<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 26, 1996
REGISTRATION NO. 333-
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
CARLISLE COMPANIES INCORPORATED
(Exact name of registrant as specified in its charter)
------------------------------
<TABLE>
<S> <C>
DELAWARE 31-1168055
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification
organization) Number)
</TABLE>
250 SOUTH CLINTON STREET, SUITE 201
SYRACUSE, NY 13202
315-474-2500
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
------------------------------
STEVEN J. FORD, ESQ.
VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL
CARLISLE COMPANIES INCORPORATED
250 SOUTH CLINTON STREET, SUITE 201
SYRACUSE, NY 13202
315-474-2500
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
------------------------------
COPIES TO:
DOUGLAS L. GETTER, ESQ. JONATHAN JEWETT
DEWEY BALLANTINE SHEARMAN & STERLING
1301 Avenue of the Americas 599 Lexington Avenue
New York, NY 10019-6092 New York, NY 10022
(212) 259-8000 (212) 848-4000
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plan, 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
reinvesmnt 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 number of the earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(b)
under the Securities Act, check the following box and list the Securities Act
registration 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. / /
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED BE REGISTERED PER UNIT(1) OFFERING PRICE(1) REGISTRATION FEE
<S> <C> <C> <C> <C>
Debt Securities.................................. $300,000,000 100% $300,000,000(2) $90,909.09
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457 under the Securities Act of 1933.
(2) In United States dollars or the equivalent thereof in foreign currencies,
currency units or composite currencies.
------------------------
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 COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
SUBJECT TO COMPLETION, DATED NOVEMBER 26, 1996
PROSPECTUS
$300,000,000
CARLISLE COMPANIES INCORPORATED
DEBT SECURITIES
Carlisle Companies Incorporated (the "Company") may from time to time offer,
together or separately, its unsecured debt securities consisting of debentures,
notes or other unsecured evidences of indebtedness (the "Debt Securities") in
amounts, at prices and on terms to be determined at the time of the offering,
which may be either senior (the "Senior Securities") or subordinated (the
"Subordinated Securities"). The aggregate initial offering price of the Debt
Securities offered hereby will not exceed
U.S. $300,000,000 or its equivalent in any other currency, currency unit or
composite currency determined at the applicable exchange rate at the time of
sale.
For each offering of Debt Securities for which this Prospectus is being
delivered, there will be an accompanying Prospectus Supplement (the "Prospectus
Supplement"), which sets forth, where applicable, the designation or title of
such Debt Securities, the maturity of such Debt Securities, the aggregate
principal amount, premium (if any), the rate or rates of interest (which may be
fixed or variable) or the method of calculation, and the date or dates and place
or places of payment thereof, any terms for redemption at the option of the
Company or the holder, any terms for sinking fund payments, the currency or
currencies, currency unit or units or composite currency or currencies
("Currency") in which such Debt Securities will be denominated (if other than
U.S. dollars), any terms of subordination, the form of such Debt Securities
(which may be in registered, bearer or global form) and the initial public
offering price, the purchase price and net proceeds to the Company. The
Prospectus Supplement will also contain information, as applicable, concerning
certain material United States Federal income tax considerations relating to the
particular Debt Securities offered thereby.
The Company may sell Debt Securities to or through underwriters, and may
also sell Debt Securities directly to other purchasers or through agents. The
accompanying Prospectus Supplement sets forth the names of any underwriters or
agents involved in the sale of the Debt Securities in respect of which this
Prospectus is being delivered, the principal amounts, if any, to be purchased by
underwriters and the compensation, if any, of such underwriters or agents. See
"Plan of Distribution."
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
<PAGE>
THE DATE OF THIS PROSPECTUS IS , 1996.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). The reports, proxy
statements and other information filed by the Company with the Commission can be
inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549 or its regional offices located at Suite 1400, Citicorp Center, 500
West Madison Street, Chicago, Illinois 60661-2511 and at Suite 1300, 7 World
Trade Center, New York, New York 10048. Copies of such material can be obtained
by mail from the Public Reference Section of the Commission at Judiciary Plaza,
450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. In
addition, such reports, proxy statements and other information may be inspected
at the offices of the New York Stock Exchange, Inc., 20 Broad Street, New York,
New York 10005 where certain securities of the Company are listed. The
Commission maintains a Web site (http://www.sec.gov.) that contains reports,
proxy and information statements and other information regarding registrants,
such as the Company, that file electronically with the Commission.
The Company has filed with the Commission a Registration Statement on Form
S-3 (the "Registration Statement") under the Securities Act of 1933, as amended
(the "Securities Act"), with respect to the Debt Securities. This Prospectus
does not contain all of the information set forth in the Registration Statement
and the exhibits and schedules thereto, certain portions of which have been
omitted in accordance with the rules and regulations of the Commission. For
further information with respect to the Company and the Debt Securities,
reference is hereby made to the Registration Statement and the exhibits and
schedules filed therewith, which may be obtained from the principal office of
the Commission in Washington, D.C., upon the payment of fees prescribed by the
Commission.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed by the Company with the Commission pursuant to
the Exchange Act are incorporated herein by reference: (i) the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1995; (ii) the
Company's Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31,
1996, June 30, 1996 and September 30, 1996; and (iii) the Company's Current
Reports on Form 8-K dated August 9, 1996 and October 4, 1996.
All reports and other documents filed by the Company pursuant to Section 13
(a), 13 (c), 14 or 15 (d) of the Exchange Act after the date of this Prospectus
and before the termination of any offering of Debt Securities made hereby will
be deemed to be incorporated by reference herein and to be a part hereof from
the date of filing of such reports and documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein will be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document, which also is or is deemed to be incorporated by reference herein,
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company will provide, without charge to each person, including any
beneficial owner, to whom a Prospectus is delivered upon the written request of
such person, a copy of any or all of the documents incorporated herein by
reference (other than exhibits, unless such exhibits specifically are
incorporated by reference into such documents or this Prospectus). Requests for
such documents should be submitted in writing, addressed to Steven J. Ford,
Secretary, Carlisle Companies Incorporated, 250 South Clinton Street, Suite 201,
Syracuse, New York 13202.
2
<PAGE>
THE COMPANY
The Company manufactures and distributes a wide variety of products for
industry, primarily of rubber, plastics and metal content. Its products include
both components used by other companies in the manufacture of capital and
consumer goods and those for the aftermarket. The Company is the leading
producer, or among the leading producers, of many of its lines.
Sales of the Company's products are reported by distribution to one of the
following three industry segments: Construction Materials, Transportation
Products and General Industry. The Company's principal products and services in
each of these industry segments include:
Construction Materials--elastomeric membranes, metal roofing components,
adhesives and related products for roofing systems and water barrier
applications and outdoor recreation tiles.
Transportation Products--custom manufactured rubber and plastic products
for the automotive market, brake linings and pads for heavy duty trucks,
trailers and off-road vehicles, specialty friction products, brakes and
actuation systems for construction equipment, refrigerated containers,
insulated wire products, specialized lowbed transport trailers and
specialized dump bodies and trailers.
General Industry--molded plastic foodservice products, small pneumatic
tires, stamped and roll-formed wheels, medical monitoring devices, insulated
wire products and stainless steel inplant processing equipment.
Carlisle Companies Incorporated was incorporated in 1986 in Delaware as a
holding company for Carlisle Corporation, which began operations in 1917, and
its wholly-owned subsidiaries. Unless the context of this Prospectus otherwise
requires, the term "Company" refers to Carlisle Companies Incorporated and its
wholly-owned subsidiaries and any divisions or subsidiaries they may have. The
Company's diversified manufacturing operations are conducted through its
subsidiaries. The principal executive offices of the Company are located at 250
South Clinton Street, Suite 201, Syracuse, New York 13202, and its telephone
number is (315) 474-2500.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the Company's ratio of earnings to fixed
charges for periods indicated:
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
SEPTEMBER 30, 1996 YEAR ENDED DECEMBER 31,
--------------------- --------------------------------------------
<S> <C> <C> <C> <C> <C>
1995 1994 1993 1992
----- --------- --------- ---------
Ratio of Earnings to Fixed Charges........................ 8.22 8.70 9.73 9.89 7.78
<CAPTION>
<S> <C>
1991
---------
Ratio of Earnings to Fixed Charges........................ 3.03
</TABLE>
For purposes of computing the ratio of earnings to fixed charges, earnings
are defined as earnings before income taxes plus fixed charges. Fixed charges
consist of interest expense (including capitalized interest) and the portion of
rental expense that is representative of the interest factor (deemed to be one-
third of minimum operating lease rentals). The earnings to fixed charges
calculation reflects the Company's proportionate share of income, expense and
fixed charges attributable to the Company's investment in majority-owned
unconsolidated subsidiaries and joint ventures.
3
<PAGE>
USE OF PROCEEDS
Unless otherwise indicated in the applicable Prospectus Supplement, the net
proceeds from the sale of the Debt Securities will be used for general corporate
purposes of the Company and its subsidiaries, including working capital, capital
expenditures, to finance acquisitions and to repay, redeem or repurchase its
outstanding indebtedness. Pending such use, proceeds may be invested in
marketable securities. Information concerning the Company's capital expenditures
and acquisitions is set forth in the documents incorporated herein by reference
and may be set forth in the Prospectus Supplement.
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities set forth
certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of the Debt Securities
offered by any Prospectus Supplement, as well as any modification or addition to
the general terms of the Debt Securities as herein described that may be
applicable to a particular series of Debt Securities, will be described in the
Prospectus Supplement relating to such Debt Securities. Accordingly, for a
description of the terms of a particular issue of Debt Securities, reference
must be made to the Prospectus Supplement relating thereto and to the following
description.
The Debt Securities will be issued under an Indenture dated as of ,
1996, as it may be supplemented from time to time (the "Indenture"), between the
Company and Fleet National Bank, Trustee (the "Trustee"). The Indenture provides
that there may be more than one trustee thereunder, each with respect to one or
more series of Debt Securities. In the event that there is more than one trustee
under the Indenture, the powers and trust obligations of each trustee as
described herein will extend only to the series of Debt Securities for which it
is Trustee. The following statements with respect to the Debt Securities do not
purport to be complete and are subject to, and are qualified in their entirety
by reference to, the detailed provisions of the Indenture, the form of which is
filed as an exhibit to the Registration Statement of which this Prospectus is a
part. The Indenture is subject to and governed by the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"). Capitalized terms used herein are
defined in the Indenture unless otherwise defined herein. Parenthetical
references below are to the Indenture and, whenever any particular section of
the Indenture or any term defined therein is referred to, such section or
definition is incorporated herein by reference.
GENERAL
The Debt Securities offered hereby will be limited to an aggregate initial
offering price of U.S. $300,000,000 or its equivalent in any other Currency
determined at the applicable exchange rate at the time of sale. The Indenture
does not limit the amount of Debt Securities that can be issued thereunder and
provides that additional Debt Securities may be issued in one or more series
thereunder up to the aggregate principal amount which may be authorized from
time to time by the Company's Board of Directors. The Debt Securities will be
unsecured obligations of the Company. The Senior Securities will rank on a
parity with all other unsecured and unsubordinated indebtedness of the Company.
The Subordinated Securities will be subordinated in right of payment to the
prior payment in full of the Senior Indebtedness of the Company, as described
under "--Subordination," as such provisions may be revised by the Prospectus
Supplement relating thereto.
The Prospectus Supplement accompanying this Prospectus sets forth a
description of the particular Debt Securities offered thereby including: (i) the
specific designation or title of such Debt Securities; (ii) the denominations in
which such Debt Securities are authorized to be issued, if other than $1,000 or
any integral multiple thereof in the case of Registered Securities and $5,000 in
the case of Bearer Securities; (iii) the aggregate principal amount of such Debt
Securities; (iv) the date or dates on which the principal of such Debt
Securities will be payable or the method of determining such date or dates; (v)
the price or prices (expressed as a percentage of the aggregate principal amount
thereof) at which such Debt
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<PAGE>
Securities will be issued; (vi) the rate or rates (which may be fixed or
variable) at which such Debt Securities will bear interest, if any, or the
method of calculating such rate or rates; (vii) the place or places where
principal of, premium (if any) and interest, if any, on such Debt Securities
will be payable; (viii) the terms, if any, for redemption at the option of the
Company or the holders of such Debt Securities, and for any repurchase or
repayment; (ix) the date from which interest, if any, will accrue and the date
or dates on which interest, if any, will be payable and the record date or dates
therefor, or the method by which such date or dates will be determined; (x) the
provision for any sinking fund or analogous payments; (xi) if other than U.S.
dollars, the Currency in which such Debt Securities may be issued or payable and
whether the Company or the holders of any such Debt Securities may elect to
receive payments in respect of such Debt Securities in a Currency other than
that in which such Debt Securities are stated to be payable; (xii) if other than
the principal amount thereof, the portion of the principal amount of such Debt
Securities which will be payable upon declaration of the acceleration of the
maturity thereof or the method by which such portion shall be determined; (xiii)
any addition to, or modification or deletion of, any Event of Default or any
covenant of the Company specified in the Indenture with respect to such Debt
Securities; (xiv) the application, if any, of any defeasance or covenant
defeasance provisions with respect to such Debt Securities or; (xv) whether such
Debt Securities are to be issued in whole or in part in the form of one or more
temporary or permanent global securities and, if so, the identity of the
depositary for such global security or securities; (xvi) any terms for
subordination of such Debt Securities; (xvii) whether such Debt Securities are
to be issuable as Registered Securities, Bearer Securities or both, any
restrictions applicable to the offer, sale and delivery of Bearer Securities and
the terms, if any, upon which Bearer Securities may be exchanged for Registered
Securities and vice versa (if permitted by applicable laws); and (xviii) any
other special terms pertaining to such Debt Securities.
Unless otherwise specified in the applicable Prospectus Supplement, (i) the
Debt Securities will not be listed on any securities exchange and (ii) principal
and premium (if any) or interest, if any, will be payable and the Debt
Securities may be surrendered for payment at the corporate trust office of the
Trustee, provided that payment of interest on Registered Securities may be made
at the option of the Company by check mailed to the address of, or by wire
transfer to the account of, the person entitled thereto as it appears in the
Security Register. Payments in respect of Bearer Securities will be made at such
paying agencies outside of the United States as the Company may appoint.
(Sections 301 and 1002)
Unless otherwise specified in the applicable Prospectus Supplement, the Debt
Securities will be issued only in fully registered form without coupons and may
be presented for registration of transfer or exchange at the corporate trust
office of the Trustee. No service charge will be made for any transfer or
exchange of such Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. (Section 305) Special restrictions and considerations, including
special offering restrictions and special United States Federal income tax
considerations, applicable to any Bearer Securities and to payment on and
transfer and exchange of Bearer Securities will be described in the Prospectus
Supplement. Bearer Securities will be transferrable by delivery. (Section 305)
Some of the Debt Securities may be issued at a substantial discount (bearing
no interest or interest at below market rates) ("Discount Securities") to their
stated principal amount. United States Federal income tax consequences and other
special considerations applicable to any such Debt Securities will be described
in the Prospectus Supplement relating thereto. If any series of Debt Securities
is sold for, payable in or denominated in one or more Currencies (other than
U.S. dollars), applicable restrictions, elections, terms and other information
with respect to such series and such Currencies, and a discussion of the United
States Federal income tax and other considerations applicable thereto, will be
set forth in the Prospectus Supplement relating thereto.
The general provisions of the Indenture do not limit the ability of the
Company to incur additional indebtedness and do not afford the holders of Debt
Securities protection in the event of a highly leveraged
5
<PAGE>
or similar transaction involving the Company. However, the Indenture contains
certain covenants applicable with respect to Senior Securities which provide
that neither the Company nor any Significant Subsidiary will subject certain of
its properties or assets to any mortgage or other encumbrance unless the Senior
Securities outstanding thereunder are secured equally and ratably with or prior
to such other indebtedness thereby secured. See "Limitations on Secured Debt"
and "Limitations on Sales and Leasebacks." Reference is made to the Prospectus
Supplement for information with respect to any deletions from, modifications of
or additions to the Events of Default or covenants of the Company that are
described herein, including any addition of a covenant or other provision
providing event risk or similar protection.
The Indenture does not contain any provision that will restrict the Company
from paying dividends or making other distributions on its capital stock or
purchasing or redeeming its capital stock, nor does the Indenture contain any
financial ratios, or specified levels of net worth or liquidity to which the
Company must adhere. In addition, the Indenture does not contain any provision
that would require that the Company repurchase or redeem or otherwise modify the
terms of any of its Debt Securities upon a change in control or other events
involving the Company which may adversely affect the credit worthiness of the
Debt Securities.
CERTAIN DEFINITIONS
Set forth below is a summary of certain of the defined terms used in the
Indenture.
"Attributable Debt" is defined to mean, as to any particular lease under
which any Person is at the time liable, at any date as of which the amount
thereof is to be determined, the total net amount of rent required to be paid by
such Person under such lease during the remaining primary term thereof,
discounted from the respective due dates thereof to such date at the rate of
interest per annum implicit in the terms of such lease, as determined in good
faith by the Company, compounded annually. The net amount of rent required to be
paid under any such lease for any such period shall be the amount of the rent
payable by the lessee with respect to such period, after excluding amounts
required to be paid on account of maintenance, repairs, insurance, taxes,
assessments, water rates and similar charges. In the case of any lease which is
terminable by the lessee upon the payment of a penalty, such net amount shall
also include the amount of such penalty, but shall not include any rent required
to be paid under such lease subsequent to the first date upon which it may be so
terminated.
"Consolidated Net Tangible Assets" is defined to mean the aggregate amount
of assets (less applicable reserves and other property deductible items) after
deducting (a) all current liabilities (excluding any thereof constituting Funded
Debt by reason of being renewable or extendable) and (b) all goodwill, trade
names, trademarks, patents, unamortized debt discount and expense, and other
like intangibles, all as set forth on the most recent balance sheet to the
Company and its Subsidiaries and computed in accordance with generally accepted
accounting principles.
"Debt" is defined to mean notes, bonds, debentures or other similar
evidences of indebtedness for money borrowed.
"Funded Debt" is defined to mean all Debt having a maturity of more than 12
months from the date as of which the amount thereof is to be determined or
having a maturity of less than 12 months but by its terms being renewable or
extendable beyond 12 months from such date at the option of the borrower.
"Nonrecourse Obligations" is defined to mean Debt or lease payment
obligations substantially related to (i) the acquisition of assets not currently
owned by the Company or any of its Significant Subsidiaries or (ii) the
financing of the construction of or improvements to equipment or facilities
involving the development of properties of the Company or any of its Significant
Subsidiaries, as to which the obligee with respect to such indebtedness or
obligation has no recourse to the general corporate funds or the assets, in
general, of the Company or any of its Significant Subsidiaries.
6
<PAGE>
"Principal Property" is defined to mean any real property, manufacturing
plant, warehouse or other physical facility and related fixtures and
improvements, located in the United States of America (other than its
territories or possessions), owned by the Company or any Subsidiary and the
gross book value of which (without deduction of any depreciation reserves) on
the date as of which the determination is being made exceeds 2% of Consolidated
Net Tangible Assets, other than any such facility or portion thereof which the
Board of Directors of the Company declares by resolution are not of material
importance to the total business conducted by the Company and its Subsidiaries
as an entirety.
"Senior Indebtedness" is defined to mean all Debt of the Company, including
principal and interest (and premium, if any) (including, without limitation, any
interest that would accrue but for the occurrence of any event specified in
paragraph (6) or (7) of "--Events of Default") on such Debt except (i) existing
Subordinated Securities, (ii) such indebtedness as is by its terms expressly
stated to be junior in right of payment to the Subordinated Securities, and
(iii) such indebtedness as is by its terms expressly stated to rank PARI PASSU
with the Subordinated Securities.
"Significant Subsidiary" is defined to mean any Subsidiary of the Company
which owns a Principal Property, any Subsidiary which accounts for 10% or more
of the consolidated annual net sales or total assets of the Company at the end
of the most recently completed fiscal year and any Subsidiary which owns
directly or indirectly stock of a Significant Subsidiary.
"Subsidiary" is defined to mean a corporation whose accounts are
consolidated with those of the Company in accordance with generally accepted
accounting principles.
COVENANTS APPLICABLE TO SENIOR SECURITIES
LIMITATIONS ON SECURED DEBT
The Company has covenanted that it will not itself, and will not permit any
Subsidiary to, create, incur, issue, assume or guarantee any Debt secured after
the date of the Indenture by pledge of, or mortgage or other lien ("Mortgage")
on, any Principal Property of the Company or any Significant Subsidiary, or any
shares of stock or Debt of any Significant Subsidiary without effectively
providing that the Senior Securities of all series issued pursuant to the
Indenture (together with, if the Company shall so determine, any other Debt of
the Company or such Significant Subsidiary then existing or thereafter created
which is not subordinate to the Senior Securities) shall be secured equally and
ratably with (or, at the option of the Company, prior to) such secured Debt, so
long as such secured Debt shall be so secured, unless after giving effect
thereto, the aggregate principal amount of all such secured Debt then
outstanding which would otherwise be prohibited, plus all Attributable Debt of
the Company and its Significant Subsidiaries in respect of sale and leaseback
transactions (as defined in "--Limitations on Sales and Leasebacks") occurring
after the date of the Indenture which would otherwise be prohibited by the
covenant described in "--Limitations on Sales and Leasebacks," would not exceed
10% of the Consolidated Net Tangible Assets.
This restriction does not apply to, and there shall be excluded in computing
secured Debt for the purpose of such restriction, Debt secured by: (i) Mortgages
existing on the date of the first issuance of Debt Securities under the
Indenture; (ii) Mortgages on property of, or on any shares of stock or Debt of,
any corporation existing at the time such corporation becomes a Significant
Subsidiary; (iii) Mortgages in favor of the Company or any Signicant Subsidiary;
(iv) Mortgages in favor of the United States of America or any State thereof, or
any department, agency or instrumentality or political subdivision of the United
States of America or any State thereof, or in favor of any other country, or any
political subdivision thereof, to secure partial, progress, advance or other
payments pursuant to any contract or statute; (v) Mortgages on any real or
personal property existing at the time of acquisition thereof or created within
one year of such acquisition; (vi) Mortgages to secure Debt incurred for the
purpose of financing all or any part
of the purchase price or the cost or construction or improvement of the property
subject to such Mortgage, PROVIDED, HOWEVER, that (a) the principal amount of
any Debt secured by such Mortgage does not exceed
7
<PAGE>
100% of such purchase price or cost and (b) such Mortgage does not extend to or
cover any other property other than such item or property and any improvements
on such item; (vii) Mortgages securing industrial revenue, development or
similar bonds; (viii) Mortgages created in connection with a project financed,
or assets acquired, with, and created to secure any Nonrecourse Obligations; and
(ix) any extension, renewal, refunding or replacement (or successive extensions,
renewals, fundings or replacements), as a whole or in part, of any Mortgage
referred to in the foregoing clauses (i) to (viii), inclusive; PROVIDED,
HOWEVER, that (a) such extension, renewal, refunding or replacement Mortgage
shall be limited to all or a part of the same property, shares of stock or Debt
that secured the Mortgage extended, renewed, refunded or replaced (plus
improvements on such property) and (b) the Debt secured by such Mortgage at such
time is not increased.
LIMITATIONS ON SALES AND LEASEBACKS
The Company has covenanted that it will not itself, and will not permit any
Significant Subsidiary to, enter into any sale or leaseback transaction (except
a lease for a temporary period, including renewals, not exceeding three years
and except leases between the Company and a Significant Subsidiary or between
Significant Subsidiaries) unless, (i) after giving effect thereto, the aggregate
amount of all Attributable Debt with respect to all such transactions occurring
after the date of the Indenture and existing at such time (other than such sales
and leaseback transactions as are in compliance with the provisions described in
clause (ii) of this paragraph) plus all secured Debt then outstanding of the
Company and its Significant Subsidiaries incurred after the date of the
Indenture which would otherwise be prohibited by the covenant described in
"--Limitations on Secured Debt" above, would not exceed 10% of Consolidated Net
Tangible Assets; or (ii) (a) the gross proceeds of the sales or transfer of the
Principal Property leased equals or exceeds the fair market value of such
Principal Property and (b) within one year after such sale or transfer shall
have been made by the Company or by a Significant Subsidiary, the Company or
such Significant Subsidiary (1) applies all of the net proceeds to the
retirement of Funded Debt of the Company or any Significant Subsidiary (other
than at maturity or pursuant to any mandatory sinking fund payment or mandatory
prepayment provision) or (2) applies or commits to apply all of the net proceeds
to the purchase of property, facilities or equipment (other than property,
facilities or equipment involved in such sale) which will constitute Principal
Property.
SUBORDINATION
The payment of the principal of (and premium, if any, on) and interest, if
any, on the Subordinated Securities is expressly subordinated, to the extent and
in the manner set forth in the Indenture, in right of payment to the prior
payment in full of all present and future Senior Indebtedness of the Company.
(Section 1401) If so indicated in the applicable Prospectus Supplement, the
provisions regarding subordination of the Subordinated Securities set forth in
Article Fourteen of the Indenture (or the definition of the term "Senior
Indebtedness" or any other term used therein) may differ from the provisions set
forth below.
The Company will not pay principal of, premium (if any) or interest on the
Subordinated Securities or make any deposit pursuant to the provisions described
under "--Satisfaction, Discharge and Defeasance Prior to Maturity or Redemption"
below and may not repurchase, redeem or otherwise retire any Subordinated
Securities if (i) any payment of principal, premium (if any) or interest, if
any, on any Designated Senior Debt is not paid when due (after giving effect to
any applicable grace periods) or (ii) any other default on Designated Senior
Debt occurs and the maturity of such Designated Senior Debt is accelerated in
accordance with its terms unless, in either case, the default has been cured or
waived or has ceased to exist and any such acceleration has been rescinded or
such Designed Senior Debt has been discharged or paid in full. However, the
Company may make any payment with respect to Subordinated Securities without
regard to the foregoing if the Company and the Trustee receive written notice
approving
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such payment from the representative of the Designated Senior Debt with respect
to which either of the events set forth in clause (i) or (ii) of the immediately
preceding sentence has occurred and is continuing.
Upon any distribution of the assets of the Company upon a total or partial
liquidation or dissolution or any reorganization or similar proceeding
(including bankruptcy, insolvency or receivership proceedings or upon any
assignment for the benefit of creditors or any other marshalling of the
Company's assets and liabilities) relating to the Company or any of its property
(except in connection with a merger or consolidation under Article Eight of the
Indenture), the holders of Senior Indebtedness will be entitled to receive
payment in full of principal and interest (including interest accrued subsequent
to the commencement of any bankruptcy proceeding) with respect to such Senior
Indebtedness before the holders of Subordinated Securities are entitled to
receive any payment or distribution of cash, securities (subject to certain
exceptions) or other property with respect to the principal of or interest on
the Subordinated Securities, and until the Senior Indebtedness is paid in full,
any payment or distribution to which holders of Subordinated Securities would be
entitled but for the subordination provisions of the Indenture will be made to
holders of such Senior Indebtedness as their interests may appear. If a
distribution is made to Holders of Subordinated Securities that, due to the
subordination provisions, should not have been made to them, such holders of
Subordinated Securities are required to hold it in trust for the holders of
Senior Indebtedness and pay it over to them as their interests may appear.
If payment of the Subordinated Securities is accelerated because of an Event
of Default, the Company or the Trustee shall promptly notify the holders of
Designated Senior Debt or the representative of such holders of the
acceleration. By reason of the subordination provisions contained in the
Indenture, in the event of insolvency, creditors of the Company who are holders
of Senior Indebtedness may recover more, ratably, than the holders of
Subordinated Securities.
If this Prospectus is being delivered in connection with the offering of a
series of Subordinated Securities, the Prospectus Supplement relating thereto,
or information incorporated by reference therein, will set forth the approximate
amount of Senior Indebtedness outstanding as of a recent date.
The terms of the subordination provisions described above will not apply to
payments from money or the proceeds of U.S. Government Obligations held in trust
by the Trustee for the payment of principal of and interest on the Subordinated
Securities pursuant to the provisions described under "--Satisfaction, Discharge
and Defeasance Prior to Maturity or Redemption".
EVENTS OF DEFAULT
The following are Events of Default with respect to Debt Securities of each
series:
(1) default in the payment of the principal of, or any premium on, any
of the Debt Securities of such series as and when the same shall become due
and payable either at Stated Maturity, upon redemption, by declaration or
otherwise; or
(2) default in the payment of any installment of interest, if any, upon
any of the Debt Securities of such series as and when it shall become due
and payable, and continuance of such default for a period of 30 days; or
(3) default in the payment of any sinking fund payment, when and as due
and payable by the terms of the Debt Securities of such series; or
(4) default in the performance, or breach, of any covenant or agreement
of the Company in the Debt Securities of such series in any resolution of
the Board of Directors of the Company authorizing the issuance to such
series, in the Indenture with respect to such series or in any supplemental
indenture with respect to such series (other than a covenant or agreement a
default in the performance or a breach of which is otherwise specified as an
Event of Default or which has expressly been included in the Indenture and
designated as being solely for the benefit of such series of Debt
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Securities other than such series), and continuance of such default or
breach for a period of 60 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount of the Debt
Securities of such series then Outstanding, a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" under the Indenture; or
(5) a default under any debt in excess of $20,000,000 of the Company or
any Significant Subsidiary (including a default with respect to Debt
Securities of any series other than such series) or under any mortgage,
indenture or instrument under which there may be issued or by which there
may be secured or evidenced any such indebtedness for money borrowed by the
Company or any Significant Subsidiary (including the Indenture), whether
such indebtedness is existing or shall thereafter be created, and, if not
already matured in accordance with its terms, such indebtedness has been
accelerated, without such involuntary acceleration having been rescinded or
annulled within a period of 15 days after there shall have 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 aggregate
principal amount of the Debt Securities of such series then Outstanding, a
written notice specifying such default and requiring the Company to cause
such acceleration to be rescinded or annulled and stating that such notice
is a "Notice of Default" under the Indenture; PROVIDED, HOWEVER, that, if,
prior to the entry of judgment in favor of the Trustee for payment of the
Debt Securities of such series, such default shall be remedied or cured by
the Company or waived by the holders of such indebtedness, then the Event of
Default under the Indenture by reason thereof shall be deemed likewise to
have been thereupon remedied, cured or waived without any action on the part
of the Trustee or any of the Holders; or
(6) a court having jurisdiction in the premises shall enter a decree or
order for relief in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law, or appointing a receiver, liquidator,
assignee, custodian, trustee or sequestrator (or similar official) of the
Company or for all or substantially all of its property or ordering the
winding up or liquidation of its affairs, and such decree or order shall
remain unstayed and in effect for a period of 90 consecutive days; or
(7) the Company shall commence a voluntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law, or consent to the entry of an order for relief in an
involuntary case under any such law, or consent to the appointment or taking
possession by a receiver, liquidator, assignee, custodian, trustee or
sequestrator (or similar official) of the Company or for all or
substantially all of its property, or make any general assignment for the
benefit of creditors, or the admission by the Company in writing of its
inability to pay its debts generally as they become due; or
(8) any other Event of Default provided with respect to Debt Securities
of such series. (Section 501)
The Indenture provides that the Trustee may withhold notice to the holders
of Debt Securities of a series of any default (except payment defaults on any
Debt Securities of that series ) if it determines in good faith that the
withholding of such notice is in the interests of the holders of Debt Securities
of such series. (Section 602)
If an Event of Default with respect to Debt Securities of any series at the
time Outstanding occurs and is continuing, then, and in each and every such
case, unless the principal of all of the Debt Securities of such series shall
have already become due and payable, either the Trustee or the holders of not
less than 25% in aggregate principal amount of the Debt Securities of such
series then Outstanding, by notice in writing to the Company (and to the Trustee
if given by Holders), may declare the entire principal amount (or, if the Debt
Securities of such series are Original Issue Discount Securities (as defined in
the Indenture), such portion of the principal as may be specified in the terms
of such series) of all of the Debt
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Securities of such series and any premium and interest accrued thereon to be due
and payable immediately, and upon any such declaration such principal amount (or
specified amount) and any premium and interest accrued thereon shall become
immediately due and payable.
However, at any time after a declaration of acceleration with respect to
Debt Securities of any series has been made, but before a judgment or decree
based on such acceleration has been obtained, the Holders of a majority in
principal amount of Debt Securities of that series then Outstanding may, under
certain circumstances, rescind and annual such acceleration. (Section 502) For
information as to waiver of defaults, see "--Modification and Waiver."
Reference is made to the Prospectus Supplement relating to each series of
Debt Securities which are Discount Securities for the particular provisions
relating to acceleration of the Maturity of a portion of the principal amount of
such Discount Securities upon the occurrence of an Event of Default and the
continuation thereof.
No holder of any Debt Security of any series will have any right to
institute any proceeding with respect to the Indenture, or for any remedy under
the Indenture, unless (i) such holder has previously given written notice to the
Trustee of a continuing event of default with respect to the Debt Securities of
such series; (ii) the holders of at least 25% in aggregate principal amount of
Debt Securities of such series then Outstanding have made a written request and
offered reasonable indemnity to the Trustee to institute such proceeding; (iii)
the Trustee has failed to institute any such proceeding within 60 days after its
receipt of such notice, request and offer and (iv) 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 Debt
Securities of such series then Outstanding. No one or more holders will have any
right under any provision of the Indenture to affect, disturb or prejudice the
rights of any other holder of Debt Securities or to obtain priority or
preference over any other holders, or to enforce any right under the Indenture
except in the manner provided in the Indenture and for the equal and ratable
benefit of all the holders of Outstanding Debt Securities. (Section 507)
The Indenture provides that, subject to the duty of the Trustee during
default to act with the required standard of care, the Trustee will be under no
obligation to exercise any of its rights or powers under the Indenture at the
request or direction of any of the Holders, unless such Holders shall have
offered to the Trustee reasonable indemnity. (Section 603) Subject to such
provisions for indemnification of the Trustee, the Holders of a majority in
principal amount of the Debt Securities of that series then Outstanding 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 the Debt Securities of that series,
unless the Trustee shall determine that the action specified would be in
conflict with any rule or law or the Indenture or would be unduly prejudicial to
the interests of the holders of Debt Securities of such series not joining in
such direction. (Section 512)
The Company is required to furnish to the Trustee annually a statement as to
the performance by the Company of certain of its obligations under the Indenture
and as to any default in such performance. (Section 1006)
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MODIFICATION AND WAIVER
Modifications and amendments of the Indenture may be made by the Company and
the Trustee with the consent of the Holders of a majority in principal amount of
the Outstanding Securities of each series affected thereby (each such series
voting as a single class); PROVIDED, HOWEVER, that no such modification or
amendment may, without the consent of the Holder of each Outstanding Security
affected thereby, (a) change the Stated Maturity of the principal, or any
installment of principal of or interest on, any Security, (b) reduce the
principal amount thereof, or reduce any premium thereof or change the time of
payment of any premium thereon, (c) reduce the rate or change the time of
payment of interest thereon, if any, (d) reduce any amount payable on redemption
of any such Security (if any), (e) reduce the Overdue Rate thereof, (f) change
the place or Currency of payment of principal of, or any premium or interest
thereon, (g) reduce the amount of principal of any Original Issue Discount
Security payable upon acceleration of the Maturity thereof or the amount thereof
provable in bankruptcy, (h) impair, if applicable, any right of repayment at the
option of the Holder, (i) impair the right to institute suit for the enforcement
of any payment on or with respect to any Security, or (j) reduce the percentage
in principal amount of Outstanding Securities of any series, the consent of the
Holders of which is required for modification or amendment of the Indenture or
for waiver of compliance with certain provisions of the Indenture or for waiver
of certain defaults. (Section 902)
The Holders of a majority in aggregate principal amount of the Outstanding
Securities of any series may on behalf of the Holders of all Debt Securities of
that series waive, insofar as that series is concerned, compliance by the
Company with certain restrictive provisions of the Indenture. (Section 1007)
Prior to any declaration of acceleration, the Holders of a majority in principal
amount of the Outstanding Securities of any series may, on behalf of the Holders
of all Debt Securities of that series, waive any past default under the
Indenture with respect to Debt Securities of that series, except a default not
theretofore cured (i) in the payment of the principal of (or premium, if any) or
interest on any Debt Securities of that series or (ii) in respect of any
provision which under the Indenture cannot be modified or amended without the
consent of the Holder of each Outstanding Security of that series affected.
