<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-3
FOR APPLICATIONS FOR QUALIFICATION OF INDENTURES UNDER THE
TRUST INDENTURE ACT OF 1939
UNITED PARCEL SERVICE OF AMERICA, INC.
--------------------------------------
(Name of Company)
55 GLENLAKE PARKWAY, N.E.
Atlanta, Georgia 30328
-----------------------
(Address of Principal Executive Offices)
SECURITIES TO BE ISSUED UNDER THE INDENTURE TO BE QUALIFIED
TITLE OF CLASS AMOUNT
-------------- ------
8 3/8 % Debentures due 2030 $700,000,000
APPROXIMATE DATE OF PROPOSED PUBLIC OFFERING: December 18, 1997.
NAME AND ADDRESS OF AGENT FOR SERVICE: Catherine Harrison, Esq., 55 Glenlake
Parkway, NE, Atlanta, Georgia 30328.
The Company hereby amends this application for qualification on such date
or dates as may be necessary to delay its effectiveness until (i) the 20th day
after the filing of a further amendment which specifically states that it shall
supersede this amendment, or (ii) such date as the Securities and Exchange
Commission, acting pursuant to Section 307(c) of the Act, may determine upon the
written request of the Company.
<PAGE>
GENERAL
-------
1. GENERAL INFORMATION
-------------------
(A) FORM OF ORGANIZATION: Corporation.
(B) STATE OR OTHER SOVEREIGN POWER UNDER THE LAWS OF WHICH ORGANIZED:
Delaware.
2. SECURITIES ACT EXEMPTION APPLICABLE.
-----------------------------------
United Parcel Service of America, Inc., a Delaware corporation (the
"Company"), is relying upon the exemption from the registration requirements of
the Securities Act of 1933, as amended (the "Securities Act"), provided by
Section 3(a)(9) thereunder, in connection with the Company's exchange offer as
described herein (the "Exchange Offer"). The Exchange Offer is being made by
the Company pursuant to its Offering Circular dated December 18, 1997 ("Offering
Circular"), and the related Letter of Transmittal and Notice of Guaranteed
Delivery of even date therewith, and consists of an offer to exchange the
Company's $700,000,000 8 3/8% Debentures due 2030 (the "New 2030 Debentures")
for the Company's outstanding $700,000,000 8 3/8% Debentures due 2020 (the "Old
2020 Debentures").
There have not been any sales of securities of the same class as the New
2030 Debentures or the Old 2020 Debentures by the Company, nor are there any
such other sales planned, by or through an underwriter at or about the time of
the Exchange Offer transaction.
The Company retained Deutsche Morgan Grenfell ("DMG") to advise the Company
as to the structure, process and financial matters related to the Exchange
Offer. DMG's services to the Company are limited solely to such advisory
services, and DMG will not, directly or indirectly, solicit the exchange of Old
2020 Debentures for New 2030 Debentures under the Exchange Offer or otherwise
make recommendations with respect to acceptance or rejection of the Exchange
Offer. In exchange for such advisory services, DMG will be paid a flat fee
which is not dependent upon the outcome of the transaction. DMG will not be
paid any commission or similar variable type of remuneration.
The Company also has retained D.F. King & Co., Inc. as the "Information
Agent" and Citibank, N.A. as the "Exchange Agent" in connection with the
Exchange Offer. The Information Agent and Exchange Agent will provide to
holders of Old 2020 Debentures only information otherwise contained in the
Offering Circular and general information regarding the mechanics of the
exchange process. The Exchange Agent will provide the actual acceptance and
exchange services with respect to the exchange of Old 2020 Debentures and New
2030 Debentures. Neither the Information Agent nor the Exchange Agent will
solicit exchanges in connection with the Exchange Offer and will not make
recommendations as to the acceptance or rejection of the Exchange Offer. Both
the Information Agent and Exchange Agent will be paid reasonable fees directly
by the Company for their services.
<PAGE>
There are no cash payments made or to be made by any holder of the
outstanding Old 2020 Debentures in connection with the Exchange Offer.
AFFILIATIONS
------------
3. AFFILIATES. Furnish a list or diagram of all affiliates of the Company and
----------
indicate the respective percentages of voting securities or other bases of
control.
WHOLLY-OWNED SUBSIDIARIES
- -------------------------
United Parcel Service Co.
United Parcel Service Deutschland Inc.
United Parcel Service General Services Co.
United Parcel Service, Inc.
United Parcel Service, Inc.
United Parcel Service, Inc. (Virginia)
United Parcel Service Oasis Supply Corporation
UPS Internet Services, Inc.
UPS Procurement Services, Inc.
UPS Professional Services, Inc.
UPS Customhouse Brokerage, Inc.
UPS International General Services Co.
UPS International, Inc.
UPS International Forwarding, Inc.
UPS of Ireland, Inc.
UPS of Argentina, Inc.
UPS of Brazil, Inc.
UPS of Portugal, Inc.
UPS of Norway, Inc.
United Parcel Service Espana Ltd.
United Parcel Service Italia, S.R.L.
UPS of China, Inc.
UPS Logistics Group, Inc.
UPS Truck Leasing, Inc.
UPS Worldwide Logistics, Inc.
Worldwide Dedicated Services, Inc.
Diversified Trimodal, Inc.
Roadnet Technologies, Inc.
SonicAir, Inc.
UPS Worldwide Forwarding, Inc.
UPICO Corporation.
UPS Aviation Services, Inc.
Merchants Parcel Delivery
Trailer Conditions, Inc.
II Morrow, Inc.
Red Arrow Bonded Messenger Corporation
UPS Air Leasing, Inc.
Avenair Corporation
Nevair Corporation
UPS Telecommunications, Inc.
UPS Properties, Inc.
E1 Paso Distribution Center, Inc. (One)
E1 Paso Distribution Center, Inc. (Two)
Tri-State, Distribution, Inc. (One)
Tri-State, Distribution, Inc. (Two)
<PAGE>
Tri-State, Distribution, Inc. (Three)
Tri-State, Distribution, Inc. (Four)
Tri-State, Distribution, Inc. (Five)
Vista Distribution Center, Inc. (One)
Vista Distribution Center. (Two)
Vista Distribution Center, Inc. (Three)
Vista Distribution Center, Inc. (Four)
Vista Distribution Center, Inc. (Five)
Upinsco, Inc.
Velleb, Inc.
Adi Realty Company
Alko Corporation
Bardale Company
Basplas Corporation
Brastock Corporation
Brookind Corporation
Buckroe Corporation
Burdence Corporation
Chasreal, Inc.
Cleve Company
Cova Corporation
Dakkel Corporation
Dalho Corporation
Darico, Inc.
Daven Corporation
Deerfield Corporation
Denado Corporation
Dullesport Corporation
Edison Corporation
Elsil Corporation
Evind Corporation
Fardak Corporation
Galanta Company
Kylou, Inc.
Labar Corporation
Lakefair Corporation
Mascester Company, Inc.
Maereal Company, Inc.
Mexalb Corporation
Minneagen Real Estate Company
Missjack Company
Montbill Corporation
Moroc Corporation
Newbany Corporation
Nubee, Inc.
Oshaon Corporation
Parkprop, Inc.
Penallen Corporation
Ralcar Corporation
Rockapar Corporation
Royoak, Incorporated
Sallad Corporation
Saluta Corporation
Saskan Corporation
Kacika Corporation
Socol Corporation
Solacal Company
Lacalos Corporation
Sophil Company
South Seventh Corporation
Stadiana, Inc.
Swanpor Corporation.
Temphis Corporation
Valacal Company
Verbal Corporation
Verlas Corporation
Willmanch Corporation
Wyoas Corporation
Wyld, Inc.
<PAGE>
INTERNATIONAL SUBSIDIARIES
- --------------------------
United Parcel Service Pty. Ltd.
UPS Pty. Ltd.
United Parcel Service Speditionsgesellschaft m.b.H.
UPS Transport GmbH
United Parcel Service (Bahrain) WLL
United Parcel Service Belgium N.V
United Parcel Service (Bermuda) Ltd
UPS DO Brasil & Cia
2855-8278 Quebec Inc.
724352 Ontario Inc.
United Parcel Service Canada Ltd.
United Parcel Service Cayman Islands Limited
UPS De San Jose, S.A.
UPS Denmark A/S
United Parcel Services Finland OY
United Parcel Service France S.N.C
Prost-Transports S.A. Speditionsgesellachaft gmbH
United Parcel Service Deutschland Inc.
UPS Air Cargo Service GmbH.
UPS Grundstuecksverwaltungs GmbH
UPS Transport GmbH
UPS Transport GmbH II
UPS Worldwide Logistics GmbH
UPS Parcel Delivery Service Limited
United Parcel Service CSTC Ireland Limited
United Parcel Service of Ireland Limited
United Parcel Service Italia, S.R.L.
United Parcel Service Co., Japan Branch
UPS Japan Limited
United Parcel Service Jersey Limited
United Parcel Service (M)Sdn. Bhd
United Parcel Service (Transport) Sdn. Bhd
United Parcel Service De Mexico S.A. De C.V
Prost-Transports Nederland B.V
United Parcel Service Nederland B.V
UPS Norge A/S
UPS of Norway, Inc., Oslo Branch
UPS of Portugal, Inc., Lisbon Branch
United Parcel Service Co., Singapore Branch
United Parcel Service Singapore PTE Lted
United Parcel Service Co., Korean Branch
Sociedad Iversora Sanrelman, S.A
United Parcel Service Espana Ltd. Y Compania, S.R.C
UPS Spain, S.L
United Parcel Service Sweden AB
United Parcel Service (Switzerland)
UPS International, Inc., Taiwan Branch
UPS Parcel Delivery Service Limited
Atexco (1991) Limited
Atlasair Limited
Carryfast Limited
IML Air Services Group Limited
United Parcel Service of America
UPS (UK) Limited
UPS Limited
UPS of America Limited
<PAGE>
MANAGEMENT AND CONTROL
----------------------
4. DIRECTORS AND EXECUTIVE OFFICERS. List the names and complete mailing
---------------------------------
addresses of all directors and executive officers of the applicant and all
persons chosen to become directors or executive officers. Indicate all offices
with the applicant held or to be held by each person named.
<TABLE>
<CAPTION>
NAME ADDRESS OFFICE
- ---------------------- ------------------ ------------------------------------
<S> <C> <C>
John W. Alden 55 Glenlake Pkwy. Vice Chairman, Senior Vice
Atlanta, GA 30328 President and Director
Robert J. Clanin 55 Glenlake Pkwy. Senior Vice President, Treasurer,
Atlanta, GA 30328 Chief Financial Officer and Director
James P. Kelly 55 Glenlake Pkwy. Chairman of the Board, Chief
Atlanta, GA 30328 Executive Officer and Director
Kenneth W. Lacy 55 Glenlake Pkwy. Senior Vice President
Atlanta, GA 30328
Joseph R. Moderow 55 Glenlake Pkwy. Senior Vice President, Secretary,
Atlanta, GA 30328 General Counsel and Director
Kent C. Nelson 55 Glenlake Pkwy. Director, Former Chairman of the
Atlanta, GA 30328 Board and Former Chief Executive
Officer
Joseph M. Pyne 55 Glenlake Pkwy. Senior Vice President
Atlanta, GA 30328
Michael L. Eskew 55 Glenlake Pkwy. Senior Vice President
Atlanta, GA 30328
Edward L. Schroeder 55 Glenlake Pkwy. Senior Vice President
Atlanta, GA 30328
Lea N. Soupata 55 Glenlake Pkwy. Senior Vice President
Atlanta, GA 30328
Calvin E. Tyler, Jr. 55 Glenlake Pkwy. Senior Vice President and Director
Atlanta, GA 30328
Charles L. Schaffer 55 Glenlake Pkwy. Senior Vice President and Director
Atlanta, GA 30328
Thomas H. Weidemeyer 55 Glenlake Pkwy. Senior Vice President
Atlanta, GA 30328
William H. Brown 55 Glenlake Pkwy. Director
Atlanta, GA 30328
Carl Kayser 55 Glenlake Pkwy. Director
Atlanta, GA 30328
Gary E. MacDougal 55 Glenlake Pkwy. Director
Atlanta, GA 30328
Victor A. Pelson 55 Glenlake Pkwy. Director
Atlanta, GA 30328
John W. Rogers 55 Glenlake Pkwy. Director
Atlanta, GA 30328
Robert M. Teeter 55 Glenlake Pkwy. Director
Atlanta, GA 30328
</TABLE>
<PAGE>
5. PRINCIPAL OWNERS OF VOTING SECURITIES. Furnish the following information as
-------------------------------------
to each person owning 10 percent or more of the voting securities of the
applicant, as of November 30, 1997.
No person owns 10 percent or more of voting securities of the Company as of
such date.
UNDERWRITERS
------------
6. UNDERWRITERS. Give the name and complete mailing address of (a) each person
------------
who, within three years prior to the date of filing the application, acted as an
underwriter of any securities of the obligor which were outstanding on the date
of filing the application, and (b) each proposed principal underwriter of the
securities proposed to be offered. As to each person specified in (a), give the
title of each class of securities underwritten.
There are no underwriters of the securities proposed to be offered in the
Exchange Offer. Following are the underwriters identified in Section 6(a)
hereof:
A. The following were the underwriters in the Company's issuance in
January 1996 of $200 million of 5.50% Eurobond Notes due January 1999:
Merrill Lynch International Limited
Citibank International plc
Goldman Sachs International
Paribas Capital Markets
Barclays de Zoete Wedd Limited
DKB International
HSBC Markets
Morgan Stanley & Co. Incorporated
CS First Boston
Lehman Brothers
SBC Warburg
A Division of Swiss Bank Corporation
Caisse des Depots et Consignations
Dresdner Bank Aktiengesellschaft
Heritage Finance & Trust Co.
Paine Webber International (UK) Ltd.
Deutsche Morgan Grenfell
J.P. Morgan Securities Ltd.
Banca del Gottardo
CBI-TDB Union Bancaire Privee
Darier, Hentsch & Cie
IBJ International plc
UBS Limited
The mailing address for the above underwriters is: 25 Ropemaker Street, London
ECZY 9LY.
B. The following were the underwriters in the Company's issuance in
April 1996 of 200 million of 3.25% Swiss Franc Notes due October 1999:
Merrill Lynch Capital Markets AG
Credit Suisse
Union Bank of Switzerland
Cantonalbanks of Switzerland
Groupement des Banquiers Prives Genevois
Swiss Bank Corporation
Citibank (Switzerland)
Swiss Volksbank
Bank Julius Bar & Co. Ltd
Bank Leu Ltd
LGT Bank in Liechtenstein Aktiengesellschaft
Bank J. Vontobel & Co. AG
Banque Nationale de Paris (Suisse) SA
Banque Paribas (Suisse) S.A.
Deutsche Bank (Schweiz) AG
Lehman Brothers Bank (Switzerland)
Salomon Brothers International Limited
Union Bancaire Privee
Verwaltungs-und Privat-Bank Aktiengesellschaft
Bank Sarasin & CIE.
Banque Bruxelles Lambert (Switzerland) S.A.
Dai-Ichi Kangyo Bank (Schweiz) AG
Dresdner Bank (Schweiz) AG
Liechtensteinische Landesbank Aktiengesellschaft
The Industrial Bank of Japan (Switzerland) Limited
ABN Amro Bank (Schweiz)
Banca del Gottardo
Bank Cial (Schweiz)
Bank von Ernst & CIE AG
Lloyds Bank plc
Societe Generale Bank & Trust
Bdl Banco di Lugano
Coop Bank
Finter Bank Zurich
Fuji Bank (Schweiz) AG
Rud, Blass & CIE AG
Banca del Sempione
Bank Adamas AG
Bank Linth
Handelsfinanz-CCF Bank
Luzerner Landbank AG
New Japan Bank (Schweiz) AG
Sparkasse Schwyz
The mailing address for the above underwriters is: 5, Stauffacherstrasse, 8004
Zurich, Switzerland.
C. The following were the underwriters in the Company's issuance in February
1997 of 100 million of 6.875% Pound Sterling Notes due February 2000:
Merrill Lynch International
Banca del Gottardo
Citibank International plc
Darier, Hentsch & Cie, Geneva
Hambros Bank Limited
HSBC Markets
Paribas Capital Markets
SBC Warburg
Barclays de Zoete Wedd Limited
Credit Suisse First Boston
Dresdner Kleinwort Benson
HFT (GUERNSEY) LTD
Lehman Brothers
Salomon Brothers International Limited
UBS Limited
Union Bancaire Privee
The mailing address for the above underwriters is: 25 Ropemaker Street, London
ECZY 9LY.
