<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 7, 1995
REGISTRATION NO. 33-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
POTLATCH CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 82-0156045
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
</TABLE>
ONE MARITIME PLAZA
SAN FRANCISCO, CA 94111
(415) 576-8800
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
BETTY R. FLESHMAN
SECRETARY
POTLATCH CORPORATION
ONE MARITIME PLAZA
SAN FRANCISCO, CA 94111
(415) 576-8800
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPIES TO:
<TABLE>
<S> <C>
BLAIR W. WHITE WILLIAM H. HINMAN, JR.
DAVID R. LAMARRE SHEARMAN & STERLING
PILLSBURY MADISON & SUTRO 555 CALIFORNIA STREET
P.O. BOX 7880 SAN FRANCISCO, CALIFORNIA 94104
SAN FRANCISCO, CALIFORNIA 94120
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM
PROPOSED MAXIMUM AGGREGATE
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER UNIT PRICE REGISTRATION FEE
- --------------------------------------------------------------------------------------------------
% Debentures Due 20 ....... $100,000,000 100% $100,000,000 $34,483
- --------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------
</TABLE>
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
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 ANY OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED DECEMBER 7, 1995
$100,000,000
POTLATCH CORPORATION
% DEBENTURES DUE 20
------------------------
Interest on the Debentures is payable semiannually on and
of each year,
commencing , 1996. The Debentures are not redeemable prior to
maturity and are not entitled to any sinking fund. The Debentures will be
represented by one or more global securities registered in the name of the
nominee of The Depository Trust Company. Beneficial interests in the global
securities will be shown on, and transfers thereof will be effected only
through, records maintained by the Depositary and its direct and indirect
participants. Except as described herein, Debentures in definitive form will not
be issued. The Debentures will be issued in minimum denominations of $100,000
and integral multiples of $1,000 in excess thereof. The Debentures will trade in
the Depositary's Same-Day Funds Settlement System until maturity, and secondary
market trading activity for the Debentures will therefore settle in immediately
available funds. All payments of principal and interest will be made by the
Company in immediately available funds. See "Description of the
Debentures--Same-Day Funds Settlement and Payment".
------------------------
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.
------------------------
<TABLE>
<CAPTION>
INITIAL PUBLIC
OFFERING UNDERWRITING PROCEEDS TO
PRICE(1) DISCOUNT(2) COMPANY(1)(3)
------------------------------------------------
<S> <C> <C> <C>
Per Debenture............................... % % %
Total....................................... $ $ $
</TABLE>
- ---------------
(1) Plus accrued interest, if any, from , 1995.
(2) The Company has agreed to indemnify the Underwriters against certain
liabilities, including liabilities under the Securities Act of 1933, as
amended. See "Underwriting".
(3) Before deducting estimated expenses of $275,000 payable by the Company.
------------------------
The Debentures offered hereby are offered severally by the Underwriters, as
specified herein, subject to receipt and acceptance by them and subject to their
right to reject any order in whole or in part. It is expected that the
Debentures will be ready for delivery in book-entry form only through the
facilities of The Depository Trust Company in New York, New York, on or about
, 1995, against payment therefor in immediately available funds.
GOLDMAN, SACHS & CO. SALOMON BROTHERS INC
------------------------
The date of this Prospectus is , 1995
<PAGE> 3
AVAILABLE INFORMATION
Potlatch Corporation (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"). Such
reports, proxy statements and other information filed by the Company can be
inspected and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Washington, D.C., as well as the regional
offices of the Commission located at Citicorp Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois, and 7 World Trade Center, Suite 1300, New York,
New York. Copies of such material can be obtained from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at
prescribed rates. In addition, reports, proxy statements and other information
about the Company are available for inspection at the New York Stock Exchange,
Inc., 20 Broad Street, New York, New York, 10005, the Chicago Stock Exchange,
440 South LaSalle Street, Chicago, Illinois 60605, and the Pacific Stock
Exchange, 301 Pine Street, San Francisco, California 94104.
The Company has filed with the Commission a Registration Statement on Form
S-3 (together with all amendments and exhibits thereto, the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities Act"),
with respect to the Debentures offered hereby. This Prospectus does not contain
all of the information set forth in the Registration Statement and the exhibits
thereto, certain parts of which are omitted in accordance with the rules and
regulations of the Commission. For further information with respect to the
Company and the Debentures, reference is made to the Registration Statement and
the exhibits thereto. Statements contained in this Prospectus as to the contents
of any contract or other document are not necessarily complete and, in each
instance, reference is made to the copy of such contract or document filed as an
exhibit to the Registration Statement, each such statement being qualified in
all respects by such reference. Copies of the Registration Statement, including
all exhibits thereto, may be obtained from the Commission's principal office in
Washington, D.C. upon payment of the fees prescribed by the Commission, or may
be examined without charge at the offices of the Commission described above.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed with the Commission are hereby
incorporated by reference into this Prospectus: (i) the Company's Annual Report
on Form 10-K for the year ended December 31, 1994, and (ii) the Company's
Quarterly Reports on Form 10-Q for the quarters ended March 31, June 30 and
September 30, 1995. All documents filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the
filing of the Registration Statement of which this Prospectus is a part and
prior to the termination of the offering to which this Prospectus relates shall
be deemed to be incorporated by reference into this Prospectus and to be part of
this Prospectus from the date of filing thereof.
Any statement contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Prospectus and
the Registration Statement of which it is a part to the extent that a statement
contained herein or in any other subsequently filed document which also is
incorporated herein modifies or replaces such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus or such Registration Statement. The
Company will provide without charge to each person to whom a copy of the
Prospectus has been delivered, and who makes a written or oral request, a copy
of any and all of the documents incorporated by reference in the Registration
Statement (other than exhibits unless such exhibits are specifically
incorporated by reference into such documents). Requests should be submitted in
writing or by telephone to Potlatch Corporation, One Maritime Plaza, San
Francisco, California 94111, Attention: Secretary (telephone (415) 576-8800).
------------------------
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE DEBENTURES
OFFERED HEREBY AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN
MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
2
<PAGE> 4
THE COMPANY
The Company is an integrated forest products company with substantial
timber resources. It is engaged principally in the growing and harvesting of
timber and the manufacture and sale of wood products, printing papers and other
pulp-based products. Its timberlands and all of its manufacturing facilities are
located within the continental United States.
FIBER RESOURCES. The principal source of raw material used in the
Company's operations is timber, obtained from its own timberlands and purchased
on the open market. The Company owns in fee approximately 1.5 million acres of
timberland: 497,000 acres in Arkansas, 678,000 acres in Idaho and 345,000 acres
in Minnesota. In addition, the Company owns and is developing 10,000 acres in
Oregon as a hybrid poplar tree farm for pulp fiber and in early 1996 will
acquire an additional 12,000 acres adjacent to the existing farm for this
purpose. The Company's fee lands provided approximately 59 percent of its
sawlogs and plywood logs in 1994 and an average of 62 percent over the past five
calendar years. Including the raw materials used for pulp and oriented strand
board, the percentages were 35% for 1994 and 38% for the past five calendar
years.
WOOD PRODUCTS. The Company manufactures and markets oriented strand board,
plywood, particleboard, lumber and other wood products. These products are sold
through the Company's sales offices primarily to wholesalers for nationwide
distribution. To produce these solid wood products, the Company owns and
operates several manufacturing facilities in Arkansas, Idaho and Minnesota.
PRINTING PAPERS. The Company produces coated free sheet printing papers at
two facilities in Minnesota. Coated papers are used for annual reports, showroom
catalogs, art reproductions and high quality advertising. Printing papers are
sold principally to paper merchants for distribution.
OTHER PULP-BASED PRODUCTS. The Company produces and markets bleached kraft
pulp and paperboard, tissue, toweling and napkins. The Company is a major
producer of bleached kraft paperboard in the United States. Bleached kraft
paperboard manufactured by the Company is used for the packaging of milk and
other foods, pharmaceuticals and toiletries, and for paper cups and paper
plates. The Company does not consider itself among the larger national
manufacturers of any of its other pulp-based products. However, the Company is
the leading west coast producer of private label household tissue products.
3
<PAGE> 5
The following is a tabulation of selected business segment information for
each of the past three years and for the nine months ended September 30, 1995:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
------------------------------------ NINE MONTHS ENDED
(DOLLARS IN THOUSANDS) 1992 1993 1994 SEPT. 30, 1995
- ----------------------------------- ---------- ---------- ---------- -----------------
<S> <C> <C> <C> <C>
SALES TO UNAFFILIATED CUSTOMERS:
WOOD PRODUCTS:
Oriented strand board......... $ 174,557 $ 194,514 $ 224,586 $ 151,167
Lumber........................ 159,080 196,544 196,577 134,416
Plywood....................... 65,462 72,815 73,413 56,293
Particleboard................. 10,642 14,593 17,058 11,603
Other......................... 17,017 25,159 41,078 28,236
---------- ---------- ---------- -----------
$ 426,758 $ 503,625 $ 552,712 $ 381,715
PRINTING PAPERS.................. $ 365,636 $ 369,012 $ 405,553 $ 334,580
OTHER PULP-BASED PRODUCTS:
Pulp.......................... $ 17,863 $ 12,915 $ 10,812 $ 17,950
Paperboard.................... 371,511 343,419 335,803 327,521
Tissue........................ 118,162 139,883 166,378 141,271
Packaging(1).................. 26,682 -- -- --
---------- ---------- ---------- -----------
$ 534,218 $ 496,217 $ 512,993 $ 486,742
TOTAL............................ $1,326,612 $1,368,854 $1,471,258 $ 1,203,037
OPERATING INCOME (LOSS):
Wood products................. $ 99,833 $ 160,220 $ 160,345 $ 85,050
Printing papers............... 27,316 15,796 40,174 46,258
Other pulp-based products..... 33,298 (40,944) (53,462) 51,026
---------- ---------- ---------- -----------
$ 160,447 $ 135,072 $ 147,057 $ 182,334
</TABLE>
- ---------------
(1) The Company's packaging operations were sold in April 1992.
The Company was incorporated under the laws of Maine in 1903 and was
reorganized in 1955 as a Delaware corporation. The Company's principal executive
offices are located at One Maritime Plaza, San Francisco, California 94111, and
its telephone number is (415) 576-8800.
USE OF PROCEEDS
The Company intends to use the net proceeds from the sale of the Debentures
to redeem on or after April 15, 1996 $100,000,000 aggregate principal amount of
the Company's 9 5/8% Sinking Fund Debentures Due 2016. Pending such use, the
Company intends to use the net proceeds for general corporate purposes,
primarily for investment in short-term, investment grade obligations.
4
<PAGE> 6
SELECTED HISTORICAL FINANCIAL INFORMATION
The following selected historical financial information for each of the
five years in the period ended December 31 set forth below has been derived from
the consolidated financial statements of the Company audited by KPMG Peat
Marwick LLP, independent certified public accountants. The historical financial
information for the nine months ended September 30, 1994 and 1995 is derived
from the unaudited financial statements of the Company and, in the opinion of
the Company, includes all adjustments, consisting only of normal recurring
adjustments, considered necessary for a fair presentation of such information.
The results of operations for interim periods are not necessarily indicative of
the results to be expected for the full year. The information below should be
read in conjunction with "Management's Discussion and Analysis of Financial
Condition and Results of Operations" and the Company's consolidated financial
statements and related notes incorporated herein by reference.
<TABLE>
<CAPTION>
NINE MONTHS ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
------------------------------------------------------------------ -------------------------
(DOLLARS IN THOUSANDS) 1990 1991 1992 1993 1994 1994 1995
- ------------------------- ---------- ---------- ---------- ---------- ---------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA
Net sales................ $1,252,906 $1,236,988 $1,326,612 $1,368,854 $1,471,258 $1,083,726 $1,203,037
Costs and expenses:
Depreciation,
amortization and cost
of fee timber
harvested.............. 86,154 96,924 107,165 123,544 138,251 104,426 100,796
Materials, labor and
other operating
expenses............... 924,303 945,888 1,006,887 1,064,260 1,121,491 838,347 875,165
Selling, general and
administrative
expenses............... 66,967 74,998 83,409 83,958 82,799 62,917 67,227
---------- ---------- ---------- ---------- ---------- ---------- ----------
$1,077,424 $1,117,810 $1,197,461 $1,271,762 $1,342,541 $1,005,690 $1,043,188
Earnings from
operations............. $ 175,482 $ 119,178 $ 129,151 $ 97,092 $ 128,717 $ 78,036 $ 159,849
Interest expense, net of
capitalized interest... (30,775) (28,882) (34,902) (46,230) (51,137) (38,167) (36,203)
Interest and dividend
income................. 16,359 5,493 3,790 1,352 348 278 1,051
Other income (expense),
net.................... (8,728) (10,594) 26,575 12,790 (1,967) (4,776) 2,000
---------- ---------- ---------- ---------- ---------- ---------- ----------
Earnings before taxes on
income and cumulative
effect of accounting
changes................ $ 152,338 $ 85,195 $ 124,614 $ 65,004 $ 75,961 $ 35,371 $ 126,697
Provision for taxes on
income................. 53,726 29,393 45,700 26,665 26,966 13,264 47,511
---------- ---------- ---------- ---------- ---------- ---------- ----------
Net earnings before
cumulative effect of
accounting changes..... $ 98,612 $ 55,802 $ 78,914 $ 38,339 $ 48,995 $ 22,107 $ 79,186
Cumulative effect of
accounting changes for
postretirement benefits
and income taxes, net
of tax................. -- -- -- (31,704) -- -- --
---------- ---------- ---------- ---------- ---------- ---------- ----------
Net earnings............. $ 98,612 $ 55,802 $ 78,914 $ 6,635 $ 48,995 $ 22,107 $ 79,186
========== ========== ========== ========== ========== ========== ==========
BALANCE SHEET DATA
Working capital.......... $ 86,187 $ 125,190 $ 153,537 $ 129,138 $ 142,728 $ 120,437 $ 124,859
Total assets............. 1,731,248 1,908,631 2,015,747 2,085,652 2,081,229 2,061,169 2,160,155
Long-term debt........... 391,892 563,014 634,209 707,131 633,473 637,004 601,344
Stockholders' equity..... 896,122 914,750 955,581 919,664 920,207 908,327 947,692
</TABLE>
5
<PAGE> 7
RATIO OF EARNINGS TO FIXED CHARGES
The following information is qualified in its entirety by and should be
read in conjunction with the consolidated financial statements and other
information incorporated by reference herein. See "Incorporation of Certain
Documents by Reference".
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
------------------------------------ --------------
1990 1991 1992 1993 1994 1994 1995
---- ---- ---- ---- ---- ----- -----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges(1)..... 4.8x 2.5x 3.0x 2.1x 2.3x 1.8x 4.0x
</TABLE>
- ---------------
(1) For the purpose of computing this ratio, earnings represent earnings before
taxes on income and fixed charges, excluding capitalized interest. Fixed
charges represent interest expense, including capitalized interest,
one-third of total rental expense, and amortization of discount and loan
expense related to long-term debt.
DESCRIPTION OF THE DEBENTURES
The Debentures are to be issued under an Indenture dated as of
(the "Indenture") between the Company and First Trust of California, National
Association, as trustee (the "Trustee"), a copy of which has been filed as an
exhibit to the Registration Statement. The following summaries of certain
provisions of the Debentures and the Indenture do not purport to be complete and
are subject to, and are qualified in their entirety by reference to, all the
provisions of the Indenture, including the definitions therein of certain terms.
Whenever particular provisions or defined terms in the Indenture are referred
to, such provisions or defined terms are incorporated herein by reference.
Section references used herein are references to the Indenture. Capitalized
terms not otherwise defined herein shall have the meanings given to them in the
Indenture.
GENERAL
The Debentures offered hereby will mature on , 20 . The
Debentures will bear interest at the rate per annum shown on the cover of this
Prospectus from , payable semiannually on and of
each year (each, an "Interest Payment Date"), commencing , 1996, to
the persons in whose names the Debentures are registered at the close of
business on the and , as the case may be, next preceding
such Interest Payment Date. The Debentures will not be redeemable prior to
maturity and are not entitled to any sinking fund. The Debentures will be
nonconvertible, unsecured obligations of the Company limited to $100,000,000
aggregate principal amount and will rank on a parity with all other unsecured
and unsubordinated indebtedness of the Company. The Debentures will be issued in
minimum denominations of $100,000 and integral multiples of $1,000 in excess
thereof. Interest will be computed on the basis of a 360-day year of twelve
30-day months.
No service charge will be made for any registration of transfer of
Debentures, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The provisions of the Indenture and the Debentures would not necessarily
afford protection to owners of the Debentures in the event of a highly leveraged
transaction involving the Company. The Indenture does not limit the amount of
additional unsecured indebtedness that may be incurred by the Company or any of
its Subsidiaries.
BOOK-ENTRY PROCEDURES
Upon issuance, the Debentures will be represented by one or more global
securities that will be deposited with, or on behalf of, The Depository Trust
Company (the "Depositary") in The City of New York, and will be registered in
the name of the Depositary or a nominee of the Depositary.
6
<PAGE> 8
Ownership of beneficial interests in the global security or securities
representing the Debentures will be limited to institutions that have accounts
with the Depositary or its nominee ("participants") or persons that may hold
interests through participants. In addition, ownership of beneficial interests
by participants in such global security or securities will only be evidenced by,
and the transfer of that ownership interest will only be effected through,
records maintained by the Depositary or its nominee for such permanent global
security. Ownership of beneficial interests in the global securities by persons
that hold through participants will only be evidenced by, and the transfer of
that ownership interest within such participant will only be effected through,
records maintained by such participant. The laws of some jurisdictions require
that certain purchasers of securities take physical delivery of such securities
in definitive form. Such laws may impair the ability to transfer beneficial
interests in such a global security.
The Company has been advised by the Depositary that upon the issuance of
the global security or securities representing the Debentures, the Depositary
will immediately credit, on its book-entry registration and transfer system, the
respective principal amounts of the Debentures represented by such global
security or securities to the accounts of participants. The accounts to be
credited shall be designated by the Underwriters.
Payment of principal and interest on Debentures represented by a permanent
global security registered in the name of or held by the Depositary or its
nominee will be made to the Depositary or its nominee, as the case may be, as
the registered owner and Holder of the permanent global security representing
such Debentures. None of the Company, the Trustee or any agent of the Company or
the Trustee will have any responsibility or liability for any aspect of the
Depositary's records or any participant's records relating to, or payments made
on account of, beneficial ownership interests in a permanent global security
representing such Debentures or for maintaining, supervising or reviewing any of
the Depositary's records or any participant's records relating to such
beneficial ownership interests.
The total amount of any principal and interest due on any global security
representing one or more Debentures on any Interest Payment Date or at maturity
will be made available to the Trustee on such date. As soon as possible
thereafter, the Trustee will make such payments to the Depositary. The Company
has been advised by the Depositary that upon receipt of any payment of principal
of or interest in respect of a permanent global security, the Depositary will
immediately credit, on its book-entry registration and transfer system, accounts
of participants with payments in amounts proportionate to their respective
beneficial interests in the principal amount of such permanent global security
as shown on the records of the Depositary. Payments by participants to owners of
beneficial interests in a permanent global security held through such
participants will be governed by standing instructions and customary practices,
as is now the case with securities held for the accounts of customers registered
in "street name," and will be the sole responsibility of such participants.