(Section 513)
The Indenture contains provisions permitting the Company and the Trustee to
enter into one or more supplemental indentures without the consent of the
Holders of any of the Debt Securities for any of the following purposes: (i) to
evidence the succession of another corporation to the Company and the assumption
of the covenants of the Company by a successor to the Company; (ii) to add to
the covenants of the Company for the benefit of the holders of any series of
Debt Securities or surrender any right or power of the Company; (iii) to add
additional Events of Default with respect to any series of Debt Securities; (iv)
to add to, change or eliminate any provision affecting Debt Securities not yet
issued; (v) to secure the Debt Securities; (vi) to establish the form or terms
of Debt Securities; (vii) to evidence and provide for a successor Trustee; and
(viii) to cure any ambiguity or correct any mistake or defect or supplement any
inconsistent provision or to make any other provisions with respect to matters
or questions arising under the Indenture, provided that such action does not
adversely affect the interests of any Holder of Debt Securities of any series
then Outstanding. (Section 901)
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company may not consolidate with or merge into any Person, or convey,
transfer or lease all or substantially all of its assets to any Person, unless
(i) the Person (if other than the Company) formed by such consolidation or into
which the Company is merged or which acquires or leases all or substantially all
the assets of the Company is organized and existing under the laws of the United
States, any state thereof or the District of Columbia and expressly assumes all
of the Company's obligations under the Debt Securities and under the Indenture,
(ii) immediately after giving effect to such transaction no Event of Default,
and no event which, after notice or lapse of time or both, would become an Event
of Default, shall have occurred and be continuing and (iii) the Company has
delivered to the Trustee an officers' certificate and opinion of counsel, each
stating that the transaction complies with these conditions. (Section 801)
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In the event of any such consolidation, merger, conveyance or transfer, the
Indenture provides that, if any Principal Property or any share of stock or Debt
of any Significant Subsidiary would thereupon become subject to any Mortgage,
all Senior Securities then Outstanding will be secured, as to such Principal
Property or such share of stock or Debt, equally and ratably with (or prior to)
the Debt that upon the occurrence of such transaction would become secured by
such Mortgage, unless such Mortgage could be created under the Indenture with
equally and ratably securing such Debt Securities. (Section 803)
COVENANT DEFEASANCE AND DEFEASANCE
If the Company shall irrevocably deposit with the Trustee, in trust at or
before maturity or redemption of the Debt Securities of any series, money and/or
Government Obligations (as defined in the Indenture) that, through the payment
of principal and interest in accordance with their terms, will provide funds
sufficient, without reinvestment, to pay when due the principal of, premium (if
any) and interest, if any, on such Debt Securities and any mandatory sinking
fund or analogous payments thereon, on the scheduled due dates therefor, then
the Company shall be released from (i) in the case of Senior Securities of any
such series, its obligations under Sections 1004 and 1005 of the Indenture
(being the restrictions described herein under "Limitations on Secured Debt" and
"Limitations on Sales and Leasebacks") or (ii) in the case of Senior Securities
or Subordinated Securities of any such series, its obligations with respect to
any other covenant ("covenant defeasance"), and any omission to comply with such
obligations will not constitute an Event of Default with respect to such Debt
Securities. (Sections 1303 and 1304). Upon the deposit of money or securities as
contemplated in the preceding sentence, the Company may elect to defease and be
discharged from any and all obligations with respect to all of or a portion of a
particular series of Debt Securities (except for obligations (a) to register the
transfer of or exchange Securities of such series and any related coupons; (b)
to replace temporary or mutilated, destroyed, lost or stolen Securities of such
series and any related coupons; (c) to maintain an office or agency in respect
of Securities of such series and any related coupons; and (d) to hold moneys for
payment in trust) ("defeasance"). (Section 1302)
Covenant defeasance or defeasance of Debt Securities of any series is
subject to the satisfaction of certain additional conditions, including among
others: (1) the absence of an Event of Default or event which, with notice or
lapse of time, would become an Event of Default at the date of the deposit, (2)
such covenant defeasance or defeasance will not cause any Debt Securities of
such series then listed on any nationally recognized securities exchange to be
delisted, and (3) such covenant defeasance or defeasance will not result in a
breach of, or constitute a default under, any agreement or instrument by which
the Company is bound. (Section 1304)
If indicated in the Prospectus Supplement relating to a series of Debt
Securities, Government Obligations may include obligations of the government,
and obligations guaranteed by such government, issuing the Currency in which
Debt Securities of such series are payable. (Section 1304)
In order to exercise its defeasance option, the Company must deliver to the
applicable Trustee an opinion of counsel stating that (A) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling, or (B) since the date of the execution of the Indenture, there has been
a change in the applicable Federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the Holders of such
Debt Securities will not recognize income, gain or loss for Federal income tax
purposes as a result of such defeasance and will be subject to Federal income
tax on the same amounts, in the same manner and at the same time as would have
been the case if such defeasance had not occurred. (Section 1304)
No opinion of counsel is required in order for the Company to exercise its
covenant defeasance option, but under current Federal income tax law, unless
accompanied by other changes in the terms of the Debt Securities, covenant
defeasance should not be treated as a taxable event to the Holders of the Debt
Securities. In the event the Company effects covenant defeasance with respect to
any Debt Securities and
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any related coupons and such Debt Securities and related coupons are declared
due and payable because of the occurrence of any Event of Default (other than
(a) in the case of Senior Securities, the Event of Default described in clause
(4) under "Events of Default" with respect to Sections 1004 and 1005 of the
Indenture (which Sections would no longer be applicable to such Senior
Securities or coupons) or (b) an Event of Default described in clause (4) or (8)
under "Events of Default" with respect to any other covenant as to which there
has been defeasance), the realizable value of the money and Government
Obligations on deposit with the Trustee may not be sufficient to pay amounts due
on such Debt Securities and coupons at the time of the acceleration resulting
from such Event of Default, in that the required deposit with the Trustee is
based on scheduled cash flows rather than market value, which will vary
depending upon interest rates and other factors. However, the Company would
remain liable to make payment of such shortfall amounts due at the time of
acceleration.
The Prospectus Supplement may further describe the provisions, if any,
permitting such defeasance or covenant defeasance, including any modifications
to the provisions described herein.
BOOK-ENTRY SECURITIES
Debt Securities of a series may be issued in whole or in part in global form
that will be deposited with, or on behalf of, a depository identified in the
Prospectus Supplement. Global securities may be issued in either registered or
bearer form and in either temporary or permanent form (each a "Global
Security"). Unless otherwise provided in the Prospectus Supplement, Debt
Securities that are represented by a Global Security will be issued in
denominations of $1,000 and any integral multiple thereof, and will be issued in
registered form only, without coupons. Payments of principal of (and premium, if
any) and interest, if any, on Debt Securities represented by a Global Security
will be made by the Company to the applicable Trustee and then by such Trustee
to the depository.
The Company anticipates that any Global Security in registered form will be
deposited with, or on behalf of, The Depository Trust Company ("DTC"), New York,
New York, that such Global Securities will be registered in the name of DTC's
nominee, and that the following provisions will apply to the depository
arrangements with respect to any such Global Securities. Additional or differing
terms of the depository arrangements will be described in the Prospectus
Supplement.
So long as DTC or its nominee is the registered owner of a Global Security,
DTC or its nominee, as the case may be, will be considered the sole holder of
the Debt Securities represented by such Global Security for all purposes under
the Indenture. Except as provided below, owners of beneficial interests in a
Global Security will not be entitled to receive physical delivery of Debt
Securities in certificated form and will not be considered the owners or holders
thereof under the applicable Indenture. The laws of some states require that
certain purchasers of securities take physical delivery of such securities in
certificated form; accordingly, such laws may limit the transferability of
beneficial interests in a Global Security.
If (i) DTC is at any time unwilling or unable to continue as depository and
a successor depository is not appointed by the Company within 90 days following
notice to the Company, (ii) the Company determines, in its sole discretion, not
to have any Debt Securities represented by one or more Global Securities, or
(iii) an Event of Default under the Indenture has occurred and is continuing,
then the Company will issue individual Debt Securities in certificated form in
exchange for beneficial interests in such Global Securities. In any such
instance, an owner of a beneficial interest in a Global Security will be
entitled to physical delivery of individual Debt Securities in certificated form
of like tenor and rank, equal in principal amount to such beneficial interest
and to have such Debt Securities in certificated form registered in its name.
Unless otherwise provided in the Prospectus Supplement, Debt Securities so
issued in certificated form will be issued in denominations of $1,000 or any
integral multiple thereof, and will be issued in registered form only, without
coupons.
The following is based on information furnished by DTC:
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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. (DTC's partnership nominee). One fully registered
Security certificate will be issued with respect to each $200 million of
principal amount of the Debt Securities of a series, and an additional
certificate will be issued with respect to any remaining principal amount of
such series.
DTC is a limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the New York
Banking Law, a member of the Federal Reserve System, a "clearing
corporation" within the meaning of the New York Uniform Commercial Code, and
a "clearing agency" registered pursuant to the provisions of Section 17A of
the Securities Exchange Act of 1934, DTC holds securities that its
participants ("Participants") deposit with DTC. DTC also facilitates the
settlement among Participants of securities transactions, such as transfers
and pledges, in deposited securities through electronic computerized
book-entry changes in Participant's accounts, thereby eliminating the need
for physical movement of securities certificates. Direct Participants
include securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations ("Direct Participants"). DTC is
owned by a number of its Direct Participants and by the New York Stock
Exchange, Inc., the American Stock Exchange, Inc. and the National
Association of Securities Dealers, Inc. Access to the DTC system is also
available to others such as securities brokers and dealers, banks and trust
companies that clear through or maintain a custodial relationship with a
Direct Participant, either directly or indirectly ("Indirect Participants").
The rules applicable to DTC and its Participants are on file with the
Commission.
Purchases of Debt Securities under the DTC system must be made by or
through Direct Participants, which will receive a credit for the Debt
Securities on DTC's records. The ownership interest of each actual purchaser
of each Security ("Beneficial Owner") is in turn recorded on the Direct and
Indirect Participants' records. A Beneficial Owner does not receive written
confirmation from DTC of its purchase, but such Beneficial Owner is expected
to receive a written confirmation providing details of the transaction, as
well as periodic statements of its holdings, from the Direct or Indirect
Participant through which such Beneficial Owner entered into the
transaction. Transfers of ownership interests in Debt Securities are
accomplished by entries made on the books of Participants acting on behalf
of Beneficial Owners. Beneficial Owners do not receive certificates
representing their ownership interests in Debt Securities, except in the
event that use of the book-entry system for the Debt Securities is
discontinued.
To facilitate subsequent transfers, the Debt Securities are registered
in the name of DTC's partnership nominee, Cede & Co. The deposit of the Debt
Securities with DTC and their registration in the name of Cede & Co. effects
no change in beneficial ownership. DTC has no knowledge of the actual
Beneficial Owners of the Debt Securities; DTC records reflect only the
identity of the Direct Participants to whose accounts Debt Securities are
credited, which may or may not be the Beneficial Owners. The Participants
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
Participants and Indirect Participants to Beneficial Owners are governed by
arrangements among them, subject to any statutory or regulatory requirements
as may be in effect from time to time.
Redemption notices shall 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
such issue to be redeemed.
Neither DTC nor Cede & Co. will consent or vote with respect to the Debt
Securities. Under its usual procedures, DTC mails a proxy (an "Omnibus
Proxy") to the issuer as soon as possible after the record date. The Omnibus
Proxy assigns Cede & Co.'s consenting or voting rights to those Direct
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Participants to whose accounts the Debt Securities are credited on the
record date (identified on a list attached to the Omnibus Proxy).
Payment of principal (and premium, if any) and interest, if any, on the
Debt Securities will be made to DTC. DTC's practice is to credit Direct
Participants' accounts on the payable date in accordance with their
respective holdings as shown on DTC's records unless DTC has reason to
believe that it will not receive payment on the payable date. Payments by
Participants to Beneficial Owners will be governed by standing instructions
and customary practices, as is the case with securities held for the
accounts of customers in bearer form or registered in "street name", and
will be the responsibility of such Participant and not of DTC, the Paying
Agent or the Company, subject to any statutory or regulatory requirements as
may be in effect from time to time. Payment of principal (and premium, if
any) and interest to DTC is the responsibility of the Company or the Paying
Agent, disbursement of such payments to Direct Participants is the
responsibility of DTC, and disbursement of such payments to the Beneficial
Owners is the responsibility of Direct and Indirect Participants.
DTC may discontinue providing its services as securities depository with
respect to the Debt Securities at any time by giving reasonable notice to
the Company or the Paying Agent. Under such circumstances, in the event that
a successor securities depository is not appointed, Security certificates
are required to be printed and delivered.
The Company may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depository). In that event,
Security certificates will be printed and delivered.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources (including DTC) that the Company believes to be
reliable, but the Company takes no responsibility for the accuracy thereof.
Unless stated otherwise in the prospectus supplement, the underwriters or
agents with respect to a series of Debt Securities issued as Global Securities
will be Direct Participants in DTC.
None of the Company, any underwriter or agent, the applicable Trustee or any
Paying Agent will have any responsibility or liability of any aspect of the
records relating to, or payments made on account of beneficial interests in a
Global Security, or for maintaining, supervising or reviewing any records
relating to such beneficial interests.
REGARDING THE TRUSTEE
The Indenture, by reference to Section 315 of the Trust Indenture Act,
provides that, except during the continuance of an Event of Default, the Trustee
shall perform only such duties as are specifically set forth in the Indenture.
During the continuance of any Event of Default, the Trustee shall exercise such
of the rights and powers vested in it under the Indenture and use the same
degree of care and skill in their exercise as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs.
The Trustee may acquire and hold Debt Securities and, subject to certain
conditions, otherwise deal with the Company as if it were not the Trustee under
the Indenture. (Section 605)
The Trustee is a lender under certain of the Company's existing credit
facilities and conducts other banking transactions with the Company in the
ordinary course of the Company's business.
PLAN OF DISTRIBUTION
The Company may sell Debt Securities to or through underwriters and also may
sell Debt Securities directly to purchasers or through agents.
16
<PAGE>
The distribution of the Debt Securities may be effected from time to time in
one or more transactions at a fixed price or prices, which may be changed, or at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
In connection with the sale of Debt Securities, underwriters may receive
compensation from the Company or from purchasers of Debt Securities for whom
they may act as agents in the form of discounts, concessions or commissions.
Underwriters may sell Debt Securities to or through dealers, and such dealers
may receive compensation in the form of discounts, concessions or commissions
from the underwriters and/or commissions from the purchasers for whom they may
act as agents. Underwriters, dealers and agents that participate in the
distribution of Debt Securities may be deemed to be underwriters, and any
discounts or commissions received by them from the Company and any profit on the
resale of Debt Securities by them may be deemed to be underwriting discounts and
commissions, under the Securities Act. Any such underwriter or agent will be
identified, and any such compensation received from the Company will be
described, in the Prospectus Supplement.
Under agreements which may be entered into by the Company, underwriters and
agents who participate in the distribution of Debt Securities may be entitled to
indemnification by the Company against certain liabilities, including
liabilities under the Securities Act.
LEGAL MATTERS
The validity of the Debt Securities will be passed upon for the Company by
Dewey Ballantine, New York, New York, and may be passed upon for any
underwriters by Shearman & Sterling, New York, New York.
EXPERTS
The consolidated financial statements and schedules of the Company at
December 31, 1995 and 1994 and for each of the two years in the period ended
December 31, 1995, incorporated by reference herein from the Company's Annual
Report on Form 10-K, have been audited by Arthur Andersen LLP, public
accountants, as set forth in their report thereon included therein and
incorporated herein by reference. The consolidated financial statements and
schedules of the Company for the year ended December 31, 1993, incorporated by
reference herein from the Company's Annual Report on Form 10-K, have been
audited by KPMG Peat Marwick LLP, independent auditors, as set forth in their
report thereon included therein and incorporated herein by reference. Such
consolidated financial statements and schedules are incorporated herein by
reference in reliance upon the authority of said firms as experts in accounting
and auditing in giving said reports.
17
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee............ $90,909.09
Printing and engraving......................................... 65,000.00
Accounting services............................................ 30,000.00
Legal services................................................. $100,000.00
Fees and expenses of Trustee................................... 5,000.00
Rating agency fees............................................. 60,000.00
Expenses of qualification under state blue sky laws............ 3,000.00
Miscellaneous.................................................. 46,090.91
----------
Total...................................................... $400,000.00
</TABLE>
- ------------------------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "DGCL") provides
for the indemnification of officers and directors under certain circumstances
against expenses (including attorneys' fees, judgments, fines and amounts paid
in settlement) actually and reasonably incurred in connection with the defense
or settlement of any threatened, pending or completed legal proceedings in which
he is involved by reason of the fact that he is or was a director or officer of
the Company if he acted in good faith and in a manner that he reasonably
believed to be in or not opposed to the best interests of the Company, and, in
respect to the criminal actions or proceedings, if he had no reasonable cause to
believe that his conduct was unlawful. The Certificate of the Company provides
for indemnification of its officers and directors to the full extent authorized
by law.
Pursuant to Section 102(b)(7) of the DGCL, the Company's Certificate of
Incorporation (the "Certificate") provides that the directors of the Company,
individually or collectively, shall not be held personally liable to the Company
or its stockholders for monetary damages for breaches of fiduciary duty as
directors, except that any director shall remain liable (i) for any breach of
the director's fiduciary duty of loyalty to the Company or its stockholders,
(ii) for acts or omissions not in good faith or involving intentional misconduct
or a knowing violation of law, (iii) for liability under Section 174 of the DGCL
or (iv) for any transaction from which the director derived an improper personal
benefit.
The Company maintains officers' and directors' liability insurance which
insures against liabilities that the officers and directors of the Company may
incur in such capacities.
Furthermore, the Company, as well as its directors and officers, may be
entitled to indemnification by any underwriters named in the Prospectus
Supplement against certain civil liabilities under the Securities Act under
agreements entered into between the Company and such underwriters.
II-1
<PAGE>
ITEM 16. LIST OF EXHIBITS.
<TABLE>
<C> <S> <C>
1.1 -- Form of Underwriting Agreement.
4.1 -- Form of Indenture.
5.1 -- Opinion of Dewey Ballantine as to legality of the securities being registered.
12.1 -- Statement Regarding Computation of Ratio of Earnings to Fixed Charges.
23.1 -- Consent of Arthur Andersen LLP
23.2 -- Consent of KPMG Peat Marwick LLP
23.3 -- Consent of Dewey Ballantine (contained in Exhibit 5.1).
24.1 -- Power of Attorney (included on signature page).
25.1 -- Form T-1 Statement of Eligibility and Qualification of Trustee under the Trust
Indenture Act of 1939.
</TABLE>
ITEM 17. UNDERTAKINGS.
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% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement.
Provided, however, that paragraphs (1)(i) and (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 amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
Registrant pursuant to section 13 or section 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.
(4) 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 that is incorporated by
reference in the registration statement shall be deemed to be a new registration
II-2
<PAGE>
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.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described in Item 15 above, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in 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 of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-3
<PAGE>
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 Syracuse, State of New York, on November 26, 1996.
CARLISLE COMPANIES INCORPORATED
By: /s/ STEPHEN P. MUNN
-----------------------------------------
Stephen P. Munn
CHIEF EXECUTIVE OFFICER AND
CHAIRMAN OF THE BOARD
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints Steven P. Munn and Robert J. Ryan, Jr. his true
and lawful attorneys-in-fact and agents, each acting alone, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any or all amendments to this Registration
Statement, including post-effective amendments, and to file the same, with all
exhibits thereto, and all documents in connection therewith, with the Securities
and Exchange Commission, granting unto attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, and hereby ratifies and
confirms all that said attorney-in-fact and agents, each acting alone, or their
substitute or substitutes, may lawfully do or cause to be done.
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 dates indicated.
NAME TITLE DATE
- ------------------------------ -------------------------- -------------------
/s/ STEPHEN P. MUNN Chief Executive Officer
- ------------------------------ and Chairman of the November 26, 1996
Stephen P. Munn Board
/s/ DENNIS J. HALL
- ------------------------------ President, Director November 26, 1996
Dennis J. Hall
Vice President, Treasurer
/s/ ROBERT J. RYAN, JR. and Chief Financ Officer
- ------------------------------ (principal financial November 26, 1996
Robert J. Ryan, Jr. officer)
/s/ SCOTT A. KINGSLEY Vice President and
- ------------------------------ Controller (principal November 26, 1996
Scott A. Kingsley accounting officer)
II-4
<PAGE>
<TABLE>
<CAPTION>
NAME TITLE DATE
- ------------------------------ -------------------------- -------------------
<S> <C> <C>
/s/ HENRY J. FORREST
- ------------------------------ Director November 26, 1996
Henry J. Forrest
/s/ PETER L.A. JAMIESON
- ------------------------------ Director November 26, 1996
Peter L.A. Jamieson
/s/ PETER F. KROGH
- ------------------------------ Director November 26, 1996
Peter F. Krogh
/s/ MAGALEN O. BRYANT
- ------------------------------ Director November 26, 1996
Magalen O. Bryant
/s/ DONALD G. CALDER
- ------------------------------ Director November 26, 1996
Donald G. Calder
/s/ PAUL J. CHOQUETTE, JR.
- ------------------------------ Director November 26, 1996
Paul J. Choquette, Jr.
/s/ GEORGE L. OHRSTROM, JR.
- ------------------------------ Director November 26, 1996
George L. Ohrstrom, Jr.
/s/ ERIBERTO R. SCOCIMARA
- ------------------------------ Director November 26, 1996
Eriberto R. Scocimara
</TABLE>
II-5
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIALLY
NUMBER EXHIBIT NUMBERED PAGE
- ----------- ---------------------------------------------------------------------------------------- -----------------
<C> <C> <S> <C>
1.1 -- Form of Underwriting Agreement.
4.1 -- Form of Indenture.
5.1 -- Opinion of Dewey Ballantine as to legality of the securities being registered.
12.1 -- Statement Regarding Computation of Ratio of Earnings to Fixed Charges.
23.1 -- Consent of Arthur Andersen LLP.
23.2 -- Consent of KPMG Peat Marwick LLP.
23.3 -- Consent of Dewey Ballantine (contained in Exhibit 5.1).
24.1 -- Power of Attorney (included on signature page).
25.1 -- Form T-1 Statement of Eligibility and Qualification of Trustee under the Trust Indenture
Act of 1939.
</TABLE>
<PAGE>
EXHIBIT 12.1
CARLISLE COMPANIES INC.
EARNINGS TO FIXED CHARGES RATIO
(000'S)
<TABLE>
<CAPTION>
9 MONTHS
1996 1995 1994 1993 1992 1991
----------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
Earnings to Fixed Charges without majority-owned,
unconsolidated subsidiaries and joint ventures....... 11.15 11.25 11.70 10.03 7.78 3.03
Earnings to Fixed Charges including effect of
proportionate share of majority-owned, unconsolidated
subsidiaries and joint ventures...................... 8.22 8.70 9.73 9.89 7.78 3.03
CARLISLE
Net Earnings Before Tax............................... 70,489 72,858 58,791 46,912 39,720 10,561
Addback: Losses (earnings) of less than
majority-owned, unconsolidated subsidiaries....... (11) 548 478 179 154 --
----------- --------- --------- --------- --------- ---------
70,478 73,406 59,269 47,091 39,874 10,561
Interest Expense...................................... 5,987 6,075 4,647 4,310 5,174 4,376
Operating Leases...................................... 956 1,085 891 902 708 817
Total Fixed Charges................................... 6,943 7,160 5,539 5,213 5,882 5,193
MAJORITY-OWNED, UNCONSOLIDATED SUBSIDIARIES AND JOINT
VENTURES
Net Earnings Before Tax............................... 1,647 1,772 (165) (18)
Total Fixed Charges................................... 4,927 4,177 2,067 140
</TABLE>
- ------------------------
Note 1 -- 1991 includes a $18.7 million restructuring charge.
Note 2 -- Operating leases was obtained by taking 1/3 of total rents paid in
each of the years.
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference into this registration statement on Form S-3, of our report dated
January 29, 1996 on the consolidated financial statements of Carlisle Companies
Incorporated and subsidiaries as of December 31, 1995 and 1994 for the years
then ended, and to the reference to our firm as experts in this registration
statement.
Arthur Andersen LLP
/s/ ARTHUR ANDERSEN LLP
New York, New York
November 25, 1996
<PAGE>
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
THE BOARD OF DIRECTORS
CARLISLE COMPANIES INCORPORATED
We consent to the incorporation by reference in the registration statement
on Form S-3 of Carlisle Companies Incorporated of our report dated February 2,
1994, relating to the consolidated balance sheets of Carlisle Companies
Incorporated and subsidiaries as of December 31, 1993 and 1992, and the related
consolidated statements of earnings, shareholders' equity, and cash flows for
each of the years in the three-year period ended December 31, 1993, which report
appears in the December 31, 1993 annual report on Form 10-K of Carlisle
Companies Incorporated.
We also consent to the reference to our firm under the heading "Experts" in
the registration statement.
/s/ KPMG PEAT MARWICK LLP
Syracuse, New York
November 25, 1996
<PAGE>
CARLISLE COMPANIES INCORPORATED
Debt Securities
Underwriting Agreement
[Date]
Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
From time to time Carlisle Companies Incorporated, a Delaware
corporation (the "Company"), proposes to enter into one or more Pricing
Agreements (each a "Pricing Agreement") in the form of Annex I hereto, with such
additions and deletions as the parties thereto may determine, and, subject to
the terms and conditions stated herein and therein, to issue and sell to the
firms named in Schedule I to the applicable Pricing Agreement (such firms
constituting the "Underwriters" with respect to such Pricing Agreement and the
securities specified therein) certain of its debt securities (the "Securities"),
which may be senior debt securities or subordinated debt securities, specified
in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the "Designated Securities").
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement. As used herein, "Significant Subsidiaries" shall mean those
subsidiaries of the Company named in Annex III hereto, and any other subsidiary
of the Company which is a "significant subsidiary" as defined in Rule 405 of
Regulation C under the Securities Act of 1933, as amended (the "Act").
1. Particular sales of Designated Securities may be made from time
to time to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to an Underwriter or Underwriters who act without any firm
being designated as its or their representatives. This Underwriting
<PAGE>
2
Agreement shall not be construed as an obligation of the Company to sell any of
the Securities or as an obligation of any of the Underwriters to purchase the
Securities. The obligation of the Company to issue and sell any of the
Securities and the obligation of any of the Underwriters to purchase any of the
Securities shall be evidenced by the Pricing Agreement with respect to the
Designated Securities specified therein. Each Pricing Agreement shall specify
the aggregate principal amount of such Designated Securities, the initial public
offering price of such Designated Securities, the purchase price to the
Underwriters of such Designated Securities, the names of the Underwriters of
such Designated Securities, the names of the Representatives of such
Underwriters and the principal amount of such Designated Securities to be
purchased by each Underwriter and shall set forth the date, time and manner of
delivery of such Designated Securities and payment therefor. The Pricing
Agreement shall also specify (to the extent not set forth in the Indenture and
the registration statement and prospectus with respect thereto) the terms of
such Designated Securities. A Pricing Agreement shall be in the form of an
executed writing (which may be in counterparts), and may be evidenced by an
exchange of telegraphic communications or any other rapid transmission device
designed to produce a written record of communications transmitted. The
obligations of the Underwriters under this Agreement and each Pricing Agreement
shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-____) in
respect of the Securities has been filed with the Securities and Exchange
Commission (the "Commission"); such registration statement and any
post-effective amendment thereto, each in the form heretofore delivered or
to be delivered to the Representatives and, excluding exhibits to such
registration statement, but including all documents incorporated by
reference in the prospectus contained therein, to the Representatives for
each of the other Underwriters, have been declared effective by the
Commission in such form; no other document with respect to such
registration statement or document incorporated by reference therein has
heretofore been filed or transmitted for filing with the Commission (other
than prospectuses filed pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Act, each in the form heretofore
delivered to the Representatives); and no stop order suspending the
effectiveness of such registration statement has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in such registration
statement or filed with the Commission pursuant to Rule 424(a) under the
Act, is hereinafter called a "Preliminary Prospectus"; the various parts
of such registration statement, including all exhibits thereto and the
documents incorporated by reference in the prospectus contained in the
registration statement at the time such part of the registration statement
became effective, but excluding Form T-1, each as amended at the time such
part of the registration statement became effective, are hereinafter
collectively called the
<PAGE>
3
"Registration Statement"; the prospectus relating to the Securities, in
the form in which it has most recently been filed, or transmitted for
filing, with the Commission on or prior to the date of this Agreement,
being hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to the
applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the date
of such Preliminary Prospectus or Prospectus, as the case may be, under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report of the
Company filed pursuant to Sections 13(a) or 15(d) of the Exchange Act
after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement; and any reference
to the Prospectus as amended or supplemented shall be deemed to refer to
the Prospectus as amended or supplemented in relation to the applicable
Designated Securities in the form in which it is filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 5(a)
hereof, including any documents incorporated by reference therein as of
the date of such filing);
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement
thereto, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects to
the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and
in conformity with information furnished in writing to the Company by an
Underwriter of Designated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to such
Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Trust
<PAGE>
4
Indenture Act of 1939, as amended (the "Trust Indenture Act") and the
rules and regulations of the Commission thereunder and do not and will
not, as of the applicable effective date as to the Registration Statement
and any amendment thereto and as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto, contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter of Designated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to such
Securities;
(d) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus; and, since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, there has not been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any material
adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries, considered as a whole, otherwise than as set forth or
contemplated in the Prospectus;
(e) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus; and the Company has
been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other jurisdiction
in which it owns or leases properties or conducts any business so as to
require such qualification, except to the extent that the failure to so
qualify would not have a material adverse effect on the financial
condition or results of operations of the Company and its subsidiaries,
considered as a whole; and each subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, with power and
authority (corporate and other) to own its properties and conduct its
business as presently conducted, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under
the laws of each other jurisdiction in which it owns or leases properties
or conducts any business so as to require such qualification, except to
the extent that the failure to so qualify would not have a material
adverse effect on the financial condition or results of operations of the
Company and its subsidiaries, considered as a whole;
<PAGE>
5
(f) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable; all of the issued shares of capital stock of each
Significant Subsidiary have been duly and validly authorized and issued,
are fully paid and non-assessable, and the Company owns, directly or
indirectly, all of the outstanding shares of capital stock of each
Significant Subsidiary, free and clear of all liens, encumbrances,
equities or claims;
(g) The Securities have been duly authorized, and, when Designated
Securities are issued and delivered pursuant to this Agreement and the
Pricing Agreement with respect to such Designated Securities, such
Designated Securities will have been duly executed, authenticated, issued
and delivered and will constitute valid and legally binding obligations of
the Company entitled to the benefits provided by the Indenture, which will
be substantially in the form filed as an exhibit to the Registration
Statement; the Indenture has been duly authorized and duly qualified under
the Trust Indenture Act and, at the Time of Delivery for such Designated
Securities (as defined in Section 4 hereof), the Indenture will constitute
a valid and legally binding instrument, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the
Indenture conforms, and the Designated Securities will conform, to the
descriptions thereof contained in the Prospectus as amended or
supplemented with respect to such Designated Securities;
(h) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture, this
Agreement and any Pricing Agreement, and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under (in each case material to the Company and its
subsidiaries, considered as a whole), any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or
any of its subsidiaries is bound or to which any of the property or assets
of the Company or any of its subsidiaries is subject, nor will such action
result in any violation of the provisions of the Certificate of
Incorporation or By-laws of the Company or any of its subsidiaries or any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the issue and sale of
the Securities or the consummation by the Company of the transactions
contemplated by this Agreement or any Pricing Agreement or the Indenture,
except such as have been, or will have been prior to each Time of
Delivery, obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as
may be required
<PAGE>
6
under state securities or Blue Sky laws in connection with the purchase
and distribution of the Securities by the Underwriters;
(i) The statements set forth in the Prospectus under the caption
"Description of Debt Securities", insofar as they purport to constitute a
summary of the terms of the Securities, and under the captions "Plan of
Distribution" and "Underwriting", insofar as they purport to describe the
provisions of the laws and documents referred to therein, are accurate,
complete and fair;
(j) Neither the Company nor any of its subsidiaries is (i) in
violation of its Certificate of Incorporation or By-laws or (ii) in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound, except, in the
case of clause (i), with respect to the Company's subsidiaries which are
not Significant Subsidiaries, where such violation would not have a
material adverse effect on the financial condition or results of
operations of the Company and its subsidiaries, considered as a whole, and
except, in the case of clause (ii), where such default would not have a
material adverse effect on the financial condition or results of
operations of the Company and its subsidiaries, considered as a whole;
(k) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate
have a material adverse effect on the current or future consolidated
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries; and, to the best of the Company's knowledge,
no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(l) The Company is not and, after giving effect to the offering and
sale of the Securities, will not be an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(m) Neither the Company nor any of its affiliates does business with
the government of Cuba or with any person or affiliate located in Cuba
within the meaning of Section 517.075, Florida Statutes;
(n) Arthur Andersen LLP, who have certified certain financial
statements of the Company and its subsidiaries, and KPMG Peat Marwick LLP,
who have certified certain financial statements of the Company and its
subsidiaries, are each
<PAGE>
7
independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder; and
(o) The Company and its subsidiaries (i) are in compliance with any
and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required
permits, licenses or other approvals or failure to comply with the terms
and conditions of such permits, licenses or approvals would not, singly or
in the aggregate, have a material adverse effect on the financial
condition or results of operations of the Company and its subsidiaries,
considered as a whole.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
such Designated Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter pursuant to
the Pricing Agreement relating thereto, in the form specified in such Pricing
Agreement, and in such authorized denominations and registered in such names as
the Representatives may request upon at least thirty-six hours' prior notice to
the Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by wire or interbank
transfer to an account specified by the Company in immediately available funds,
all in the manner and at the place and time and date specified in such Pricing
Agreement or at such other place and time and date or by such other method of
payment as the Representatives and the Company may agree upon in writing, such
time and date being herein called the "Time of Delivery" for such Securities.