D. The following were the underwriters in the Company's issuance in December,
1989 of $500 million of 8 3/8% Debentures due 2020:
Merrill Lynch Capital Markets
The First Boston Corporation
Salomon Brothers Inc.
The mailing address for the above underwriters is: North Tower, World Financial
Center, New York, New York 10281-1209.
<PAGE>
E. The following were the underwriters in the Company's issuance in
April 1997 of 6.625% EuroNotes due April 2001:
Credit Suisse First Boston (Europe) Limited
Banca del Gottardo
Banque Bruxelles Lambert S.A./Bank Brussels Lambert
Banque Nationale de Paris London Branch
Citibank International plc
Deutsche Bank AG London
Dresdner Bank Aktiengesellschaft
Goldman Sachs International
Lehman Brothers International (Europe)
Merrill Lynch International
Salomon Brothers International Limited
Swiss Bank Corporation
UBS Limited
The mailing address for the above underwriters is: One Cabot Square, London
E14 4QJ.
F. The following were the underwriters in the Company's issuance in July 1997
of 6.25% Notes due July 2000:
<TABLE>
<CAPTION>
<S> <C>
Credit Suisse First Boston (Europe) Limited Deutsche Bank AG London
Tokyo-Mitsubishi International plc Dresdner Bank Aktiengesellschaft
Credit Suisse First Boston (Europe) Limited Darier, Hentsch & Cie
Swiss Bank Corporation Goldman Sachs International
UBS Limited Heritage Finance & Trust Co.
ABN AMRO Bank N.V. J.P. Morgan Securities Ltd.
Banca del Gottardo Lehman Brothers International (Europe)
Banque Bruxelles Lambert S.A. Salomon Brothers International Limited
Banque Nationale de Paris London Branch Merrill Lynch International
Banque Paribas CIBC Wood Gundy plc
Citibank International plc Commerzbank Aktiengesellschaft
</TABLE>
The mailing address for the above underwriters is: 25 Ropemaker Street, London
EC2Y 9LY.
CAPITAL SECURITIES
------------------
7. CAPITALIZATION. The following table sets the consolidated capitalization
--------------
of the Company as of November 30, 1997.
<PAGE>
Title of Class Amount Authorized Amount Outstanding
- ------------------ ------------------ ------------------
Common Stock 900,000,000 shares 570,000
$.10 par value
Preferred Stock, 200,000,000 shares none
no par value
The Company's Common Stock is entitled to one vote per share in the election
of directors and other matters, except that, generally, any shareowner, or
shareowners acting as a group, who beneficially own more than 10% of the
Company's voting stock are entitled to only one one-hundreth of a vote with
respect to each vote in excess of 10% of the voting power of the then-
outstanding shares of voting stock. The Common Stock does not have preemptive
or other right to subscribe to additional shares. The Preferred Stock does not
have voting rights.
<TABLE>
<CAPTION>
ACTUAL
---------------
(000'S OMITTED)
<S> <C>
LONG-TERM DEBT
8 3/8% debentures, due April 2020............................................................. $ 700,000
Commercial Paper.............................................................................. 592,786
5.50% Eurobond notes, due January 1999........................................................ 200,852
Industrial development bonds, Philadelphia Airport facilities, due December 2015.............. 100,000
Capital lease obligations, due 2007--2009..................................................... 558,743
3.25% 200 million Swiss Franc notes, due October 1999......................................... 166,000
6.875% 100 million Pound Sterling notes, due February 2000.................................... 165,503
6.625% EuroNotes, due April 2001.............................................................. 200,000
6.25% EuroNotes, due July 2000................................................................ 298,537
Installment notes, mortgages and bonds........................................................ 57,994
----------
Less current maturities..................................................................... 40,039
Less commercial paper to be repaid.......................................................... 70,000
----------
Total Long-Term Debt..................................................................... 2,930,376
----------
SHAREOWNERS' EQUITY
Preferred stock, no par value,
authorized 200,000,000 shares, none issued.................................................. ---
Common Stock, par value $.10 per share,
authorized 900,000,000 shares, outstanding 570,000,000 shares............................... 57,000
Additional paid-in capital.................................................................... 95,406
Retained earnings............................................................................. 6,130,145
Cumulative foreign currency adjustments....................................................... (67,640)
----------
Total Shareowners' Equity................................................................ 6,214,911
----------
$9,145,287
==========
</TABLE>
<PAGE>
INDENTURE SECURITIES
--------------------
8. ANALYSIS OF INDENTURE PROVISIONS. Insert at this point the analysis of
--------------------------------
indenture provisions required under Section 305(a)(2) of the Trust Indenture Act
of 1939, as amended.
For purposes of this Section 8, the "Indenture" shall refer to the
Indenture, dated as of December 18, 1997, by and between United Parcel Service
of America, Inc. and Citibank, N.A., as Trustee (the "Trustee"). Other
capitalized but otherwise undefined terms shall have the meanings ascribed
thereto in the Indenture or the Offering Circular.
(A) EVENTS OF DEFAULT
The Indenture defines an Event of Default with respect to New 2030
Debentures as being any one of the following events: (a) default in the payment
of any interest on the New 2030 Debentures when due, and the continuance of such
default for a period of 30 days; (b) default in the payment of principal of or
any premium on the New 2030 Debentures at the date on which such principal
becomes due and payable as provided in the Security or in the Indenture, whether
at the Stated Maturity or by declaration of acceleration, call for redemption or
otherwise; (c) default in the deposit of any sinking fund payment, when and as
due on the New 2030 Debentures; (d) default in the performance or breach of any
covenant or warranty a default in performance or breach of which is specifically
dealt with in the Indenture) and the continuance of such default or breach for a
period of 60 days after written notice as provided in the Indenture; or (e)
certain events involving bankruptcy, insolvency or reorganization.
The Indenture provides that if any Event of Default specified therein
shall occur and be continuing with respect to the New 2030 Debentures, other
than an Event of Default involving bankruptcy, insolvency or reorganization,
either the Trustee or the Holders of 25% in principal amount of the outstanding
New 2030 Debentures may declare the principal of the New 2030 Debentures to be
due and payable. If an Event of Default described in clause (e) above with
respect to the New 2030 Debentures at the time outstanding shall occur, the
principal amount of all of the New 2030 Debentures will automatically, and
without any action by the Trustee or any Holder, become immediately due and
payable. The Holders of a majority in aggregate principal amount of the New
2030 Debentures may, on behalf of all Holders of New 2030 Debentures, waive any
past default under the Indenture with respect to the New 2030 Debentures, except
a default (a) in the payment of principal of, or any premium or interest on, any
Security, and (b) in respect of a covenant or provision of the Indenture which
cannot be modified or amended without the consent of the Holder of each
outstanding Security.
No Holder of a Security will have any right to institute any proceeding
with respect to the Indenture, or for the appointment of a receiver or a
trustee, or for any other remedy thereunder, unless (i) such Holder has
previously given to the Trustee written notice of a continuing Event of Default
with respect to the New 2030 Debentures, (ii) the Holders of at least 25% in
aggregate principal amount of the Outstanding New 2030 Debentures has made
written request to the
<PAGE>
Trustee to institute such proceeding as trustee (iii) the Holder or Holders have
offered to the Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request, (iv) the Trustee has
failed to institute such proceeding, and has not received from the Holders of a
majority in aggregate principal amount of the outstanding New 2030 Debentures a
direction inconsistent with such request, within 60 days after such notice,
request and offer. However, such limitations do not apply to a suit instituted
by a Holder of a Security for the enforcement of payment of the principal of or
any premium or interest on such Security on or after the applicable due date
specified in such Security.
(B) AUTHENTICATION AND DELIVERY
The New 2030 Debentures shall be executed on behalf of the Company by
its Chairman of the Board, its Vice Chairman of the Board, its President or one
of its Vice Presidents, under the Company's corporate seal reproduced thereon
and attested by the Secretary or one of the Assistant Secretaries. Upon proper
delivery of New 2030 Debentures to the Trustee for authentication, the Trustee
shall authenticate and deliver such securities. The Indenture does not contain
provisions regarding the application of the proceeds from issuance of the New
2030 Debentures.
(C) RELEASE OF PROPERTY SUBJECT TO LIEN
The Company's obligations under the New 2030 Debentures are not secured by
any liens or security interests on any assets of the Company. Accordingly, the
Indenture does not contain any provisions with respect to the release or the
release and substitution of any property subject such a lien.
(D) SATISFACTION AND DISCHARGE
The Indenture shall cease to be of further effect, after certain
actions are taken, when (1) either: (i) all the New 2030 Debentures have been
delivered to the Trustee for cancellation, or (ii) all New 2030 Debentures have
(or will within one year) become due and payable or are to be redeemed within
one year, and the Company has deposited in trust funds sufficient to pay off and
discharge such outstanding New 2030 Debentures; (2) the Company has paid all
other sums required to be paid under the Indenture; and (3) the Company has
delivered an appropriate opinion of counsel.
(E) EVIDENCE OF COMPLIANCE WITH CONDITIONS AND COVENANTS
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year, a Certificate stating whether or not the Company has
fulfilled all its obligations under the Indenture throughout the year, and if a
default has occurred, providing details at to the circumstances of such
default(s). If one or more Events of Default occurs under the Indenture, the
Company shall also deliver to the Trustee a Certificate specifying such event or
other action within five Business Days of its occurrence.
<PAGE>
9. OTHER OBLIGORS. Give the name and complete mailing address of any person,
--------------
other than the applicant, who is an obligor upon the indenture securities.
No other person is an obligor with respect to the New 2030 Debentures.
CONTENTS OF APPLICATION FOR QUALIFICATION
-----------------------------------------
This application for qualification comprises:
(a) Pages numbered one to _____________, consecutively;
(b) The statement of eligibility and qualification of the Trustee under
the Indenture to be qualified (on Form T-1);
(c) The following exhibits, in addition to those filed as a part of the
statement of eligibility and qualification of the trustee:
(i) Exhibit T3A -- The Company's Restated Certificate of
-----------
Incorporation (incorporated by reference to Exhibit 4(iv) to Form S-8
Registration Statement (Registration No. 33-19622);
(ii) Exhibit T3B -- The Company's Bylaws, as amended (incorporated by
-----------
reference to Current Report on Form 8-K, filed December 21, 1995;
(iii) Exhibit T3C -- Form of Indenture, dated as of December ___,
-----------
1997, by and between the Company and Citibank, N.A., as Trustee;
(iv) Exhibit T3D -- Not applicable;
-----------
(v) Exhibit T3E.1 -- Form of Offering Circular, dated as of December
-------------
___, 1997; [To Be Filed by Amendment]
(vi) Exhibit T3E.2 -- Form of Letter of Transmittal, dated as of
-------------
December ___, 1997; [To Be Filed by Amendment]
(vii) Exhibit T3E.3 -- Form of Notice of Guaranteed Delivery, dated as
-------------
of December ___, 1997;
(viii) Exhibit T3F -- Cross-Reference Sheet;
-----------
(ix) Exhibit 99 -- Form T-1 of Citibank, N.A.
----------
<PAGE>
SIGNATURE
---------
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the Company, United Parcel Service of America, Inc., a corporation
organized and existing under the laws of the State of Delaware, has duly caused
this application 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
Atlanta, and State of Georgia, on the 18th day of December, 1997.
(SEAL) UNITED PARCEL SERVICE OF AMERICA, INC.
By: /s/ Ned J. Winsor
------------------------------------
Name: Ned J. Winsor
----------------------------------
Title: Assistant Treasurer - Corporate
-------------------------------
Finance
-------
Attest: /s/ Catherine Harrison
-----------------------------
Name: Catherine Harrison
-------------------------------
Title:
------------------------------
<PAGE>
Exhibit T3C
================================================================================
UNITED PARCEL SERVICE OF AMERICA, INC.
AND
CITIBANK, N.A.
Trustee
_______________
INDENTURE
Dated as of December 18, 1997
________________
================================================================================
<PAGE>
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO SECTIONS 310 THROUGH 318,
INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939:
Trust Indenture
Act Section Indenture Section
(S) 310 (a)(1)........................ 6.09
(a)(2)........................ 6.09
(a)(3)........................ Not Applicable
(a)(4)........................ Not Applicable
(b)........................... 6.08
6.10
(S) 311 (a)........................... 6.13
(b)........................... 6.13
(S) 312 (a)........................... 7.01
(b)........................... 7.02
(c)........................... 7.02
7.02
(S) 313 (a)........................... 7.03
(b)........................... 7.03
(c)........................... 7.03
(d)........................... 7.03
(S) 314 (a)........................... 7.04
(a)(4)........................ 1.01
10.04
(b)........................... Not Applicable
(c)(1)........................ 1.02
(c)(2)........................ 1.02
(c)(3)........................ Not Applicable
(d)........................... Not Applicable
(e)........................... 1.02
(S) 315 (a)........................... 6.01
(b)........................... 6.02
(c)........................... 6.01
(d)........................... 6.01
(e)........................... 5.14
(S) 316 (a)........................... 1.01
(a)(1)(A)..................... 5.02
5.12
(a)(1)(B)..................... 5.13
(a)(2)........................ Not Applicable
(b)........................... 5.08
(c)........................... 1.04
(S) 317 (a)(1)........................ 5.03
(a)(2)........................ 5.04
(b)........................... 10.03
(S) 318 (a)........................... 1.07
____________________
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
PAGE
SECTION 1.01. Definitions.............................................. 1
SECTION 1.02. Compliance Certificates and Opinions..................... 14
SECTION 1.03. Form of Documents Delivered to Trustee................... 14
SECTION 1.04. Acts of Holders; Record Dates............................ 15
SECTION 1.05. Notices, Etc., to Trustee and Company.................... 17
SECTION 1.06. Notice to Holders; Waiver................................ 18
SECTION 1.07. Conflict with Trust Indenture Act........................ 18
SECTION 1.08. Effect of Headings and Table of Contents................. 18
SECTION 1.09. Successors and Assigns................................... 19
SECTION 1.10. Separability Clause...................................... 19
SECTION 1.11. Benefits of Indenture.................................... 19
SECTION 1.12. Governing Law............................................ 19
SECTION 1.13. Legal Holidays........................................... 19
ARTICLE II
SECURITY FORMS
SECTION 2.01. Forms Generally.......................................... 19
SECTION 2.02. Form of Face of Security................................. 20
SECTION 2.03. Form of Reverse of Security.............................. 22
SECTION 2.04. Form of Legend for Global Securities..................... 27
SECTION 2.05. Form of Trustee's Certificate of Authentication.......... 27
ARTICLE III
THE SECURITIES
SECTION 3.01. Amount Unlimited; Issuable in Series..................... 28
SECTION 3.02. Denominations............................................ 31
SECTION 3.03. Execution, Authentication, Delivery and Dating........... 31
SECTION 3.04. Temporary Securities..................................... 32
SECTION 3.05. Registration, Registration of Transfer and Exchange ..... 33
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities......... 35
SECTION 3.07. Payment of Interest; Interest Rights Preserved........... 36
SECTION 3.08. Persons Deemed Owners.................................... 38
SECTION 3.09. Cancelation.............................................. 38
SECTION 3.10. Computation of Interest.................................. 38
SECTION 3.11. CUSIP Numbers............................................ 38
<PAGE>
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture................. 38
SECTION 4.02. Application of Trust Money.............................. 40
ARTICLE V
REMEDIES
SECTION 5.01. Event of Default....................................... 40
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment..... 42
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by
Trustee................................................ 43
SECTION 5.04. Trustee May File Proofs of Claim....................... 44
SECTION 5.05. Trustee May Enforce Claims Without Possession of
Securities............................................. 44
SECTION 5.06. Application of Money Collected......................... 44
SECTION 5.07. Limitation on Suits.................................... 45
SECTION 5.08. Unconditional Right of Holder to Receive Principal,
Premium and Interest................................... 45
SECTION 5.09. Restoration of Rights and Remedies..................... 46
SECTION 5.10. Rights and Remedies Cumulative......................... 46
SECTION 5.11. Delay or Omission Not Waiver........................... 46
SECTION 5.12. Control by Holders..................................... 46
SECTION 5.13. Waiver of Past Defaults................................ 47
SECTION 5.14. Undertaking for Costs.................................. 47
SECTION 5.15. Waiver of Usury, Stay or Extension Laws................ 47
ARTICLE VI
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities................... 48
SECTION 6.02. Notice of Defaults.................................... 48
SECTION 6.03. Certain Rights of Trustee............................. 48
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities 50
SECTION 6.05. May Hold Securities................................... 50
SECTION 6.06. Money Held in Trust................................... 50
SECTION 6.07. Compensation and Reimbursement........................ 50
SECTION 6.08. Conflicting Interests................................. 51
SECTION 6.09. Corporate Trustee Required; Eligibility............... 51
SECTION 6.10. Resignation and Removal; Appointment of Successor..... 52
SECTION 6.11. Acceptance of Appointment by Successor................ 54
SECTION 6.12. Merger, Conversion, Consolidation or Succession to
Business.............................................. 55
SECTION 6.13. Preferential Collection of Claims Against Company..... 55
SECTION 6.14. Appointment of Authenticating Agent................... 55
<PAGE>
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. Company to Furnish Trustee Names and Addresses of
Holders............................................... 57
SECTION 7.02. Preservation of Information; Communications to Holders 58
SECTION 7.03. Reports by Trustee.................................... 58
SECTION 7.04. Reports by Company.................................... 58
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01. Company May Consolidate, Etc, Only on Certain Terms... 59
SECTION 8.02. Successor Substituted................................. 59
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders... 60
SECTION 9.02. Supplemental Indentures With Consent of Holders...... 61
SECTION 9.03. Execution of Supplemental Indentures................. 63
SECTION 9.04. Effect of Supplemental Indentures.................... 63
SECTION 9.05. Conforming with Trust Indenture Act.................. 63
SECTION 9.06. Reference in Securities to Supplemental Indentures... 63
ARTICLE X
COVENANTS
SECTION 10.01. Payment of Principal, Premium and Interest.......... 63
SECTION 10.02. Maintenance of Office or Agency..................... 64
SECTION 10.03. Money for Securities Payments to Be Held in Trust... 64
SECTION 10.04. Statement by Officers as to Default................. 65
SECTION 10.05. Existence........................................... 66
SECTION 10.06. Limitation on Secured Debt.......................... 66
SECTION 10.07. Limitation on Sale and Leaseback Transactions....... 66
SECTION 10.08. Waiver of Certain Covenants......................... 67
SECTION 10.09. Calculation of Original Issue Discounts.............