No permanent global security described above may be transferred except as a
whole by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to such Depositary or another nominee of the Depositary or by such
Depositary or any such nominee to a successor depositary or nominee thereof.
A permanent global security representing the Debentures will be
exchangeable for definitive Debentures in registered form, of like tenor and of
an equal aggregate principal amount, only if (x) the Depositary notifies the
Company that it is unwilling or unable to continue as depositary for such
permanent global security or if at any time the Depositary ceases to be a
clearing agency registered under the Exchange Act, and the Company has not
appointed a successor depositary within 90 days, (y) the Company in its sole
discretion determines that such permanent global security shall be exchangeable
for definitive Debentures in registered form or (z) any event shall have
happened and be continuing which, after notice or lapse of time, or both, would
become an Event of Default with respect to the Debentures and the beneficial
owners of a majority in aggregate principal amount of the Debentures represented
by such global security advise the Depositary to
7
<PAGE> 9
cease acting as depositary and the Depositary so advises the Company in writing.
Any permanent global security that is exchangeable pursuant to the preceding
sentence shall be exchangeable in whole for definitive Debentures in registered
form, of like tenor and of an equal aggregate principal amount, in denominations
of $100,000 and integral multiples of $1,000 in excess thereof. Such definitive
Debentures shall be registered in the name or names of such person or persons as
the Depositary shall instruct the Trustee. It is expected that such instructions
may be based upon directions received by the Depositary from its participants
with respect to ownership of beneficial interests in such permanent global
security.
Except as described above, owners of beneficial interests in the global
securities representing the Debentures will not be entitled to receive physical
delivery of Debentures in definitive form and will not be considered the Holders
thereof for any purpose under the Indenture, and no permanent global security
representing the Debentures shall be exchangeable, except for another permanent
global security of like denomination and tenor to be registered in the name of
the Depositary or its nominee. Accordingly, each person owning a beneficial
interest in such permanent global security must rely on the procedures of the
Depositary and, if such person is not a participant, on the procedures of the
participant through which such person owns its interest, to exercise any rights
of a Holder under the Indenture. The Depositary, as a Holder, may appoint agents
and otherwise authorize participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action which a Holder
is entitled to give or take under the Indenture. The Company understands that
under existing industry practices, in the event that the Company requests any
action of Holders or an owner of a beneficial interest in such permanent global
security desires to give or take any action that a Holder is entitled to give or
take under the Indenture, the Depositary would authorize the participants
holding the relevant beneficial interests to give or take such action, and such
participants would authorize beneficial owners owning through such participants
to give or take such action or would otherwise act upon the instructions of
beneficial owners owning through them.
The Depositary has advised the Company that the Depositary 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 Exchange Act. The Depositary
holds securities that its participants deposit with the Depositary. The
Depositary also facilitates the settlement among participants of securities
transactions, such as transfers and pledges, in deposited securities through
electronic computerized book-entry changes in participants' accounts, thereby
eliminating the need for physical movement of securities certificates. Direct
participants include securities brokers and dealers, banks, trust companies,
clearing corporations and certain other organizations. The Depositary 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 Depositary's 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. The rules applicable to the Depositary and its participants are
on file with the Commission.
SAME-DAY FUNDS SETTLEMENT AND PAYMENT
Settlement for the Debentures will be made by the Underwriters in
immediately available funds. All payments of principal and interest on the
Debentures will be made by the Company in immediately available funds.
Secondary trading in long-term notes and debentures of corporate issuers is
generally settled in clearing-house or next-day funds. In contrast, the
Debentures will trade in the Depositary's Same-Day Funds Settlement System until
maturity, and secondary market trading activity in the Debentures will therefore
be required by the Depositary to settle in immediately available funds. No
8
<PAGE> 10
assurance can be given as to the effect, if any, of settlement in immediately
available funds on trading activity in the Debentures.
RESTRICTIONS ON SECURED DEBT
The Company will covenant in the Indenture that it will not, nor will it
permit any Subsidiary to, create, assume or incur any Lien (except any existing
on the date of the Indenture) upon any of its or their Principal Properties,
whether owned at such date or thereafter acquired, as security for any
Indebtedness without making effective provision, and the Company will covenant
in the Indenture that in any such case effective provision will be made, whereby
the Debentures shall be secured equally and ratably with (or, at the option of
the Company, prior to) any and all other obligations and Indebtedness thereby
secured; provided, however, that the foregoing restriction shall not apply to:
(a) Liens upon any property or assets owned by any Subsidiary when it became a
Subsidiary; (b) Liens on any property or assets existing at the time of its or
their acquisition and Liens on any property or assets acquired, constructed or
improved which are created contemporaneously with or within 180 days after (or
created pursuant to financing arrangements, a firm commitment for which is
obtained within 180 days after) the completion of such acquisition, improvement
or construction to secure or provide for payment of the purchase price of
property or assets acquired or the cost of such construction or improvement,
including Liens arising in connection with cross-border or defeased lease
arrangements; (c) certain tax Liens or governmental charges and materialmen's,
mechanics', landlords' or other like Liens securing obligations not overdue or
which shall be contested in good faith; (d) certain pledges or deposits; (e) any
lease; (f) Liens to secure payments under any contract or statute, or to secure
any Indebtedness incurred in financing the acquisition, construction or
improvement of property subject thereto, including Liens on, and created or
arising in connection with the financing of, certain facilities through the
issuance of obligations by a state or local governmental unit; (g) easements or
similar encumbrances, the existence of which does not materially impair the use
of the Principal Property subject thereto for the purposes for which it is held
or was acquired; (h) Liens arising out of any final judgment for the payment of
money aggregating not in excess of $10,000,000 or Liens arising out of any
judgments which are being contested in good faith; (i) Liens on Timberlands in
connection with an arrangement under which the Company or a Subsidiary is
obligated to cut or pay for timber in order to provide the Lienholder with a
specified amount of money, however determined; (j) Liens created or assumed in
the ordinary course of the business of exploring for, developing or producing
oil, gas or other minerals (including borrowings in connection therewith) on, or
on any interest in, or on any proceeds from the sale of property acquired for
such purposes, production therefrom (including the proceeds thereof), or
material or equipment located thereon; and (k) Liens to extend, renew or replace
any Liens referred to in clauses (a) through (j) or this clause (k) or any Lien
existing on the date of the Indenture. Notwithstanding the above, the Company or
any Subsidiary may create, assume or incur any Lien that would otherwise be
subject to the foregoing restriction, provided that at no time shall the
aggregate amount of all outstanding obligations and Indebtedness secured by
Liens that would otherwise be prohibited by the above, plus the aggregate amount
of Attributable Debt in respect of sale and leaseback transactions described in
the next succeeding paragraph (other than any such transactions to the extent
that the cash portion of the net proceeds of the sale of such property shall
have been applied in compliance with clause (b) of the following paragraph),
exceed 10% of Consolidated Net Tangible Assets at the end of the immediately
preceding fiscal year of the Company (Section 1005).
RESTRICTIONS ON SALE AND LEASEBACK TRANSACTIONS
The Company will covenant in the Indenture that it will not, and will not
permit any Subsidiary to, directly or indirectly, sell or transfer (other than
to the Company or a Subsidiary) any Principal Property (other than Principal
Property sold or transferred to an industrial development corporation or state
or local governmental unit in connection with a revenue or pollution control
financing) owned on the date of the Indenture or thereafter acquired with the
intention that the Company or any
9
<PAGE> 11
Subsidiary shall take back a lease thereof (other than a lease for a term of not
more than three years, a lease entered into solely for tax purposes, or a
cross-border or defeased lease arrangement) unless (a) proceeds of such sale
shall at least be equal to the fair value (as determined in good faith by the
Board of Directors) of such Principal Property, and either (b) an amount equal
to the cash portion of the net proceeds of such sale shall be applied within 180
days either before or after the effective date of any such transaction (i) to
the retirement of Funded Indebtedness (other than any thereof owed to the
Company or any Subsidiary) or (ii) to the purchase of property, facilities or
equipment (other than the property, facilities or equipment involved in such
sale) having a value at least equal to the cash portion of the net proceeds of
such sale or (c) the property, facilities or equipment involved in such sale
could have been subjected to a Lien to secure Indebtedness in a principal amount
equal to the aggregate amount of Attributable Debt in respect of such sale
without equally and ratably securing the Debentures pursuant to the preceding
paragraph (Section 1006).
CERTAIN DEFINITIONS
"Attributable Debt" means, as to any particular lease (other than a
cross-border or defeased lease arrangement) entered into after the date of the
Indenture, the total net amount of rent required to be paid by such Person under
such lease during the remaining term thereof, discounted to present value as of
such time in accordance with generally accepted accounting principles from the
respective due dates thereof to such date.
"Consolidated Net Tangible Assets" means the total amount of assets of the
Company and its consolidated Subsidiaries (less applicable reserves) after
deducting therefrom: (a) all current liabilities of the Company and its
consolidated Subsidiaries (excluding intercompany items among the Company and
its consolidated Subsidiaries and excluding any current liabilities constituting
Funded Indebtedness by reason of being renewable or extendable and excluding
deferred income taxes) and (b) goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other like intangibles, such assets
and exclusions and deductions therefrom to be in such amounts, if any, as would
appear on a consolidated balance sheet of the Company and its consolidated
Subsidiaries as of the date of computation, prepared in accordance with
generally accepted accounting principles applied on a consistent basis.
"Lien" means any mortgage, pledge, security interest, encumbrance, lien or
charge of any kind.
"Principal Property" means (a) any building, structure or other facility in
the United States used primarily for manufacturing, 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 shall exceed 10% of Consolidated Net
Tangible Assets, and (b) any Timberlands in the United States owned in fee or
under contract for the purchase of the fee by the Company or any Subsidiary
other than such Timberlands in the aggregate not exceeding 10% of the
Timberlands acreage in the United States owned in fee or under contract for the
purchase of the fee by the Company or any Subsidiary on the date as of which any
determination shall be made; provided, however, that the term "Principal
Property" shall not include any Timberlands, buildings, structures, facilities
or any portion of any of the foregoing which, in the opinion of the Board of
Directors of the Company, shall not be of material importance to the total
business conducted by the Company and its Subsidiaries taken as an entirety; and
provided, further, that the term "Principal Property" shall not include any
land, including without limitation Timberlands, designated by the Board of
Directors as being held primarily for development or sale, or any land,
including without limitation Timberlands, held for the exploitation of minerals
or mineral rights.
MERGERS AND SALES OF ASSETS BY THE COMPANY
The Company may not consolidate with or merge into any other Corporation or
transfer its properties and assets substantially as an entirety to any Person
unless (a) the Corporation formed
10
<PAGE> 12
by such consolidation or into which the Company is merged or the Person to which
the properties and assets of the Company are so transferred shall be a
Corporation organized and existing under the laws of the United States, any
state thereof or the District of Columbia and shall expressly assume the payment
of the principal of and interest on the Debentures and the performance of the
other covenants of the Company under the Indenture, (b) 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 (c) such surviving Corporation or such Person,
as the case may be, shall not immediately thereafter have outstanding
Indebtedness secured by any Liens not permitted by the Indenture or shall have
secured the Debentures equally and ratably with (or, at the option of the
Company, prior to) any Indebtedness secured thereby (Section 801).
The Company may not lease its properties and assets substantially as an
entirety to any Person (Section 803).
EVENTS OF DEFAULT
The Indenture defines an Event of Default with respect to the Debentures as
being any one of the following events: (i) default for 30 days in any payment of
interest on any Debenture; (ii) default in the payment of principal of any
Debenture when due; (iii) default, for 60 days after appropriate notice, in
performance of any other covenant or warranty in the Indenture; and (iv) certain
events of bankruptcy, insolvency or reorganization. In case an Event of Default
shall occur and be continuing, the Trustee or the Holders of not less than 25%
in aggregate principal amount of all of the Outstanding Debentures may declare
the principal amount to be due and payable immediately (Sections 501 and 502).
The Indenture requires the Company to file annually with the Trustee an
officers' certificate as to whether there has been any default under the terms
of the Indenture (Section 1008). The Indenture provides that the Trustee may
withhold notice to the Holders of the Debentures of any default (except in
payment of principal or interest) if it considers such to be in the interest of
the Holders of the Debentures (Section 602).
Subject to the provisions of the Indenture relating to the duties of the
Trustee in case an Event of Default shall occur and be continuing, the Indenture
provides that the Trustee shall be under no obligation to exercise any of its
rights or powers under the Indenture at the request, order or direction of the
Holders of the Debentures unless such Holders shall have offered to the Trustee
reasonable indemnity (Section 603). Subject to such provisions for
indemnification and certain other rights of the Trustee, the Indenture provides
that the Holders of a majority in aggregate principal amount of the Outstanding
Debentures shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee with respect to the Debentures
(Sections 512 and 603).
No Holder of any Debenture will have any right to institute any proceeding
with respect to the Indenture or for any remedy thereunder unless (i) such
Holder shall have previously given to the Trustee written notice of a continuing
Event of Default, (ii) the Holders of at least 25% in aggregate principal amount
of all of the Outstanding Debentures shall have made written request to the
Trustee to institute such proceeding as Trustee, (iii) such Holder or Holders
shall have offered to the Trustee reasonable indemnity, (iv) the Trustee shall
have failed to institute such proceeding within 60 days after receipt of notice
from such Holders, and (v) the Trustee shall not have received from the Holders
of a majority in aggregate principal amount of the Outstanding Debentures a
direction inconsistent with such request (Section 507). However, the Holder of
any Debenture will have an absolute right to receive payment of the principal of
and interest on such Debenture when due and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder (Section 508).
11
<PAGE> 13
MODIFICATION AND WAIVER
Certain modifications and amendments of the Indenture may be made by the
Company and the Trustee only with the consent of the Holders of not less than a
majority in aggregate principal amount of all of the Outstanding Debentures,
provided that no such modification or amendment may, without the consent of the
Holder of each Outstanding Debenture affected thereby, (i) change the Stated
Maturity of the principal of, or any installment of interest on, any such
Debenture; (ii) reduce the principal amount of or the rate of interest on, any
such Debenture; (iii) change the place of payment where, or the coin or currency
in which, any principal of and interest on any such Debenture is payable; (iv)
impair the right to institute suit for the enforcement of any such payment on or
with respect to any such Debenture; (v) reduce the above-stated percentage of
Outstanding Debentures the consent of the Holders of which is necessary to
modify or amend the Indenture; or (vi) modify the foregoing requirements or
reduce the percentage of aggregate principal amount of Outstanding Debentures
necessary for waiver of compliance with certain provisions of the Indenture or
for waiver of certain defaults (Section 902).
The Holders of not less than a majority in aggregate principal amount of
all of the Outstanding Debentures may on behalf of the Holders of all Debentures
waive (i) compliance by the Company with certain restrictive provisions of the
Indenture (Section 1009) or (ii) compliance by the Company with any other
provision of the Indenture, including a past default under the Indenture, except
a default in the payment of the principal of or interest on any Debenture or in
respect of a provision which under the Indenture cannot be modified or amended
without the consent of the Holder of each Outstanding Debenture affected
(Sections 513 and 902).
DEFEASANCE OF DEBENTURES OR CERTAIN COVENANTS
DEFEASANCE AND DISCHARGE. The Indenture provides that the Company shall be
deemed to have paid and discharged all obligations in respect of the Debentures
(except for certain obligations to register the transfer or exchange of
Debentures, to replace stolen, lost or mutilated Debentures, to maintain paying
agencies and hold money for payment in trust) on the 93rd day after the date of
deposit with the Trustee, in trust, of money or U.S. Government Obligations,
which through the payment of interest and principal in respect thereof in
accordance with their terms will provide money in an amount sufficient to pay
each installment of principal and interest on the Debentures on the Stated
Maturity of such payments, in accordance with the terms of the Indenture and
such Debentures. Such discharge may only occur if, among other things, the
Company has received from, or there has been published by, the United States
Internal Revenue Service a ruling to the effect that Holders of the Debentures
will not recognize income, gain or loss for federal income tax purposes as a
result of such deposit, defeasance and discharge and will be subject to federal
income tax on the same amount, and in the same manner and at the same time, as
would have been the case if such deposit, defeasance and discharge had not
occurred (Section 403).
DEFEASANCE OF CERTAIN COVENANTS. The Indenture provides that the Company
may elect to omit to comply with the restrictive covenants of the Indenture
described herein under "Restrictions on Secured Debt" and "Restrictions on Sale
and Leaseback Transactions" if the Company deposits with the Trustee, in trust,
money or U.S. Government Obligations, which through the payment of interest and
principal in respect thereof in accordance with their terms will provide money
in an amount sufficient to pay each installment of principal and interest on the
Debentures on the Stated Maturity of such payments, in accordance with the terms
of the Indenture and such Debentures. Such a trust may only be established if,
among other things, the Company has delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of the Debentures will not recognize
income, gain or loss for federal income tax purposes as a result of such deposit
and defeasance of certain covenants and will be subject to federal income tax on
the same amount, and in the same manner and at the same times, as would have
been the case if such deposit and defeasance had not occurred (Section 1007).
12
<PAGE> 14
DEFEASANCE AND EVENTS OF DEFAULT. In the event the Company omits to comply
with certain covenants of the Indenture with respect to the Debentures as
described above and the Debentures are declared due and payable because of the
occurrence of any Event of Default, the amount of money and U.S. Government
Obligations on deposit with the Trustee will be sufficient to pay amounts due on
the Debentures at the time of their Stated Maturity, but may not be sufficient
to pay amounts due on the Debentures at the time of the acceleration resulting
from such Event of Default. However, the Company will remain liable for such
payments.
CERTAIN INFORMATION REGARDING THE TRUSTEE
The Trustee serves as trustee under two other Indentures pursuant to which
debt securities of the Company are outstanding. In addition, an affiliate of the
Trustee acts as trustee for several tax-exempt revenue bonds issued by local
governments in connection with the financing of certain capital projects of the
Company.
GOVERNING LAW
The Indenture and the Debentures will be governed by the laws of the State
of New York.
13
<PAGE> 15
UNDERWRITING
Subject to the terms and conditions set forth in the Underwriting
Agreement, the Company has agreed to sell to each of the underwriters named
below (the "Underwriters"), and each of the Underwriters has severally agreed to
purchase, the principal amount of the Debentures set forth opposite the name of
each such Underwriter below:
<TABLE>
<CAPTION>
PRINCIPAL
AMOUNT OF
UNDERWRITER DEBENTURES
--------------------------------------------------------------------- ------------
<S> <C>
Goldman, Sachs & Co. ................................................
Salomon Brothers Inc.................................................
------------
Total...................................................... $100,000,000
============
</TABLE>
Under the terms and conditions of the Underwriting Agreement, the
Underwriters are committed to take and pay for all of the Debentures, if any are
taken.
