holders, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes
of this definition, "control" when used with respect to any specified
Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have the meanings correlative to the
foregoing.
"Authenticating Agent" means the Trustee or any Person authorized
by the Trustee pursuant to Section 614 to act on behalf of the Trustee
to authenticate Securities of one or more series.
"Authorized Newspaper" means a newspaper, in an official language
of the country of publication or in the English language, customarily
published on each Business Day, whether or not published on Saturdays,
Sundays or holidays, and of general circulation in the place in
connection with which the term is used or in the financial community
of such place. Where successive publications are required to be made
in Authorized Newspapers, the successive publications may be made in
the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security in the form established
pursuant to Section 201 which is payable to bearer.
"Board of Directors" means the Board of Directors of the Company
or a duly authorized Committee thereof.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors or a duly authorized Committee
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<PAGE>
thereof and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day," except as may otherwise be provided in the form
of Securities of any particular series pursuant to the provisions of
this Indenture, with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions or trust companies in that Place of Payment
are authorized or obligated by law to close.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange
Act of 1934, or if at any time after the execution of this instrument
such Commission is not existing and performing the duties now assigned
to it under the Trust Indenture Act, then the body performing such
duties at such time.
"Common Shares" means shares of the class designated as Common
Shares, $2.50 par value, of the Company at the date of this Indenture
or shares of any class or classes resulting from any reclassification
or reclassifications thereof.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have
become such pursuant to the applicable provisions of this Indenture,
and thereafter "Company" shall mean such successor corporation, and
any other obligor upon the Securities.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by the
Chairman, the Vice Chairman, the President, a Vice President or the
Treasurer, and by a Vice President, an Assistant Treasurer, the
Secretary or an Assistant Secretary of the Company, and delivered to
the Trustee.
"Corporate Trust Office" means the principal office of the
Trustee, at which at any particular time its corporate trust business
shall be administered, which office at the date of original execution
of this Indenture is located at 611 Woodward Avenue, 11th Floor,
Detroit, Michigan 48226.
"Corporation" includes corporations, associations, companies and
business trusts.
"Coupon" means any interest coupon appertaining to a Bearer
Security.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollars" or "$" or any similar reference shall mean the currency
of the United States, except as may otherwise be provided in the form
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<PAGE>
of Securities of any particular series pursuant to the provisions of
this Indenture.
"Event of Default" has the meaning specified in Section 501.
"Holder," when used with respect to any Security, means, in the
case of a Registered Security, the Person in whose name the Security
is registered in the Security Register, and, in the case of a Bearer
Security, the bearer thereof and, when used with respect to any
coupon, means the bearer thereof.
"Indebtedness," as applied to any Person, means all indebtedness,
whether or not represented by bonds, debentures, notes or other
securities, created or assumed by such Person for the repayment of
money borrowed, and obligations, computed in accordance with generally
accepted accounting principles, as lessee under leases that should be,
in accordance with generally accepted accounting principles, treated
as capital leases. All Indebtedness secured by a lien upon property
owned by the Company or any Subsidiary and upon which Indebtedness
such Person customarily pays interest, although such Person has not
assumed or become liable for the payment of such Indebtedness, shall
be deemed to be Indebtedness of such Person. All Indebtedness of
others guaranteed as to payment of principal by such Person or in
effect guaranteed by such Person through a contingent agreement to
purchase such Indebtedness shall also be deemed to be Indebtedness of
such Person.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof.
"Interest," when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the applicable Securities.
"Maturity," when used with respect to any Security means the date
on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the
Stated Maturity or by declaration of acceleration, notice of
redemption, request for repayment or otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the Vice Chairman of the Board, the President
or a Vice President and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of the Company, and delivered to
the Trustee.
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<PAGE>
"Opinion of Counsel" means a written opinion of counsel, who may
(except as otherwise expressly provided in this Indenture) be an
employee of or counsel for the Company, or other counsel who shall be
reasonably acceptable to the Trustee.
"Original Issue Discount Security" means a Security issued
pursuant to this Indenture which provides for declaration of an amount
less than the principal thereof to be due and payable upon
acceleration pursuant to Section 502.
"Outstanding," when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated
and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee
or any Paying Agent (other than the Company) in trust or set
aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such
Securities and any coupons thereto appertaining, PROVIDED that,
if such Securities are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has-been made; and
(iii) Securities which have been paid pursuant to
Section 306 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which
there shall have been presented to the Trustee proof satisfactory
to it that such Securities are held by a bona fide purchaser in
whose hands such Securities are valid obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the
requisite principal amount of Outstanding Securities have given
any request, demand, authorization, direction, notice, consent or
waiver hereunder, the principal amount of an Original Issue
Discount Security that may be counted in making such
determination and that shall be deemed to be Outstanding for such
purposes shall be equal to the amount of the principal thereof
that could be declared to be due and payable pursuant to the
terms of such Original Issue Discount Security at the time the
taking of such action by the Holders of such requisite principal
amount is evidenced to the Trustee as provided in Section 104(a),
and, PROVIDED FURTHER, that Securities owned by the Company or
any other obligor upon the Securities or any Affiliate of the
Company or such other obligor, shall be disregarded and deemed
not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so
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<PAGE>
disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate
of the Company or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay
the principal of (and premium, if any) or interest on any Securities
on behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision
thereof.
"Place of Payment," when used with respect to the Securities of
any series, means the place or places where the principal of (and
premium, if any) and interest on the Securities of that series are
payable as specified as provided pursuant to Section 301.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306
in exchange for or in lieu of a lost, destroyed, mutilated or stolen
Security or a Security to which a mutilated, destroyed, lost or stolen
coupon appertains shall be deemed to evidence the same debt as the
lost, destroyed, mutilated or stolen Security or the Security to which
a mutilated, destroyed, lost or stolen coupon appertains.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed as determined
pursuant to the provisions of this Indenture.
"Registered Security" means any Security established pursuant to
Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on a Registered
Security on any Interest Payment Date means the date, if any,
specified in such Security as the "Regular Record Date."
"Responsible Officer," when used with respect to the Trustee,
means any officer of the Trustee in its Corporate Trust Office and
also means, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of his knowledge
of and familiarity with the particular subject.
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<PAGE>
"Rights" has the meaning specified in Section 1514.
"Rights Agreement" means the Rights Agreement dated as of May 29,
1986, as amended February 23, 1989, between the Company and Harris
Trust and Savings Bank, as Rights Agent.
"Security" or "Securities" means any Security or Securities, as
the case may be, authenticated and delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" means Indebtedness of the Company, either
outstanding as of the date of this Indenture or issued subsequent to
the date of this Indenture, that by its terms is not subordinated in
right of payment to any unsecured Indebtedness of the Company or is
PARI PASSU with subordinated Indebtedness of any series of the
Company.
"Special Record Date" for the payment of any Defaulted Interest
on the Registered Securities of any series means a date fixed by the
Trustee pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date
specified in such Security or a coupon representing such installment
of interest as the fixed date on which the principal of such Security
or such installment of principal or interest is due and payable.
"Subsidiary" means any corporation of which at the time of
determination the Company and/or one or more Subsidiaries owns or
controls directly or indirectly more than 50% of the shares of Voting
Stock.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have
become such with respect to one or more series of Securities pursuant
to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" shall
mean each such Person and as used with respect to the Securities of
any series shall mean the Trustee with respect to the Securities of
that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as
provided in Section 905.
"United States" means the United States of America (including the
States and the District of Columbia), its territories and possessions
and other areas subject to its jurisdiction.
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<PAGE>
"U.S. Depository" or "Depository" means, with respect to the
Securities of any series issuable or issued in whole or in part in the
form of one or more global Securities, the Person designated as U.S.
Depository by the Company pursuant to Section 301, which must be a
clearing agency registered under the Securities Exchange Act of 1934,
as amended, and, if so provided pursuant to Section 301 with respect
to the Securities of any series, any successor to such Person. If at
any time there is more than one such Person, "U.S. Depository" shall
mean, with respect to any series of Securities, the qualifying entity
which has been appointed with respect to the Securities of that
series.
"U.S. Government Obligations" means direct obligations of the
United States for the payment of which its full faith and credit is
pledged, or obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States and the
payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States which, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall
also include a depository receipt issued by a bank (as defined in
Section 3(a) (2) of the Securities Act of 1933, as amended) as
custodian with respect to any such U.S. Government Obligations or a
specific payment of principal of or interest on any such U.S.
Government Obligations held by such custodian for the account of the
holder of such depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from
the amount payable to the holder of such depository receipt from any
amount received by the custodian in respect of the U.S. Government
Obligations or the specific payment of principal of or interest on the
U.S. Government Obligations evidenced by such depository receipt.
"Vice President," when used with respect to the Company, shall
mean any Vice President of the Company whether or not designated by a
number or a word or words added before or after the title "Vice
President."
"Voting Stock" means stock of the class or classes having general
voting power under ordinary circumstances to elect at least a majority
of the board of directors, managers or trustees of such corporation
provided that, for the purposes hereof, stock which carries only the
right to vote conditionally on the happening of an event shall not be
considered voting stock whether or not such event shall have happened.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company
shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with and an Opinion of
Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in
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<PAGE>
the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this
Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than
certificates provided pursuant to Section 704(4)) shall include:
(1) a statement that each individual signing such
certificate or opinion has read such condition or covenant and
the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such condition or covenant has been complied with;
and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the
opinion of, only one such Person, or that they be so certified or
covered by only one document, but one such Person may certify or give
an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give
an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows,
or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the matters
upon which his certificate or opinion is based are erroneous. Any
such certificate or Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that
the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are erroneous.
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Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions
or other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given
or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in
person or by agent duly appointed in writing. Except as herein
otherwise expressly provided, such action shall become effective when
such instrument or instruments or record or both are delivered to the
Trustee and, where it is hereby expressly required, to the Company.
Such instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Holders signing such instrument or instruments
and so voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing as such agent, or of the holding
by any Person of a Security, shall be sufficient for any purpose of
this Indenture and (subject to Section 601) conclusive in favor of the
Trustee and the Company and any agent of the Trustee or the Company,
if made in the manner provided in this Section 104.
Without limiting the generality of this Section 104, unless
otherwise established in or pursuant to a Board Resolution or set
forth or determined in an Officers' Certificate, or established in one
or more indentures supplemental hereto, pursuant to Section 301, a
Holder, including a U.S. Depository that is a Holder of a global
Security, may make, give or take, by a proxy, or proxies, duly
appointed in writing, any request, demand, authorization, direction,
notice, consent, waiver or other action provided in this Indenture to
be made, given or taken by Holders, and a U.S. Depository that is a
Holder of a global Security may provide its proxy or proxies to the
beneficial owners of interests in any such global Security through
such U.S. Depository's standing instructions and customary practices.
The Trustee shall fix a record date for the purpose of
determining the Persons who are beneficial owners of interest in any
permanent global Security held by a U.S. Depository entitled under the
procedures of such U.S. Depository to make, give or take, by a proxy
or proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action
provided in this Indenture to be made, given or taken by Holders. If
such a record date is fixed, the Holders on such record date or their
duly appointed proxy or proxies, and only such Persons, shall be
entitled to make, give or take such request, demand, authorization,
direction, notice, consent, waiver or other action, whether or not
such Holders remain Holders after such record date. No such request,
demand, authorization, direction, notice, consent, waiver or other
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action shall be valid or effective if made, given or taken more than
90 days after such record date.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the
Trustee deems sufficient and in accordance with such reasonable rules
as the Trustee may determine; and the Trustee may in any instance
require further proof with respect to any of the matters referred to
in this Section 104.
(c) The ownership of Registered Securities and the principal
amount and serial numbers of Registered Securities held by any Person,
and the date of holding the same, shall be proved by the Security
Register.
(d) The principal amount and serial numbers of Bearer Securities
held by any Person, and the date of holding the same, may be proved by
the production of such Bearer Securities or by a certificate executed,
as depositary, by any trust company, bank, banker or other depositary
reasonably acceptable to the Company, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing
that at the date therein mentioned such Person had on deposit with
such depositary, or exhibited to it, the Bearer Securities therein
described; or such facts may be proved by the certificate or affidavit
of the Person holding such Bearer Securities, if such certificate or
affidavit is deemed by the Trustee to the satisfactory. The Trustee
and the Company may assume that such ownership of any Bearer Security
continues until (1) another certificate or affidavit bearing a later
date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other Person
or (3) such Bearer Security is surrendered in exchange for a
Registered Security, or (4) such Bearer Security is no longer
Outstanding. The principal amount and serial numbers of Bearer
Securities held by the Person so executing such instrument or writing
and the date of holding the same may also be proved in any other
manner which the Trustee deems sufficient.
(e) If the Company shall solicit from the Holders of any
Registered Securities any request, demand, authorization, direction,
notice, consent, waiver or other Act, the Company may, at its option,
by Board Resolution, fix in advance a record date for the
determination of Holders of Registered Securities entitled to give
such request, demand, authorization, direction, notice, consent,
waiver or other Act, but the Company shall have no obligation to do
so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be
given before or after such record date, but only the Holders of
Registered Securities of record at the close of business on such
record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other
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Act, and for that purpose the Outstanding Securities shall be computed
as of such record date; PROVIDED that no such authorization, agreement
or consent by the Holders of Registered Securities on such record date
shall be deemed effective unless such authorization, agreement or
consent shall be given no later than six months after the record date
fixed pursuant to the provisions of this Section 104.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Security shall
bind every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done or
suffered to be done by the Trustee, any Security Registrar, any Paying
Agent or the Company in reliance thereon, whether or not notation of
such action is made upon such Security.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished
or filed in writing to or with the Trustee at its Corporate Trust
Office, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first class postage
prepaid, to the Company addressed to the attention of its
Treasurer at the address of its principal office specified in the
first paragraph of this instrument or at any other address
previously furnished in writing to the Trustee by the Company.
SECTION 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise expressly provided herein or in the form of
Securities of any particular series pursuant to the provisions of this
Indenture, where this Indenture provides for notice to Holders of
Securities of any event,
(1) such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed, first-class
postage prepaid, to each Holder of a Registered Security affected
by such event, at his address as it appears in the Security
Register, not later than the latest date, and not earlier than
the earliest date, prescribed for the giving of such Notice; and
(2) such notice shall be sufficiently given to Holders of
Bearer Securities, if any, if published in an Authorized
Newspaper in The City of New York and, if the Securities of such
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series are then listed on any stock exchange outside the United
States, in an Authorized Newspaper in such city as the Company
shall advise the Trustee that such stock exchange so requires, on
a Business Day at least twice, the first such publication to be
not earlier than the earliest date and not later than the latest
date prescribed for the giving of such notice.
In any case where notice to Holders of Registered Securities is
given by mail, neither the failure to mail such notice, nor any defect
in any notice so mailed, to any particular Holder of a Registered
Security shall affect the sufficiency of such notice with respect to
other Holders of Registered Securities or the sufficiency of any
notice to Holders of Bearer Securities given as provided herein. Any
notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given or provided. In the
case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose
hereunder.
In case by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any
other cause it shall be impracticable to publish any notice to Holders
of Bearer Securities as provided above, then such notification to
Holders of Bearer Securities as shall be given with the approval of
the Trustee shall constitute sufficient notice to such Holders for
every purpose hereunder. Neither failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any
defect in any notice so published, shall affect the sufficiency of any
notice mailed to Holders of Registered Securities as provided above.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders of Securities
shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance
upon such waiver.
SECTION 107. LANGUAGE OF NOTICES.
Any request, demand, authorization, direction, notice, consent,
election or waiver required or permitted under this Indenture shall be
in the English language, except that, if the Company so elects, any
published notice may be in an official language of the country of
publication.
SECTION 108. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this
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Indenture by any of the provisions of the Trust Indenture Act, such
required provisions shall control.
SECTION 109. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 110. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 111. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities or
coupons shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 112. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities or coupons,
express or implied, shall give to any Person, other than the parties
hereto, any Security Registrar, any Paying Agent and their successors
hereunder and the Holders of Securities or coupons, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
SECTION 113. GOVERNING LAW.
This Indenture and the Securities and coupons shall be governed
by and construed in accordance with the laws of the State of New York.
SECTION 114. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security shall not be a Business Day at any
Place of Payment, then (notwithstanding any other provision of this
Indenture or the Securities or coupons other than a provision in the
Securities which specifically states that such provision shall apply
in lieu of this Section 114) payment of interest or principal (and
premium, if any) need not be made at such Place of Payment on such
date, but may be made on the next succeeding Business Day at such
Place of Payment with the same force and effect as if made on the
Interest Payment Date or Redemption Date, or at the Stated Maturity,
and no interest shall accrue on the amount so payable for the period
from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be.
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ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons, if any, and
temporary global Securities, if any, shall be in the form established
by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, shall have appropriate insertions, omissions,
substitutions and other variations as are required or permitted by
this Indenture or any indenture supplemental hereto and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistently herewith, be
determined by the officers of the Company executing such Securities,
as evidenced by their execution of such Securities.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, the Securities of each series
shall be issuable in registered form without coupons. If so provided
as contemplated by Section 301, the Securities of a series also shall
be issuable in bearer form, with or without interest coupons attached.
The definitive Securities and coupons shall be printed,
lithographed or engraved or produced by any combination of these
methods on a steel engraved border or steel engraved borders or may be
produced in any other manner, all as determined by the officers of the
Company executing such Securities, as evidenced by their execution of
such Securities or coupons.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication on all Securities
shall be in substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
[Trustee], as Trustee
By ___________________________
Authorized Officer
SECTION 203. SECURITIES IN GLOBAL FORM.
If Securities of a series are issuable in global form, any such
Security may provide that it shall represent the aggregate amount of
Outstanding Securities from time to time endorsed thereon and may also
provide that the aggregate amount of Outstanding Securities
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represented thereby may from time to time be reduced to reflect
exchanges. Any endorsement of a Security in global form to reflect
the amount, or any increase or decrease in the amount or changes in
the rights of Holders of Outstanding Securities represented thereby
shall be made in such manner and by such Person or Persons as shall be
specified therein. Any instructions by the Company with respect to a
Security in global form shall be in writing but need not comply with
Section 102.