5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) To prepare the Prospectus as amended or supplemented in relation
to the applicable Designated Securities in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second
business day following the execution and delivery of the Pricing Agreement
relating to the applicable Designated Securities or, if applicable, such
earlier time as may be required by Rule 424(b); to make no further
amendment or any supplement to the Registration Statement or Prospectus as
amended or supplemented after the date of the Pricing Agreement relating to
such
<PAGE>
8
Securities and prior to the Time of Delivery for such Securities which
shall be disapproved by the Representatives for such Securities promptly
after reasonable notice thereof; to advise the Representatives promptly of
any such amendment or supplement after such Time of Delivery and furnish
the Representatives with copies thereof; to file promptly all reports and
any definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the Exchange Act for so long as the delivery of a prospectus is required
in connection with the offering or sale of such Securities, and during such
same period to advise the Representatives, promptly after it receives
notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed with the Commission, of
the issuance by the Commission of any stop order or of any order preventing
or suspending the use of any prospectus relating to the Securities, of the
suspension of the qualification of such Securities for offering or sale in
any jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any such stop order or of
any such order preventing or suspending the use of any prospectus relating
to the Securities or suspending any such qualification, to promptly use its
best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of such Securities,
provided that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service
of process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus as
amended or supplemented in such quantities as the Representatives may from
time to time reasonably request, and, if the delivery of a prospectus is
required at any time in connection with the offering or sale of the
Securities and if at such time any event shall have occurred as a result
of which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus or
to file under the Exchange Act any document incorporated by reference in
the Prospectus in order to comply with the Act, the Exchange Act or the
Trust Indenture Act, to notify the Representatives and upon their request
to file such document and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as the
<PAGE>
9
Representatives may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and
the rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158); and
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and including
the later of (i) the termination of trading restrictions for such
Designated Securities, as notified to the Company by the Representatives
and (ii) the Time of Delivery for such Designated Securities, not to
offer, sell, contract to sell or otherwise dispose of any debt securities
of the Company which mature more than one year after such Time of Delivery
and which are substantially similar to such Designated Securities, without
the prior written consent of the Representatives.
6. The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, any Pricing Agreement, any
Indenture, any Blue Sky and Legal Investment Memoranda, closing documents
(including any compilations thereof) and any other documents in connection with
the offering, purchase, sale and delivery of the Securities; (iii) all expenses
in connection with the qualification of the Securities for offering and sale
under state securities laws as provided in Section 5(b) hereof, including the
reasonable fees and disbursements of counsel for the Underwriters in connection
with such qualification and in connection with the Blue Sky and Legal Investment
Surveys; (iv) any fees charged by securities rating services for rating the
Securities; (v) any filing fees incident to, and the reasonable fees and
disbursements of counsel for the Underwriters in connection with, any required
review by the National Association of Securities Dealers, Inc. of the terms of
the sale of the Securities; (vi) the cost of preparing the Securities; (vii) the
fees and expenses of any Trustee and any agent of any Trustee and the fees and
disbursements of counsel for any Trustee in connection with any Indenture and
the Securities; and (viii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that, except as
provided in this Section, and Sections 8 and 11 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of their counsel,
transfer taxes on
<PAGE>
10
resale of any of the Securities by them, and any advertising expenses connected
with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities
under the Pricing Agreement relating to such Designated Securities shall be
subject, in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such Designated
Securities are, at and as of the Time of Delivery for such Designated
Securities, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance
with Section 5(a) hereof; no stop order suspending the effectiveness of
the Registration Statement or any part thereof shall have been issued and
no proceeding for that purpose shall have been initiated or threatened by
the Commission; and all requests for additional information on the part of
the Commission shall have been complied with to the Representatives'
reasonable satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such opinion or opinions, dated the Time of Delivery for
such Designated Securities, with respect to the incorporation of the
Company, the Designated Securities being delivered at such Time of
Delivery, the Registration Statement, the Prospectus as amended or
supplemented with respect to the Designated Securities, and other related
matters as the Representatives may reasonably request, and such counsel
shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(c) Dewey Ballantine, or other counsel for the Company satisfactory
to the Representatives, shall have furnished to the Representatives their
written opinion, dated the Time of Delivery for such Designated
Securities, in form and substance satisfactory to the Representatives, to
the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware, with power and authority (corporate and other) to
own its properties and conduct its business as described in the
Prospectus as amended or supplemented;
(ii) The Company has an authorized capitalization as set forth
in the Prospectus as amended or supplemented and all of the issued
shares of capital
<PAGE>
11
stock of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification, except to the extent that the failure to so qualify
would not have a material adverse effect on the financial condition
or results of operations of the Company and its subsidiaries,
considered as a whole;
(iv) Each Significant Subsidiary has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, with power and
authority (corporate and other) to own its properties and conduct
its business as presently conducted; each other subsidiary of the
Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of
its incorporation, with power and authority (corporate and other) to
own its properties and conduct its business as presently conducted,
except to the extent that the failure to so qualify would not have a
material adverse effect on the financial condition or results of
operations of the Company and its subsidiaries, considered as a
whole; and each subsidiary of the Company has been duly qualified as
a foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns
or leases properties or conducts any business so as to require such
qualification, except to the extent that the failure to so qualify
would not have a material adverse effect on the financial condition
or results of operations of the Company and its subsidiaries,
considered as a whole; all of the issued shares of capital stock of
each Significant Subsidiary have been duly and validly authorized
and issued, are fully paid and non-assessable, and the Company owns,
directly or indirectly, all of the outstanding shares of capital
stock of each Significant Subsidiary, free and clear of all liens,
encumbrances, equities or claims;
(v) To the best of such counsel's knowledge and other than as
set forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries
is a party or of which any property of the Company or any of its
subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the current or future
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries; and, to the best of
such counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
<PAGE>
12
(vi) This Agreement and the Pricing Agreement with respect to
the Designated Securities have been duly authorized, executed and
delivered by the Company;
(vii) The Designated Securities have been duly authorized,
executed, authenticated, issued and delivered and constitute valid
and legally binding obligations of the Company entitled to the
benefits provided by the Indenture, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to
general equity principles; and the Designated Securities and the
Indenture conform to the descriptions thereof in the Prospectus as
amended or supplemented;
(viii) The Indenture has been duly authorized, executed and
delivered by the parties thereto and constitutes a valid and legally
binding instrument, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to
or affecting creditors' rights and to general equity principles; and
the Indenture has been duly qualified under the Trust Indenture Act;
(ix) The issue and sale of the Designated Securities and the
compliance by the Company with all of the provisions of the
Designated Securities, the Indenture, this Agreement and the Pricing
Agreement with respect to the Designated Securities and the
consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under (in each
case material to the Company and its subsidiaries considered as a
whole), any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument known to such counsel to which the
Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is
subject, nor will such actions result in any violation of the
provisions of the Certificate of Incorporation or By-laws of the
Company or any of its subsidiaries or any statute or any order, rule
or regulation known to such counsel of any court or governmental
agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties;
(x) No consent, approval, authorization, order, registration
or qualification of or with any such court or governmental agency or
body is required for the issue and sale of the Designated Securities
or the consummation by the Company of the transactions contemplated
by this Agreement or such Pricing Agreement or the Indenture, except
such as have been obtained under the Act and the Trust Indenture Act
and such consents,
<PAGE>
13
approvals, authorizations, orders, registrations or qualifications
as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Designated
Securities by the Underwriters;
(xi) Neither the Company nor any of its subsidiaries is (i) in
violation of its Certificate of Incorporation or By-laws or (ii) in
default in the performance or observance of any obligation,
agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its
properties may be bound, except, in the case of clause (i), with
respect to the Company's subsidiaries which are not Significant
Subsidiaries, where such violation would not have a material adverse
effect on the financial condition or results of operations of the
Company and its subsidiaries, considered as a whole, and except, in
the case of clause (ii), where such default would not have a
material adverse effect on the financial condition or results of
operations of the Company and its subsidiaries, considered as a
whole;
(xii) The statements set forth in the Prospectus under the
caption "Description of Debt Securities", insofar as they purport to
constitute a summary of the terms of the Securities, and under the
captions "Plan of Distribution" and "Underwriting", insofar as they
purport to describe the provisions of the laws and documents
referred to therein, are accurate, complete and fair;
(xiii) The Company is not an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined
in the Investment Company Act;
(xiv) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the financial
statements and related schedules therein, as to which such counsel
need express no opinion), when they became effective or were filed
with the Commission, as the case may be, complied as to form in all
material respects with the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder; and they have no reason to believe that any of such
documents, when they became effective or were so filed, as the case
may be, contained, in the case of a registration statement which
became effective under the Act, an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading,
or, in the case of other documents which were filed under the Act or
the Exchange Act with the Commission, an untrue statement of a
material fact or omitted to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were
<PAGE>
14
made when such documents were so filed, not misleading; and
(xv) The Registration Statement and the Prospectus as amended
or supplemented and any further amendments and supplements thereto
made by the Company prior to the Time of Delivery for the Designated
Securities (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of
the Act and the Trust Indenture Act and the rules and regulations
thereunder; although they do not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in
the Registration Statement or the Prospectus, except for those
referred to in the opinion in subsection (xii) of this Section 7(c),
they have no reason to believe that, as of its effective date, the
Registration Statement or any further amendment thereto made by the
Company prior to the Time of Delivery (other than the financial
statements and related schedules therein, as to which such counsel
need express no opinion) contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading
or that, as of its date, the Prospectus as amended or supplemented
or any further amendment or supplement thereto made by the Company
prior to the Time of Delivery (other than the financial statements
and related schedules therein, as to which such counsel need express
no opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading or that, as of the Time of Delivery, either the
Registration Statement or the Prospectus as amended or supplemented
or any further amendment or supplement thereto made by the Company
prior to the Time of Delivery (other than the financial statements
and related schedules therein, as to which such counsel need express
no opinion) contains an untrue statement of a material fact or omits
to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; and they do not know of any amendment to the
Registration Statement required to be filed or any contracts or
other documents of a character required to be filed as an exhibit to
the Registration Statement or required to be incorporated by
reference into the Prospectus as amended or supplemented or required
to be described in the Registration Statement or the Prospectus as
amended or supplemented which are not filed or incorporated by
reference or described as required;
(d) (i) On the date of the Pricing Agreement for such Designated
Securities at a time prior to the execution of the Pricing Agreement with
respect to such Designated Securities and at the Time of Delivery for such
Designated Securities, Arthur Andersen LLP shall have furnished to the
Representatives a letter, dated the effective date of the Registration
Statement or the date of the most recent report filed
<PAGE>
15
with the Commission containing financial statements and incorporated by
reference in the Registration Statement, if the date of such report is
later than such effective date, and a letter dated such Time of Delivery,
respectively, to the effect set forth in Annex II hereto, and with respect
to such letter dated such Time of Delivery, as to such other matters as
the Representatives may reasonably request and in form and substance
satisfactory to the Representatives and (ii) at the Time of Delivery for
such Designated Securities, KPMG Peat Marwick LLP shall have furnished to
the Representatives a letter dated such Time of Delivery, in form and
substance satisfactory to the Representatives, regarding the financial
statements of the Company and its subsidiaries certified by KPMG Peat
Marwick LLP and included or incorporated by reference in the Registration
Statement;
(e) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended prior
to the date of the Pricing Agreement relating to the Designated Securities
any loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than
as set forth or contemplated in the Prospectus as amended prior to the
date of the Pricing Agreement relating to the Designated Securities, and
(ii) since the respective dates as of which information is given in the
Prospectus as amended prior to the date of the Pricing Agreement relating
to the Designated Securities there shall not have been any change in the
capital stock or long-term debt of the Company or any of its subsidiaries
or any change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the
Prospectus as amended prior to the date of the Pricing Agreement relating
to the Designated Securities, the effect of which, in any such case
described in Clause (i) or (ii), is in the judgment of the Representatives
so material and adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Designated
Securities on the terms and in the manner contemplated in the Prospectus
as first amended or supplemented relating to the Designated Securities;
(f) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities or preferred stock by any
"nationally recognized statistical rating organization", as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Act,
and (ii) no such organization shall have publicly announced that it has
under surveillance or review, with possible negative implications, its
rating of any of the Company's debt securities or preferred stock;
(g) On or after the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the following:
(i) a
<PAGE>
16
suspension or material limitation in trading in securities generally on
the New York Stock Exchange; (ii) a suspension or material limitation in
trading in the Company's securities on the New York Stock Exchange; (iii)
a general moratorium on commercial banking activities declared by either
Federal or New York State authorities; or (iv) the outbreak or escalation
of hostilities involving the United States or the declaration by the
United States of a national emergency or war, if the effect of any such
event specified in this Clause (iv) in the judgment of the Representatives
makes it impracticable or inadvisable to proceed with the public offering
or the delivery of the Designated Securities on the terms and in the
manner contemplated in the Prospectus as first amended or supplemented
relating to the Designated Securities; and
(h) The Company shall have furnished or caused to be furnished to
the Representatives at the Time of Delivery for the Designated Securities
a certificate or certificates of officers of the Company satisfactory to
the Representatives as to the accuracy of the representations and
warranties of the Company herein at and as of such Time of Delivery, as to
the performance by the Company of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set
forth in subsections (a) and (e) of this Section and as to such other
matters as the Representatives may reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Securities, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
of Designated Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject,
<PAGE>
17
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Securities, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in
<PAGE>
18
respect of any losses, claims, damages or liabilities (or actions in respect
thereof) referred to therein, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters of the Designated Securities on the
other from the offering of the Designated Securities to which such loss, claim,
damage or liability (or action in respect thereof) relates. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters of the Designated
Securities on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and such Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from such offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by such Underwriters.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or such Underwriters on the other and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the applicable Designated Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the Underwriters
of Designated Securities in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to such
Securities and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the
<PAGE>
19
same terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
this Section 8 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company and to each person, if
any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Designated Securities which it has agreed to purchase under the
Pricing Agreement relating to such Designated Securities, the Representatives
may in their discretion arrange for themselves or another party or other parties
to purchase such Designated Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives do
not arrange for the purchase of such Designated Securities, then the Company
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to the Representatives to
purchase such Designated Securities on such terms. In the event that, within the
respective prescribed period, the Representatives notify the Company that they
have so arranged for the purchase of such Designated Securities, or the Company
notifies the Representatives that it has so arranged for the purchase of such
Designated Securities, the Representatives or the Company shall have the right
to postpone the Time of Delivery for such Designated Securities for a period of
not more than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Company agrees
to file promptly any amendments or supplements to the Registration Statement or
the Prospectus which in the opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include any
person substituted under this Section with like effect as if such person had
originally been a party to the Pricing Agreement with respect to such Designated
Securities.
(b) If, after giving effect to any arrangements for the purchase of
the Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Designated
Securities which such Underwriter agreed to purchase under the Pricing Agreement
relating to such Designated Securities and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Designated Securities which such Underwriter agreed to
purchase under such Pricing Agreement) of the Designated Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and
<PAGE>
20
the Company as provided in subsection (a) above, the aggregate principal amount
of Designated Securities which remains unpurchased exceeds one-eleventh of the
aggregate principal amount of the Designated Securities, as referred to in
subsection (b) above, or if the Company shall not exercise the right described
in subsection (b) above to require non-defaulting Underwriters to purchase
Designated Securities of a defaulting Underwriter or Underwriters, then the
Pricing Agreement relating to such Designated Securities shall thereupon
terminate, without liability on the part of any non-defaulting Underwriter or
the Company, except for the expenses to be borne by the Company and the
Underwriters as provided in Section 6 hereof and the indemnity and contribution
agreements in Section 8 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several Underwriters, as
set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or the
Company, or any officer or director or controlling person of the Company, and
shall survive delivery of and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section
9 hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Designated Securities covered by such Pricing Agreement
except as provided in Sections 6 and 8 hereof; but, if for any other reason
Designated Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the
Underwriters of Designated Securities shall act on behalf of each of such
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by such Representatives jointly or by such of the Representatives, if any,
as may be designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be
in writing, and if to the Underwriters shall be delivered or sent by mail, telex
or facsimile transmission to the address of the Representatives as set forth in
the Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement: Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will
<PAGE>
21
be supplied to the Company by the Representatives upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement and each Pricing Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters, the Company and, to the
extent provided in Sections 8 and 10 hereof, the officers and directors of the
Company and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. This Agreement and each Pricing Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
16. This Agreement and each Pricing Agreement may be executed by any
one or more of the parties hereto and thereto in any number of counterparts,
each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
<PAGE>
22
If the foregoing is in accordance with your understanding, please
sign and return to us six counterparts hereof.
Very truly yours,
CARLISLE COMPANIES INCORPORATED
By: _____________________________
Name:
Title:
Accepted as of the date hereof:
GOLDMAN, SACHS & CO.
______________________________
(Goldman, Sachs & Co.)
J.P. MORGAN SECURITIES INC.
By: __________________________
Name:
Title:
<PAGE>
ANNEX I
Pricing Agreement
Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
As Representatives of the several
Underwriters named in Schedule I hereto
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
__________, 19__
Ladies and Gentlemen:
Carlisle Companies Incorporated, a Delaware corporation (the
"Company"), proposes, subject to the terms and conditions stated herein and in
the Underwriting Agreement, dated ______________, 19__ (the "Underwriting
Agreement"), between the Company on the one hand and Goldman, Sachs & Co. and
J.P. Morgan Securities Inc. on the other hand, to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") the Securities
specified in Schedule II hereto (the "Designated Securities"). Each of the
provisions of the Underwriting Agreement is incorporated herein by reference in
its entirety, and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a representation or warranty as of
the date of the Underwriting Agreement in relation to the Prospectus (as therein
defined), and also a representation and warranty as of the date of this Pricing
Agreement in relation to the Prospectus as amended or supplemented relating to
the Designated Securities which are the subject of this Pricing Agreement. Each
reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined. The Representatives designated to
act on behalf of the Representatives and on behalf of each of the Underwriters
of the Designated Securities pursuant to Section 12 of the Underwriting
Agreement and the address of the Representatives referred to in such Section 12
are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be electronically
transmitted for filing with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting
<PAGE>
2
Agreement incorporated herein by reference, the Company agrees to issue and sell
to each of the Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company, at the time and place and at the
purchase price to the Underwriters set forth in Schedule II hereto, the
principal amount of Designated Securities set forth opposite the name of such
Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please
sign and return to us six counterparts hereof, and upon acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof, including the provisions of the Underwriting Agreement incorporated
herein by reference, shall constitute a binding agreement between each of the
Underwriters and the Company. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is or will be pursuant to the
authority set forth in a form of Agreement among Underwriters, the form of which
shall be submitted to the Company for examination upon request, but without
warranty on the part of the Representatives as to the authority of the signers
thereof.
Very truly yours,
CARLISLE COMPANIES INCORPORATED
By: _____________________________
Name:
Title:
Accepted as of the date hereof:
GOLDMAN, SACHS & CO.
______________________________
(Goldman, Sachs & Co.)
J.P. MORGAN SECURITIES INC.
By: __________________________
Name:
Title:
On behalf of each the Underwriters
<PAGE>
SCHEDULE I
Principal
Amount of
Designated
Securities
to be
Underwriter Purchased
----------- ---------
$
Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
[Names of other Underwriters]
Total $
<PAGE>
SCHEDULE II
Title of Designated Securities:
[___%] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due
Aggregate principal amount:
[$]
Price to Public:
% of the principal amount of the Designated Securities, plus accrued
interest[, if any,] from ________ to ___________________ [and accrued
amortization[, if any,] from ____________ to _________]
Purchase Price by Underwriters:
% of the principal amount of the Designated Securities, plus accrued
interest from _____________________ to ____________________ [and accrued
amortization[, if any,] from ____________________ to _________________]
Form of Designated Securities:
[Definitive form to be made available for checking and packaging at least
twenty-four hours prior to the Time of Delivery at the office of [The Depository
Trust Company or its designated custodian] [the Representatives]]
[Book-entry only form represented by one or more global securities deposited
with The Depository Trust Company ("DTC") or its designated custodian for
trading in the Same Day Funds Settlement System of DTC, and to be made available
for checking by the Representatives at least twenty-four hours prior to the Time
of Delivery.]
Specified funds for payment of purchase price:
Federal (same day) funds by wire transfer
Time of Delivery:
________ a.m. (New York City time), _________________, 19___
Indenture:
Indenture dated ____________, 19___, between the Company and Fleet National
Bank, as
<PAGE>
II-2
Trustee
Maturity:
Interest Rate:
[___%] [Zero Coupon] [See Floating Rate Provisions]
Interest Payment Dates:
[months and dates, commencing ________________, 19___]
Redemption Provisions:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the sinking
fund, in whole or in part at the option of the Company, in the amount of
[$________] or an integral multiple thereof, [on or after __________, at the
following redemption prices (expressed in percentages of principal amount). If
[redeemed on or before __________, ______%, and if] redeemed during the 12-month
period beginning ____________,
Redemption
Year Price
---- -----
and thereafter at 100% of their principal amount, together in each case with
accrued interest to the redemption date.]
[on any interest payment date falling on or after ________, _________, at the
election of the Company, at a redemption price equal to the principal amount
thereof, plus accrued interest to the date of redemption.]]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
Sinking Fund Provisions:
[No sinking fund provisions]
<PAGE>
II-3
[The Designated Securities are entitled to the benefit of a sinking fund to
retire [$__________] principal amount of Designated Securities on _______ in
each of the years _________ through _________ at 100% of their principal amount
plus accrued interest[, together with [cumulative] [noncumulative] redemptions
at the option of the Company to retire an additional [$________] principal
amount of Designated Securities in the years __________ through ________ at 100%
of their principal amount plus accrued interest.]
[If Designated Securities are extendable debt securities, insert--
Extendable provisions:
Designated Securities are repayable on ___________, [insert date and years], at
the option of the holder, at their principal amount with accrued interest. The
initial annual interest rate will be __________%, and thereafter the annual
interest rate will be adjusted on __________, and to a rate not less than
____________% of the effective annual interest rate on U.S. Treasury obligations
with -year maturities as of the [insert date 15 days prior to maturity date]
prior to such [insert maturity date].]
[If Designated Securities are floating rate debt securities, insert--
Floating rate provisions:
Initial annual interest rate will be ________% through __________ [and
thereafter will be adjusted [monthly] [on each __________, ___________, and
___________] [to an annual rate of ___________% above the average rate for
___________-year [month][securities][certificates of deposit] issued by and
___________ [insert names of banks].] [and the annual interest rate [thereafter]
[from through ___________] will be the interest yield equivalent of the weekly
average per annum market discount rate for __________-month Treasury bills plus
% of Interest Differential (the excess, if any, of (i) the then current weekly
average per annum secondary market yield for __________-month certificates of
deposit over (ii) the then current interest yield equivalent of the weekly
average per annum market discount rate for ________-month Treasury bills); [from
and thereafter the rate will be the then current interest yield equivalent plus
___________% of Interest Differential].]
Defeasance provisions:
Closing location for delivery of Designated Securities:
Additional Closing Conditions:
<PAGE>
II-4
Names and addresses of Representatives:
Designated Representatives:
Address for Notices, etc.:
[Other Terms]:
<PAGE>
ANNEX II
Pursuant to Section 7(d) of the Underwriting Agreement, Arthur
Andersen LLP shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect
to the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited (and, if
applicable, financial forecasts and/or pro forma financial information)
examined by them and included or incorporated by reference in the
Registration Statement or the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the Act or the
Exchange Act, as applicable, and the related published rules and
regulations thereunder; and, if applicable, they have made a review in
accordance with standards established by the American Institute of
Certified Public Accountants of the consolidated interim financial
statements, selected financial data, pro forma financial information,
financial forecasts and/or condensed financial statements derived from
audited financial statements of the Company for the periods specified in
such letter, as indicated in their reports thereon, copies of which have
been furnished to the representative or representatives of the
Underwriters (the "Representatives"), such term to include an Underwriter
or Underwriters who act without any firm being designated as its or their
representatives, and are attached hereto;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the unaudited condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included in the
Prospectus and/or included in the Company's quarterly report on Form 10-Q
incorporated by reference into the Prospectus as indicated in their
reports thereon copies of which are attached hereto; and on the basis of
specified procedures including inquiries of officials of the Company who
have responsibility for financial and accounting matters regarding whether
the unaudited condensed consolidated financial statements referred to in
paragraph (vi)(A)(i) below comply as to form in all material respects with
the applicable accounting requirements of the Act and the Exchange Act and
the related published rules and regulations, nothing came to their
attention that caused them to believe that the unaudited condensed
consolidated financial statements do not comply as to form in all material
respects with the applicable accounting requirements of the Act and the
Exchange Act and the related published rules and regulations;
(iv) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the Prospectus
and included or incorporated by reference in Item 6 of the Company's
Annual Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where
<PAGE>
II-2
applicable) in the audited consolidated financial statements for five such
fiscal years which were included or incorporated by reference in the
Company's Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and
on the basis of limited procedures specified in such letter nothing came
to their attention as a result of the foregoing procedures that caused
them to believe that this information does not conform in all material
respects with the disclosure requirements of Items 301, 302, 402 and
503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of
the minute books of the Company and its subsidiaries since the date of the
latest audited financial statements included or incorporated by reference
in the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus and/or included or
incorporated by reference in the Company's Quarterly Reports on Form
10-Q incorporated by reference in the Prospectus do not comply as to
form in all material respects with the applicable accounting
requirements of the Exchange Act and the related published rules and
regulations, or (ii) any material modifications should be made to
the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash
flows included in the Prospectus or included in the Company's
Quarterly Reports on Form 10-Q incorporated by reference in the
Prospectus for them to be in conformity with generally accepted
accounting principles;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any such
unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included or
incorporated by reference in the Company's Annual Report on Form
10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not included
in the
<PAGE>
II-3
Prospectus but from which were derived the unaudited condensed
financial statements referred to in clause (A) and any unaudited
income statement data and balance sheet items included in the
Prospectus and referred to in Clause (B) were not determined on a
basis substantially consistent with the basis for the audited
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal
year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus
do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the published
rules and regulations thereunder or the pro forma adjustments have
not been properly applied to the historical amounts in the
compilation of those statements;
(E) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital stock
upon exercise of options and stock appreciation rights, upon
earn-outs of performance shares and upon conversions of convertible
securities, in each case which were outstanding on the date of the
latest balance sheet included or incorporated by reference in the
Prospectus) or any increase in the consolidated long-term debt of
the Company and its subsidiaries, or any decreases in consolidated
net current assets or stockholders' equity or other items specified
by the Representatives, or any increases in any items specified by
the Representatives, in each case as compared with amounts shown in
the latest balance sheet included or incorporated by reference in
the Prospectus, except in each case for changes, increases or
decreases which the Prospectus discloses have occurred or may occur
or which are described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus
to the specified date referred to in Clause (E) there were any
decreases in consolidated net revenues or operating profit or the
total or per share amounts of consolidated net income or other items
specified by the Representatives, or any increases in any items
specified by the Representatives, in each case as compared with the
comparable period of the preceding year and with any other period of
corresponding length specified by the Representatives, except in
each case for increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such letter;
and
(vii) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (vi) above, they have carried out
certain specified procedures, not constituting an audit in
<PAGE>
II-4
accordance with generally accepted auditing standards, with respect to
certain amounts, percentages and financial information specified by the
Representatives which are derived from the general accounting records of
the Company and its subsidiaries, which appear in the Prospectus
(excluding documents incorporated by reference), or in Part II of, or in
exhibits and schedules to, the Registration Statement specified by the
Representatives or in documents incorporated by reference in the
Prospectus specified by the Representatives, and have compared certain of
such amounts, percentages and financial information with the accounting
records of the Company and its subsidiaries and have found them to be in
agreement.
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement as of the date of the letter
delivered on the date of the Pricing Agreement for purposes of such letter and
to the Prospectus as amended or supplemented (including the documents
incorporated by reference therein) in relation to the applicable Designated
Securities for purposes of the letter delivered at the Time of Delivery for such
Designated Securities.
<PAGE>
ANNEX III
Significant Subsidiaries
[To Come]
<PAGE>
DB Draft of 11/24/96
================================================================================
CARLISLE COMPANIES INCORPORATED
TO
Fleet National Bank,
Trustee
-------------------
INDENTURE
Dated as of _____________, 1996
-------------------
================================================================================
<PAGE>
Reconciliation and tie between Indenture, dated as of _______________, 1996 and
the Trust Indenture Act of 1939, as amended ("TIA").
Indenture
TIA Section Section
- ----------- -------
310(a)(1)....................................................... 609
(a)(2)....................................................... 609
(a)(3)....................................................... TIA
(a)(4)....................................................... Not Applicable
(a)(5)....................................................... TIA
(b).......................................................... 610; TIA
311(a).......................................................... 613; TIA
(b).......................................................... 613; TIA
(c).......................................................... Not Applicable
312(a).......................................................... 701
(b).......................................................... 702; TIA
(c).......................................................... 702(c); TIA
313(a).......................................................... 703; TIA
(b).......................................................... 703; TIA
(c).......................................................... 703; TIA
(d).......................................................... 703; TIA
314(a).......................................................... 704; TIA
(b).......................................................... Not Applicable
(c)(1)....................................................... 102
(c)(2)....................................................... 102
(c)(3)....................................................... Not Applicable
(d).......................................................... Not Applicable
(e).......................................................... 102
315(a).......................................................... 601; 603; TIA
(b).......................................................... 602; TIA
(c).......................................................... TIA
(d)(1)....................................................... TIA
(d)(2)....................................................... 603; TIA
(d)(3)....................................................... 603; TIA
(e).......................................................... TIA
316(a)(1)(A).................................................... 502; 512
(a)(1)(B).................................................... 513
316(a)(last sentence)........................................... Definition of
Outstanding
(b).......................................................... 507; 508
(c).......................................................... 503
317(a)(1)....................................................... 504
(a)(2)....................................................... TIA
(b).......................................................... 1003
318(a).......................................................... 108
(b).......................................................... TIA
(c).......................................................... 108; TIA
- ----------
This reconciliation and tie section does not constitute part of the
Indenture.
<PAGE>
TABLE OF CONTENTS
Page
----
PARTIES ................................................................... 1
RECITALS .................................................................. 1
Authorization of Indenture ............................................. 1
Compliance with Legal Requirements ..................................... 1
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions ............................................... 1
Affiliate .............................................................. 2
Attributable Debt ...................................................... 2
Authenticating Agent ................................................... 2
Authorized Newspaper ................................................... 2
Bearer Security ........................................................ 2
Board of Directors ..................................................... 2
Board Resolution ....................................................... 2
Business Day ........................................................... 2
Capital Stock .......................................................... 3
Closing Price Per Share ................................................ 3
Commission ............................................................. 3
Company ................................................................ 3
Company Order .......................................................... 3
Consolidated Net Tangible Assets ....................................... 3
Conversion Date ........................................................ 3
Conversion Event ....................................................... 3
Corporate Trust Office ................................................. 4
Corporation ............................................................ 4
Coupon ................................................................. 4
Currency ............................................................... 4
Debt ................................................................... 4
"Defaulted Interest .................................................... 4
Depositary ............................................................. 4
Dollar" or "U.S. Dollar" or "$ ......................................... 4
Dollar Equivalent of the Currency Unit ................................. 4
Dollar Equivalent of the Foreign Currency .............................. 4
ECU .................................................................... 5
Election Date .......................................................... 5
Euroclear .............................................................. 5
European Communities ................................................... 5
- ----------
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
i
<PAGE>
Page
----
European Monetary System .............................................. 5
Event of Default ...................................................... 5
Exchange Rate Agent ................................................... 5
Exchange Rate Officer's Certificate ................................... 5
Foreign Currency ...................................................... 5
Funded Debt ........................................................... 5
Global Security ....................................................... 5
Government Obligations ................................................ 5
Holder ................................................................ 5
Indenture ............................................................. 5
interest .............................................................. 6
Interest Payment Date ................................................. 6
Market Exchange Rate .................................................. 6
Maturity .............................................................. 6
NYSE .................................................................. 7
Officers' Certificate ................................................. 7
Opinion of Counsel .................................................... 7
"Original Issue Date" ................................................. 7
"Original Issue Discount Security" .................................... 7
Outstanding ........................................................... 7
Predecessor Security .................................................. 8
"Principal Property" .................................................. 8
"Record Date" ......................................................... 9
Redemption Date ....................................................... 9
Redemption Price ...................................................... 9
Registered Holder ..................................................... 9
"Registered Security" ................................................. 9
Responsible Officer ................................................... 9
"Securities" .......................................................... 9
"Security Register" and "Security Registrar" .......................... 9
Senior Indebtedness ................................................... 9
Senior Securities ..................................................... 9
Significant Subsidiary ................................................ 9
"Special Record Date" ................................................. 9
"Stated Maturity", .................................................... 9
Subordinated Securities ............................................... 10
"Subsidiary" .......................................................... 10
"Trading Day" ......................................................... 10
Trust Indenture Act ................................................... 10
Trustee ............................................................... 10
Vice President ........................................................ 10
Yield to Maturity ..................................................... 10
Section 102. Compliance Certificates and Opinions ..................... 10
Section 103. Form of Documents Delivered to Trustee ................... 11
- ----------
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
ii
<PAGE>
Page
----
Section 104. Acts of Holders; Record Dates ............................ 11
Section 105. Notices, Etc., to Trustee and Company .................... 13
Section 106. Notice to Holders; Waiver ................................ 13
Section 107. Incorporators, Stockholders, Officers and Directors of
Company Exempt from Individual Liability ................. 14
Section 108. Conflict with Trust Indenture Act ........................ 14
Section 109. Effect of Headings and Table of Contents ................. 14
Section 110. Successors and Assigns ................................... 15
Section 111. Separability Clause ...................................... 15
Section 112. Benefits of Indenture .................................... 15
Section 113. Governing Law ............................................ 15
Section 114. Legal Holidays ........................................... 15
Section 115. Counterparts ............................................. 15
ARTICLE TWO
Security Forms
Section 201. Forms Generally .......................................... 16
Section 202. Form of Trustee's Certificate of Authentication .......... 16
Section 203. Additional Provisions Required in Global Security ........ 17
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series ..................... 17
Section 302. Denominations ............................................ 20
Section 303. Execution, Authentication, Delivery and Dating of
Securities ............................................. 20
Section 304. Temporary Securities ..................................... 22
Section 305. Registration, Registration of Transfer and Exchange ...... 23
Section 306. Mutilated, Defaced, Destroyed, Lost and Stolen Securities 26
Section 307. Payment of Interest; Interest Rights Preserved ........... 27
Section 308. Persons Deemed Owners .................................... 28
Section 309. Cancellation ............................................. 29
Section 310. Computation of Interest .................................. 29
Section 311. Currency and Manner of Payments in Respect of Securities . 29
Section 312. Appointment and Resignation of Successor Exchange Rate
Agent .................................................... 32
Section 313. Compliance with Certain Laws and Regulations ............. 33
- ----------
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
iii
<PAGE>
Page
----
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture ................. 33
Section 402. Application of Trust Money .............................. 34
ARTICLE FIVE
Remedies
Section 501. Events of Default ....................................... 35
Section 502. Acceleration of Maturity; Rescission and Annulment ...... 36
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee ................................................. 38
Section 504. Trustee May File Proofs of Claim ........................ 39
Section 505. Trustee May Enforce Claims Without Possession of
Securities .............................................. 40
Section 506. Application of Moneys Collected by Trustee .............. 40
Section 507. Limitation on Suits ..................................... 41
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest .................................... 41
Section 509. Restoration of Rights and Remedies ...................... 42
Section 510. Rights and Remedies Cumulative .......................... 42
Section 511. Delay or Omission Not Waiver ............................ 42
Section 512. Control by Holders ...................................... 42
Section 513. Waiver of Past Defaults ................................. 43
Section 514. Undertaking for Costs ................................... 43
Section 515. Waiver of Stay or Extension Laws ........................ 43
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities ..................... 44
Section 602. Notice of Defaults ...................................... 45
Section 603. Certain Rights of the Trustee ........................... 45
Section 604. Not Responsible for Recitals or Issuance of Securities .. 46
Section 605. May Hold Securities ..................................... 46
Section 606. Money Held in Trust ..................................... 47
Section 607. Compensation and Reimbursement .......................... 47
Section 608. Right to Rely on Officers' Certificate .................. 48
Section 609. Eligibility ............................................. 48
Section 610. Resignation and Removal; Appointment of Successor ....... 48
Section 611. Acceptance of Appointment by Successor .................. 50
- ----------
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
iv
<PAGE>
Page
----
Section 612. Merger, Conversion, Consolidation or Succession to
Business ................................................ 51
Section 613. Preferential Collection of Claims Against Company ....... 51
Section 614. Appointment of Authenticating Agent ..................... 51
ARTICLE SEVEN
Holders' List and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of Holders 53
Section 702. Preservation of Information; Communications to Holders .. 53
Section 703. Reports by Trustee ...................................... 54
Section 704. Reports by Company ...................................... 54
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, Etc., Only on Certain Terms .... 55
Section 802. Successor Substituted ................................... 55
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders ...... 56
Section 902. Supplemental Indentures with Consent of Holders ......... 57
Section 903. Execution of Supplemental Indentures .................... 58
Section 904. Effect of Supplemental Indentures ....................... 59
Section 905. Conformity with Trust Indenture Act ..................... 59
Section 906. Reference in Securities to Supplemental Indentures ...... 59
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest .............. 59
Section 1002. Maintenance of Office or Agency ......................... 59
Section 1003. Money for Securities Payments to Be Held in Trust ....... 60
Section 1004. Limitations on Secured Debt ............................. 61
Section 1005. Limitations on Sales and Leasebacks ..................... 62
Section 1006. Waiver of Certain Covenants ............................. 63
Section 1007. Certificate of Compliance ............................... 63
- ----------
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
v
<PAGE>
Page
----
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article ................................ 63
Section 1102. Election to Redeem; Notice to Trustee ................... 63
Section 1103. Selection by Trustee of Securities to Be Redeemed ....... 64
Section 1104. Notice of Redemption .................................... 64
Section 1105. Deposit of Redemption Price ............................. 65
Section 1106. Securities Payable on Redemption Date ................... 65
Section 1107. Securities Redeemed in Part ............................. 65
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article ................................ 66
Section 1202. Satisfaction of Sinking Fund Payments with Securities ... 66
Section 1203. Redemption of Securities for Sinking Fund ............... 66
ARTICLE THIRTEEN
Defeasance
Section 1301. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance ....................... 67
Section 1302. Defeasance and Discharge ................................ 67
Section 1303. Covenant Defeasance ..................................... 67
Section 1304. Conditions to Defeasance or Covenant Defeasance ......... 68
Section 1305. Deposited Money and Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions ................... 70
Section 1306. Reinstatement ........................................... 70
ARTICLE FOURTEEN
Subordination
Section 1401. Agreement to Subordinate ................................ 71
Section 1402. Payments to Holders of Subordinated Securities .......... 71
Section 1403. No Payment When Senior Debt in Default .................. 72
Section 1404. Subrogation ............................................. 74
Section 1405. Authorization by Holders of Subordinated Securities ..... 75
- ----------
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
vi
<PAGE>
Page
----
Section 1406. Notice to Trustee ....................................... 75
Section 1407. Trustee's Relation to Senior Indebtedness ............... 76
Section 1408. No Impairment of Subordination .......................... 76
Section 1409. Trust Moneys Not Subordinated ........................... 76
- ----------
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
vii
<PAGE>
THIS INDENTURE, dated as of __________, 1996 between Carlisle Companies
Incorporated, a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office at
250 South Clinton Street, Suite 201, Syracuse, NY 13202, and Fleet National
Bank, a national banking association, organized under the laws of the United
States (herein called the "Trustee").