<PAGE>
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.01. Applicability of Article............................... 67
SECTION 11.02. Election to Redeem; Notice to Trustee.................. 68
SECTION 11.03. Selection by Trustee of Securities to Be Redeemed...... 68
SECTION 11.04. Notice of Redemption................................... 69
SECTION 11.05. Deposit of Redemption Price............................ 70
SECTION 11.06. Securities Payable on Redemption Date.................. 70
SECTION 11.07. Securities Redeemed in Part............................ 70
ARTICLE XII
SINKING FUNDS
SECTION 12.01. Applicability of Article............................... 71
SECTION 12.02. Satisfaction of Sinking Fund Payments with Securities.. 71
SECTION 12.03. Redemption of Securities for Sinking Fund.............. 71
ARTICLE XIII
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 13.01. Company's Option to Effect Defeasance or Covenant
Defeasance............................................. 72
SECTION 13.02. Defeasance and Discharge............................... 72
SECTION 13.03. Covenant Defeasance.................................... 73
SECTION 13.04. Conditions to Defeasance or Covenant Defeasance........ 73
SECTION 13.05. Deposited Money and U.S. Government 73
Obligations to Be Held in
Trust; Miscellaneous Provisions........................ 76
SECTION 13.06. Reinstatement.......................................... 76
<PAGE>
INDENTURE, dated as of December 18, 1997, between UNITED
PARCEL SERVICE OF AMERICA, INC., a corporation duly organized and
existing under the laws of the State of Delaware (herein called
the "Company"), having its principal executive office at 55
Glenlake Parkway N.E., Atlanta, Georgia 30328, and CITIBANK,
N.A., a national banking association duly incorporated and
existing under the laws of the United States of America, as
Trustee (herein called the "Trustee");
W I T N E S S E T H :
WHEREAS the Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided;
and
WHEREAS all things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, 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 or of any
series thereof, as follows:
ARTICLE I
Definitions and Other Provisions
---------------------------------
of General Application
----------------------
SECTION 1.01. Definitions. For all purposes of this Indenture,
------------
except as otherwise expressly provided:
(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;
(3) all accounting terms not otherwise defined herein have the meaning
assigned to them in accordance
<PAGE>
2
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 this instrument;
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Indenture; and
(5) 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 1.04.
"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 corresponding to the
foregoing.
"Attributable Debt" means, as of the date of its determination, the
present value (discounted semiannually at an interest rate of 7.0% per annum) of
the obligation of a lessee for rental payments pursuant to any Sale and
Leaseback Transaction (reduced by the amount of the rental obligations of any
sublessee of all or part of the same property) during the remaining term of such
Sale and Leaseback Transaction (including any period for which the lease
relating thereto has been extended), such rental payments not to include amounts
payable by the lessee for maintenance and repairs, insurance, taxes, assessments
and similar charges and for contingent rents (such as those based on sales). In
the case of any Sale and Leaseback Transaction in which the lease is terminable
by the lessee upon the payment of a penalty, such rental payments shall be
considered for purposes of this definition to be the lesser of (a) the rental
payments to be paid under such Sale and Leaseback Transaction until the first
date (after the date of such determination) upon which it may be so terminated
plus the then applicable penalty upon such termination and (b) the rental
payments required to be paid during the
<PAGE>
3
remaining term of such Sale and Leaseback Transaction (assuming such termination
provision is not exercised).
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.14 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means either the board of directors of the
Company or committee of that board duly authorized to act for it in respect
hereof.
"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", when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Capitalized Lease Obligation" means any obligation to pay rent or
other amounts under a lease of (or other agreement conveying the right to use)
real or personal property that is required to be classified and accounted for as
a capital lease obligation under generally accepted accounting principles, and,
for the purposes of this Indenture, the amount of such obligation at any date
shall be the capitalized amount thereof at such date, determined in accordance
with such principles.
"Capital Stock", as applied to the stock of any corporation, means the
capital stock of every class whether now or hereafter authorized, regardless of
whether such capital stock shall be limited to a fixed sum or percentage with
respect to the rights of the holders thereof to participate in dividends and in
the distribution of assets upon the voluntary or involuntary liquidation,
dissolution or winding up of such corporation.
"Certificate" means a certificate signed by a duly authorized
signatory of the Company and delivered to the Trustee.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, or, if at any time after the execution of this
instrument such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body performing such
duties at such time.
<PAGE>
4
"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 a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, 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 at any date, the total assets
appearing on the most recently prepared consolidated balance sheet of the
Company and the Subsidiaries as of the end of a fiscal quarter of the Company,
prepared in accordance with generally accepted accounting principles, less (a)
all current liabilities as shown on such balance sheet and (b) Intangible
assets. "INTANGIBLE ASSETS" means the value (net of any applicable reserves), as
shown on or reflected in such balance sheet, of: (i) all trade names,
trademarks, licenses, patents, copyrights and goodwill; (ii) organizational and
development costs; (iii) deferred charges (other than prepaid items such as
insurance, taxes, interest, commissions, rents and similar items and tangible
assets being amortized); and (iv) unamortized debt discount and expense, less
unamortized premium.
"Corporate Trust Office" means the principal office of the Trustee at
which at any time its corporate trust business shall be administered, which
office at the date hereof is located at 111 Wall Street, 5th Floor, New York,
New York 10045, Attention: Corporate Agency and Trust Department, or such other
address as the Trustee may designate from time to time by notice to the Holders
and the Company, or the principal corporate trust office of any successor
Trustee (or such other address as a successor Trustee may designate from time to
time by notice to the Holders and the Company).
"Corporation" means a corporation, association, company, joint-stock
company or business trust.
"Covenant Defeasance" has the meaning specified in Section 13.03.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Defeasance" has the meaning specified in Section 13.02.
"Depositary" means, with respect to Securities of any series issuable
in whole or in part in the form of one or more Global Securities, a clearing
agency registered under the Exchange Act that is designated to act as
<PAGE>
5
Depositary for such Securities as contemplated by Section 3.01.
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Act" means the Securities Exchange Act of 1934 and any
applicable statute successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 1.04.
"Funded Debt" means any indebtedness maturing more than one year from
the date of issuance thereof, including any indebtedness renewable or extendible
at the option of the obligor to a date later than one year from the date of the
original issuance thereof.
"Global Security" means a Security that evidences all or part of the
Securities of any series and bears the legend set forth in Section 2.04 (or such
legend as may be specified as contemplated by Section 3.01 for such Securities).
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indebtedness" means (a) any liability of any Person (1) for borrowed
money, or under any reimbursement obligation relating to a letter of credit, or
(2) evidenced by a bond, note, debenture or similar instrument (including a
purchase money obligation) given in connection with the acquisition of any
businesses, properties or assets of any kind or with services incurred in
connection with capital expenditures (other than a trade payable or a current
liability arising in the ordinary course of business), or (3) for the payment of
money relating to a Capitalized Lease Obligation, or (4) for Interest Rate
Protection Obligations; (b) any liability of others described in the preceding
clause (a) that the Person has guaranteed or that is otherwise its legal
liability; and (c) any amendment, supplement, modification, deferral, renewal,
extension or refunding of any liability of the types referred to in clauses (a)
and (b) above.
"Indenture" means this instrument as originally executed and 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
<PAGE>
6
this instrument and any such supplemental indenture, respectively. The term
"Indenture" shall also include the terms of particular series of Securities
established as contemplated by Section 3.01.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Interest Rate Protection Obligations" of any Person means the
obligations of such Person pursuant to any arrangement with any other Person
whereby, directly or indirectly, such Person is entitled to receive from time to
time periodic payments calculated by applying a fixed rate of interest on a
stated notional amount in exchange for periodic payments made by such Person
calculated by applying a floating rate of interest on the same notional amount.
"Investment Company Act" means the Investment Company Act of 1940 and
any statute successor thereto, in each case as amended from time to time.
"Liens" means any mortgage, lien, pledge, security interest, charge or
encumbrance.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in
Section 5.01(4) or 5.01(5).
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company, or other counsel reasonably acceptable
to the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 5.02.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all
<PAGE>
7
Securities theretofore authenticated and delivered under this Indenture, except:
------
(1) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancelation;
(2) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities; provided that, if such Securities are to be
--------
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;
(3) Securities as to which Defeasance has been effected pursuant to
Section 13.02; and
(4) Securities which have been paid pursuant to Section 3.06 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
- -------- -------
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date, (A) the principal amount of an Original Issue
Discount Security which shall be deemed to be Outstanding shall be the amount of
the principal thereof which would be due and payable as of such date upon
acceleration of the Maturity thereof to such date pursuant to Section 5.02, (B)
if, as of such date, the principal amount payable at the Stated Maturity of a
Security is not determinable, the principal amount of such Security which shall
be deemed to be Outstanding shall be the amount as specified or determined as
contemplated by Section 3.01, (C) the principal amount of a Security denominated
in one or more foreign currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined as of such date in
the manner provided as contemplated by Section 3.01, of the principal amount of
such Security (or, in the case of a Security described in Clause (A) or (B)
above, of the amount determined as provided in such Clause), and (D) Securities
owned by the Company or any Affiliate of the Company shall
<PAGE>
8
be disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent, waiver or other action, only
Securities which a Responsible Officer of the Trustee actually 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 Affiliate of the
Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof or any other entity.
"Place of Payment", when used with respect to any Security, means the
place or places where the principal of and any premium and interest on that
Security are payable as specified pursuant to this Indenture.
"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 3.06 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Property" means any land, land improvements, buildings and
associated factory, distribution, laboratory and office equipment (excluding any
products marketed by the Company or any Subsidiary) constituting a distribution
facility, operating facility, manufacturing facility, development facility,
warehouse facility, service facility or office facility (including any portion
thereof), which facility (a) is owned by or leased to the Company or any
Restricted Subsidiary, (b) is located within the United States and (c) has an
acquisition cost plus capitalized improvements in excess of 0.50% of
Consolidated Net Tangible Assets as of the date of such determination, other
than (i) any such facility, or portion thereof, which has been financed by
obligations issued by or on behalf of a State, a Territory or a possession of
the United States, or any political subdivision of any of the foregoing, or the
District of Columbia, the interest on which is excludable from gross income of
the holders thereof
<PAGE>
9
(other than a "substantial user" of such facility or a "related Person" as those
terms are used in Section 103 of the Internal Revenue Code of 1986, as amended
(the "Code")) pursuant to the provisions of Section 103 of the Code (or any
similar provision hereafter enacted) as in effect at the time of issuance of
such obligations, (ii) any such facility which the Board of Directors may by
Board Resolution declare is not of material importance to the Company and the
Restricted Subsidiaries taken as a whole and (iii) any such facility, or portion
thereof, owned or leased jointly or in common with one or more Persons other
than the Company and any Subsidiary and in which the interest of the Company and
all Subsidiaries does not exceed 50%.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee, means
any Vice President, Assistant Vice President, Senior Trust Officer, trust
officer or any other officer associated with the Corporate Agency and Trust
Department of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular subject
of the Trustee assigned and authorized by it to administer its corporate trust
matters.
"Restricted Securities" means any shares of the capital stock or
Indebtedness of any Restricted Subsidiary.
"Restricted Subsidiary" means (a) any Subsidiary (i) which has
substantially all its property within the United States of America, (ii) which
owns or is a lessee of any Principal Property, and (iii) in which the investment
of the Company and all other Subsidiaries exceeds 0.50% of Consolidated Net
Tangible Assets as of the date of such determination; provided, however, that
-------- -------
the term "Restricted Subsidiary" shall not include (A) any Subsidiary (x)
primarily engaged in the business of purchasing, holding, collecting, servicing
or otherwise dealing in and with installment sales contracts, leases, trust
receipts, mortgages, commercial paper or other financing instruments, and any
collateral or agreements relating thereto, including in the business,
individually or through partnerships, of financing (whether through long- or
short-term borrowings, pledges, discounts or otherwise) the sales, leasing or
other operations of the Company and the Subsidiaries or any of
<PAGE>
10
them, or (y) engaged in the business of financing the assets and operations of
third parties, and (z) in any case, not, except as incidental to such financing
business, engaged in owning, leasing or operating any property which but for
this proviso would qualify as Principal Property or (B) any Subsidiary acquired
or organized after December 18, 1997, for the purpose of acquiring the stock or
business or assets of any Person other than the Company or any Restricted
Subsidiary, whether by merger, consolidation, acquisition of stock or assets or
similar transaction analogous in purpose or effect, so long as such Subsidiary
does not acquire by merger, consolidation, acquisition of stock or assets or
similar transaction analagous in purpose or effect all or any substantial part
of the business or assets of the Company or any Restricted Subsidiary; and (b)
any other Subsidiary which is hereafter designated by the Board of Directors as
a Restricted Subsidiary.
"Sale and Leaseback Transaction" means any arrangement with any Person
providing for the leasing by the Company or any Restricted Subsidiary of any
Principal Property (whether such Principal Property is now owned or hereafter
acquired) that has been or is to be sold or transferred by the Company or such
Restricted Subsidiary to such Person, other than (a) temporary leases for a
term, including renewals at the option of the lessee, of not more than three
years; (b) leases between the Company and a Restricted Subsidiary or between
Restricted Subsidiaries; and (c) leases of Principal Property executed by the
time of, or within 180 days after the latest of, the acquisition, the completion
of construction or improvement (including any improvements on property which
will result in such property becoming Principal Property), or the commencement
of commercial operation of such Principal Property.