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited. The
Securities shall be subordinated in right of payment to the Senior
Indebtedness of the Company to the extent and in the manner set forth
in Article Thirteen (as the provisions of such Article may be revised
pursuant to Section 301(17)).
The Securities shall rank equally and PARI PASSU and may be
issued in one or more series. There shall be established in or
pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental
hereto:
(1) the title of the Securities and the series in which such
Securities shall be included;
(2) any limit upon the aggregate principal amount of the
Securities of such title or the Securities of such series which may be
authenticated and delivered under this Indenture (except for
Securities authenticated and delivered upon registration or transfer
of; or in exchange for, or in lieu of; other Securities of the series
pursuant to Section 304, 305, 306, 906 or 1107);
(3) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or
both; any restrictions applicable to the offer, sale or delivery of
Bearer Securities and the terms upon which Bearer Securities of the
series may be exchanged for Registered Securities of the series and
vice versa; and whether any Securities of the series are to be
issuable initially in global form and, if so, (i) whether beneficial
owners of interests in any such global Security may exchange such
interest for Securities of such series and of like tenor of any
authorized form and denomination and the circumstances under which any
such exchanges may occur, if other than in the manner specified in
Section 305 and (ii) the name of the depository or the U.S.
Depository, as the case may be, with respect to any global Security;
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(4) the date as of which any Bearer Securities of the series and
any temporary global Security representing Outstanding Securities of
the series shall be dated if other than the date of original issuance
of the first Security of the series to be issued;
(5) if Securities of the series are to be issuable as Bearer
Securities, whether interest in respect of any portion of a temporary
Bearer Security in global form (representing all of the Outstanding
Bearer Securities of the series) payable in respect of an Interest
Payment Date prior to the exchange of such temporary Bearer Security
for definitive Securities of the series shall be paid to any clearing
organization with respect to the portion of such temporary Bearer
Security held for its account and, in such event, the terms and
conditions (including any certification requirements) upon which any
such interest payment received by a clearing organization will be
credited to the Persons entitled to interest payable on such Interest
Payment Date;
(6) the date or dates on which the principal of such Securities
is payable;
(7) the rate or rates at which such Securities shall bear
interest, if any, or method in which such rate or rates are
determined, the date or dates from which such interest shall accrue,
the Interest Payment Dates on which such interest shall be payable and
the Regular Record Date for the interest payable on Registered
Securities on any Interest Payment Date, and the basis upon which
interest shall be calculated if other than that of a 360-day year of
twelve 30-day months;
(8) the place or places, if any, in addition to or other than
the Borough of Manhattan, The City of New York and the City of
Detroit, Michigan, where the principal of (and premium, if any) and
interest on such Securities shall be payable;
(9) the period or periods within which, the price or prices at
which and the terms and conditions upon which such Securities may be
redeemed, in whole or in part, at the option of the Company;
(10) the obligation, if any, of the Company to redeem or purchase
such Securities pursuant to any sinking fund or at the option of a
Holder thereof and the period or periods within which, the price or
prices at which and the terms and conditions upon which such
Securities shall be redeemed or purchased, in whole or in part,
pursuant to such obligation, and any provisions for the remarketing of
such Securities;
(11) the denominations in which Registered Securities of the
series, if any, shall be issuable if other than denominations of
$1,000 and any integral multiple thereof, and the denominations in
which Bearer Securities of the series, if any, shall be issuable if
other than the denomination of $5,000;
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(12) if other than the principal amount thereof, the portion of
the principal amount of such Securities which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to
Section 502;
(13) if other than such coin or currency of the United States of
America as at the time of payment is legal tender for payment of
public or private debts, the coin or currency, including composite
currencies, in which payment of the principal of (and premium, if any)
or interest, if any, on such Securities shall be payable;
(14) if the principal of (and premium, if any) or interest, if
any, on such Securities are to be payable, at the election of the
Company or a Holder thereof, in a coin or currency, including
composite currencies, other than that in which the Securities are
stated to be payable, the period or periods within which, and the
terms and conditions upon which, such election may be made;
(15) if the amount of payments of principal of (and premium, if
any) or interest, if any, on such Securities may be determined with
reference to an index, formula or other method based on a coin or
currency other than that in which the Securities are stated to be
payable, the manner in which such amounts shall be determined;
(16) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
then the form and terms of such certificates, documents or conditions;
(17) any provisions in modification of, in addition to or in lieu
of the provisions of Article Thirteen (or the definition of the term
"Senior Indebtedness" contained in Section 101 or any other term used
in such definition or in Article Thirteen) that shall be applicable to
the Securities of such series;
(18) any provisions in modification of, in addition to or in lieu
of the provisions of Article Fifteen for the conversion of Securities
of the series into or for another security or securities of the
Company, including the security or securities into which, the period
or periods within which, the price or prices, including any
adjustments thereto, at which and other terms and conditions upon
which any Securities of the series shall be converted;
(19) any additions to the covenants of the Company for the
benefit of the Holders of Securities of such series; and
(20) any other terms of such Securities (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and coupons appertaining to
Bearer Securities of such series, if any, shall be substantially
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identical except as to denomination and the rate or rates of interest,
if any, and Stated Maturity, the date from which interest, if any,
shall accrue and except as may otherwise be provided in or pursuant to
such Board Resolution and set forth in such Officers' Certificate or
in any such indenture supplemental hereto. All Securities of any one
series need not be issued at the same time and, unless otherwise
provided, a series may be reopened for issuances of additional
Securities of such series.
If any of the terms of the Securities of any series were
established by action taken pursuant to a Board Resolution, a copy of
an appropriate record of such action shall be certified by the
Secretary or an Assistant Secretary of the Company and delivered to
the Trustee at or prior to the delivery of the Officers' Certificate
setting forth the terms of such series.
SECTION 302. DENOMINATIONS.
Unless other denominations and amounts may from time to time be
fixed by or pursuant to a Board Resolution, the Registered Securities
of each series, if any, shall be issuable in registered form without
coupons in denominations of $1,000 and any integral multiple thereof,
and the Bearer Securities of each series, if any, shall be issuable in
the denomination of $5,000, or in such other denominations and amounts
as may from time to time be fixed by or pursuant to a Board
Resolution.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, Vice Chairman of the Board, President, Vice
President serving as Chief Financial Officer or its Treasurer under
its corporate seal reproduced thereon and attested by its Secretary or
one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile. Coupons shall
bear the facsimile signature of the Treasurer or any Assistant
Treasurer of the Company.
Securities and coupons bearing the manual or facsimile signatures
of individuals who were at any time the proper officers of the Company
shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication
and delivery of such Securities or did not hold such offices at the
date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any
series, together with any coupons appertaining thereto, executed by
the Company to the Trustee for authentication, together with the Board
Resolution and Officers' Certificate or supplemental indenture with
respect to such Securities referred to in Section 301 and a Company
Order for the authentication and delivery of such Securities, and the
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Trustee in accordance with the Company Order and subject to the
provisions hereof shall authenticate and deliver such Securities. In
authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Section 601)
shall be fully protected in relying upon, an Opinion of Counsel
stating, to the effect that
(a) the form and terms of such Securities and coupons, if
any, have been established in conformity with the provisions of
this Indenture;
(b) all necessary corporate action for the issuance and
delivery of such Securities together with the coupons, if any,
appertaining thereto, has been taken and that such Securities,
and coupons, when authenticated and delivered by the Trustee and
issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute legally
valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms, subject to
bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights
generally, and subject to general principles of equity
(regardless of whether enforcement is sought in a proceeding in
equity or at law); such Opinion of Counsel need express no
opinion as to the availability of equitable remedies; and
(c) as to such other matters as the Trustee may reasonably
request.
The Trustee shall not be required to authenticate such Securities
if the issue of such Securities pursuant to this Indenture will affect
the Trustee's own rights, duties or immunities under the Securities
and this Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee or if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken.
Each Registered Security shall be dated the date of its
authentication. Each Bearer Security and any temporary Bearer
Security in global form shall be dated as of the date specified as
contemplated by Section 301.
No Security or coupon appertaining thereto shall be entitled to
any benefit under this Indenture or be valid or obligatory for any
purpose, unless there appears on such Security a certificate of
authentication substantially in the form provided for in Section 202
or 614 executed by or on behalf of the Trustee by the manual signature
of one of its authorized officers, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that
such Security has been duly authenticated and delivered hereunder.
Except as permitted by Section 305 or 306, the Trustee shall not
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authenticate and deliver any Bearer Security unless all appurtenant
coupons for interest then matured have been detached and canceled.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series,
the Company may execute and deliver to the Trustee, and upon Company
Order the Trustee shall authenticate and deliver, in the manner
provided in Section 303, temporary Securities of such series which are
printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor
of the definitive Securities in lieu of which they are issued, in
registered form, or, if authorized, in bearer form with one or more
coupons or without coupons and with such appropriate insertions,
omissions, substitutions and other variations as the officers of the
Company executing such Securities may determine, as evidenced by their
execution of such Securities. In the case of Bearer Securities of any
series, such temporary Securities may be in global form, representing
all of the Outstanding Bearer Securities of such series.
Except in the case of temporary Securities in global form, which
shall be exchanged in accordance with the provisions thereof, if
temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities,
the temporary Securities of such series shall be exchangeable upon
request for definitive Securities of such series containing identical
terms and provisions upon surrender of the temporary Securities of
such series at an office or agency of the Company maintained for such
purpose pursuant to Section 1002, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of
any series (accompanied by any unmatured coupons appertaining
thereto), the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a like principal amount of definitive
Securities of authorized denominations of the same series containing
identical terms and provisions; PROVIDED, HOWEVER, that no definitive
Bearer Security, except as provided pursuant to Section 301, shall be
delivered in exchange for a temporary Registered Security; and
PROVIDED, FURTHER, that a definitive Bearer Security shall be
delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth therein. Unless otherwise
specified as contemplated by Section 301 with respect to a temporary
global Security, until so exchanged the temporary Securities of any
series shall in all respects be entitled to the same benefits under
this Indenture as definitive Securities of such series.
SECTION 305. REGISTRATION, TRANSFER AND EXCHANGE.
With respect to the Registered Securities of each series, if any,
the Company shall cause to be kept, at an office or agency of the
Company maintained pursuant to Section 1002, a register (herein
sometimes referred to as the "Security Register") in which, subject to
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such reasonable regulations as it may prescribe, the Company shall
provide for the registration of the Registered Securities of each
series and of transfers of the Registered Securities of each series.
In the event that the Trustee shall not be the Security Registrar, it
shall have the right to examine the Security Register at all
reasonable times.
Upon surrender for registration of transfer of any Registered
Security of any series at any office or agency of the Company
maintained for that series pursuant to Section 1002, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name
of the designated transferee or transferees, one or more new
Registered Securities of the same series of any authorized
denominations, of a like aggregate principal amount bearing a number
not contemporaneously outstanding and containing identical terms and
provisions.
At the option of the Holder, Registered Securities of any series
may be exchanged for other Registered Securities of the same series
containing identical terms and provisions, in any authorized
denominations, and of a like aggregate principal amount, upon
surrender of the Securities to be exchanged at any such office or
agency. Whenever any Registered Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities which the Holder
making the exchange is entitled to receive.
If so provided with respect to Securities of a series, at the
option of the Holder, Bearer Securities of any such series may be
exchanged for Registered Securities of the same series containing
identical terms and provisions, of any authorized denominations and
aggregate principal amount, upon surrender of the Bearer Securities to
be exchanged at any such office or agency, with all unmatured coupons
and all matured coupons in default thereto appertaining. If the
Holder of a Bearer Security is unable to produce any such unmatured
coupon or coupons or matured coupon or coupons in default, such
exchange may be effected if the Bearer Securities are accompanied by
payment in funds acceptable to the Company and the Trustee in an
amount equal to the face amount of such missing coupon or coupons, or
the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there is furnished to them such security or
indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security shall
surrender to any Paying Agent any such missing coupon in respect of
which such a payment shall have been made, such Holder shall be
entitled to receive the amount of such payment; PROVIDED, HOWEVER,
that, except as otherwise provided in Section 1002, interest
represented by coupons shall be payable only upon presentation and
surrender of those coupons at an office or agency located outside the
United States. Notwithstanding the foregoing, in case a Bearer
Security of any series is surrendered at any such office or agency in
exchange for a Registered Security of the same series and like tenor
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after the close of business at such office or agency on (i) any
Regular Record Date and before the opening of business at such office
or agency on the relevant Interest Payment Date, or (ii) any Special
Record Date and before the opening of business at such office or
agency on the related date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the coupon relating to
such Interest Payment Date or proposed date of payment, as the case
may be (or, if such coupon is so surrendered with such Bearer
Security, such coupon shall be returned to the person so surrendering
the Bearer Security), and interest or Defaulted Interest, as the case
may be, will not be payable on such Interest Payment Date or proposed
date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but will be
payable only to the Holder of such coupon when due in accordance with
the provisions of this Indenture.
If expressly provided with respect to the Securities of any
series, at the option of the Holder, Registered Securities of such
series may be exchanged for Bearer Securities upon such terms and
conditions as may be provided with respect to such series.
Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver,
the Securities which the Holder making the exchange is entitled to
receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any global Security shall be exchangeable
only if (i) the Depository is at any time unwilling or unable to
continue as Depository and a successor depository is not appointed by
the Company within 60 days, (ii) the Company executes and delivers to
the Trustee a Company Order to the effect that such global Security
shall be so exchangeable, or (iii) an Event of Default has occurred
and is continuing with respect to the Securities. If the beneficial
owners of interests in a global Security are entitled to exchange such
interests for Securities of such series and of like tenor and
principal amount of any authorized form and denomination, as specified
as contemplated by Section 301, then without unnecessary delay but in
any event not later than the earliest date on which such interests may
be so exchanged, the Company shall deliver to the Trustee definitive
Securities of that series in aggregate principal amount equal to the
principal amount of such global Security, executed by the Company. On
or after the earliest date on which such Interests may be so
exchanged, such global Securities shall be surrendered from time to
time by the U.S. Depository or such other depository as shall be
specified in the Company Order with respect thereto, and in accordance
with instructions given to the Trustee and the U.S. Depository or such
depository, as the case may be (which instructions shall be in writing
but need not comply with Section 102 or be accompanied by an Opinion
of Counsel), as shall be specified in the Company Order with respect
thereto to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or in part, for definitive Securities of the same
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series without charge. The Trustee shall authenticate and make
available for delivery, in exchange for each portion of such
surrendered global Security, a like aggregate principal amount of
definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such global Security to be
exchanged which (unless the Securities of the series are not issuable
both as Bearer Securities and as Registered Securities, in which case
the definitive Securities exchanged for the global Security shall be
issuable only in the form in which the Securities are issuable, as
specified as contemplated by Section 301) shall be in the form of
Bearer Securities or Registered Securities, or any combination
thereof, as shall be specified by the beneficial owner thereof;
PROVIDED, HOWEVER, that no such exchanges may occur during a period
beginning at the opening of business 15 days before any selection of
Securities of that series to be redeemed and ending on the relevant
Redemption Date; and PROVIDED, FURTHER, that (unless otherwise
specified as contemplated by Section 301) no Bearer Security delivered
in exchange for a portion of a global Security shall be mailed or
otherwise delivered to any location in the United States. Promptly
following any such exchange in part, such global Security shall be
returned by the Trustee to such depository or the U.S. Depository, as
the case may be, or such other depository or U.S. Depository referred
to above in accordance with the instructions of the Company referred
to above. If a Registered Security is issued in exchange for any
portion of a global Security after the close of business at the office
or agency where such exchange occurs on (i) any Regular Record Date
and before the opening of business at such office or agency on the
relevant Interest Payment Date, or (ii) any Special Record Date and
before the opening of business at such office or agency on the related
proposed date for payment of interest or Defaulted Interest, as the
case may be, interest will not be payable on such Interest Payment
Date or proposed date for payment, as the case may be, in respect of
such Registered Security, but will be payable on such Interest Payment
Date or proposed date for payment, as the case may be, only to the
Person to whom interest in respect of such portion of such global
Security is payable in accordance with the provisions of this
Indenture.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of
transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange or redemption shall (if so
required by the Company or the Security Registrar for such series of
Security presented) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and such
Security Registrar duly executed by the Holder thereof or his attorney
duly authorized in writing.
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No service charge shall be made for any registration of transfer
or exchange, or redemption of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant to
Section 304,906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange any Securities of any series during a period
beginning at the opening of business 15 days before the day of the
selection for redemption of Securities of that series under Section
1103 and ending at the close of business on the day of such selection,
or (ii) to register the transfer of or exchange any Registered
Security so selected for redemption in whole or in part, except in the
case of any Security to be redeemed in part, the portion thereof not
to be redeemed, or (iii) to exchange any Bearer Security so selected
for redemption except, to the extent provided with respect to
Securities of a series, that such a Bearer Security may be exchanged
for a Registered Security of that series, provided that such
Registered Security shall be immediately surrendered for redemption
with written instruction for payment consistent with the provisions of
this Indenture.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series containing identical terms
and of like principal amount and bearing a number not
contemporaneously outstanding, with coupons corresponding to the
coupons, if any, appertaining to the surrendered Security.
Upon delivery to the Company and to the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security
or coupon, and (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or the Trustee that such
Security or coupon has been acquired by a bona fide purchaser, the
Company shall execute and upon its request the Trustee shall
authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Security or in exchange for the
Security to which a destroyed, lost or stolen coupon appertains with
all appurtenant coupons not destroyed, lost or stolen, a new Security
of the same series containing identical terms and of like principal
amount and bearing a number not contemporaneously outstanding, with
coupons corresponding to the coupons, if any, appertaining to such
destroyed, lost or stolen Security or to the Security to which such
destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or
coupon has become or is about to become due and payable, the Company
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in its discretion may, instead of issuing a new Security, pay such
Security or coupon; provided, however, that payment of principal of
(and premium, if any) and any interest on Bearer Securities shall,
except as otherwise provided in Section 1002, be payable only at an
office or agency located outside the United States and, unless
otherwise specified as contemplated by Section 301, any interest on
Bearer Securities shall be payable only upon presentation and
surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section 306, the
Company may require the payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation thereto
and any other expenses (including the fees and expenses of the
Trustee) connected therewith.