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
debentures, notes or other evidences of indebtedness, (as such term is
hereinafter defined) of the Company (such debentures, notes or other evidences
of indebtedness herein called the "Securities") to be issued in one or more
series as in this Indenture provided. The Securities may either be senior (the
"Senior Securities") or subordinated (the "Subordinated Securities").
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is agreed for the equal and proportionate benefit of
all Holders of the Securities of any series, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions.
For all purposes of this Indenture and of any indenture supplemental
hereto, 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 or by Commission rule under the Trust Indenture Act, either
directly or by reference therein, have the meanings assigned to them
therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with United States generally
accepted accounting principles; 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.
<PAGE>
Certain terms, used principally in Article Six, are defined in that
article.
"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 meanings correlative to the
foregoing.
"Attributable Debt" means, as to any particular lease under which any
Person is at the time liable, at any date as of which the amount thereof is to
be determined, the total net amount of rent required to be paid by such Person
under such lease during the remaining primary term thereof, discounted from the
respective due dates thereof to such date at the rate of interest per annum
implicit in the terms of such lease, as determined in good faith by the Company,
compounded semi-annually. The net amount of rent required to be paid under any
such lease for any such period shall be the amount of the rent payable by the
lessee with respect to such period, after excluding amounts required to be paid
on account of maintenance, repairs, insurance, taxes, assessments, water rates
and similar charges. In the case of any lease which is terminable by the lessee
upon the payment of a penalty, such net amount shall also include the amount of
such penalty, but shall not include any rent required to be paid under such
lease subsequent to the first date upon which it may be so terminated.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 614 to act on behalf of the Trustee to authenticate Securities of one
or more series.
"Authorized Newspaper" means a newspaper of general circulation, in the
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. Whenever successive publications in an
Authorized Newspaper are required hereunder they may be made (unless otherwise
expressly provided herein) on the same or different days of the week and in the
same or different Authorized Newspapers.
"Bearer Security" means any Security issued under this Indenture which is
payable to bearer.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board or any directors and/or officers of
the Company to whom that board or committee shall have duly delegated its
authority.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means, except as may otherwise be provided herein or in any
Security, when used with respect a location, each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in that
location are authorized or obligated by law or executive order to close.
2
<PAGE>
"Capital Stock" means any stock of any class of the Company.
"Closing Price Per Share" means, with respect to the Capital Stock of the
Company, for any day the last reported sales price per share (i) on the New York
Stock Exchange, Inc. as reported in the Wall Street Journal (or other similar
newspaper) for New York Stock Exchange Composite Transactions (or, if no such
sale is so reported on such day, the average of such reported closing bid and
asked prices regular way) or, if the Capital Stock is not listed or admitted to
trading on such Exchange, on the principal (as determined by the Company's Board
of Directors) national securities exchange on which the Capital Stock is listed
or admitted to trading or, (ii) if not listed or admitted to trading on any
national securities exchange, on the National Association of Securities Dealers
Automated Quotations National Market System; or if the Capital Stock is not
listed or admitted to trading on any national securities exchange or quoted on
such National Market System, the average of the closing bid and asked prices in
the over-the-counter market as furnished by any New York Stock Exchange member
firm selected from time to time by the Company for that purpose.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as amended,
or, if at any time after the execution of this Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties on such date.
"Company" means the Person named as the "Company" in the first paragraph of
this Indenture until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Order" and "Company Request" mean, respectively, a written order
or request signed in the name of the Company by both (i) its Chairman of the
Board of Directors, its Vice Chairman of the Board of Directors, its President
or a Vice President, and (ii) its Treasurer, an Assistant Treasurer, its
Controller, an Assistant Controller, its Secretary or an Assistant Secretary,
and delivered to the Trustee.
"Consolidated Net Tangible Assets" means the aggregate amount of assets
(less applicable reserves and other properly deductible items) after deducting
therefrom (i) all current liabilities (excluding any thereof constituting Funded
Debt by reason of being renewable or extendable) and (ii) all goodwill, trade
names, trademarks, patents, unamortized debt discount and expense and other like
intangibles, all as set forth on the balance sheet of the Company and its
consolidated Subsidiaries as of the end of the most recent calendar quarter and
computed in accordance with generally accepted accounting principles.
"Conversion Date" has the meaning specified in Section 311(d).
"Conversion Event" means the cessation of use of (a) a Foreign Currency
both by the government of the country which issued such Currency and by a
central bank or other public institutions of or within the international banking
community for the settlement of transactions, (b) the ECU both within the
European Monetary System and for the settlement of transactions by public
institutions of or within the European Communities or (c) any currency unit (or
composit currency) other than the ECU for the purposes for which it was
established.
3
<PAGE>
"Corporate Trust Office" means the office of the Trustee at which, at any
particular time, its corporate trust business shall be principally administered,
which office at the date hereof is located at Fleet National Bank, c/o First
Chicago Trust Company of New York, 14 Wall Street, 8th Floor - Window No. 2, New
York, New York 10005.
"Corporation" includes corporations, associations, companies, joint-stock
companies, limited liability companies and business trusts.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Currency" means any currency or currencies, currency unit or units or
composite currency or currencies, including, without limitation, the ECU, issued
by the government of one or more countries or by any recognized confederation or
association of such governments.
"Debt" means any notes, bonds, debentures or other similar evidences of
indebtedness for money borrowed.
"Defaulted Interest" has the meaning specified in Section 307.
"defeasance" and "covenant defeasance" have the respective meanings
specified in Sections 1302 and 1303.
"Depositary" means, with respect to the Securities of any series issuable
or issued in whole or in part in the form of one or more Global Securities, the
Person designated as Depositary by the Company pursuant to Section 301 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is more
than one such Person, "Depositary" as used with respect to the Securities of any
such series shall mean the Depositary with respect to the Securities of that
series.
"Dollar" or "U.S. Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States of America as at the time shall be
legal tender for the payment of public and private debts.
"Dollar Equivalent of the Currency Unit" has the meaning specified in
Section 311(g).
"Dollar Equivalent of the Foreign Currency" has the meaning specified in
Section 311(f).
4
<PAGE>
"ECU" means the European Currency Unit as defined and revised from time to
time by the Council of the European Communities.
"Election Date" has the meaning specified in Section 311(h).
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.
"European Communities" means the European Economic Community, the European
Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System established
by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Event of Default" has the meaning specified in Section 501.
"Exchange Rate Agent", with respect to Securities of or within any series,
means, unless otherwise specified with respect to any Securities pursuant to
Section 301, a New York Clearing House bank, designated pursuant to Section 301
or Section 312.
"Exchange Rate Officer's Certificate" means a tested telex or a certificate
setting forth (a) the applicable Market Exchange Rate and (b) the Dollar or
Foreign Currency amounts of principal (and premium, if any) and interest, if any
(on an aggregate basis and on the basis of a Security having the lowest
denomination principal amount determined in accordance with Section 302 in the
relevant Currency), payable with respect to a Security of any series on the
basis of such Market Exchange Rate, sent (in the case of a telex) or signed (in
the case of a certificate) by the Treasurer, any Vice President or any Assistant
Treasurer of the Company.
"Foreign Currency" means any Currency other than the U.S. Dollar.
"Funded Debt" means all Debt having a maturity of more than 12 months from
the date as of which the amount thereof is to be determined or having a maturity
of less than 12 months but by its terms being renewable or extendable beyond 12
months from such date at the option of the borrower.
"Global Security" means a Security bearing the legend prescribed in Section
203 evidencing all or part of a series of Securities, issued to the Depositary
for such series or its nominee, and registered in the name of such Depositary or
nominee.
"Government Obligations" has the meaning specified in Section 1304.
"Holder" means, with respect to a Registered Security, a Person in whose
name a Security is registered in the Security Register and, with respect to a
Bearer Security, a bearer thereof or of a Coupon appertaining thereto.
"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
5
<PAGE>
entered into pursuant to the applicable provisions hereof, including, for all
purposes of this instrument, and any such supplemental indenture, the mandatory
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively. The term
"Indenture" shall also include the terms of particular series of Securities
established as contemplated in Section 301.
"interest" means, when used with respect to a non-interest bearing
Security, interest payable after the principal thereof has become due and
payable whether at Maturity, by declaration of acceleration, by call for
redemption, pursuant to a sinking fund or otherwise, and, when used with respect
to an Original Issue Discount Security which by its terms bears interest only
after Maturity, interest payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an instalment of interest on such Security.
"Market Exchange Rate" means, unless otherwise specified with respect to
any Securities pursuant to Section 301, (a) for any conversion involving a
currency unit on the one hand and Dollars or any Foreign Currency on the other,
the exchange rate between the relevant currency unit and Dollars or such Foreign
Currency calculated by the method specified pursuant to Section 301 for the
Securities of the relevant series, (b) for any conversion of Dollars into any
Foreign Currency, the noon (New York City time) buying rate for such Foreign
Currency for cable transfers quoted in New York City as certified for customs
purposes by the Federal Reserve Bank of New York and (c) for any conversion of
one Foreign Currency into Dollars or another Foreign Currency, the spot rate at
noon local time in the relevant market at which in accordance with normal
banking procedures, the Dollars or Foreign Currency into which conversion is
being made could be purchased with the Foreign Currency from which conversion is
being made from major banks located in either New York City, London or any other
principal market for Dollars or such purchased Foreign Currency, in each case
determined by the Exchange Rate Agent. Unless otherwise specified with respect
to any Securities pursuant to Section 301, in the event of the unavailability of
any of the exchange rates provided for in the foregoing clauses (a), (b) and
(c), the Exchange Rate Agent shall use, in its sole discretion and without
liability on its part, such quotation of the Federal Reserve Bank of New York as
of the most recent available date, or quotations from one or more major banks in
New York City, London or any other principal market for such Currency in
question, or such other quotations as the Exchange Rate Agent shall deem
appropriate.
"Maturity", when used with respect to any Security, means the date on which
the principal of such Security or an instalment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption, pursuant to a sinking fund or
otherwise.
"Mortgage" has the meaning specified in Section 1004.
"Nonrecourse Obligation" means Debt or lease payment obligations
substantially related to (i) the acquisition of assets not currently owned by
the Company or any of its significant subsidiaries or (ii) the financing or the
construction of or improvements to equipment or facilities involving the
development of properties of the Company or any of its Significant Subsidiaries,
as to which the obligee with respect to such indebtedness or
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obligation has no recourse to the general corporate funds or the assets, in
general, of the Company or any of its Significant Subsidiaries.
"NYSE" means the New York Stock Exchange, Inc.
"Officers' Certificate" means a certificate signed by both (a) the Chairman
of the Board of Directors, a Vice Chairman of the Board of Directors, the
President or a Vice President and (b) the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee. Each such Officers' Certificate shall include the statements required
by Section 102 hereunder.
"Opinion of Counsel" means a written opinion of counsel who shall be
acceptable to the Trustee, who may be an employee of or counsel for the Company,
and which opinion complies with the requirements of Section 102.
"Original Issue Date" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of an Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding" when used with respect to Securities, means, except as
otherwise required by the Trust Indenture Act as of the date of determination,
all Securities theretofore authenticated and delivered under this Indenture,
except:
(a) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities, or portions thereof, 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 of any Coupons;
provided, however, 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
(c) 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 the Outstanding Securities of any series have taken any
action (including the making of any request, demand, authorization or
direction), the giving of any notice, consent or waiver (or the taking of any
other action) hereunder and in determining voting rights of any Holder of a
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Security hereunder (i) the principal amount of Original Issue Discount
Securities that shall be deemed to be Outstanding for such purposes shall be the
amount of the principal thereof that would be due and payable as of the date of
such determination upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502 and (ii) the principal amount of any Security, the
principal amount of which is denominated in a Specified Currency, shall be
deemed to be that amount as determined in accordance with Section 311 (or, in
the case of any Original Issue Discount Security, the amount determined in
accordance with clause (i) above as well as Section 311), and (iii) Securities
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor shall be disregarded and deemed not to
be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities which the Trustee knows to be so
owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or any such other obligor. In case of
a dispute as to such right, the advice of counsel shall be full protection in
respect of any decision made by the Trustee in accordance with such advice.
"Overdue Rate" means, unless otherwise specified in the Securities of any
series, the same rate as the rate of interest specified in the Securities of
such series or, in the case of a series of Original Issue Discount Securities,
the Yield to Maturity of such series of Securities.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium 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.
"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
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Property" means any real property, manufacturing plant,
warehouse or other physical facility and related fixtures and improvements,
located in the United States of America (excluding the territories and
possessions of the United States of America) and owned by the Company or any
Subsidiary, in each case the gross book value (without deduction of any
depreciation reserves) of which on the date as of which the determination is
being made exceeds 2% of Consolidated Net Tangible Assets, other than any such
facility or portion thereof which the Board of Directors of the Company declares
by resolution is not of material importance to the total business conducted by
the Company and its Subsidiaries as an entirety.
"Proceeding" has the meaning specified in Section 1402.
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"Record Date" for the interest payable on any Interest Payment Date on the
Securities of any series means the date specified as such in the terms of the
Securities of such series, or, if no such date is so specified, if such Interest
Payment Date is the first day of a calendar month, the fifteenth day of the next
preceding calendar month or, if such Interest Payment Date is the fifteenth day
of a calendar month, the last day of the preceding calendar month, whether or
not such Record Date is a Business Day.
"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 pursuant to this Indenture.
"Registered Holder" means the Holder of a Registered Security.
"Registered Security" means any Security issued under this Indenture which
is registered as to principal and interest in the Security Register.
"Responsible Officer", when used with respect to the Trustee, means any
officer of the Trustee with direct responsibility for the administration of this
Indenture 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.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Bearer Security, including any Coupon
appertaining thereto, or any Registered Security authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Senior Indebtedness" means all Debt of the Company including principal and
interest (and premium, if any) (including, without limitation, any interest that
would accrue but for the occurrence of any event specified in Section 501(6) or
(7) hereunder) on such Debt, created, incurred or assumed on or after the date
of the first issuance of any Subordinated Securities, except (i) existing
Subordinated Securities, (ii) such indebtedness as is by its terms expressly
stated to be junior in right of payment to Subordinated Securities, and (iii)
such indebtedness as is by its terms expressly stated to rank pari passu with,
the Subordinated Securities.
"Senior Securities" has the meaning stated in the first recital of this
Indenture.
"Significant Subsidiary" means any Subsidiary of the Company which owns
a Principal Property, any Subsidiary which accounts for 10% or more of the
consolidated annual net sales or total assets of the Company at the end of the
most recently completed fiscal year and any Subsidiary which owns directly or
indirectly stock of a Significant Subsidiary.
"Special Record Date" has the meaning specified in Section 307.
"Stated Maturity", when used with respect to any Security or any instalment
of principal thereof or interest thereon, means the date specified in such
Security as the fixed date
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on which the principal of such Security or such instalment of principal or
interest is due and payable.
"Subordinated Securities" has the meaning stated in the first recital of
this Indenture.
"Subordinated Securities Payment" has the meaning specified in Section
1402.
"Subsidiary" means a corporation whose accounts are consolidated with those
of the Company in accordance with generally accepted accounting principles.
"Trading Day" means, with respect to the Capital Stock, so long as the
Capital Stock is listed or admitted to trading on the NYSE, a day on which the
NYSE is open for the transaction of business, or, if the capital Stock is not
listed or admitted to trading on the NYSE, a day on which the principal national
securities exchange on which the Capital Stock is listed is open for the
transaction of business, or, if the Capital Stock is not so listed or admitted
for trading on any national securities exchange, a day on which NASDAQ is open
for the transaction of business.
"Trust Indenture Act" (except as otherwise provided in Section 905) means
the Trust Indenture Act of 1939, as amended, as in force at the date as of which
this instrument was executed; provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, "Trust Indenture Act" means,
to the extent required by any such amendment, the Trust Indenture Act of 1939 as
so amended.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this Indenture until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title of "vice president".
"Yield to Maturity" means, in the case of any Original Issue Discount
Security, the yield to maturity specified in such Security or in a Board
Resolution relating thereto.
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by any officer of the Company, or Opinion
of Counsel, if to be given by counsel, and shall comply with the requirements of
the Trust Indenture Act and any other requirements set forth in this Indenture.
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Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition 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 covenant or condition
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.
Any certificate or opinion of any independent firm of public accountants
filed with the Trustee shall contain a statement that such firm is independent.
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; Record Dates.
(a) Whenever in this Indenture it is provided that the Holders of a
specified percentage in aggregate principal amount of the Securities of any
series may take any action (including the making of any demand or request, the
giving of any notice, consent or
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waiver or the taking of any other action), the fact that at the time of taking
any such action the Holders of such specified percentage have joined therein may
be evidenced (1) by any instrument or any number of instruments of similar tenor
executed by such Holders in person or by agent or proxy appointed in writing, or
(2) by the record of such Holders of Securities voting in favor thereof at any
meeting of such Holders duly called and held, or (3) by a combination of such
instrument or instruments and any such record of such a meeting of such Holders;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments and/or such record are delivered
to the Trustee and, where it is expressly required, to the Company. Proof of
execution of any instrument or of a writing appointing any such agent or proxy
shall be sufficient for any purpose of this Indenture and (subject to the
requirements of the Trust Indenture Act and Section 601) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section 104.
Without limiting the generality of the foregoing, a Holder, including a
Depositary 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 or permitted in this
Indenture to be made, given or taken by Holders, and a Depositary that is a
Holder of a Global Security may provide its proxy or proxies to the beneficial
owners of interest in any such Global Security.
(b) Subject to the requirements of the Trust Indenture Act and Sections 601
and 603, proof of the execution of any instrument by a Holder or his agent or
proxy shall be sufficient if made in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in such manner as shall be
satisfactory to the Trustee.
(c) If the Company shall solicit from the Registered Holders any demand,
request, notice, consent, waiver or the taking of any other action, the Company
may, at its option, by a Board Resolution, fix in advance a record date for the
determination of Registered Holders entitled to give such demand, request,
notice, consent or waiver or to take such other action, but the Company shall
have no obligation to do so. If such a record date is fixed, such demand,
request, notice, consent, waiver or other action may be given before or after
the record date, but only the Registered Holders of record at the close of
business on the record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite percentage of Securities
Outstanding have authorized or agreed or consented to such demand, request,
notice, consent, waiver or taking of any other action, and for that purpose the
Securities Outstanding shall be computed as of the record date; provided,
however, that no such demand, request, notice, consent, waiver or taking of any
other action by the Holders on the record date shall be deemed effective unless
it shall become effective pursuant to the provisions of this Indenture not later
than six months after the Record Date.
(d) The ownership of Registered Securities shall be proved by the Security
Register or by a certificate of the Person designated by the Company to keep the
Security Register and to act as repository in accordance with the provisions of
Section 305.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other act of 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, omitted or suffered to be done by the
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Trustee, any Paying Agent or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
(f) At any time prior to (but not after) the evidencing to the Trustee of
the taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number or other distinguishing symbol of which is shown by the evidence
to be included among the serial numbers or other distinguishing symbols of the
Securities the Holders of which have consented to such action may, by filing
written notice at the Corporate Trust Office and upon proof of holding as
provided in this Article, revoke such action so far as concerns such Security.
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, Attention: Corporate
Trust Department, 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 it 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; Waiver.
Where this Indenture provides for notice to Holders of any event, (i) if
any of the Securities affected by such event are Registered Securities, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any)
prescribed for the giving of such notice, and, (ii) if any of the Securities
affected by such event are Bearer Securities, notice to the Holders thereof
shall be sufficiently given (unless otherwise herein or in the terms of such
Bearer Securities expressly provided) if published once in an Authorized
Newspaper in New York, New York, and in such other city or cities, if any, as
may be specified as contemplated in Section 301.
In any case where notice to Holders is given by mail, neither the failure
to mail such notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect to other
Holders. In any case where notice is given to Holders by publication, neither
the failure to publish such notice, nor any defect in any notice so published,
shall affect the sufficiency of such notice with respect to other Holders.
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,
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and such waiver shall be the equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver. Notwithstanding anything to the contrary elsewhere in this Indenture as
to the giving of notice, any other form of written notice is sufficient, if
received.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give any 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. If it is impossible or,
in the opinion of the Trustee, impracticable to give any notice by publication
in the manner herein required, then such publication in lieu thereof as shall be
made with the approval of the Trustee shall constitute a sufficient publication
of such notice.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
Section 107. Incorporators, Stockholders, Officers and Directors of Company
Exempt from Individual Liability.
To the extent permitted by law, no recourse under or upon any obligation,
covenant or agreement contained in this Indenture, or in any Security, or
because of any indebtedness evidenced thereby, shall be had against any
incorporator, as such, or against any past, present or future stockholder,
officer or director, as such, of the Company or of any successor, either
directly or through the Company or any successor, under any rule of law, statute
or constitutional provision or by the enforcement of any assessment or by any
legal or equitable proceeding or otherwise, all such liability being expressly
waived and released by the acceptance of the Securities by the Holders thereof
and as part of the consideration for the issue of the Securities.
Section 108. Conflict with Trust Indenture Act.
This Indenture is subject to the provisions of the Trust Indenture Act that
are required to be a part of this Indenture and shall, to the extent applicable,
be governed by such provisions. If any provision hereof limits, qualifies or
conflicts with a provision of the Trust Indenture Act that is required under
such Act to be a part of and govern this Indenture, the provision of the Trust
Indenture Act shall control. If any provision of this Indenture modifies or
excludes any provision of the Trust Indenture Act that may be so modified or
excluded, the latter provision shall be deemed to apply to this Indenture as so
modified or to be excluded, as the case may be.
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.
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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 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, express or implied, shall
give to any Person, other than the parties hereto and their successors hereunder
and the Holders, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
Section 113. Governing Law.
This Indenture and the Securities 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, Stated
Maturity or Maturity of any Security shall not be a Business Day at the place of
payment, then (notwithstanding any other provision on this Indenture or of the
Securities (other than a provision of the Securities of any series which
specifically states that such provision shall apply in lieu of this Section))
payment of interest or principal (and premium, if any) need not be made on such
date, but may be made on the next succeeding Business Day in such place with the
same force and effect as if made on such Interest Payment Date or Redemption
Date or at the Stated Maturity or Maturity; provided, however, that no interest
shall accrue for the period from and after such Interest Payment Date,
Redemption Date, Stated Maturity or Maturity, as the case may be, to the next
succeeding Business Day.
Section 115. Counterparts.
This Indenture 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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ARTICLE TWO
Security Forms
Section 201. Forms Generally.
The Securities of each series and any Coupons to be attached thereto shall
be substantially in such form as shall be established by a Board Resolution or
pursuant to authority granted by a Board Resolution or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and may have imprinted or otherwise reproduced thereon such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with any applicable law, rule or regulation
or with the rules of any securities exchange or as may, consistent with the
provisions of this Indenture, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities. Temporary
Securities of any series may be issued as permitted by Section 304. If the form
of Securities or Coupons of any series is established by action taken pursuant
to authority granted by a Board Resolution, a copy of an appropriate record of
any such action taken pursuant thereto, including a copy or the approved form of
Securities or Coupons, 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 Company Order contemplated in Section 303 for the authentication
and delivery of such Securities. Any portion of the text of any Security may be
set forth on the reverse thereof, with an appropriate reference thereto on the
face of the Security.
Unless otherwise specified as contemplated in Section 301, Bearer
Securities shall have Coupons attached.
The definitive Securities and Coupons shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Securities, as evidenced by their
execution of such Securities and 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 herein and
referred to in the within-mentioned Indenture.
Fleet National Bank,
as Trustee
By_________________________________
Authorized Officer
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Section 203. Additional Provisions Required in Global Security.
Any Global Security authenticated and delivered hereunder shall bear a
legend in substantially the following form:
"This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee thereof. This Security may not be transferred to, or registered or
exchanged for Securities registered in the name of, any Person other than the
Depositary or a nominee thereof and no such transfer may be registered, except
in the limited circumstances described in the Indenture. Every Security
authenticated and delivered upon registration or transfer of, or in exchange for
or in lieu of, this Security shall be a Global Security subject to the
foregoing, except in such limited circumstances."
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in a Board Resolution or pursuant to authority granted by a Board
Resolution, a copy of which, certified by the Secretary or an assistant or
attesting Secretary of the Company, shall be delivered to the Trustee, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of a particular series, the following:
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from Securities of all other series);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906 or 1107 and except for any
Securities which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(3) the manner in which or the Person to whom any interest on a
Registered Security of the series shall be payable, if other than the
Person in whose name that Registered Security (or one or more Predecessor
Securities) is registered at the close of business on the Record Date for
such interest;
(4) the date or dates on which the principal of the Securities of the
series is payable or the method by which such date or dates may be
determined;
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(5) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method by which such rate or rates (including the
Overdue Rate) shall be determined, the date or dates from which such
interest shall accrue or the method by which such date or dates may be
determined, the Interest Payment Dates on which such interest shall be
payable and the Record Dates for the determination of Holders to whom
interest is payable;
(6) the place or places where the principal of and any premium and
interest on Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at which,
the Currency in which and other terms and conditions upon which Securities
of the series may be redeemed, in whole or in part, at the option of the
Company, if the Company is to have that option;
(8) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which, the Currency in which, and
other terms and conditions upon which Securities of the series shall be
redeemed, repurchased or repaid, in whole or in part, pursuant to such
obligation;
(9) the period or periods within which, the price or prices at which
and the terms and conditions upon which Securities of the series may be
repaid, in whole or in part, at the option of the Holder thereof;
(10) if other than Dollars, the Foreign Currency in which payment of
the principal of (and premium, if any, on) or interest, if any, on the
Securities of the series shall be payable or in which the Securities of the
series shall be denominated and the particular provisions applicable
thereto in accordance with, in addition to or in lieu of any of the
provisions of Section 311;
(11) if the principal of, and any premium and interest on, the
Securities of the series are to be payable, at the election of the Company
or a Holder thereof, in a Currency other than that in which the Securities
are stated to be payable, the period or periods within which (including the
Election Date), and the terms and conditions upon which, such election may
be made;
(12) if the amount of payments of principal of, and any premium and
interest on, the Securities of the series may be determined with reference
to an index, formula or other method, the manner in which such amounts
shall be determined;
(13) the applicability, if any, of Section 1302 or Section 1303 to the
Securities of such series, or such other means of defeasance or covenant
defeasance as may be specified for the Securities of such series, and
whether, for the purpose of such defeasance or covenant defeasance, the
term "Government Obligations" shall include obligations referred to in the
definition of such term which are not obligations of the United States of
America or an agency or instrumentality of the United States of America;
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(14) if other than denominations of $1,000 or any integral multiple
thereof, the denominations in which Registered Securities of the series
shall be issuable and, if other than the denomination of $5,000, the
denominations in which any Bearer Securities of the series may be issuable;
(15) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502
or provable in bankruptcy pursuant to Section 504;
(16) if the Securities of the series are Original Issue Discount
Securities, the price at which and the date on which Securities of the
series are to be issued and the Yield to Maturity at the time of issuance
of such series;
(17) whether Securities of the series shall be issuable as Registered
Securities or Bearer Securities (with or without Coupons), or both, and any
restrictions applicable to the offering, sale or delivery of Bearer
Securities and, if other than as provided in Section 305, the terms upon
which Bearer Securities of a series may be exchanged for Registered
Securities of the same series and vice versa;
(18) 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 original issue date of the first Security
of the series to be issued;
(19) the forms of the Securities and Coupons, if any, of the series;
(20) if and as applicable, that the Securities of the series shall be
issuable in whole or in part in the form of one or more Global Securities
and, in such case, the Depositary or Depositaries for such Global Security
or Global Securities and any circumstances other than those set forth in
Section 305 in which any such Global Security may be transferred to, and
registered and exchanged for Registered Securities in the name of, a Person
other than the Depositary for such Global Security or nominee thereof, and
in which any such transfer may be registered, or, if other than as provided
in Section 305, the circumstances under which any exchange may occur;
(21) with respect to such series of Securities, the "stated intervals"
and the method of determining the "record date" for purposes of sections
312(a) and 316(c), respectively, of the Trust Indenture Act;
(22) whether the Securities of such series shall be subordinated and
subject in right of payment to the prior payment in full of all Senior
Indebtedness as set forth in Article Fourteen hereunder; and
(23) any other terms of the series which are not inconsistent with
this Indenture.
All Securities of any one series shall be substantially identical except as
to denomination, interest rate and maturity and except as may otherwise be
provided in or
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pursuant to such Board Resolution or in any such indenture supplemental hereto.
The applicable Board Resolution or the applicable supplemental indenture may
provide that Securities of any particular series may be issued at various times,
with different Maturities and redemption and repayment provisions (if any) and
bearing interest at different rates, but shall for all purposes under this
Indenture, including, but not limited to, voting and Events of Default, be
treated as Securities of a single series.
Section 302. Denominations.
In the absence of any specification as contemplated in Section 301 with
respect to the Securities of any series, any Securities of a series shall be
issuable in denominations of U.S. $1,000 (or, if such Securities are denominated
in a currency other than United States dollars or in a composite currency, 1,000
units of such other currency or composite currency) and any integral multiple
thereof. The Securities of each series shall be numbered, lettered or otherwise
distinguished in such manner or in accordance with such plan as the officers of
the Company who execute such Securities may determine with the approval of the
Trustee as evidenced by the execution and authentication thereof.
Section 303. Execution, Authentication, Delivery and Dating of Securities.
The Securities shall be signed on behalf of the Company by its Chairman of
the Board of Directors, its Vice Chairman of the Board of Directors, its
President or any of its Vice Presidents, under its corporate seal which may, but
need not, be attested by its Secretary or any of its Assistant Secretaries. Such
signatures may be the manual or facsimile signatures of such officers. The seal
of the Company may be in the form of a facsimile thereof and may be impressed,
affixed, imprinted or otherwise reproduced on the Securities. Typographical and
other minor errors or defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of any Security that
has been duly authenticated and delivered by the Trustee.
In case any officer of the Company who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall be
authenticated and delivered by the Trustee or disposed of by the Company, such
Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security had not ceased to be such officer of
the Company; and any Security may be signed on behalf of the Company by such
persons as, at the actual date of the execution of such Security, shall be the
proper officers of the Company, although at the date of the execution and
delivery of this Indenture any such person was not such an officer.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee, in accordance
with the Company Order, shall thereupon authenticate and deliver such Securities
without any further action by the Company. 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 the
requirements of the Trust Indenture Act) shall be fully protected in relying
upon:
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(1) a copy of any Board Resolution or Board Resolutions relating to
such series and, if applicable, an appropriate record of any action taken
pursuant to such Board Resolutions as prescribed in Sections 201 and 301;
(2) an executed supplemental indenture, if any, relating thereto;
(3) an Officers' Certificate setting forth the form and terms of the
Securities as required pursuant to Sections 201 and 301, respectively, and
prepared in accordance with the requirements of the Trust Indenture Act and
Section 103; or
(4) an Opinion of Counsel, prepared in accordance with the
requirements of the Trust Indenture Act and Section 103, which shall state
that:
(a) if the form of such Securities has been established by a
Board Resolution or pursuant to authority granted by a Board
Resolution as permitted by Section 201, such form has been established
in conformity with the provisions of this Indenture;
(b) the terms of such Securities have been established by a Board
Resolution or pursuant to authority granted by a Board Resolution as
permitted by Section 301 in conformity with the provisions of this
Indenture;
(c) such Securities, when issued by the Company and authenticated
and delivered by the Trustee in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and binding obligations of the Company, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting the
enforcement of creditors' rights generally and to general principles
of equity;
(d) that the issuance of such Securities will not conflict with
or result in a breach of the terms or provisions of the certificate of
incorporation or bylaws of the Company, or any indenture, mortgage or
other agreement known to such counsel by which the Company is bound;
(e) that all laws and requirements in respect of the execution
and delivery by the Company of such Securities and of such
supplemental indenture, if any, have been complied with and that
authentication and delivery of such Securities by the Trustee and the
execution and delivery of such supplemental indenture, if any, by the
Trustee will not violate the terms of this Indenture; and
(f) that the Company has the corporate power to issue such
Securities, and has taken all necessary corporate action with respect
to such issuance.
The Trustee shall have the right to decline to authenticate and deliver any
Securities under this Section if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken by the Company or if the
Trustee in good faith by its board
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of directors or board of trustees, executive committee or a trust committee of
directors or trustees or Responsible Officers shall determine that such action
would expose the Trustee to personal liability to existing Holders or would
adversely affect the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
The Trustee shall not be required to authenticate Securities denominated in
a coin or currency other than that of the United States of America if the
Trustee reasonably determines that such Securities impose duties or obligations
on the Trustee which the Trustee is not able or reasonably willing to accept;
provided, however, that the Trustee, upon the request of the Company, will
resign as Trustee with respect to Securities of any series as to which such a
determination is made, prior to the issuance of such Securities, and will comply
with the request of the Company to execute and deliver a supplemental indenture
appointing a successor Trustee pursuant to Section 901.