"Secured Indebtedness" means (a) Indebtedness of the Company or a
Restricted Subsidiary which is secured by any Lien upon any Principal Property
or Restricted Securities and (b) Indebtedness of the Company or a Restricted
Subsidiary in respect of any conditional sale or other title retention agreement
covering Principal Property or Restricted Securities; but "Secured Indebtedness"
shall not include any of the following:
(i) Indebtedness of the Company and the Restricted Subsidiaries
outstanding on December 18, 1997, secured by then existing Liens upon, or
incurred in connection with conditional sales agreements or other title
retention agreements with respect to, Principal Property or Restricted
Securities;
(ii) Indebtedness which is secured by (A) purchase money Liens upon
Principal Property acquired after December 18, 1997
<PAGE>
11
? or (B) Liens placed on Principal Property after December 18, 1997,
during construction or improvement thereof (including any improvements on
property which will result in such property becoming Principal Property) or
placed thereon within 180 days after the later of acquisition, completion
of construction or improvement or the commencement of commercial operation
of such Principal Property or improvement, or placed on Restricted
? Securities acquired after December 18, 1997, or (C) conditional sale
agreements or other title retention agreements with respect to any
Principal Property or Restricted Securities acquired after December 18,
1997, if (in each case referred to in this subparagraph (ii)) (x) such
? Lien or agreement secures all or any part of the Indebtedness incurred for
the purpose of financing all or any part of the purchase price or cost of
construction of such Principal Property or improvement or Restricted
Securities and (y) such Lien or agreement does not extend to any Principal
Property or Restricted Securities other than the Principal Property so
acquired or the Principal Property, or portion thereof, on which the
property so constructed or such improvement is located; provided, however,
-------- -------
that the amount by which the aggregate principal amount of Indebtedness
secured by any such Lien or agreement exceeds the cost to the Company or
such Restricted Subsidiary of the related acquisition, construction or
improvement shall be considered to be "Secured Indebtedness";
(iii) Indebtedness which is secured by Liens on Principal Property or
Restricted Securities, which Liens exist at the time of acquisition (by any
manner whatsoever) of such Principal Property or Restricted Securities by
the Company or a Restricted Subsidiary;
(iv) Indebtedness of Restricted Subsidiaries owing to the Company or
any other Restricted Subsidiary and Indebtedness of the Company owing to
any Restricted Subsidiary;
(v) In the case of any corporation which becomes (by any manner
? whatsoever) a Restricted Subsidiary after December 18, 1997, Indebtedness
which is secured by Liens upon, or conditional sale agreements or other
title retention agreements with respect to, its property which constitutes
Principal Property or Restricted Securities, which Liens exist at the time
such corporation becomes a Restricted Subsidiary;
(vi) Guarantees by the Company of Secured Indebtedness and
Attributable Debt of any Restricted Subsidiaries and guarantees by a
Restricted Subsidiary
<PAGE>
12
of Secured Indebtedness and Attributable Debt of the Company and any other
Restricted Subsidiaries;
(vii) Indebtedness arising from any Sale and Leaseback Transaction;
(viii) Indebtedness secured by Liens on property of the Company or a
Restricted Subsidiary in favor of the United States of America, any State,
Territory or possession thereof, or the District of Columbia, or any
department, agency or instrumentality or political subdivision of the
United States of America or any State, Territory or possession thereof, or
the District of Columbia, or in favor of any other country or any political
subdivision thereof, if such Indebtedness was incurred for the purpose of
financing all or any part of the purchase price or the cost of construction
of the property subject to such Lien; provided, however, that the amount by
-------- -------
which the aggregate principal amount of Indebtedness secured by any such
Lien exceeds the cost to the Company or such Restricted Subsidiary of the
related acquisition or construction shall be considered to be "Secured
Indebtedness";
(ix) Indebtedness secured by Liens on aircraft, airframes or aircraft
engines, aeronautic equipment or computers and electronic data processing
equipment; and
(x) The replacement, extension or renewal (or successive
replacements, extensions or renewals) of any Indebtedness (in whole or in
part) excluded from the definition of "Secured Indebtedness" by
subparagraphs (i) through (viii) above; provided, however, that no Lien
-------- -------
securing, or conditional sale or title retention agreement with respect to,
such Indebtedness shall extend to or cover any Principal Property or any
Restricted Securities, other than such property which secured the
Indebtedness so replaced, extended or renewed (plus improvements on or to
any such Principal Property); provided further, however, that to the extent
---------------- -------
that such replacement, extension or renewal increases the principal amount
of Indebtedness secured by such Lien or is in a principal amount in excess
of the principal amount of Indebtedness excluded from the definition of
"Secured Indebtedness" by subparagraphs (i) through (ix) above, the amount
of such increase or excess shall be considered to be "Secured
Indebtedness".
In no event shall the foregoing provisions be interpreted to mean or their
operation to cause the same Indebtedness to be included more than once in the
calculation of "Secured Indebtedness" as that term is used in this Indenture.
<PAGE>
13
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Securities Act" means the Securities Act of 1933 and any applicable
statute successor thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.05.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means any corporation of which, at the time of
determination, the Company and/or one or more Subsidiaries owns or controls
directly or indirectly more than 50% of the shares of voting stock. "WHOLLY
OWNED", when used with reference to a Subsidiary, means a Subsidiary of which
all of the outstanding capital stock is owned by the Company or by one or more
wholly owned Subsidiaries. "VOTING STOCK", when used with reference to a
Subsidiary, means stock of the class or classes having general voting power
under ordinary circumstances to elect at least a majority of the board of
directors, managers or trustees of such corporation provided that, for the
purposes hereof, stock which carries only the right to vote conditionally on the
happening of an event shall not be considered voting stock whether or not such
event shall have happened.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, and any applicable statute successor thereto, in each case as amended
from time to time.
"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 or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
<PAGE>
14
"U.S. Government Obligation" has the meaning specified in Section
13.04.
"Vice President", when used with respect to the Company, 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 1.02. 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 a Certificate, if
to be given by an authorized signatory 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 requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (except for certificates
provided for in Section 10.04) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 1.03. 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 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 that the certificate
<PAGE>
15
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 1.04. Acts of Holders; Record Dates. Any request, demand,
------------------------------
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Indenture to be given, made or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agent duly appointed in writing;
and, 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 6.01) conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section.
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.
The ownership of Securities shall be proved by the Security Register.
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
<PAGE>
16
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.
The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders of Securities of such series; provided that the
--------
Company may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next paragraph. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of the relevant series on such record date, and no other Holders,
shall be entitled to take the relevant action, whether or not such Holders
remain Holders after such record date; provided that no such action shall be
--------
effective hereunder unless taken on or prior to the applicable Expiration Date
(as hereinafter defined) by Holders of the requisite principal amount of
Outstanding Securities of such series on such record date. Nothing in this
paragraph shall be construed to prevent the Company from setting a new record
date for any action for which a record date has previously been set pursuant to
this paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be canceled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Company, at its own expense, shall cause notice
of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Trustee in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 1.06.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to join
in the giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 5.02, (iii) any request to institute
proceedings referred to in Section 5.07(2) or (iv) any direction referred to in
Section 5.12, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date; provided that no such
--------
action shall be effective hereunder unless
<PAGE>
17
taken on or prior to the applicable Expiration Date by Holders of the requisite
principal amount of Outstanding Securities of such series on such record date.
Nothing in this paragraph shall be construed to prevent the Trustee from setting
a new record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be canceled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of Outstanding
Securities of the relevant series on the date such action is taken. Promptly
after any record date is set pursuant to this paragraph, the Trustee, at the
Company's expense, shall cause notice of such record date, the proposed action
by Holders and the applicable Expiration Date to be given to the Company in
writing and to each Holder of Securities of the relevant series in the manner
set forth in Section 1.06.
With respect to any record date set pursuant to this Section, the
party hereto which sets such record date may designate any day as the
"Expiration Date" and from time to time may change the Expiration Date to any
earlier or later day; provided that no such change shall be effective unless
--------
notice of the proposed new Expiration Date is given to the other party hereto in
writing, and to each Holder of Securities of the relevant series in the manner
set forth in Section 1.06, on or prior to the existing Expiration Date. If an
Expiration Date is not designated with respect to any record date set pursuant
to this Section, the party hereto which set such record date shall be deemed to
have initially designated the 180th day after such record date as the Expiration
Date with respect thereto, subject to its right to change the Expiration Date as
provided in this paragraph. Notwithstanding the foregoing, no Expiration Date
shall be later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take
any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount.
SECTION 1.05. 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
<PAGE>
18
made, given, furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, Attention: Corporate Agency and Trust Department,
or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal executive 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 1.06. Notice to Holders; Waiver. Where this Indenture
--------------------------
provides for notice to Holders of any event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at his
address as it appears in the Security Register, not later than the latest date
(if any), and not earlier than the earliest date (if any), prescribed for the
giving of such notice. 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. 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.
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.
SECTION 1.07. Conflict with Trust Indenture Act. If any provision
----------------------------------
hereof limits, qualifies or conflicts with a provision of the Trust Indenture
Act which is required under such Act to be a part of and govern this Indenture,
the provision of the Trust Indenture Act shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the provision of this Indenture shall
control.
SECTION 1.08. Effect of Headings and Table of Contents. The Article
-----------------------------------------
and Section headings herein and the
<PAGE>
19
Table of Contents are for convenience only and shall not affect the construction
hereof.
SECTION 1.09. 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 1.10. 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 1.11. Benefits of Indenture. Nothing in this Indenture or in
----------------------
the Securities, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder and the Holders, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
SECTION 1.12. Governing Law. This Indenture and the Securities shall
--------------
be governed by and construed in accordance with the law of the State of New
York, without regard to conflicts of the principles thereof.
SECTION 1.13. Legal Holidays. In any case where any Interest Payment
---------------
Date, Redemption Date or Stated Maturity of any Security shall not be a Business
Day at any Place of Payment, then (notwithstanding any other provision of this
Indenture or of the Securities (other than a provision of any Security which
specifically states that such provision shall apply in lieu of this Section))
payment of interest or principal (and premium, if any) need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date or Redemption Date, or at the Stated Maturity, and, if
such payment is made, no interest shall accrue on such payment for the period
from and after any such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be.
ARTICLE II
Security Forms
--------------
SECTION 2.01. Forms Generally. The Securities of each series shall
----------------
be in substantially the form set forth in this Article, or in such other form as
shall be established by or pursuant to a Board Resolution or one or more
indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other
<PAGE>
20
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 Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution thereof. If the form of Securities of any series is established by
action taken pursuant to a Board Resolution or indenture supplemental hereto, a
copy of an appropriate record of such action shall be certified by the Secretary
or an Assistant Secretary of the Company and delivered to the Trustee at or
prior to the delivery of the Company Order contemplated by Section 3.03 for the
authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
SECTION 2.02. Form of Face of Security. [Insert any legend required
-------------------------
by the Internal Revenue Code and the regulations thereunder.]
UNITED PARCEL SERVICE OF AMERICA, INC.
No. $
CUSIP No._________
United Parcel Service of America, Inc., 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
[if the Security is to bear interest prior to Maturity, insert--, 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, at
the rate of % per annum, until the principal hereof is paid or made
available for payment [if applicable, insert--; provided that any principal and
--------
premium, and any such installment of interest which is overdue shall bear
interest at the rate of % per annum (to the extent that the payment of such
interest shall be legally enforceable), from the dates such amounts are due
until they are paid or made available for payment, and such
<PAGE>
21
interest shall be payable on demand]. 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 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 set by the
Trustee, notice whereof shall be given to Holders of Securities of this series
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 of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert--] The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue premium shall
bear interest at the rate of % per annum (to the extent that the payment of
such interest shall be legally enforceable), from the dates such amounts are due
until they are paid or made available for payment. Interest on any overdue
principal or premium shall be payable on demand. [Any such interest on overdue
principal or premium which is not paid on demand shall bear interest at the rate
of % per annum (to the extent that the payment of such interest on interest
shall be legally enforceable), from the date of such demand until the amount so
demanded is paid or made available for payment. Interest on any overdue
interest shall be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable,
insert--any such] interest on this Security will be made at the office or agency
of the Company maintained for that purpose in , 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 [if applicable insert--;
provided, however, that 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].
<PAGE>
22
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.
UNITED PARCEL SERVICE OF AMERICA, INC.
by
___________________________
Attest:
________________________
SECTION 2.03. Form of Reverse of Security. This Security is one of a
----------------------------
duly authorized issue of securities of the Company (herein called the
"Securities"), issued and to be issued in one or more series under an Indenture,
dated as of (herein called the "Indenture", which term shall
have the meaning assigned to it in such instrument), between the Company and
Citibank, N.A., as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), and reference is hereby made to the
Indenture 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. This Security is one of the series designated on
the face hereof [if applicable, insert--, limited in aggregate principal amount
to $ ].
[If applicable, insert--The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [(if applicable, insert--
(1) on in each year commencing with the year and ending with
the year through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and (2)] at any time [if
applicable,
<PAGE>
23
insert--on or after , 19 ], as a whole or in part, at the election of
the Company, at the following Redemption Prices (expressed as percentages of the
principal amount): If redeemed [if applicable, insert--on or before ,
% and if redeemed] during the 12-month period beginning , of
the years indicated,
<TABLE>
<CAPTION>
Year Redemption Price Year Redemption Price
---- ---------------- ---- ----------------
<S> <C> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to % of the principal amount,
together in the case of any such redemption [if applicable, insert--(whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert--The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on in
each year commencing with the year and ending with the year
through operation of the sinking fund for this series at the Redemption Prices
for redemption through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below, and (2) at any time [if
applicable, insert--on or after ], as a whole or in part, at the
election of the Company, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of
<PAGE>
24
the principal amount) set forth in the table below: If redeemed during the 12-
month period beginning of the years indicated,
<TABLE>
<CAPTION>
Redemption Price Redemption Price For
For Redemption Otherwise
Redemption Through Than Through
Operation of the Operation of the
Year Sinking Fund Sinking Fund
---- ------------------ ---------------------
<S> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to % of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert--Notwithstanding the foregoing, the Company may
not, prior to , redeem any Securities of this series as contemplated
by [if applicable, insert--Clause (2) of] the preceding paragraph as a part of,
or in anticipation of, any refunding operation by the application, directly or
indirectly, of moneys borrowed having an interest cost to the Company
(calculated in accordance with generally accepted financial practice) of less
than % per annum.]
[If applicable, insert--The sinking fund for this series provides for
the redemption (on and ending with the year and ending with the year of
[if applicable insert--not less than $ ("mandatory sinking fund") and
not more than $ aggregate principal amount of Securities of
this series. Securities of this series acquired or redeemed by the Company
otherwise than through [if applicable, insert--mandatory] sinking fund payments
may be credited against subsequent [if applicable, insert--mandatory] sinking
fund payments otherwise required to be made [if applicable, insert--, in the
inverse order in which they become due].]
[If the Security is subject to redemption of any kind, insert--In the
event of redemption of this Security in part only, a new Security or Securities
of this series and
<PAGE>
25
of like tenor for the unredeemed portion hereof will be issued in the name of
the Holder hereof upon the cancelation hereof.]
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Security or certain restrictive covenants and Events
of Default with respect to this Security, in each case upon compliance with
certain conditions set forth in the Indenture.
[If the Security is not an Original Issue Discount Security, insert--
If an Event of Default with respect to Securities of this series shall occur and
be continuing, the principal of the Securities of this series may be declared
due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert--If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to--insert formula for determining the
amount. Upon payment of (i) the amount of principal so declared due and payable
and (ii) interest on any overdue principal, premium and interest (in each case
to the extent that the payment of such interest shall be legally enforceable),
all of the Company's obligations in respect of the payment of the principal of
and premium and interest, if any, on the Securities of this series shall
terminate.]
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 of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, 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.
<PAGE>
26
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 with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made a
written request to the Trustee to institute proceedings in respect of such Event
of Default as Trustee and offered the Trustee reasonable indemnity, and the
Trustee shall not have received from the Holders of a majority in principal
amount of Securities of this series at the time Outstanding a direction
inconsistent with such request, and 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
premium or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall affect or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium 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 any place where the principal of and any
premium and interest on this Security are payable, 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
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The securities of this series are issuable only in registered form
without coupons in denominations of $[ ] and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
<PAGE>
27
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 2.04. Form of Legend for Global Securities. Unless otherwise
-------------------------------------
specified as contemplated by Section 3.01 for the Securities evidenced thereby,
every Global Security authenticated and delivered hereunder shall bear a legend
in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
DATED AS OF DECEMBER 18, 1997 BETWEEN UNITED PARCEL SERVICE OF
AMERICA, INC. AND CITIBANK, N.A., AS TRUSTEE (THE "INDENTURE") AND IS
REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE THEREOF. THIS
SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY
REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY
BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR
A NOMINEE THEREOF, EXCEPT IN THE CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.