Every new Security of any series, with its coupons, if any,
issued pursuant to this Section 306 in lieu of any destroyed, lost or
stolen Security and its coupons, if any, or the destroyed, lost or
stolen coupon shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series and
their coupons, if any, duly issued hereunder.
The provisions of this Section 306 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities or coupons.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Security which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall, if so
provided in such Security, be paid, in the case of Registered
Securities, to the Person in whose name that Security (or one or more
Predecessor Securities) is registered as of the close of business on
the Regular Record Date for such interest and, in the case of Bearer
Securities, upon surrender of the coupon appertaining thereto in
respect of the interest due on such Interest Payment Date. In case a
Bearer Security of any series is surrendered in exchange for a
Registered Security of such series after the close of business (at an
office or agency in a Place of Payment for such series) on any Regular
Record Date and before the opening of business (at such office or
agency) on the next succeeding Interest Payment Date, such Bearer
Security shall be surrendered without the coupon relating to such
Interest Payment Date and interest will not be payable on such
Interest Payment Date in respect of the Registered Security issued in
exchange of such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of
this Indenture.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any
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Interest Payment Date for such Registered Security (herein called
"Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been
such Holder; and such Defaulted Interest may be paid by the Company,
at its election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities
affected (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid
on each such Registered Security and the date of the proposed
payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior
to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and
not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of such Registered Securities at his address as it
appears in the Security Register not less than 10 days prior to
such Special Record Date. The Trustee may, in its discretion, in
the name and at the expense of the Company, cause a similar
notice to be published at least once in a newspaper, customarily
published in the English language on each Business Day and of
general circulation in the Borough of Manhattan, The City of New
York, but such publication shall not be a condition precedent to
the establishment of such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special
Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names
such Registered Securities (or their respective Predecessor
Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to
the following Clause (2).
(2) The Company may make payment of any Defaulted Interest
in any other lawful manner not inconsistent with the requirements
of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the
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proposed payment pursuant to this Clause, such payment shall be
deemed practicable by the Trustee.
At the option of the Company, interest on Registered Securities
of any series that bear interest may be paid by mailing a check to the
address of the person entitled thereto as such address shall appear in
the Security Register.
In the case of any Security that is converted after the close of
business on any Regular Record Date and on or prior to the next
succeeding Interest Payment Date (other than any Security whose
Maturity is prior to such Interest Payment Date), interest whose
Stated Maturity is on such Interest Payment Date shall be payable on
such Interest Payment Date notwithstanding such conversion (and
consequent cancellation pursuant to Section 309) or, subject to the
proviso below and the provisions of Section 1105, any call of such
Security for redemption, and such interest (whether or not punctually
paid or duly provided for) shall be paid to the Person in whose name
the Security (or one or more Predecessor Securities) is registered at
the close of business on such Regular Record Date; PROVIDED, HOWEVER,
that Securities so surrendered for conversion shall (except in the
case of Securities or portions thereof which have been called for
redemption on a Redemption Date that is prior to such Interest Payment
Date) be accompanied by payment in New York Clearing House funds or
other funds acceptable to the Company of an amount equal to the
interest payable on such Interest Payment Date on the principal amount
being surrendered for conversion. Except as otherwise expressly
provided in the immediately preceding sentence, in the case of any
Security which is converted, interest whose Stated Maturity is after
the date of conversion of such Security shall not be payable.
Subject to the foregoing provisions of this Section 307 and
Section 305, each Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any other
Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Registered Security for
registration of transfer, the Company, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose name such
Registered Security is registered as the owner of such Registered
Security for the purpose of receiving payment of principal of (and
premium, if any), and (subject to Sections 305 and 307) interest on
such Registered Security and for all other purposes whatsoever,
whether or not such Registered Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall
be affected by notice to the contrary.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of
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any coupon as the absolute owner of such Security or coupon for the
purpose of receiving payment thereof or on account thereof and for all
other purposes whatsoever, whether or not such Security or coupon be
overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.
SECTION 309. CANCELLATION.
All Securities and coupons surrendered for payment, redemption,
conversion, registration of transfer or exchange or for credit against
any sinking fund payment shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee, and any such Securities
and coupons and Securities and coupons surrendered directly to the
Trustee for any such purpose shall be promptly cancelled by it. The
Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the
Company may have acquired in any manner whatsoever, and all Securities
so delivered shall be promptly canceled by the Trustee. No Securities
shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section 309, except as expressly
permitted by this Indenture. All canceled Securities and coupons held
by the Trustee shall be destroyed by it unless by a Company Order the
Company directs their return to it.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series
shall be computed on the basis of a 360-day year of twelve 30-day
months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
Upon the direction of the Company by a Company Order, this
Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities
herein expressly provided for), and the Trustee, on demand of and at
the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and
delivered and all coupons appertaining thereto (other than
(i) coupons appertaining to Bearer Securities surrendered
for exchange for Registered Securities and maturing after
such exchange, whose surrender is not required or has been
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waived as provided in Section 305, (ii) Securities and
coupons which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 306, (iii)
coupons appertaining to Securities called for redemption and
maturing after the relevant Redemption Date, whose surrender
has been waived as provided in Section 1107, and (iv)
Securities and coupons for whose payment money has
theretofore been deposited in trust or segregated and held
in trust by the Company and thereafter repaid to the Company
or discharged from such trust, as provided in Section 1003)
have been delivered to the Trustee for cancellation; or
(B) all such Securities and, in the case of (i) or
(ii) below, any such coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the
Company, are to be called for redemption within one
year under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in
the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above,
has deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose, lawful money of the
United States, U.S. Government Obligations which through the
payment of interest and principal in respect thereof in
accordance with their terms will provide not later than the
opening of business on the due dates of any payment of
principal (and premium, if any) and interest, or a
combination thereof, in an amount sufficient to pay and
discharge the entire indebtedness on such Securities and
coupons not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and
interest, to the date of such deposit (in the case of
Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied
with.
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In the event there are Securities of two or more series
hereunder, the Trustee shall be required to execute an instrument
acknowledging satisfaction and discharge of this Indenture only if
requested to do so with respect to Securities of all series as to
which it is Trustee and if the other conditions thereto are met. In
the event there are two or more Trustees hereunder, then the
effectiveness of any such instrument shall be conditioned upon receipt
of such instruments from all Trustees hereunder.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 607 and,
if money shall have been deposited with the Trustee pursuant to
subclause (B) of Clause (1) of this Section 401, the obligations of
the Trustee under Section 402 and the last paragraph of Section 1003
shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of Section 1302, Section 1303 and the
last paragraph of Section 1003, all money deposited with the Trustee
pursuant to Section 401 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the coupons and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee
may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and any interest for whose payment such money has
been deposited with the Trustee; but such money need not be segregated
from other funds except to the extent required by law.
SECTION 403. SATISFACTION, DISCHARGE AND DEFEASANCE OF SECURITIES OF
ANY SERIES.
The Company shall be deemed to have paid and discharged the
entire indebtedness on all the Outstanding Securities of any series
and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of such
indebtedness, when
(1) either
(A) with respect to all Outstanding Securities of such
series,
(i) the Company has deposited or caused to be
deposited with the Trustee, as trust funds in trust for
such purpose, an amount sufficient to pay and discharge
the entire indebtedness on all Outstanding Securities
of such series for principal (and premium, if any) and
interest to the Stated Maturity or any Redemption Date
as contemplated by the penultimate paragraph of this
Section 403, as the case may be; or
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(ii) with respect to any series of Securities
which are denominated in Dollars, the Company has
deposited or caused to be deposited with the Trustee,
as obligations in trust for such purpose, such amount
of U.S. Government Obligations as will, together with
the income to accrue thereon without consideration of
any reinvestment thereof, be sufficient to pay and
discharge the entire indebtedness on all Outstanding
Securities of such series for principal (and premium,
if any) and interest to the Stated Maturity or any
Redemption Date as contemplated by the penultimate
paragraph of this Section 403; or
(B) the Company has properly fulfilled such other
means of satisfaction and discharge as is specified, as
contemplated by Section 301, to be applicable to the
Securities of such series; and
(2) the Company has paid or caused to be paid all other
sums payable hereunder with respect to the Outstanding Securities
of such series; and
(3) the Company has delivered to the Trustee a certificate
signed by a nationally recognized firm of independent public
accountants (who may be the independent public accountants
regularly retained by the Company or who may be other independent
public accountants) certifying as to the sufficiency of the
amounts deposited pursuant to Subsections (A) (i) r (ii) of this
Section 403 for payment of the principal (and premium, if any)
and interest n the dates such payments are due, an Officers'
Certificate and an Opinion of Counsel, each such Certificate and
Opinion stating that all conditions precedent herein provided or
relating to the satisfaction and discharge of the entire
indebtedness on all outstanding securities of any such series
have been complied with; and
(4) the Company has delivered to the Trustee
(A) an opinion of independent counsel that the holders
of the Securities of such series will have no federal income
tax consequences as a result of such deposit and
termination; and
(B) if the Securities of such series are then listed
on the New York Stock Exchange, an opinion of counsel that
the Securities of such series will not be delisted as a
result of the exercise of this option.
Any deposits with the Trustee referred to in Section 403(1)(A)
above shall be irrevocable and shall be made under the terms of an
escrow trust agreement in form and substance satisfactory to the
Trustee. If any Outstanding Securities of such series are to be
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redeemed prior to their Stated Maturity, whether pursuant to any
optional redemption provisions or in accordance with any mandatory
sinking fund requirement, the Company shall make such arrangements as
are satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of the Company.
Upon the satisfaction of the conditions set forth in this Section
403 with respect to all the Outstanding Securities of any series, the
terms and conditions of such series, including the terms and
conditions with respect thereto set forth in this Indenture, other
than the provisions of Sections 305, 306, and 1002 and other than the
right of Holders of Securities of such series to receive, from the
trust fund described in this Section 403, payment of the principal
(and premium, if any) of, the interest on such Securities when such
payments are due, and the rights, powers, duties and immunities of the
Trustee hereunder, shall no longer be binding upon, or applicable to,
the Company; PROVIDED that the Company shall not be discharged from
any payment obligations in respect of Securities of such series which
are deemed not be Outstanding under clause (iii) of the definition
thereof if such obligations continue to be valid obligations of the
Company under applicable law.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default," wherever used herein with respect to
Securities of any series, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be
voluntary or be effected by operation of law pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) a default in the payment of any interest upon any
Security of that series when such interest becomes due and
payable, and continuance of such default for a period of 30 days;
or
(2) default in the payment of the principal of (and
premium, if any, on) any Security of that series when it becomes
due and payable at Maturity; or
(3) default in the deposit of any sinking fund payment,
when and as due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant
or warranty of the Company in this Indenture or as specified in
relation to the Securities of such series pursuant to Section 301
(other than a covenant or warranty a default in whose performance
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or whose breach is elsewhere in this Section 501 specifically
dealt with or which has been expressly included in this Indenture
solely for the benefit of series of Securities other than that
series); and continuance of such default or breach for a period
of 90 days after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series a written notice specifying
such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereinunder; or
(5) a default in the payment of principal of or interest on
any other obligation for borrowed money of the Company (including
a default under any other series of Securities) beyond any period
of grace with respect thereto if (i) the aggregate principal
amount of any such obligation is in excess of $10,000,000 (or in
the case of any such obligation in which the amount payable upon
acceleration is less than the amount payable at stated maturity,
the amount then payable upon acceleration is in excess of
$10,000,000), (ii) the default in such payment is not being
contested by the Company in good faith and by appropriate
proceedings, and (iii) the default in such payment has not been
cured or waived prior to the notice in writing to the Company
given pursuant to Section 502; PROVIDED, HOWEVER, that subject to
the provisions of Section 601, the Trustee shall not be charged
with knowledge of any such event of default unless either (i) a
Responsible Officer of the Trustee assigned to its corporate
trust department shall, as such officer, have actual knowledge of
such default or (ii) written notice thereof shall have been given
to the Trustee by the Company, by the holder or an agent of the
holder of any such indebtedness, by the trustee then acting under
any indenture or other instrument under which such default shall
have occurred, or by the Holders of not less than 25% in
aggregate principal amount of Outstanding Securities of any
series; or
(6) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or (B) a decree or order adjudging the Company a
bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of
or in respect of the Company under any applicable Federal or
State law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the
Company or of any substantial part of its property, or ordering
the winding up or liquidation of its affairs, and the continuance
of any such decree or order for relief or any such other decree
or order unstayed and in effect for a period of 120 consecutive
days; or
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(7) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other
case or proceeding to be adjudicated a bankrupt or insolvent, or
the consent by it to the entry of a decree or order for relief in
respect of the Company in an involuntary case or proceeding under
any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the
filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State
law, or the consent by it to the filing of such petition or to
the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official
of the Company or of any substantial part of its property, or the
making of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action
by the Company in furtherance of any such action; or
(8) any other Event of Default provided with respect to
Securities of that series.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default specified in Section 501(6) or (7) occurs,
all unpaid principal of, premium, if any, and accrued interest on the
Securities of any series at the time Outstanding shall IPSO FACTO
become and shall be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder, and
if any other Event of Default with respect to Securities of any series
occurs and is continuing, then the Trustee or the Holders of not less
than 25% in principal amount of the Outstanding Securities of that
series may declare the principal of all the Securities of that series,
or such lesser amount as may be provided for in the Securities of that
series, to be due and payable immediately, by a notice in writing to
the Company (and to the Trustee if given by the Holders), and upon any
such declaration such principal or such lesser amount shall become
immediately due and payable.
At any time after such a declaration of acceleration with respect
to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee
as hereinafter in this Article provided, the Holders of a majority in
principal amount of the Outstanding Securities of that series, by
written notice to the Company and the Trustee, may rescind and annual
such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a
sum sufficient to pay
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(A) all overdue installments of interest on all
Securities of that series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise
than by such declaration of acceleration and interest
thereon at the rate or rates borne by or provided for in
such Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue installments of interest at
the rate or rates borne by or provided for in such
Securities, and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of
that series, other than the non-payment of the principal of
Securities of that series which has become due solely by such
declaration of acceleration, have been cured or waived as
provided in Section 513.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any installment of
interest on any Security when such interest shall have become due
and payable and such default continues for a period of 30 days,
or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at its Maturity,
the Company will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities and coupons, the whole
amount then due and payable on such Securities and coupons for
principal (and premium, if any) and interest, with interest upon the
overdue principal (and premium, if any) and, to the extent that
payment of such interest shall be legally enforceable, upon overdue
installments of interest, at the rate or rates borne by or provided
for in such Securities, and, in addition thereto, such further amount
as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
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If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express
trust, may institute a judicial proceeding for the collection of the
sums so due and unpaid, and may prosecute such proceeding to judgment
or final decree, and may enforce the same against the Company or any
other obligor upon such Securities and collect the moneys adjudged or
decreed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon such Securities,
wherever situated.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of
Securities of such series and any related coupons by such appropriate
judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid
of the exercise of any power granted herein, or to enforce any other
proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company or
any other obligor upon the Securities or the property of the Company
or of such other obligor or their creditors, the Trustee (irrespective
of whether the principal of the Securities shall then be due and
payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the
Company for the payment of overdue principal or interest) shall be
entitled and empowered, by intervention in such proceeding or
otherwise,
(i) to file and prove a claim for the whole amount or such
lesser amount as may be provided for in the Securities of that
series, of principal (and premium, if any) and interest owing and
unpaid in respect of the Securities and to file such other papers
or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents or counsel) and of the Holders allowed in
such judicial proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the
same;
and any receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby
authorized by each Holder of Securities and coupons to make such
payments to the Trustee and, in the event that the Trustee shall
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consent to the making of such payments directly to the Holders of
Securities and coupons, to pay to the Trustee any amount due to it for
the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel and any other amounts due the
Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder
of a Security or coupon any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or coupons or the
rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder of a Security or coupon in any such
proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES OR COUPONS.
All rights of action and claims under this Indenture or any of
the Securities or coupons may be prosecuted and enforced by the
Trustee without the possession of any of the Securities or coupons or
the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery or judgment
shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel, be for the ratable benefit of the Holders of the Securities
and coupons in respect Of which such judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Subject to the provisions of Section 1302 and Section 1303, any
money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of
principal (and premium, if any) or interest, upon presentation of the
Securities or coupons, or both, as the case may be, and the notation
thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amount due the Trustee under
Section 607;
SECOND: To the payment of the amounts then due and unpaid upon
the Securities and coupons for principal (and premium, if any) and
interest payable in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of
any kind, according to the aggregate amounts due and payable on such
Securities and coupons for principal (and premium, if any) and
interest, respectively;
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
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SECTION 507. LIMITATION ON SUITS.
No Holder of any Security of any series or any related coupons
shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities of that series shall have
made written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee
hereunder;
(3) such Holder or Holders have 6ffered to the Trustee
reasonable indemnity against the costs, expenses and liabilities,
to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute
any such proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the
Holders of a majority in aggregate principal amount of the
Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders
shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or
prejudice the rights of any other such Holders or Holders of any other
series, or to obtain or to seek to obtain priority or preference over
any other Holders or to enforce any right under this Indenture, except
in the manner herein provided and for the equal and ratable benefit of
all such Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST.
Subject to the provisions of Article Thirteen hereof, but
notwithstanding any other provision in this Indenture, the Holder of
any Security or coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if
any) and (subject to Sections 305 and 307) interest on such Security
or payment of such coupon on the respective Stated Maturity or
Maturities expressed in such Security or coupon (or, in the case of
redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such right shall not be impaired
without the consent of such Holder.
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SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder of a Security or coupon has
instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for
any reason, or has been determined adversely to the Trustee or to such
Holder, then and in every such case the Company, the Trustee and the
Holders of Securities and coupons shall, subject to any determination
in such proceeding, be restored severally and respectively to their
former positions hereunder, and thereafter all rights and remedies of
the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons
in the last paragraph of Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders of
Securities or coupons is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any
Security or coupon to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every
right and remedy given by this Article or by law to the Trustee or to
the Holders of Securities or coupons may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by
the Holders of Securities or coupons, as the case may be.