Notwithstanding the provisions of Section 301 and this Section 303, if all
Securities of a series are not to be originally issued at one time, it shall not
be necessary to deliver the Officers' Certificate, Opinion of Counsel and
Company Order otherwise required pursuant to this Section 303 at or prior to the
time of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
Each Security shall be dated the date of its authentication, shall bear
interest, if any, from the date, and shall be payable on the dates, in each
case, which shall be specified as contemplated in Section 301.
Only such Securities as shall bear thereon a certificate of authentication
substantially in the form hereinbefore recited, executed by the Trustee by the
manual signature of one of its authorized signatories, shall be entitled to the
benefits of this Indenture or be valid or obligatory for any purpose. Such
certificate by the Trustee upon any Security executed by the Company shall be
conclusive evidence that the Security so authenticated has been duly
authenticated and delivered hereunder and that the Holder is entitled to the
benefits of this Indenture. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309, for all purposes of this Indenture such
Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities for any series, the
Company may execute, and upon a Company Order the Trustee shall authenticate and
deliver, temporary Securities for such series printed, lithographed, typewritten
or otherwise produced. Temporary Securities of any series shall be issuable,
with or without coupons, in any authorized denomination, and substantially of
the tenor or form of the definitive Securities of such series in lieu of which
they are issued but with such omissions, insertions and variations as may be
appropriate for temporary Securities, all as may be determined by the Company.
Temporary Securities may contain such reference to any provisions of this
Indenture as may be appropriate. Every temporary Security shall be authenticated
by the Trustee upon the same conditions and in substantially the same manner,
and with like effect, as the definitive
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Securities in lieu of which they are issued. Without unreasonable delay the
Company shall execute and shall furnish definitive Securities of such series and
thereupon temporary Securities of such series may be surrendered (together with
any unmatured Coupons) in exchange therefor without charge at each office or
agency to be maintained by the Company for that purpose pursuant to Section
1002, and the Trustee shall authenticate and deliver in exchange for such
temporary Securities of such series a like aggregate principal amount of
definitive Securities of the same series of authorized denominations having the
same interest rate, Maturity and redemption and repayment provisions and bearing
interest from the same date as such temporary Securities; provided, however,
that no definitive Bearer Security shall be delivered in exchange for a
temporary Registered Security; and provided, further, that no definitive Bearer
Security shall be delivered in exchange for a temporary Bearer Security unless
the Trustee shall have received from the Person entitled to receive the
definitive Bearer Security a certificate substantially in the form approved in
the Board Resolutions relating thereto and such delivery shall occur only
outside the United States of America. Until so exchanged, the temporary
Securities of any series shall be entitled to the same benefits under this
Indenture as definitive Securities of the same series authenticated and
delivered hereunder.
Section 305. Registration, Registration of Transfer and Exchange.
The Company will keep, either at the office or agency designated and
maintained by the Company for such purpose in the Borough of Manhattan, The City
of New York, in accordance with the provisions of Section 1002, or at any of
such other offices or agencies as may be designated and maintained in accordance
with the provisions of Section 1002, a register or registers in which, subject
to such reasonable regulations as it may prescribe, it will register, and will
register the transfer of, Registered Securities of a series. Each such register
is sometimes herein referred to as a "Security Register". Each Security Register
shall be in written form in the English language or in any other form capable of
being converted into such form within a reasonable time. At all normal business
hours such Security Register shall be open for inspection by the Trustee and any
Security Registrar.
Upon surrender for registration of transfer of any Security of any series
at any such office or agency to be maintained for the purpose as provided in
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 and of like tenor in any authorized
denomination for a like aggregate principal amount and having the same interest
rate, Maturity, repayment and redemption provisions.
Bearer Securities (except for any temporary global Bearer Securities) or
any Coupons appertaining thereto (except for Coupons attached to any temporary
global Bearer Security) shall be transferable by delivery.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series and of like tenor
in other authorized denominations, in an equal aggregate principal amount and
having the same interest rate, Maturity, repayment and redemption provisions.
Registered Securities of any series to be exchanged shall be surrendered at any
office or agency to be maintained by the Company for the purpose as provided in
Section 1002, and the Company shall execute, and the Trustee shall authenticate
and deliver, in exchange therefor the Registered Securities of the same series
and having the same interest rate and Maturity which the Holder making the
exchange shall be
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entitled to receive, bearing numbers or other distinguishing symbols not
contemporaneously outstanding. Each Person designated by the Company pursuant to
the provisions of Section 1002 as a Person authorized to register and register
transfer of the Registered Security is sometimes herein referred to as a
"Security Registrar".
Unless otherwise specified as contemplated in Section 301, at the option of
the Holder, Bearer Securities of such series may be exchanged for Registered
Securities (if the Securities of such series are issuable in registered form) or
Bearer Securities (if Bearer Securities of such series are issuable in more than
one denomination and such exchanges are permitted by such series) of the same
series, of any authorized denominations and of like tenor 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. If the Holder of a Bearer Security is unable to produce any such
unmatured Coupon or matured Coupon 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 the surrender of such missing Coupon 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 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 of America.
Notwithstanding the foregoing, in case any Bearer Security of any series is
surrendered at any such office or agency in exchange for a Registered Security
of the same series after the close of business at such office or agency on (i)
any 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 of 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.
The Company will at all times designate one Person (who may be the Company
and who need not be a Security Registrar) to act as repository of a master list
of names and addresses of the Holders of the Registered Securities. The
Corporate Trust Office of the Trustee shall act as such repository unless and
until some other Person is, by written notice from the Company to such office or
agency and each Security Registrar, designated by the Company to act as such.
The Company shall cause each Security Registrar to furnish to such repository,
on a current basis, such information as to all registrations of transfer and
exchanges effected by such Security Registrar, as may be necessary to enable
such repository to maintain the master list of Registered Holders on as current
a basis as is practicable.
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No Person shall at any time be designated as or act as a Security Registrar
unless such Person is at such time empowered under applicable law to act as such
and duly registered to act as such under and to the extent required by
applicable law and regulations.
Every Registered Security presented for registration of transfer, exchange,
redemption or payment shall (if so required by the Company or the Trustee) be
duly endorsed by, or be accompanied by a written instrument of transfer or
exchange in form satisfactory to the Company and the Trustee duly executed by,
the Holder or his attorney duly authorized in writing.
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 exchange or
registration of transfer of Securities, other than exchanges pursuant to Section
304, 906 or 1107 not involving any registration of transfer. No service charge
shall be made for any such transaction.
The Company shall not be required (1) to exchange or register a transfer of
any Securities of any series for a period of 15 days next preceding the
selection of Securities of that series to be redeemed, (2) to exchange or
register a transfer of any Registered Securities selected, called or being
called for redemption or surrendered for repayment in whole or in part except,
in the case of any Security to be redeemed or repaid in part, the portion
thereof not so to be redeemed or repaid, or (3) to exchange any Bearer Security
so selected for redemption, except that such a Bearer Security may be exchanged
for a Registered Security of that series and like tenor; provided, however, that
such Registered Security shall be simultaneously surrendered for redemption.
Notwithstanding the foregoing and except as otherwise specified or
contemplated in Section 301, no Global Security shall be exchangeable pursuant
to this Section 305 or Sections 304, 906, and 1107 for the Securities of, and no
transfer of a Global Security of any series may be registered to, any Person
other than the Depositary for such Security or its nominee unless (1) such
Depositary (A) notifies the Company that it is unwilling or unable to continue
as Depositary for such Global Security or (B) ceases to be a clearing agency
registered under the Securities Exchange Act of 1934, as amended, (2) the
Company executes and delivers to the Trustee a Company Order that such Global
Security shall be so exchangeable and the transfer thereof so registerable, or
(3) there shall have occurred and be continuing an Event of Default, or an event
which after notice or lapse of time would be an Event of Default, with respect
to the Securities evidenced by such Global Security. Upon the occurrence in
respect of any Global Security of any series of any one or more of the
conditions specified in clauses (1), (2) or (3) of the preceding sentence or
such other conditions as may be specified as contemplated in Section 301 for
such series, such as that the Securities of such series may be exchanged for
Bearer Securities, such Global Security may be exchanged for Registered
Securities in the names of, and the transfer of such Global Security may be
registered to, such Persons (including Persons other than the Depositary with
respect to such series and its nominees), as such Depositary shall direct.
Notwithstanding any other provision of this Indenture, any Security
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, any Global Security shall also be a Global Security and
shall bear the legend specified in Section 203 except for any Security
authenticated and delivered in exchange for, or upon registration of transfer
of, a Global Security pursuant to the preceding sentence.
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Section 306. Mutilated, Defaced, Destroyed, Lost and Stolen Securities.
In case any temporary or definitive Security or Coupon shall become
mutilated or defaced or be destroyed, lost or stolen, 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 may in its discretion execute, and the
Trustee, upon a Company Request, shall authenticate and deliver, a new
Registered Security, if such surrendered Security was a Registered Security, or
a new Bearer Security with Coupons corresponding to the Coupons appertaining to
the surrendered Security, if such surrendered Security was a Bearer Security,
which shall be of the same series and of like tenor and aggregate principal
amount, bearing a number or other distinguishing symbol not contemporaneously
Outstanding, in exchange and substitution for the mutilated or defaced Security,
or in lieu of and substitution for the Security so destroyed, lost or stolen. In
every case the applicant for a substitute Security shall furnish to the Company
and to the Trustee (and any agent of the Company or Trustee, if requested by the
Company) such security or indemnity as may be required by them to indemnify and
defend and to save each of them harmless and, in every case of destruction, loss
or theft, evidence to their satisfaction of the destruction, loss or theft of
such Security, or of such Coupon appurtenant thereto, and of the ownership
thereof.
Upon the issuance of any substitute Security, 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.
In case any Security that has matured or is about to mature or has been
called for redemption in full shall become mutilated or defaced or be destroyed,
lost or stolen, the Company in its discretion may instead of issuing a
substitute Security pay or authorize the payment of the same (without surrender
thereof except in the case of a mutilated or defaced Security), if the applicant
for such payment shall furnish to the Company and to the Trustee (and any agent
of the Company or the Trustee, if requested by the Company or the Trustee) such
security or indemnity as any of them may require to indemnify and defend and to
save each of them harmless, and, in every case of destruction, loss or theft,
evidence to their satisfaction of the destruction, loss or theft of such
Security and of the ownership thereof.
Every substituted Security (and every appurtenant Coupon, if any) of any
series issued pursuant to the provisions of this Section by virtue of the fact
that any such Security is destroyed, lost or stolen shall constitute an
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone and shall be
entitled to all the benefits of (but shall be subject to all the limitations of
rights set forth in) this Indenture equally and proportionately with any and all
other Securities of such series duly authenticated and delivered hereunder. All
Securities shall be held and owned upon the express condition that, to the
extent permitted by law, the foregoing provisions are exclusive with respect to
the replacement or payment of mutilated, defaced, destroyed, lost or stolen
Securities and shall preclude (to the extent lawful) any and all other rights or
remedies notwithstanding any law or statute existing or hereafter enacted to the
contrary with respect to the replacement or payment of negotiable instruments or
other securities without their surrender.
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Section 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise specified for a particular series pursuant to Section
301, interest on any Registered Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Registered Security (or one or more Predecessor
Securities) is registered in the Security Register at the close of business on
the Record Date for such interest either (i) by check mailed to the address of
such Person as referenced in the Security Register or (ii) by wire transfer to
an account designated by such Person pursuant to an arrangement that is
satisfactory to the Company and the Trustee. Unless otherwise provided pursuant
to Section 301, the Company shall pay to the Trustee or the Paying Agent the
aggregate amount of interest in immediately available funds by 10:00 A.M. New
York City time on the Interest Payment Date. The Trustee shall not be held
responsible or liable for any loss resulting from a failure of the federal funds
wire system or any other occurrence beyond its control in connection with wire
transfers made pursuant to this Section 307.
Except as otherwise specified for a particular series pursuant to Section
301, (i) interest on any Bearer Securities shall be paid only against
presentation and surrender of the Coupons for such interest installments as are
evidenced thereby as they mature and (ii) the accreted amount, if any, with
respect to Bearer Securities which constitute Original Issue Discount Securities
shall be paid only against presentation and surrender of such Securities; in
either case at the office of a Paying Agent located outside the United States of
America, unless the Company shall have otherwise instructed the Trustee in
writing, provided that the Company furnishes the Trustee with an Opinion of
Counsel stating that any such instruction for payment in the United States of
America does not cause any Bearer Security to be treated as a
"registration-required obligation" under United States laws and regulations. The
interest on any temporary Bearer Security shall be paid, as to any installment
of interest evidenced by a Coupon attached thereto, only upon presentation and
surrender of such Coupon and, as to other installments of interest, only upon
presentation of such Security for notation thereon of the payment of such
interest. If at the time a payment of principal of or interest on a Bearer
Security or Coupon shall become due, the payment of the full amount so payable
at the office or offices of all the Paying Agents outside the United States is
illegal or effectively precluded because of the imposition of exchange controls
or other similar restrictions on the payment of such amount in United States
dollars, then the Company may instruct the Trustee in writing to make such
payments at a Paying Agent located in the United States of America, provided
that the Company furnishes the Trustee with an Opinion of Counsel stating that
provision for such payment in the United States of America would not cause such
Bearer Security to be treated as a "registration-required obligation" under
United States laws and regulations.
Any interest on any Registered Security of any series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant 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 of such series (or
their respective Predecessor Securities) are registered at the close of
business on a special record date ("Special Record Date") for the payment
of such Defaulted Interest which shall be
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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
Security of such series 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 Registered
Securities of such series at its address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date. Notice
of the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted Interest shall be paid
to the Persons in whose names the Registered Securities of such series (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 on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such
Registered Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 307, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry all the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or the Trustee may
deem and treat the Person in whose name any Registered Security shall be
registered in the Security Register for such series as the absolute owner of
such Registered Security (whether or not such Registered Security shall be
overdue and notwithstanding any notation of ownership or other writing thereon)
for the purpose of receiving payment of or on account of the principal of and,
subject to the provisions of this Indenture, any premium or interest on, such
Registered Security and for all other purposes; and neither the Company nor the
Trustee nor any agent of the Company or the Trustee shall be affected by any
notice to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the bearer of any Bearer Security and the bearer of any Coupon as the
absolute owner of such Bearer Security or Coupon for the purpose of receiving
payment thereof or on account
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thereof and for all other purposes whatsoever, whether or not such Bearer
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.
All payments so made to any such Person or bearer, or upon his order, shall
be valid and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable upon any such Security.
Section 309. Cancellation.
All Securities and Coupons surrendered for the purpose of payment,
redemption, registration of transfer or exchange, or for credit against any
payment in respect of a sinking or analogous fund, if surrendered to the
Company, any Security Registrar, any Paying Agent or any other agent of the
Company or any agent of the Trustee, shall be delivered to the Trustee and
promptly canceled by it or, if surrendered to the Trustee, shall be promptly
canceled by it; and no Securities shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. The Trustee
shall destroy canceled Securities and Coupons held by it and, in the case of
canceled Securities, deliver a certificate of destruction to the Company. If the
Company shall acquire any of the Securities, such acquisition shall not operate
as a redemption or satisfaction of the indebtedness represented by such
Securities unless and until the same are delivered to the Trustee for
cancellation.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated in 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.
Section 311. Currency and Manner of Payments in Respect of Securities.
(a) Unless otherwise specified with respect to any Securities pursuant to
Section 301, with respect to Registered Securities of any series not permitting
the election provided for in paragraph (b) below or the Holders of which have
not made the election provided for in paragraph (b) below, and with respect to
Bearer Securities of any series, except as provided in paragraph (d) below,
payment of the principal of (and premium, if any, on) and interest, if any, on
any Registered or Bearer Security of such series will be made in the Currency in
which such Registered Security or Bearer Security, as the case may be, is
payable. The provisions of this Section 311 may be modified or superseded with
respect to any Securities pursuant to Section 301.
(b) It may be provided pursuant to Section 301 with respect to Registered
Securities of any series that Holders shall have the option, subject to
paragraphs (d) and (e) below, to receive payments of principal of (and premium,
if any, on) or interest, if any, on such Registered Securities in any Currency
which may be designated for such election by delivering to the Trustee for such
series of Registered Securities a written election with signature guarantees and
in the applicable form established pursuant to Section 301, not later than the
close of business on the Election Date immediately preceding the applicable
payment date. If a Holder so elects to receive such payments in any such
Currency, such election will remain in effect for such Holder or any transferee
of such Holder until changed by such
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Holder or such transferee by written notice to the Trustee for such series of
Registered Securities (but any such change must be made not later than the close
of business on the Election Date immediately preceding the net payment date to
be effective for the payment to be made on such payment date and no such change
of election made be made with respect to payments to be made on any Registered
Security of such series with respect to which (i) an Event of Default has
occurred, (ii) the Company has deposited funds pursuant to Articles Four or
Fourteen, (iii) a notice of redemption has been given by the Company or (iv) a
notice of option to elect repayment has been given by such Holder or such
transferee). Any Holder of any such Registered Security who shall not have
delivered any such election to the Trustee of such series of Registered
Securities not later than the close of business on the applicable Election Date
will be paid the amount due on the applicable payment date in the relevant
Currency as provided in subsection (a) above. The Trustee for each such series
of Registered Securities shall notify the Exchange Rate Agent as soon as
practicable, but not later than two Business Days after the Election Date of the
aggregate principal amount of Registered Securities for which Holders have made
such written election.
(c) Unless otherwise specified pursuant to Section 301, if the election
referred to in paragraph (b) above has been provided for pursuant to Section
301, then, not later than the fourth Business Day after the Election Date for
each payment date for Registered Securities of any series, the Exchange Rate
Agent will deliver to the Company a written notice specifying, in the Currency
in which Registered Securities of such series are payable, the respective
aggregate amounts of principal of (and premium, if any, on) and interest, if
any, on the Registered Securities to be paid on such payment date, specifying
the amounts in such Currency so payable in respect of the Registered Securities
as to which the Holders of Registered Securities denominated in any Currency
shall have elected to be paid in another currency as provided in paragraph (b)
above. If the election referred to in paragraph (b) above has been provided for
pursuant to Section 301 and if at least one Holder has made such election, then,
unless otherwise specified pursuant to Section 301, on the second Business Date
preceding such payment date the Company will deliver to the Trustee for such
series of Registered Securities an Exchange Rate Officer's Certificate in
respect of the Dollar or Foreign Currency payments to be made on such payment
date. Unless otherwise specified pursuant to Section 301, the Dollar or Foreign
Currency amount receivable by Holders of registered Securities who have elected
payment in a Currency as provided in paragraph (b) above shall be determined by
the Company on the basis of the applicable Market Exchange Rate in effect on the
third Business Day (the "Valuation Date") immediately preceding each payment
date, and such determination shall be conclusive and binding for all purposes,
absent manifest error.
(d) If a Conversion Event occurs with respect to a Foreign Currency in
which any of the Securities are denominated or payable other than pursuant to an
election provided for pursuant to paragraph (b) above, then with respect to each
date for the payment of principal of (and premium, if any, on) and interest, if
any, on the applicable Securities denominated or payable in such Foreign
Currency occurring after the last date on which such Foreign Currency was used
(the "Conversion Date"), the Dollar shall be the Currency of payment for use on
each such payment date. Unless otherwise specified pursuant to Section 301, the
Dollar amount to be paid by the Company to the Trustee or any Paying Agent to
the Holders of such Securities with respect to such payment date shall be, in
the case of a Foreign Currency other than a currency unit, the Dollar Equivalent
of the Foreign Currency or, in the
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case of a currency unit, the Dollar Equivalent of the Currency Unit, in each
case as determined by the Exchange Rate Agent in the manner provided in
paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 301, if the Holder of a
Registered Security denominated in any Currency shall have elected to be paid in
another Currency as provided in paragraph (b) above, and a Conversion Event
occurs with respect to such elected Currency, such Holder shall receive payment
in the Currency in which payment would have been made in the absence of such
election; and if a Conversion Event occurs with respect to the Currency in which
payment would have been made in the absence of such election, such Holder shall
receive payment in Dollars as provided in subsection (d) above.
(f) The "Dollar Equivalent of the Foreign Currency" shall be determined by
the Exchange Rate Agent and shall be obtained for each subsequent payment date
by converting the specified Foreign Currency into Dollars at the Market Exchange
Rate on the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be determined by the
Exchange Rate Agent and subject to the provisions of paragraph (h) below shall
be the sum of each amount obtained by converting the Specified Amount of each
Component Currency into Dollars at the Market Exchange Rate for such Component
Currency on the Valuation Date with respect to each payment.
(h) For purposes of this Section 311 the following terms shall have the
following meanings:
A "Component Currency" shall mean any Currency which, on the
Conversion Date, was a component currency of the relevant currency unit,
including, but not limited to, the ECU.
A "Specified Amount" of a Component Currency shall mean the number of
units of such Component Currency or fractions thereof which were
represented in the relevant currency unit, including, but not limited to,
the ECU, on the Conversion Date. If after the Conversion Date the official
unit of any Component Currency is altered by way of combination or
subdivision, the Specified Amount of such Component Currency of the
relevant currency shall be divided or multiplied in the same proportion. If
after the Conversion Date two or more Component Currencies are consolidated
into a single Currency, the respective Specified Amounts of such Component
Currencies shall be replaced by an amount in such single Currency equal to
the sum of the respective Specified Amounts of such consolidated Component
Currencies expressed in such single Currency, and such amount shall
thereafter be a Specified Amount and such single Currency shall thereafter
be a Component Currency. If after the Conversion Date any Component
Currency shall be divided into two or more Currencies, the Specified Amount
of such Component Currency shall be replaced by amounts of such two or more
Currencies, having an aggregate dollar Equivalent Value at the Market
Exchange Rate on the date of such replacement equal to the Dollar
Equivalent of the Specified Amount of such former Component Currency at the
Market Exchange Rate immediately before such division and such amounts
shall thereafter be Specified Amounts and such currencies shall thereafter
be Component Currencies. If, after the Conversion Date of the relevant
currency unit, including, but
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not limited to, the ECU, a Conversion Event (other than any event referred
to above in this definition of "Specified Amount") occurs with respect to
any Component Currency of such currency unit and is continuing on the
applicable Valuation Date, the Specified Amount of such Component Currency
shall, for purposes of calculation the Dollar Equivalent of the Currency
Unit, be converted into Dollars at the Market Exchange Rate in effect on
the Conversion Date of such Component Currency.
"Election Date" shall mean the date for any series of Registered
Securities as specified pursuant to Section 301(11) by which the written
election referred to in subsection (b) above may be made.
All decisions and determinations by the Exchange Rate Agent regarding the
Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the Currency
Unit, the Market Exchange Rate and changes in the Specified Amounts as specified
above shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and irrevocably binding upon the Company
and the Trustee for the appropriate series of Securities and all Holders of such
Securities denominated or payable in the relevant Currency. The Exchange Rate
Agent shall promptly give written notice to the Company and the Trustee for the
appropriate series of Securities of any such decision or determination.
In the event that the Company determines in good faith that a Conversion
Event has occurred with respect to a Foreign Currency, the Company will
immediately give written notice thereof to the Trustee of the appropriate series
of Securities and to the Exchange Rate Agent (and such Trustee will promptly
thereafter give notice in the manner provided in Section 106 to the affected
Holders) specifying the Conversion Date. In the event the Company so determines
that a Conversion Event has occurred with respect to the ECU or any other
currency unit in which Securities are denominated or payable, the Company will
immediately give written notice thereof to the Trustee of the appropriate series
of Securities and to the Exchange Rate Agent (and such Trustee will promptly
thereafter give notice in the manner provided in Section 106 to the affected
Holders) specifying the Conversion Date and the Specified Amount of each
Component Currency on the Conversion Date. In the event the Company determines
in good faith that any subsequent change in any Component Currency as set forth
in the Company will similarly give written notice to the Trustee of the
appropriate series of Securities and to the Exchange Rate Agent.
The Trustee of the appropriate series of Securities shall be fully
justified and protected in relying and acting upon information received by it
from the Company and the Exchange Rate Agent and shall not otherwise have any
duty or obligation to determined the accuracy or validity of such information
independent of the Company or the Exchange Rate Agent.
Section 312. Appointment and Resignation of Successor Exchange Rate Agent.
(a) Unless otherwise specified pursuant to Section 301, if and so long as
the Securities of any series (i) are denominated in a Currency other than
Dollars or (ii) may be payable in a Currency other than Dollars, or so long as
it is required under any other provision of this Indenture, then the Company
will appoint and maintain with respect to each such series of Securities, or as
so required, at least one Exchange Rate Agent. The Company will cause the
Exchange Rate Agent to make the necessary foreign exchange determinations at the
time
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and in the manner specified pursuant to Section 301 for the purpose of
determining the applicable rate of exchange and, if applicable, for the purpose
of converting the issued Currency into the applicable payment Currency for the
payment of principal (and premium, if any) and interest, if any, pursuant to
Section 311.
(b) No resignation of the Exchange Rate Agent and no appointment of a
successor Exchange Rate Agent pursuant to this Section shall become effective
until the acceptance of appointment by the successor Exchange Rate Agent as
evidenced by a written instrument delivered to the Company, with a copy to the
Trustee accepting such appointment executed by the successor Exchange Rate
Agent.
(c) If the Exchange Rate Agent shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of the Exchange Rate Agent
for any cause, with respect to the Securities of one or more series, the
Company, by or pursuant to a Board Resolution, shall promptly appoint a
successor Exchange Rate Agent or Exchange Rate Agents with respect to the
Securities of that or those series (it being understood that any such successor
Exchange Rate Agent may be appointed with respect to the Securities of one or
more or all of such series and that, unless otherwise specified pursuant to
Section 301, at any time there shall only be one Exchange Rate Agent with
respect to the Securities of any particular series that are originally issued by
the Company on the same date and that are initially denominated and/or payable
in the same Currency).
Section 313. Compliance with Certain Laws and Regulations.
If any Bearer Securities are to be issued in any series of Securities, the
Company will use reasonable efforts to provide for arrangements and procedures
designed pursuant to then applicable laws and regulations, if any, to ensure
that Bearer Securities are sold or resold, exchanged, transferred and paid only
in compliance with such laws and regulations and without adverse consequences to
the Company or the Trustee.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture.
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, upon a Company request 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) Securities and Coupons which
have been destroyed, lost or stolen and which have been replaced or paid as
provided in Section 306, (ii) 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
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Company or discharged from such trust, as provided in Section 1003, (iii)
Coupons appertaining to Bearer Securities surrendered in exchange for
Registered Securities and maturing after such exchange, surrender of which
is not required or has been waived as provided in Section 305, and (iv)
Coupons appertaining to Bearer Securities called for redemption and
maturing after the relevant Redemption Date, surrender of which has been
waived as provided in Section 1106) have been delivered to the Trustee for
cancellation; or
(B) all such Securities, and, in the case of (i) and (ii) below, any
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) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the purpose
an amount sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation, for
principal and any premium 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.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 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 Sections 305, 306, 402
and 1002 and the last paragraph of Section 1003 shall survive.
Section 402. Application of Trust Money.
Subject to provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) or Depositary as the
Trustee may determine, to the Holders of the particular Securities of such
series for the payment or redemption of which such money has been deposited with
the
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Trustee, of all sums due and to become due thereon for principal and any premium
and interest.
ARTICLE FIVE
Remedies
Section 501. Events of Default.
"Event of Default", with respect to Securities of a particular series
wherever used herein, means any one of the following events and such other
events as may be established with respect to the Securities of such series as
contemplated in Section 301, continued for the period of time, if any, and after
the giving of notice, if any, designated in this Indenture or as may be
established with respect to such Securities as contemplated in Section 301, as
the case may be, unless such event is either inapplicable or is specifically
deleted or modified in, or pursuant to, the applicable Board Resolution or in
the supplemental indenture under which such series of Securities is issued, as
the case may be, as contemplated in Section 301:
(1) default in the payment of the principal of, or any premium on, any
of the Securities of such series as and when the same shall become due and
payable either at Stated Maturity, upon redemption, by declaration or
otherwise; or
(2) default in the payment of any installment of interest, if any,
upon any of the Securities of such series as and when it shall become due
and payable, and continuance of such default for a period of 30 days; or
(3) default in the payment of any sinking fund payment, when and as
due and payable by the terms of the Securities of such series; or
(4) default in the performance, or breach, of any covenant or
agreement of the Company in the Securities of such series in any resolution
of the Board of Directors of the Company authorizing the issuance of that
series of Securities, in this Indenture with respect to such series or in
any supplemental indenture with respect to such series (other than a
covenant or agreement a default in the performance of which or a breach of
which is elsewhere in this Section 501 specifically dealt with or which has
expressly been included in this Indenture and designated as being solely
for the benefit of a series of Securities other than such series), and
continuance of such default or breach for a period of 60 days after there
has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of such series, a written
notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder; or
(5) a default under any bond, debenture, note or other evidence of
indebtedness for money borrowed in excess of $20,000,000 of the Company or
any Significant Subsidiary (including a default with respect to Securities
of any series other
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than such series) or under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced any
such indebtedness for money borrowed by the Company or any Significant
Subsidiary (including this Indenture), whether such indebtedness now exists
or shall hereafter be created, and, if not already matured in accordance
with its terms, such indebtedness has been accelerated without such
involuntary acceleration having been rescinded or annulled within a period
of 15 days after there shall have 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 aggregate principal amount of the
Outstanding Securities of such series a written notice specifying such
default and requiring the Company to cause such acceleration to be
rescinded or annulled and stating that such notice is a "Notice of Default"
hereunder; provided, however, that, if prior to the entry of judgment in
favor of the Trustee for the payment of the Securities of such series, such
default shall be remedied or cured by the Company or waived by the holders
of such indebtedness, then the Event of Default hereunder by reason thereof
shall be deemed likewise to have been thereupon remedied, cured or waived
without any action on the part of the Trustee or any of the Holders; or
(6) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee or
sequestrator (or similar official) of the Company or for all or
substantially all of its property or ordering the winding up or liquidation
of its affairs, and such decree or order shall remain unstayed and in
effect for a period of 90 consecutive days; or
(7) the Company shall commence a voluntary case or proceeding under
any applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law now or hereafter in effect, or consent to the entry of an
order for relief in an involuntary case under any such law, or consent to
the appointment or taking possession by a receiver, liquidator, assignee,
custodian, trustee or sequestrator (or similar official) of the Company or
for all or substantially all of its property, or make any general
assignment for the benefit of creditors, or the admission by the Company in
writing of its inability to pay its debts generally as they become due; or
(8) any other Event of Default provided with respect to Securities of
such series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then, and in each and every such case,
unless the principal of all of the Securities of such series shall have already
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount of the Outstanding Securities of such series, by
notice in writing to the Company (and to the Trustee if given by Holders), may
declare the entire principal amount (or, if the Securities of such series are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms of such series) of all of the Securities of such series
and any premium and interest
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accrued thereon to be due and payable immediately, and upon any such declaration
such principal amount (or specified amount) and any premium and interest accrued
thereon shall become immediately due and payable.
The foregoing provisions, however, are subject to the condition that if, at
any time after the principal (or, if the Securities are Original Issue Discount
Securities, such portion of the principal as may be specified in the terms
thereof) of the Securities of any series shall have been so declared due and
payable, and before any judgment or decree for the payment of money due shall
have been obtained or entered as hereinafter provided,
(1) the Company shall pay or shall deposit with the Trustee a sum
sufficient to pay the premium and all matured installments of interest, if
any, upon all the Securities of such series and the principal of any and
all Securities of such series which shall have become due otherwise than by
such declaration of acceleration (with premium and interest upon such
principal and, to the extent that payment of such interest is enforceable
under applicable law, on overdue premium and installments of interest, if
any, at the Overdue Rate applicable to such series to the date of such
payment or deposit), and all amounts payable to the Trustee pursuant to
Section 607, and
(2) all Events of Default under the Indenture with respect to such
series of Securities other than the nonpayment of the principal of such
Securities which shall have become due by such declaration of acceleration,
shall have been cured, waived or otherwise remedied as provided in Section
513,
then and in every such case the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities of such series, by written notice
to the Company and to the Trustee, may rescind and annul such declaration and
its consequences with respect to such series, but no such rescission and
annulment shall extend to or shall affect any subsequent default or shall impair
any right consequent thereon.
For all purposes under this Indenture, if a portion of the principal of any
Original Issue Discount Securities shall have been accelerated and declared due
and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
In case the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the Company and
the Trustee shall be restored respectively to their former rights and positions
thereunder.
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Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of interest on
any of the Securities of any series as and when such interest becomes due
and payable, and such default continues for a period of 30 days, or
(2) a default is made in the payment of the principal of, and any
premium on, any of the Securities of any series as and when the same
becomes due and payable, whether upon Stated Maturity of the Securities of
such series or upon redemption or by declaration or otherwise, or
(3) default is made in the making or satisfaction of any sinking fund
payment or analogous obligation when the same becomes due by the terms of
the Securities of any series,
then the Company will, upon demand of the Trustee, pay to the Trustee for the
benefit of the Holders of the Securities of such series the whole amount then
due and payable on all Securities of such series for principal and any premium
and interest as the case may be (with interest to the date of such payment upon
the overdue principal and, to the extent that payment of such interest is
enforceable under applicable law, on overdue premium and installments of
interest, if any, at the Overdue Rate applicable to Securities of such series);
and in addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, and any further amounts payable to the Trustee
pursuant to Section 607.
Until such demand is made by the Trustee, the Company may pay the principal
of and any premium and interest on the Securities of any series to the
registered Holders, whether or not the principal of and any premium and interest
on the Securities of such series be overdue.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Company or other obligor upon such
Securities and collect in the manner provided by law out of the property of the
Company or other obligor upon such Securities, wherever situated, the moneys
adjudged or decreed to be payable.
If an Event of Default with respect to Securities of any Series has
occurred, has not been waived 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 by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any of such rights,
either at law or in equity or in bankruptcy or otherwise, whether for the
specific enforcement of any covenant or agreement contained in this Indenture or
in aid of the exercise of any power granted in this Indenture or to enforce any
other legal or equitable right granted in this Indenture or by law.
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Section 504. Trustee May File Proofs of Claim.
In case there shall be pending proceedings for the bankruptcy or for the
reorganization of the Company or any other obligor upon the Securities of any
series under Title 11 of the United States Code or any other similar applicable
Federal or State law, or in case a receiver, trustee in bankruptcy or similar
official shall have been appointed for the property of the Company or such other
obligor, or in case of any other similar judicial proceedings relative to the
Company or other obligor upon the Securities of any series, or to the creditors
or property of the Company or such other obligor, the Trustee, irrespective of
whether the principal of any Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(1) to file and prove a claim or claims for the whole amount of
principal (or, if the Securities of any series are Original Issue Discount
Securities, such portion of the principal amount as may be due and payable
with respect to such series pursuant to a declaration in accordance with
Section 502) and any premium and interest owing and unpaid in respect of
the Securities of any series, and, in case of any judicial proceedings, to
file such proofs of claim and other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any
claim for any amounts payable to the Trustee pursuant to Section 607) and
of the Holders allowed in any judicial proceedings relating to the Company
or other obligor upon the Securities of any series, or to the creditors or
property of the Company or such other obligor;
(2) unless prohibited by applicable law and regulations, to vote on
behalf of the Holders of the Securities of any series in any election of a
trustee or a standby trustee in arrangement, reorganization, liquidation or
other bankruptcy or insolvency proceedings or of a person performing
similar functions in comparable proceedings; and
(3) to collect and receive any money or other property payable or
deliverable on any such claims, and to distribute all amounts received with
respect to the claims of the Holders and of the Trustee on their behalf
(after deduction of costs and expenses of collection, and any further
amounts payable to the Trustee pursuant to Section 607 and incurred by it);
and any trustee in bankruptcy, receiver or other similar official is hereby
authorized by each of the Holders to make payments to the Trustee and, in
the event that the Trustee shall consent to the making of payments directly
to the Holders, to pay to the Trustee costs and expenses of collection and
any further amounts payable to the Trustee pursuant to Section 607 and
incurred by lt.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any Holder
any plan or reorganization, arrangement, adjustment or composition affecting the
Securities of any series or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding,
except, as aforesaid, to vote for the election of a trustee in bankruptcy or
similar person.