SECTION 2.05. Form of Trustee's Certificate of Authentication. The
------------------------------------------------
Trustee's certificates of authentication shall be in substantially the following
form:
Dated: ____________________
This is one of the Securities of the series designated herein referred
to in the Indenture.
CITIBANK, N.A.,
as Trustee
By
---------------------------------
Authorized Signatory
ARTICLE III
<PAGE>
28
The Securities
--------------
SECTION 3.01. Amount Unlimited; Issuable in Series. The aggregate
-------------------------------------
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution or one or more indentures
supplemental hereto, prior to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 3.04, 3.05, 3.06, 9.06 or 11.07 and except for
any Securities which, pursuant to Section 3.03, are deemed never to have
been authenticated and delivered hereunder);
(3) the Person to whom any interest on a security of the series shall
be payable, if other than 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;
(4) the date or dates on which the principal of any Securities of the
series is payable;
(5) the rate or rates at which any Securities of the series shall bear
interest, if any, the date or dates from which any such interest shall
accrue, the Interest Payment Dates on which any such interest shall be
payable and the Regular Record Date for any such interest payable on any
Interest Payment Date;
(6) the place or places where the principal of and any premium and
interest on any Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at which
and the terms and conditions upon which any Securities of the series may be
redeemed, in whole or in part, at the option of the Company and, if other
than by a Board Resolution, the manner in which
<PAGE>
29
any election by the Company to redeem the Securities shall be evidenced;
(8) the obligation, if any, of the Company to redeem or purchase any
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of the Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions
upon which any Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Securities of the series shall be
issuable;
(10) if the amount of principal of or any premium or interest on any
Securities of the series may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts shall be
determined;
(11) if other than the currency of the United States of America, the
currency, currencies or currency units in which the principal of or any
premium or interest on any Securities of the series shall be payable and
the manner of determining the equivalent thereof in the currency of the
United States of America for any purpose, including for purposes of the
definition of "Outstanding" in Section 1.01;
(12) if the principal of or any premium or interest on any Securities
of the series is to be payable, at the election of the Company or the
Holder thereof, in one or more currencies or currency units other than that
or those in which such Securities are stated to be payable, the currency,
currencies or currency units in which the principal of or any premium or
interest on such Securities as to which such election is made shall be
payable, the periods within which and the terms and conditions upon which
such election is to be made and the amount so payable (or the manner in
which such amount shall be determined);
(13) if other than the entire principal amount thereof, the portion of
the principal amount of any Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 5.02;
(14) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more
dates prior to the
<PAGE>
30
Stated Maturity, the amount which shall be deemed to be the principal
amount of such Securities as of any such date for any purpose thereunder or
hereunder, including the principal amount thereof which shall be due and
payable upon any Maturity other than the Stated Maturity or which shall be
deemed to be Outstanding as of any date prior to the Stated Maturity (or,
in any such case, the manner in which such amount deemed to be the
principal amount shall be determined);
(15) if applicable, that the Securities of the series, in whole or any
specified part shall be defeasible pursuant to Section 13.02 and that
certain covenants of the Company shall be defeasible pursuant to Section
13.03 and, if other than by a Board Resolution, the manner in which any
election by the Company to defease such Securities or covenants shall be
evidenced;
(16) if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global Securities
and, in such case, the respective Depositaries for such Global Securities,
the form of any legend or legends which shall be borne by any such Global
Security in addition to or in lieu of that set forth in Section 2.04 and
any circumstances in addition to or in lieu of those set forth in Clause
(2) of the last paragraph of Section 3.05 in which any such Global Security
may be exchanged in whole or in part for Securities registered, and any
transfer of such Global Security in whole or in part may be registered, in
the name or names of Persons other than the Depositary for such Global
Security or a nominee thereof;
(17) any addition to or change in the Events of Default which applies
to any Securities of the series and any change in the right of the Trustee
or the requisite Holders of such Securities to declare the principal amount
thereof due and payable pursuant to Section 5.02;
(18) any addition to or change in the covenants set forth in Article X
which applies to Securities of the series; and
(19) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 9.01(5)).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board
<PAGE>
31
Resolution referred to above or indenture supplemental hereto referred to above.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution or indenture supplemental hereto, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 3.03 for the
authentication and delivery of such Securities.
SECTION 3.02. Denominations. The Securities of each series shall be
--------------
issuable only in registered form without coupons and only in such denominations
as shall be specified as contemplated by Section 3.01. In the absence of any
such specified denomination with respect to the Securities of any series, the
Securities of such series shall be issuable in denominations of $1,000 and any
integral multiple thereof.
SECTION 3.03. Execution, Authentication, Delivery and Dating. The
-----------------------------------------------
Securities shall be executed on behalf of the Company by its Chairman of the
Board, its Vice Chairman of the Board, its President or one of its Vice
Presidents, 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 the time of execution the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. In
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 6.01) shall be fully protected in
relying upon
(a) A copy of the resolution or resolutions of the Board of Directors in or
pursuant to which the terms and form of the Securities were established,
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 as of the date of such certificate, and if the terms and form of
such Securities are established by a Certificate pusuant to general
authorization of the Board of Directors, such Certificate;
(b) an executed supplemental indenture, if any;
(c) a Certificate delivered in accordance with Section 1.02; and
(d) an Opinion of Counsel which shall state:
<PAGE>
32
(1) that the form of such Securities does not violate or conflict with
the provisions of this Indenture;
(2) that the terms of such Securities do not violate or conflict with
the provisions of this Indenture;
(3) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and
(4) that all laws and requirements in respect of the execution and
delivery by the Company of such Securities have been complied with.
The Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken or if the Trustee
in good faith shall determine that such action would expose the Trustee to
personal liability to existing Holders.
Notwithstanding the provisions of Section 3.01 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the record of action, the Company
Order and Opinion of Counsel otherwise required thereby at or prior to the
authentication of each Security of such series, if such documents (with
appropriate modifications) are delivered at or prior to the authentication upon
original issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
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. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancelation as provided in Section 3.09, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 3.04. Temporary Securities. Pending the preparation of
---------------------
definitive Securities of any series, the Company may execute, and upon Company
Order the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or
<PAGE>
33
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 evidenced by their
execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancelation of any one
or more temporary Securities of any series, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and of
like tenor and aggregate principal amount. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series and tenor.
SECTION 3.05. Registration, Registration of Transfer and Exchange.
----------------------------------------------------
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 of the Company in a Place of Payment 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 of a
series at the office or agency of the Company in a Place of Payment for that
series, 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 the same series, of any authorized denominations and of like
tenor and aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and of
like tenor and aggregate principal amount, upon surrender of the Securities to
be exchanged at such office or agency.
<PAGE>
34
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustees shall authenticate and deliver, the Securities which
the Holder is entitled to receive.
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 3.04, 9.06 or 11.07 not involving any transfer.
If the Securities of any series (or of any series and specified tenor)
are to be redeemed in part, the Company shall not be required (A) to issue,
register the transfer of or exchange any Securities of that series (or of that
series and specified tenor as the case may be) during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of any such Securities selected for redemption under Section 11.03
and ending at the close of business on the day of such mailing, or (B) to
register the transfer of or exchange any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed
in part.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only
to Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global
Security or a nominee thereof and delivered to such Depositary or a nominee
thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
<PAGE>
35
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered,
and no transfer of a Global Security in whole or in part may be registered,
in the name of any Person other than the Depositary for such Global
Security or a nominee thereof unless (A) such Depositary (i) has notified
the Company that it is unwilling or unable to continue as Depositary for
such Global Security or (ii) has ceased to be a clearing agency registered
under the Exchange Act, (B) there shall have occurred and be continuing an
Event of Default with respect to such Global Security or (C) there shall
exist such circumstances, if any, in addition to or in lieu of the
foregoing as have been specified for this purpose as contemplated by
Section 3.01.
(3) Subject to Clause (2) above, any exchange of a Global Security
for other Securities may be made in whole or in part, and all Securities
issued in exchange for a Global Security or any portion thereof shall be
registered in such names as the Depositary for such Global Security shall
direct.
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Section, Section 3.04, 3.06, 9.06
or 11.07 or otherwise, shall be authenticated and delivered in the form of,
and shall be, a Global Security, unless such Security is registered in the
name of a Person other than the Depositary for such Global Security or a
nominee thereof.
SECTION 3.06. 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 the same series and of like tenor and principal amount and bearing a
number not contemporaneously outstanding.
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 the same series and of like
<PAGE>
36
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 of any series 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 of that series 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 3.07. Payment of Interest; Interest Rights Preserved. Except
-----------------------------------------------
as otherwise provided as contemplated by Section 3.01 with respect to any series
of Securities, 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 of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of
<PAGE>
37
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 of such series and the date
of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be given to each Holder of Securities
of such series in the manner set forth in Section 1.06, 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 of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this Clause, such 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.
<PAGE>
38
SECTION 3.08. 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 any premium and (subject to Section 3.07) any interest on such
Security and for all other purposes whatsoever, whether or not such Security is
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 3.09. Cancelation. All Securities surrendered for payment,
------------
redemption, registration of transfer or exchange or for credit against any
sinking fund payment shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and shall be promptly canceled by it. The Company
may at any time deliver to the Trustee for cancelation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and may deliver to the Trustee (or to any other Person for
delivery to the Trustee) for cancelation any Securities previously authenticated
hereunder which the Company has not issued and sold, 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 destroyed by the Trustee and the Trustee
shall send a certificate of destruction to the Company.
SECTION 3.10. Computation of Interest. Except as otherwise specified
------------------------
as contemplated by Section 3.01 for Securities of any series, interest on the
Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
SECTION 3.11. CUSIP Numbers. The Company in issuing the Securities
--------------
may use "CUSIP" numbers (if then generally in use), and, if so, the Trustee
shall use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
- --------
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the "CUSIP" numbers.
ARTICLE IV
Satisfaction and Discharge
--------------------------
SECTION 4.01. 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) upon the Trustee's receipt of a Company Request to that effect, and the
Trustee, at the expense of the Company,
<PAGE>
39
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture, when
(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 3.06 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 10.03) have been delivered to the Trustee for cancelation; or
(B) all such Securities not theretofore delivered to the Trustee
for cancelation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust money in an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the
Trustee for cancelation, for principal and any premium and interest to
the date of such deposit (in the case of Securities which have become
due and payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee a Certificate and an
Opinion of Counsel, which opinion may be given in all circumstances by an
employee of or counsel for the Company, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture have been complied with.
<PAGE>
40
Not withstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.07, the obligations of
the Company to any Authenticating Agent under Section 6.14 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 4.02 and the last
paragraph of Section 10.03 shall survive.
SECTION 4.02. Application of Trust Money. Subject to the provisions
---------------------------
of the last paragraph of Section 10.03, all money deposited with the Trustee
pursuant to Section 4.01 shall be held in trust (without liability for the
payment of interest thereon or the investment thereof) and applied by it, in
accordance with the provisions of the Securities and this Indenture, to the
payment of the principal and any premium and interest, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Persons entitled thereto, for whose payment
such money has been deposited with the Trustee.
ARTICLE V
Remedies
--------
SECTION 5.01. Event of Default. "Event of Default", wherever used
-----------------
herein with respect to Securities of any series, means any one of the following
events (whatever the reason for such Event of Default and whether it shall be
voluntary or 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 of that
series 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 or any premium on any
Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this
<PAGE>
41
Section specifically dealt with or which has expressly been included in
this Indenture solely for the benefit of series of Securities other than
that series), and continuance of such default or breach for a period of 60
days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of
at least 25% in principal amount of the Outstanding Securities of that
series a written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(5) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial
part of its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 60
consecutive days; or
(6) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the commencement of
any bankruptcy or insolvency case or proceeding against it, or the filing
by it of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or 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; or
<PAGE>
42
(7) any other Event of Default provided with respect to Securities of
that series.
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment. If
---------------------------------------------------
an Event of Default (other than an Event of Default specified in Section 5.01(5)
or 5.01(6)) with respect to Securities of any series at the time Outstanding
occurs and is continuing, then in every such case the Trustee or the Holders of
not less than 25% in principal amount of the Outstanding Securities of that
series may declare the principal amount of all Securities of that series (or, if
any Securities of that series are Original Issue Discount Securities, such
portion of the principal amount of such Securities as may be specified by the
terms thereof) 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 amount (or specified amount) shall become immediately due and
payable. If an Event of Default specified in Section 5.01(5) or 5.01(6) with
respect to Securities of any series at the time Outstanding occurs, the
principal amount of all the Securities of that series (or, if any Securities of
that series are Original Issue Discount Securities, such portion of the
principal amount of such Securities as may be specified by the terms thereof)
shall automatically, and without any declaration or other action on the part of
the Trustee or any Holder, become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration
of acceleration and any interest thereon at the rate or rates
prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest
<PAGE>
43
at the rate or rates prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and all
amounts owing the Trustee under Section 6.07; and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 5.03. 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 (or premium, if
any, on) 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 any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including all amounts owing the Trustee under Section 6.07.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series 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.
<PAGE>
44
SECTION 5.04. Trustee May File Proofs of Claim. In case of any
---------------------------------
judicial proceeding relative to the Company, 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 under
Section 6.07.
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 to
vote in respect of the claim of any Holder in any such proceeding; provided,
--------
however, that the Trustee may, on behalf of the Holders, vote for the election
- -------
of a trustee in bankruptcy or similar official and be a member of a creditors'
or other similar committee.
SECTION 5.05. 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 all amounts owing the Trustee under Section
6.07, be for the ratable benefit of the Holders of the Securities in respect of
which such judgment has been recovered.
SECTION 5.06. 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 any premium 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
6.07; and
<PAGE>
45
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium 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 any premium and interest,
respectively.
SECTION 5.07. Limitation on Suits. No Holder of any Security of any
--------------------
series shall have any right to institute any proceeding, judicial or otherwise,
with respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing itself of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other of such Holders, or to obtain or to seek to obtain priority or preference
over any other of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable benefit of
all of such Holders.
SECTION 5.08. Unconditional Right of Holder To Receive Principal,
---------------------------------------------------
Premium and Interest. Notwithstanding any other provision in this Indenture,
- ---------------------
the Holder of any Security shall have the right, which is absolute and
<PAGE>
46
unconditional, to receive payment of the principal of and any premium and
(subject to Section 3.07) interest on such Security on the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
SECTION 5.09. 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
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 5.10. 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 3.06, 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 5.11. Delay or Omission Not Waiver. No delay or omission of
-----------------------------
the Trustee or of any Holder of any Securities 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 5.12. Control by Holders. The Holders of a majority in
-------------------
principal amount of the Outstanding Securities of any series shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power
<PAGE>
47
conferred on the Trustee, with respect to the Securities of such series;
provided that
- --------
(1) such direction shall not be in conflict with any rule of law or
with this Indenture;
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction; and
(3) such direction shall not involve the Trustee in personal liability
or be unjustly prejudicial to Holders not joining therein (it being
understood that the Trustee shall have no responsibility to determine such
prejudice).
SECTION 5.13. Waiver of Past Defaults. The Holders of not less than
------------------------
a majority in principal amount of the Outstanding Securities of any series may
on behalf of the Holders of all the Securities of such series waive any past
default hereunder with respect to such series and its consequences, except a
default:
(1) in the payment of the principal of or any premium or interest on
any Security of such series; or
(2) in respect of a covenant or provision hereof which under Article
IX cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 5.14. Undertaking for Costs. In any suit for the enforcement
----------------------
of any right or remedy under this Indenture, or in any suit against the Trustee
or 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, including legal fees and expenses, and may assess costs against any such
party litigant, in the manner and to the extent provided in the Trust Indenture
Act; provided that neither this Section nor the Trust Indenture Act shall be
--------
deemed to authorize any court to require such an undertaking or to make such an
assessment in any suit instituted by the Trustee or the Holders of 10% in
aggregate principal amount of Outstanding Securities of any series.
SECTION 5.15. Waiver of Usury, Stay or Extension Laws. The Company
----------------------------------------
covenants (to the extent that it may
<PAGE>
48
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 usury, 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.