SECTION 512. CONTROL BY HOLDERS OF SECURITIES.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available
to the Trustee or exercising any trust or power conferred on the
Trustee with respect to the Securities of such series, PROVIDED that
(1) such direction shall not be in conflict with any rule
of law or with this Indenture,
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction, and
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(3) such direction is not unduly prejudicial to the rights
of other Holders of Securities of such series.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of
the Outstanding Securities of any series may on behalf of the Holders
of all the Securities of such series and any related coupons waive any
past default hereunder with respect to such series and its
consequences, except a default
(1) in the payment of the principal of (and premium, if
any) or interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such series
affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other default or impair any right consequent
thereon.
SECTION 514. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any
Security or coupon by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken, suffered or omitted by
it as Trustee, the filing by any party litigant in such suit, other
than the Trustee, of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in
such suit, including the Trustee, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but
the provisions of this Section 514 shall not apply to any suit
instituted by the Company, the Trustee or by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of
the Outstanding Securities of any series, or to any suit instituted by
any Holder of any Security or coupon for the enforcement of the
payment of the principal of (and premium, if any) or interest on any
Security or the payment of any coupon on or after the respective
Stated Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date) or interest on any
overdue principal of any Security.
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ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties, and only
such duties, as are specifically set forth in this Indenture, and
no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) In the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such
certificates or opinions which by any provisions hereof are
specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section 601;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it
shall be proved that the Trustee was negligent in ascertaining
the pertinent facts;
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Securities of any series,
relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this
Indenture with respect to the Securities of such series, provided
such direction shall not be in conflict with any rule of law or
with this Indenture; and
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(4) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject
to the provisions of this Section 601.
SECTION 602. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by
mail to all Holders of Securities of such series entitled to receive
reports pursuant to Section 703(c), notice of such default hereunder
known to the Trustee, unless such default shall have been cured or
waived; PROVIDED, HOWEVER, that, except in the case of a default in
the payment of the principal of (and premium, if any) or interest on
any Security of such series or in the payment of any sinking fund
installment with respect to Securities of such series, the Trustee
shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interests of
the Holders of Securities and coupons of such series; and PROVIDED
FURTHER, that in the case of any default of the character specified in
Section 501(4) with respect to Securities of such series, no such
notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section 602, the term
"default" means any event which is, or after notice or lapse of time
or both would become, an Event of Default, with respect to Securities
of such series.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Except as otherwise provided in Section 601:
(a) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, or other paper
or document reasonably believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or
Company Order (other than delivery of any Security to the Trustee
for authentication and delivery pursuant to Section 303 which
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shall be sufficiently evidenced as provided therein) and any
resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders of Securities of any
series or any related coupons pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture or other
paper or document, but the Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company,
personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by
or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any coupons shall be
taken as the statements of the Company, and the Trustee or any
Authenticating Agent assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency
of this Indenture or of the Securities or coupons. The Trustee or any
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Authenticating Agent shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of
Securities and coupons and, subject to Sections 608 and 613, may
otherwise deal with the Company with the same rights it would have if
it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any money received
by it hereunder except as otherwise agreed with the Company.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee and its agents for, and to
hold them harmless against, any loss, liability or expense
incurred without negligence or bad faith on their part, arising
out of or in connection with the acceptance or administration of
the trust or trusts hereunder, including the costs and expenses
of defending themselves against any claim or liability in
connection with the exercise or performance of any of their
powers or duties hereunder; PROVIDED, THAT
(i) with respect to any such claim, the Trustee shall
have given the Company written notice thereof promptly after
the Trustee shall have knowledge thereof, but failure by the
Trustee to give such notice shall not affect the Trustee's
right or the Company's obligation to indemni~ hereunder;
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(ii) while maintaining absolute control over its own
defense, the Trustee shall cooperate and consult with the
Company in preparing such defense; and
(iii) notwithstanding anything to the contrary in
this Section 607(3), the Company shall not be liable for
settlement of any such claim by the Trustee entered into
without the prior consent of the Company, which consent
shall not be unreasonably withheld.
As security for the performance of the obligations of the Company
under this Section 607, the Trustee shall have a lien prior to the
Securities of any series upon all property and funds held or collected
by the Trustee as such, except funds held in trust for the payment of
principal of (or premium, if any) or interest on Securities.
SECTION 608. DISQUALIFICATIONS; CONFLICTING INTERESTS.
If the Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act
and this Indenture.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United
States of America, any State or the District of Columbia, authorized
under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000 and subject to supervision
or examination by Federal or State authority. If such corporation
publishes reports of condition at least annually, pursuant to law or
to the requirements of said supervising or examining authority, then
for the purposes of this Section 609, the combined capital and surplus
of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. No obligor upon the Securities or an Affiliate of such
obligor shall serve as Trustee upon the Securities. If at any time
the Trustee shall cease to be eligible in accordance with the
provisions of this Section 609, it shall resign immediately in the
manner and with the effect hereinafter specified in this Article.
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee under
Section 611.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to
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the Company. If the instrument of acceptance by a successor Trustee
required by Section 611 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fall to comply with Section 608 after
written request therefor by the Company or by any Holder of a
Security who has been a bona fide Holder of a Security for at
least six months, or
(2) the Trustee shall cease to be eligible under Section
609 and shall fail to resign after written request therefor by
the Company or by any such Holder of a Security, or
(3) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by a Board Resolution may
remove the Trustee with respect to all Securities, or (ii) subject to
Section 514, any Holder of a Security who has been a bona fide Holder
of a Security of any series for at least six months may, on behalf of
himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with respect to
all Securities of such series and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Securities of one or more series, the
Company, by a Board Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of that or those
series (it being understood that any such successor Trustee may be
appointed with respect to the Securities of one or more or all of such
series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply
with the applicable requirements of Section 611. If, within one year
after such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee with respect to the Securities of
any series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series
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delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section
611, become the successor Trustee with respect to the Securities of
such series and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Company
or the Holders of Securities and accepted appointment in the manner
required by Section 611, any Holder of a Security who has been a bona
fide Holder of a Security of such series for at least six months may,
on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series
and each appointment of a successor Trustee with respect to the
Securities of any series by mailing written notice of such event by
first-class mail, postage prepaid, to the Holders of Registered
Securities, if any, of such series as their names and addresses appear
in the Security Register and, if Securities of such series are issued
as Bearer Securities, by publishing notice of such event once in an
Authorized Newspaper in each Place of Payment located outside the
United States. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address
of its Corporate Trust Office.
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee appointed
shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall
become effective, and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring
to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series,
the Company, the retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each successor
Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm
to, and to vest in, each successor Trustee all the rights, powers,
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trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring
with respect to all Securities, shall contain such provisions as shall
be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee is
not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, it being understood
that nothing herein or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust, that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such
Trustee and that no Trustee shall be responsible for any notice given
to, or received by, or any act or failure to act on the part of any
other Trustee hereunder, and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein, such
retiring Trustee shall with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates have
no further responsibility for the exercise of rights and powers or for
the performance of the duties and obligations vested in the Trustee
under this Indenture other than as hereinafter expressly set forth,
and each such successor Trustee without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver
to such successor Trustee, to the extent contemplated by such
supplemental indenture, the property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights,
powers and trusts referred to in paragraph (a) or (b) of this Section
611, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified
and eligible under this Article.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee
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shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further
act on the part of any of the parties hereto. In case any Securities
shall have been authenticated, but not delivered, by the Trustee then
in office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and deliver
the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
(a) Subject to Subsection (b) of this Section 613, if the
Trustee shall be, or shall become, a creditor, directly or indirectly,
secured or unsecured, of the Company within three months prior to a
default, as defined in Subsection (c) of this Section 613, or
subsequent to such a default, then, unless and until such default
shall be cured, the Trustee shall set apart and hold in a special
account for the benefit of the Trustee individually, the Holders of
the Securities and coupons and the holders of other indenture
securities (as defined in Subsection (c) of this Section 613):
(1) an amount equal to any and all reductions in the amount
due and owing upon any claim as such creditor in respect of
principal or interest, effected after the beginning of such
three-month period and valid as against the Company and its other
creditors, except any such reduction resulting from the receipt
or disposition of any property described in paragraph (2) of this
Subsection, or from the exercise of any right of set-off which
the Trustee could have exercised if a petition in bankruptcy had
been filed by or against the Company upon the date of such
default; and
(2) all property received by the Trustee in respect of any
claim as such creditor, either as security therefor, or in
satisfaction or composition thereof, or otherwise, after the
beginning of such three-month period, or an amount equal to the
proceeds of any such property, if disposed of, subject, however,
to the rights, if any, of the Company and its other creditors in
such property or such proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee:
(A) to retain for its own account (i) payments made on
account of any such claim by any Person (other than the
Company) who is liable thereon, and (ii) the proceeds of the
bona fide sale of any such claim by the Trustee to a third
Person, and (iii) distributions made in cash, securities or
other property in respect of claims filed against the
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Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Code or
applicable State law;
(B) to realize, for its own account, upon any property
held by it as security for any such claim, if such property
was so held prior to the beginning of such three-month
period;
(C) to realize, for its own account, but only to the
extent of the claim hereinafter mentioned, upon any property
held by it as security for any such claim, if such claim was
created after the beginning of such three-month period and
such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee
shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause
to believe that a default, as defined in Subsection (c) of
this Section 613, would occur within three months; or
(D) to receive payment on any claim referred to in
paragraph (B) or (C), against the release of any property
held as security for such claim as provided in paragraph (B)
or (C), as the case may be, to the extent of the fair value
of such property.
For the purposes of paragraphs (B), (C) and (D), property
substituted after the beginning of such three-month period for
property held as security at the time of such substitution shall, to
the extent of the fair value of the property released, have the same
status as the property released, and, to the extent that any claim
referred to in any of such paragraphs is created in renewal of or in
substitution for or for the purpose of repaying or refunding any pre-
existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and
property held in such special account and the proceeds thereof shall
be apportioned between the Trustee, the Holders of Securities and the
holders of other indenture securities in such manner that the Trustee,
the Holders of Securities and the holders of other indenture
securities realize, as a result of payments from such special account
and payments of dividends on claims filed against the Company in
bankruptcy or receivership or in proceedings for reorganization
pursuant to the Federal Bankruptcy Code or applicable State law, the
same percentage of their respective claims, figured before crediting
to the claim of the Trustee anything on account of the receipt by it
from the Company of the funds and property in such special account and
before crediting to the respective claims of the Trustee and the
Holders of Securities and the holders of other indenture securities
dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the
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Federal Bankruptcy Code or applicable State law, but after crediting
thereon receipts on account of the indebtedness represented by their
respective claims from all sources other than from such dividends and
from funds and property so held in such special account. As used in
this paragraph, with respect to any claim, the term "dividends" shall
include any distribution with respect to such claim, in bankruptcy or
receivership or proceedings for reorganization pursuant to the Federal
Bankruptcy Code or applicable State law, whether such distribution is
made in cash, securities or other property, but shall not include any
such distribution with respect to the secured portion, if any, of such
claim. The court in which such bankruptcy, receivership or
proceedings for reorganization is pending shall have jurisdiction (i)
to apportion among the Trustee and the Holders of Securities and the
holders of other indenture securities, in accordance with the
provisions of this paragraph, the funds and property held in such
special account and proceeds thereof, or (ii) in lieu of such
apportionment, in whole or in part, to give to the provisions of this
paragraph due consideration in determining the fairness of the
distributions to be made to the Trustee and the Holders of Securities
and the holders of other indenture securities with respect to their
respective claims, in which event it shall not be necessary to
liquidate or to appraise the value of any securities or other property
held in such special account or as security for any such claim, or to
make a specific allocation of such distributions as between the
secured and unsecured portions of such claims, or otherwise to apply
the provisions of this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the
beginning of such three-month period shall be subject to the
provisions of this Subsection as though such resignation or removal
had not occurred. If any Trustee has resigned or been removed prior
to the beginning of such three-month period, it shall be subject to
the provisions of this Subsection if and only if the following
conditions exist:
(i) the receipt of property or reduction of claim, which
would have given rise to the obligation to account, if such
Trustee had continued as Trustee, occurred after the beginning of
such three-month period; and
(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
(b) There shall be excluded from the operation of Subsection (a)
of this Section 613, a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under
any indenture, or any security or securities having a maturity of
one year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy
court of competent jurisdiction, or by this Indenture, for the
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purpose of preserving any property which shall at any time be
subject to the lien of this Indenture or of discharging tax liens
or other prior liens or encumbrances thereon, if notice of such
advances and of the circumstances surrounding the making thereof
is given to the Holders of Securities at the time and in the
manner provided in this Indenture;
(3) disbursements made in the ordinary course of business
in the capacity of trustee under an indenture, transfer agent,
registrar, custodian, paying agent, fiscal agent or depositary,
or other similar capacity;
(4) an indebtedness created as a result of services
rendered or premises rented; or an indebtedness created as a
result of goods or securities sold in a cash transaction, as
defined in Subsection (c) of this Section 613;
(5) the ownership of stock or of other securities of a
corporation which is organized under the provisions of Section
25(a) of the Federal Reserve Act, as amended, and which is
directly or indirectly a creditor of the Company; or
(6) the acquisition, ownership, acceptance or negotiation
of any drafts, bills of exchange, acceptances or obligations
which fall within the classification of self4iquidating paper as
defined in Subsection (c) of this Section 613.
(c) For the purpose of this Section 613 only:
(1) the term "default" means any failure to make payment in
full of the principal of or interest on any of the Securities or
upon the other indenture securities when and as such principal or
interest becomes due and payable;
(2) the term "other indenture securities" means securities
upon which the Company is an obligor outstanding under any other
indenture (i) under which indenture and as to which securities
the Trustee is also trustee, (ii) which contains provisions
substantially similar to the provisions of this Section 613, and
(iii) under which a default exists at the time of the
apportionment of the funds and property held in such special
account;
(3) the term "cash transaction" means any transaction in
which full payment for goods or securities sold is made within
seven days after delivery of the goods or securities in currency
or in checks or other orders drawn upon banks or bankers and
payable upon demand;
(4) the term "self-liquidating paper" means any draft, bill
of exchange, acceptance or obligation which is made, drawn;
negotiated or incurred by the Company for the purpose of
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financing the purchase, processing, manufacture, shipment,
storage or sale of goods, wares or merchandise and which is
secured by documents evidencing title to, possession of, or lien
upon, the goods, wares or merchandise or the receivables or
proceeds arising from the sale of the goods, wares or merchandise
previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation;
(5) the term "Company" means any obligor upon the
Securities; and
(6) the term "Federal Bankruptcy Code" means the Bankruptcy
Act or Title 11 of the United States Code.
(d) In any case commenced under the Bankruptcy Act of July 1,
1898, or any amendment thereto prior to November 6, 1978, all
references in this Section 613 to periods of three months shall be
deemed to be references to four months.
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents with
respect~to one or more series of Securities which shall be authorized
to act on behalf of the Trustee to authenticate Securities of such
series issued upon original issue or exchange, registration of
transfer or partial redemption thereof or pursuant to Section 306, and
Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in
this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference
shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an Authenticating
Agent. Each Authenticating Agent shall be acceptable to the Company
and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or
the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not
less than $10,000,000 and subject to supervision or examination by
Federal or State authority. If such Authenticating Agent publishes
reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the
purposes of this Section 614, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 614, such
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Authenticating Agent shall resign immediately in the manner and with
the effect specified in this Section 614.
Any corporation into which an Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding
to the corporate agency or corporate trust business of an
Authenticating Agent, shall continue to be an Authenticating Agent,
provided such corporation shall be otherwise eligible under this
Section 614, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving
written notice thereof to such Authenticating Agent and to the
Company. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section
614, the Trustee may appoint a successor Authenticating Agent which
shall be acceptable to the Company and shall (i) mail written notice
of such appointment by first-class mail, postage prepaid, to all
Holders of Registered Securities, if any, of the series with respect
to which such Authenticating Agent will serve, as their names and
addresses appear in the Security Register, and (ii) if Securities of
the series are issued as Bearer Securities, publish notice of such
appointment at least once in an Authorized Newspaper in the place
where such successor Authenticating Agent has its principal office if
such office is located outside the United States. Any successor
Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section 614.
The Company agrees to pay each Authenticating Agent from time to
time reasonable compensation for its services under this Section 614.
If the Trustee makes such payments, it shall be entitled to be
reimbursed for such payments, subject to the provisions of Section
607.
The provisions of Sections 308, 604 and 605 shall be applicable
to each Authenticating Agent.
If an appointment with respect to one or more series is made
pursuant to this Section 614, the Securities of such series may have
endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in the
following form:
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This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
[Trustee]
As Trustee
By _______________________________
As Authenticating Agent
By _______________________________
Authorized Signatory
If all of the Securities of any series may not be originally
issued at one time, and if the Trustee does not have an office capable
of authenticating Securities upon original issuance located in a Place
of Payment where the Company wishes to have Securities of such series
authenticated upon original issuance, the Trustee, if so requested in
writing (which writing need not comply with Section 102) by the
Company, shall appoint in accordance with this Section 614 an
Authenticating Agent having an office in a Place of Payment designated
by the Company with respect to such series of Securities.
The Trustee is hereby appointed as an Authenticating Agent.
ARTICLE SEVEN
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not later than 15 days after the Regular
Record Date for interest for each series of Securities, a list,
in such form as the Trustee may reasonably require, of the names
and addresses of the Holders of Registered Securities of such
series as of such Regular Record Date, or if there is no Regular
Record Date for interest for such series of Securities, semi-
annually, upon such dates as are set forth in the Board
Resolution or indenture supplemental hereto authorizing such
series, and
(b) at such other times the Trustee may request in writing,
within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more
than 15 days prior to the time such list is furnished,
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PROVIDED, HOWEVER, that, so long as the Trustee is the Security
Registrar, no such list shall be required to be furnished.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of
Securities (i) contained in the most recent list furnished to the
Trustee for each series as provided in Section 701, (ii) received by
the Trustee for each series in the capacity of Security Registrar if
the Trustee is then acting in such capacity and (iii) filed with it
within the two preceding years pursuant to Section 703(c)(2). The
Trustee may destroy any list furnished to it as provided in Section
701 upon receipt of a new list so furnished, and destroy not earlier
than two years after filing, any information filed with it pursuant to
Section 703(c) (2).