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Section 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture, or under the
Securities of any series, may be prosecuted and enforced by the Trustee without
the possession of any of the Securities of such series 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 of 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 in
respect of which such judgment has been recovered.
Section 506. Application of Moneys Collected by Trustee.
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 the case of distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities or Coupons in respect of which
money has been collected and stamping (or otherwise noting) thereon the payment,
or issuing Securities in reduced principal amounts in exchange for the presented
Securities of like series and tenor if only partially paid, or upon surrender
thereof if fully paid:
FIRST: To the payment of amounts all due to the Trustee under Section
607;
SECOND: In case the principal of the Outstanding Securities in respect
of which money has been collected shall not have become and be then due and
payable, to the payment of interest, if any, on the Securities in default
in the order of the Maturity of the installments of such interest, with
interest (to the extent that such interest has been collected by the
Trustee and to the extent permitted by applicable law) upon the overdue
installments of interest at the Overdue Rate applicable to such Securities,
such payments to be made ratably to the persons entitled thereto, without
discrimination or preference; provided, however, that such payments shall
be made subject to the provisions of Article Fourteen hereunder, if
applicable;
THIRD: In case the principal of the Outstanding Securities in respect
of which money has been collected shall have become and shall be then due
and payable by declaration or otherwise, to the payment of the whole amount
then owing and unpaid upon such Securities for principal and, any premium
and interest, with interest upon the overdue principal, and (to the extent
that such interest has been collected by the Trustee and to the extent
permitted by applicable law) upon overdue premium and installments of
interest, if any, at the Overdue Rate applicable to such Securities; and in
case such money shall be insufficient to pay in full the whole amount so
due and unpaid upon such Securities, then to the payment of such principal
and any premium and interest, without preference or priority of principal
over premium and interest, if any, or of interest, if any, over principal
and premium, if any, or of premium, if any, over principal and interest, if
any, or of any installment of interest, if any, over any other installment
of interest, if any, or of any Security over any other Security, ratably to
the aggregate of such principal and accrued and unpaid premium and
interest, if any; provided, however, that such payments shall be made
subject to the provisions of Article Fourteen hereunder, if applicable; and
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FOURTH: To the payment of the remainder, if any, to the Company or as
the Company may direct.
Section 507. Limitation on Suits.
No Holder of any Security of any series shall have any right by virtue or
by availing of any provision of this Indenture to institute any action or
proceeding at law or in equity or in bankruptcy or otherwise upon or under or
with respect to this Indenture, or for the appointment of a trustee in
bankruptcy, receiver or other similar official or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
default with respect to Securities of such series and of the continuance
thereof, as hereinbefore provided;
(2) the Holders of not less than 25% in aggregate principal amount of
the Outstanding Securities of such series shall have made written request
to the Trustee to institute such action, suit or proceedings in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has neglected or refused to institute any such
action, suit or proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period pursuant to Section 512;
it being understood and intended, and being expressly covenanted by the taker
and Holder of every Security with every other taker and Holder and the Trustee,
that no one or more Holders of any Securities shall have any right in any manner
whatever by virtue or by availing of any provision of this Indenture to affect,
disturb or prejudice the rights of any other Holder of Securities, or to obtain
or to seek to obtain priority or preference over any other Holder or to enforce
any right under this Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all Holders of Securities. For the
protection and enforcement of the provisions of this Section, each Holder and
the Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and any premium and (subject to Section 307) any
interest on such Security on the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
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Section 509. Restoration of Rights and Remedies.
In case the Trustee or any Holder shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been discontinued or
abandoned for any reason, or shall have been determined adversely to the Trustee
or to such Holder, then and in every such case the Company, the Trustee and the
Holders shall be restored respectively to their former positions and rights
hereunder, and all rights, remedies and powers of the Company, the Trustee and
the Holders shall continue as though no such proceedings had been taken.
Section 510. Rights and Remedies Cumulative.
Except as provided in Section 507 and except as otherwise provided with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Securities in the last paragraph of Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders 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 to exercise any right,
power or remedy accruing upon any Event of Default occurring and continuing as
aforesaid shall impair any such right, power or remedy or shall be construed to
be a waiver of any such Event of Default or an acquiescence therein. Subject to
Section 507, every power and remedy given by this Indenture or by law to the
Trustee or to the Holders of any or all series, as the case may be, may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Holders of such series or all series, as the case may be.
Section 512. Control by Holders.
The Holders of not less than a majority in aggregate 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 by this
Indenture with respect to Securities of such series; provided, however, that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee (subject to the requirements of the Trust Indenture
Act) shall have the right to decline to follow any such direction if the
Trustee, being advised by counsel, shall determine that the action or
proceeding so directed may not lawfully be taken or if the Trustee shall
determine that the action or proceedings so directed would involve the
Trustee in personal liability or be unduly prejudicial to the Holders not
joining therein.
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Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Holders.
Section 513. Waiver of Past Defaults.
Prior to the declaration of the acceleration of the Maturity of the
Securities of any particular series, the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series waive any past
default or Event of Default with respect to such series and its consequences,
except a default not theretofore cured
(1) in the payment of the principal of or any premium or interest on
any Security of such series, or
(2) in respect of a covenant or provision hereof which cannot be
modified or amended without the consent of the Holder of each Outstanding
Security of such series affected as provided in Section 902.
In the case of any such waiver, the Company, the Trustee and the Holders of
the Securities of each series affected shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall extend to
any subsequent or other default or Event of Default or impair any right
consequent thereon.
Upon any such waiver, such default shall cease to exist and be deemed to
have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured, and not to have occurred for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereby shall be deemed to have agreed, that in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, a court
may require any party litigant in such suit to file an undertaking to pay the
costs of such suit and may assess costs against any such party litigant, in the
manner and to the extent provided in the Trust Indenture Act; provided, however,
that neither this Section 514 nor the Trust Indenture Act shall be deemed to
authorize any court to require such an undertaking or to make such an assessment
in any suit instituted by the Company.
Section 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of
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any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with respect to
any series of Securities,
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture with respect to the
Securities of such series, 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, with
respect to Securities of such series, 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 provision 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 with respect to any series of Securities
has occurred and is continuing, the Trustee shall exercise with respect to the
Securities of such series 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 man 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;
(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
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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; and
(4) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
Section 602. Notice of Defaults.
The Trustee shall transmit notices of default to the Holders in accordance
with section 315(b) and related provisions of the Trust Indenture Act. 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; provided, however, that, except in the
case of a default in the payment of the principal of (or premium, if any, on) or
interest, if any, 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 or
Responsible Officers of the Trustee in good faith determine that the withholding
of such notice is in the interest of the Holders of Securities of such series.
Section 603. Certain Rights of the Trustee.
Subject to the provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, Officers' Certificate or any other certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, or other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Company mentioned herein
shall be sufficiently evidenced by a Company Order or Company Request (unless
other evidence in respect thereof be herein specifically prescribed) 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 any Opinion of Counsel shall
be full and complete authorization and protection in respect of any action
taken, suffered or omitted to be taken by it hereunder in good faith and in
reliance thereon;
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(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, order or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request, order or direction;
(f) prior to the occurrence of an Event of Default hereunder and after the
curing or waiving of all Events of Default, 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, note, other evidence of indebtedness or other
paper or document unless requested in writing so to do by the Holders of not
less than a majority in aggregate principal amount of the Outstanding Securities
of any series affected; 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;
(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 not regularly in its employ and the Trustee shall not be responsible
for any misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder; and
(h) the Trustee shall not be liable for any action taken or omitted by it
in good faith and believed by it to be authorized or within the discretion,
rights or powers conferred upon it by this Indenture.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, 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 representation as to the validity or
sufficiency of this Indenture or of the Securities, provided that the Trustee
shall not be relieved of its duty to authenticate Securities only as authorized
by this Indenture. The Trustee or any Authenticating Agent shall not be
accountable for the use or application by the Company of any of the 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 or the Trustee, in its individual or
any other capacity, may become the owner or pledgee of Securities with the same
rights it would have if it were not the Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent and, subject to the provisions of
the Trust Indenture Act, may otherwise deal with the Company and receive,
collect, hold and retain collections from the Company with the same rights it
would have if it were not the Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
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Section 606. Money Held in Trust.
Subject to the provisions of Section 1003, all money received by the
Trustee or any Paying Agent, all money and Government Obligations deposited with
the Trustee pursuant to Section 1302 or Section 1303 and all money received by
the Trustee in respect of Government Obligations deposited with the Trustee
pursuant to Section 1302 or Section 1303, shall, until used or applied as herein
provided, be held in trust for the purposes for which they were received, but
need not be segregated from other funds except to the extent required by
mandatory provisions of law. Neither the Trustee nor any Paying Agent shall be
under any liability for interest on any money received by it hereunder except as
otherwise agreed by the Company. So long as no Event of Default shall have
occurred and be continuing, all interest allowed on any such money shall be paid
from time to time in accordance with a Company Order.
Section 607. Compensation and Reimbursement.
The Company covenants and agrees
(1) to pay to the Trustee from time to time, and the Trustee shall be
entitled to, reasonable compensation for all services rendered by it
hereunder (which 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 or on behalf of the Trustee in accordance with
any of the provisions 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 for, and to hold it harmless against, any
loss, liability, or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration
of this Indenture or the trusts hereunder, including the costs and expenses
of defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
The Trustee shall notify the Company promptly of any claim for which it may
seek indemnity. Failure by the Trustee to so promptly notify the Company,
however, shall not relieve the Company of its obligations under this paragraph
except to the extent such failure shall have materially prejudiced the Company.
The Company may at its option defend the claim and, if it so defends, then the
Trustee shall cooperate in the defense and the Company shall not be responsible
for any expenses of the Trustee's counsel thereafter. The Company need not pay
for any settlement made without its consent.
The obligations of the Company under this Section 607 to compensate and
indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder
and shall survive the satisfaction and discharge of this Indenture. Such
additional indebtedness shall be secured by a lien prior
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to that of the Securities upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the benefit of the Holders of
particular Securities.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 501(6) or (7), the expenses and the
compensation for the services are intended to constitute expenses of
administration under any bankruptcy law.
Section 608. Right to Rely on Officers' Certificate.
Subject to the requirements of the Trust Indenture Act, whenever in the
administration of the trusts of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or
suffering or omitting any action to be taken hereunder, such matter (unless
other evidence in respect thereof be herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate delivered to the
Trustee, and such certificate, in the absence of negligence or bad faith on the
part of the Trustee, shall be full warrant to the Trustee for any action taken,
suffered or omitted by it under the provisions of this Indenture upon the faith
thereof.
Section 609. Eligibility.
The Trustee for each series of Securities hereunder shall at all times be a
Person organized and doing business under the laws of the United States of
America or of any State or the District of Columbia, having a combined capital
and surplus of at least $50,000,000, and eligible under the provisions of the
Trust Indenture Act. If such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Person at any time shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in this Article.
Section 610. Resignation and Removal; Appointment of Successor.
(a) Any resignation or removal of the Trustee with respect to any series
and any appointment of a successor Trustee with respect to such series pursuant
to any of the provisions of this Section 610 shall become effective upon
acceptance of appointment by the successor Trustee as provided in Section 611.
(b) The Trustee may resign at any time with respect to one or more or all
series of Securities by giving 90 days written notice of resignation to the
Company. Upon receiving such notice of resignation, the Company shall promptly
appoint a successor Trustee with respect to the applicable series by written
instrument in duplicate, executed by authority of the Board of Directors, one
copy of which instrument shall be delivered to the resigning Trustee and one
copy to the successor Trustee. If no successor Trustee shall have been so
appointed with respect to any series and have accepted appointment within 30
days after the mailing of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee, or any Holder who has been
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a bona fide Holder of a Security of the applicable series for at least six
months may, subject to the requirements of the Trust Indenture Act, on behalf of
itself and all others similarly situated, petition any such court for the
appointment of a successor Trustee. Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, appoint a successor Trustee.
(c) The Holders of a majority in aggregate principal amount of the
Outstanding Securities of any series may at any time remove the Trustee with
respect to Securities of such series and appoint a successor Trustee with
respect to the Securities of such series by delivering to the Trustee so
removed, to the successor Trustee so appointed and to the Company the evidence
provided for in Section 104 of the action in that regard taken by the Holders.
(d) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of Section
310(b) of the Trust Indenture Act after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Security of a
relevant series for at least six months; or
(2) the Trustee shall cease to be eligible in accordance with the
provisions of Section 609 with respect to any series of Securities and
shall fail to resign after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Security of a relevant
series for at least six months; or
(3) the Trustee shall become incapable of acting with respect to any
series of Securities, or shall be adjudged a bankrupt or insolvent, or a
receiver or liquidator 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 may remove the Trustee with respect to
the applicable series of Securities (or all series, if required) and appoint a
successor Trustee for such series by written instrument, in duplicate, executed
by authority of the Board of Directors, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor Trustee, or
(ii) subject to the requirements of the Trust Indenture Act, any Holder who has
been a bona fide Holder of a Security of such series for at least six months may
on behalf of itself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee with respect to such series. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor Trustee with respect to such series.
(e) If the Trustee shall resign, be removed or become incapable of acting
with respect to any series of Securities, or if a vacancy shall occur in the
office of the Trustee with respect to any series of Securities for any cause,
the Company, by a Board Resolution, shall promptly appoint a successor Trustee
for that series of Securities. If, within one year after such resignation,
removal or incapacity, or the occurrence of such vacancy, a successor Trustee
with respect to such series of Securities shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the
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Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee
with respect to such series and supersede the successor Trustee appointed by the
Company with respect to such series. If no successor Trustee with respect to
such series shall have been so appointed by the Company or the Holders of such
series and accepted appointment in the manner hereinafter provided, subject to
Section 514, any Holder who has been a bona fide Holder of a Security of that
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 such series.
Section 611. Acceptance of Appointment by Successor.
Any successor Trustee appointed as provided in Section 610 shall execute,
acknowledge and deliver to the Company and to its predecessor Trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor Trustee with respect to all or any applicable
series shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, duties
and obligations with respect to such series of its predecessor Trustee
hereunder, with like effect as if originally named as Trustee for such series
hereunder; but, nevertheless, on the written request of the Company or of the
successor Trustee, upon payment (or due provision therefor) of any amounts then
due it pursuant to Section 607, the Predecessor Trustee ceasing to act shall,
subject to Section 1003, pay over to the successor Trustee all money at the time
held by it hereunder and shall execute and deliver an instrument transferring to
such successor Trustee all such rights, powers, duties and obligations. Upon
request of any such successor Trustee, the Company shall execute any and all
instruments in writing for more fully and certainly vesting in and confirming to
such successor Trustee all such rights and powers. Any Trustee ceasing to act
shall, nevertheless, retain a lien upon all property or funds held or collected
by such Trustee to secure any amounts then due it pursuant to the provisions of
Section 607.
If a successor Trustee is appointed with respect to the Securities of one
or more (but not all) series, the Company, the predecessor Trustee and each
successor Trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor Trustee with respect to the
Securities of any series as to which the predecessor Trustee is not retiring
shall continue to be vested in the predecessor Trustee, and 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 and 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.
No successor Trustee with respect to any series of Securities shall accept
appointment as provided in this Section unless at the time of such acceptance
such successor Trustee shall, with respect to such series, be qualified under
the requirements of the Trust Indenture Act and eligible under the provisions of
Section 609.
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Upon acceptance of appointment by any successor Trustee as provided in this
Section 611, the Company shall give notice thereof to the Holders of Securities
of any series for which such successor Trustee is acting as Trustee in the
manner provided for notices to the Holders of Securities in Section 106. If the
Company fails to give such notice within ten days after acceptance of
appointment by the successor Trustee, the successor Trustee shall cause such
notice to be given at the expense of the Company.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Trustee may be merged or converted or with which
it may be consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided that such Person shall be qualified
under the requirements of the Trust Indenture Act 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, anything herein to the contrary
notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee by
merger, conversion or consolidation may adopt the certificate of authentication
of any predecessor Trustee and deliver such Securities so authenticated; and, in
case at that time any of the Securities of any series shall not have been
authenticated, any successor to the Trustee may authenticate such Securities
either in the name of such successor to the Trustee or, if such successor to the
Trustee is a successor by merger, conversion or consolidation, in the name of
any predecessor hereunder; provided, however, that such successor shall use the
predecessor's name only in such circumstances set forth in this Section and in
all such cases such certificate shall have the full force which it is anywhere
in the Securities of such series or in this Indenture provided that the
certificate of the Trustee shall have.
Section 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Securities), the Trustee shall be subject to the
provisions of Sections 311(a) and 311(b) of the Trust Indenture Act regarding
the collection of claims against the Company (or any such other obligor).
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 or such series issued upon original issue
and upon 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
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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 $50,000,000 and subject to supervision or examination
by Federal or State authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of such
supervising or examining authority, then for the purposes of this Section 614,
the combined capital and surplus of such Authenticating Agent shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 614, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section 614.
Any Person into which an Authenticating Agent may be merged or converted or
with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which such Authenticating Agent shall be a party,
or any Person succeeding to the corporate agency or corporate trust business of
an Authenticating Agent, shall continue to be an Authenticating Agent, provided
such Person 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 give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth in
Section 106. 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 Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section 614, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 607.
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 alternative
certificate of authentication in the following form:
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This is one of the Securities of the series designated therein and referred
to in the within-mentioned Indenture.
Fleet National Bank,
as Trustee
By_____________________________________
As Authenticating Agent
By_____________________________________
Authorized Officer
ARTICLE SEVEN
Holders' List 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 each Record Date for the
Securities of any series (and on dates as specified as contemplated in Section
301 for any series of Original Issue Discount Securities which by their terms
bear interest only after Maturity), a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of the Securities
of such series as of each such Record Date (and as of dates as specified as
contemplated in Section 301 of this Indenture), and
(b) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such is
furnished;
provided, however, that if and so long as the Trustee shall be the Security
Registrar for Securities of a series, no such list need be furnished with
respect to such series of Securities.
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 contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Registered Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as provided
in Section 701 upon receipt of a new list so furnished.
(b) The rights of the Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
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(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
Section 703. Reports by Trustee.
(a) Within 60 days after May 15, 1997 and on or before May 15 in each year
thereafter, so long as any Securities are Outstanding hereunder, the Trustee
shall transmit by mail to Holders of Securities of any series such reports
concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act, including, without limitation, section 313
thereof, in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities of such series are listed, with the Commission and also with the
Company. The Company will notify the Trustee when any series of Securities are
listed on any stock exchange or automatic quotation series.
Section 704. Reports by Company.
The Company will:
(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 Exchange Act; or, if the Company
is not required to file information, documents or reports pursuant to either of
said Sections, then it will 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 Exchange Act, in
respect of a security listed and registered on a national securities exchange as
may be required from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Company
with the conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations; and
(3) transmit to all Holders of Securities, in the manner and to the extent
provided in Section 703, within 30 days after the filing thereof with the
Trustee, 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.
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ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, Etc., Only 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 Person
(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 conveyance, transfer or lease of all or
substantially all the property or assets of the Company, to any other Person
(whether or not affiliated with the Company) authorized to acquire and operate
the same; provided, however, and the Company hereby covenants and agrees, that
upon any such consolidation, merger, transfer, conveyance or lease:
(1) the due and punctual payment of the principal of and any premium
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 Person (if
other than the Company) formed by such consolidation, or into which the
Company shall have been merged, or by the Person which shall have acquired
or leased such property or assets and such person shall be organized and
existing under the laws of the United States of America or of any State or
the District of Columbia;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be continuing;
provided, however, that a transaction will be deemed to be in violation of
this clause (2) only with respect to those series of Securities whereby
such Event of Default or such event shall have occurred and be continuing;
and
(3) the Trustee, subject to the requirements of the Trust Indenture
Act and Section 603, shall receive an Opinion of Counsel and Officers'
Certificate to the effect that such consolidation, merger, conveyance,
transfer or lease and any such assumption complies with the provisions of
this Article and that all conditions precedent herein provided for relating
to such transaction have been complied with.
Section 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company into,
any other Person or any conveyance, transfer or lease of all or substantially
all the property or assets of the Company in accordance with Section 801, the
successor Person formed by such consolidation or into which the Company is
merged or to which such conveyance, transfer or lease is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person had been
named as the Company herein, and thereafter, except in the case of a lease, the
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predecessor Person shall be relieved of all obligations and covenants under this
Indenture and the Securities.
In case of any such consolidation, merger, conveyance, transfer or lease,
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. Senior Securities to Be Secured in Certain Events
If, upon any such consolidation of the Company with, or merger of the
Company into, any other corporation, or upon any conveyance or transfer of the
property of the Company substantially as an entirety to any other Person, any
Principal Property of the Company or any share of stock or Debt of any
Significant Subsidiary owned immediately prior thereto, would become or be
subject to any Mortgage, then unless such Mortgage could be created pursuant to
Section 1004 without equally and ratably securing the Senior Securities, the
Company, prior to or simultaneously with such consolidation, merger, conveyance
or transfer, will as to such Principal Property or share of stock or Debt of any
Significant Subsidiary, secure the Senior Securities Outstanding hereunder
(together with, if the Company shall so determine, any other Debt of the Company
now existing or hereafter created which is not subordinate to the Senior
Securities, equally and ratably with (or prior to) the Debt which upon such
consolidation, merger, conveyance or transfer is to become secured as to such
Principal Property or share of stock or Debt of any Significant Subsidiary by
such Mortgage, or will cause such Senior Securities, to be so secured; provided
that for the purpose of providing such equal and ratable security the principal
amount of Original Issue Discount Securities shall mean that amount which, at
the time of making such provision of such equal and ratable security, would be
due and payable pursuant to Section 502 and the terms of such Original Issue
Discount Securities upon an declaration of acceleration of the Maturity thereof,
and the extent of such equal and ratable security shall be adjusted, to the
extent permitted by law, as and when said amount changes over time pursuant to
the terms of such Original Issue Discount Securities.
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, 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, agreements and
obligations of the Company contained herein and in the Securities; 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
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benefit of less than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default and to provide with
respect thereto for any particular periods of grace after default (which
may be shorter or longer than that allowed in the case of other defaults)
or for immediate enforcement upon such default or for any limitation of the
remedies available to the Trustee upon such default; or
(4) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities; provided,
however, that any such addition, change or elimination (i) shall neither
(A) apply to any Security of any series created prior to the execution of
such supplemental indenture and entitled to the benefit of such provision
nor (B) modify the rights of the Holder of any such Security with respect
to such provision or (ii) shall become effective only when there is no such
Security Outstanding; or
(5) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of one or more series any property or assets;
or
(6) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(7) 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; or
(8) to cure any ambiguity, to correct or supplement any provision
herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any
supplemental indenture; or to change or eliminate any provision or to make
any other provisions with respect to matters or questions arising under
this Indenture or under any supplemental indenture as the Company may deem
necessary or desirable; provided, however, that such action shall not
adversely affect the interests of the Holders of the Outstanding Securities
of any series.
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 (each such series voting as a single class), by act of
such Holders delivered to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of any supplemental indenture or of modifying in any manner the rights and
obligations of the Company and the rights of the Holders of the Securities of
such series under
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this Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Security, or reduce the principal
amount thereof, or reduce any premium thereof or change the time of payment
of any premium thereon, or reduce the rate or change the time of payment of
interest thereon, if any, or reduce any amount payable on redemption or
reduce the Overdue Rate thereof or make the principal thereof or any
premium or interest thereon, payable at any place of payment or in any
Currency other than as provided in the Security or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon an acceleration of the Maturity thereof pursuant to Section
502 or the amount thereof provable in bankruptcy pursuant to Section 504,
or impair, if the Securities provide therefor, any right of repayment at
the option of the Holder, or impair the right to institute a suit for the
enforcement of any payment on or with respect to any Security pursuant to
Section 507; or
(2) reduce the aforesaid percentage of Outstanding Securities the
consent of the Holders of which is required for any such supplemental
indenture or for waiver of compliance with certain provisions of the
Indenture or for waiver of certain defaults.
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. The preceding
sentence shall not, however, raise any inference as to whether or not a
particular series is affected by any supplemental indenture not referred to in
such sentence.
It shall not be necessary for the consent of the Holders under this Section
902 to approve the particular form of any proposed supplemental indenture, but
it shall be sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 902, the
Company shall give notice thereof to the Holders of Securities of each series
affected thereby in the manner provided for notices to the Holders of Securities
in Section 106, setting forth in general terms the substance of such
supplemental indenture. Any failure of the Company to give such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental indenture.
Section 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 trusts 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
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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 and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the Holders
of Securities of each series affected thereby shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and any 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 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 in effect at the date
such supplemental indenture is executed.
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 bear a notation in form
approved by the Trustee for such series as to any matter provided for by such
supplemental indenture. If the Company or the Trustee 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, upon a Company Request, authenticated and
delivered by the Trustee in exchange for the Outstanding Securities of such
series.
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay or cause to be paid the
principal of, and any premium and interest on, the Securities of that series in
accordance with the terms of the Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
The Company will designate and maintain in the Borough of Manhattan, The
City of New York, for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or
exchange, where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. The
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Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
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 The City of New York 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.
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 or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal or any premium 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, prior to each due date of the principal of and any premium
or interest on any Securities of that series, deposit with a Paying Agent a sum
sufficient to pay the principal and any premium 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 to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee,
subject to the provisions of this Section, that such Paying Agent will
(1) hold all sums held by it for the payment of the principal of and
any premium or interest on the Securities of that series in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of the principal of or any premium or interest on the Securities of
that series; and
(3) at any time during the continuance of any such default referred to
in clause (2) above, upon the written request of the Trustee, forthwith pay
to the Trustee all sums so held in trust by such Paying Agent.
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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 trusts 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.
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 any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal and any premium 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
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
The City of New York or other place of payment, 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, any unclaimed balance of such money
then remaining will be repaid to the Company.
Section 1004. Limitations on Secured Debt.
The Company agrees for the benefit of Holders of Senior Securities only,
that unless otherwise provided herein, the Company will not itself, and will not
permit any Subsidiary to, create, incur, issue, assume or guarantee any Debt
secured after the date of the Indenture by pledge of, or mortgage or other lien
("Mortgage") on, any Principal Property of the Company or any Significant
Subsidiary, or any shares of stock or Debt of any Significant Subsidiary without
effectively providing that the Senior Securities of all series issued pursuant
to the Indenture (together with, if the Company shall so determine, any other
Debt of the Company or such Significant Subsidiary then existing or thereafter
created which is not subordinate to the Senior Securities) shall be secured
equally and ratably with (or, at the option of the Company, prior to) such
secured Debt, so long as such secured Debt shall be so secured, unless after
giving effect thereto, the aggregate principal amount of all such secured Debt
then outstanding which would otherwise be prohibited, plus all Attributable Debt
of the Company and its Significant Subsidiaries in respect of sale and leaseback
transactions (as defined in Section 1005) occurring after the first date of
issuance of the applicable Senior Securities which would otherwise be prohibited
by the covenant described in Section 1005, would not exceed 10% of Consolidated
Net Tangible Assets.
This restriction does not apply to, and there shall be excluded in
computing secured Debt for the purpose of such restriction, Debt secured by: (i)
Mortgages existing on the date of the first issuance of Securities under this
Indenture; (ii) Mortgages on property of, or on any shares of stock or Debt of,
any corporation existing at the time such corporation becomes a Significant
Subsidiary; (iii) Mortgages in favor of the Company or any Significant
Subsidiary; (iv) Mortgages in favor of the United States of America or any State
thereof, or any department, agency or instrumentality or political subdivision
of the United States of
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America or any State thereof, or in favor of any other country, or any political
subdivision thereof, to secure partial, progress, advance or other payments
pursuant to any contract or statute; (v) Mortgages on any real or personal
property existing at the time of acquisition thereof or created within one year
of such acquisition; (vi) Mortgages to secure Debt incurred for the purpose of
financing all or any part of the purchase price or the cost or construction or
improvement of the property subject to such Mortgage, provided, however, that
(a) the principal amount of any Debt secured by such Mortgage does not exceed
100% of such purchase price or cost and (b) such Mortgage does not extend to or
cover any other property other than such item or property and any improvements
on such item; (vii) Mortgages securing industrial revenue, development or
similar bonds; (viii) Mortgages created in connection with a project financed,
or assets acquired, with, and created to secure any Nonrecourse Obligations; and
(ix) any extension, renewal, refunding or replacement (or successive extensions,
renewals, refundings or replacements), as a whole or in part, of any Mortgage
referred to in the foregoing clauses (i) to (viii), inclusive; provided,
however, that (a) such extension, renewal, refunding or replacement Mortgage
shall be limited to all or a part of the same property, shares of stock or Debt
that secured the Mortgage extended, renewed, refunded or replaced (plus
improvements on such property) and (b) the Debt secured by such Mortgage at such
time is not increased.
Section 1005. Limitations on Sales and Leasebacks.
The Company agrees for the benefit of Holders of Senior Securities only,
that unless otherwise provided herein, the Company will not itself, and will not
permit any Significant Subsidiary to, enter into any arrangement with any bank,
insurance company or other lender or investor (not including the Company or any
Significant Subsidiary) or to which any such lender or investor is a party,
providing for the leasing by the Company or any such Significant Subsidiary of
any Principal Property which has been or is to be sold or transferred by the
Company or such Significant Subsidiary to such lender or investor or to any
Person to whom funds have been or are to be advanced by such lender or investor
(each, a "sale and leaseback transaction") (except a lease for a temporary
period, including renewals, not exceeding three years and except leases between
the Company and a Significant Subsidiary or between Significant Subsidiaries)
unless, (i) after giving effect thereto, the aggregate amount of all
Attributable Debt with respect to all such transactions occurring after the
first date of issuance of the applicable Senior Securities and existing at such
time (other than such sales and leaseback transactions as are in compliance with
the provisions described in clause (ii) of this paragraph) plus all secured Debt
then outstanding of the Company and its Significant Subsidiaries incurred after
the first date of issuance of the applicable Senior Securities which would
otherwise be prohibited by the covenant described in Section 1004 above, would
not exceed 10% of Consolidated Net Tangible Assets; or (ii) (a) the gross
proceeds of the sale or transfer of the Principal Property leased equals or
exceeds the fair market value of such Principal Property and (b) within one year
after such sale or transfer shall have been made by the Company or by a
Significant Subsidiary, the Company or a Significant Subsidiary (1) applies or
commits to apply, all of the net proceeds to the retirement of Funded Debt of
the Company or any Significant Subsidiary (other than at maturity or pursuant to
any mandatory sinking fund payment or mandatory prepayment provision) or (2)
applies or commits to apply all of the net proceeds to the purchase of property,
facilities or equipment (other than property, facilities or equipment involved
in such sale) which will constitute Principal Property.
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Section 1006. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Sections 1004 and 1005 with respect to the
Securities of any series if before the time for such compliance the Holders of
at least a majority in aggregate principal amount of the Outstanding Senior
Securities of such series shall, by the act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
Section 1007. Certificate of Compliance.
The Company shall deliver a certificate of compliance of the Company to the
Trustee on or before April 30 of each year pursuant to section 314(a)(4) of the
Trust Indenture Act, stating, as to each signer thereof, that,
(a) a review of the activities of the Company during such year and of the
performance under this Indenture has been made under such signer's supervision,
and
(b) to the best of such signer's knowledge, based on such review, the
Company has fulfilled all its obligations under this Indenture throughout such
year, or, if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such signer and the nature and status
thereof.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated in Section 301 for Securities of any series) in
accordance with 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 the redemption at the election of the Company of
the Securities of any series, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the
principal amount of Securities of such series to be redeemed at the Redemption
Price and, if applicable, of the tenor of the Securities to be redeemed. In the
case of any redemption of Securities prior to the expiration of any restriction
on such redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
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Section 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless
all of the Securities of such series and of a specified tenor are to be
redeemed), the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series. If less than
all of the Securities of such series and of a specified tenor 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 and specified tenor not previously called for
redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company 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 amount 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 each Holder of
Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are
to be redeemed, the identification (and, in the case of partial
redemption of any Securities, the principal amounts) of the particular
Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security to be redeemed and, if
applicable, that, unless the Company defaults in making such
redemption payment, interest thereon, if any, or in the case of
Original Issue Discount Securities, the original issue discount, shall
cease to accrue on and after such date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
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(6) that the redemption is for a sinking fund, if such is the
case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at Company Request, by the Trustee in
the name and at the expense of the Company.
Section 1105. Deposit of Redemption Price.
On or prior to 10:00 A.M. New York City time on any Redemption Date, the
Company shall deposit in immediately available funds 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 and as required by the Trust
Indenture Act) an amount of money (in the currency or units of currency in which
the Securities so called for redemption are denominated or an appropriate
equivalent thereof) 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 which are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. On presentation and
surrender of such Securities for redemption in accordance with such notice, such
Securities shall be paid and redeemed by the Company at the Redemption Price,
together with accrued interest to the Redemption Date; provided, however, that,
unless otherwise specified as contemplated in Section 301, installments of
interest 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 relevant Record
Dates according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal thereof so to be redeemed shall, until
paid, bear interest from the Redemption Date at the Overdue Rate applicable to
such Security.
Section 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at
the place specified in the notice of redemption (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 Security or Securities of the same series
and of like tenor, 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.
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ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article.
Securities of any series which are subject to a sinking fund for the
retirement of Securities of a series shall be subject to such sinking fund in
accordance with their terms and (except as otherwise specified as contemplated
in Section 301 for Securities of such series) in accordance with this Article.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment". 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 (1) may deliver Outstanding Securities of a series (other than
any previously called for redemption) and (2) may apply as a credit Securities
of a series which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities in
satisfaction of all or any part of any sinking fund payment with respect to the
Securities of such series required to be made pursuant to the terms of such
Securities as provided for by the terms of such series; provided, however, that
such 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.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing 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 Securities of that series
pursuant to Section 1202 and will also deliver to the Trustee any Securities to
be so delivered. 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
Defeasance
Section 1301. Applicability of Article; Company's Option to Effect Defeasance or
Covenant Defeasance.
If pursuant to Section 301 provision is made for either or both of (1)
defeasance of the Securities of a series under Section 1302 or (2) covenant
defeasance of the Securities of a series under Section 1303, then the provisions
of such Section or Sections, as the case may be, together with the other
provisions of this Article, shall be applicable to the Securities of such
series, and the Company may at its option by or pursuant to a Board Resolution,
at any time, with respect to the Securities of such series, elect to have either
Section 1302 (if applicable) or Section 1303 (if applicable) be applied to the
Outstanding Securities of such series upon compliance with the conditions set
forth below in this Article.
Section 1302. Defeasance and Discharge.