ARTICLE VI
The Trustee
-----------
SECTION 6.01. Certain Duties and Respons-ibilities. The duties and
-------------------------------------
responsibilities of the Trustee shall be as provided by this Indenture and the
Trust Indenture Act. Notwithstanding the foregoing, 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. 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 6.02. Notice of Defaults. If a default occurs hereunder with
-------------------
respect to Securities of any series, upon receipt of written notice thereof by a
Responsible Officer, the Trustee shall give the Holders of Securities of such
series notice of such default as and to the extent provided by Section 315(b) of
the Trust Indenture Act; provided, however, that in the case of any default of
-------- -------
the character specified in Section 5.01(4) with respect to Securities of such
series, no such notice to Holders shall be given until at least 60 days after
the occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would become,
an Event of Default with respect to Securities of such series.
SECTION 6.03. Certain Rights of Trustee. Subject to the provisions
--------------------------
of Section 6.01:
(1) the Trustee may conclusively rely and shall be protected in acting
or refraining from acting upon any resolution,
<PAGE>
49
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;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Certificate, Company Request or Company Order,
and any resolution of the Board of Directors shall be sufficiently
evidenced by a Board Resolution;
(3) 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 a Certificate;
(4) the Trustee may consult with counsel of its selection and the
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;
(5) 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;
(6) 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 at the sole cost of the Company
and shall incur no liability or additional liability of any kind by reason
of such inquiry or investigation;
(7) 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
<PAGE>
50
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
(8) the Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Indenture; and
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities.
-------------------------------------------------------
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and neither the Trustee nor any Authenticating Agent assumes any responsibility
for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities except that each
represents that it is duly authorized to execute this Indenture. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 6.05. May Hold Securities. The Trustee, any Authenticating
--------------------
Agent, any Paying Agent, any Security Registrar or any other agent of the
Company or the Trustee, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to Sections 6.08 and 6.13, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such
other agent.
SECTION 6.06. 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 or
investment of any money received by it hereunder except as otherwise agreed in
writing with the Company, and any interest on or investment of any money
received by it shall be for the exclusive benefit of the Company.
SECTION 6.07. Compensation and Reimbursement. The Company agrees:
-------------------------------
(1) to pay to the Trustee from time to time such compensation as the
Company and the Trustee shall agree in writing 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 to the extent that any
such
<PAGE>
51
expense, disbursement or advance may be attributable to its negligence or
bad faith; and
(3) to indemnify each of the Trustee and any predecessor Trustee
(which for purposes of this Section 6.07 shall include its directors,
officers, employees and agents) for, and to defend and hold it harmless
against, any and all loss, damages claim, liability or expense, including
taxes (other than taxes based on the income of the Trustee) arising out of
or in connection with the acceptance or administration of the trust or
trusts hereunder or the performance of its duties hereunder, including the
costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder, except to the extent any such loss, liability or expense may be
attributable to its negligence or bad faith.
To secure the Company's payment of obligations in this Section 6.07, the Trustee
shall have a lien prior to the Securities on all money or property held or
collected by the Trustee other than money or property held in trust to pay
principal of and interest and any premium on particular Securities.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 5.01(5) or Section 5.01(6), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency or
other similar law.
The Company's payment obligations pursuant to this Section 6.07 shall
survive the discharge of this Indenture and the resignation, removal or
replacement of the Trustee.
"Trustee" for purposes of this Section 6.07 includes the Trustee,
every predecessor Trustee, any Paying Agent, Authenticating Agent, Registrar or
other agent of the Company or the Trustee appointed hereunder, but the
negligence or bad faith of any such person shall not affect the rights of any
other such person under this Section 6.07.
SECTION 6.08. 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. To the extent permitted by such Act, the Trustee shall
not be deemed to have a conflicting interest by virtue of being a trustee under
this Indenture with respect to Securities of more than one series.
SECTION 6.09. Corporate Trustee Required; Eligibility. There shall
----------------------------------------
at all times be one (and only one) Trustee hereunder with respect to the
Securities of each series, which may be the Trustee hereunder for Securities of
one or more other series. Each Trustee shall be a Person that is eligible
pursuant to the Trust Indenture Act to act
<PAGE>
52
as such and has a combined capital and surplus of at least $50,000,000. If any
such Person publishes reports of condition at least annually, pursuant to law or
to the requirements of its supervising or examining authority, then for the
purposes of this Section and to the extent permitted by the Trust Indenture Act,
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 with respect to the Securities of any
series 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 6.10. Resignation and Removal; Appointment of Successor. 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 in accordance with the applicable
requirements of Section 6.11.
The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 6.11 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition, at the expense of the
Company, any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
The Trustee may be removed at any time with respect to the Securities
of any series, with or without cause, by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series, delivered to the
Trustee and to the Company. If the instrument or acceptance by a successor
Trustee required by Section 6.11 shall not have been delivered to the Trustee
within 30 days after the giving of such notice or removal, the Trustee being
removed may petition, at the expense of the Company, any court of competent
jursidiction for the appointment of a successor Trustee with respect to the
Securities of such series.
If at any time:
(1) the Trustee shall fail to comply with Section 6.08 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, or
(2) the Trustee shall cease to be eligible under Section 6.09 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
<PAGE>
53
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (A) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (B) subject to Section 5.14, 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 with respect to all
Securities and the appointment of a successor Trustee or Trustees.
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 reason, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 6.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
6.11, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 6.11, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series to all Holders
of Securities of such series in the manner provided in Section 1.06. Each
notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
<PAGE>
54
SECTION 6.11. Acceptance of Appointment by Successor. In case of the
---------------------------------------
appointment hereunder of a successor Trustee with respect to all Securities,
every such successor Trustee so appointed shall execute, acknowledge and deliver
to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with respect to the Securities
of that or those series to which the appointment of such successor Trustee
<PAGE>
55
relates; but, on request of the Company or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates.
Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in the
first or second preceding paragraph, as the case may be.
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 6.12. 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 6.13. 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).
SECTION 6.14. Appointment of Authenticating Agent. The Trustee may
------------------------------------
appoint an Authenticating Agent or Agents with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issue and upon
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 3.06, 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
<PAGE>
56
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by Federal or state authorities. 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 acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 1.06 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested
<PAGE>
57
with all the rights, powers and duties of its predecessor hereunder, with like
effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated herein referred
to in the Indenture.
Dated:
CITIBANK, N.A.,
As Trustee
by
---------------------------------------------
As Authenticating Agent
by
---------------------------------------------
Authorized Signatory
SECTION 6.15. Trustee's Application for Instructions from the
-----------------------------------------------
Company. Any application by the Trustee for written instructions from the
- -------
Company may, at the option of the Trustee, set forth in writing any action
proposed to be taken or omitted by the Trustee under this Indenture and the date
on and/or after which such action shall be taken or such omission shall be
effective. The Trustee shall not be liable for any action taken by, or omission
of, the Trustee in accordance with a proposal included in such application on or
after the date specified in such application (which date shall not be less than
three Business Days after the date any officer of the Company actually receives
such application, unless any such officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date in
the case of an omission), the Trustee shall have received written instructions
in response to such application specifying the action to be taken or omitted.
ARTICLE VII
Holders' Lists and Reports by Trustee and Company
-------------------------------------------------
SECTION 7.01. Company To Furnish Trustee Names and Addresses of
-------------------------------------------------
Holders. The Company will furnish or cause to be furnished to the Trustee:
- --------
(1) semiannually, not later than March 31 and September 30 in each
year, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders of Securities of each series as of the
preceding March 16 or September 15, as the case may be, and
(2) 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
<PAGE>
58
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 7.02. Preservation of Information; Communications to Holders.
-------------------------------------------------------
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 7.01 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 7.01 upon
receipt of a new list so furnished.
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 privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
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 7.03. Reports by Trustee. The Trustee shall transmit to
-------------------
Holders such reports, if any, 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.
If required by Section 313(a) of the Trust Indenture Act, the
Trustee shall, within sixty days after each May 15 following the date of this
Indenture deliver to Holders a brief report, dated as of such May 15, which
complies with the provisions of such Section 313(a).
A copy of each such report shall at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will promptly notify the Trustee when any Securities are listed on any stock
exchange.
SECTION 7.04. 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 Exchange Act
shall be filed with the Trustee within 15 days after the same is so required to
be filed with the Commission.
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Certificates).
<PAGE>
59
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
----------------------------------------------------
SECTION 8.01. Company May Consolidate, Etc. Only on Certain Terms.
----------------------------------------------------
The Company shall not consolidate with or merge with or into any other Person or
convey, transfer or lease all or substantially all of its properties and assets
substantially as an entirety to any Person, unless:
(1) either (a) the Company shall be the continuing corporation or (b)
the Person (if other than the Company) formed by such consolidation or into
which the Company is merged or the Person which acquires by conveyance,
transfer, or lease, the properties and assets of the Company substantially
as an entirety shall be a corporation, partnership or trust, 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, in form
satisfactory to the Trustee, the due and punctual payment of the principal
of and any premium and interest on all the Notes and the performance 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 (and treating
any Indebtedness which becomes an obligation of the Company or any
Subsidiary in connection with or as a result of such transaction as having
been incurred at the time of 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) the Company or such Person has delivered to the Trustee a
Certificate and an Opinion of Counsel, as to which opinion counsel may rely
on the Certificate as to factual matters, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a supplemental
indenture is required in connection with such transaction, such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for or relating to such transaction have been
satisfied.
SECTION 8.02. Successor Substituted. Upon any consolidation or
----------------------
merger, or any conveyance, transfer or lease of the properties and assets of the
Company substantially as an entirety in accordance with
<PAGE>
60
Section 8.01, the successor Person formed by such consolidation or into which
the Company is merged or the successor Person to which such conveyance, transfer
or lease is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same effect
as if such successor had been named as the Company herein; and thereafter,
except in the case of a lease, the Company shall be discharged from all
obligations and covenants under this Indenture, the Agency Agreement and the
Securities.
ARTICLE IX
Supplemental Indentures
-----------------------
SECTION 9.01. 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, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such additional Events
of Default are to be for the benefit of less than all series of Securities,
stating that such additional Events of Default are expressly being included
solely for the benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more
<PAGE>
61
series of Securities; provided that any such addition, change or
--------
elimination (A) shall neither (i) apply to any Security of any series
created prior to the execution of such supplemental indenture and entitled
to the benefit of such provision nor (ii) modify the rights of the Holder
of any such Security with respect to such provision or (B) shall become
effective only when there is no such Security Outstanding; or
(6) to secure the Securities pursuant to the requirements of Section
10.06 or otherwise; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 3.01; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 6.11; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture; provided that such action pursuant
--------
to this Clause (9) shall not adversely affect the interests of the Holders
of Securities of any series in any material respect; or
(10) to add to or change or eliminate any provision of this Indenture
as shall be necessary or desirable in accordance with any amendments to the
Trust Indenture Act, provided such action shall not adversely affect the
interest of Holders of Securities of any series in any material respect.
SECTION 9.02. Supplemental Indentures with Consent of Holders. With
------------------------------------------------
the consent of the Holders of not less than a majority in principal amount of
the Outstanding Securities of each series affected by such supplemental
indenture, by Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Securities of such series under this Indenture; provided, however, that no such
-------- -------
<PAGE>
62
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable upon
the redemption thereof, or reduce the amount of the principal of an
Original Issue Discount Security or any other Security which would be due
and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.02, or change any Place of Payment when, or the coin
or currency in which, any Security or any premium 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, in the case of
redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 5.13 or
Section 10.10, except to increase any percentages set forth therein 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; provided, however, that this clause shall not be deemed
-------- -------
to require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section and
Section 10.10 in accordance with the requirements of Sections 6.11 and
9.01(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders 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.
<PAGE>
63
SECTION 9.03. 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
6.01) shall be fully protected in relying upon, an Opinion of Counsel and
Certificate stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures. Upon the execution
----------------------------------
of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
SECTION 9.05. Conforming with Trust Indenture Act. Every
------------------------------------
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act.
SECTION 9.06. Reference in Securities to Supplemental Indentures.
---------------------------------------------------
Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE X
Covenants
---------
SECTION 10.01. Payment of Principal, Premium and Interest. The
-------------------------------------------
Company covenants and agrees for the benefit of each series of Securities that
it will duly and punctually pay the principal of and any premium and interest on
the Securities of that series in accordance with the terms of the Securities and
this Indenture.
<PAGE>
64
SECTION 10.02. Maintenance of Office or Agency. The Company will
--------------------------------
maintain in each Place of Payment for any series of Securities an office or
agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. 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.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
-------- -------
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
SECTION 10.03. Money for Securities Payments To Be Held in Trust. If
--------------------------------------------------
the Company shall at any time act as its own Paying Agent with respect to any
series of Securities, it will, on or before each due date of the principal of or
any premium or interest on any of the Securities of that series, segregate and
hold in trust for the benefit of the Persons entitled thereto a sum sufficient
to pay the principal and any premium and interest so becoming due until such
sums shall be paid to such Persons or otherwise disposed of as herein provided
and will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of or any
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
<PAGE>
65
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (1) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, upon the written request of the Trustee, forthwith
pay to the Trustee all sums held in trust by such Paying Agent for payment in
respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company, 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.
SECTION 10.04. Statement by Officers as to Default.
------------------------------------
(1) The Company will deliver to the Trustee, within 120 days after the
end of each fiscal year of the Company ending after the date hereof, a
Certificate signed by the principal executive, principal financial or principal
accounting officer of the Company stating whether or not, after a review under
each signer's supervision of the activities of the Company during such year and
of the Company's performance under this Indenture, to the best knowledge, based
on such review, of the signers thereof, the Company has fulfilled all its
obligations under this Indenture throughout such year, and, if there has been a
default in the fulfillment of any such obligation, specifying each default and
the nature and status thereof.
<PAGE>
66
(2) When any event has occurred and is continuing which is, or after
notice or lapse of time or both would become, an Event of Default, or if the
Trustee or any Holder or the Trustee for or the holder of any other evidence of
Indebtedness of the Company or any Subsidiary gives any notice or takes any
other action with respect to a claimed default, the Company shall deliver to the
Trustee by registered or certified mail or by telegram, telex or facsimile
transmission a Certificate specifying such event, notice or other action within
five Business Days of its occurrence.
SECTION 10.05. Existence. Subject to Article VIII, the Company will
----------
do or cause to be done all things necessary to preserve and keep in full force
and effect its existence, rights (charter and statutory) and franchises;
provided, however, that the Company shall not be required to preserve any such
- -------- -------
right or franchise if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and that the loss thereof is not disadvantageous in any material
respect to the Holders.
SECTION 10.06. Limitation on Secured Debt. The Company will not
---------------------------
create, assume, incur or guarantee, and will not permit any Restricted
Subsidiary to create, assume, incur or guarantee, any Secured Indebtedness
without making provision whereby all the Securities shall be secured equally and
ratably with (or prior to) such Secured Indebtedness (together with, if the
Company shall so determine, any other Indebtedness of the Company or such
Restricted Subsidiary then existing or thereafter created which is not
subordinate to the Securities) so long as such Secured Indebtedness shall be
outstanding unless such Secured Indebtedness, when added to (a) the aggregate
amount of all Secured Indebtedness then outstanding (not including in this
computation Secured Indebtedness if the Securities are secured equally and
ratably with (or prior to) such Secured Indebtedness and further not including
in this computation any Secured Indebtedness which is concurrently being
retired) and (b) the aggregate amount of all Attributable Debt then outstanding
pursuant to Sale and Leaseback Transactions entered into by the Company After
December 18, 1997, or entered into by a Restricted Subsidiary after December
18, 1997 or, if later, the date on which it became a Restricted Subsidiary
(not including in this computation any Attributable Debt which is concurrently
being retired), would not exceed 10% of Consolidated Net Tangible Assets.