The Underwriters propose to offer Debentures in part directly to the public
at the initial public offering price set forth on the cover page of this
Prospectus, and in part to certain securities dealers at such price less a
concession of % of the principal amount of the Debentures. The Underwriters
may allow, and such dealers may reallow, a concession not to exceed % of the
principal amount of the Debentures to certain brokers and dealers. After the
Debentures are released for sale to the public, the offering price and other
selling terms may from time to time be varied by the Underwriters.
The Debentures are a new issue of securities with no established trading
market. The Company has been advised by the Underwriters that they intend to
make a market in the Debentures but are not obligated to do so and may
discontinue market making at any time without notice. No assurance can be given
as to the liquidity of the trading market for the Debentures.
Settlement for the Debentures will be made in immediately available funds
and all secondary trading in the Debentures will settle in immediately available
funds. See "Description of the Debentures -- Same-Day Funds Settlement and
Payment".
The Company has agreed to indemnify the Underwriters against certain
liabilities, including liabilities under the Securities Act.
Goldman, Sachs & Co. and Salomon Brothers Inc perform various investment
banking services for the Company in the ordinary course of business.
LEGAL MATTERS
The validity of the Debentures offered hereby will be passed upon for the
Company by Pillsbury Madison & Sutro LLP, San Francisco, California, and certain
legal matters will be passed upon for the Underwriters by Shearman & Sterling,
San Francisco, California. Toni Rembe, a member of Pillsbury Madison & Sutro
LLP, is a director of the Company and at September 30, 1995 owned 2,957 shares
of the Company's Common Stock.
EXPERTS
The consolidated financial statements and schedules of the Company as of
December 31, 1994, and for each of the years in the three-year period ended
December 31, 1994, have been incorporated by reference herein in reliance upon
the report, incorporated by reference herein, of KPMG Peat Marwick LLP,
independent certified public accountants, and upon the authority of said firm as
experts in accounting and auditing. The report of KPMG Peat Marwick LLP covering
the December 31, 1994 financial statements refers to changes made in 1993 to the
Company's method of accounting for income taxes, post-retirement benefits other
than pensions and post-employment benefits.
14
<PAGE> 16
- ---------------------------------------------------------
- ---------------------------------------------------------
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THE SECURITIES
DESCRIBED IN THIS PROSPECTUS OR AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER
TO BUY SUCH SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR SOLICITATION
IS UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER
SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO
CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THAT THE
INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
Available Information..................... 2
Incorporation of Certain Documents by
Reference............................... 2
The Company............................... 3
Use of Proceeds........................... 4
Selected Historical Financial
Information............................. 5
Ratio of Earnings to Fixed Charges........ 6
Description of the Debentures............. 6
Underwriting.............................. 14
Legal Matters............................. 14
Experts................................... 14
- ------------------------------------------------
- ------------------------------------------------
</TABLE>
- ---------------------------------------------------------
- ---------------------------------------------------------
$100,000,000
POTLATCH CORPORATION
% DEBENTURES DUE 20
------------------
LOGO
------------------
GOLDMAN, SACHS & CO.
SALOMON BROTHERS INC
- ---------------------------------------------------------
- ---------------------------------------------------------
<PAGE> 17
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the various expenses payable by the
Registrant in connection with the sale and distribution of the securities being
registered hereby, other than underwriting discounts and commissions. All
amounts are estimated except the Securities and Exchange Commission registration
fee.
<TABLE>
<CAPTION>
PAYABLE BY
REGISTRANT
----------
<S> <C>
SEC registration fee............................................. $ 34,483
Blue Sky fees and expenses....................................... 10,000
Accounting fees and expenses..................................... 25,000
Legal fees and expenses.......................................... 75,000
Printing expenses................................................ 45,000
Trustee's fees and expenses...................................... 10,000
Rating agency fees............................................... 60,000
Miscellaneous fees and expenses.................................. 15,517
-------
Total............................................. $275,000
=======
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law provides for the
indemnification of officers, directors, and other corporate agents in terms
sufficiently broad to indemnify such persons under certain circumstances for
liabilities (including reimbursement for expenses incurred) arising under the
Securities Act of 1933, as amended (the "Act"). Article Seventh of the
Registrant's Restated Certificate of Incorporation provides for indemnification
to the fullest extent permitted by the Delaware General Corporation Law. The
Registrant also maintains insurance policies which insure its officers and
directors against certain liabilities. The Registrant has also entered into
agreements with its directors and certain of its officers that will require the
Registrant, among other things, to indemnify them against certain liabilities
that may arise by reason of their status or service as directors or officers to
the fullest extent not prohibited by law.
The Underwriting Agreement (Exhibit 1.1) provides for indemnification by
the Underwriters of the Registrant, its directors and officers, and by the
Registrant of the Underwriters, for certain liabilities, including liabilities
arising under the Act, and affords certain rights of contribution with respect
thereto.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
- ------ -------------------------------------------------------------------------
<S> <C> <C>
1.1 -- Form of Underwriting Agreement
4.1 -- Form of Indenture between the Company and First Trust of California,
National Association, as Trustee
4.2 -- Form of Debenture
5.1 -- Opinion of Pillsbury Madison & Sutro LLP
12.1 -- Computation of Ratio of Earnings to Fixed Charges
23.1 -- Consent of KPMG Peat Marwick LLP (see page II-4)
23.2 -- Consent of Pillsbury Madison & Sutro LLP (included in Exhibit 5.1)
24.1 -- Powers of Attorney
25.1 -- Form T-1 Statement of Eligibility and Qualification of First Trust of
California, National Association, as Trustee
</TABLE>
II-1
<PAGE> 18
ITEM 17. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person 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.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Act, the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Act shall be deemed to be part of this registration statement as of
the time it was declared effective.
(2) For the purpose of determining any liability under the Act, each
post-effective amendment that contains a form of prospectus shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Act, 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 this Registration Statement shall
be deemed to be a new registration statement relating to the securities offered
herein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
II-2
<PAGE> 19
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 San Francisco, State of California, on December 7,
1995.
POTLATCH CORPORATION
By: GERALD L. ZUEHLKE
------------------------------------
Gerald L. Zuehlke
Treasurer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
---------------------------------- -------------------------------- -----------------
<S> <C> <C> <C>
(i) Principal Executive Officer: Chairman of the Board and Chief December 7, 1995
*John M. Richards Executive Officer
(ii) Principal Financial Officer: Senior Vice President, December 7, 1995
*George E. Pfautsch Finance and Chief Financial
Officer
(iii) Principal Accounting Officer: Controller December 7, 1995
*Terry L. Carter
(iv) Directors:
*Richard A. Clarke Director
Kenneth T. Derr Director
*Allen F. Jacobson Director
*George F. Jewett, Jr. Director
*Richard B. Madden Director
*Richard M. Morrow Director
*Vivian W. Piasecki Director
*Toni Rembe Director
*John M. Richards Director
*Reuben F. Richards Director
*Richard M. Rosenberg Director
*Robert G. Schwartz Director
*Charles R. Weaver Director
*Frederick T. Weyerhaeuser Director
*William T. Weyerhaeuser Director
</TABLE>
*By BETTY R. FLESHMAN
---------------------------------
Betty R. Fleshman
Attorney-in-Fact
December 7, 1995
<PAGE> 20
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION OF DOCUMENT PAGE
- ------ ---------------------------------------------------------------------- ------------
<S> <C> <C> <C>
1.1 -- Form of Underwriting Agreement........................................
4.1 -- Form of Indenture between the Company and First Trust of California,
National Association, as Trustee......................................
4.2 -- Form of Debenture.....................................................
5.1 -- Opinion of Pillsbury Madison & Sutro LLP..............................
12.1 -- Computation of Ratio of Earnings to Fixed Charges.....................
23.1 -- Consent of KPMG Peat Marwick LLP (see page II-4)......................
23.2 -- Consent of Pillsbury Madison & Sutro LLP (included in Exhibit 5.1)....
24.1 -- Powers of Attorney....................................................
25.1 -- Form T-1 Statement of Eligibility and Qualification of First Trust of
California, National Association, as Trustee..........................
</TABLE>
<PAGE> 1
EXHIBIT 1.1
POTLATCH CORPORATION
_____% DEBENTURES DUE_____
UNDERWRITING AGREEMENT
....................., 19..
Goldman, Sachs & Co.,
Salomon Brothers Inc
c/o Goldman, Sachs & Co.,
555 California Street
45th Floor
San Francisco, CA 94104
Ladies and Gentlemen:
Potlatch Corporation, a Delaware corporation (the "Company"), proposes,
subject to the terms and conditions stated herein, to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") an aggregate of
$100,000,000 principal amount of the Debentures specified above (the
"Securities").
1. The Company represents and warrants to, and agrees with,
each of the Underwriters that:
(a) A registration statement on Form S-3 (File No.
33-....) 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 to you, and,
excluding exhibits thereto but including all documents
incorporated by reference in the prospectus contained therein,
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 with the Commission;
<PAGE> 2
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) of the rules and regulations of the Commission
under the Securities Act of 1933, as amended (the "Act"), is
hereinafter called a "Preliminary Prospectus"; the various
parts of such registration statement, including all exhibits
thereto but excluding Form T-1 and including (i) the
information contained in the form of final prospectus filed
with the Commission pursuant to Rule 424(b) under the Act in
accordance with Section 5(a) hereof and deemed by virtue of
Rule 430A under the Act to be part of the registration
statement at the time it was declared effective and (ii) the
documents incorporated by reference in the prospectus
contained in the registration statement at the time such part
of the registration statement became effective, each as
amended at the time such part of the registration statement
became effective, are hereinafter collectively called the
"Registration Statement"; such final prospectus, in the form
first filed pursuant to Rule 424(b) under the Act, is
hereinafter called the "Prospectus"; and 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 Item 12 of Form S-3 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);
(b) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and
each Preliminary Prospectus, at the time of filing thereof,
conformed in all material respects to the requirements of the
Act and the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and the rules and regulations of the
Commission thereunder, and did not contain an untrue statement
of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they
were made, 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 through Goldman, Sachs & Co. expressly for use
therein;
(c) 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
2
<PAGE> 3
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 through Goldman, Sachs & Co.
expressly for use therein;
(d) The Registration Statement conforms, and the
Prospectus 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
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 through Goldman, Sachs & Co.
expressly for use therein;
(e) Subsequent to the respective dates as of which
information is given in the Registration Statement and the
Prospectus and except as set forth or contemplated in the
Prospectus, (i) the Company has not sustained 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 which has had a material adverse effect on the Company
and its subsidiaries, considered as a whole; and (ii) there
has not been any material change in the issued and outstanding
capital stock (other than changes that would result from the
exercise by the Company's counterparty of put options
outstanding on the date hereof, which would entitle such
counterparty to sell to the Company 25,000 shares of the
Company's Common Stock on each of December 11, December 13,
December 15 and December 18, 1995) or long-term debt of the
Company and its subsidiaries considered as a whole 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;
(f) The Company has good title to substantially all
real property owned by it, free and clear of all liens,
encumbrances and defects except such as are described in the
Prospectus or such as do not materially affect the value of
such property considered as a whole and do not interfere with
the use made and proposed to be made of such property by the
Company and any real property and
3
<PAGE> 4
buildings held under lease by the Company are held by it under
valid leases with such exceptions as are not material and do
not interfere with the use made and proposed to be made of
such property and buildings by the Company;
(g) 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 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 where its ownership or leasing of properties
material to the conduct of its business requires such
qualification, or in which the failure to so qualify would
have a material adverse effect upon the operations of the
Company and its subsidiaries considered as a whole;
(h) The authorized capital stock of the Company
consists of 40,000,000 shares of common stock, par value $1.00
per share, and 4,000,000 shares of preferred stock, without
par value, 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;
(i) The Securities have been duly authorized by the
Company and, when issued and delivered pursuant to this
Agreement, 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 dated as of ................, 19.. (the
"Indenture") between the Company and First Trust of
California, National Association, as Trustee (the "Trustee"),
under which they are to be issued, which is substantially in
the form filed as an exhibit to the Registration Statement;
the Indenture has been duly authorized by the Company and duly
qualified under the Trust Indenture Act and, assuming due
authorization, execution and delivery by the Trustee under the
Indenture, 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
Securities and the Indenture will conform to the descriptions
thereof in the Prospectus;
(j) The issue and sale of the Securities and the
compliance by the Company with all of the provisions of the
Securities, the Indenture and this Agreement and the
consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach of
any of the terms or provisions of, or constitute a default
under, any material indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument to which
the Company is a party or by which the Company is bound, nor
will such action result in any violation of the provisions of
the Restated Certificate of Incorporation, as amended, or
By-laws of the Company 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 properties; and no
consent, approval, authorization, order, registration or
qualification of or with any such court or
4
<PAGE> 5
governmental agency or body is required for the issue and sale
of the Securities or the consummation by the Company of the
other transactions contemplated by this Agreement or the
Indenture, except, such as have been obtained under the Act
and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Securities by the
Underwriters;
(k) Other than as set forth or contemplated in the
Prospectus, there are no legal or governmental proceedings
pending to which the Company is a party or of which any
property of the Company is the subject which, if determined
adversely to the Company, would individually or in the
aggregate have a material adverse effect on the financial
position, stockholders' equity or results of operations of the
Company and its subsidiaries considered as a whole; and, to
the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others;
(l) 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; and
(m) KPMG Peat Marwick LLP, who have certified certain
consolidated financial statements of the Company are
independent certified public accountants as required by the
Act and the rules and regulations of the Commission
thereunder.
2. Subject to the terms and conditions herein set
forth, 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 a purchase price of .....% of
the principal amount thereof, plus accrued interest, if any, from
...................., 19.. to the Time of Delivery (as defined below)
hereunder, the principal amount of Securities set forth opposite the
name of such Underwriter in Schedule I hereto.
3. Upon the authorization by you of the release of the
Securities, the several Underwriters propose to offer the Securities
for sale upon the terms and conditions set forth in the Prospectus.
4. (a) The Securities to be purchased by each
Underwriter hereunder will be represented by one or more definitive
global Securities in book-entry form which will be deposited by or on
behalf of the Company with The Depository Trust Company ("DTC") or its
designated custodian. The Company will deliver the Securities to
Goldman, Sachs & Co., for the account of each Underwriter, against
payment by or on behalf of such Underwriter of the purchase price
therefor by wire transfer to an account designated by the Company in
Federal (same day) funds, by causing DTC to credit the Securities to
the account of Goldman, Sachs & Co. at DTC. The Company will cause the
certificates representing the Securities to be made available to
Goldman, Sachs & Co. for checking at least twenty-four hours prior to
the Time of Delivery (as defined below) at the office of DTC or its
designated custodian (the "Designated Office"). The time and date of
such
5
<PAGE> 6
delivery and payment shall be 6:30 a.m., San Francisco time, on
....................., 19.. or such other time and date as Goldman,
Sachs & Co. and the Company may agree upon in writing. Such time and
date are herein called the "Time of Delivery".