(b) If three or more Holders of Securities of any series
(hereinafter referred to as "applicants") apply in writing to the
Trustee, and furnish to the Trustee reasonable proof that each such
applicant has owned a Security of such series for a period of at least
six months preceding the date of such application, and such
application states that the applicants desire to communicate with
other Holders of Securities of such series with respect to their
rights under this Indenture or under the Securities and is accompanied
by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five
business days after the receipt of such application, at its election,
either
(i) afford such applicants access to the information
preserved at the time by the Trustee in accordance with Section
702(a), or
(ii) inform such applicants as to the approximate number of
Holders of Securities whose names and addresses appear in the
information preserved at the time by the Trustee in accordance
with Section 702(a), and as to the approximate cost of mailing to
such Holders the form of proxy or other communication, if any,
specified in such application.
If the Trustee shall elect not to afford such applicants access
to such information, the Trustee shall, upon the written request of
such applicants, mail to each Holder of Securities of such series
whose name and address appears in the information preserved at the
time by the Trustee in accordance with Section 702(a), a copy of the
form of proxy or other communication which is specified in such
request, with reasonable promptness after a tender to the Trustee of
the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five
days after such tender the Trustee shall mail to such applicants and
file with the Commission, together with a copy of the material to be
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mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of the
Holders of Securities of such series or would be in violation of
applicable law. Such written statement shall specify the basis of
such opinion. If the Commission, after opportunity for a hearing upon
the objections specified in the written statement so filed, shall
enter an order refusing to sustain any of such objections, or if,
after the entry of an order sustaining one or more of such objections,
the Commission shall find, after notice and opportunity for hearing,
that all the objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail copies of such material to
all such Holders of Securities of such series with reasonable
promptness after the entry of such order and the renewal of such
tender.
(c) Every Holder of Securities or coupons, by receiving and
holding the same, agrees with the Company and the Trustee that neither
the Company nor the Trustee nor any Paying Agent nor any Security
Registrar shall be held accountable by reason of the disclosure of any
such information as to the names and addresses of the Holders of
Securities in accordance with Section 702(b), regardless of the source
from which such information was derived, and that the Trustee shall
not be held accountable by reason of mailing any material pursuant to
a request made under Section 702(b).
SECTION 703. REPORTS BY TRUSTEE.
(a) Within 60 days after May 15 of each year commencing with the
year following the first issuance of Securities pursuant to Section
301, the Trustee shall transmit by mail to all Holders of Securities,
as their names and addresses appear in the Security Register, a brief
report dated as of such May 15 with respect to any of the following
events which may have occurred within the previous 12 months (but if
no such event has occurred within such period, no report need be
transmitted):
(1) any change to its eligibility under Section 609 and its
qualifications under Section 608;
(2) the creation of or any material change to a
relationship specified in paragraphs (1) through (10) of Section
310(b) of the Trust Indenture Act;
(3) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the
making thereof) made by the Trustee (as such) which remain unpaid
on the date of such report, and for the reimbursement of which it
claims or may claim a lien or charge, prior to that of the
Securities, on any property or funds held or collected by it as
Trustee, except that the Trustee shall not be required (but may
elect) to report such advances if such advances so remaining
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unpaid aggregate not more than 112 of 1% of the principal amount
of the Securities Outstanding on the date of such report;
(4) the amount, interest rate and maturity date of all
other indebtedness owing by the Company (or by any other obligor
on the Securities) to the Trustee in its individual capacity, on
the date of such report, with a brief description of any property
held as collateral security therefor, except an indebtedness
based upon a creditor relationship arising in any manner
described in Section 613(b)(2), (3), (4) or (6);
(5) any change to the property and funds, if any,
physically in the possession of the Trustee as such on the date
of such report;
(6) any additional issue of Securities which the Trustee
has not previously reported; and
(7) any action taken by the Trustee in the performance of
its duties hereunder which it has not previously reported and
which in its opinion materially affects the Securities, except
action in respect of a default, notice of which has been or is to
be withheld by the Trustee in accordance with Section 602.
(b) The Trustee shall transmit by mail to all Holders of
Securities, as provided in Subsection (c) of this Section 703, a brief
report with respect to the character and amount of any advances (and
if the Trustee elects so to state, the circumstances surrounding the
making thereof) made by the Trustee (as such) since the date of the
last report transmitted pursuant to Subsection (a) of this Section 703
(or if no such report has yet been so transmitted, since the date of
execution of this instrument) for the reimbursement of which it claims
or may claim a lien or charge, prior to that of the Securities, on
property or funds collected by it as Trustee, and which it has not
previously reported pursuant to this Subsection, except that the
Trustee shall not be required (but may elect) to report such advances
if such advances remaining unpaid at any time aggregate 10% or less of
the principal amount of the Securities Outstanding at such time, such
report to be transmitted within 90 days after such time.
(c) Reports pursuant to this Section 703 shall be transmitted by
mail:
(1) to all Holders of Registered Securities, as the names
and addresses of such Holders appear in the Security Register,
(2) to such Holders of Bearer Securities as have, within
the two years preceding such transmission, filed their names and
addresses with the Trustee for that purpose; and
(3) except in the case of reports pursuant to Subsection
(b) of this Section 703, to each Holder of a Security whose name
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and address is preserved at the time by the Trustee, as provided
in Section 702(a).
(d) A copy of each such report shall, at the time of such
transmission to Holders of Securities, be filed by the Trustee with
each stock exchange upon which the Securities are listed, with the
Commission and with the Company. The Company will not~ the Trustee
when any Securities are listed on any stock exchange.
SECTION 704. REPORTS BY THE COMPANY.
The Company shall:
(1) file with the Trustee, within 15 days after the Company
is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not
required to file information, documents or reports pursuant to
either of said Sections, then it shall file with the Trustee and
the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports
which may be required pursuant to Section 13 of the Securities
Exchange Act of 1934 in respect of a security listed and
registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports
with respect to compliance by the Company with the conditions and
covenants of this Indenture as may be required from time to time
by such rules and regulations;
(3) transmit to the Holders of Securities within 30 days
after the filing thereof with the Trustee, in the manner and to
the extent provided in Section 703(c) with respect to reports
pursuant to Section 703(a), such summaries of any information,
documents and reports required to be filed by the Company
pursuant to paragraphs (1) and (2) of this Section 704 as may be
required by rules and regulations prescribed from time to time by
the Commission; and
(4) furnish to the Trustee, not less than annually, a brief
certificate from the principal executive officer, principal
financial officer or principal accounting officer as to his or
her knowledge of the Company's compliance with all conditions and
covenants under this Indenture. For purposes of this Section
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704, such compliance shall be determined without regard to any
period of grace or requirement of notice provided under this
Indenture.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
Nothing contained in this Indenture or in any of the Securities
shall prevent any consolidation or merger of the Company with or into
any other corporation or corporations (whether or not affiliated with
the Company), or successive consolidations or mergers in which the
Company or its successor or successors shall be a party or parties, or
shall prevent any sale or conveyance of all or substantially all of
the property of the Company to any other corporation (whether or not
affiliated with the Company) authorized to acquire and operate the
same; PROVIDED, HOWEVER, and the Company hereby covenants and agrees,
that any such consolidation, merger, sale or conveyance shall be upon
the condition that (a) immediately after such consolidation, merger,
sale or conveyance the corporation (whether the Company or such other
corporation) formed by or surviving any such consolidation or merger,
or to which such sale or conveyance shall have been made, shall not be
in default in the performance or observance of any of the terms,
covenants and conditions of this Indenture to be kept or performed by
the Company; (b) the corporation (if other than the Company) formed by
or surviving any such consolidation or merger, or to which such sale
or conveyance shall have been made, shall be a corporation organized
under the laws of the United States of America or any state thereof;
and (c) the due and punctual payment of the principal of and premium,
if any, and interest on all of the Securities, according to their
tenor, and the due and punctual performance and observance of all of
the covenants and conditions of this Indenture to be performed or
observed by the Company, shall be expressly assumed, by supplemental
indenture satisfactory in form to the Trustee, executed and delivered
to the Trustee by the corporation (if other than the Company) formed
by such consolidation, or into which the Company shall have been
merged, or by the corporation which shall have acquired such property.
SECTION 802. SUCCESSOR CORPORATION TO BE SUBSTITUTED.
In case of any such consolidation, merger, sale or conveyance and
upon the assumption by the successor corporation, by supplemental
indenture, executed and delivered to the Trustee and satisfactory in
form to the Trustee, of the due and punctual payment of the principal
of and premium, if any, and interest on all of the Securities and the
due and punctual performance and observance of all of the covenants
and conditions of this Indenture to be performed or observed by the
Company, such successor corporation shall succeed to and be
substituted for the Company, with the same effect as if it had been
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named herein as the party of the first part, and (except in the event
of a conveyance by way of lease) the predecessor corporation shall be
relieved of any further obligation under this Indenture and the
Securities. Such successor corporation thereupon may cause to be
signed, and may issue either in its own name or in the name of Arvin
Industries, Inc. any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Company and delivered to
the Trustee; and upon the order of such successor corporation instead
of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities which previously shall
have been signed and delivered by the officers of the Company to the
Trustee for authentication, and any Securities which such successor
corporation thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All the Securities of each series so issued
shall in all respects have the same legal rank and benefit under this
Indenture as the Securities of such series theretofore or thereafter
issued in accordance with the terms of this Indenture as though all of
such Securities had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale or conveyance
such changes in phraseology and form (but not in substance) may be
made in the Securities thereafter to be issued as may be appropriate.
SECTION 803. OPINION OF COUNSEL TO BE GIVEN TRUSTEE.
The Trustee, subject to Sections 601 and 603, may receive an
Opinion of Counsel as conclusive evidence that any such consolidation,
merger, sale or conveyance and any such assumption complies with the
provisions of this Article Eight.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders of Securities or coupons, the
Company, when authorized by a Board Resolution, and the Trustee, at
any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of
the following purposes:
(1) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the
covenants of the Company herein and in the Securities contained;
or
(2) to add to the covenants of the Company for the benefit
of the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of
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Securities, stating that such covenants are expressly being
included solely for the benefit of such series) or to surrender
any right or power herein conferred upon the Company; or
(3) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registerable
as to principal, to change or eliminate any restrictions on the
payment of principal (or premium, if any) on Registered
Securities or of principal (or premium, if any) or any interest
on Bearer Securities, to permit Registered Securities to be
exchanged for Bearer Securities or to permit the issuance of
Securities in uncertificated form, PROVIDED any such action shall
not adversely affect the interests of the Holders of Securities
of any series or any related coupons in any material respect; or
(4) to establish the form or terms of Securities of any
series as permitted by Sections 201 and 301; or
(5) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of
the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by
more than one Trustee, pursuant to the requirements of Section
611(b); or
(6) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any
other provision herein, or to make any other provisions with
respect to matters or questions arising under this Indenture
which shall not be inconsistent with the provisions of this
Indenture and which shall not adversely affect the interest of
the Holders of Securities of any series or any related coupons in
any material respect; or
(7) to add to, delete from or revise the conditions,
limitations and restrictions on the authorized amount, terms or
purposes of issue, authentication and delivery of Securities, as
herein set forth; or
(8) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the Trust Indenture Act or
under any similar federal statute hereafter enacted and to add to
this Indenture such other provisions as may be expressly required
under the Trust Indenture Act.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of each
series affected by such supplemental indenture, by Act of said Holders
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delivered to the Company and the Trustee, the Company, when authorized
by a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights
of the Holders of Securities of such series under this Indenture;
PROVIDED, HOWEVER, that no such supplemental Indenture shall, without
the consent of the Holder of each Outstanding Security affected
hereby,
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon, or any premium
payable upon the redemption thereof, or reduce the amount of the
principal of an Original Issue Discount Security that would be
due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502, or change the coin or
currency in which any Security or any premium or the interest
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the
Redemption Date), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose
Holders is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section 902, or
Section 513, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Security affected thereby, or
(4) modify any of the provisions of this Indenture relating
to the subordination of the Securities in a manner adverse to the
Holders.
A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities,
or which modifies the rights of the Holders of Securities of such
series with respect to such covenant or other provision, shall be
deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series.
It shall not be necessary for any Act of Holders of Securities
under this Section 902 to approve the particular form of any proposed
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supplemental indenture, but it shall be sufficient if such Act shall
approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications
thereby of the trust created by this Indenture, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully
protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by
this Indenture. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and
such supplemental indenture shall form a part of this Indenture for
all purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder and of any coupons appertaining
thereto shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then
in effect.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may,
and shall if required by the Trustee, bear a notation in form approved
by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of any
series so modified as to conform, in the opinion of the Trustee and
the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee
in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST.
The Company covenants and agrees for the benefit of the Holders
of each series of Securities that it will duly and punctually pay the
principal of (and premium, if any), interest on the Securities of that
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series in accordance with the terms of such series of Securities, any
coupons appertaining thereto and this Indenture. Any interest due on
Bearer Securities on or before Maturity shall be payable only upon
presentation and surrender of the several coupons for such interest
installments as are evidenced thereby as they severally mature.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in each Place of Payment for any series
of Securities an office or agency where Securities of that series (but
not Bearer Securities, except as otherwise provided below, unless such
Place of Payment is located outside the United States) may be
presented or surrendered for payment, where Securities of that series
may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. If
Securities of a series are issuable as Bearer Securities, the Company
will maintain, subject to any laws or regulations applicable thereto,
an office or agency in a Place of Payment for such series which is
located outside the United States where Securities of such series and
the related coupons may be presented and surrendered for payment;
PROVIDED, HOWEVER, that if the Securities of such series are listed on
The Stock Exchange of the United Kingdom and the Republic of Ireland
or the Luxembourg Stock Exchange or any other stock exchange located
outside the United States and such stock exchange shall so require,
the Company will maintain a Paying Agent in London, Luxembourg or any
other required city located outside the United States, as the case may
be, so long as the Securities of such series are listed on such
exchange. The Company will give prompt written notice to the Trustee
of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fall to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the
Trustee, except that Bearer Securities of that series and the related
coupons may be presented and surrendered for payment at the place
specified for the purpose pursuant to Section 301, and the Company
hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
Except as otherwise provided in the form of Bearer Security of
any particular series pursuant to the provisions of this Indenture, no
payment of principal, premium or interest on Bearer Securities shall
be made at any office or agency of the Company in the United States or
by check mailed to any address in the United States or by transfer to
an account maintained with a bank located in the United States;
PROVIDED, HOWEVER, payment of principal of and any premium and
interest in U.S. dollars on any Bearer Security may be made at the
office of the Paying Agent in the Borough of Manhattan, the City of
New York and the City of Detroit, Michigan if (but only if) payment of
the full amount of such principal, premium or interest at all offices
outside the United States maintained for the purpose by the Company in
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accordance with this Indenture is illegal or effectively precluded by
exchange controls or other similar restrictions and the Trustee and
each Paying Agent other than the Trustee is advised of such
illegality, preclusion or other restriction in writing by the Company.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series
may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations; PROVIDED, HOWEVER, that
no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in each
Place of Payment for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any
such other office or agency. Unless otherwise set forth in a Board
Resolution or indenture supplemental hereto with respect to a series
of Securities, the Company hereby designates as the Place of Payment
for each series of Securities, 611 Woodward Avenue, 11th floor,
Detroit, Michigan 48226, and 61 Broadway TP, Concourse Level, New
York, New York 10006.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due
date of the principal of (and premium, if any), or interest on, any of
the Securities of that series, segregate and hold in trust for the
benefit of the Person entitled thereto a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due until such
sums shall be paid to such Persons or otherwise disposed of as herein
provided, and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or prior to each due date of the
principal of (and premium, if any), or interest on, any Securities of
that series, deposit with any Paying Agent a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due, such sum
to be held in trust for the benefit of the Persons entitled to such
principal, premium or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section 1003, that such
Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest on Securities of
that series in trust for the benefit of the Persons entitled
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thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee written notice of any default by the
Company (or any other obligor upon the Securities of that series)
in the making of any payment of principal (and premium, if any)
or interest on the Securities of that series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose,
pay, or by Company Order direct any Paying Agent to pay, to the
Trustee all sums held in trust by the Company or such Paying Agent,
such sums to be held by the Trustee upon the same terms as those upon
which such sums were held by the Company or such Paying Agent; and,
upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to
such money.
Except as otherwise provided in the form of Securities of any
particular series pursuant to the provisions of this Indenture, any
money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (and
premium, if any) or Interest on any Security of any series and
remaining unclaimed for two years after such principal (and premium,
if any) or interest has become due and payable shall be paid to the
Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security or any
coupon appertaining thereto shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such
trust money, and all liability of the Company as trustee thereof,
shall thereupon cease; PROVIDED, HOWEVER, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at
the expense of the Company cause to be published once, in an
Authorized Newspaper in each Place of Payment or to be mailed to
Holders of Registered Securities, or both, notice that such money
remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication or
mailing nor shall it be later than two years after such principal (and
premium, if any) or interest has become due and payable, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 1004. CORPORATE EXISTENCE.
Subject to Article Eight, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its
corporate existence, rights (charter and statutory) and franchises;
PROVIDED, HOWEVER, that the Company shall not be required to preserve
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any such right or franchise if the Board of Directors shall determine
that the preservation thereof is no longer desirable in the conduct of
the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Holders.
SECTION 1005. STATEMENT BY OFFICERS AS TO DEFAULT.
(a) The Company will deliver to the Trustee, within 120 days
after the end of each fiscal year of the Company ending after the date
hereof, an Officers' Certificate, stating whether or not to the best
knowledge of the signers thereof the Company is in default in the
performance and observance of any of the terms, provisions and
conditions of this Indenture and, if the Company shall be in default,
specifying all such defaults and the nature and status thereof of
which they may have knowledge.