Upon the Company's exercise of the option provided in Section 1301 to have
this Section 1302 applied to the Outstanding Securities of a defeasible series,
the Company shall be deemed to have been discharged from its obligations with
respect to the Outstanding Securities of such series on the date the conditions
set forth in Section 1304 are satisfied (hereinafter, "defeasance"). For this
purpose, such defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by the Outstanding Securities of
such series and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (1) the rights of Holders of
Outstanding Securities of such series to receive, solely from the trust fund
described in Section 1304 and as more fully set forth in such Section, payments
in respect of the principal of and any premium or interest on such Securities
when such payments are due, (2) the Company's obligations with respect to such
Securities under Sections 304, 305, 306, 1002 and 1003 and with respect to the
Trustee under Section 607, (3) the rights, powers, trusts, duties, and
immunities of the Trustee under Sections 304, 305, 306, 308, 309, 506 and 1003,
and otherwise the duty of the Trustee to authenticate Securities of such series
issued on registration of transfer or exchange and (4) this Article. Subject to
compliance with this Article, the Company may exercise its option provided in
Section 1301 to have this Section 1302 applied to the Outstanding Securities of
any defeasible series notwithstanding the prior exercise of its option provided
in Section 1301 to have Section 1303 applied to the Outstanding Securities of
such series.
Section 1303. Covenant Defeasance.
Upon the Company's exercise of the option provided in Section 1301 to have
this Section 1303 applied to the Outstanding Securities of any defeasible
series, the Company shall be released from (i) in the case of Senior Securities
of any series, its obligations under Sections 1004 and 1005 hereof or (ii) in
the case of Senior Securities or Subordinated Securities of any series, its
obligations with respect to any other covenant with respect to the Outstanding
Securities of such series on and after the date the conditions set forth in
Section
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1304 are satisfied (hereinafter, "covenant defeasance"). For this purpose, such
covenant defeasance means that, with respect to the Outstanding Securities of
such series, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such Section or
such other covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such Section or such other covenant to any other
provision herein or in any other document and such omission to comply shall not
constitute an Event of Default under Section 501(4) or 501(8) (except to the
extent covenants or agreements referenced in such Sections remain applicable).
Section 1304. Conditions to Defeasance or Covenant Defeasance.
Except as expressly provided below, the following shall be the conditions
to application of either Section 1302 or Section 1303 to the Outstanding
Securities of such series:
(1) the Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another Trustee satisfying the requirements
of Section 609 who shall agree to comply with the provisions of this
Article applicable to it) as trust funds in trust for the purpose of making
the following payments, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of such Securities, (A) money in an
amount, or (B) Government Obligations which through the scheduled payment
of principal and interest in respect thereof in accordance with their terms
will provide, not later than one day before the due date of any payment,
money in an amount, or (C) a combination thereof, sufficient without
reinvestment, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered
to the Trustee, to pay and discharge, and which shall be applied by the
Trustee (or other qualifying Trustee) to pay and discharge, (i) the
principal of and any premium on and each installment of principal of and
any premium and interest on the Outstanding Securities of such series on
the Stated Maturity of such principal or installment of principal or
interest and (ii) any mandatory sinking fund payments or analogous payments
applicable to the Outstanding Securities of such series on the day on which
such payments are due and payable in accordance with the terms of this
Indenture and of such Securities. For this purpose, "Government
Obligations" means securities that are (x) direct obligations of the United
States of America or, if specified as contemplated in Section 301, the
government which issued the currency in which the Securities of such series
are payable, for the payment of which its full faith and credit is pledged
or (y) obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America or, if specified
as contemplated in Section 301, such government which issued the currency
in which the Securities of such series are payable, the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the
United States of America or such other government, which, in either case,
are not callable or redeemable at the option of the obligor 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 Government Obligation or a specific payment of
principal of or interest on any such Government Obligation held by such
custodian for the account of the holder of such depository receipt;
provided, however, 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 Government Obligation or the
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specific payment of principal of or interest on the Government Obligation
evidenced by such depository receipt;
(2) No Event of Default or event which, with notice or lapse of time
or both, would become an Event of Default with respect to the Securities of
such series shall have occurred and be continuing on the date of such
deposit;
(3) Such defeasance or covenant defeasance shall not cause the Trustee
for the Securities of such series to have a conflicting interest for
purposes of the Trust Indenture Act with respect to any securities of the
Company;
(4) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other agreement or instrument to which the Company is a party or by
which it is bound;
(5) In the case of an election under Section 1302, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (ii) since the date of execution of this
Indenture, there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of such Outstanding Securities will not
recognize income, gain or loss for Federal income tax purposes as a result
of such defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such defeasance had not occurred;
(6) Such defeasance or covenant defeasance shall not cause any
Securities of such series then listed on any registered national securities
exchange under the Securities Exchange Act of 1934, as amended, to be
delisted;
(7) Such defeasance or covenant defeasance shall not result in the
trust arising from such deposit constituting an investment company as
defined in the Investment Company Act of 1940, as amended, or such trust
shall be qualified under such Act or exempt from regulation thereunder;
(8) Such defeasance or covenant defeasance shall be effected in
compliance with any additional terms, conditions or limitations which may
be imposed on the Company in connection therewith pursuant to Section 301;
and
(9) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section 1302
or the covenant defeasance under Section 1303 (as the case may be) have
been complied with.
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Section 1305. Deposited Money and Government Obligations to Be Held in Trust;
Other Miscellaneous Provisions.
Subject to the provisions of Section 1003, all money and Government
Obligations (including the proceeds thereof) deposited with the Trustee (or
other qualifying Trustee--collectively, for purposes of this Section 1305, the
"Trustee") pursuant to Section 1304 in respect of the Outstanding Securities of
such series shall be held in trust and applied by the Trustee, in accordance
with the provisions of such Securities and this Indenture, to the payment,
either directly or through a Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Holders of such
Securities, of all sums due and to become due thereon in respect of principal
and any premium and interest, but such money need not be segregated from other
funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations deposited
pursuant to Section 1304 or the principal and any premium and interest received
in respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of the Outstanding Securities of such series.
Anything in this Article to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon Company Request any money
or Government Obligations held by it as provided in Section 1304 which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect an equivalent defeasance or covenant defeasance.
Section 1306. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or Government
Obligations in accordance with this Article by reason of any legal proceeding or
by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture and each series of Securities shall be revived
and reinstated as though no deposit had occurred pursuant to this Article until
such time as the Trustee or the Paying Agent is permitted to apply all such
money or Governmental Obligations in accordance with this Article; provided,
however, that, if the Company has made any payment of interest on or principal
of any series of Securities because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such series of
Securities to receive such payment from the money or Government Obligations held
by the Trustee or the Paying Agent.
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ARTICLE FOURTEEN
Subordination
Section 1401. Agreement to Subordinate
The Company covenants and agrees, and each Holder of a Subordinated
Security issued hereunder, by his acceptance thereof, likewise covenants and
agrees, that all Subordinated Securities shall be issued subject to the
provisions of this Article; and each Person holding any Subordinated Security,
whether upon original issue or upon transfer, assignment or exchange thereof,
accepts and agrees that the principal of and interest (and premium, if any) on
all Subordinated Securities issued hereunder shall, to the extent and in the
manner herein set forth, be subordinated and subject in right of payment to the
prior payment in full of all Senior Indebtedness, and that the subordination is
for the benefit of the holders of the Senior Indebtedness.
Section 1402. Payments to Holders of Subordinated Securities.
In the event of (i) 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 its creditors, as such, or
to its assets; or (ii) any liquidation, dissolution or other winding up of the
Company, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy; or (iii) any assignment for the benefit of creditors
or any other marshalling of assets or liabilities of the Company, then and in
any such event specified in clause (i), clause (ii) or clause (iii) above (each
such event, if any, herein sometimes referred to as a "Proceeding"):
(1) the holders of Senior Indebtedness will be entitled to receive
payment of such Senior Indebtedness in full before the holders of
Subordinated Securities are entitled to receive any payment or distribution
of cash, securities or other property with respect to the principal of,
premium, (if any), or interest on or other obligations in respect of the
Subordinated Securities, or on account of any purchase or other acquisition
of Subordinated Securities by the Company (all such payments,
distributions, purchases and acquisitions herein referred to, individually
and collectively, as a "Subordinated Securities Payment"), and to that end
the holders of Senior Indebtedness of the Company shall be entitled to
receive, for application to the payment thereof, any Subordinated
Securities Payment which may be payable or deliverable in respect of the
Subordinated Securities in any such Proceeding; and
(2) until the Senior Indebtedness paid in full, any Subordinated
Securities Payment to which holders of Subordinated Securities would be
entitled but for this Article Fourteen will be made to holders of such
Senior Indebtedness as their interests may appear. If a Subordinated
Securities Payment is made to holders of Subordinated Securities that, due
to this Article Fourteen should not have been made to them such holders of
Subordinated Securities are required to hold it in trust for the holders of
Senior Indebtedness and pay it over to them as their interests may appear.
In the event that, notwithstanding the foregoing provisions of this Section
1402, the Trustee receives payment or distribution of assets of the Company of
any kind or
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character, before all the Senior Indebtedness of the Company is paid in full,
then and in such event, such Subordinated Securities Payment shall be paid over
or delivered forthwith to the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee, agent or other person making payment or
distribution of assets of the Company for application to the payment of all
Senior Indebtedness of the Company remaining unpaid, to the extent necessary to
pay the Senior Indebtedness of the Company in full, after giving effect to any
concurrent payment or distribution to or for the holders of Senior Indebtedness
of the Company.
The consolidation of the Company with, or the merger of the Company into,
another person or the liquidation or dissolution of the Company following the
conveyance or transfer of all or substantially all of its properties and assets
as an entirety to another person upon the terms and conditions set forth in
Article Eight shall not be deemed a Proceeding for the purposes of this Section
1402 if the person formed by such consolidation or into which the Company is
merged or the person which acquires by conveyance or transfer such properties
and assets as an entirety, as the case may be, shall, as part of such
consolidation, merger, conveyance or transfer, comply with the conditions set
forth in Article Eight.
Section 1403. No Payment When Senior Debt in Default.
The Company will not make any Subordinated Securities Payment or make any
deposit pursuant to the provisions described under "Defeasance" Article Thirteen
if (i) any Designated Senior Debt is not paid when due (after giving effect to
any applicable grace periods) or (ii) any other default on Designated Senior
Debt occurs and the maturity of such Designated Senior Debt is accelerated in
accordance with its terms unless, in either case, the default has been cured or
waived or has ceased to exist and any such acceleration has been rescinded or
such Designated Senior Debt has been discharged or paid in full; provided,
however, that the Company may make Subordinated Securities Payments or make any
deposit pursuant to the provisions described under "Defeasance" Article Thirteen
without regard to the foregoing if the Company and the Trustee receive written
notice approving such payment from the representative of the Designated Senior
Debt with respect to which either of the events set forth in clause (i) or (ii)
of the immediately preceding sentence has occurred and is continuing. During the
continuance of any default (other than a default described in clause (i) or (ii)
of the second preceding sentence) (a "non-payment default") with respect to any
Designated Senior Debt pursuant to which the maturity thereof may be accelerated
immediately without further notice (except such notice as may be required to
effect such accelerations) or the expiration of any applicable grace periods,
the Company may not make Subordinated Securities Payments for a period (a
"Payment Blockage Period") commencing upon the receipt by the Trustee (with a
copy to the Company) of written notice (a "Blockage Notice") of such default
from the representative of the holders of such Designated Senior Debt specifying
an election to effect a Payment Blockage Period and ending 179 days thereafter
(or earlier if such Payment Blockage Period is terminated (i) by written notice
to the Trustee and the Company from the Person or Persons who gave such Blockage
Notice, (ii) because the default giving rise to such Blockage Notice is no
longer continuing or (iii) because Designated Senior Debt has been discharged or
repaid in full). Notwithstanding the provisions described in the immediately
preceding sentence, unless an event described in clause (i) or (ii) of the first
sentence of this paragraph has occurred, the Company may resume payments on the
Subordinated Securities after the end of such Payment Blockage Period. The
Subordinated Securities shall not be subject to more than one Payment Blockage
Period in any consecutive 360-day period. For all purposes of this paragraph, no
non-payment default with respect to Designated Senior Debt that existed or
72
<PAGE>
was continuing on the date of the commencement of any Payment Blockage Period
with respect to the Designated Senior Debt initiating such Payment Blockage
Period will be, or can be, made the basis for the commencement of a second
Payment Blockage Period, unless such default has been cured or waived for a
period of not less than 90 consecutive days.
In the event that, notwithstanding the foregoing, the Company shall make
any Subordinated Securities Payment to the Trustee or any Holder prohibited by
the foregoing provisions of this Section 1403, then and in such event, such
Subordinated Securities Payment shall be paid over and delivered forthwith to
the holders of the Senior Indebtedness of the Company remaining unpaid, to the
extent necessary to pay in full all the Senior Indebtedness of the Company.
If payment of the Notes is accelerated because of an Event of Default, the
Company or the Trustee shall promptly notify the holders of Designated Senior
Debt or the representative of such holders of the acceleration.
The provisions of this Section 1403 shall not apply to any Subordinated
Securities Payment with respect to which Section 1402 would be applicable.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, prohibited by the foregoing provisions of this Section,
shall be received by the Trustee under this Indenture or the Holders of the
Subordinated Securities before all Senior Indebtedness is paid in full or
provision is made for such payment in accordance with its terms, and if such
fact shall, at or prior to the time of such payment or distribution, have been
known to the Trustee, then such payment or distribution shall be held in trust
for the benefit of and shall be paid over or delivered to the representative of
the holders of such Senior Indebtedness, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any of such Senior
Indebtedness may have been issued, as their respective interest may appear, for
application to the payment of all Senior Indebtedness remaining unpaid until all
such Senior Indebtedness shall have been paid in full in accordance with its
distribution to or for the holders of such Senior Indebtedness.
For purposes of this Article only, the words "cash, property or securities"
shall not be deemed to include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other corporation provided for
by a plan of arrangement, reorganization or readjustment, the payment of which
is subordinated (at least to the extent provided in this Article with respect to
the Subordinated Securities) to the payment of all Senior Indebtedness which may
at the time be outstanding; provided that (i) the Senior Indebtedness is assumed
by the new corporation, if any, resulting from any such arrangement,
reorganization or readjustment, and (ii) the rights of the holders of the Senior
Indebtedness are not, without the consent of such holders, altered by such
arrangement, reorganization or readjustment. The consolidation of the Company
with, or the merger of the Company with or into, another corporation or the
liquidation or dissolution of the Company following the conveyance or transfer
of all or substantially all of its assets to another corporation upon the terms
and conditions provided in Article Eight shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of this Section if
such other corporation shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions stated in Article Eight.
Nothing in this Section shall apply to claims of, or payments to, the Trustee
73
<PAGE>
under or pursuant to Article Six, except as expressly provided therein. This
Section shall be subject to the further provisions of Section 1406.
Section 1404. Subrogation.
Subject to the payment in full of all Senior Indebtedness, the Holders of
the Subordinated Securities subject to the provisions of Sections 1402 and 1403
shall be subrogated (equally and ratably with the holders of all obligations of
the Company which by their express terms are subordinated to Senior Indebtedness
of the Company to the same extent as the Subordinated Securities are
subordinated and which are entitled to like rights of subrogation) to the rights
of the holders of Senior Indebtedness to receive payments or distributions of
cash, property or securities of the Company applicable to the Senior
Indebtedness until the principal of and interest on such Subordinated Securities
shall be paid in full; and for the purpose of such subrogation, no payments of
distributions to the holders of the Senior Indebtedness of any cash, property or
securities to which the Holders of such Subordinated Securities or the Trustee
on their behalf would be entitled except for the provisions of this Article, and
no payment over pursuant to the provisions of this Article to the holders of
Senior Indebtedness by Holders of such Subordinated Securities or the Trustee on
their behalf shall, as between the Company, its creditors other than holders of
Senior Indebtedness and the Holders of such Subordinated Securities, be deemed
to be a payment by the Company to or on account of the Senior Indebtedness; and
no payments or distributions of cash, property or securities to or for the
benefit of the Holders pursuant to the subrogation provision of this Article,
which would otherwise have been paid to the holders of Senior Indebtedness,
shall be deemed to be a payment by the Company to or for the account of such
Securities. The provisions of this Article are intended solely for the purpose
of defining the relative rights of the Holders of the Securities, on the one
hand, and the holders of the Senior Indebtedness, on the other hand.
Nothing contained in this Article or elsewhere in this Indenture or in the
Subordinated Securities is intended to or shall impair, as between the Company,
its creditors other than the holders of Senior Indebtedness, and the Holders of
the Subordinated Securities, the obligation of the Company, which is absolute
and unconditional, to pay to the Holders of the Subordinated Securities the
principal of and interest on the Subordinated Securities and the amounts owed as
and when the same shall become due and payable in accordance with their terms,
or is intended to or shall affect the relative rights against the Company of the
Holders of the Subordinated Securities and creditors of the Company other than
the holders of Senior Indebtedness, nor shall anything herein or therein prevent
the Holder of any Subordinated Security or the Trustee on his behalf 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 in respect of cash, property or securities of the Company
received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred to in
this Article, the Trustee, subject to the provisions of Sections 601 and 603,
and the Holders of the Subordinated Securities shall be entitled to rely upon
any order or decree made by any court of competent jurisdiction in which such
insolvency, bankruptcy, dissolution, winding-up, liquidation, arrangement or
reorganization proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidating trustee, agent or other Person making such
payment or distribution, delivered to the Trustee or to the Holders of the
Subordinated Securities for the
74
<PAGE>
purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the 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 1405. Authorization by Holders of Subordinated Securities.
Each Holder of a Subordinated Security by his acceptance thereof authorizes
the Trustee on his behalf to take such action as may be necessary or appropriate
to effectuate the subordination provided in this Article and appoints the
Trustee his attorney-in-fact for any and all such purposes.
Section 1406. Notice to Trustee.
The Company shall give prompt written notice to the Trustee and to any
Paying Agent of any fact known to the Company which would prohibit the making of
any payment of moneys to or by the Trustee or any paying agent in respect of the
Subordinated Securities pursuant to the provisions of this Article. Regardless
of anything to the contrary contained in this Article or elsewhere in this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any Senior Indebtedness or of any default or event of default with respect to
any Senior Indebtedness or of any other facts which would prohibit the making of
any payment of moneys to or by the Trustee in respect of the Subordinated
Securities unless and until the Trustee shall have received notice in writing at
its Corporate Trust Office to that effect signed by an officer of the Company,
or by a holder or agent of a holder of Senior Indebtedness who shall have been
certified by the Company or otherwise established to the reasonable satisfaction
of the Trustee to be such holder or agent, or by the trustee under any indenture
pursuant to which Senior Indebtedness shall be outstanding, and, prior to the
receipt of any such written notice, the Trustee shall, subject to Sections 601
and 603, be entitled to assume that no such facts exist; provided, that if on a
date at least two Business Days prior to the date upon which by the terms hereof
any such moneys shall become payable for any purpose (including, without
limitation, the payment of the principal of or interest on any Security) the
Trustee shall not have received with respect to such moneys the notice provided
for in this section, then, regardless of anything herein to the contrary, the
Trustee shall have full power and authority to receive such moneys and to apply
the same to the purpose for which they were received, and shall not be affected
by any notice to the contrary which may be received by it on or after such prior
date.
Regardless of anything to the contrary herein (but subject, in the case of
clause (a) of this paragraph, to Section 1402), nothing shall prevent (a) any
payment by the Company or the Trustee to the Holders of Subordinated Securities
of amounts in connection with a redemption of Subordinated Securities if (i)
notice of such redemption has been given pursuant to Article Eleven prior to the
receipt by the Trustee of written notice as aforesaid, and (ii) such notice of
redemption is given not earlier than 60 days before the redemption date, or (b)
any payment by the Trustee to the Holders of Subordinated Securities of amounts
deposited with it pursuant to Section 1302.
Subject to Sections 601 and 603, 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 a trustee or other representative on behalf of
such holder) to establish that
75
<PAGE>
such notice has been given by a holder of Senior Indebtedness or a trustee or
other representative on behalf of any such holder. In the event that the Trustee
determines in good faith that further evidence is required with respect to the
right of any Person as a holder of Senior Indebtedness to participate in any
payment or distribution pursuant to this Article, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of the Trustee as to
the amount of Senior Indebtedness held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any other
facts pertinent to the rights of such Person under this Article, and, if such
evidence is not furnished, the Trustee may defer any Payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
Section 1407. Trustee's Relation to Senior Indebtedness
The Trustee and any agent of the Company or the Trustee 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 in its individual or any other
capacity to the same extent as any other holder of Senior Indebtedness and
nothing in the Trust Indenture Act or in this Indenture shall deprive the
Trustee or any such agent of any of its rights as such holder. Nothing in this
Article shall apply to claims of, or payments to, the Trustee under or pursuant
to Section 607.
With respect to the holders of Senior Indebtedness, the Trustee undertakes
to perform or to observe only such of its covenants and obligations as are
specifically set forth in this Article, and no implied covenants or obligations
with respect to the holders of Senior Indebtedness shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness and, subject to the
provisions of Sections 601 and 603, the Trustee shall not be liable to any
holder of Senior Indebtedness if it shall in good faith pay over or deliver to
Holders of Subordinated Securities, the Company or any other Person moneys or
assets to which any holder of Senior Indebtedness shall be entitled by virtue of
this Article or otherwise.
Section 1408. No Impairment of Subordination.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof which any such holder may have or
otherwise be charged with.
Section 1409. Trust Moneys Not Subordinated.
Notwithstanding anything contained herein to the contrary, payments from
money or the proceeds of U.S. Government Obligations held in trust under Article
Thirteen by the Trustee for the payment of principal of, premium, if any, and
interest on the Subordinated Securities shall not be subordinated to the prior
payment of any Senior Indebtedness or subject to the restrictions on this
Article Fourteen, and none of the Trustee or the holders of the Subordinated
Securities shall be obligated to pay over any such amount to the Company or any
holder of Senior Indebtedness of the Company or any other creditor of the
Company.
76
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
CARLISLE COMPANIES INCORPORATED
By _____________________________
Title:
Attest:___________________________
By _______________________________
Title:
FLEET NATIONAL BANK
By ______________________________
Attest:
By _______________________________
Title:
77
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ____ day of _____________________, 1996, before me personally came
______________________, to me known, who, being by me duly sworn, did depose and
say that he/she is ________________ of Carlisle Companies Incorporated, one of
the corporations described in and which executed the foregoing instrument; that
he/she 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/she signed his/her name
thereto by like authority.
[NOTARIAL SEAL]
___________________________________
Notary Public
78
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ____day of ______________________, 1996, before me personally came
________________________, to me known, who, being by me duly sworn, did depose
and say that he/she is ________________ of Fleet National Bank, one of the
corporations described in and which executed the foregoing instrument; that
he/she 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/she signed his/her name
thereto by like authority.
[NOTARIAL SEAL]
___________________________________
Notary Public
79
<PAGE>
Exhibit 5.1
November 25, 1996
Carlisle Companies Incorporated
250 South Clinton Street, Suite 201
Syracuse, New York 13202
Gentlemen:
We have acted as special counsel to Carlisle Companies Incorporated, a
Delaware corporation (the "Company") in connection with the Company's
Registration Statement on Form S-3 (the "Registration Statement") being filed
with the Securities and Exchange Commission, relating to $300,000,000 (or the
equivalent thereof in foreign currencies or currency units) aggregate principal
amount of its unsecured debt securities consisting of debentures, notes or other
unsecured evidences of indebtedness in amounts, at prices and on terms to be
determined at the time of the offering which may be either senior or
subordinated (the "Debt Securities") of the Company. The issuance and terms
of the Debt Securities to be offered and sold by the Company are to be
authorized and approved and the manner of sale is to be determined in
additional proceedings proposed to be taken by the Company's Board of Directors
or as delegated by the Board of Directors.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of (i) the Restated
Certificate of Incorporation and By-Laws of the Company, as amended to date,
(ii) the Registration Statement, (iii) the applicable resolutions of the Board
of Directors of the Company, (iv) the proposed form of Indenture (the
"Indenture") between the Company and Fleet National Bank as trustee (the
"Trustee"), (v) the Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939 ("Trust Indenture Act"), to be filed with the Commission,
and (vi) such other documents, records and instruments as we have deemed
necessary or appropriate for the purpose of this opinion. In such examination,
we have assumed the genuineness of all
<PAGE>
signatures, the legal capacity of all natural persons, and the authenticity of
all documents submitted to us as conformed or photostatic copies. As to any
facts material to this opinion that we did not independently establish or
verify, we have relied upon statements and representations of officers and other
representatives of the Company and others. We also have assumed that the
Indenture, when executed and delivered, will be substantially in the form
submitted to us for examination.
We are admitted to the Bar of the State of New York and express no opinion
as to the laws of any other jurisdiction other than the General Corporation Law
of the State of Delaware.
Based upon and subject to the foregoing, we are of the opinion that,
assuming the due execution and delivery of the Indenture by the Trustee, upon
the taking of appropriate further corporate action by the Company and the due
execution and delivery of the Debt Securities on behalf of the Company, the Debt
Securities will be duly and validly authorized and, when duly authenticated by
the Trustee in accordance with the Indenture and delivered to and duly paid for
by the purchasers thereof in accordance with the terms set forth in the
Prospectus constituting a part of the Registration Statement and the
supplement or supplements to such Prospectus, the Debt Securities will be
legal, valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization or other similar laws
affecting enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law).
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and the reference to this firm under the caption "Legal
Matters" in the Registration Statement. In giving such consent, we do not
thereby admit that we come within the category of persons whose consent is
required under Section 7 of the Securities Act or the rules and regulations of
the Commission promulgated thereunder.
Very truly yours,
/s/ Dewey Ballantine
2
<PAGE>
EXHIBIT 12.1
CARLISLE COMPANIES INC.
EARNINGS TO FIXED CHARGES RATIO
(000'S)
<TABLE>
<CAPTION>
9 MONTHS
1996 1995 1994 1993 1992 1991
----------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
Earnings to Fixed Charges without majority-owned,
unconsolidated subsidiaries and joint ventures....... 11.15 11.25 11.70 10.03 7.78 3.03
Earnings to Fixed Charges including effect of
proportionate share of majority-owned, unconsolidated
subsidiaries and joint ventures...................... 8.22 8.70 9.73 9.89 7.78 3.03
CARLISLE
Net Earnings Before Tax............................... 70,489 72,858 58,791 46,912 39,720 10,561
Addback: Losses (earnings) of less than
majority-owned, unconsolidated subsidiaries....... (11) 548 478 179 154 --
----------- --------- --------- --------- --------- ---------
70,478 73,406 59,269 47,091 39,874 10,561
Interest Expense...................................... 5,987 6,075 4,647 4,310 5,174 4,376
Operating Leases...................................... 956 1,085 891 902 708 817
Total Fixed Charges................................... 6,943 7,160 5,539 5,213 5,882 5,193
MAJORITY-OWNED, UNCONSOLIDATED SUBSIDIARIES AND JOINT
VENTURES
Net Earnings Before Tax............................... 1,647 1,772 (165) (18)
Total Fixed Charges................................... 4,927 4,177 2,067 140
</TABLE>
- ------------------------
Note 1 -- 1991 includes a $18.7 million restructuring charge.
Note 2 -- Operating leases was obtained by taking 1/3 of total rents paid in
each of the years.
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference into this registration statement on Form S-3, of our report dated
January 29, 1996 on the consolidated financial statements of Carlisle Companies
Incorporated and subsidiaries as of December 31, 1995 and 1994 for the years
then ended, and to the reference to our firm as experts in this registration
statement.
Arthur Andersen LLP
/s/ ARTHUR ANDERSEN LLP
New York, New York
November 25, 1996
<PAGE>
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
THE BOARD OF DIRECTORS
CARLISLE COMPANIES INCORPORATED
We consent to the incorporation by reference in the registration statement
on Form S-3 of Carlisle Companies Incorporated of our report dated February 2,
1994, relating to the consolidated balance sheets of Carlisle Companies
Incorporated and subsidiaries as of December 31, 1993 and 1992, and the related
consolidated statements of earnings, shareholders' equity, and cash flows for
each of the years in the three-year period ended December 31, 1993, which report
appears in the December 31, 1993 annual report on Form 10-K of Carlisle
Companies Incorporated.
We also consent to the reference to our firm under the heading "Experts" in
the registration statement.
/s/ KPMG PEAT MARWICK LLP
Syracuse, New York
November 25, 1996
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------
FORM T-1
----------
STATEMENT OF ELIGIBILITY AND QUALIFICATION 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)
FLEET NATIONAL BANK
---------------------------------------------------------
(Exact name of trustee as specified in its charter)
<TABLE>
<S> <C>
Not applicable 04-317415
- ------------------------------- -----------------------------
(State of incorporation (I.R.S. Employer
if not a national bank) Identification No.)
One Monarch Place, Springfield, MA 01102
- ---------------------------------------- -----------------------------
(Address of principal executive offices) (Zip Code)
</TABLE>
c/o First Chicago Trust Company of New York, 14 Wall Street, 8th Floor-Window
No. 2,
New York, New York 10005 (212)
212-240-8860
--------------------------------------------------------------
(Name, address and telephone number of agent for service)
Carlisle Companies Incorporated
---------------------------------------------------
(Exact name of obligor as specified in its charter)
<TABLE>
<S> <C>
Delaware 31-1168055
- ------------------------------- -----------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
250 South Clinton Street
Syracuse, NY 13202
- ---------------------------------------- -----------------------------
(Address of principal executive offices) (Zip Code)
</TABLE>
Debt Securities
------------------------------------------------------------------
(Title of the indenture securities)
<PAGE>
Item 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,
The Comptroller of the Currency,
Washington, D.C.
Federal Reserve Bank of Boston
Boston, Massachusetts
Federal Deposit Insurance Corporation
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers:
The trustee is so authorized.
Item 2. Affiliations with obligor and underwriter. If the obligor or
any underwriter for the obligor is an affiliate of the trustee,
describe each such affiliation.
None with respect to the trustee.
Item 16. List of exhibits.
List below all exhibits filed as a part of this statement of
eligibility and qualification.
(1) A copy of the Articles of Association of the trustee as
now in effect.
(2) A copy of the Certificate of Authority of the trustee
to do business.
(3) A copy of the Certification of Fiduciary Powers of the
trustee.
(4) A copy of the By-Laws of the trustee as now in effect.
(5) Consent of the trustee required by Section 321(b)
of the Act.
(6) A copy of the latest Consolidated Reports of Condition
and Income of the trustee published pursuant to law or
the requirements of its supervising or examining authority.
NOTES
In as much as this Form T-1 is filed prior to the ascertainment by the trustee
of all facts on which to base answers to Item 2, the answers to said Items are
based upon imcomplete information. Said Items may, however, be considered
correct unless amended by an amendment to this Form T-1.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939,
the trustee, Fleet National Bank, a national banking association organized and
existing under the laws of the United States, has duly caused this statement of
of eligibility and qualification to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of Hartford, and State of
Connecticut, on the 25th day of November, 1996.
FLEET NATIONAL BANK, AS TRUSTEE
By: /s/ Mark A. Forgetta
-------------------------
By: Mark A. Forgetta
-------------------------
Its Vice President
<PAGE>
EXHIBIT 1
ARTICLES OF ASSOCIATION
OF
FLEET NATIONAL BANK
FIRST. The title of this Association, which shall carry on the business of
banking under the laws of the United States, shall be "Fleet National Bank."
SECOND. The main office of the Association shall be in Springfield, Hampden
County Commonwealth of Massachusetts. The general business of the Association
shall be conducted at its main office and its branches.
THIRD. The board of directors of this Association shall consist of not less
than five (5) nor more than twenty-five (25) shareholders, the exact number of
directors within such minimum and maximum limits to be fixed and determined
from time to time by resolution of a majority of the full board of directors or
by resolution of the shareholders at any annual or special meeting thereof.
Unless otherwise provided by the laws of the United States, any vacancy in the
board of directors for any reason, including an increase in the number thereof,
may be filled by action of the board of directors.
FOURTH. The annual meeting of the shareholders for the election of directors
and the transaction of whatever other business may be brought before said
meeting shall be held at the main office or such other place as the board of
directors may designate, on the day of each year specified therefore in the
bylaws, but if no election is held on that day, it may be held on any
subsequent day according to the provisions of law; and all elections shall be
held according to such lawful regulations as may be prescribed by the board of
directors.
FIFTH. The authorized amount of capital stock of this Association shall be
eight million five hundred thousand (8,500,000) shares of which three million
five hundred thousand (3,500,000) shares shall be common stock with a
par value of six and 25/100 dollars ($6.25) each, and of which five million
(5,000,000) shares without par value shall be preferred stock. The capital
stock may be increased or decreased from time to time, in accordance with
the provisions of the laws of the United States.
No holder of shares of the capital stock of any class of the Association shall
have any pre-emptive or preferential right of subscription to any shares of any
class of stock of the Association, whether now or hereafter authorized, or to
any obligations convertible into stock of the Association, issued or sold, nor
any right of subscription to any thereof other than such, if any, as the board
of directors, in its discretion, may from time to time determine and at such
price as the board of directors may from time to time fix.
<PAGE>
The board of directors of the Association is authorized, subject to limitations
prescribed by law and the provisions of this Article, to provide for the
issuance from time to time in one or more series of any number of the preferred
shares, and to establish the number of shares be included in each series, and
to fix the designation, relative rights, preferences, qualifications and
limitations of the shares of each such series. The authority of the board of
directors with respect to each series shall include, but not be limited to,
determination of the following:
a. The number of shares constituting that series and the distinctive
designation of that series;
b. The dividend rate on the shares of that series, whether dividends shall be
cumulative, and, if so, from which date or dates, and whether they shall be
payable in preference to, or in another relation to, the dividends payable
to any other class or classes or series of stock;
c. Whether that series shall have voting rights, in addition to the voting
rights provided by law, and, if so, the terms of such voting rights;
d. Whether that series shall have conversion or exchange privileges, and,
if so, the terms and conditions of such conversion or exchange, including
provision for the adjustment of the conversion or exchange rate in such
events as the board of directors shall determine;
e. Whether or not the shares of that series shall be redeemable, and, if so,
the terms and conditions of such redemption, including the manner of
selecting shares for redemption if less than all shares are to be redeemed,
the date or dates upon or after which they shall be redeemable, and the
amount per share payable in case of redemption, which amount may vary under
different conditions and at different redemption dates;
f. Whether that series shall be entitled to the benefit of a sinking fund to
be applied to the purchase or redemption of shares of that series, and, if
so, the terms and amounts of such sinking fund;
g. The right of the shares of that series to the benefit of conditions and
restrictions upon the creation of indebtedness of the Association or any
subsidiary, upon the issue of any additional stock (including additional
shares of such series or of any other series) and upon the payment of
dividends or the making of other distributions on, and the purchase,
redemption or other acquisition by the Association or any subsidiary of
any outstanding stock of the Association;
h. The right of the shares of that series in the event of voluntary or
involuntary liquidation, dissolution or winding up of the Association and
whether such rights shall be in preference to, or in another relation to,
the comparable rights of any other class or classes or series of stock; and
i. Any other relative, participating, optional or other special rights,
qualifications, limitations or restrictions of that series.
Shares of any series of preferred stock which have been redeemed (whether
through the operation of a sinking fund or otherwise) or which, if convertible
or exchangeable, have been converted into or exchanged for shares of stock of
any other class or classes shall have the status of authorized and unissued
shares of preferred stock of the same series and may be reissued as a part of
the series of which they were originally a part or may be reclassified and
reissued as part of a new series of preferred stock to be created by resolution
or resolutions of the board of directors or as part of any other series or
preferred stock, all subject to the conditions and the restrictions adopted by
the board of directors providing for the issue of any series of preferred
stock and by the provisions of any applicable law.
Subject to the provisions of any applicable law, or except as otherwise
provided by the resolution or resolutions providing for the issue of any series
of preferred stock, the holders of outstanding shares of common stock shall
exclusively possess voting power for the election of directors and for all
purposes, each holder of record of shares of common stock being entitled to one
vote for each share of common stock standing in his name on the books of the
Association.