(b) The documents to be delivered at the Time of
Delivery by or on behalf of the parties hereto pursuant to
Section 7 hereof, including the cross-receipt for the
Securities and any additional documents requested by the
Underwriters pursuant to Section 7(j) hereof, will be delivered
at the offices of Shearman & Sterling, 555 California Street,
Suite 2000, San Francisco, California 94104 (the "Closing
Location"), and the Securities will be delivered at the
Designated Office, all at the Time of Delivery. A meeting will
be held at the Closing Location at 1:00 p.m., San Francisco
time, on the New York Business Day next preceding the Time of
Delivery, at which meeting the final drafts of the documents to
be delivered pursuant to the preceding sentence will be
available for review by the parties hereto. For the purposes of
this Section 4, "New York Business Day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in New York City are generally
authorized or obligated by law or executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by
you 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
this Agreement, or, if applicable, such earlier time as may be
required by Rule 430A(a)(3) under the Act; to make no further
amendment or any supplement to the Registration Statement or
Prospectus prior to the Time of Delivery unless you shall have
consented to such amendment or supplement, which such consent
shall not be unreasonably withheld, promptly after reasonable
notice thereof; to advise you, 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 and to furnish you 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 Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and for
so long as the delivery of a prospectus is required in
connection with the offering or sale of the Securities; to
advise you, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus
or prospectus, of the suspension of the qualification of the
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 stop order or of any order preventing or suspending the
use of any Preliminary Prospectus or prospectus or suspending
any such qualification, to promptly use its best efforts to
obtain the withdrawal of such order;
6
<PAGE> 7
(b) Promptly from time to time to take such action as
you may reasonably request to qualify the Securities for
offering and sale under the securities laws of such
jurisdictions (within the United States including its
territories and possessions) as you 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 the 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) Prior to 10:00 a.m., New York City time, on the
New York Business Day next succeeding the date of this
Agreement and from time to time, to furnish the Underwriters
with copies of the Prospectus in New York City in such
quantities as you may from time to time reasonably request,
and, if the delivery of a prospectus is required under the Act
at any time prior to the expiration of nine months after the
time of issue of the Prospectus 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 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 you and upon your 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 you 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; and in case any
Underwriter is required to deliver a prospectus under the Act
in connection with sales of any of the Securities at any time
nine months or more after the time of issue of the Prospectus,
upon your request but at the expense of such Underwriter, to
prepare and deliver to such Underwriter as many copies as you
may request of an amended or supplemented Prospectus complying
with Section 10(a)(3) of the Act;
(d) To make generally available to its security
holders 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)), 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);
(e) During the period beginning from the date hereof
and continuing to and including the later of the Time of
Delivery and such earlier time as you may notify the Company,
not to offer, sell, contract to sell or otherwise dispose of,
except as provided hereunder, any securities of the Company
which are substantially similar to the Securities, without your
prior written consent; and
7
<PAGE> 8
(f) During a period of three years from the effective
date of the Registration Statement, to furnish to you copies of
all reports or other communications (financial or other)
furnished to stockholders, and to deliver to you (i) as soon as
they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any
national securities exchange on which the Securities or any
class of securities of the Company is listed; and (ii) such
additional information concerning the business and financial
condition of the Company as you may from time to time
reasonably request (such financial statements to be on a
consolidated basis to the extent the accounts of the Company
and its subsidiaries are consolidated in reports furnished to
its stockholders generally or to the Commission);
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 reasonable cost of printing or
producing any Agreement among Underwriters, this Agreement, the
Indenture, the 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 reasonable 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) the filing fees incident
to, and the 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 the Trustee and any agent of the Trustee and the fees and
disbursements of counsel for the Trustee in connection with the
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 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 hereunder shall be
subject, in their reasonable discretion, to the condition that all
representations and warranties and other statements of the Company
herein are, at and as of the Time of Delivery, 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 shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time
period prescribed for such filing
8
<PAGE> 9
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 your
reasonable satisfaction;
(b) Shearman & Sterling, counsel for the Underwriters,
shall have furnished to you such opinion or opinions (a draft
of each such opinion is attached as Annex II(a) hereto), dated
the Time of Delivery, with respect to the matters covered in
paragraphs (i), (ii), (iii) and (iv) of subsection (c) below as
well as such other related matters as you 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) Pillsbury Madison & Sutro LLP, counsel for the
Company, shall have furnished to you their written opinion (a
draft of each such opinion is attached as Annex II(b) hereto),
dated the Time of Delivery, in form and substance satisfactory
to you, 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 and
has the corporate power and authority to own its
property and conduct its business as described in the
Prospectus;
(ii) This Agreement has been duly authorized,
executed and delivered by the Company;
(iii) The 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;
(iv) The Indenture has been duly qualified
under the Trust Indenture Act and has been duly
authorized, executed and delivered by the Company and
constitutes a valid and legally binding instrument,
enforceable in accordance with its terms;
(v) The statements set forth in the
Prospectus under the caption "Description of
Debentures", insofar as they purport to constitute a
summary of the terms of the Securities and the
Indenture, are accurate, complete and fair;
(vi) The issue and sale of the Securities and
the compliance by the Company with all of the
provisions of this Agreement, the Indenture and the
Securities and the consummation of the transactions
herein and therein contemplated will not result in any
violation of the provisions of the Restated
Certificate of Incorporation, as amended, or By-laws
of the
9
<PAGE> 10
Company 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 properties;
(vii) No consent, approval, authorization,
order, registration or qualification of or with any
governmental agency or body, or, to the best of such
counsel's knowledge, any court is required for the
issue and sale of the Securities or the consummation
by the Company of the other transactions contemplated
by this Agreement or the Indenture, except such as
have been obtained under the Act and the Trust
Indenture Act and as have been obtained or may be
required by the securities or Blue Sky laws of the
various states in connection with the purchase and
distribution of the Securities by the Underwriters;
and
(viii) (i) The documents filed pursuant to the
Exchange Act and incorporated by reference in the
Prospectus or any further amendment or supplement
thereto made by the Company prior to the Time of
Delivery (except for financial statements and
schedules included therein, as to which such counsel
need express no opinion), complied when so filed as to
form in all material respects with the Exchange Act,
and the applicable rules and regulations of the
Commission thereunder, and (ii) the Registration
Statement and the Prospectus and any further
amendments and supplements thereto made by the Company
prior to the Time of Delivery (except for financial
statements and schedules included 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 of the Commission thereunder;
In addition to the matters set forth above, such
opinion shall also include a statement to the effect that 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 and other financial
data included 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 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 and other financial data included 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 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 and other financial data included 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,
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<PAGE> 11
not misleading;
(d) The General Counsel of the Company shall have
furnished to you a written opinion (a draft of each such opinion is
attached as Annex II(c) hereof), dated the Time of Delivery, in form
and substance satisfactory to you, to the effect that:
(i) The issue and sale of the Securities and the
compliance by the Company with all of the provisions of the
Securities, the Indenture and this Agreement and the
consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach of
any of the terms or provisions of, or constitute a default
under, any material indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument known to
such counsel to which the Company is a party or by which the
Company is bound;
(ii) To the best of such counsel's knowledge,
other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending to
which the Company is a party or of which any property of the
Company is the subject which, if determined adversely to the
Company, would individually or in the aggregate have a
material adverse effect on the financial position,
stockholders' equity or results of operations of the Company
and its subsidiaries considered as a whole; and, to the best
of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others;
(iii) The authorized capital stock of the Company
consists of 40,000,000 shares of common stock, par value $1.00
per share, and 4,000,000 shares of preferred stock, without
par value, 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; and
(iv) 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 where the failure(s)
to be so qualified, taken in the aggregate, would not have a
material adverse effect on the business, operations or
financial condition of the Company and its subsidiaries taken
as a whole (such counsel being entitled to rely in respect of
the opinion in this clause upon opinions of local counsel and
in respect of matters of fact upon certificates of officers of
the Company, provided that such counsel shall state that they
believe that both you and they are justified in relying upon
such opinions and certificates);
In addition to the matters set forth above, such opinion shall
also include a statement to the effect that he has no reason to believe that
(i) as of its effective date,
11
<PAGE> 12
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 and other financial data included 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 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 and other financial data included 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 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 and other financial data included 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, or (ii)
that any of the documents incorporated by reference in the Prospectus, when
such documents were filed with the Commission, contained an untrue statement of
a material fact or omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made when such documents were so filed, not misleading;
(e) On the date of the Prospectus at a time prior to the
execution of this Agreement, at 6:30 a.m., San Francisco time, on the
effective date of any post-effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at
the Time of Delivery, KPMG Peat Marwick LLP shall have furnished to you
a letter or letters, dated the respective dates of delivery thereof, in
form and substance satisfactory to you, to the effect set forth in
Annex I hereto (the executed copy of the letter delivered prior to the
execution of this Agreement is attached as Annex I(a) hereto and a
draft of the form of letter to be delivered on the effective date of
any post-effective amendment to the Registration Statement and as of
each Time of Delivery is attached as Annex I(b) hereto);
(f) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus
and except as set forth and contemplated in the Prospectus, (i) the
Company shall not have sustained 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 which has had a material adverse
effect on the Company and its subsidiaries considered as a whole, and
(ii) there shall not have been any material change in the issued and
outstanding capital stock (other than changes that would result from
the exercise by the Company's counterparty of put options outstanding
on the date hereof, which would entitle such counterparty to sell to
the Company 25,000 shares of the Company's Common Stock on each of
December 11, December 13, December 15 and December 18, 1995) or
long-term debt of the Company or any of its subsidiaries or any change,
12
<PAGE> 13
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 considered
as a whole, the effect of which, in any such case described in Clause
(i) or (ii), is in your judgment so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities on the terms and in the manner contemplated
in the Prospectus;
(g) On or after the date hereof (i) no downgrading shall
have occurred in the rating accorded the Company's debt securities 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;
(h) On or after the date hereof there shall not have
occurred any of the following: (i) a 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
or California 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 your judgment makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities on the terms and in the manner contemplated
in the Prospectus;
(i) The Company shall have complied with the provisions of
Section 5(c) hereof with respect to the furnishing of Prospectuses on
the New York Business Day next succeeding the date of this Agreement;
and
(j) The Company shall have furnished or caused to be
furnished to you at the Time of Delivery certificates of officers of
the Company satisfactory to you 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 (f) of
this Section and as to such other matters as you 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, the Registration Statement or the Prospectus, 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
13
<PAGE> 14
necessary to make the statements therein not misleading, and, except as
provided in subsection (c) below, 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, the Registration Statement
or the Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through Goldman, Sachs & Co. expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the
Company 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,
the Registration Statement or the Prospectus, 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, the Registration Statement or
the Prospectus or any such amendment or supplement in reliance upon and
in conformity with written information furnished to the Company by such
Underwriter through Goldman, Sachs & Co. expressly for use therein;
and, except as provided in subsection (c) below, 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 reasonably satisfactory to such
indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party in such
action), 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
14
<PAGE> 15
investigation.
(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 respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein in respect of which indemnification has been sought pursuant to
subsection (c) above (whether or not on a timely basis), 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 on the other from the offering of the
Securities. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the
indemnified party failed to give prompt notice as 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 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 the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page
of the Prospectus. 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 the 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 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
15
<PAGE> 16
misrepresentation. The Underwriters' obligations in this
subsection (d) to contribute are several in proportion to
their respective underwriting obligations 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 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 Securities which it has agreed to purchase
hereunder, you may in your discretion arrange for you or another party
or other parties to purchase such Securities on the terms contained
herein. If within thirty-six hours after such default by any
Underwriter you do not arrange for the purchase of such 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 you to purchase such Securities on such terms. In the
event that, within the respective prescribed periods, you notify the
Company that you have so arranged for the purchase of such Securities,
or the Company notifies you that it has so arranged for the purchase of
such Securities, you or the Company shall have the right to postpone
the Time of Delivery 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, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments to
the Registration Statement or the Prospectus which in your opinion 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 this
Agreement with respect to such Securities, and the term "you" for
purposes of this Section shall not include any Underwriter which has
defaulted in its obligation to purchase the Securities.
(b) If, after giving effect to any arrangements for
the purchase of the Securities of a defaulting Underwriter or
Underwriters by you and the Company as provided in subsection
(a) above, the aggregate principal amount of such Securities
which remains unpurchased does not exceed one-eleventh of the
aggregate principal amount of all the Securities, then the
Company shall have the right to require each non-defaulting
Underwriter to purchase the principal amount of Securities
which such Underwriter agreed to purchase hereunder and, in
addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the principal amount of
Securities which such Underwriter agreed to purchase
hereunder) of the 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 Securities of a defaulting Underwriter or
Underwriters by you and the Company as
16
<PAGE> 17
provided in subsection (a) above, the aggregate principal
amount of Securities which remains unpurchased exceeds
one-eleventh of the aggregate principal amount of all the
Securities, or if the Company shall not exercise the right
described in subsection (b) above to require non-defaulting
Underwriters to purchase Securities of a defaulting
Underwriter or Underwriters, then this Agreement 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 this Agreement shall be terminated pursuant to
Section 9 hereof, the Company shall not then be under any liability to
any Underwriter except as provided in Sections 6 and 8 hereof; but, if
for any other reason, the Securities are not delivered by or on behalf
of the Company as provided herein, the Company will reimburse the
Underwriters for all out-of-pocket expenses approved in writing by you,
including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery
of the Securities, but the Company shall then be under no further
liability to any Underwriter except as provided in Sections 6 and 8
hereof.
12. In all dealings hereunder, you shall act on behalf of
each of the Underwriters, and the parties hereto shall be entitled to
act and rely upon any statement, request, notice or agreement on behalf
of the Underwriters made or given by you jointly or by Goldman, Sachs &
Co. on behalf of both of you.
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 you in care of
Goldman, Sachs & Co., 85 Broad Street, New York, New York 10004,
Attention: Registration Department; 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 be supplied to the
Company by you upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This 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,
17
<PAGE> 18
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. 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 this Agreement. As
used herein, the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement may be executed by any one or more of
the parties hereto 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.
If the foregoing is in accordance with your understanding,
please sign and return to us five counterparts hereof, and upon the
acceptance hereof by you, on behalf of each of the Underwriters, this
letter and such acceptance hereof 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 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 your
part as to the authority of the signers thereof.
Very truly yours,
Potlatch Corporation
By:
Name:
Title:
Accepted as of the date hereof:
Goldman, Sachs & Co.
Salomon Brothers Inc
By:
.........................................
(Goldman, Sachs & Co.)
18
<PAGE> 19
SCHEDULE I
<TABLE>
<CAPTION>
PRINCIPAL
AMOUNT OF
SECURITIES
TO BE
UNDERWRITER PURCHASED
----------- ----------
<S> <C>
Goldman, Sachs & Co.
Salomon Brothers Inc
Total . . . . . . . . . . . . . . . . . . . . . . . . $100,000,000
</TABLE>
19
<PAGE> 1
Exhibit 4.1
- --------------------------------------------------------------------------------
POTLATCH CORPORATION
Issuer
FIRST TRUST OF CALIFORNIA, NATIONAL ASSOCIATION
Trustee
__________________
Indenture
Dated as of _________, 199_
__________________
- --------------------------------------------------------------------------------
<PAGE> 2
Certain Sections of this Indenture relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
- -------------------- ---------
<S> <C>
Section 310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . 609
(b) . . . . . . . . . . . . . . . . . . . . . . . . 608; 610
Section 311(a) . . . . . . . . . . . . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . . . . . . . . . . . . 613
Section 312(a) . . . . . . . . . . . . . . . . . . . . . . . . 701; 702(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . 702(c)
Section 313(a) . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . 101; 1004
(b) . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(c) . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . 703(b)
314(a) . . . . . . . . . . . . . . . . . . . . . . . . 704
(b) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . 102
Section 315(a) . . . . . . . . . . . . . . . . . . . . . . . . 601
(b) . . . . . . . . . . . . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . . . . . . . . . . . . 601
(d) . . . . . . . . . . . . . . . . . . . . . . . . 601
(e) . . . . . . . . . . . . . . . . . . . . . . . . 514
Section 316(a) . . . . . . . . . . . . . . . . . . . . . . . . 101
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . 502; 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . . . . . . . . . . 104(c)
Section 317(a)(l) . . . . . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . . . . 1003
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . . . 107
</TABLE>
- --------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Parties . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals of the Company . . . . . . . . . . . . . . . 1
ARTICLE ONE Definitions and Other Provisions
of General Application
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . 1
"Act" . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Affiliate" . . . . . . . . . . . . . . . . . . . . . . . 2
"Attributable Debt" . . . . . . . . . . . . . . . . . . . 2
"Authenticating Agent" . . . . . . . . . . . . . . . . . . 2
"Board of Directors" . . . . . . . . . . . . . . . . . . . 2
"Board Resolution" . . . . . . . . . . . . . . . . . . . . 3
"Business Day" . . . . . . . . . . . . . . . . . . . . . . 3
"Commission" . . . . . . . . . . . . . . . . . . . . . . . 3
"Company" . . . . . . . . . . . . . . . . . . . . . . . . 3
"Company Request" or "Company Order" . . . . . . . . . . . 3
"Consolidated Net Tangible Assets" . . . . . . . . . . . . 3
"Corporate Trust Office" . . . . . . . . . . . . . . . . . 4
"Corporation" . . . . . . . . . . . . . . . . . . . . . . 4
"Defaulted Interest" . . . . . . . . . . . . . . . . . . . 4
"Depositary" . . . . . . . . . . . . . . . . . . . . . . . 4
"Event of Default" . . . . . . . . . . . . . . . . . . . . 4
"Funded Indebtedness" . . . . . . . . . . . . . . . . . . 4
"Global Security" . . . . . . . . . . . . . . . . . . . . 4
"Holder" . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Indebtedness" . . . . . . . . . . . . . . . . . . . . . . 4
"Indenture" . . . . . . . . . . . . . . . . . . . . . . . 4
"Interest Payment Date" . . . . . . . . . . . . . . . . . 4
"Lien" . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Maturity" . . . . . . . . . . . . . . . . . . . . . . . . 5
"Officers' Certificate" . . . . . . . . . . . . . . . . . 5
"Opinion of Counsel" . . . . . . . . . . . . . . . . . . . 5
"Outstanding" . . . . . . . . . . . . . . . . . . . . . . 5
"Paying Agent" . . . . . . . . . . . . . . . . . . . . . . 6
"Person" . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Predecessor Security" . . . . . . . . . . . . . . . . . . 6
"Principal Property" . . . . . . . . . . . . . . . . . . . 6
"Regular Record Date" . . . . . . . . . . . . . . . . . . 7
"Responsible Officer" . . . . . . . . . . . . . . . . . . 7
"Security Register" and "Security Registrar" . . . . . . . 7
"Special Record Date" . . . . . . . . . . . . . . . . . . 7
"Stated Maturity" . . . . . . . . . . . . . . . . . . . . 7
</TABLE>
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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<PAGE> 4
<TABLE>
<S> <C>
"Subsidiary" . . . . . . . . . . . . . . . . . . . . . . . . 7
"Timberlands" . . . . . . . . . . . . . . . . . . . . . . . 7
"Trustee" . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Trust Indenture Act" . . . . . . . . . . . . . . . . . . . 7
"United States" . . . . . . . . . . . . . . . . . . . . . . 8
"U.S. Government Obligations" . . . . . . . . . . . . . . . 8
"Vice President" . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 102. Compliance Certificates and Opinions . . . . . . . . 8
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . 9
SECTION 104. Acts of Holders; Record Dates . . . . . . . . . . . 9
SECTION 105. Notices, Etc., to Trustee and Company . . . . . . . 10
SECTION 106. Notice to Holders; Waiver . . . . . . . . . . . . . 11
SECTION 107. Conflict with Trust Indenture Act . . . . . . . . . 11
SECTION 108. Effect of Headings and Table of Contents . . . . . . 12
SECTION 109. Successors and Assigns . . . . . . . . . . . . . . . 12
SECTION 110. Separability Clause . . . . . . . . . . . . . . . . 12
SECTION 111. Benefits of Indenture . . . . . . . . . . . . . . . 12
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . . . 12
SECTION 113. Legal Holidays . . . . . . . . . . . . . . . . . . . 12
SECTION 114. No Recourse Against Others . . . . . . . . . . . . . 13
ARTICLE TWO Security Forms
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . . . 13
SECTION 202. Form of Face of Security . . . . . . . . . . . . . . 13
SECTION 203. Form of Reverse of Security . . . . . . . . . . . . 15
SECTION 204. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . . . . . . 17
SECTION 205. Securities in Global Form . . . . . . . . . . . . . 17
ARTICLE THREE The Securities
SECTION 301. Title and Terms . . . . . . . . . . . . . . . . . . 18
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . 18
SECTION 303. Execution, Authentication, Delivery and
Dating . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . 20
SECTION 305. Registration, Registration of Transfer and
Exchange . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . . . . . . . 22
SECTION 307. Payment of Interest; Interest Rights
Preserved . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . 25
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . 25
SECTION 310. Computation of Interest . . . . . . . . . . . . . . 25
ARTICLE FOUR Satisfaction and Discharge
</TABLE>
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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<PAGE> 5
<TABLE>
<S> <C>
SECTION 401. Satisfaction and Discharge of
Indenture . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 402. Application of Trust Money . . . . . . . . . . . . . . 27
SECTION 403. Satisfaction, Discharge and Defeasance
of Securities . . . . . . . . . . . . . . . . . . . . .27
ARTICLE FIVE Remedies
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . 29
SECTION 502. Acceleration of Maturity; Rescission
and Annulment. . . . . . . . . . . . . . . . . . . . .30
SECTION 503. Collection of Indebtedness and Suits
for Enforcement by Trustee . . . . . . . . . . . . . .31
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . 32
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities . . . . . . . . . . . . . . .33
SECTION 506. Application of Money Collected . . . . . . . . . . . . 33
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . 33
SECTION 508. Unconditional Right of Holders to
Receive Principal and Interest . . . . . . . . . . . . 34
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . 34
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . 35
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . 35
SECTION 512. Control by Holders . . . . . . . . . . . . . . . . . . 35
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . 35
SECTION 514. Undertaking for Costs . . . . . . . . . . . . . . . . 36
SECTION 515. Waiver of Stay or Extension Laws . . . . . . . . . . . 36
ARTICLE SIX The Trustee
SECTION 601. Certain Duties and Responsibilities . . . . . . . . . 37
SECTION 602. Notice of Defaults . . . . . . . . . . . . . . . . . . 38
SECTION 603. Certain Rights of Trustee . . . . . . . . . . . . . . 38
SECTION 604. Not Responsible for Recitals or
Issuance of Securities. . . . . . . . . . . . . . . . 39
SECTION 605. May Hold Securities . . . . . . . . . . . . . . . . . 40
SECTION 606. Money Held in Trust . . . . . . . . . . . . . . . . . 40
SECTION 607. Compensation and Reimbursement . . . . . . . . . . . . 40
SECTION 608. Disqualification; Conflicting
Interests . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 609. Corporate Trustee Required;
Eligibility . . . . . . . . . . . . . . . . . . . . . 41
SECTION 610. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 611. Acceptance of Appointment by Successor . . . . . . . . 43
SECTION 612. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . . . . . .43
</TABLE>
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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<PAGE> 6
<TABLE>
<S> <C>
SECTION 613. Preferential Collection of Claims
Against Company . . . . . . . . . . . . . . . . . . . 43
SECTION 614. Appointment of Authenticating Agent. . . . . . . . . . 44
ARTICLE SEVEN Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and
Addresses of Holders . . . . . . . . . . . . . . . . . 45
SECTION 702. Preservation of Information;
Communications to Holders . . . . . . . . . . . . . . 46
SECTION 703. Reports by Trustee . . . . . . . . . . . . . . . . . . 46
SECTION 704. Reports by Company . . . . . . . . . . . . . . . . . . 47
ARTICLE EIGHT Consolidation, Merger, Conveyance, Transfer or
Lease
SECTION 801. Company May Consolidate, etc., Only on
Certain Terms . . . . . . . . . . . . . . . . . . . . . 47
SECTION 802. Successor Corporation Substituted . . . . . . . . . . 48
SECTION 803. Limitation on Lease of Properties as
Entity . . . . . . . . . . . . . . . . . . . . . . . . 48
ARTICLE NINE Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent
of Holders . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 902. Supplemental Indentures With Consent of
Holders . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 903. Execution of Supplemental Indentures . . . . . . . . . 50
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . 50
SECTION 905. Conformity with Trust Indenture Act . . . . . . . . . 51
SECTION 906. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE TEN Covenants
SECTION 1001. Payment of Principal and Interest . . . . . . . . . . 51
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . 51
SECTION 1003. Money for Securities Payments To Be
Held in Trust . . . . . . . . . . . . . . . . . . . . 52
SECTION 1004. Corporate Existence . . . . . . . . . . . . . . . . . 53
SECTION 1005. Limitations on Liens and Encumbrances . . . . . . . . 54
SECTION 1006. Limitations on Sale and Leaseback
Transactions . . . . . . . . . . . . . . . . . . . . . 56
SECTION 1007. Defeasance of Certain Obligations . . . . . . . . . . 57
SECTION 1008. Statement by Officers as to Default . . . . . . . . . 58
SECTION 1009. Waiver of Certain Covenants . . . . . . . . . . . . . 58
</TABLE>
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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<PAGE> 7
INDENTURE, dated as of _________, 199_, among POTLATCH CORPORATION, a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal office at One Maritime
Plaza, Suite 2400, San Francisco, California, 94111, and FIRST TRUST OF
CALIFORNIA, NATIONAL ASSOCIATION, a national banking association duly organized
and existing under the laws of the United States of America, as Trustee (herein
called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of its ___%
Debentures Due ___ (herein called the "Securities") of substantially the tenor
and amount hereinafter set forth, and to provide therefor, the Company has duly
authorized the execution and delivery of this Indenture.