(b) The Company will deliver to the Trustee, within five days
after the occurrence thereof, written notice of any event which after
notice or lapse of time or both would become an Event of Default
pursuant to Clause (4) of Section 501.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE.
Redemption of Securities of any series at the option of the
Company as permitted or required by the terms of such Securities shall
be made in accordance with the terms of such Securities and this
Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the
election of the Company of the Securities of any series, with the same
issue date, interest rate and Stated Maturity, the Company shall, at
least 45 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of
Securities of such series to be redeemed.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series with the same issue
date, interest rate, and Stated Maturity are to be redeemed, the
particular Securities to be redeemed shall be selected not more than
60 days prior to the Redemption Date by the Trustee from the
Outstanding Securities of such series not previously called for
redemption, by such method as the Trustee shall deem fair and
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appropriate and which may provide for the selection for redemption of
portions of the principal amount of Registered Securities of such
series; PROVIDED, HOWEVER, that no such partial redemption shall
reduce the portion of the principal amount of a Registered Security of
such series not redeemed to less than the minimum denomination for a
Security of that series established pursuant to Section 302.
If any Security selected for partial redemption is converted in
part before termination of the conversion right with respect to the
portion of the Security so selected, the converted portion of such
Security shall be deemed (so far as may be) to be the portion selected
for redemption. Securities which have been converted during a
selection of Securities to be redeemed shall be treated by the Trustee
as Outstanding for the purpose of such selection.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected
for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed
only in part, to the portion of the principal of such Securities which
has been or is to be redeemed.
SECTION 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in
Section 106, not less than 30 nor more than 60 days prior to the
Redemption Date, unless a shorter period is specified in the
Securities to be redeemed, to the Holders of Securities to be
redeemed. Failure to give notice by mailing in the manner herein
provided to the Holder of any Registered Securities designated for
redemption as a whole or in part, or any defect in the notice to any
such Holder, shall not affect the validity of the proceedings for the
redemption of any other Securities or portion thereof.
Any notice that is mailed to the Holder of any Registered
Securities in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not such Holder receives
the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of
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partial redemption, the principal amount) of the particular
Securities to be redeemed,
(4) in case any Registered Security is to be redeemed in
part only, the notice which relates to such Security shall state
that on and after the Redemption Date,~upon surrender of such
Security, the Holder of such Security will receive, without
charge, a new Registered Security or Registered Securities of
authorized denominations for the principal amount thereof
remaining unredeemed,
(5) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed,
and, if applicable, that interest thereon shall cease to accrue
on and after said date,
(6) the place or places where such Securities, together, in
the case of Bearer Securities with all coupons appertaining
thereto, if any, maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price, and
(7) that the redemption is for a sinking fund, if such is
the case.
A notice of redemption published as contemplated by Section 106
need not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
Subject to the provisions of Section 1302 and Section 1303, on or
prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its
own Paying Agent, segregate and hold in trust as provided in Section
1003) an amount of money sufficient to pay the Redemption Price of,
and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities or portions thereof which are
to be redeemed on that date. Notwithstanding the foregoing sentence,
if the Redemption Date shall be subsequent to a Regular Record Date
and on or prior to an Interest Payment Date relating thereto, interest
whose Stated Maturity is after the Redemption Date of such Security
shall not be payable.
If any Security or portion thereof called for redemption is
converted pursuant to the provisions of Article Fifteen prior to the
Redemption Date, any money deposited with the Trustee or any Paying
Agent or so segregated and held in trust for the redemption of such
Security or portion thereof shall be paid to the Company upon a
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Company Request, or, if then held by the Company shall be discharged
from such trust.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due
and payable at the Redemption Price therein specified, and from and
after such date (unless the Company shall default in the payment of
the Redemption Price and accrued interest) such Securities shall cease
to bear interest and the coupons for such interest appertaining to any
Bearer Securities so to be redeemed, except to the extent provided
below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all coupons,
if any, appertaining thereto maturing after the Redemption Date, such
Security shall be paid by the Company at the Redemption Price,
together with accrued interest to the Redemption Date; PROVIDED,
HOWEVER, that installments of interest on Bearer Securities whose
Stated Maturity is on or prior to the Redemption Date shall be payable
only upon presentation and surrender of coupons for such interest (at
an office or agency located outside the United States except as
otherwise provided in Section 1002), and PROVIDED, FURTHER, that
installments of interest on Registered Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the Regular Record
Dates according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption
Date, such Security may be paid after deducting from the Redemption
Price an amount equal to the face amount of all such missing coupons,
or the surrender of such missing coupon or coupons may be waived by
the Company and the Trustee if there be furnished to them such
security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the
Redemption Price, such Holder shall be entitled to receive the amount
so deducted; PROVIDED, HOWEVER, that interest represented by coupons
shall be payable only upon presentation and surrender of those coupons
at an office or agency located outside of the United States except as
otherwise provided in Section 1002.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium; if any)
shall, until paid, bear interest from the Redemption Date at the rate
prescribed therefor in the Security.
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SECTION 1107. SECURITIES REDEEMED IN PART.
Any Registered Security which is to be redeemed only in part
shall be surrendered at any office or agency of the Company maintained
for that purpose pursuant to Section 1002 (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in
writing) and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security without
service charge, a new Registered Security or Securities of the same
series, containing identical terms and provisions, of any authorized
denomination as requested by such Holder in aggregate principal amount
equal to and in exchange for the unredeemed portion of the principal
of the Security so surrendered. If a Security in global form is so
surrendered, the Company shall execute, and the Trustee shall
authenticate and deliver to the U.S. Depository or other depository
for such Security in global form as shall be specified in the Company
Order with respect thereto to the Trustee, without service charge, a
new Security in global form in a denomination equal to and in exchange
for the unredeemed portion of the principal of the Security in global
form so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of a series, except as otherwise
permitted or required by any form of Security of such series issued
pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a
"mandatory sinking fund payment," and any payment in excess of such
minimum amount provided for by the terms of Securities of such series
is herein referred to as an "optional sinking fund payment." If
provided for by the terms of Securities of any series, the cash amount
of any sinking fund payment may be subject to reduction as provided in
Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company may, in satisfaction of all or any part of any
sinking fund payment with respect to the Securities of such series to
be made pursuant to 'the terms of such Securities as provided for by
the terms of such series (1) deliver Outstanding Securities of such
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series (other than any of such Securities previously called for
redemption or any of such Securities in respect of which cash shall
have been released to the Company), together in the case of any Bearer
Securities of such series with all unmatured coupons appertaining
thereto, and (2) apply as a credit Securities of such series which
have been redeemed either at the election of the Company pursuant to
the terms of such series of Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, PROVIDED that such series of Securities have not been
previously so credited. Such Securities shall be received and
credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be
reduced accordingly. If as a result of the delivery or credit of
Securities of any series in lieu of cash payments pursuant to this
Section 1202, the principal amount of Securities of such series to be
redeemed in order to exhaust the aforesaid cash payment shall be less
than $100,000, the Trustee need not call Securities of such series for
redemption, except upon Company Request, and such cash payment shall
be held by the Trustee or a Paying Agent and applied to the next
succeeding sinking fund payment, PROVIDED, HOWEVER, that the Trustee
or such Paying Agent shall at the request of the Company from time to
time pay over and deliver to the Company any cash payment so being
held by the Trustee or such Paying Agent upon delivery by the Company
to the Trustee of Securities of that series purchased by the Company
having an unpaid principal amount equal to the cash payment requested
to be released to the Company.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 45 days prior to each sinking fund payment date for
any series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing
mandatory sinking fund payment for that series pursuant to the terms
of that series, the portion thereof, if any, which is to be satisfied
by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting of Securities of that series
pursuant to Section 1202, and the optional amount, if any, to be added
in cash to the next ensuing mandatory sinking fund payment, and will
also deliver to the Trustee any Securities to be so credited and not
theretofore delivered. If such Officers' Certificate shall specify an
optional amount to be added in cash to the next ensuing mandatory
sinking fund payment, the Company shall thereupon be obligated to pay
the amount therein specified. Not less than 30 days before each such
sinking fund payment date, the Trustee shall select the Securities to
be redeemed upon such sinking fund payment date in the manner
specified in Section 1103 and cause notice of the redemption thereof
to be given in the name of and at the expense of the Company in the
manner provided in Section 1104. Such notice having been duly given,
the redemption of such Securities shall be made upon the terms and in
the manner stated in Sections 1106 and 1107.
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ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES
SECTION 1301. SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS.
Except as otherwise specified pursuant to Section 301 for
Securities of any series, the Company covenants and agrees, and each
Holder of any of the Securities or any coupon appertaining thereto, by
such Holder's acceptance thereof, likewise covenants and agrees, for
the benefit of the holders, from time to time, of Senior Indebtedness
of the Company that, to the extent and in the manner hereinafter set
forth in this Article, the Indebtedness represented by the Securities
and the payment of the principal of (and premium, if any) and interest
on each and all of the Securities and the payment of any coupon is
hereby expressly made subordinate and subject in right of payment as
provided in this Article to the prior payment in full of all Senior
Indebtedness.
SECTION 1302. DISSOLUTION, LIQUIDATION, INSOLVENCY, ETC.
In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other
similar case or proceeding in connection therewith, relative to the
Company or to a substantial part of its assets, or (b) any
liquidation, dissolution or other winding up of the Company, whether
voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or (c) any assignment for the benefit of creditors or any
other marshalling of assets and liabilities of the Company then, and
in any such event:
(1) the holders of all Senior Indebtedness shall first be
entitled to receive payment in full of the principal thereof (and
premium, if any, thereon) and interest thereon (including,
without limitation, all interest accruing after the commencement
of any bankruptcy, insolvency, receivership or similar
proceeding), before the Holders of the Securities or coupons
appertaining thereto are entitled to receive any payment or
distribution of any kind or character on account of principal of
(or premium, if any) or interest on the Securities or the coupons
appertaining thereto; and
(2) any payment or distribution of assets of any kind or
character, whether in cash, property or securities, by set-off or
otherwise, to which the Holders or the Trustee as such would be
entitled but for the provisions of this Article, including any
such payment or distribution that may be payable or deliverable
by reason of the payment of any other indebtedness of the Company
being subordinated to the payment of the Securities, shall be
paid by the Company, by the liquidating trustee or agent or other
person making such payment or distribution, whether a trustee in
bankruptcy, a receiver or otherwise, directly to the holders of
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Senior Indebtedness or their representative or representatives,
or to the trustee or trustees under any indenture under which any
instrument evidencing any of such Senior Indebtedness may have
been issued, ratably according to the aggregate amounts remaining
unpaid on account of the Senior Indebtedness held or represented
by each, to the extent necessary to pay all Senior Indebtedness
in full, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Indebtedness.
The consolidation or merger of the Company with or into any other
corporation or corporations (whether or not affiliated with the
Company),or successive consolidations or mergers in which the Company
or its successor or successors shall be a party or parties or the
liquidation or dissolution of the Company following the sale or
conveyance of all or substantially all of the property of the Company
to any other corporation (whether or not affiliated with the Company)
upon the terms and conditions set forth in Article Eight shall be
deemed not to be a dissolution, winding-up, liquidation,
reorganization, assignment for the benefit of creditors or marshalling
of assets or liabilities of the Company for the purposes of this
Section 1302 if the corporation or corporations formed by such
consolidation or into which the Company is merged or which acquires by
sale or conveyance all or substantially all of the property of the
Company, shall, as part of such consolidation, merger, sale or
conveyance, comply with the conditions set forth in Article Eight.
SECTION 1303. DEFAULT ON SENIOR INDEBTEDNESS.
Unless otherwise provided in Section 301, no payment shall be
made with respect to the principal of (or premium, if any) or interest
on the Securities or for the payment of any coupon or to acquire any
of the Securities or on account of any redemption or sinking fund
provisions for the Securities if, at the time of such payment, there
exists a default in payment (beyond any grace period applicable
thereto) of all or any portion of any Senior Indebtedness, and such
default shall not have been cured or waived in writing or the benefits
of this sentence waived in writing by or on behalf of the holders of
such Senior Indebtedness.
SECTION 1304. PAYMENTS AND DISTRIBUTIONS RECEIVED.
If any payment or distribution of any character whether in cash,
property or securities, including any such payment or distribution
that may be payable or deliverable by reason of the payment of any
other indebtedness of the Company being subordinated to the payment of
the Securities, shall be received by the Trustee or any Holder of any
of the Securities in contravention of any of the terms of this Article
and before all Senior Indebtedness shall have been paid in full, such
payment or distribution shall be held in trust for the benefit of, and
shall be paid over or delivered and transferred to, the holders of the
Senior Indebtedness or their representative or representatives, or to
the trustee or trustees under any indenture under which any
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instruments evidencing any of such Senior Indebtedness may have been
issued, for application to the payment of all Senior Indebtedness
remaining unpaid, ratably according to the aggregate amounts remaining
unpaid on account of the Senior Indebtedness held or represented by
each, to the extent necessary to pay all such Senior Indebtedness in
full, after giving effect to any concurrent payment or distribution to
or for the holders of such Senior Indebtedness.
SECTION 1305. PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article or elsewhere in this Indenture
or in any of the Securities shall prevent the Company at any time
except during the pendency of any case, proceeding, liquidation,
dissolution or other winding up, assignment for the benefit of
creditors or other marshalling of assets and liabilities of the
Company referred to in Section 1302 or under the conditions described
in Section 1303, from making payments at any time of principal of (or
premium, if any) or interest on the Securities or the payment of any
coupon.
SECTION 1306. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR
INDEBTEDNESS.
Subject to the payment in full of all Senior Indebtedness (or the
making of provision therefor in money or money's worth), the Holders
of the Securities or coupons appertaining thereto shall be subrogated
to the extent of the payments or distributions made to the holders of
such Senior Indebtedness pursuant to the provisions of this Article
(equally and ratably with the holders of all indebtedness of the
Company which by its terms is subordinated to other indebtedness of
the Company to substantially the same extent as the Securities are
subordinated and is entitled to like rights of subrogation) to the
rights of the holders of such Senior Indebtedness to receive payments
and distributions of cash, property and securities applicable to the
Senior Indebtedness until the principal of (and premium, if any) and
interest on the Securities shall be paid in full. For purposes of
such subrogation, no payments or distributions to the holders of
Senior Indebtedness of any cash, property or securities to which the
Holders of the Securities or coupons appertaining thereto or the
Trustee would be entitled except for the provisions of this Article,
and no payments pursuant to the provisions of this Article to the
holders of Senior Indebtedness by Holders of the Securities or coupons
appertaining thereto or the Trustee, shall, as among the Company, its
creditors other than holders of Senior Indebtedness, and the Holders
of the Securities or coupons appertaining thereto, be deemed to be a
payment or distribution to or on account of the Senior Indebtedness.
SECTION 1307. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The provisions of this Article are and are intended solely for
the purpose of defining the relative rights of the Holders of the
Securities or coupons appertaining thereto on the one hand, and the
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holders of Senior Indebtedness on the other hand. Nothing contained
in this Article or elsewhere in this Indenture or in the Securities is
intended to or shall (1) impair, as among the Company, its creditors
other than holders of Senior Indebtedness and the Holders of the
Securities or coupons appertaining thereto, the obligation of the
Company, which is absolute and unconditional, to pay to the Holders of
the Securities or coupons appertaining thereto the principal of (and
premium, if any) and interest on the Securities or coupons
appertaining thereto as and when the same shall become due and payable
in accordance with their terms; or (2) affect the relative rights
against the Company of the Holders of the Securities or coupons
appertaining thereto and creditors of the Company other than the
holders of Senior Indebtedness; or (3) prevent the Trustee or the
Holder of any Security or coupon from exercising all remedies
otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article of the
holders of Senior Indebtedness to receive cash, property or securities
otherwise payable or deliverable to the Trustee or such Holder.
SECTION 1308. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of a Security or coupon by such Holder's acceptance
thereof authorizes and directs the Trustee on such Holder's behalf to
take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article and appoints the Trustee such
Holder's attorney-in-fact for any and all such purposes.
SECTION 1309. NO WAIVER OF SUBORDINATION PROVISIONS.
(a) No right of any present or future holder of any Senior
Indebtedness to enforce as herein provided (and as the subordination
provisions of this Article Thirteen may be amended or supplemented
from time to time in accordance with the provisions of this Indenture)
shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Company or by any act or failure to
act, in good faith, by any such holder, or by any non-compliance by
the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may
have or be otherwise charged with.
(b) Without in any way limiting the generality of paragraph (a)
of this Section 1309, the holders of Senior Indebtedness may, at any
time and from time to time, without the consent of or notice to the
Trustee or the Holders of the Securities, without incurring
responsibility to the Holders of the Securities or coupons
appertaining thereto and without impairing or releasing the
subordination provided in this Article or the obligations hereunder of
the Holders of the Securities or coupons appertaining thereto to the
holders of Senior Indebtedness, do any one or more of the following:
(1) change the manner, place or terms of payment or extend the time of
payment of, or renew or alter, Senior Indebtedness or otherwise amend
or supplement in any manner Senior Indebtedness or any instrument
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evidencing the same or any agreement under which Senior Indebtedness
is outstanding; (2) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing Senior Indebtedness;
(3) release any Person liable in any manner for the collection of
Senior Indebtedness; and (4) exercise or refrain from exercising any
rights against the Company and any other Person.
SECTION 1310. NOTICE TO TRUSTEE.
(a) The Company shall give prompt written notice to the Trustee
of any fact known to it which would prohibit the making of any payment
to or by the Trustee in respect of the Securities or coupons
appertaining thereto pursuant to the provisions of this Article.
Notwithstanding the provisions of this Article or any provisions of
this Indenture, the Trustee shall not be charged with knowledge of the
existence of any fact that would prohibit the making of any payment to
or by the Trustee in respect of the Securities or coupons appertaining
thereto pursuant to the provisions of this Article, unless and until
the Trustee shall have received written notice thereof from the
Company, or a holder of Senior Indebtedness or from any trustee,
fiduciary or agent therefor at least ten Business Days prior to such
payment date; and, prior to the receipt of any such written notice,
the Trustee, subject to the provisions of Section 601, shall be
entitled in all respects to assume that no such facts exist; PROVIDED,
HOWEVER, that, if the Trustee shall not have received the notice
provided for in this Section 1310 at least ten Business Days prior to
the date upon which by the terms hereof any money may become payable
for any purpose (including, without limitation, the payment of the
principal of (or premium, if any) or interest on any Security or
coupon), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purpose for which such
money was received and shall not be affected by any notice to the
contrary which may be received by it within ten Business Days prior to
such date.