SECTION 10.07. Limitation on Sale and Leaseback Transactions. The
----------------------------------------------
Company will not, and will not permit any Restricted Subsidiary to, enter into
any Sale and Leaseback Transaction unless (a) the sum of (i) the Attributable
Debt
<PAGE>
67
to be outstanding pursuant to such Sale and Leaseback Transaction, (ii) all
Attributable Debt then outstanding pursuant to all other Sale and Leaseback
Transactions entered into by the Company after December 18, 1997, or entered
into by a Restricted Subsidiary after December 18, 1997 or, if later, the date
on which it became a Restricted Subsidiary, and (iii) the aggregate of all
Secured Indebtedness then outstanding (not including in this computation Secured
Indebtedness if the Securities are secured equally and ratably with (or prior
to) such Secured Indebtedness) would not exceed 10% of Consolidated Net Tangible
Assets or (b) an amount equal to the greater of (i) the net proceeds to the
Company or the Restricted Subsidiary of the sale of the Principal Property sold
and leased back pursuant to such Sale and Leaseback Transaction and (ii) the
amount of Attributable Debt to be outstanding pursuant to such Sale and
Leaseback Transaction is applied to the retirement of Funded Debt of the Company
or any Restricted Subsidiaries (other than Funded Debt which is subordinate to
the Securities or which is owing to the Company or any Restricted Subsidiaries)
within 180 days after the consummation of such Sale and Leaseback Transaction.
SECTION 10.08. Waiver of Certain Covenants. Except as otherwise
----------------------------
specified as contemplated by Section 3.01 for Securities of such series, the
Company may, with respect to the Securities of any series, omit in any
particular instance to comply with any term, provision or condition set forth in
any covenant provided pursuant to Section 3.01(18), 9.01(2) or 9.01(7) for the
benefit of the Holders of such series or Sections 10.06 and 10.07, if before the
time for such compliance the Holders of at least a majority in principal amount
of the Outstanding Securities of such series shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such term, provision or condition, but no such waiver shall extend to or affect
such term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
SECTION 10.09. Calculation of Original Issue Discount. The Company
--------------------------------------
shall file with the Trustee promptly at the end of each calendar year (i) a
written notice specifying the amount of original issue discount (including daily
rates and accrual periods) accrued on Outstanding Securities as of the end of
such year and (ii) such other specific information relating to such original
issue discount as may then be relevant under the Internal Revenue Code of 1986,
as amended from time to time.
ARTICLE XI
Redemption of Securities
------------------------
SECTION 11.01. Applicability of Article. Securities of any series
-------------------------
which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise specified as contemplated
by
<PAGE>
68
Section 3.01 for such Securities) in accordance with this Article.
SECTION 11.02. Election to Redeem; Notice to Trustee. The election
--------------------------------------
of the Company to redeem any Securities shall be evidenced by a Board Resolution
or in another manner specified as contemplated by Section 3.01 for such
Securities. In case of any redemption at the election of the Company, the
Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date, of the principal amount of Securities of
such series to be redeemed and, if applicable, of the tenor of the Securities to
be redeemed. In the case of any redemption of Securities prior to the expiration
of any restriction on such redemption provided in the terms of such Securities
or elsewhere in this Indenture, the Company shall furnish the Trustee with an
Certificate evidencing compliance with such restriction.
SECTION 11.03. Selection by Trustee of Securities To Be Redeemed. If
--------------------------------------------------
less than all the Securities of any series are to be redeemed (unless all the
Securities of such series and of a specified tenor are to be redeemed or unless
such redemption affects only a single Security), the particular Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption Date by
the Trustee, from the Outstanding Securities of such series not previously
called for redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of a portion
of the principal amount of any Security of such series; provided that the
--------
unredeemed portion of the principal amount of any Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security. If less than all the Securities of such series
and of a specified tenor are to be redeemed (unless such redemption affects only
a single Security), the particular Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series and specified tenor not previously called
for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption as aforesaid and, in the case of any
Securities selected for partial redemption as aforesaid, the principal amount
thereof to be redeemed.
<PAGE>
69
The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting a single Security, whether such Security is
to be redeemed in whole or in part. In the case of any such redemption in part,
the unredeemed portion of the principal amount of the Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 11.04. Notice of Redemption. Notice of redemption shall be
---------------------
given by first-class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the Redemption Date, to each Holder of Securities to be
redeemed, at his address appearing in the Security Register.
All notices of redemption shall identify the Securities to be redeemed
(including CUSIP number(s)) and shall state:
(1) the Redemption Date;
(2) the Redemption Price and any accrued interest;
(3) if less than all the Outstanding Securities of any series
consisting of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any such
Securities the principal amounts) of the particular Securities to be
redeemed and, if a single Security is to be partially redeemed, the
principal amount of such Security to be redeemed;
(4) that on the Redemption Date the Redemption Price and any
accrued interest will become due and payable upon each such Security
to be redeemed and, if applicable, that interest thereon will cease to
accrue on and after said date (unless the Company shall default in the
payment of the Redemption Price and accrued interest);
(5) the place or places where each such Security is to be
surrendered for payment of the Redemption Price and any accrued
interest; and
<PAGE>
70
(6) that the redemption is for a sinking fund, if such is the
case.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
SECTION 11.05. Deposit of Redemption Price. Prior to any Redemption
----------------------------
Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if
the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.03) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities which are to be redeemed on that date.
SECTION 11.06. Securities Payable on Redemption Date. Notice of
--------------------------------------
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any such Security
for redemption in accordance with said notice, such Security shall be paid by
the Company at the Redemption Price, together with accrued interest to the
Redemption Date provided, however, that, unless otherwise specified as
-------- -------
contemplated by Section 3.01, installments of interest whose Stated Maturity is
on or prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 3.07.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
SECTION 11.07. Securities Redeemed in Part. Any Security which is to
----------------------------
be redeemed only in part shall be surrendered at a Place of Payment therefor
(with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a new Security or
Securities of the same series and
<PAGE>
71
of like tenor, of any authorized denomination as requested by such Holder, in an
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
ARTICLE XII
Sinking Funds
-------------
SECTION 12.01. Applicability of Article. The provisions of this
-------------------------
Article shall be applicable to any sinking fund for the retirement of Securities
of any series except as otherwise specified as contemplated by Section 3.01 for
such Securities.
The minimum amount of any sinking fund payment provided for by the
terms of any Securities is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of such Securities is herein referred to as an "optional sinking fund
payment". If provided for by the terms of any Securities, the cash amount of
any sinking fund payment may be subject to reduction as provided in Section
12.02. Each sinking fund payment shall be applied to the redemption of
Securities as provided for by the terms of such Securities.
SECTION 12.02. Satisfaction of Sinking Fund Payments with Securities.
------------------------------------------------------
The Company (1) may deliver Outstanding Securities of a series (other than any
previously called for redemption) and (2) may apply as a credit Securities of a
series which have been redeemed either at the election of the Company pursuant
to the terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of any sinking fund payment with respect to any
Securities of such series required to be made pursuant to the terms of such
Securities as and to the extent provided for by the terms of such Securities;
provided that the Securities to be so credited have not been previously so
- --------
credited. The Securities to be so credited shall be received and credited for
such purpose by the Trustee at the Redemption Price, as specified in the
Securities so to be redeemed, for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
SECTION 12.03. Redemption of Securities for Sinking Fund. Not less
------------------------------------------
than 60 days prior to each sinking fund payment date for any Securities, the
Company will deliver to the Trustee a Certificate specifying the amount
<PAGE>
72
of the next ensuing sinking fund payment for such Securities pursuant to the
terms of such Securities, the portion thereof, if any, which is to be satisfied
by payment of cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities pursuant to Section 12.02 and will also
deliver to the Trustee any Securities to be so delivered. Not less than 30 days
prior to each such sinking fund payment date, the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 11.03 and cause notice of the redemption thereof to be
given in the name of and at the expense of the Company in the manner provided in
Section 11.04. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
11.06 and 11.07.
ARTICLE XIII
Defeasance and Covenant Defeasance
----------------------------------
SECTION 13.01. Company's Option To Effect Defeasance or Covenant
-------------------------------------------------
Defeasance. The Company may elect, at its option at any time, to have Section
- -----------
13.02 or Section 13.03 applied to any Securities or any series of Securities, as
the case may be, designated pursuant to Section 3.01 as being defeasible
pursuant to such Section 13.02 or 13.03, in accordance with any applicable
requirements provided pursuant to Section 3.01 and upon compliance with the
conditions set forth below in this Article. Any such election shall be
evidenced by a Board Resolution or in another manner specified as contemplated
by Section 3.01 for such Securities.
SECTION 13.02. Defeasance and Discharge. Upon the Company's exercise
-------------------------
of its option (if any) to have this Section applied to any Securities or any
series of Securities, as the case may be, the Company shall be deemed to have
been discharged from its obligations with respect to such Securities as provided
in this Section on and after the date the conditions set forth in Section 13.04
are satisfied (hereinafter called "Defeasance"). For this purpose, such
Defeasance means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by such Securities and to have satisfied all
its other obligations under such Securities and this Indenture insofar as such
Securities are concerned (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), subject to the following
which shall survive until otherwise terminated or discharged hereunder: (1) the
rights of Holders of such Securities to receive, solely from the trust fund
described in
<PAGE>
73
Section 13.04 and as more fully set forth in such Section, payments in respect
of the principal of and any premium and interest on such Securities when
payments are due, (2) the Company's obligations with respect to such Securities
under Sections 3.04, 3.05, 3.06, 10.02 and 10.03, (3) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and (4) this Article.
Subject to compliance with this Article, the Company may exercise its option (if
any) to have this Section applied to any Securities notwithstanding the prior
exercise of its option (if any) to have Section 13.03 applied to such
Securities.
SECTION 13.03. Covenant Defeasance. Upon the Company's exercise of
--------------------
its option (if any) to have this Section applied to any Securities or any series
of Securities, as the case may be, (1) the Company shall be released from its
obligations under Section 8.01, Sections 10.05 through 10.07, inclusive, and any
covenants provided pursuant to Section 3.01(18), 9.01(2) or 9.01(7) for the
benefit of the Holders of such Securities and (2) the occurrence of any event
specified in Sections 5.01(4) (with respect to any of Section 8.01(3), Sections
10.06 through 10.07, inclusive, and any such covenants provided pursuant to
Section 3.01(18), 9.01(2) or 9.01(7)), 5.01(5) and 5.01(7) shall be deemed not
to be or result in an Event of Default, in each case with respect to such
Securities as provided in this Section on and after the date the conditions set
forth in Section 13.04 are satisfied (hereinafter called "Covenant Defeasance").
For this purpose, such Covenant Defeasance means that, with respect to such
Securities, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such specified
Section (to the extent so specified in the case of Section 5.01(4)), whether
directly or indirectly by reason of any reference elsewhere herein to any such
Section or by reason of any reference in any such Section to any other provision
herein or in any other document, but the remainder of this Indenture and such
Securities shall be unaffected thereby.
SECTION 13.04. Conditions To Defeasance or Covenant Defeasance. The
------------------------------------------------
following shall be the conditions to the application of Section 13.02 or Section
13.03 to any Securities or any series of Securities, as the case may be:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee which satisfies the
requirements contemplated by Section 6.09 and agrees to comply with the
provisions of this Article applicable to it) as trust funds in trust for
the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of such
<PAGE>
74
Securities, (A) money in an amount, or (B) U.S. Government Obligations
which through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than one day
before the due date of any payment, money in an amount, or (C) a
combination thereof, in each case sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or any such other
qualifying trustee) to pay and discharge, the principal of and any premium
and interest on such Securities on the respective Stated Maturities, in
accordance with the terms of this Indenture and such Securities. As used
herein, "U.S. Government Obligation" means (x) any security which is (i) a
direct obligation of the United States of America for the payment of which
the full faith and credit of the United States of America is pledged or
(ii) an obligation of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America the payment of
which is unconditionally guaranteed as a full faith and credit obligation
by the United States of America, which in either case (i) or (ii), is not
callable or redeemable at the option of the issuer thereof, and (y) any
depositary receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act) as custodian with respect to any U.S. Government Obligation
which is specified in Clause (x) above and held by such bank for the
account of the holder of such depositary receipt, or with respect to any
such payment of principal of or interest on any U.S. Government Obligation
which is so specified and held; provided that (except as required by law)
--------
such custodian is not authorized to make any deduction from the amount
payable to the holder of such depositary receipt from any amount received
by the custodian in respect of the U.S. Government Obligation or the
specific payment of principal or interest evidenced by such depositary
receipt.
(2) In the event of an election to have Section 13.02 apply to any
Securities or any series of Securities, as the case may be, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (A)
the Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the date of this instrument, there
has been a change in applicable Federal income tax law, in either case (A)
or (B) to the effect that, and based thereon such opinion shall confirm
that, the Holders of such Securities will not recognize gain or loss for
<PAGE>
75
Federal income tax purposes as a result of the deposit, Defeasance and
discharge to be effected with respect to such Securities and will be
subject to Federal income tax on the same amount, in the same manner and at
the same times as would be the case if such deposit, Defeasance and
discharge were not to occur.
(3) In the event of an election to have Section 13.03 apply to any
Securities or any series of Securities, as the case may be, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of such Securities will not recognize gain or loss for
Federal income tax purposes as a result of the deposit and Covenant
Defeasance to be effected with respect to such Securities and will be
subject to Federal income tax on the same amount, in the same manner and at
the same times as would be the case if such deposit and Covenant Defeasance
were not to occur.
(4) The Company shall have delivered to the Trustee an Officer's
Certificate to the effect that neither such Securities nor any other
Securities of the same series, if then listed on any securities exchange,
will be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to such Securities or any other
Securities shall have occurred and be continuing at the time of such
deposit or, with regard to any such event specified in Section 5.01(5) and
(6), at any time on or prior to the 90th day after the date of such deposit
(it being understood that this condition shall not be deemed satisfied
until after such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act.
(7) Such Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any other agreement
or instrument to which the Company is a party or by which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in the
trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act unless such trust shall be
registered under such Act or exempt from registration thereunder.
<PAGE>
76
(9) The Company shall have delivered to the Trustee a Certificate and
an Opinion of Counsel, which opinion may be given in all circumstances by
an employee of or counsel for the Company, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
SECTION 13.05. Deposited Money and U.S. Government Obligations To Be
-----------------------------------------------------
Held in Trust; Miscellaneous Provisions. Subject to the provisions of the last
- ----------------------------------------
paragraph of Section 10.03, all money and U.S. Government Obligations (including
the proceeds thereof) deposited with the Trustee pursuant to Section 13.04 in
respect of any Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any such Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Holders of
such Securities, of all sums due and to become due thereon in respect of
principal and any premium and interest, but money so held in trust need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 13.04 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or U.S. Government Obligations held by it as provided in Section 13.04
with respect to any Securities which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, are in excess of the amount thereof which
would then be required to be deposited to effect the Defeasance or Covenant
Defeasance, as the case may be, with respect to such Securities.
SECTION 13.06. Reinstatement. If the Trustee or the Paying Agent is
--------------
unable to apply any money in accordance with this Article with respect to any
Securities by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
the obligations under this Indenture and such Securities from which the Company
has been discharged or released pursuant to Section 13.02 or 13.03 shall be
revived and reinstated as though no deposit had
<PAGE>
77
occurred pursuant to this Article with respect to such Securities, until such
time as the Trustee or Paying Agent is permitted to apply all money held in
trust pursuant to Section 13.05 with respect to such Securities in accordance
with this Article; provided, however, that if the Company makes any payment of
-------- -------
principal of or any premium or interest on any such Security following such
reinstatement of its obligations, the Company shall be subrogated to the rights
(if any) of the Holders of such Securities to receive such payment from the
money so held in trust.
___________________
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
<PAGE>
78
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
UNITED PARCEL SERVICE OF AMERICA, INC.
by
[SEAL] -------------------------------
Title
Attest:
- --------------------------------
Assistant Secretary
CITIBANK, N.A., as Trustee
[SEAL] by
-----------------------------
Title:
Attest:
- --------------------------------
Title:
<PAGE>
79
STATE OF )
) ss.:
COUNTY OF )
On the day of , before me personally came ,
to me known, who, being by me duly sworn, did depose and say that he is
of United Parcel Service of America, Inc. one of the corporations described in
and which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
----------------------------------
STATE OF )
) ss.:
COUNTY OF )
On the day of , before me personally came ,
to me known, who, being by me duly sworn, did depose and say that he is
of Citibank, N.A., one of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation; and that he signed his
name thereto by like authority.
----------------------------------
<PAGE>
NOTICE OF GUARANTEED DELIVERY
IN RESPECT OF
8 3/8% DEBENTURES DUE 2020
OF
UNITED PARCEL SERVICE OF AMERICA, INC.