All things necessary to make the Securities, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with their and 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 mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
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<PAGE> 8
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as are
generally accepted at the date of such computation; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Debt" means, as to any particular lease (other than a
cross-border or defeased lease arrangement) entered into after the date hereof
under which any Person is at the time liable and 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 to present values as of such time in accordance with generally
accepted accounting principles from the respective due dates thereof to such
date. The net amount of rent required to be paid under any such lease for any
such period shall be the aggregate amount of the rent payable by the lessee with
respect to such period after excluding amounts required to be paid on account of
maintenance and repairs, insurance, taxes, assessments, water and utility 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 no rent shall be considered as 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.
"Board of Directors" means the board of directors of the Company or
any duly authorized committee of that board.
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<PAGE> 9
"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 each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in the City of New York
or the City of San Francisco are authorized or obligated by law or executive
order to close.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after the execution of this 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 at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument 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 Request" or "Company Order" means, respectively, a written
request or order signed in the name of the Company by its Chairman of the Board
and Chief Executive Officer, its President or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Consolidated Net Tangible Assets" means the total amount of assets of
the Company and its consolidated Subsidiaries (less applicable reserves) after
deducting therefrom: (a) all current liabilities of the Company and its
consolidated Subsidiaries (excluding intercompany items among the Company and
its consolidated Subsidiaries and excluding any current liabilities constituting
Funded Indebtedness by reason of being renewable or extendable and excluding
deferred income taxes), and (b) goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other like intangibles,
such assets and exclusions and deductions therefrom to be in such amounts, if
any, as would appear on a consolidated balance sheet of the Company and its
consolidated Subsidiaries as of the date of computation, prepared in accordance
with generally accepted accounting principles applied on a consistent basis as
in effect on the date of such computation.
"Corporate Trust Office" means the principal corporate trust office of
the Trustee at which at any particular time its corporate trust business shall
be administered.
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<PAGE> 10
"Corporation" means a Corporation, association, company, joint-stock
company or business trust.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means the Depositary of the Global Security representing
the Securities and any successor to such Depositary appointed pursuant to
Section 305(b). The Depositary initially shall be The Depository Trust Company,
a New York Corporation.
"Event of Default" has the meaning specified in Section 501.
"Funded Indebtedness" means, with respect to any Corporation,
Indebtedness of such Corporation if such Indebtedness shall be payable more than
one year from the date of computation or shall be extendable or renewable at the
option of such Corporation to a time more than one year after the date of
computation; and all guarantees (direct or indirect) of such Indebtedness of
others.
"Global Security" means a Security evidencing all or part of the
Securities, issued to the Depositary in accordance with Section 303 and bearing
the legend prescribed in Section 303(b).
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indebtedness" of a Corporation means any and all obligations for
money borrowed which in accordance with generally accepted accounting principles
would be included on the liabilities side of a balance sheet of such Corporation
as of the date as of which such indebtedness was incurred.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively.
"Interest Payment Date" means, with respect to any Security, the
Stated Maturity of an installment of interest on such Security.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including any conditional sale or other title
retention agreement, and, except with respect to any lease, the filing of or
agreement to file
-4-
<PAGE> 11
any financing statement under the Uniform Commercial Code of any jurisdiction).
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board and Chief Executive Officer, the President or a Vice President, and by
the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary,
of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities or portions thereof for whose payment (a)
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 Paying Agent)
for the Holders of such Securities; or (b) U.S. Government Obligations as
contemplated by Sections 401 and 403 in the necessary amount have been
theretofore deposited with the Trustee, in trust, for the Holders of such
Securities; and
(iii) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any such
Securities in respect of which there shall have been presented to the Trustee
proof satisfactory to it that such Securities are held by a bona fide
purchaser in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
aggregate principal amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder,
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
-5-
<PAGE> 12
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 of such
other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or interest on any Securities on behalf of the Company.
"Person" means any individual, Corporation, partnership, joint
venture, 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 (a) any building, structure or other
facility used primarily for manufacturing and located in the United States, 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 shall exceed
10% of Consolidated Net Tangible Assets, and (b) any Timberlands in the United
States owned in fee or under contract for the purchase of the fee by the Company
or any Subsidiary other than such Timberlands in the aggregate not exceeding 10%
of the aggregate Timberlands acreage in the United States owned in fee or under
contract for the purchase of the fee by the Company and its Subsidiaries on the
date as of which any determination shall be made; provided, however, that the
term "Principal Property" shall not include any Timberlands, buildings,
structures, facilities or any portion of any of the foregoing which, in the
opinion of the Board of Directors as expressed in a Board Resolution, shall not
be of material importance to the total business conducted by the Company and its
Subsidiaries taken as an entirety; and provided, further, that the term
Principal Property shall not include any land, including without limitation
Timberlands, designated by the Board of Directors as being held primarily for
development or sale, or any land, including without limitation Timberlands, held
for the exploitation of minerals or mineral rights.
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<PAGE> 13
"Regular Record Date" for the interest payable on any Interest Payment
Date means the ___________ or ___________ (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date.
"Responsible Officer", when used with respect to the Trustee, means
any officer within the Corporate Trust Department or any other successor group
of the Trustee, including any vice president, assistant vice president,
assistant secretary or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Subsidiary" means a Corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Timberlands" means real property that contains standing timber which
is (or upon the completion of the growth cycle then in process is expected to
become) of a commercial quantity and of merchantable quality.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 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.
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<PAGE> 14
"United States" means the United States of America (including the
District of Columbia) and its possessions.
"U.S. Government Obligations" means direct obligations of the United
States for the payment of which its full faith and credit is pledged, or
obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States the payment of which is unconditionally
guaranteed by the United States.
"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 "vice president".
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 an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirement set forth in
this Indenture.
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.
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<PAGE> 15
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. Except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments are delivered to the
Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
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(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, by Board Resolution fix any day as the record date for the
purpose of determining the Holders entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action, or to vote on
any action, authorized or permitted to be given or taken by Holders. If not set
by the Company prior to the first solicitation of a Holder made by any Person in
respect of any such action, or, in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day (or, if
later, the date of the most recent list of Holders required to be provided
pursuant to Section 701) prior to such first solicitation or vote, as the case
may be. With regard to any record date, only the Holders on such date (or their
duly designated proxies) shall be entitled to give or take, or vote on, the
relevant action.
(d) The ownership of Securities shall be proved by the Security
Register.
(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 Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with
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<PAGE> 17
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
the attention of its Secretary 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.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of any event, such notice shall be sufficiently
given if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at such Holder's 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. 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 case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 107. Conflict with Trust Indenture Act.
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 latter provision 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
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<PAGE> 18
provision shall be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. 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 110. 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 111. 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 of Securities, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 112. 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 113. Legal Holidays.
In any case where any Interest Payment Date or Stated Maturity of any
Security shall not be a Business Day then (notwithstanding any other provision
of this Indenture or of the Securities) payment of interest or principal need
not be made on such date, but may be made on the next succeeding Business Day
with the same force and effect as if made on the Interest Payment Date or at the
Stated Maturity, provided that no interest shall accrue for the period from and
after such Interest Payment Date or Stated Maturity, as the case may be.
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SECTION 114. No Recourse Against Others.
No director, officer, employee, stockholder or Affiliate, as such, of the
Company shall have any liability for any obligation of the Company under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Holder by accepting a
Security waives and releases all such liability. The waiver and release are part
of the consideration for the issue of the Securities.
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.
The Securities and the Trustee's certificates of authentication shall
be in substantially the forms set forth in this Article, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities.
The definitive Securities shall be printed, lithographed or engraved
or produced by any combination of these methods on steel engraved borders or may
be produced in any other manner permitted by the rules of any securities
exchange on which the Securities may be listed, all as determined by the
officers executing such Securities, as evidenced by their execution of such
Securities.
SECTION 202. Form of Face of Security.
POTLATCH CORPORATION
____% Debenture Due ____
CUSIP ________
No. __________ $________
Potlatch Corporation, a corporation duly organized and existing under
the laws of Delaware (herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to _______________, or registered assigns, the
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principal sum of ________________ Dollars on _________, ____, and to pay
interest thereon from ______ __, ____ or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semiannually on
________ and ______ in each year, commencing ________, 1996, at the rate of ___%
per annum, until the principal hereof is paid or made available for payment. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the ________ or ______ (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for ("Defaulted Interest") will forthwith cease to be payable
to the Holder on such Regular Record Date and may either be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities not less than 10 days prior to such Special
Record Date, or be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Securities may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture. The principal of and interest on this Security
will be payable (i) in the case this Security is a Global Security registered in
the name of a Depositary or its nominee, to such Depositary or such nominee by
transfer to an account maintained by the payee located in the United States and
(ii) in the case this Security is in definitive registered form, to the person
in whose name the Security is registered at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, The City of New York,
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts; provided,
however, that, except with respect to a Global Security, at the option of the
Company payment of interest may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any
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<PAGE> 21
benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
POTLATCH CORPORATION
By______________________________________
Attest:
_______________________________
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of Securities of the
Company designated as its __% Debentures Due ____ (herein called the
"Securities"), limited in aggregate principal amount to $100,000,000, issued and
to be issued under an Indenture, dated as of ______ __, 199_ (herein called the
"Indenture"), between the Company and First Trust of California, National
Association, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities, and of the terms upon which the
Securities are, and are to be, authenticated and delivered.
If an Event of Default shall occur and be continuing, the principal of
all the Securities may be declared due and payable in the manner and with the
effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default, the Holders of not
less than 25% in aggregate principal amount of the Outstanding Securities shall
have made written request to
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<PAGE> 22
the Trustee and offered the Trustee reasonable indemnity, the Trustee shall not
have received from the Holders of a majority in aggregate principal amount of
the Outstanding Securities a direction inconsistent with such request, and the
Trustee shall have failed to institute any such proceeding for 60 days after
receipt of such notice, request and offer of indemnity. The foregoing shall not
apply to any suit instituted by the Holder of this Security for the enforcement
of any payment of principal hereof or any interest hereon on or after the
respective due dates expressed herein.
The Indenture contains provisions for defeasance at any time of (a)
the entire obligations of the Company on this Debenture and, with certain
exceptions, all of the provisions of the Indenture as it relates to this
Debenture and (b) certain restrictive covenants in the Indenture, upon
compliance by the Company with certain conditions set forth therein.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and interest on this
Security at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon one
or more new Securities, of authorized denominations and for the same
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<PAGE> 23
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities are issuable only in registered form without coupons in
minimum denominations of $100,000 and integral multiples of $1,000 in excess
thereof. As provided in the Indenture and subject to certain limitations therein
set forth, Securities are exchangeable for a like aggregate principal amount of
Securities of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
SECTION 204. Form of Trustee's Certificate of Authentication.
This is one of the Securities referred to in the within-mentioned
Indenture.
FIRST TRUST OF CALIFORNIA,
NATIONAL ASSOCIATION,
as Trustee
By
-------------------------------------
Authorized Officer
SECTION 205. Securities in Global Form.
A Security in global form shall represent such of the Outstanding
Securities as shall be specified therein and may provide that it shall represent
the aggregate amount of Outstanding Securities from time to time endorsed
thereon and that the aggregate amount of Outstanding Securities represented
thereby may from time to time be reduced to reflect exchanges. Any endorsement
of a Security in global form to reflect the
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<PAGE> 24
amount, or any increase or decrease in the amount, of Outstanding Securities
represented thereby shall be made by the Trustee and in such manner as shall be
specified in such Security. Any instructions by the Company with respect to a
Security in global form, after its initial issuance, shall be in writing but
need not comply with Section 102.
ARTICLE THREE
The Securities
SECTION 301. Title and Terms.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to $100,000,000
except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities pursuant to Section 304,
305, 306 or 906.
The Securities shall be known and designated as the "__% Debentures
Due ____" of the Company. Their Stated Maturity shall be ______ __, ____, and
they shall bear interest at the rate of ____% per annum, from ______ __, 199_ or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, as the case may be, payable semiannually on ________ __ and
______ __, commencing ________ __, 1996, until the principal thereof is paid or
made available for payment.
The principal of and interest on any Security will be payable (i) in
the case such Security is a Global Security registered in the name of a
Depositary or its nominee, to such Depositary or such nominee by transfer to an
account maintained by the payee located in the United States and (ii) in the
case such Security is in definitive registered form, to the person in whose name
the Security is registered at the office or agency of the Company maintained for
that purpose in the Borough of Manhattan, The City of New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that, except
with respect to a Global Security, at the option of the Company payment of
interest may be made by check mailed by first class mail to the address of the
Person entitled thereto as such address shall appear in the Security Register.
SECTION 302. Denominations.
The Securities shall be issuable only in registered form without
coupons and only in minimum denominations of $100,000 and integral multiples of
$1,000 in excess thereof.
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<PAGE> 25
SECTION 303. Execution, Authentication, Delivery and Dating.
(a) The Securities shall be executed on behalf of the Company by its
Chairman of the Board and Chief Executive Officer, its President, a Vice
President or its Treasurer, under its corporate seal reproduced thereon attested
by its Secretary or one of its Assistant Secretaries. The signature of any of
these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities 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 such Company Order shall authenticate and deliver such Securities as in
this Indenture provided and not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder.
(b) The Company shall execute and the Trustee shall authenticate and
deliver one or more Global Securities that (i) shall represent an aggregate
amount equal to the aggregate principal amount of the Outstanding Securities,
(ii) shall be registered in the name of the Depositary or the nominee of the
Depositary, (iii) shall be delivered by the Trustee to the Depositary or
pursuant to the Depositary's instruction, and (iv) shall bear a legend
substantially to the following effect: "Unless this certificate is presented by
an authorized representative of The Depository Trust Company, a New York
corporation ("DTC"), to the Company (as defined below) or its agent for
registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
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<PAGE> 26
BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede &
Co., has an interest herein."
(c) The Depositary must, at all times while it serves as such
Depositary, be a clearing agency registered under the Securities Exchange Act of
1934, as amended, and any other applicable statute or regulation.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as conclusively evidenced
by their execution of such Securities. Any such temporary Security shall be in
global form. Every such temporary Security shall be executed by the Company and
shall be authenticated and delivered by the Trustee upon the same conditions and
in substantially the same manner, and with the same effect, as the definitive
Security or Securities in lieu of which it is issued.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at any office
or agency of the Company designated pursuant to Section 1002, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities of
authorized denominations. Until so exchanged the temporary Securities shall in
all respects be entitled to the same benefits under this Indenture as definitive
Securities.
Upon any exchange of a portion of a temporary Global Security for a
definitive Global Security or for the individual Securities represented thereby
pursuant to this Section 304 or Section 305, the temporary Global Security shall
be endorsed by the Trustee to reflect the reduction of the principal amount
evidenced thereby, whereupon the principal amount of such temporary Global
Security shall be reduced for all purposes by the amount so exchanged and
endorsed.
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<PAGE> 27
SECTION 305. Registration, Registration of Transfer and Exchange.
(a) The Company shall cause to be kept at the Corporate Trust Office
of the Trustee a register (the register maintained in such office and in any
other office or agency designated pursuant to Section 1002 being herein
sometimes collectively referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration of Securities and of transfers of Securities. The Trustee
is hereby appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security at an
office or agency of the Company designated pursuant to Section 1002 for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of any authorized denominations and of a like aggregate principal
amount.
Notwithstanding any other provision of this Section, unless and until
it is exchanged in whole or in part for the individual Securities represented
thereby, a Global Security representing all or a portion of the Securities may
not be transferred except as a whole by the Depositary to a nominee of such
Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denominations and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
(b) If at any time, (i) the Depositary notifies the Company that it is
unwilling or unable to continue as depositary or if at any time the Depositary
shall no longer be registered as a clearing agency in good standing under the
Securities Exchange Act of 1934, as amended, or other applicable statute or
regulation and a successor depositary is not appointed by the Company within 90
days after the Company receives such notice or becomes aware of such condition,
as the case may be, (ii) the Company determines that the Securities shall no
longer be represented by a Global Security and that the provisions of this
Section 305 shall no longer apply to the Securities, or (iii) any event shall
have happened and be continuing which, after notice or lapse of time, or both,
would become an Event of
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<PAGE> 28
Default and the beneficial owners representing a majority in aggregate principal
amount of the Securities represented by the Global Security advise the
Depositary to cease acting as depositary and the Depositary so advises the
Company in writing, then in such event this Section 305 shall no longer be
applicable to the Securities and the Company will execute and the Trustee, upon
receipt of a Company Order, will authenticate and deliver Securities in
definitive registered form, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global Security in
exchange for such Global Security whereupon the Global Security shall be
canceled by the Trustee. Such Securities in definitive registered form issued in
exchange for the Global Security pursuant to this Section 305 shall be
registered in such names and issued in such minimum authorized denominations of
$100,000, or any integral multiple of $1,000 in excess thereof, as the
Depositary, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities
to the Persons in whose names such Securities are so registered.