(b) Subject to the provisions of Section 601, the Trustee shall
be entitled to rely on the delivery to it of a written notice by a
Person representing himself to be a holder of Senior Indebtedness (or
such holder's representative or a trustee therefor) to establish that
such notice has been given by a holder of Senior Indebtedness (or such
holder's representative or a trustee on behalf of such holder). In
the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a
holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of Senior Indebtedness held by such Person,
the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of
such Person under this Article and, if such evidence is not furnished,
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the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
SECTION 1311. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF
LIQUIDATING AGENT.
Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee, subject to the provisions of
Section 601, and the Holders of the Securities shall be entitled to
rely upon any order or decree entered by any court of competent
jurisdiction in which such insolvency, bankruptcy, receivership,
liquidation, reorganization, dissolution, winding up or similar case
or proceeding of the Company is pending, or a certificate of the
trustee in bankruptcy, receiver, liquidating trustee, custodian,
assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Trustee or to the
Holders of Securities or coupons appertaining thereto, for the purpose
of ascertaining the Persons entitled to~participate in such payment or
distribution, the holders of Senior Indebtedness and other
indebtedness of the Company, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article.
SECTION 1312. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR
INDEBTEDNESS.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such
holders if it shall in good faith mistakenly pay over or distribute to
Holders of the Securities or coupons appertaining thereto or to the
Company or to any other Person cash, property or securities to which
any holder of Senior Indebtedness shall be entitled by virtue of this
Article or otherwise.
SECTION 1313. RIGHTS OF TRUSTEE AS A HOLDER OF SENIOR INDEBTEDNESS;
PRESERVATION OF TRUSTEE'S RIGHTS.
The Trustee in its individual capacity shall be entitled to all
the rights set forth in this Article with respect to any Senior
Indebtedness which may at any time be held by it, to the same extent
as any other holder of Senior Indebtedness, and nothing in this
Indenture shall deprive the Trustee of any of its rights as such
holder. Notwithstanding anything to the contrary in this Indenture,
nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 607.
SECTION 1314. ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee shall
have been appointed by the Company and be then acting hereunder, the
term "Trustee" as used in this Article shall in such case (unless the
context otherwise requires) be construed as extending to and including
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such Paying Agent within its meaning as fully for all intents and
purposes as if such Paying Agent were named in this Article in
addition to or in place of the Trustee; PROVIDED, HOWEVER, that
Section 1311 shall not apply to the Company or any of its respective
Affiliates if it or such Affiliate acts as Paying Agent.
SECTION 1315. NO SUSPENSION OF REMEDIES.
Nothing contained in this Article shall limit the right of the
Trustee or the Holders of Securities to take any action to accelerate
the maturity of the Securities pursuant to Article Five or to pursue
any rights or remedies hereunder or under applicable law.
SECTION 1316. TRUST MONEYS NOT SUBORDINATED.
Notwithstanding anything contained herein to the contrary,
payments from cash or the proceeds of U.S. Government Obligations held
in trust under Section 403, Section 1105 or Section 1203 hereof, or
the delivery of Securities held in trust under Section 1203 hereof, by
the Trustee (or other qualifying trustee) and which were deposited
without violation of the terms of this Article (as this Article may be
amended or supplemented from time to time in accordance with the
provisions of this Indenture) for the payment of principal of (and
premium, if any) and interest on the Securities or the payment of the
coupons appertaining thereto or on account of any redemption or
sinking fund provisions for the Securities shall not be subordinated
to the prior payment of any Senior Indebtedness or subject to the
restrictions set forth in this Article, and none of the Holders shall
be obligated to pay over any such amount to the Company or any holder
of Senior Indebtedness or any other creditor of the Company.
ARTICLE FOURTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1401. APPLICABILITY OF ARTICLE.
Securities of any series which are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in
accordance with the terms of the Securities of such series. The
repayment of any principal amount of Securities pursuant to such
option of the Holder to require repayment of Securities before their
Stated Maturity, for purposes of Section 309, shall not operate as a
payment, redemption or satisfaction of the indebtedness represented by
such Securities unless and until the Company, at its option, shall
deliver or surrender the same to the Trustee with a directive that
such Securities be canceled. Notwithstanding anything to the contrary
contained in this Article, in connection with any repayment of
Securities, the Company may arrange for the purchase of any Securities
by an agreement with one or more investment bankers or other
purchasers to purchase such Securities by paying to the Holders of
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such Securities on or before the close of business on the repayment
date an amount not less than the repayment price payable by the
Company on repayment of such Securities, and the obligation of the
Company to pay the repayment price of such Securities shall be
satisfied and discharged to the extent such payment is so paid by such
purchasers.
ARTICLE FIFTEEN
CONVERSION OF SECURITIES
SECTION 1501. CONVERSION PRIVILEGE AND CONVERSION PRICE.
As specified in relation to the Securities of any series pursuant
to Section 301, and subject to and upon compliance with the provisions
of this Article, at the option of the Holder thereof, any Security
which by its terms may be converted, or any portion of the principal
amount of any such Security which equals $1,000 or an integral
multiple thereof, may be converted at the principal amount thereof, or
of such portion thereof, into fully paid and non-assessable Common
Shares (calculated as to each conversion to the nearest 1/100 of a
share) or other securities of the Company as specified in relation to
such Securities pursuant to Section 301, at the conversion price,
determined as hereinafter provided, in effect at the time of
conversion. Such conversion right shall expire at the close of
business on the date specified for Securities of such series; provided
that, if a Security or portion thereof is called for redemption, such
conversion right in respect of the Security or portion so called shall
expire at the close of business on the Business Day immediately
preceding the Redemption Date, unless the Company defaults in making
the payment due upon redemption.
The price at which Common Shares or other securities of the
Company shall be delivered upon conversion (herein called the
"conversion price") shall be the price specified in relation to the
Securities of such series pursuant to Section 301. The conversion
price shall be adjusted in certain instances as provided in this
Article.
SECTION 1502. EXERCISE OF CONVERSION PRIVILEGE.
In order to exercise the conversion privilege, the Holder of any
Security to be converted shall surrender such Security, duly endorsed
or assigned to the Company or in blank, at any office or agency of the
Company maintained pursuant to Section 1002, accompanied by written
notice to the Company in the form provided in the Security (or such
other notice as is acceptable to the Company) that the Holder elects
to convert such Security or, if less than the entire principal amount
thereof is to be converted, the portion thereof to be converted. In
the case of any Security that is surrendered for conversion during the
period from the close of business on any Regular Record Date through
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and including the next succeeding Interest Payment Date (other than
any Security whose Maturity is prior to such Interest Payment Date),
interest whose Stated Maturity is on such Interest Payment Date shall
be payable on such Interest Payment Date notwithstanding such
conversion (and consequent cancellation pursuant to Section 309) or,
subject to the proviso below and the provisions of Section 1105, any
call of such Security for redemption, and such interest (whether or
not punctually paid or duly provided for) shall be paid to the Person
in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on such Regular Record Date;
PROVIDED, HOWEVER, that Securities so surrendered for conversion shall
(except in the case of Securities or portions thereof which have been
called for redemption on a Redemption Date that is prior to such
Interest Payment Date) be accompanied by payment in New York Clearing
House funds or other funds acceptable to the Company of an amount
equal to the interest payable on such Interest Payment Date on the
principal amount being surrendered for conversion. Except as provided
in the immediately preceding sentence, in the case of any Security
which is converted (a) interest whose Stated Maturity is after the
date of conversion of such Security shall not be payable, and (b) no
adjustment shall be made for interest accrued on such Security.
Securities shall be deemed to have been converted immediately
prior to the close of business on the day of surrender of such
Securities for conversion in accordance with the foregoing provisions,
and at such time the rights of the Holders of such Securities as
Holders shall cease, and the Person or Persons entitled to receive the
Common Shares or other securities of the Company issuable upon
conversion shall be treated for all purposes as the record holder or
holders of such Common Shares or securities as and after such time.
As promptly as practicable on or after the conversion date the Company
shall issue and shall deliver at such office or agency of the Company
maintained pursuant to Section 1002 a certificate or certificates for
the number of full Common Shares or a certificate, instrument or other
document evidencing such other securities of the Company issuable upon
conversion, together with any payment in lieu of any fraction of a
share or security, as provided in Section 1503.
In the case of any Security which is converted in part only, upon
such conversion the Company shall execute and the Trustee shall
authenticate and deliver to the Holder thereof, at the expense of the
Company, a new Security or Securities of authorized denominations in
aggregate principal amount equal to the unconverted portion of the
principal amount of such Security.
No payment or adjustment shall be made upon any conversion on
account of any dividends or distributions on the Common Shares or any
interest, dividends or distributions on other securities of the
Company issued upon conversion.
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SECTION 1503. FRACTIONS OF SHARES.
No fractional Common Shares or scrip representing fractions of
shares or, except as otherwise specified pursuant to Section 301,
fractions of other securities of the Company shall be issued upon
conversion of Securities. If more than one Security shall be
surrendered for conversion at one time by the same Holder, the number
of full shares or securities of the Company which shall be issuable
upon conversion thereof shall be computed on the basis of the
aggregate principal amount of the Securities (or specified portions
thereof) so surrendered. If any fractional Common Share or, except as
otherwise specified pursuant to Section 301, other security of the
Company would, except for the provisions of this Section 1503, be
issuable upon conversion of any Security or Securities, the Company
shall make an adjustment therefor in cash at the current market value
thereof. The market value of a Common Share shall be the closing
price on the Business Day immediately preceding the day on which the
Securities (or specified portions thereof) are deemed to have been
converted and such closing price shall be determined as provided in
subsection 1504(a)(4). The market value of securities of the Company
other than Common Shares which are issuable upon conversion of the
Securities shall be specified in relation to the Securities of such
series pursuant to Section 301. When any payment is required, the
Company shall give the Trustee and any conversion agent a written
notification of the closing price used to determine the amount of such
payment and the Trustee and any conversion agent shall be entitled to
rely on such notification.
SECTION 1504. ADJUSTMENT OF CONVERSION PRICE.
(a) Except as otherwise specified pursuant to Section 301, the
conversion price for Securities of any series, which by the terms of
such Securities may be converted in Common Shares, shall be adjusted
from time to time as follows:
(1) In case the Company shall (i) pay a dividend or make a
distribution on its Common Shares in Common Shares, (ii)
subdivide its outstanding Common Shares into a greater number of
shares, or (iii) combine its outstanding Common Shares into a
smaller number of shares, the conversion price in effect
immediately prior thereto shall be adjusted so that the Holder of
any Security thereafter surrendered for conversion shall be
entitled to receive the number of Common Shares of the Company
which he would have owned or have been entitled to receive after
the happening of any of the events described above had such
Security been converted immediately prior to the happening of
such event. An adjustment made pursuant to this subsection (1)
shall become effective immediately, except as provided in
subsection (7) below, after the record date in the case of a
dividend and shall become effective immediately after the
effective date in the case of subdivision or combination.
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<PAGE>
(2) In case the Company shall issue rights (other than the
Rights) or warrants to all holders of its Common Shares entitling
them (for a period expiring within 45 days after the record date
mentioned below) to subscribe for or purchase Common Shares at a
price per share less than the current market price per Common
Share (as defined in subsection (4) below) at the record date for
the determination of shareholders entitled to receive such rights
or warrants, the conversion price in effect immediately prior
thereto shall be adjusted so that the same shall equal the price
determined by multiplying the conversion price in effect
immediately prior to the date of issuance of such rights or
warrants by a fraction of which the numerator shall be the number
of Common Shares outstanding on the date of issuance of such
rights or warrants plus the number of shares which the aggregate
offering price of the total number of shares so offered would
purchase at such current market price, and of which the
denominator shall be the number of Common Shares outstanding on
the date of issuance of such rights or warrants plus the number
of additional Common Shares offered for subscription or purchase.
Such adjustment shall be made successively, whenever any such
rights or warrants are issued, and shall become effective
immediately, except as provided in subsection (7) below, after
such record date. In determining whether any rights or warrants
entitle the Holders of the Securities to subscribe for or
purchase Common Shares at less than such current market price,
and in determining the aggregate offering price of such Common
Shares, there shall be taken into account any consideration
received by the Company for such rights or warrants, the value of
such consideration, if other than cash, to be determined by the
Board of Directors.
(3) In case the Company shall distribute to all holders of
its Common Shares evidences of its indebtedness or assets
(excluding cash dividends or distributions paid from retained
earnings of the Company) or rights (other than the Rights) or
warrants to subscribe for or purchase any of its securities
(excluding those referred to in subsection (2) above), then in
each such case, unless the Company elects to reserve shares or
other units of any of the foregoing for distribution to the
Holders upon the conversion of the Securities so that any Holder
converting Securities will receive upon such conversion, in
addition to the Common Shares to which such Holder is entitled,
the amount and kind of any of the foregoing which such Holder
would have received if such Holder had, immediately prior to the
record date for the distribution of any of the foregoing,
converted its Securities into Common Shares, the conversion price
shall be adjusted so that the same shall equal the price
determined by multiplying the conversion price in effect
immediately prior to the date of such distribution by a fraction
of which the numerator shall be the current market price per
Common Share (as defined in subsection (4) below) on the record
date mentioned below less the then fair market value (as
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<PAGE>
determined by the Board of Directors of the Company, whose
determination shall, if made in good faith, be conclusive, and
described in a certificate filed with the Trustee) of the portion
of the Common Shares or assets or evidences of indebtedness so
distributed or of such rights or warrants applicable to one
Common Share, and of which the denominator shall be the current
market price per Common Share (as defined in subsection (4)
below). Such adjustment shall become effective immediately,
except as provided in subsection (7) below, after the record date
for the determination of shareholders entitled to receive such
distribution.
(4) For the purpose of any computation under subsections
(2) and (3) above, the current market price per Common Share on
any date shall be deemed to be the average of the daily closing
prices for the thirty consecutive Trading Days before the date in
question. The closing price for each day shall be the last
reported sale price regular way on the New York Stock Exchange,
or, if not reported for such Exchange, on the Composite Tape, or,
in case no such reported sale takes place on such day, the
average of the reported closing bid and asked quotations on the
New York Stock Exchange, or, if the Common Shares are not listed
on such Exchange or no such quotations are available, the average
of the high bid and low asked quotations in the over-the-counter
market as reported by the National Quotation Bureau,
Incorporated, or similar organization, or, if no such quotations
are available, the fair market value of such class of stock as
determined by a member firm of the New York Stock Exchange, Inc.
selected by the Company. As used herein the term "Trading Days"
with respect to Common Shares means (i) if the Common Shares are
listed or admitted for trading on the New York Stock Exchange or
any national securities exchange, days on which the New York
Stock Exchange or such national securities exchange is open for
business or (ii) if the Common Shares are quoted on the National
Market of the National Association of Securities Dealers, Inc.
Automated Quotation System or any similar system of automated
dissemination of quotations of securities prices, days on which
trades may be made on such system.
(5) No adjustment in the conversion price shall be required
unless such adjustment would require an increase or decrease of
at least 1% in such price; provided, however, that any
adjustments which by reason of this subsection (5) are not
required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under
this Article shall be made to the nearest cent or to the nearest
one hundredth of a share, as the case may be. Anything in this
Section 1504 to the contrary notwithstanding, the Company shall
be entitled to make such reductions in the conversion price, in
addition to those required by this Section 1504, as it in its
discretion shall determine to be advisable in order that any
stock dividends, subdivision of shares, distribution of rights or
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<PAGE>
warrants to purchase stock or securities, or a distribution of
other assets (other than cash dividends) hereafter made by the
Company to its shareholders shall not be taxable.
(6) In any case in which this Section 1504 provides that an
adjustment shall become effective immediately after a record date
for an event, the Company may defer until the occurrence of such
event (i) issuing to the Holder of any Security converted after
such record date and before the occurrence of such event the
additional Common Shares issuable upon such conversion by reason
of the adjustment required by such event over and above the
Common Shares issuable upon such conversion before giving effect
to such adjustment and (ii) paying to such holder any amount in
cash in lieu of any fraction pursuant to Section 1503.
(b) The conversion price for Securities, which by the terms of
such Securities may be converted into securities of the Company other
than Common Shares, shall be adjusted from time to time as specified
in relation to the Securities of such series pursuant to Section 301.
SECTION 1505. NOTICE OF ADJUSTMENTS OF CONVERSION PRICE.
Whenever the conversion price is adjusted, as herein provided,
the Company shall promptly file with the Trustee and any conversion
agent other than the Trustee an Officers' Certificate setting forth
the conversion price after such adjustment and setting forth a brief
statement of the facts requiring such adjustment, which certificate
shall be conclusive evidence of the correctness of such adjustment.
Promptly after delivery of such certificate, the Company shall prepare
a notice of such adjustment of the conversion price setting forth the
adjusted conversion price and the date on which such adjustment
becomes effective and shall mail such notice of such adjustment of the
conversion price to the Holder of each Security of that series at his
last address appearing on the Security Register.
SECTION 1506. NOTICE OF CERTAIN CORPORATE ACTIONS.