PURSUANT TO THE OFFERING CIRCULAR
DATED DECEMBER 18, 1997
The Exchange Agent for the Exchange Offer is:
CITIBANK, N.A.
<TABLE>
<CAPTION>
By Mail: By Overnight Courier Delivery: By Hand:
<S> <C> <C>
Citibank, N.A. Citibank, N.A. Citibank, N.A.
c/o Citicorp Data Distribu- c/o Citicorp Data Distribu- Corporate Trust Window
tion, Inc. tion, Inc. 111 Wall Street, 5th Floor
P.O. Box 7072 404 Sette Drive New York, New York 10043
Paramus, New Jersey 07653 Paramus, New Jersey 07652
</TABLE>
Facsimile for Eligible Institutions:
(201) 262-3240
Facsimile Confirmation Only:
(800) 422-2077
For information:
(800) 422-2077
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS, OR
TRANSMISSION VIA FACSIMILE TO A NUMBER, OTHER THAN AS SET FORTH ABOVE WILL NOT
CONSTITUTE VALID DELIVERY.
As set forth in the Offering Circular dated December 18, 1997 (as it may be
supplemented and amended from time to time, the "Offering Circular") of United
Parcel Service of America, Inc. (the "Company") under "The Exchange Offer--
Guaranteed Delivery Procedures," and in the Instructions to the related Letter
of Transmittal (the "Letter of Transmittal"), this form, or one substantially
equivalent hereto, or an Agent's Message relating to the guaranteed delivery
procedures, must be used to accept the Company's offer (the "Exchange Offer")
to exchange any and all of its outstanding 8 3/8% Debentures Due 2020 (the
"Old 2020 Debentures"), for Debentures Due 2030 (the "New 2030 Debentures"),
if time will not permit the Letter of Transmittal, certificates representing
such Old 2020 Debentures and other required documents to reach the Exchange
Agent, or the procedures for book-entry transfer cannot be completed, on or
prior to the Expiration Date (as defined herein).
This form must be delivered by an Eligible Institution (as defined herein)
by facsimile transmission, mail or hand delivery to the Exchange Agent as set
forth above. If a signature on the Letter of Transmittal is required to be
guaranteed by a Medallion Signature Guarantor under the instructions thereto,
such signature guarantee must appear in the applicable space provided in the
Letter of Transmittal. This form is not to be used to guarantee signatures.
Questions and requests for assistance and requests for additional copies of
the Offering Circular may be directed to the Exchange Agent at the address
above. Beneficial owners may also contact their broker, dealer, commercial
bank, trust company, or other nominee for assistance concerning the Exchange
Offer.
- --------------------------------------------------------------------------------
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK
CITY TIME, ON THURSDAY, JANUARY 22, 1998, UNLESS EXTENDED ("THE EXPIRATION
DATE").
- --------------------------------------------------------------------------------
<PAGE>
LADIES AND GENTLEMEN:
The undersigned hereby tender(s) to the Company, upon the terms and subject
to the conditions set forth in the Offering Circular and the Letter of
Transmittal (receipt of which is hereby acknowledged), the principal amount of
the Old 2020 Debentures specified below pursuant to the guaranteed delivery
procedures set forth in the Offering Circular under "The Exchange Offer--
Guaranteed Delivery Procedures" and in Instruction 2 to the Letter of
Transmittal. The undersigned hereby authorizes the Exchange Agent to deliver
this Notice of Guaranteed Delivery to the Company with respect to the Old 2020
Debentures tendered pursuant to the Exchange Offer.
The undersigned understands that Old 2020 Debentures will be exchanged only
after timely receipt by the Exchange Agent of (i) such Old 2020 Debentures, or
a Book-Entry Confirmation, and (ii) a Letter of Transmittal (or a manually
signed facsimile thereof), including by means of an Agent's Message, of the
transfer of such Old 2020 Debentures into the Exchange Agent's account at the
Book-Entry Transfer Facility, with respect to such Old 2020 Debentures,
properly completed and duly executed, with any signature guarantees and any
other documents required by the Letter of Transmittal within three New York
Stock Exchange trading days after the execution hereof. The undersigned also
understands that the method of delivery of this Notice of Guaranteed Delivery
and any other required documents to the Exchange Agent is at the election and
sole risk of the Holder, and the delivery will be deemed made only when
actually received by the Exchange Agent.
THE UNDERSIGNED UNDERSTANDS THAT TENDERS OF OLD 2020 DEBENTURES WILL BE
ACCEPTED ONLY IN DENOMINATIONS OF $1,000 OR AN INTEGRAL MULTIPLE THEREOF. THE
UNDERSIGNED ALSO UNDERSTANDS THAT TENDERS OF OLD 2020 DEBENTURES MAY BE
WITHDRAWN AT ANY TIME PRIOR TO THE EXPIRATION DATE.
All authority conferred or agreed to be conferred by this Notice of
Guaranteed Delivery shall not be affected by, and shall survive, the death or
incapacity of the undersigned, and every obligation of the undersigned under
this Notice of Guaranteed Delivery shall be binding upon the heirs, executors,
administrators, trustees in bankruptcy, personal and legal representatives,
successors and assigns of the undersigned.
All capitalized terms used herein but not defined herein shall have the
meanings ascribed to them in the Offering Circular.
2
<PAGE>
PLEASE SIGN AND COMPLETE
- --------------------------------------- ---------------------------------------
Signature(s) of Holder(s) or Date:
Authorized Signatory: -----------------------------
-------------- Address:
---------------------------
------------------------------------
-----------------------------------
------------------------------------
Area Code and Telephone No:
Name(s) of Holder(s): -------
---------------
-----------------------------------
------------------------------------
------------------------------------ If Debentures will be delivered by
book-entry transfer, check book-
Principal Amount of Old 2020 entry transfer facility below:
Debentures Tendered:
----------------
[_] The Depository Trust Company
------------------------------------
Account No.
Certificate No.(s) of Old 2020 ------------------------
Debentures (if available):
---------
- --------------------------------------- ---------------------------------------
- --------------------------------------------------------------------------------
This Notice of Guaranteed Delivery must be signed by the Holder(s) exactly
as their name(s) appear(s) on certificate(s) for Old 2020 Debentures or on a
security position listing as the owner of Old 2020 Debentures, or by
person(s) authorized to become Holder(s) by endorsements and documents
transmitted with this Notice of Guaranteed Delivery without alteration,
enlargement or any change whatsoever. If signature is by a trustee,
executor, administrator, guardian, attorney-in-fact, officer or other person
acting in a fiduciary or representative capacity, such person must provide
the following information.
Please print name(s) and address(es)
Name(s):
----------------------------------------------------------------------
------------------------------------------------------------------------------
Capacity:
---------------------------------------------------------------------
Address(es):
------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
DO NOT SEND OLD 2020 DEBENTURES WITH THIS FORM. OLD 2020 DEBENTURES SHOULD
BE SENT TO THE EXCHANGE AGENT TOGETHER WITH A PROPERLY COMPLETED AND DULY
EXECUTED LETTER OF TRANSMITTAL.
3
<PAGE>
- --------------------------------------------------------------------------------
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a member of the Securities Transfer Agents Medallion
Program, the Stock Exchange Medallion Program or the New York Stock
Exchange, Inc. Medallion Signature Program (each, an "Eligible
Institution"), hereby (i) represents that the above-named persons are deemed
to own the Old 2020 Debentures tendered hereby within the meaning of Rule
14e-4 promulgated under the Securities Exchange Act of 1934, as amended
("Rule 14e-4"), (ii) represents that such tender of Old 2020 Debentures
complies with Rule 14e-4 and (iii) guarantees that the Debentures tendered
hereby are in proper form for transfer (pursuant to the procedures set forth
in the Offering Circular under "The Exchange Offer--Guaranteed Delivery
Procedures"), and that the Exchange Agent will receive (a) such Old 2020
Debentures, or a Book-Entry Confirmation of the transfer of such Old 2020
Debentures into the Exchange Agent's account at the Book-Entry Transfer
Facility and (b) a properly completed and duly executed Letter of
Transmittal or manually signed facsimile thereof (or Agent's message) with
any required signature guarantees and any other documents required by the
Letter of Transmittal within three New York Stock Exchange trading days
after the date of execution hereof.
The Eligible Institution that completes this form must communicate the
guarantee to the Exchange Agent and must deliver the Letter of Transmittal
and Notes to the Exchange Agent within the time period shown herein. Failure
to do so could result in a financial loss to such Eligible Institution.
Name of Firm:
---------------------------------------------------------------
Authorized Signature:
-------------------------------------------------------
Title:
----------------------------------------------------------------------
Address:
--------------------------------------------------------------------
-----------------------------------------------------------------------------
(Zip Code)
Area Code and Telephone Number:
---------------------------------------------
Dated:
--------------------------
- --------------------------------------------------------------------------------
4
<PAGE>
CROSS REFERENCE SHEET
This Cross Reference Sheet pertains to Sections 310 through 318(a) of the Trust
Indenture Act of 1939, as amended.
Trust Indenture
Act Section Indenture Section
--------------- -----------------
(S) 310 (a)(1)........................ 6.09
(a)(2)........................ 6.09
(a)(3)........................ Not Applicable
(a)(4)........................ Not Applicable
(b)........................... 6.08
6.10
(S) 311 (a)........................... 6.13
(b)........................... 6.13
(S) 312 (a)........................... 7.01
(b)........................... 7.02
(c)........................... 7.02
7.02
(S) 313 (a)........................... 7.03
(b)........................... 7.03
(c)........................... 7.03
(d)........................... 7.03
(S) 314 (a)........................... 7.04
(a)(4)........................ 1.01
10.04
(b)........................... Not Applicable
(c)(1)........................ 1.02
(c)(2)........................ 1.02
(c)(3)........................ Not Applicable
(d)........................... Not Applicable
(e)........................... 1.02
(S) 315 (a)........................... 6.01
(b)........................... 6.02
(c)........................... 6.01
(d)........................... 6.01
(e)........................... 5.14
(S) 316 (a)........................... 1.01
(a)(1)(A)..................... 5.02
5.12
(a)(1)(B)..................... 5.13
(a)(2)........................ Not Applicable
(b)........................... 5.08
(c)........................... 1.04
(S) 317 (a)(1)........................ 5.03
(a)(2)........................ 5.04
(b)........................... 10.03
(S) 318 (a)........................... 1.07
<PAGE>
Exhibit 99
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an application to determine eligibility of a Trustee
pursuant to Section 305 (b)(2) ____
------------------------
CITIBANK, N.A.
(Exact name of trustee as specified in its charter)
13-5266470
(I.R.S. employer
identification no.)
399 Park Avenue, New York, New York 10043
(Address of principal executive office) (Zip Code)
-----------------------
UNITED PARCEL SERVICE OF AMERICA, INC.
(Exact name of obligor as specified in its charter)
Delaware 95-1732075
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
55 Glenlake Parkway N.E.
Atlanta, Georgia 30328
(Address of principal executive offices) (Zip Code)
-------------------------
8 3/8% Debentures due 2030
(Title of the indenture securities)
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Name Address
---- -------
Comptroller of the Currency Washington, D.C.
Federal Reserve Bank of New York New York, NY
33 Liberty Street
New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 16. List of Exhibits.
List below all exhibits filed as a part of this Statement of
Eligibility.
Exhibits identified in parentheses below, on file with the
Commission, are incorporated herein by reference as exhibits
hereto.
Exhibit 1 - Copy of Articles of Association of the Trustee, as now
in effect. (Exhibit 1 to T-1 to Registration Statement No.
2-79983)
Exhibit 2 - Copy of certificate of authority of the Trustee to
commence business. (Exhibit 2 to T-1 to Registration Statement No.
2-29577).
Exhibit 3 - Copy of authorization of the Trustee to exercise
corporate trust powers. (Exhibit 3 to T-1 to Registration
Statement No. 2-55519)
Exhibit 4 - Copy of existing By-Laws of the Trustee. (Exhibit 4 to
T-1 to Registration Statement No. 33-34988)
Exhibit 5 - Not applicable.
<PAGE>
Exhibit 6 - The consent of the Trustee required by Section 321(b)
of the Trust Indenture Act of 1939. (Exhibit 6 to T-1 to
Registration Statement No. 33-19227.)
Exhibit 7 - Copy of the latest Report of Condition of Citibank,
N.A. (as of September 30, 1997 - attached)
Exhibit 8 - Not applicable.
Exhibit 9 - Not applicable.
------------------
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Citibank, N.A., a national banking association organized and existing
under the laws of the United States of America, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York and State of New York, on the 17th day
of December, 1997.
CITIBANK, N.A.
By /s/Carol Ng
-----------
Carol Ng
Vice President
<PAGE>
Charter No. 1461
Comptroller of the Currency
Northeastern District
REPORT OF CONDITION
CONSOLIDATING
DOMESTIC AND FOREIGN
SUBSIDIARIES OF
Citibank, N.A.
of New York in the State of New York, at the close of business on September 30,
1997, published in response to call made by Comptroller of the Currency, under
Title 12, United States Code, Section 161. Charter Number 1461 Comptroller of
the Currency Northeastern District.
<TABLE>
<CAPTION>
ASSETS
Thousands
of dollars
<S> <C> <C>
Cash and balances due from
depository institutions:
Noninterest-bearing balances
and currency and coin ........................... $ 6,529,000
Interest-bearing balances ........................... 12,319,000
Held-to-maturity securities ......................... 0
Available-for-sale securities ....................... 28,477,000
Federal funds sold and
securities purchased under
agreements to resell ............................ 11,422,000
Loans and lease financing receivables:
Loans and Leases, net of
unearned income .................. $ 151,679,000
LESS: Allowance for loan
and lease losses ................. 4,253,000
-------------
Loans and leases, net of
unearned income, allowance,
and reserve ..................................... 147,426,000
Trading assets ...................................... 31,496,000
Premises and fixed assets (includ-
ing capitalized leases) ......................... 3,380,000
Other real estate owned ............................. 651,000
Investments in unconsolidated
subsidiaries and associated
companies ....................................... 1,284,000
Customers' liability to this bank
on acceptances outstanding ...................... 2,023,000
Intangible assets ................................... 177,000
Other assets ........................................ 8,745,000
-------------
TOTAL ASSETS ........................................ $ 253,929,000
=============
LIABILITIES
Deposits:
In domestic offices ............................. $ 35,919,000
Noninterest-bearing............... $12,462,000
Interest-bearing ................. 23,457,000
-------------
In foreign offices, Edge and
Agreement subsidiaries, and
IBFs ............................................ 138,955,000
Noninterest-bearing............... 9,790,000
Interest-bearing.................. 129,165,000
-------------
Federal funds purchased and
securities sold under
agreements to repurchase ........................ 6,161,000
Trading liabilities ................................. 24,966,000
Other borrowed money (includes
mortgage indebtedness and obligations
under capitalized leases):
With a remaining maturity of one
year or less .................................... 9,351,000
With a remaining maturity of more
than one year through three years ............... 2,916,000
With a remaining maturity of more
than three years ................................ 915,000
Bank's liability on acceptances
executed and outstanding......................... 2,024,000
Subordinated notes and
debentures ...................................... 5,400,000
Other liabilities ................................... 9,856,000
-------------
TOTAL LIABILITIES ................................... $ 236,463,000
=============
EQUITY CAPITAL
Perpetual preferred stock
and related surplus ............................. 0
Common stock ........................................ $ 751,000
Surplus ............................................. 7,387,000
Undivided profits and capital re-
serves .......................................... 9,254,000
Net unrealized holding gains (losses)
on available-for-sale securities ................ 737,000
Cumulative foreign currency
translation adjustments ......................... (663,000)
-------------
TOTAL EQUITY CAPITAL ................................ $ 17,466,000
=============
TOTAL LIABILITIES, LIMITED-
LIFE PREFERRED STOCK, AND
EQUITY CAPITAL .................................. $ 253,929,000
=============
</TABLE>
I, Roger W. Trupin, Controller of the above-named bank do hereby declare that
this Report of Condition is true and correct to the best of my knowledge and
belief.
ROGER W. TRUPIN
CONTROLLER
We, the undersigned directors, attest to the correctness of this Report of
Condition. We declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions and
is true and correct.
PAUL J. COLLINS
JOHN S. REED
WILLIAM R. RHODES
DIRECTORS