(c) All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304 or 906, not involving any transfer.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
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If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of like tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original 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 this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest.
Any interest on any Security 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 Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Clause (1) or (2) below:
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(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security and the date
of the proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this Clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder at his address as it appears in
the Security Register, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted Interest
shall be paid to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered at the close of business on
such Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the 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, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
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SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and (subject to
Section 307) interest on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to the
contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment or registration of transfer or
exchange shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly canceled by it. The Company may
at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in
any manner whatsoever, and all Securities so delivered shall be promptly
canceled by the Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section, except as
expressly permitted by this Indenture. All canceled Securities held by the
Trustee shall be disposed of as directed by a Company Order.
SECTION 310. Computation of Interest.
Interest on the Securities shall be computed on the basis of a
360-day year of twelve 30-day months.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for), and the Trustee, on demand of and at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
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(1) either
(A) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been destroyed, lost
or stolen and which have been replaced or paid as provided in Section
306 and (ii) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as
provided in Section 1003) have been delivered to the Trustee for
cancellation; or
(B) all such Securities 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 deemed paid and discharged pursuant to
Section 403, as applicable,
and the Company, in the case of (i) or (ii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for
the purpose an amount of (a) money, or (b) in the case of (ii)
above non-callable U.S. Government Obligations which through the
payment of interest and principal in respect thereof in accordance
with their terms will provide not later than one day before the
Stated Maturity money in an amount, or (c) a combination of money or
non-callable U.S. Government Obligations as provided in (a) and (b)
above, in each case sufficient, in the opinion of a nationally
recognized firm of independent certified public accountants expressed
in a written certification thereof delivered to the Trustee, to pay
and discharge the entire Indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for principal
and interest to the date of such deposit (in the case of Securities
which have become due and payable) or to the Stated Maturity, as the
case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
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(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 or U.S.
Government Obligations shall have been deposited with the Trustee pursuant to
subclause (B) of Clause (1) of this Section, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money or U.S. Government Obligations deposited with the Trustee pursuant to
Section 401, 403 or 1007 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) as the Trustee may determine, to the Holders
entitled thereto, of the principal and interest on such Securities for whose
payment such money has been deposited with the Trustee.
SECTION 403. Satisfaction, Discharge and Defeasance of Securities.
The Company shall be deemed to have paid and discharged the entire
Indebtedness on all the Outstanding Securities on the 93rd day after the date
of the deposit referred to in subparagraph (e) hereof, and the provisions of
this Indenture, as it relates to such Outstanding Securities, shall no longer
be in effect (and the Trustee, at the expense of the Company, shall at Company
Request execute proper instruments furnished to it acknowledging the same),
except as to:
(a) the rights of Holders of Securities to receive, from the trust
funds described in subparagraph (e) hereof, payment of the principal
of and each installment of interest on the Outstanding Securities on
the Stated Maturity of such principal or installment of interest;
(b) the Company's obligations with respect to such Securities under
Sections 305, 306, 1002 and 1003;
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(c) the Company's obligations with respect to the Trustee under
Section 607; and
(d) the rights, powers, trust and immunities of the Trustee under
Section 402;
provided that the following conditions shall have been satisfied:
(e) the Company has deposited or caused to be irrevocably deposited
with the Trustee as trust funds in trust, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of the Securities,
(i) money in an amount, or (ii) non-callable U.S. Government Obligations
which through the payment of interest and principal in respect thereof in
accordance with their terms will provide not later than one day before the
due date of any payment money in an amount or (iii) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of independent
certified public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge the principal of and each
installment of principal and interest on the Outstanding Securities on the
Stated Maturity of such principal or installment of interest;
(f) such deposit will 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;
(g) such provision would not cause any Outstanding Securities then
listed on the New York Stock Exchange or other securities exchange to be
delisted as a result thereof;
(h) no Event of Default or event which with notice or lapse of time
would become an Event of Default shall have occurred and be continuing on the
date of such deposit or during the period ending on the 93rd day after such
date;
(i) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel to the effect that the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling to the effect that Holders of the Securities will not recognize
income, gain or loss for Federal income tax purposes as a result of such
deposit, defeasance and discharge and will be subject to Federal income tax
on the same amount and in the same manner and at the same times, as would
have been the
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case if such deposit, defeasance and discharge had not occurred; and
(j) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance contemplated by this
Section have been complied with.
ARTICLE FIVE
Remedies
SECTION 501. Events of Default.
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security when it
becomes due and payable, and continuance of such default for a period of 30
days; or
(2) default in the payment of the principal of any Security at its
Maturity; or
(3) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or warranty
a default in whose performance or whose breach is elsewhere in this Section
specifically dealt with), 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 aggregate principal amount of the Outstanding
Securities a written notice specifying such default or breach and requiring
it to be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(4) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in an involuntary case or proceeding in respect of
the Company under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
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Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator
or other similar official of the Company or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other decree
or order unstayed and in effect for a period of 60 consecutive days; or
(5) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency, reorganization
or other similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of a decree or order
for relief in an involuntary case or proceeding in respect of the Company
under any applicable Federal or State bankruptcy, insolvency, reorganization
or other similar law or to the commencement of any bankruptcy or insolvency
case or proceeding against it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under any applicable Federal or
State law, or the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company or
of any substantial part of its property, or the making by it of an assignment
for the benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the taking of
corporate action by the Company in furtherance of any such action.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default occurs and is continuing, then and in every
such case the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Outstanding Securities may declare the principal of all
the Securities to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon any such declaration
such principal shall become immediately due and payable.
At any time after such a declaration of acceleration has been made
and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in
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this Article provided, the Holders of a majority in aggregate principal amount
of the Outstanding Securities, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities,
(B) the principal of any Securities which have become due
otherwise than by such declaration of acceleration and interest
thereon at the rate borne by the Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate borne by the Securities,
and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel;
and
(2) all Events of Default, other than the non-payment of the
principal of Securities which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of any
Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and interest, and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal and on
any overdue interest, at the rate borne by the Securities, and,
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in addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Securities, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company (or any other obligor upon the Securities),
its property or its creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions
authorized under the Trust Indenture Act in order to have claims of the Holders
and the Trustee allowed in any such proceeding. In particular, the Trustee
shall be authorized to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof or to authorize the Trustee
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to vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities 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 Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or interest,
upon presentation of the Securities and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607;
SECOND: To the payment of the amounts then due and unpaid for
principal of and interest on the Securities in respect of
which or for the benefit of which such money has been
collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such
Securities for principal and interest, respectively; and
THIRD: The balance, if any, to the Company.
SECTION 507. Limitation on Suits.
No Holder of any Security shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
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(2) the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its
own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding;
and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in aggregate principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal 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 (subject to Section 307) interest on
such Security on the respective Stated Maturities expressed in such Security
and to institute suit for the enforcement of any such payment, and such rights
shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and
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remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities 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 of any Security
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by
law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 512. Control by Holders.
The Holders of a majority in aggregate principal amount of the
Outstanding Securities 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, provided that
(1) such direction shall not be in conflict with any rule of law
or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities may on behalf of the Holders of all the
Securities waive any past default hereunder and its consequences, except a
default
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(1) in the payment of the principal of or interest on any
Security, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the Holder
of each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
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, that the provisions of this Section shall
not apply to any suit instituted by the Company, to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in aggregate principal amount of the Outstanding
Securities, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of or interest on any Security on or after the Stated
Maturity.
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 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.
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ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in the
case of any such certificates or opinions which by any 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 has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent 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 not less than a majority in aggregate principal amount of
the Outstanding Securities, relating to the time, method and place of
conducting
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any proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Indenture with respect
to the Securities; 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.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder, the
Trustee shall transmit by mail to all Holders of Securities notice of such
default hereunder known to the Trustee, unless such default shall have been
cured or waived; provided, however, that, except in the case of a default in
the payment of the principal of or interest on any Security, 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; and
provided, further, that in the case of any default of the character specified
in Section 501(3), no such notice to Holders shall be given until at least 30
days after the occurrence thereof. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time or both
would become, an Event of Default.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of Indebtedness 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 or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of
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the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of Indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed with
due care by it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be
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taken as the statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. The Trustee
shall not be accountable for the use or application by the Company of Securities
or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Paying Agent, any Security Registrar, any
Authenticating Agent or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 608 and 613, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Paying Agent, Security Registrar,
Authenticating Agent or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of
an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith;
and
(3) to indemnify the Trustee 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 trust, including the costs and expenses of defending itself against any
claim or
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liability in connection with the exercise or performance of any of its powers
or duties hereunder.
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of applicable supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such Person shall
be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in aggregate principal amount of the Outstanding Securities, delivered
to the Trustee and to the Company.
(d) If at any time:
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(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, except when the Trustee's duty
to resign is stayed in accordance with the provisions of Trust Indenture Act
Section 310(b), or
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property shall
be appointed or any public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of rehabilitation, conservation
or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee. If,
within 90 days after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in aggregate principal amount of the Outstanding
Securities delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment,
become the successor Trustee and supersede the successor Trustee appointed by
the Company. If no successor Trustee shall have been so appointed by the Company
or the Holders and accepted appointment in the manner hereinafter provided, any
Holder who has been a bona fide Holder of a Security 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.
(f) The Company shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee to all Holders in the
manner provided in Section 106. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.
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SECTION 611. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder. Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any Corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any Corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
Corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
Corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
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 the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
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SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents which shall
be authorized to act on behalf of the Trustee to authenticate Securities issued
upon original issue and upon exchange, registration of transfer, 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. Whenever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such references shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a Corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $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 said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any Corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any Corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such Corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be
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acceptable to the Company and shall give notice of such appointment to all
Holders in the manner provided 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.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment is made pursuant to this Section, the Securities may
have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the following
form:
This is one of the Securities described in the within-mentioned
Indenture.
FIRST TRUST OF CALIFORNIA,
NATIONAL ASSOCIATION,
As Trustee
By__________________________,
As Authenticating Agent
By___________________________
Authorized Officer
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semiannually, not more than 15 days after each Regular Record
Date, a list, in such form as the Trustee may reasonably require, of the names
and
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addresses of the Holders as of such Regular Record Date, 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 list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
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 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 Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(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) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and 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 the
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when the Securities are listed on any stock exchange.
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SECTION 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 shall be
filed with the Trustee within 15 days after the same is so required to be filed
with the Commission.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company May Consolidate, etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
Corporation or convey or transfer its properties and assets substantially as an
entirety to any Person, unless:
(1) the Corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer the
properties and assets of the Company substantially as an entirety shall be a
Corporation organized and validly existing under the laws of the United States
of America, any State thereof or the District of Columbia and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual payment of
the principal of and interest on all the Securities and the performance or
observance of every covenant of this Indenture on the part of the Company to
be performed or observed;
(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;
(3) if, as a result of any such consolidation or merger or such
conveyance or transfer, properties or assets of the Company would become
subject to a Lien which would not be permitted by this Indenture, the Company
or such successor Corporation or Person, as the case may be, shall take such
steps as shall be
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necessary effectively to secure the Securities equally and ratably
with (or, at the option of the Company, prior to) all Indebtedness
secured thereby; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance or transfer and such supplemental
indenture comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been met.
SECTION 802. Successor Corporation Substituted.
Upon any consolidation or merger or any conveyance or transfer of the
properties and assets of the Company substantially as an entirety in accordance
with Section 801, the successor Corporation formed by such consolidation or into
which the Company is merged or to which such conveyance or transfer 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
Corporation had been named as the Company herein; provided, however, that no
such conveyance or transfer shall have the effect of releasing the Person named
as the "Company" in the first paragraph of this instrument or any successor
Corporation which shall theretofore have become such in the manner prescribed in
this Article from its liability as obligor and maker on any of the Securities.
SECTION 803. Limitation on Lease of Properties as Entity.
The Company shall not lease its properties and assets substantially as
an entirety to any Person.
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 Corporation to the
Company and the assumption by any
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such successor of the covenants of the Company herein and in the
Securities; or
(2) to add to the covenants of the Company for the benefit
of the Holders, or to surrender any right or power herein conferred
upon the Company; or
(3) to secure the Securities pursuant to the requirements of
Section 1005 or otherwise; or
(4) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities; or
(5) to add any additional Events of Default; or
(6) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action
pursuant to this Clause (6) shall not adversely affect the interests
of the Holders in any material respect.
The Trustee shall give notice to the Holders affected by any such
supplemental indenture as provided in Section 106. Such notice shall describe
the changes effected by such supplemental indenture.
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, by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture. The
Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities affected by such waiver, by Act of said Holders delivered
to the Company and the Trustee, may waive compliance by the Company with any
provision of this Indenture, any supplemental indenture or the Securities,
except a default in the payment of the principal of or interest on any Security.
However, no such supplemental indenture or waiver shall, without the consent of
the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Security,
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or reduce the principal amount thereof or the rate of interest thereon, or
change the place of payment where, or the coin or currency in which, any
Security or interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the Stated Maturity
thereof, or
(2) reduce the percentage in aggregate principal amount of the
Outstanding Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1009, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the 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 to the effect that the execution of such supplemental
indenture is authorized or permitted by this Indenture and, assuming due
authorization, execution and delivery by the Trustee, that such supplemental
indenture will constitute a valid and legally binding obligation of the Company,
enforceable in accordance with its terms, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting
the enforcement of creditors' rights and to general equity principles. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of
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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.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal and Interest.
The Company will duly and punctually pay the principal of and interest
on the Securities in accordance with the terms of the Securities and this
Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, The City of New
York an office or agency where Securities may be presented or surrendered for
payment, where Securities may be surrendered for registration of transfer or
exchange, and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company shall fail to maintain any
such required office or agency or shall 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 of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
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The Company may also from time to time designate one or more other
offices or agencies (in or outside the Borough of Manhattan, The City of New
York) where the Securities 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 Borough of Manhattan,
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, it will,
on or before each due date of the principal of or interest on any of the
Securities, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal 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, it will, on
or prior to (and if on, then before 11:00 a.m. (New York City time)) each due
date of the principal of or interest on any Securities, deposit with a Paying
Agent a sum sufficient (in immediately available funds, if payment is made on
the due date) to pay the principal or interest so becoming due, such sum to be
held in trust for the benefit of the Persons entitled to such principal 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 other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of or
interest on Securities 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) in the making of any payment of principal
or interest on the Securities; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee,
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forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same 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 received
by the Trustee in respect of U.S. Government Obligations deposited with the
Trustee pursuant to Section 401, 403 or 1007, or then held by the Company, in
trust for the payment of the principal of or interest on any Security and
remaining unclaimed for two years (less a day) after such principal 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 a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in the Borough of Manhattan, The City of New York,
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. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
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SECTION 1005. Limitations on Liens and Encumbrances.
So long as there are Securities Outstanding:
(a) The Company will not itself, nor will it permit any Subsidiary to,
create, assume or incur any Lien (except any existing on the date hereof) upon
any of its or their Principal Properties, or any interest it or they may have
therein, whether owned at the date hereof or hereafter acquired (unless, in the
case of any Lien upon any Principal Property of any Subsidiary, all obligations
and Indebtedness thereby secured are held by the Company or a wholly owned
Subsidiary) as security for any Indebtedness without making effective provision,
and the Company covenants that in any such case effective provision will be
made, whereby the Securities (either alone or together with all or any part of
any other Indebtedness of the Company) shall be secured by such Lien equally and
ratably (or, at the option of the Company, prior to) with any and all other
obligations and Indebtedness thereby secured; provided, however, that the
foregoing restriction shall not apply to:
(1) Liens upon any property or assets owned by any
Subsidiary existing on the date on which such Subsidiary became a
Subsidiary;
(2) Liens on any property or assets existing at the time of
their acquisition and Liens on any property or assets acquired,
constructed or improved which are created contemporaneously with or
within 180 days after (or created pursuant to financing arrangements,
a firm commitment for which is obtained within 180 days after) the
completion of such acquisition, improvement or construction to secure
or provide for payment of the purchase price of property or assets
acquired or the cost of such construction or improvement, including
Liens arising in connection with cross-border or defeased lease
arrangements; if (i) such Lien shall be limited to the property so
acquired or constructed or to the improvements so made, (ii) the
amount of the obligations or Indebtedness secured by such Lien shall
not be increased after the date of the acquisition of such property or
the completion of such improvements or construction except to the
extent additional construction or improvements shall be made to such
property after the date of such acquisition or the making of such
improvements or construction, and (iii) in each instance where the
obligation or Indebtedness secured by such Lien shall constitute an
obligation or Indebtedness of, or is assumed by, the Company or such
Subsidiary, the principal amount of the obligation or Indebtedness
secured by such Lien shall not exceed 100% of the cost or fair value
(as determined in good faith by the Board of Directors),
-54-
<PAGE> 61
whichever shall be lower, of the property, construction or improvements at the
time of the acquisition or completion thereof;
(3) Liens for taxes or assessments or governmental charges or levies
not then due and delinquent or the validity of which shall be contested in
good faith; and materialmen's, mechanics', carriers', workmen's, repairmen's,
landlords' or other like Liens securing obligations not overdue or which shall
be contested in good faith, or deposits to obtain the release of such Liens;
(4) pledges or deposits to secure public or statutory obligations or
to secure payment of workmen's compensation or to secure performance in
connection with tenders, leases of real property, bids or contracts or to
secure (or in lieu of) surety or appeal bonds and pledges or deposits made in
the ordinary course of business for similar purposes;
(5) any lease, regardless of the manner in which such lease shall be
treated for accounting or tax purposes or any other purpose or any filing of
or agreement to file any financing statement under the Uniform Commercial Code
of any jurisdiction in respect of such lease;
(6) Liens to secure payments under any contract or statute, or to
secure any Indebtedness incurred in financing the acquisition, construction or
improvement of property subject thereto, including Liens on, and created or
arising in connection with the financing of the acquisition, construction or
improvement of, any facility used or to be used in the business of the Company
or any Subsidiary through the issuance of obligations by a state or local
governmental unit;
(7) easements or similar encumbrances, the existence of which do not
materially impair the use of the Principal Property subject thereto for the
purposes for which it is held or was acquired;
(8) Liens arising out of any final judgment for the payment of money
aggregating not in excess of $10,000,000; or Liens arising out of any final
judgment for the payment of money provided such judgment is being contested in
good faith;
(9) Liens on Timberlands in connection with any arrangement under
which the Company or a Subsidiary is obligated to cut or pay for timber in
order to provide the Lienholder with a specified amount of money, however
determined;
-55-
<PAGE> 62
(10) Liens created or assumed in the ordinary course of the business
of exploring for, developing or producing oil, gas or other minerals
(including borrowings in connection therewith) on, or any interest in, or on
any proceeds from the sale of, property acquired for such purposes, production
therefrom (including the proceeds thereof), or material or equipment located
thereon; and
(11) Liens to extend, renew or replace any Liens referred to in
Clauses (1) through (10) or this Clause (11) of this Subsection 1005(a) or any
Lien existing on the date hereof.