In case:
(a) the Company shall declare a dividend (or any other
distribution) on its Common Shares payable otherwise than exclusively
in cash;
(b) the Company shall authorize the granting to the holders of
its Common Shares of rights, options or warrants to subscribe for or
purchase any capital shares of any class or of any other rights
(excluding capital shares or options for capital shares issued
pursuant to a benefit plan for employees, officers or directors of the
Company or its Subsidiaries or Affiliates); or
(c) of any reclassification of the Common Shares (other than a
subdivision or combination of the outstanding Common Shares), or of
-87-
<PAGE>
any consolidation, merger or share exchange to which the Company is a
party and for which approval of any shareholders of the Company is
required, or of the sale or transfer of substantially all the assets
of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company; or
(e) the Company or any Subsidiary or Affiliate shall commence a
tender offer for all or a portion of the outstanding Common Shares (or
shall amend any such tender offer to change the maximum number of
shares being sought or the amount or type of consideration being
offered therefor);
then the Company shall cause to be delivered to each office or agency
maintained pursuant to Section 1002, and shall cause to be mailed to
all Holders of Securities of each series which may be converted
pursuant to Section 1501 at their last addresses as they shall appear
in the Security Register, at least 20 days (or 10 days in any case
specified in clause (a), (b) or (c) above) prior to the applicable
record, effective or expiration date hereinafter specified, a notice
stating (x) the date on which a record is to be taken for the purpose
of such dividend, distribution or granting of rights or warrants, or,
if a record is not to be taken, the date as of which the holders of
Common Shares of record who will be entitled to such dividend,
distribution, rights or warrants are to be determined, (y) the date on
which such reclassification, consolidation, merger, share exchange,
sale, transfer, dissolution, liquidation or winding up is expected to
become effective, and the date as of which it is expected that holders
of Common Shares of record shall be entitled to exchange their Common
Shares for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, share exchange, sale,
transfer, dissolution, liquidation or winding up, or (z) the date on
which such tender offer commenced, the date on which such tender offer
is scheduled to expire unless extended, the consideration offered and
the other material terms thereof (or the material terms of any
amendment thereto). Neither the failure to give any such notice nor
any defect therein shall affect the legality or validity of any action
described in clauses (a) through (e) of this Section 1506.
SECTION 1507. COMPANY TO RESERVE COMMON SHARES.
The Company shall at all times reserve and keep available, free
from preemptive rights, out of the authorized but unissued Common
Shares or out of the Common Shares held in treasury, for the purpose
of effecting the conversion of Securities, the full number of shares
of Common Shares then issuable upon the conversion of all outstanding
Securities.
-88-
<PAGE>
SECTION 1508. TAXES ON CONVERSIONS.
The Company will pay any and all original issuance, transfer,
stamp and other similar taxes that may be payable in respect of the
issue or delivery of Common Shares or other securities of the Company
on conversion of Securities pursuant hereto. The Company shall not,
however, be required to pay any tax which may be payable in respect of
any transfer involved on the issue and delivery of Common Shares or
other securities of the Company in a name other than that of the
Holder of the Security or Securities to be converted, and no such
issue or delivery shall be made unless and until the Person requesting
such issue has paid to the Company the amount of any such tax, or has
established to the satisfaction of the Company that such tax has been
paid.
SECTION 1509. COVENANT AS TO COMMON SHARES.
The Company covenants that all shares of Common Shares which may
be issued upon conversion of Securities will upon issue be validly
issued, fully paid and non assessable.
SECTION 1511. CANCELLATION OF CONVERTED SECURITIES.
All Securities delivered for conversion shall be delivered to the
Trustee to be cancelled by or at the direction of the Trustee as
provided in Section 309.
SECTION 1512. PROVISIONS AS TO RECLASSIFICATION, CONSOLIDATION,
MERGER OR SALE OF ASSETS.
If any of the following events, namely (i) the reclassification
or change of outstanding Common Shares (other than a change in par
value, or from par value to no par value, or from no par value to par
value, or as a result of a subdivision or combination), (ii) any
consolidation, merger or combination of the Company with another
corporation as a result of which holders of Common Shares shall be
entitled to receive stock, securities or other property or assets
(including cash) with respect to or in exchange for such Common
Shares, or (iii) any sale or conveyance of the properties and assets
of the Company as, or substantially as, an entirety to any other
entity as a result of which holders of Common Shares shall be entitled
to receive stock, securities or other property or assets (including
cash) with respect to or in exchange for such Common Shares, shall
occur, then the Company or the successor or purchasing' entity, as the
case may be, shall execute with the Trustee a supplemental indenture
(which shall conform to the Trust Indenture Act as in force at the
date of execution of such supplemental indenture) providing that each
Security shall be convertible into the kind and amount of shares of
stock and other securities or property or assets (including cash)
receivable upon such reclassification, change, consolidation, merger,
combination, sale or conveyance by a holder of the number of Common
Shares issuable upon conversion of such Security immediately prior to
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<PAGE>
such reclassification, change, consolidation, merger, combination,
sale or conveyance, assuming such holder of Common Shares (i) is not a
Person with which the Company consolidated or into which the Company
merged or which merged into the Company or to which such sale or
transfer was made, as the case may be (a "Constituent Person"), or an
Affiliate of a Constituent Person and (ii) failed to exercise his
rights of election, if any, as to the kind or amount of securities,
cash and other property receivable upon such consolidation, merger,
sale or transfer (provided that if the kind or amount of securities,
cash and other property receivable upon such consolidation, merger,
sale or transfer is not the same for each Common Share held
immediately prior to such consolidation, merger, sale or transfer by
other than a Constituent Person or an Affiliate thereof and in respect
of which such rights of election shall not have been exercised
("nonelecting share"), then for the purpose of this Section 1512 the
kind and amount of securities, cash and other property receivable upon
such consolidation, merger, sale or transfer by each nonelecting share
shall be deemed to be the kind and amount so receivable per share by a
plurality of the nonelecting shares). Such supplemental indenture
shall provide for adjustments that for events subsequent to the
effective date of such supplemental indenture shall be a nearly
equivalent as may be practicable to the adjustments provided for in
this Article. The above provisions of this Section 1512 shall
similarly apply to successive consolidations, mergers, sales or
transfers.
SECTION 1513. TRUSTEE NOT RESPONSIBLE FOR DETERMINING CONVERSION
PRICE OR ADJUSTMENTS.
Neither the Trustee nor any conversion agent shall at any time be
under any duty or responsibility to any Holder of any Security to
determine whether any facts exist which may require any adjustment of
the conversion price, or with respect to the nature or extent of any
such adjustment when made, or with respect to the method employed, or
herein or in any supplemental indenture provided to be employed, in
making the same. Neither the Trustee nor any conversion agent shall
be accountable with respect to the validity or value (or the kind or
amount) of any Common Shares or of any securities or property, which
may at any time be issued or delivered upon the conversion of any
Security; and neither the Trustee nor any conversion agent makes any
representation with respect thereto. Neither the Trustee nor any
conversion agent shall be responsible for any failure of the Company
to make any cash payment or to issue, transfer or deliver any Common
Shares or stock certificates or other securities or property upon the
surrender of any Security for the purpose of conversion.
SECTION 1514. RIGHTS ISSUED IN RESPECT OF COMMON SHARES ISSUED ON
CERTAIN CONVERSIONS.
Each Common Share issued upon conversion of Securities pursuant
to this Article on or prior to the close of business on the earliest
of (i) the Distribution Date (as defined in the Rights Agreement),
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<PAGE>
(ii) any date on which the Rights (as defined in the Rights Agreement)
are redeemed in accordance with the Rights Agreement or (iii) the
Final Expiration Date (as defined in the Rights Agreement), shall in
accordance with the Rights Agreement also evidence one Right, and the
certificates for such Common Shares shall bear the legend set forth in
Section Three of the Rights Agreement. In addition, holders of the
Securities converted into Common Shares after the Distribution Date,
but prior to the earlier of (x) any date fixed for redemption of the
Rights in accordance with the Rights Agreement and (y) the Final
Expiration Date, shall be entitled to the issuance, in the manner
provided in the Rights Agreement, of Rights Certificates (as defined
in the Rights Agreement) representing the appropriate number of Rights
in connection with the issuance of Common Shares upon conversion of
Securities. Notwithstanding the foregoing, Holders of Securities
converted into Common Shares shall not be entitled to Rights or the
issuance of Rights Certificates if at the time of conversion all
Rights under the Rights Agreement have been terminated or cancelled.
Holders who have not converted Securities on or prior to any such date
fixed for redemption of Rights will not be entitled to the redemption
price in respect thereof or to any adjustment therefor.
ARTICLE SIXTEEN
MISCELLANEOUS PROVISIONS
SECTION 1601. SECURITIES IN FOREIGN CURRENCIES.
Whenever this Indenture provides for (i) any action by, or the
determination of any of the rights of, Holders of Securities of any
series in which not all of such Securities are denominated in the same
currency, or (ii) any distribution to Holders of Securities, in the
absence of any provision to the contrary in the form of Security of
any particular series, any amount in respect of any Security
denominated in a currency other than Dollars shall be treated for any
such action or distribution as that amount of Dollars that could be
obtained for such amount on such reasonable basis of exchange and as
of the record date with respect to Registered Securities of such
series (if any) for such action, determination of rights or
distribution (or, if there shall be no applicable record date, such
other date reasonably proximate to the date of such action,
determination of rights or distribution) as the Company may specify in
a written notice to the Trustee.
* * * *
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all
such counterparts shall together constitute but one and the same
Instrument.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be
hereunto affixed, all as of the day and year first above written.
ARVIN INDUSTRIES, INC.
[SEAL] By _______________________________
Vice President-Finance
Attest:
_________________________________
Assistant Secretary
__________________________________
[SEAL] By _______________________________
Authorized Officer
Attest:
__________________________________
Assistant Secretary
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<PAGE>
STATE OF ___________ )
) ss.:
COUNTY OF __________ )
On the _______ day of ______________ before me personally came
_______________________ to me known, who, being by me duly sworn, did
depose and say that he resides at _____________________________, that
he is _____________________________ of Arvin Industries, Inc., one of
the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation,
and that he signed his name thereto by like authority.
___________________________________
Notary Public
STATE OF ___________ )
) ss.:
COUNTY OF __________ )
On the ____ day of _______________, before me personally came
______________________ to me known, who, being by me duly sworn, did
depose and say that he resides at _____________________________, that
he is a _____________________________ of __________________________,
one of the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation,
and that he signed his name thereto by like authority.
__________________________________
Notary Public
-93-
EXHIBIT 23-1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-3 of our report dated January 29,
1999, except as to Note 15, which is as of February 26, 1999, relating
to the financial statements and financial statement schedules, which
appears in Arvin Industries, Inc.'s Annual Report on Form 10-K for the
year ended January 3, 1999. We also consent to the reference to us
under the heading "Experts" in such Registration Statement.
PricewaterhouseCoopers LLP
Indianapolis, Indiana
May 3, 1999
EXHIBIT 25-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
Statement of Eligibility
Under the Trust Indenture Act of 1939
of a Corporation Designated to Act as Trustee
Check if an Application to Determine Eligibility
of a Trustee Pursuant to Section 305(b)(2) ______
HARRIS TRUST AND SAVINGS BANK
(Name of Trustee)
Illinois 36-1194448
(State of Incorporation) (I.R.S. Employer
Identification No.)
111 West Monroe Street, Chicago, Illinois 60603
(Address of principal executive offices)
Carolyn Potter, Harris Trust and Savings Bank,
311 West Monroe Street, Chicago, Illinois, 60606
312-461-2531 phone 312-461-3525 facsimile
(Name, address and telephone number for agent for service)
Arvin Industries, Inc.
(Name of obligor)
Indiana 35-0550190
(State of Incorporation) (I.R.S. Employer
Identification No.)
One Noblitt Plaza
Box 3000
Columbus, Indiana 47202-3000
(Address of principal executive offices)
<PAGE>
Debt Securities
(Title of indenture securities)
1. GENERAL INFORMATION. Furnish the following information as to the
Trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Commissioner of Banks and Trust Companies, State of
Illinois, Springfield, Illinois; Chicago Clearing House
Association, 164 West Jackson Boulevard, Chicago,
Illinois; Federal Deposit Insurance Corporation,
Washington, D.C.; The Board of Governors of the Federal
Reserve System, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Harris Trust and Savings Bank is authorized to exercise
corporate trust powers.
2. AFFILIATIONS WITH OBLIGOR. If the Obligor is an affiliate of the
Trustee, describe each such affiliation.
The Obligor is not an affiliate of the Trustee.
3. thru 15.
NO RESPONSE NECESSARY
16. LIST OF EXHIBITS.
1. A copy of the articles of association of the Trustee is now
in effect which includes the authority of the trustee to
commence business and to exercise corporate trust powers.
A copy of the Certificate of Merger dated April 1, 1972
between Harris Trust and Savings Bank, HTS Bank and Harris
Bankcorp, Inc. which constitutes the articles of association
of the Trustee as now in effect and includes the authority
of the Trustee to commence business and to exercise
corporate trust powers was filed in connection with the
Registration Statement of Louisville Gas and Electric
Company, File No. 2-44295, and is incorporated herein by
reference.
2. A copy of the existing by-laws of the Trustee.
A copy of the existing by-laws of the Trustee was filed in
connection with the Registration Statement of Commercial
Federal Corporation, File No. 333-20711, and is incorporated
herein by reference.
1
<PAGE>
3. The consents of the Trustee required by Section 321(b) of
the Act.
(included as Exhibit A on page 2 of this statement)
4. A copy of the latest report of condition of the Trustee
published pursuant to law or the requirements of its
supervising or examining authority.
(included as Exhibit B on page 3 of this statement)
2
<PAGE>
SIGNATURE
---------
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, HARRIS TRUST AND SAVINGS BANK, a corporation organized and
existing under the laws of the State of Illinois, has duly caused this
statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Chicago,
and State of Illinois, on the 30th day of April, 1999.
HARRIS TRUST AND SAVINGS BANK
By: /s/ C. Potter
----------------------------
C. Potter
Assistant Vice President
EXHIBIT A
The consents of the trustee required by Section 321(b) of the Act.
Harris Trust and Savings Bank, as the Trustee herein named, hereby
consents that reports of examinations of said trustee by Federal and
State authorities may be furnished by such authorities to the
Securities and Exchange Commission upon request therefor.
HARRIS TRUST AND SAVINGS BANK
By: /s/ C. Potter
----------------------------
C. Potter
Assistant Vice President
3
<PAGE>
EXHIBIT B
Attached is a true and correct copy of the statement of condition of
Harris Trust and Savings Bank as of December 31, 1998, as published in
accordance with a call made by the State Banking Authority and by the
Federal Reserve Bank of the Seventh Reserve District.
[HARRIS LOGO] HARRIS BANK
Harris Trust and Savings Bank
111 West Monroe Street
Chicago, Illinois 60603
of Chicago, Illinois, And Foreign and Domestic Subsidiaries, at the
close of business on December 31, 1998, a state banking institution
organized and operating under the banking laws of this State and a
member of the Federal Reserve System. Published in accordance with a
call made by the Commissioner of Banks and Trust Companies of the
State of Illinois and by the Federal Reserve Bank of this District.
Bank's Transit Number 71000288
<TABLE>
<CAPTION>
THOUSANDS
ASSETS OF DOLLARS
<S> <C> <C>
Cash and balances due from depository institutions:
Non-interest bearing balances and currency and coin . . . . . . . . . $1,435,233
Interest bearing balances . . . . . . . . . . . . . . . . . . . . . . $98,929
Securities: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
a. Held-to-maturity securities $0
b. Available-for-sale securities $5,295,498
Federal funds sold and securities purchased under agreements to resell $151,575
Loans and lease financing receivables:
Loans and leases, net of unearned income . . . . . . . . . . . . . . . $9,320,939
LESS: Allowance for loan and lease losses . . . . . . . . . . . . . . $108,280
----------
Loans and leases, net of unearned income, allowance, and reserve
(items 4.a minus 4.b) . . . . . . . . . . . . . . . . . . . . . . . . $9,212,659
Assets held in trading accounts . . . . . . . . . . . . . . . . . . . . . . . . $252,881
Premises and fixed assets (including capitalized leases) . . . . . . . . . . . $271,540
Other real estate owned . . . . . . . . . . . . . . . . . . . . . . . . . . . . $366
Investments in unconsolidated subsidiaries and associated companies . . . . . . $57
Customer's liability to this bank on acceptances outstanding . . . . . . . . . $30,829
Intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $257,627
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $1,093,599
----------
TOTAL ASSETS $18,100,793
===========
4
<PAGE>
LIABILITIES
Deposits:
In domestic offices . . . . . . . . . . . . . . . . . . . . . . . . . . . $10,270,499
Non-interest bearing . . . . . . . . . . . . . . . . . . . . . . . . . $3,410,568
Interest bearing . . . . . . . . . . . . . . . . . . . . . . . . . . . $6,859,931
In foreign offices, Edge and Agreement subsidiaries, and IBF's . . . . . $935,609
Non-interest bearing . . . . . . . . . . . . . . . . . . . . . . . . . $69,215
Interest bearing . . . . . . . . . . . . . . . . . . . . . . . . . . . $866,394
Federal funds purchased and securities sold under agreements to repurchase in
domestic offices of the bank and of its Edge and Agreement subsidiaries, and
in IBF's:
Federal funds purchased & securities sold under agreements to repurchase . . . $3,642,049
Trading Liabilities 131,909
Other borrowed money: . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
a. With remaining maturity of one year or less $1,107,125
b. With remaining maturity of more than one year $0
Bank's liability on acceptances executed and outstanding $30,829
Subordinated notes and debentures . . . . . . . . . . . . . . . . . . . . . . . $225,000
Other liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $424,376
-----------
TOTAL LIABILITIES $16,767,396
===========
EQUITY CAPITAL
Common stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $100,000
Surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $608,116
a. Undivided profits and capital reserves . . . . . . . . . . . . . . . . . $593,973
b. Net unrealized holding gains (losses) on available-for-sale securities . . $31,308
-----------
TOTAL EQUITY CAPITAL $1,333,397
===========
Total liabilities, limited-life preferred stock, and equity capital . . . . . . $18,100,793
===========
</TABLE>
I, Pamela Piarowski, Vice President of the above-named bank, do
hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of
the Federal Reserve System and is true to the best of my knowledge and
belief.
PAMELA PIAROWSKI
1/27/99
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us and,
to the best of our knowledge and belief, has been prepared in
conformance with the instructions issued by the Board of Governors of
the Federal Reserve System and the Commissioner of Banks and Trust
5
<PAGE>
Companies of the State of Illinois and is true and correct.
EDWARD W. LYMAN,
ALAN G. McNALLY,
RICHARD E. TERRY
Directors.
6