Except as otherwise provided by the resolution or resolutions providing for the
issue of any series of preferred stock, after payment shall have been made to
the holders of preferred stock of the full amount of dividends to which they
shall be entitled pursuant to the resolution or resolutions providing for the
issue of any other series of preferred stock, the holders of common stock shall
be entitled, to the exclusion of the holders of preferred stock of any and all
series, to receive such dividends as from time to time may be declared by the
board of directors.
Except as otherwise provided by the resolution or resolutions for the issue
of any series of preferred stock, in the event of any liquidation, dissolution
or winding up of the Association, whether voluntary or involuntary, after
payment shall have been made to the holders of preferred stock of the full
amount to which they shall be entitled pursuant to the resolution or
resolutions providing for the issue of any series of preferred stock the
holders of common stock shall be entitled, to the exclusion of the holders of
preferred stock of any and all series, to share, ratable according to the
number of shares of common stock held by them, in all remaining assets of the
Association available for distribution to its shareholders.
The number of authorized shares of any class may be increased or decreased by
the affirmative vote of the holders of a majority of the stock of the
Association entitled to vote.
<PAGE>
SIXTH. The board of directors shall appoint one of its members president of
this Association, who shall be chairman of the board, unless the board appoints
another director to be the chairman. The board of directors shall have the
power to appoint one or more vice presidents; and to appoint a secretary and
such other officers and employees as may be required to transact the business
of this Association.
The board of directors shall have the power to define the duties of the
officers and employees of the Association; to fix the salaries to be paid to
them; to dismiss them; to require bonds from them and to fix the penalty
thereof; to regulate the manner in which any increase of the capital of the
Association shall be made; to manage and administer the business and affairs of
the Association; to make all bylaws that it may be lawful for them to make; and
generally to do and perform all acts that it may be legal for a board of
directors to do and perform.
SEVENTH. The board of directors shall have the power to change the location of
the main office to any other place within the limits of the City of Hartford,
Connecticut, without the approval of the shareholders but subject to the
approval of the Comptroller of the Currency; and shall have the power to
establish or change the location of any branch or branches of the Association
to any other location, without the approval of the shareholders but subject to
the approval of the Comptroller of the Currency.
EIGHTH. The corporate existence of this Association shall continue until
terminated in accordance with the laws of the United States.
NINTH. The board of directors of this Association, or any three or more
shareholders owning, in the aggregate, not less than ten percent (10%) of the
stock of this Association, may call a special meeting of shareholders at any
time. Unless otherwise provided by the laws of the United States, a notice of
the time, place and purpose of every annual and special meeting of the
shareholders shall be given by first class mail, postage prepaid, mailed at
least ten (10) days prior to the date of such meeting to each shareholder of
record at his address as shown upon the books of this Association.
TENTH. (a) Right to Indemnification. Each person who was or is made a party
or is threatened to be made a party to any threatened, pending or completed
action, suit, or proceeding, whether civil, criminal, administrative, or
investigative (hereinafter a "proceeding"), by reason of the fact that he or
she is or was a director, officer or employee of the Association or is or was
serving at the request of the Association as a director, officer, employee or
agent of another corporation or of a partnership, joint venture, limited
liability company, trust, or other enterprise, including service with respect
to an employee benefit plan, shall be indemnified and held harmless by the
Association to the fullest extent authorized by the law of the state in which
the Association's ultimate parent company is incorporated, except as provided
in subsection (b). The aforesaid indemnity shall protect the indemnified
person against all expense, liability and loss (including attorney's fees,
judgements, fines ERISA excise taxes or penalties, and amounts paid in
settlement) reasonably incurred by such person in connection with such a
proceeding. Such indemnification shall continue as to a person who has ceased
to be a director, officer or employee and shall inure to the benefit of his or
her heirs, executors, and administrators, but shall only cover such person's
period of service with the Association. The Association may, by action of its
Board of Directors, grant rights to indemnification to agents of the
Association and to any director, officer, employee or agent of any of its
subsidiaries with the same scope and effect as the foregoing indemnification
of directors and officers.
(b) Restrictions on Indemnification. Notwithstanding the foregoing, (i) no
person shall be indemnified hereunder by the Association against expenses,
penalties, or other payments incurred in an administrative proceeding or action
instituted by a federal bank regulatory agency which proceeding or action
results in a final order assessing civil money penalties against that person,
requiring affirmative action by that person in the form of payments to the
Association, or removing or prohibiting that person from service with the
Association, and any advancement of expenses to that person in that proceeding
must be repaid; and (ii) no person shall be indemnified hereunder by the
Association and no advancement of expenses shall be made to any person
hereunder to the extent such indemnification or advancement of expenses would
violate or conflict with any applicable federal statute now or hereafter in
force or any applicable final regulation or interpretation now or hereafter
adopted by the Office of the Comptroller of the Currency ("OCC") or the Federal
Deposit Insurance Corporation ("FDIC"). The Association shall comply with any
requirements imposed on it by any such statue or regulation in connection with
any indemnification or advancement of expenses hereunder by the Association.
With respect to proceedings to enforce a claimant's rights to indemnification,
the Association shall indemnify any such claimant in connection with such a
proceeding only as provided in subsection (d) hereof.
(c) Advancement of Expenses. The conditional right to indemnification
conferred in this section shall be a contract right and shall include the
right to be paid by the Association the reasonable expenses (including
attorney's fees) incurred in defending a proceeding in advance of its final
disposition (an "advancement of expenses"); provided, however, that an
advancement of expenses shall be made only upon (i) delivery to the Association
of a binding written undertaking by or on behalf of the person receiving the
advancement to repay all amounts so advanced if it is ultimately determined
that such person is not entitled to be indemnified in such proceeding,
including if such proceeding results in a final order assessing civil money
penalties against that person, requiring affirmative action by that person
in the form of payments to the Association, or removing or prohibiting that
person from service with the Association, and (ii) compliance with any other
actions or determinations required by applicable law, regulation or OCC or FDIC
interpretation to be taken or made by the Board of Directors of the Association
<PAGE>
or other persons prior to an advancement of expenses. The Association shall
cease advancing expenses at any time its Board of Directors believes that any
of the prerequisites for advancement of expenses are no longer being met.
(d) Right of Claimant to Bring Suit. If a claim under subsection (a) of the
section is not paid in full by the Association within thirty (30) days after
written claim has been received by the Association, the claimant may at any time
thereafter bring suit against the Association to recover the unpaid amount
of the claim. If successful in whole or in part in any such suit, or in a
suit brought by the Association to recover an advancement of expenses pursuant
to the terms of an undertaking, the claimant shall be entitled to be paid also
the expense of prosecuting or defending such claim. It shall be a defense to
any such action brought by the claimant to enforce a right to indemnification
hereunder (other than an action brought to enforce a claim for an advancement
of expenses where the required undertaking, if any, has been tendered to the
Association) that the claimant has not met any applicable standard for
indemnification under the law of the state in which the Association's ultimate
parent company is incorporated. In any suit brought by the Association to
recover an advancement of expenses pursuant to the terms of an undertaking, the
Association shall be entitled to recover such expenses upon a final
adjudication that the claimant has not met any applicable standard for
indemnification standard for indemnification under the law of the state in
which the Association's ultimate parent company is incorporated.
(e) Non-Exclusivity of Rights. The rights to indemnification and the
advancement of expenses conferred in this section shall not be exclusive of any
other right which any person may have or hereafter acquired under any statute,
agreement, vote of stockholders or disinterested directors or otherwise.
(f) Insurance. The Association may purchase, maintain, and make payment or
reimbursement for reasonable premiums on, insurance to protect itself and any
director, officer, employee or agent of the Association or another corporation,
partnership, joint venture, trust or other enterprise against any expense,
liability or loss, whether or not the Association would have the power to
indemnify such person against such expense, liability or loss under the law of
the state in which the Association's ultimate parent company is incorporated;
provided however, that such insurance shall explicitly exclude insurance
coverage for a final order of a federal bank regulatory agency assessing civil
money penalties against an Association director, officer, employee or agent.
ELEVENTH. These articles of association may be amended at any regular or
special meeting of the shareholders by the affirmative vote of the holders of a
majority of the stock of this Association, unless the vote of the holders of
greater amount of stock is required by law, and in that case by the vote of the
holders of such greater amount. The notice of any shareholders' meeting at
which an amendment to the articles of association of this Association is to be
considered shall be given as hereinabove set forth.
I hereby certify that the articles of association of this Association, in their
entirety, are listed above in items first through eleventh.
Secretary/Assistant Secretary
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Dated at , as of .
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Revision of February 15, 1996
<PAGE>
EXHIBIT 2
[LOGO]
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COMPTROLLER OF THE CURRENCY
ADMINISTRATOR OF NATIONAL BANKS
- --------------------------------------------------------------------------------
Washington, D.C. 20219
CERTIFICATE
I, Eugene A. Ludwig, Comptroller of the Currency, do hereby certify
that:
(1) The Comptroller of the Currency, pursuant to Revised Statutes
324, et seq., as amended, 12 U.S.C. 1, et seq., as amended, has possession,
custody and control of all records pertaining to the chartering, regulation and
supervision of all National Banking Associations.
(2) "Fleet National Bank of Connecticut", Hartford, Connecticut,
(Charter No. 1338), is a National Banking Association formed under the
laws of the United States and is authorized thereunder to transact the
business of banking on the date of this Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
office to be affixed to these presents at
the Treasury Department, in the City of
Washington and District of Columbia, this
4th day of April, 1996.
/s/ EUGENE A. LUDWIG
----------------------------------
Comptroller of the Currency
<PAGE>
EXHIBIT 2
[LOGO]
- --------------------------------------------------------------------------------
COMPTROLLER OF THE CURRENCY
ADMINISTRATOR OF NATIONAL BANKS
- --------------------------------------------------------------------------------
Washington, D.C. 20219
Certification of Fiduciary Powers
I, Eugene A. Ludwig, Comptroller of the Currency, do hereby certify
the records in this Office evidence "Fleet National Bank of Connecticut",
Hartford, Connecticut, (Charter No. 1338), was granted, under the hand
and seal of the Comptroller, the right to act in all fiduciary capacities
authorized under the provisions of The Act of Congress approved
September 28, 1962, 76 Stat. 668, 12 U.S.C. 92a. I further certify the
authority so granted remains in full force and effect.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
Office of the Comptroller of the Currency
to be affixed to these presents at the
Treasury Department, in the City of
Washington and District of Columbia, this
4th day of April, 1996.
/s/ EUGENE A. LUDWIG
----------------------------------
Comptroller of the Currency
<PAGE>
EXHIBIT 4
AMENDED AND RESTATED BY-LAWS OF
FLEET NATIONAL BANK
ARTICLE I
MEETINGS OF SHAREHOLDERS
Section 1. Annual Meeting. The regular annual meeting of the shareholders for
the election of Directors and the transaction of any other business that may
properly come before the meeting shall be held at the Main Office of the
Association, or such other place as the Board of Directors may designate, on
the fourth Thursday of April in each year at 1:15 o'clock in the afternoon
unless some other hour of such day is fixed by the Board of Directors.
If, from any cause, an election of Directors is not made on such day, the Board
of Directors shall order the election to be held on some subsequent day, of
which special notice shall be given in accordance with the provisions of law,
and of these bylaws.
Section 2. Special Meetings. Special meetings of the shareholders may be called
at any time by the Board of Directors, the President, or any shareholders
owning not less than twenty-five percent (25%) of the stock of the Association.
Section 3. Notice of Meetings of Shareholders. Except as otherwise provided
by law, notice of the time and place of annual or special meetings of the
shareholders shall be mailed, postage prepaid, at least ten (10) days before
the date of the meeting to each shareholder of record entitled to vote thereat
at his address as shown upon the books of the Association; but any failure to
mail such notice to any shareholder or any irregularity therein, shall not
affect the validity of such meeting or of any of the proceedings thereat.
Notice of a special meeting shall also state the purpose of the meeting.
Section 4. Quorum; Adjourned Meetings. Unless otherwise provided by law, a
quorum for the transaction of business at every meeting of the shareholders
shall consist of not less than two-fifths (2/5) of the outstanding capital
stock represented in person or by proxy; less than such quorum may adjourn the
meeting to a future time. No notice need be given of an adjourned annual or
special meeting of the shareholders if the adjournment be to a definite place
and time.
Section 5. Votes and Proxies. At every meeting of the shareholders, each
share of the capital stock shall be entitled to one vote except as otherwise
provided by law. A majority of the votes cast shall decide every question
or matter submitted to the shareholder at any meeting, unless otherwise
provided by law or by the Articles of Association or these By-laws. Share-
holders may vote by proxies duly authorized in writing and filed with the
Cashier, but no officer, clerk, teller or bookeeper of the Association may act
as a proxy.
<PAGE>
Section 6. Nominations to Board of Directors. At any meeting of shareholders
held for the election of Directors, nominations for election to the Board of
Directors may be made, subject to the provisions of this section, by any share-
holder of record of any outstanding class of stock of the Association entitled
to vote for the election of Directors. No person other than those whose names
are stated as proposed nominees in the proxy statement accompanying the notice
of the meeting may be nominated as such meeting unless a shareholder shall have
given to the President of the Association and to the Comptroller of the
Currency, Washington, DC written notice of intention to nominate such other
person mailed by certified mail or delivered not less than fourteen (14) days
nor more than fifty (50) days prior to the meeting of shareholders at which
such nomination is to be made; provided, however, that if less than twenty-one
(21) days' notice of such meeting is given to shareholders, such notice of
intention to nominate shall be mailed by certified mail or delivered to said
President and said Comptroller on or before the seventh day following the day
on which the notice of such meeting was mailed. Such notice of intention to
nominate shall contain the following information to the extent known to the
notifying shareholder: (a) the name and address of each proposed nominee; (b)
the principal occupation of each proposed nominee; (c) the total number of
shares of capital stock of the Association that will be voted for each proposed
nominee; (d) the name and residence address of the notifying shareholder; and
(e) the number of shares of capital stock of the Association owned by the
notifying shareholder. In the event such notice is given, the proposed nominee
may be nominated either by the shareholder giving such notice or by any other
shareholder present at the meeting at which such nomination is to be made.
Such notice may contain the names of more than one proposed nominee, and if
more than one is named, any one or more of those named may be nominated.
Section 7. Action Taken Without a Shareholder Meeting. Any action requiring
shareholder approval or consent may be taken without a meeting and without
notice of such meeting by written consent of the shareholders.
ARTICLE II
DIRECTORS
Section 1. Number. The Board of Directors shall consist of such number of
shareholders, not less than five (5) nor more than twenty-five (25), as from
time to time shall be determined by a majority of the votes to which all of its
shareholders are at the time entitled, or by the Board of Directors as
hereinafter provided.
Section 2. Mandatory Retirement for Directors. No person shall be elected a
director who has attained the age of 68 and no person shall continue to serve
as a director after the date of the first meeting of the stockholders of the
Association held on or after the date on which such person attains the age of
68; provided, however, that any director serving on the Board as of December
15, 1995 who has attanined the age of 65 on or prior to such date shall be
permitted to continue to serve as a director until the date of the first
meeting of the stockholders of the Association held on or after the date on
which such person attains the age of 70.
-2-
<PAGE>
Section 3. General Powers. The Board of Directors shall exercise all the
coporate powers of the Association, except as expressly limited by law, and
shall have the control, management, direction and dispositon of all its
property and affairs.
Section 4. Annual Meeting. Immediately following a meeting of shareholders
held for the election of Directors, the Cashier shall notify the directors-
elect who may be present of their election and they shall then hold a meeting
at the Main Office of the Association, or such other place as the Board of
Directors may designate, for the purpose of taking their oaths, organizing the
new Board, electing officers and transacting any other business that may come
before such meeting.
Section 5. Regular Meeting. Regular meetings of the Board of Directors shall
be held without notice at the Main Office of the Association, or such other
place as the Board of Directors may designate, at such dates and times as the
Board shall determine. If the day designated for a regular meeting falls on a
legal holiday, the meeting shall be held on the next business day.
Section 6. Special Meetings. A special meeting of the Board of Directors may
be called at anytime upon the written request of the Chairman of the Board, the
President, or of two Directors, stating the purpose of the meeting. Notice of
the time and place shall be given not later than the day before the date of the
meeting, by mailing a notice to each Director at his last known address, by
delivering such notice to him personally, or by telephoning.
Section 7. Quorum; Votes. A majority of the Board of Directors at the time
holding office shall constitute a quorum for the transaction of all business,
except when otherwise provided by law, but less than a quorum may adjourn
a meeting from time to time, and the meeting may be held, as adjourned, without
further notice. If a quorum is present when a vote is taken, the affirmative
vote of a majority of Directors present is the act of the Board of Directors.
Section 8. Action by Directors Without a Meeting. Any action requiring
Director approval or consent may be taken without a meeting and without notice
of such meeting by written consent of all the Directors.
Section 9. Telephonic Participation in Directors' Meetings. A Director or
member of a Committee of the Board of Directors may participate in a meeting of
the Board or of such Committee may participate in a meeting of the Board or of
such Committee by means of a conference telephone or similar communications
equipment enabling all Directors participating in the meeting to hear one
another, and participation in such a meeting shall constitute presence in person
at such a meeting.
Section 10. Vacancies. Vacancies in the Board of Directors may be filled by
the remaining members of the Board at any regular or special meeting of the
Board.
Section 11. Interim Appointments. The Board of Directors shall, if the share-
holders at any meeting for the election of Directors have determined a number
of Directors less than twenty-five (25), have the power, by affirmative vote of
the majority of all the Directors, to increase such number of Directors to not
more than twenty-five (25) and to elect Directors to fill the resulting
vacancies and to serve until the next annual meeting of shareholders or the
next election of Directors; provided, however, that the number of Directors
shall not be so increased by more than two (2) if the number last determined
by shareholders was fifteen (15) or less, or increased by more than four (4) if
the number last determined by shareholders was sixteen (16) or more.
Section 12. Fees. The Board of Directors shall fix the amount and direct the
payment of fees which shall be paid to each Director for attendance at any
meeting of the Board of Directors or of any Committees of the Board.
ARTICLE III
COMMITTEES OF THE BOARD
Section 1. Executive Committee. The Board of Directors shall appoint from its
members an Executive Committee which shall consist of such number of persons as
the Board of Directors shall determine; the Chairman of the Board and the
President shall be members ex-officio of the Executive Committee with full
voting power. The Chairman of the Board or the President may from time to time
appoint from the Board of Directors as temporary additional members of the
Executive Committee, with full voting powers, not more than two members to serve
for such periods as the Chairman of the Board or the President may determine.
The Board of Directors shall designate a member of the Executive Committee to
serve as Chairman thereof. A meeting of the Executive Committee may be called
at any time upon the written request of the Chairman of the Board, the President
or the Chairman of the Executive Committee, stating the purpose of the meeting.
Not less than twenty four hours' notice of said meeting shall be given to each
member of the Committee personally, by telephoning, or by mail. The Chairman of
the Executive Committee or, in his absence, a member of the Committee chosen by
a majority of the members present shall preside at meetings of the Executive
Committee.
-3-
<PAGE>
The Executive Committee shall possess and may exercise all the powers of the
Board when the Board is not in session except such as the Board, only, by law,
is authorized to exercise; it shall keep minutes of its acts and proceedings
and cause same to be presented and reported at every regular meeting and at any
special meeting of the Board including specifically, all its actions relating
to loans and discounts.
All acts done and powers and authority conferred by the Executive Committee,
from time to time, within the scope of its authority, shall be deemed to be,
and may be certified as being, the acts of and under the authority of the
Board.
Section 2. Risk Management Committee. The Board shall appoint from its
members a Risk Management Committee which shall consist of such number as the
Board shall determine. The Board shall designate a member of the Risk
Management Committee to serve as Chairman thereof. It shall be the duty of the
Risk Management Committee to (a) serve as the channel of communication with
management and the Board of Directors of Fleet Financial Group, Inc. to assure
that formal processes supported by management information systems are in place
for the identification, evaluation and management of significant risks inherent
in or associated with lending activities, the loan portfolio, asset-liablity
management, the investment portfolio, trust and investment advisory activities,
the sale of nondeposit investment products and new products and services and
such additional activities or functions as the Board may determine from time
to time; (b) assure the formulation and adoption of policies approved by the
Risk Management Committee or Board governing lending activities, management of
the loan portfolio, the maintenance of an adequate allowance for loan and lease
losses, asset-liability management, the investment portfolio, the retail
sale of non-deposit investment products, new products and services and such
additional activities or functions as the Board may determine from time to time
(c) assure that a comprehensive independent loan review program is in place for
the early detection of problem loans and review significant reports of the loan
review department, management's responses to those reports and the risk
attributed to unresolved issues; (d) subject to control of the Board, exercise
general supervision over trust activities, the investment of trust funds, the
disposition of trust investments and the acceptance of new trusts and the terms
of such acceptance, and (e) perform such additional duties and exercise such
additional powers of the Board as the Board may determine from time to time.
Section 3. Audit Committee. The Board shall appoint from its members and
Audit Committee which shall consist of such number as the Board shall determine
no one of whom shall be an active officer or employee of the Association or
Fleet Financial Group, Inc. or any of its affiliates. In addition, members of
the Audit Committee must not (i) have served as an officer or employee of the
Association or any of its affiliates at any time during the year prior to their
appointment; or (ii) own, control, or have owned or controlled at any time
during the year prior to appointment, ten percent (10%) or more of any
outstanding class of voting securities of the Association. At least two (2)
members of the Audit Committee must have significant executive, professional,
educational or regulatory experience in financial, auditing, accounting,
or banking matters. No member of the Audit Commitee may have significant
direct or indirect credit or other relationships with the Association, the
termination of which would materially adversely affect the Association's
financial condition or results of operations.
The Board shall designate a member of the Audit Committee to serve as Chairman
thereof. It shall be the duty of the Audit Committee to (a) cause a continuous
audit and examination to be made on its behalf into the affairs of the
Association and to review the results of such examination; (b) review
significant reports of the internal auditing department, management's responses
to those reports and the risk attributed to unresolved issues; (c) review the
basis for the reports issued under Section 112 of The Federal Deposit Insurance
Corporation Improvement Act of 1991; (d) consider, in consultation with the
independent auditor and an internal auditing executive, the adequacy of the
Association's internal controls, including the resolution of identified material
weakness and reportable conditions; (e) review regulatory communications
received from any federal or state agency with supervisory jurisdiction or
other examining authority and monitor any needed corrective action by
management; (f) ensure that a formal system of internal controls is in place
for maintaining compliance with laws and regulations; (g) cause an audit of the
Trust Department at least once during each calendar year and within 15 months
of the last such audit or, in liew thereof, adopt a continuous audit system and
report to the Board each calendar year and within 15 months of the previous
report on the performance of such audit function; and (h) perform such
additional duties and exercise such additional powers of the Board as the Board
may determine from time to time.
The Audit Committee may consult with internal counsel and retain its own
outside counsel without approval (prior or otherwise) from the Board or
management and obligate the Association to pay the fees of such counsel.
-4-
<PAGE>
Section 4. Community Affairs Committee. The Board shall appoint from its
members a Community Affairs Committee which shall consist of such number as the
Board shall determine. The Board shall designate a member of the Community
Affairs Committee to serve as Chairman thereof. It shall be the duty of the
Commmunity Affairs Committee to (a) oversee compliance by the Association with
the Community Reinvestment Act of 1977, as amended, and the regulations
promulgated thereunder; and (b) perform such additional duties and exercise such
additional powers of the Board as the Board may determine from time to time.
Section 5. Regular Meetings. Except for the Executive Committee which shall
meet on an ad hoc basis as set forth in Section 1 of this Article, regular
meetings of the Committees of the Board of Directors shall be held, without
notice, at such time and place as the Committee or the Board of Directors may
appoint and as often as the business of the Association may require.
Section 6. Special Meetings. A Special Meeting of any of the Committees of
the Board of Directors may be called upon the written request of the Chairman
of the Board or the President, or of any two members of the respective
Committee, stating the purpose of the meeting. Not less than twenty-four
hours' notice of such special meeting shall be given to each member of the
Committee personally, by telephoning, or by mail.
Section 7. Emergency Meetings. An Emergency Meeting of any of the Committees
of the Board of Directors may be called at the request of the Chairman of the
Board or the President, who shall state that an emergency exists, upon not
less than one hour's notice to each member of the Committee personally or by
telephoning.
Section 8. Action Taken Without a Committee Meeting. Any Committee of the
Board of Directors may take action without a meeting and without notice of such
meeting by resolution assented to in writing by all members of such Committee.
Section 9. Quorum. A majority of a Committee of the Board of Directors shall
constitute a quorum for the transaction of any business at any meeting of such
Committee. If a quorum is not available, the Chairman of the Board or the
President shall have power to make temporary appointments to a Committee of-
members of the Board of Directors, to act in the place and stead of members who
temporarily cannot attend any such meeting; provided, however, that any
temporary appointment to the Audit Committee must meet the requirements for
members of that Committee set forth in Section 3 of this Article.
Section 10. Record. The committes of the Board of Directors shall keep a
record of their respective meetings and proceedings which shall be presented
at the regular meeting of the Board of Directors held in the calendar month
next following the meetings of the Committees. If there is no regular Board
of Directors meeting held in the calendar month next following the meeting of
a Committee, then such Committee's records shall be presented at the next
regular Board of Directors meeting held in a month subsequent to such Committee
meeting.
Section 11. Changes and Vacancies. The Board of Directors shall have power
to change the members of any Committee at any time and to fill vacancies on any
Committee; provided, however, that any newly appointed member of the Audit
Committee must meet the requirements for members of that Committee set forth in
Section 3 of this Article.
Section 12. Other Committees. The Board of Directors may appoint, from time
to time, other committees of one or more persons, for such purposes and with
such powers as the Board may determine.
ARTICLE IV
WAIVER OF NOTICE OF MEETINGS
Section 1. Waiver. Whenever notice is required to be given to any shareholder,
Director, or member of a Committee of the Board of Directors, such notice may
be waived in writing either before or after such meeting by any shareholder,
Director or Committee member respectively, as the case may be, who may be
entitled to such notice; and such notice will be deemed to be waived by
attendance at any such meeting.
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ARTICLE V
OFFICERS AND AGENTS
Section 1. Officers. The Board shall appoint a Chairman of the Board and a
President, and shall have the power to appoint one or more Executive Vice
Presidents, one or more Senior Vice Presidents, one or more Vice Presidents, a
Cashier, a Secretary, an Auditor, a Controller, one or more Trust Officers and-
such other officers as are deemed necessary or desirable for the proper
transaction of business of the Association. The Chairman of the Board and the
President shall be appointed from members of the Board of Directors. Any two
or more offices, except those of President and Cashier, or Secretary, may be
held by the same person. The Board may, from time to time, by resolution
passed by a majority of the entire Board, designate one or more officers of the
Association or of an affiliate or of Fleet Financial Group, Inc. with power to
appoint one or more Vice Presidents and such other officers of the Association
below the level of Vice President as the officer or officers designated in such
resolution deem necessary or desirable for the proper transaction of the
business of the Association.
Section 2. Chairman of the Board. The chairman of the Board shall preside at
all meetings of the Board of Directors. Subject to definition by the Board of
Directors, he shall have general executive powers and such specific powers and
duties as from time to time may be conferred upon or assigned to him by the
Board of Directors.
Section 3. President. The President shall preside at all meetings of the
Board of Directors if there be no Chairman or if the Chairman be absent.
Subject to definition by the Board of Directors, he shall have general
executive powers and such specific powers and duties as from time to time may
be conferred upon or assigned to him by the Board of Directors.
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Section 4. Cashier and Secretary. The Cashier shall be the Secretary of the
Board and of the Executive Committee, and shall keep accurate minutes of their
meetings and of all meetings of the shareholders. He shall attend to the
giving of all notices required by these By-laws. He shall be custodian of the
corporate seal, records, documents and papers of the Association. He shall
have such powers and perform such duties as pertain by law or regulation to the
office of Cashier, or as are imposed by these By-laws, or as may be delegated
to him from time to time by the Board of Directors, the Chairman of the Board
or the President.
Section 5. Auditor. The Auditor shall be the chief auditing officer of the
Association. He shall continuously examine the affairs of the Association and
from time to time shall report to the Board of Directors. He shall have such
powers and perform such duties as are conferred upon, or assigned to him by
these By-laws, or as may be delegated to him from time to time by the Board
of Directors.
Section 6. Officers Seriatim. The Board of Directors shall designate from
time to time not less than two officers who shall in the absence or disability
of the Chairman or President or both, succeed seriatim to the duties and
responsibilities of the Chairman and President respectively.
Section 7. Clerks and Agents. The Board of Directors may appoint, from time
to time, such clerks, agents and employees as it may deem advisable for the
prompt and orderly transaction of the business of the Association, define
their duties, fix the salaries to be paid them and dismiss them. Subject to
the authority of the Board of Directors, the Chairman of the Board or the
President, or any other officer of the Association authorized by either of them
may appoint and dismiss all or any clerks, agents and employees and prescribe
their duties and the conditions of their employment, and from time to time
fix their compensation.
Section 8. Tenure. The Chairman of the Board of Directors and the President
shall, except in the case of death, resignation, retirement or disqualification
under these By-laws, or unless removed by the affirmative vote of at least two-
thirds of all of the members of the Board of Directors, hold office for the
term of one year or until their respective successors are appointed. Either
of such officers appointed to fill a vacancy occurring in an unexpired term
shall serve for such unexpired term of such vacancy. All other officers,
clerks, agents, attorneys-in-fact and employees of the Association shall hold
office during the pleasure of the Board of Directors or of the officer or
committee appointing them respectively.
ARTICLE VI
TRUST DEPARTMENT
Section 1. General Powers and Duties. All fiduciary powers of the Association
shall be exercised through the Trust Department, subject to such regulations as
the Comptroller of the Currency shall from time to time establish. The Trust
Department shall be to placed under the management and immediate supervision
of an officer or officers appointed by the Board of Directors. The duties of
all officers of the Trust Department shall be to cause the policies and
instructions of the Board and the Risk Management Committee with respect to the
trusts under their supervision to be carried out, and to supervise the due
performance of the trusts and agencies entrusted to the Association and under
their supervision, in accordance with law and in accordance with the terms of
such trusts and agencies.
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ARTICLE VII
BRANCH OFFICES
Section 1. Establishment. The Board of Directors shall have full power to
establish, to discontinue, or, from time to time, to change the location of any
branch office, subject to such limitations as may be provided by law.
Section 2. Supervision and Control. Subject to the general supervision and
control of the Board of Directors, the affairs of branch offices shall be
under the immediate supervision and control of the President or of such other
officer or officers, employee or employees, or other individuals as the Board
of Directors may from time to time determine, with such powers and duties as
the Board of Directors may confer upon or assign to him or them.
ARTICLE VIII
SIGNATURE POWERS
Section 1. Authorization. The power of officers, employees, agents and
attorneys to sign on behalf of and to affix the seal of the Association shall
be prescribed by the Board of Directors or by the Executive Committee or by
both; provided that the President is authorized to restrict such power of any
officer, employee, agent or attorney to the business of a specific department
or departments, or to a specific branch office or branch offices. Facsimile
signatures may be authorized.
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ARTICLE IX
STOCK CERTIFICATES AND TRANSFERS
Section 1. Stock Records. The Trust Department shall have custody of the
stock certificate books and stock ledgers of the Association, and shall make
all transfers of stock, issue certificates thereof and disburse dividends
declared thereon.
Section 2. Form of Certificate. Every shareholder shall be entitled to a
certificate conforming to the requirements of law and otherwise in such form
as the Board of Directors may approve. The certificates shall state on the
face thereof that the stock is transferable only on the books of the
Association and shall be signed by such officers as may be prescribed from time
to time by the Board of Directors or Executive Committee. Facsimile signatures
may be authorized.
Section 3. Transfers of Stock. Transfers of stock shall be made only on the
books of the Association by the holder in person, or by attorney duly
authorized in writing, upon surrender of the certificate therefor properly
endorsed, or upon the surrender of such certificate accompanied by a properly
executed written assignment of the same, or a written power of attorney to
sell, assign or transfer the same or the shares represented thereby.
Section 4. Lost Certificate. The Board of Directors or Executive Committee
may order a new certificate to be issued in place of a certificate lost or
destroyed, upon proof of such loss or destruction and upon tender to the
Association by the shareholder, of a bond in such amount and with or without
surety, as may be ordered, indemnifying the Association against all liability,
loss, cost and damage by reason of such loss or destruction and the issuance
of a new certificate.
Section 5. Closing Transfer Books. The Board of Directors may close the
transfer books for a period not exceeding thirty days preceding any regular
or special meeting of the shareholders, or the day designated for the payment
of a dividend or the allotment of rights. In lieu of closing the transfer
books the Board of Directors may fix a day and hour not more than thirty days
prior to the day of holding any meeting of the shareholders, or the day
designated for the payment of a dividend, or the day designated for the
allotment of rights, or the day when any change of conversion or exchange of
capital stock is to go into effect, as the day as of which shareholders
entitled to notice of and to vote at such meetings or entitled to such dividend
or to such allotment of rights or to exercise the rights in respect of any
such change, conversion or exchange of capital stock, shall be determined, and
only such shareholders as shall be shareholders of record on the day and hour
so fixed shall be entitled to notice of and to vote at such meeting or to
receive payment of such dividend or to receive such allotment of rights or to
exercise such rights, as the case may be.
ARTICLE X
THE CORPORATE SEAL
Section 1. Seal. The following is an impression of the seal of the
Association adopted by the Board of Directors.
ARTICLE XI
BUSINESS HOURS
Section 1. Business Hours. The main office of this Association and each
branch office thereof shall be open for business on such days, and for such
hours as the Chairman, or the President, or any Executive Vice President, or
such other officer as the Board of Directors shall from time to time
designate, may determine as to each office to conform to local custom and
convenience, provided that any one or more of the main and branch offices or
certain departments thereof may be open for such hours as the President, or
such other officer as the Board of Directors shall from time to time designate,
may determine as to each office or department on any legal holiday on which
work is not prohibited by law, and provided further that any one or more of
the main and branch offices or certain departments thereof may be ordered
closed or open on any day for such hours as to each office or department as
the President, or such other officer as the Board of Directors shall from time
to time designate, subject to applicable laws regulations, may determine when
such action may be required by reason of disaster or other emergency condition.
ARTICLE IX
CHANGES IN BY-LAWS
Section 1. Amendments. These By-laws may be amended upon vote of a majority
of the entire Board of Directors at any meeting of the Board, provided ten (10)
day's notice of the proposed amendment has been given to each member of the
Board of Directors. No amendment may be made unless the By-law, as amended, is
consistent with the requirements of law and of the Articles of Association.
These By-laws may also be amended by the Association's shareholders.
A true copy
Attest:
Secretary/Assistant Secretary
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Dated at , as of .
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Revision of January 11, 1993
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EXHIBIT 5
CONSENT OF THE TRUSTEE
REQUIRED BY SECTION 321(b)
OF THE TRUST INDENTURE ACT OF 1939
The undersigned, as Trustee under the Indenture to be entered into between
______________________ and Fleet National Bank, as Trustee, does hereby consent
that, pursuant to Section 321(b) of the Trust Indenture Act of 1939, reports of
examinations with respect to the undersigned by Federal, State, Territorial or
District authorities may be furnished by such authorities to the Securities and
Exchange Commission upon request therefor.
FLEET NATIONAL BANK, AS TRUSTEE
By: /s/
-------------------------------
Its: Assistant Vice President
Dated:
Board of Governors of the
Federal Reserve System OMB Number: 7100-0036
Federal Deposit Insurance
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Its: Assistant Vice President
<PAGE>
Dated:
Board of Governors of the
Federal Reserve System
OMB Number: 7100-0036
Federal Deposit Insurance