(b) Notwithstanding the provisions of Subsection (a) above, the
Company or any Subsidiary may create, assume or incur, or suffer to be created,
assumed or incurred any Lien which would otherwise be subject to the foregoing
restriction, provided that at no time shall the aggregate amount of all
outstanding obligations and Indebtedness secured by Liens which, but for this
Subsection (b), would be prohibited by this Section 1005, plus the aggregate
amount of Attributable Debt in respect of any then existing leases described in
Section 1006 (other than any such leases of property to the extent that the cash
portion of the net proceeds of the sale of such property shall have been applied
in compliance with Section 1006(b)), exceed 10% of Consolidated Net Tangible
Assets at the end of the next preceding fiscal year of the Company.
SECTION 1006. Limitations on Sale and Leaseback Transactions.
So long as there are Securities Outstanding, the Company will not, and
will not permit any Subsidiary to, directly or indirectly, sell or transfer
(other than to the Company or a Subsidiary) any Principal Property (other than a
Principal Property sold or transferred to an industrial development corporation
or state or local governmental unit in connection with a revenue or pollution
control financing) now owned or hereafter acquired with the intention that the
Company or any Subsidiary shall take back a lease thereof (other than a lease
for a term of not more than three years, a lease entered into solely for tax
purposes or a cross-border or defeased lease arrangement) unless (a) the
proceeds of such sale shall at least be equal to the fair value (as determined
in good faith by the Board of Directors) of such Principal Property, and either
(b) an amount equal to the cash portion of the net proceeds of such sale shall
be applied within 180 days either before or after the effective date of any such
transaction (i) to the retirement of Funded Indebtedness (other than any thereof
owed to the Company or any Subsidiary) or (ii) to the purchase of property,
facilities or equipment (other than the property, facilities or equipment
involved in such sale) having a value at least equal to the cash portion of the
net proceeds of such sale, or (c) the property, facilities or equipment involved
in
-56-
<PAGE> 63
such sale could have been subjected to a Lien to secure Indebtedness in a
principal amount equal to the aggregate amount of Attributable Debt in respect
of such sale without equally and ratably securing the Securities pursuant to
Section 1005.
SECTION 1007. Defeasance of Certain Obligations.
The Company may omit to comply with any term, provision or condition
set forth in Section 1005 or 1006 with respect to the Securities, provided that
the following conditions shall have been satisfied:
(1) With reference to this Section 1007, the Company has deposited or
caused to be irrevocably deposited with the Trustee as trust funds in trust,
specifically pledged as security for, and dedicated solely to, the benefit of
the Holders of the Securities, (i) money in an amount, or (ii) non-callable
U.S. Government Obligations which through the payment of interest and
principal in respect thereof in accordance with their terms will provide not
later than one day before the due date of any payment, money in an amount, or
(iii) a combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent certified public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge
the principal of and each installment of interest on the Outstanding
Securities on the Stated Maturity of such principal or installment of
interest;
(2) Such deposit shall not, as specified in an Opinion of Counsel,
cause the Trustee with respect to the Securities to have a conflicting
interest as defined in Section 608 and for purposes of the Trust Indenture Act
with respect to the Securities;
(3) Such deposit will 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;
(4) No Event of Default or event which with notice or lapse of time
would become an Event of Default with respect to the Securities shall have
occurred and be continuing on the date of such deposit;
(5) The Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that Holders of the Securities will not recognize
income, gain or loss for Federal income tax purposes as a result of such
deposit and defeasance of certain obligations and will be subject to Federal
income tax
-57-
<PAGE> 64
on the same amount and in the same manner and at the same times, as would have
been the case if such deposit and defeasance had not occurred; and
(6) 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 defeasance contemplated by this Section have been
met.
SECTION 1008. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after each
December 31 following the date hereof, a written statement signed by the
Chairman of the Board and Chief Executive Officer, the President or a Vice
President and by the Treasurer, an Assistant Treasurer, the Controller or an
Assistant Controller of the Company stating, as to each signer thereof, that
(1) a review of the activities of the Company during such year and of
performance under this Indenture has been made under his supervision, and
(2) to the best of his 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 him and the nature and status thereof.
SECTION 1009. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1005 and 1006 if before the
time for such compliance the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such term, provision or condition, but no such waiver shall extend to or affect
such term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
-------------------------
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an
-58-
<PAGE> 65
original, but all such counterparts shall together constitute but one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the date first above written.
POTLATCH CORPORATION
By ___________________________
Gerald L. Zuehlke
Treasurer
Attest:
___________________________
Betty R. Fleshman
Secretary
FIRST TRUST OF CALIFORNIA,
NATIONAL ASSOCIATION,
as Trustee
By ___________________________
Attest:
___________________________
-59-
<PAGE> 1
Exhibit 4.2
Form of Face of Security.
"Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to the Company
(as defined below) or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede & Co. or
in such other name as is requested by an authorized representative of DTC (and
any payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein."
POTLATCH CORPORATION
____% Debenture Due ____
CUSIP ________
No. __________ $________
Potlatch Corporation, a corporation duly organized and
existing under the laws of Delaware (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to ________________, or registered
assigns, the principal sum of ________________ Dollars on _________, ____, and
to pay interest thereon from ______ __, ____ or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, semiannually
on ________ and ______ in each year, commencing ________, 1996, at the rate of
___% per annum, until the principal hereof is paid or made available for
payment. The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the ________ or ______ (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for ("Defaulted Interest")
will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities not less
than 10 days prior to such Special Record Date, or be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed,
<PAGE> 2
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture. The principal of and interest on this Security
will be payable (i) in the case this Security is a Global Security registered
in the name of a Depositary or its nominee, to such Depositary or such nominee
by transfer to an account maintained by the payee located in the United States
and (ii) in the case this Security is in definitive registered form, to the
person in whose name the Security is registered at the office or agency of the
Company maintained for that purpose in the Borough of Manhattan, The City of
New York, in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts;
provided, however, that, except with respect to a Global Security, at the
option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
Dated:
POTLATCH CORPORATION
By_____________________________________
Attest:
_______________________________
Form of Reverse of Security.
This Security is one of a duly authorized issue of Securities
of the Company designated as its __% Debentures Due
<PAGE> 3
____ (herein called the "Securities"), limited in aggregate principal amount to
$100,000,000, issued and to be issued under an Indenture, dated as of ______
__, 199_ (herein called the "Indenture"), between the Company and First Trust
of California, National Association, as Trustee (herein called the "Trustee",
which term includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for
a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered.
If an Event of Default shall occur and be continuing, the
principal of all the Securities may be declared due and payable in the manner
and with the effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture,
the Holder of this Security shall not have the right to institute any
proceeding with respect to the Indenture or for the appointment of a receiver
or trustee or for any other remedy thereunder, unless such Holder shall have
previously given the Trustee written notice of a continuing Event of Default,
the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities shall have made written request to the Trustee and
offered the Trustee reasonable indemnity, the Trustee shall not have received
from the Holders of a majority in aggregate principal amount of the Outstanding
Securities a direction inconsistent with such request, and the Trustee shall
have failed to institute any such proceeding for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Security for the enforcement of any
payment of principal hereof or any interest hereon on or after the respective
due dates expressed herein.
The Indenture contains provisions for defeasance at any time of
(a) the entire obligations of the Company on this Debenture and, with certain
exceptions, all of the provisions of the Indenture as it relates to this
Debenture and (b) certain restrictive covenants in the Indenture, upon
compliance by the Company with certain conditions set forth therein.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of a majority in aggregate principal amount of the Securities at
the time Outstanding. The Indenture also contains provisions permitting the
Holders of specified percentages in aggregate principal amount of the
Securities at the time Outstanding, on behalf of the Holders of all the
Securities, to waive compliance
<PAGE> 4
by the Company with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registrable in
the Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in the Borough of Manhattan,
The City of New York, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Securities, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities are issuable only in registered form without
coupons in minimum denominations of $100,000 and integral multiples of $1,000
in excess thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Securities are exchangeable for a like aggregate
principal amount of Securities of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
<PAGE> 5
Form of Trustee's Certificate of Authentication.
This is one of the Securities referred to in the
within-mentioned Indenture.
FIRST TRUST OF CALIFORNIA,
NATIONAL ASSOCIATION,
as Trustee
By_____________________________________
Authorized Officer
<PAGE> 1
Exhibit 5.1
[PILLSBURY MADISON & SUTRO LETTERHEAD]
December 7, 1995
Potlatch Corporation
One Maritime Plaza, 24th Floor
San Francisco, CA 94111
Re: Potlatch Corporation
Registration Statement on Form S-3
Ladies and Gentlemen:
We understand that Potlatch Corporation (the "Company") is filing this
date with the Securities and Exchange Commission under the Securities Act of
1933, as amended, a Registration Statement relating to the sale of $100,000,000
aggregate principal amount of the Company's debentures (the "Debentures"), to
be issued under an indenture (the "Indenture") to be entered into between the
Company and First Trust of California, National Association, as Trustee, in
substantially the form filed as Exhibit 4.1 to the Registration Statement.
Please be advised that, in our opinion, the Debentures, when duly authorized
and executed by the Company and authenticated by the Trustee, all in accordance
with the Indenture, and when delivered to and paid for by the purchasers
thereof, will be legally issued and binding obligations of the Company.
We hereby consent to the use of this opinion in connection with the
filing of the Registration Statement and to the reference to our firm under the
caption "Legal Matters" in the related Prospectus.
Very truly yours,
PILLSBURY MADISON & SUTRO LLP
<PAGE> 1
EXHIBIT 12.1
POTLATCH CORPORATION
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
---------------------------------------------------- ------------------
(IN THOUSANDS, EXCEPT RATIOS) 1990 1991 1992 1993 1994 1994 1995
- ------------------------------ -------- -------- -------- -------- -------- ------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings before taxes on
income...................... $152,338 $ 85,195 $124,614 $ 65,004 $ 75,961 $35,371 $126,697
Add:
Interest expense............ 30,775 28,882 34,902 46,230 51,137 38,167 36,203
Rental expense factor(1).... 1,724 2,014 2,303 2,576 2,588 1,993 1,874
Discount and loan expense
amortization.............. 1,145 480 605 600 585 439 440
-------- -------- -------- -------- -------- ------- --------
Earnings available for fixed
charges..................... $185,982 $116,571 $162,424 $114,410 $130,271 $75,970 $165,214
======== ======== ======== ======== ======== ======= ========
Fixed charges:
Interest expense............ $ 30,775 $ 28,882 $ 34,902 $ 46,230 $ 51,137 $38,167 $ 36,203
Capitalized interest........ 5,446 14,375 16,581 6,384 2,799 2,265 2,536
Rental expense factor(1).... 1,724 2,014 2,303 2,576 2,588 1,993 1,874
Discount and loan expense
amortization.............. 1,145 480 605 600 585 439 440
-------- -------- -------- -------- -------- ------- --------
Total fixed charges........... $ 39,090 $ 45,751 $ 54,391 $ 55,790 $ 57,109 $42,864 $ 41,053
======== ======== ======== ======== ======== ======= ========
Ratio of earnings to fixed
charges..................... 4.8x 2.5x 3.0x 2.1x 2.3x 1.8 x 4.0x
</TABLE>
- ---------------
(1) One-third of total rent expense.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors
Potlatch Corporation:
We consent to the incorporation by reference in the registration statement on
Form S-3 of Potlatch Corporation and consolidated subsidiaries of our report
dated January 25, 1995, appearing in the Annual Report on Form 10-K of Potlatch
Corporation and consolidated subsidiaries for the year end December 31, 1994 and
to the references to our firm under the headings "Selected Historical Financial
Information" and "Experts" in the prospectus. Our report refers to changes made
in 1993 to the Company's method of accounting for income taxes, postretirement
benefits other than pensions and postemployment benefits.
KPMG PEAT MARWICK LLP
Portland, Oregon
December 7, 1995
II-4
<PAGE> 1
EXHIBIT 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
I, the undersigned, do hereby make, constitute and appoint
Betty R. Fleshman, Ralph M. Davisson and Sandra T. Powell, and each of them, my
attorneys-in-fact and agents, each with full power of substitution and
resubstitution, for me and in my name, place and stead, to execute for me and in
my behalf in each or any one of my offices and capacities with Potlatch
Corporation as shown below, the Registration Statement on Form S-3 which
Potlatch Corporation contemplates filing with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, relating to the
issuance by Potlatch Corporation of up to $100 million aggregate principal
amount of its debt securities, and any and all amendments to said Registration
Statement, including post-effective amendments, and to file the same with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting to said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as the undersigned might or could do in person, hereby ratifying,
approving and confirming all that each of the said attorneys-in-fact and agents
or their substitutes may lawfully do or cause to be done by virtue of these
presents.
IN WITNESS WHEREOF, I have executed these presents as of this
7th day of December, 1995.
George E. Pfautsch
---------------------------------------
Title: Senior Vice President, Finance &
Chief Financial Officer
--------------------------------
<PAGE> 2
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
I, the undersigned, do hereby make, constitute and appoint
Betty R. Fleshman, Ralph M. Davisson and Sandra T. Powell, and each of them, my
attorneys-in-fact and agents, each with full power of substitution and
resubstitution, for me and in my name, place and stead, to execute for me and in
my behalf in each or any one of my offices and capacities with Potlatch
Corporation as shown below, the Registration Statement on Form S-3 which
Potlatch Corporation contemplates filing with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, relating to the
issuance by Potlatch Corporation of up to $100 million aggregate principal
amount of its debt securities, and any and all amendments to said Registration
Statement, including post-effective amendments, and to file the same with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting to said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as the undersigned might or could do in person, hereby ratifying,
approving and confirming all that each of the said attorneys-in-fact and agents
or their substitutes may lawfully do or cause to be done by virtue of these
presents.
IN WITNESS WHEREOF, I have executed these presents as of this
7th day of December, 1995.
Terry L. Carter
---------------------------------------
Title: Controller
---------------------------------
<PAGE> 3
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
I, the undersigned, do hereby make, constitute and appoint
Betty R. Fleshman, Ralph M. Davisson and Sandra T. Powell, and each of them, my
attorneys-in-fact and agents, each with full power of substitution and
resubstitution, for me and in my name, place and stead, to execute for me and in
my behalf in each or any one of my offices and capacities with Potlatch
Corporation as shown below, the Registration Statement on Form S-3 which
Potlatch Corporation contemplates filing with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, relating to the
issuance by Potlatch Corporation of up to $100 million aggregate principal
amount of its debt securities, and any and all amendments to said Registration
Statement, including post-effective amendments, and to file the same with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting to said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as the undersigned might or could do in person, hereby ratifying,
approving and confirming all that each of the said attorneys-in-fact and agents
or their substitutes may lawfully do or cause to be done by virtue of these
presents.
IN WITNESS WHEREOF, I have executed these presents as of this
7th day of December, 1995.
Richard A. Clarke
------------------------------
Title: Director
------------------------
<PAGE> 4
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
I, the undersigned, do hereby make, constitute and appoint
Betty R. Fleshman, Ralph M. Davisson and Sandra T. Powell, and each of them, my
attorneys-in-fact and agents, each with full power of substitution and
resubstitution, for me and in my name, place and stead, to execute for me and in
my behalf in each or any one of my offices and capacities with Potlatch
Corporation as shown below, the Registration Statement on Form S-3 which
Potlatch Corporation contemplates filing with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, relating to the
issuance by Potlatch Corporation of up to $100 million aggregate principal
amount of its debt securities, and any and all amendments to said Registration
Statement, including post-effective amendments, and to file the same with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting to said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as the undersigned might or could do in person, hereby ratifying,
approving and confirming all that each of the said attorneys-in-fact and agents
or their substitutes may lawfully do or cause to be done by virtue of these
presents.
IN WITNESS WHEREOF, I have executed these presents as of this
7th day of December, 1995.
Allen F. Jacobson
------------------------------
Title: Director
------------------------
<PAGE> 5
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
I, the undersigned, do hereby make, constitute and appoint
Betty R. Fleshman, Ralph M. Davisson and Sandra T. Powell, and each of them, my
attorneys-in-fact and agents, each with full power of substitution and
resubstitution, for me and in my name, place and stead, to execute for me and in
my behalf in each or any one of my offices and capacities with Potlatch
Corporation as shown below, the Registration Statement on Form S-3 which
Potlatch Corporation contemplates filing with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, relating to the
issuance by Potlatch Corporation of up to $100 million aggregate principal
amount of its debt securities, and any and all amendments to said Registration
Statement, including post-effective amendments, and to file the same with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting to said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as the undersigned might or could do in person, hereby ratifying,
approving and confirming all that each of the said attorneys-in-fact and agents
or their substitutes may lawfully do or cause to be done by virtue of these
presents.
IN WITNESS WHEREOF, I have executed these presents as of this
7th day of December, 1995.
George F. Jewett, Jr.
------------------------------
Title: Director
------------------------
<PAGE> 6
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
I, the undersigned, do hereby make, constitute and appoint
Betty R. Fleshman, Ralph M. Davisson and Sandra T. Powell, and each of them, my
attorneys-in-fact and agents, each with full power of substitution and
resubstitution, for me and in my name, place and stead, to execute for me and in
my behalf in each or any one of my offices and capacities with Potlatch
Corporation as shown below, the Registration Statement on Form S-3 which
Potlatch Corporation contemplates filing with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, relating to the
issuance by Potlatch Corporation of up to $100 million aggregate principal
amount of its debt securities, and any and all amendments to said Registration
Statement, including post-effective amendments, and to file the same with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting to said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as the undersigned might or could do in person, hereby ratifying,
approving and confirming all that each of the said attorneys-in-fact and agents
or their substitutes may lawfully do or cause to be done by virtue of these
presents.
IN WITNESS WHEREOF, I have executed these presents as of this
7th day of December, 1995.
Richard B. Madden
------------------------------
Title: Director
------------------------
<PAGE> 7
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
I, the undersigned, do hereby make, constitute and appoint
Betty R. Fleshman, Ralph M. Davisson and Sandra T. Powell, and each of them, my
attorneys-in-fact and agents, each with full power of substitution and
resubstitution, for me and in my name, place and stead, to execute for me and in
my behalf in each or any one of my offices and capacities with Potlatch
Corporation as shown below, the Registration Statement on Form S-3 which
Potlatch Corporation contemplates filing with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, relating to the
issuance by Potlatch Corporation of up to $100 million aggregate principal
amount of its debt securities, and any and all amendments to said Registration
Statement, including post-effective amendments, and to file the same with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting to said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as the undersigned might or could do in person, hereby ratifying,
approving and confirming all that each of the said attorneys-in-fact and agents
or their substitutes may lawfully do or cause to be done by virtue of these
presents.
IN WITNESS WHEREOF, I have executed these presents as of this
7th day of December, 1995.
Richard M. Morrow
------------------------------
Title: Director
------------------------
<PAGE> 8
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
I, the undersigned, do hereby make, constitute and appoint
Betty R. Fleshman, Ralph M. Davisson and Sandra T. Powell, and each of them, my
attorneys-in-fact and agents, each with full power of substitution and
resubstitution, for me and in my name, place and stead, to execute for me and in
my behalf in each or any one of my offices and capacities with Potlatch
Corporation as shown below, the Registration Statement on Form S-3 which
Potlatch Corporation contemplates filing with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, relating to the
issuance by Potlatch Corporation of up to $100 million aggregate principal
amount of its debt securities, and any and all amendments to said Registration
Statement, including post-effective amendments, and to file the same with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting to said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as the undersigned might or could do in person, hereby ratifying,
approving and confirming all that each of the said attorneys-in-fact and agents
or their substitutes may lawfully do or cause to be done by virtue of these
presents.
IN WITNESS WHEREOF, I have executed these presents as of this
7th day of December, 1995.
Vivian W. Piasecki
------------------------------
Title: Director
------------------------
<PAGE> 9
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
I, the undersigned, do hereby make, constitute and appoint
Betty R. Fleshman, Ralph M. Davisson and Sandra T. Powell, and each of them, my
attorneys-in-fact and agents, each with full power of substitution and
resubstitution, for me and in my name, place and stead, to execute for me and in
my behalf in each or any one of my offices and capacities with Potlatch
Corporation as shown below, the Registration Statement on Form S-3 which
Potlatch Corporation contemplates filing with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, relating to the
issuance by Potlatch Corporation of up to $100 million aggregate principal
amount of its debt securities, and any and all amendments to said Registration
Statement, including post-effective amendments, and to file the same with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting to said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as the undersigned might or could do in person, hereby ratifying,
approving and confirming all that each of the said attorneys-in-fact and agents
or their substitutes may lawfully do or cause to be done by virtue of these
presents.
IN WITNESS WHEREOF, I have executed these presents as of this
7th day of December, 1995.
Toni Rembe
------------------------------
Title: Director
------------------------
<PAGE> 10
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
I, the undersigned, do hereby make, constitute and appoint
Betty R. Fleshman, Ralph M. Davisson and Sandra T. Powell, and each of them, my
attorneys-in-fact and agents, each with full power of substitution and
resubstitution, for me and in my name, place and stead, to execute for me and in
my behalf in each or any one of my offices and capacities with Potlatch
Corporation as shown below, the Registration Statement on Form S-3 which
Potlatch Corporation contemplates filing with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, relating to the
issuance by Potlatch Corporation of up to $100 million aggregate principal
amount of its debt securities, and any and all amendments to said Registration
Statement, including post-effective amendments, and to file the same with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting to said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as the undersigned might or could do in person, hereby ratifying,
approving and confirming all that each of the said attorneys-in-fact and agents
or their substitutes may lawfully do or cause to be done by virtue of these
presents.
IN WITNESS WHEREOF, I have executed these presents as of this
7th day of December, 1995.
John M. Richards
------------------------------
Title: Director
------------------------
<PAGE> 11
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
I, the undersigned, do hereby make, constitute and appoint
Betty R. Fleshman, Ralph M. Davisson and Sandra T. Powell, and each of them, my
attorneys-in-fact and agents, each with full power of substitution and
resubstitution, for me and in my name, place and stead, to execute for me and in
my behalf in each or any one of my offices and capacities with Potlatch
Corporation as shown below, the Registration Statement on Form S-3 which
Potlatch Corporation contemplates filing with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, relating to the
issuance by Potlatch Corporation of up to $100 million aggregate principal
amount of its debt securities, and any and all amendments to said Registration
Statement, including post-effective amendments, and to file the same with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting to said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as the undersigned might or could do in person, hereby ratifying,
approving and confirming all that each of the said attorneys-in-fact and agents
or their substitutes may lawfully do or cause to be done by virtue of these
presents.
IN WITNESS WHEREOF, I have executed these presents as of this
7th day of December, 1995.
Reuben F. Richards
------------------------------
Title: Director
------------------------
<PAGE> 12
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
I, the undersigned, do hereby make, constitute and appoint
Betty R. Fleshman, Ralph M. Davisson and Sandra T. Powell, and each of them, my
attorneys-in-fact and agents, each with full power of substitution and
resubstitution, for me and in my name, place and stead, to execute for me and in
my behalf in each or any one of my offices and capacities with Potlatch
Corporation as shown below, the Registration Statement on Form S-3 which
Potlatch Corporation contemplates filing with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, relating to the
issuance by Potlatch Corporation of up to $100 million aggregate principal
amount of its debt securities, and any and all amendments to said Registration
Statement, including post-effective amendments, and to file the same with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting to said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as the undersigned might or could do in person, hereby ratifying,
approving and confirming all that each of the said attorneys-in-fact and agents
or their substitutes may lawfully do or cause to be done by virtue of these
presents.
IN WITNESS WHEREOF, I have executed these presents as of this
7th day of December, 1995.
Richard M. Rosenberg
------------------------------
Title: Director
------------------------
<PAGE> 13
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
I, the undersigned, do hereby make, constitute and appoint
Betty R. Fleshman, Ralph M. Davisson and Sandra T. Powell, and each of them, my
attorneys-in-fact and agents, each with full power of substitution and
resubstitution, for me and in my name, place and stead, to execute for me and in
my behalf in each or any one of my offices and capacities with Potlatch
Corporation as shown below, the Registration Statement on Form S-3 which
Potlatch Corporation contemplates filing with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, relating to the
issuance by Potlatch Corporation of up to $100 million aggregate principal
amount of its debt securities, and any and all amendments to said Registration
Statement, including post-effective amendments, and to file the same with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting to said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as the undersigned might or could do in person, hereby ratifying,
approving and confirming all that each of the said attorneys-in-fact and agents
or their substitutes may lawfully do or cause to be done by virtue of these
presents.
IN WITNESS WHEREOF, I have executed these presents as of this
7th day of December, 1995.
Robert G. Schwartz
------------------------------
Title: Director
------------------------
<PAGE> 14
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
I, the undersigned, do hereby make, constitute and appoint
Betty R. Fleshman, Ralph M. Davisson and Sandra T. Powell, and each of them, my
attorneys-in-fact and agents, each with full power of substitution and
resubstitution, for me and in my name, place and stead, to execute for me and in
my behalf in each or any one of my offices and capacities with Potlatch
Corporation as shown below, the Registration Statement on Form S-3 which
Potlatch Corporation contemplates filing with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, relating to the
issuance by Potlatch Corporation of up to $100 million aggregate principal
amount of its debt securities, and any and all amendments to said Registration
Statement, including post-effective amendments, and to file the same with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting to said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as the undersigned might or could do in person, hereby ratifying,
approving and confirming all that each of the said attorneys-in-fact and agents
or their substitutes may lawfully do or cause to be done by virtue of these
presents.
IN WITNESS WHEREOF, I have executed these presents as of this
7th day of December, 1995.
Charles R. Weaver
------------------------------
Title: Director
------------------------
<PAGE> 15
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
I, the undersigned, do hereby make, constitute and appoint
Betty R. Fleshman, Ralph M. Davisson and Sandra T. Powell, and each of them, my
attorneys-in-fact and agents, each with full power of substitution and
resubstitution, for me and in my name, place and stead, to execute for me and in
my behalf in each or any one of my offices and capacities with Potlatch
Corporation as shown below, the Registration Statement on Form S-3 which
Potlatch Corporation contemplates filing with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, relating to the
issuance by Potlatch Corporation of up to $100 million aggregate principal
amount of its debt securities, and any and all amendments to said Registration
Statement, including post-effective amendments, and to file the same with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting to said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as the undersigned might or could do in person, hereby ratifying,
approving and confirming all that each of the said attorneys-in-fact and agents
or their substitutes may lawfully do or cause to be done by virtue of these
presents.
IN WITNESS WHEREOF, I have executed these presents as of this
7th day of December, 1995.
Frederick T. Weyerhaeuser
------------------------------
Title: Director
------------------------
<PAGE> 16
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
I, the undersigned, do hereby make, constitute and appoint
Betty R. Fleshman, Ralph M. Davisson and Sandra T. Powell, and each of them, my
attorneys-in-fact and agents, each with full power of substitution and
resubstitution, for me and in my name, place and stead, to execute for me and in
my behalf in each or any one of my offices and capacities with Potlatch
Corporation as shown below, the Registration Statement on Form S-3 which
Potlatch Corporation contemplates filing with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, relating to the
issuance by Potlatch Corporation of up to $100 million aggregate principal
amount of its debt securities, and any and all amendments to said Registration
Statement, including post-effective amendments, and to file the same with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting to said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as the undersigned might or could do in person, hereby ratifying,
approving and confirming all that each of the said attorneys-in-fact and agents
or their substitutes may lawfully do or cause to be done by virtue of these
presents.
IN WITNESS WHEREOF, I have executed these presents as of this
7th day of December, 1995.
William T. Weyerhaeuser
------------------------------
Title: Director
------------------------
<PAGE> 1
EXHIBIT 25.1
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
FIRST TRUST OF CALIFORNIA, NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
United States 94-3160100
(State of Incorporation) (I.R.S. Employer Identification No.)
101 California Street, Suite 1150
San Francisco, California 94111
(Address of Principal Executive Offices) (Zip Code)
POTLATCH CORPORATION
(Exact name of obligor as specified in its charter)
DELAWARE
(State or other jurisdiction of Incorporation or organization)
82-0156045
(I.R.S. Employer Identification No.)
One Maritime Plaza
San Francisco, California 94111
(Address of principal executive offices and zip code)
% Debentures Due
(Title of the Indenture Securities)
<PAGE> 2
GENERAL
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.
Controller of the Currency
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes
2. AFFILIATIONS WITH OBLIGOR AND UNDERWRITERS. If the
obligor or any underwriter for the obligor is an affiliate of the
trustee, describe each such affiliation.
None
See Note following Item 16
Items 3-15 are not applicable because to the best of the Trustee's knowledge
the obligor is not in default under any Indenture for which the Trustee acts
as Trustee.
16. LIST OF EXHIBITS. List below all exhibits filed as a part of this
statement of eligibility and qualification.
Exhibit 1 - Articles of Association of First Trust of California,
National Association dated June 5, 1992. Incorporated herein
by reference to Exhibit 1 filed with Form T-1 statement,
Registration No. 33-50826
Exhibit 2 - Certificate of the Comptroller of Currency as to authority
of First Trust of California, National Association to
commence the business of banking. Incorporated herein by
reference to Exhibit 2 filed with Form T-1 Statement,
Registration No. 33-50826
Exhibit 3 - Authorization of the Comptroller of Currency granting First
Trust of California, National Association, the right to
exercise corporate trust powers. Incorporated herein by
reference to Exhibit 3 filed with Form T-1 Statement,
Registration No. 33-50826
<PAGE> 3
Exhibit 4 - By-Laws of First Trust of California, National Association,
dated June 15, 1992. Incorporated herein by reference to
Exhibit 4 filed with Form T-1 Statement, Registration No.
33-50826
Exhibit 5 - Not Applicable
Exhibit 6 - Consent of First Trust of California, National Association,
required by Section 321(b) of the Act. Incorporated herein
by reference to Exhibit 6 filed with Form T-1 Statement,
Registration No. 33-50826
Exhibit 7 - Report of Condition of First Trust of California, National
Association, as of the close of business on September 30,
1995 published pursuant to law or the requirements of its
supervising or examining authority attached
<PAGE> 4
NOTE
The answers to this statement insofar as such answers relate to what persons
have been underwriters for any securities of the obligor within three years
prior to the date of filing this statement, or what persons are owners of 10% or
more of the voting securities of the obligor, or affiliates, are based upon
information furnished to the trustee by the obligor. While the trustee has no
reason to doubt the accuracy of any such information, it cannot accept any
responsibility therefor.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee,
First Trust of California National Association, an Association organized and
existing under the laws of the United States, has duly caused this statement of
eligibility and qualification to be signed on its behalf by the undersigned
thereunto duly authorized, and its seal to be hereunto affixed and attested, all
in the City of San Francisco and State of California on the 29th. day of
November 1995.
FIRST TRUST OF CALIFORNIA NATIONAL ASSOCIATION
/s/ L. L. Lopes
-------------------------------------------
L. L. Lopes
Assistant Vice President
(SEAL)
/s/ Norma M. Laguerta
- ----------------------
Norma M. Laguerta
Assistant Secretary
<PAGE> 5
EXHIBIT 6
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939, the
undersigned, FIRST TRUST OF CALIFORNIA NATIONAL ASSOCIATION, hereby consents
that reports of examination of the undersigned by Federal, State, Territoral or
District authorities may be furnished by such authorities to the Securities and
Exchange Commission upon its request therefor.
Dated November 29, 1995
FIRST TRUST OF CALIFORNIA NATIONAL ASSOCIATION
/s/ L. L. Lopes
-------------------------------------
L. L. Lopes
Assistant Vice President
<PAGE> 6
FIRST TRUST OF CALIFORNIA, N.A. Call Date: 09/30/95 ST-BK: 61431 FFIEC 033
101 CALIFORNIA STREET, SUITE 1150 Vendor ID: D Cert: 33626 Page RC-1
SAN FRANCISCO, CA 94111
9
Transit Number: 91000020
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR SEPTEMBER 30, 1995
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC - BALANCE SHEET
<TABLE>
<CAPTION>
C200
Dollar Amounts in Thousands
- ---------------------------------------------------------------------------------------------------------------------------------
ASSETS
<S> <C> <C> <C> <C>
1. Cash and balances due from depository institutions (from Schedule RC-A): RCON
a. Noninterest-bearing balances and currency and coin (1)__________________________ 0081.. 81,190 1.a
b. Interest-bearing balances (2)____________________________________________________ 0071.. 0 1.b
2. Securities:
a. Held-to-maturity securities (from Schedule RC-B, column A)_______________________ 1754.. 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)_____________________ 1773.. 3,316 2.b
3. Federal funds sold and securities purchased under agreements to resell:
a. Federal funds sold_______________________________________________________________ 0276.. 0 3.a
b. Securities purchased under agreements to resell__________________________________ 0277.. 0 3.b
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income RCON
(from Schedule RC-C)___________________________ 2122.. 0 ...... 4.a
b. LESS: Allowance for loan and lease losses______ 3123.. 0 ...... 4.b
c. LESS: Allocated transfer risk reserve__________ 3128.. 0 ...... 4.c
d. Loans and leases, net of unearned income,
allowance, and reserve (item 4.a minus 4.b and 4.c)______________________________ 2125.. 0 4.d
5. Trading assets_______________________________________________________________________ 3545.. 0 5.
6. Premises and fixed assets (including capitalized leases)_____________________________ 2145.. 135 6.
7. Other real estate owned (from Schedule RC-M)_________________________________________ 2150.. 0 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)_______________________________________________________ 2130.. 0 8.
9. Customers' liability to this bank on acceptances outstanding_________________________ 2155.. 0 9.
10. Intangible assets (from Schedule RC-M)_______________________________________________ 2143.. 17,382 10.
11. Other assets (from Schedule RC-F)____________________________________________________ 2160.. 3,462 11.
12. Total assets (sum of items 1 through 11)_____________________________________________ 2170.. 105,485 12.
</TABLE>
- --------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE> 7
FIRST TRUST OF CALIFORNIA, N.A. Call Date: 09/30/95 ST-BK: 61431 FFIEC 033
101 CALIFORNIA STREET, SUITE 1150 Vendor ID: D Cert: 33626 Page RC-2
SAN FRANCISCO, CA 94111
Transit Number: 91000020 10
Schedule RC - Continued
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------------
LIABILITIES
<S> <C> <C> <C> <C>
13. Deposits:
a. In domestic offices (sum of totals of RCON
columns A and C from Schedule RC-E)______________________________________________ 2200.. 0 13.a
RCON
(1) Noninterest-bearing (1)_____________________ 6631.. 0 ...... 13.a.1
(2) Interest-bearing____________________________ 6636.. 0 ...... 13.a.2
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs____________________ ......
(1) Noninterest-bearing__________________________________________________________ ......
(2) Interest-bearing_____________________________________________________________ ......
14. Federal funds purchased and securities sold under agreements to repurchase:
a. Federal funds purchased__________________________________________________________ 0278.. 0 14.a
b. Securities sold under agreements to repurchase___________________________________ 0279.. 0 14.b
15. a. Demand notes issued to the U.S. Treasury_________________________________________ 2840.. 0 15.a
b. Trading liabilities______________________________________________________________ 3548.. 0 15.b
16. Other borrowed money:
a. With original maturity of one year or less_______________________________________ 2332.. 0 16.a
b. With original maturity of more than one year_____________________________________ 2333.. 0 16.b
17. Mortgage indebtedness and obligations under capitalized leases_______________________ 2910.. 0 17.
18. Bank's liability on acceptances executed and outstanding_____________________________ 2920.. 0 18.
19. Subordinated notes and debentures____________________________________________________ 3200.. 0 19.
20. Other liabilities (from Schedule RC-G)_______________________________________________ 2930.. 2,062 20.
21. Total liabilities (sum of items 13 through 20)_______________________________________ 2948.. 2,062 21.
22. Limited-life preferred stock and related surplus_____________________________________ 3282.. 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus________________________________________ 3838.. 0 23.
24. Common stock_________________________________________________________________________ 3230.. 1,000 24.
25. Surplus (exclude all surplus related to preferred stock)_____________________________ 3839.. 101,200 25.
a. Undivided profits and capital reserves___________________________________________ 3632.. 1,223 26.a
b. Net unrealized holding gains (losses) on available-for-sale securities___________ 8434.. 0 26.b
27. Cumulative foreign currency translation adjustments__________________________________ ......
28. Total equity capital (sum of items 23 through 27)____________________________________ 3210.. 103,423 28.
29. Total liabilities, limited-life preferred stock, and equity capital
(sum of items 21, 22, and 28)________________________________________________________ 3300.. 105,485 29.
</TABLE>
MEMORANDUM
TO BE REPORTED ONLY WITH THE MARCH REPORT OF CONDITION.
<TABLE>
<S> <C> <C> <C>
1. Indicate in the box at the right of the number of the statement below that
best describes the most comprehensive level of auditing work performed for
the bank by independent external auditors as of any date during
1994__________________________________________________________________________________ 6724.. N/A M.1
</TABLE>
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors (may
be required by state chartering authority)
5 = Review of the bank's financial statement by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- ---------------
Includes total demand deposits and noninterest-bearing time and savings
deposits.
