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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 16, 1997
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
RAYCHEM CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 94-1369731
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
</TABLE>
300 CONSTITUTION DRIVE, MENLO PARK, CALIFORNIA 94025
(415) 361-3333
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
LARS LARSEN
VICE PRESIDENT AND TREASURER
RAYCHEM CORPORATION
300 CONSTITUTION DRIVE, MENLO PARK, CA 94025
(415) 361-3333
(NAME AND ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPIES TO:
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<TABLE>
<S> <C>
SARAH A. O'DOWD, ESQ. PAUL C. PRINGLE, ESQ.
JO-ANNE SINCLAIR, ESQ. ERIC S. HAUETER, ESQ.
HELLER EHRMAN WHITE & MCAULIFFE BROWN & WOOD LLP
525 UNIVERSITY AVENUE 555 CALIFORNIA STREET
PALO ALTO, CALIFORNIA 94301 SAN FRANCISCO, CALIFORNIA 94104
(415) 324-7000 (415) 772-1200
</TABLE>
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the Registration Statement becomes effective.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of this prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
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</TABLE>
<TABLE>
<CAPTION>
PROPOSED MAXIMUM
PROPOSED MAXIMUM AGGREGATE
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED(1)(2) PER SECURITY(3) PRICE(1)(2) REGISTRATION FEE
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------
Debt Securities.......................... $400,000,000 100% $400,000,000 $121,212
=============================================================================================================
</TABLE>
(1) Securities registered hereby may be offered for U.S. dollars or the
equivalent thereof in foreign currencies, currency units or composite
currencies.
(2) If any Debt Securities are issued at an original issue discount, then such
greater amount as may be sold for an aggregate initial offering price of up
to the proposed maximum aggregate offering price.
(3) Estimated solely for the purpose of computing the amount of registration
fee.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
PROSPECTUS (Subject to Completion)
Issued July 16, 1997
$400,000,000
RAYCHEM CORPORATION
DEBT SECURITIES
------------------------
Raychem Corporation (the "Company") may offer and issue from time to time,
together or separately, in one or more series, debentures, notes or other
unsecured evidences of indebtedness (the "Debt Securities") of the Company. The
aggregate initial public offering price of the Debt Securities offered by the
Company hereby will not exceed $400,000,000 (or the equivalent in foreign
currencies, currency units or composite currencies (each, a "Foreign
Currency")). The Debt Securities will be offered at prices and on terms to be
determined at the time such Debt Securities are offered for sale. The Debt
Securities will be unsecured and unsubordinated indebtedness of the Company.
When a particular series of Debt Securities is offered, a prospectus
supplement (each, a "Prospectus Supplement") together with this Prospectus will
be delivered setting forth the terms of such Debt Securities, including, where
applicable, the specific designation of such series of Debt Securities,
aggregate principal amount, maturity, rate or rates of any interest, interest
commencement date, interest payment dates, record dates, any redemption
provisions, any sinking fund provisions, denominations, the currency (if other
than U.S. dollars) in which such Debt Securities are denominated or are payable,
any index to be used for determining the amount of any payment of principal or
interest, any additional covenants or events of default, whether such series of
Debt Securities is issuable in the form of one or more global Debt Securities
("Global Securities"), any listing on a securities exchange, the initial public
offering price, methods of distribution and any other specific terms of such
Debt Securities.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------------
The Company may sell Debt Securities to or through underwriters, through
dealers or agents, or directly to other purchasers. If any underwriters or
agents are involved in the sale of Debt Securities in respect of which this
Prospectus is being delivered, the names of such underwriters or agents, the
amount proposed to be purchased by or sold through them, and any compensation to
such underwriters or agents, will be set forth in the applicable Prospectus
Supplement. The net proceeds to the Company from the sale of the applicable Debt
Securities will also be set forth in the applicable Prospectus Supplement. See
"Plan of Distribution."
MORGAN STANLEY DEAN WITTER
, 1997
<PAGE> 3
CERTAIN PERSONS PARTICIPATING IN THE OFFERING OF THE DEBT SECURITIES MAY
ENGAGE IN TRANSACTIONS THAT STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICE OF
THE DEBT SECURITIES OR ANY SECURITIES THE PRICES OF WHICH MAY BE USED TO
DETERMINE PAYMENTS ON THE DEBT SECURITIES. SPECIFICALLY, THE UNDERWRITERS OR
AGENTS SPECIFIED IN THE RELEVANT PROSPECTUS SUPPLEMENT OR PRICING SUPPLEMENT MAY
OVERALLOT IN CONNECTION WITH THE OFFERING, AND MAY BID FOR AND PURCHASE THE DEBT
SECURITIES OR ANY SECURITIES THE PRICES OF WHICH MAY BE USED TO DETERMINE
PAYMENTS ON THE DEBT SECURITIES IN THE OPEN MARKET. FOR A DESCRIPTION OF THESE
ACTIVITIES, SEE "PLAN OF DISTRIBUTION" IN THIS PROSPECTUS AND "PLAN OF
DISTRIBUTION" OR "UNDERWRITING" IN THE RELEVANT PROSPECTUS SUPPLEMENT.
No dealer, salesman, or any other person has been authorized to give any
information or to make any representations other than those contained or
incorporated by reference in this Prospectus or the accompanying Prospectus
Supplement, and any such other information, or representations, if given or
made, must not be relied upon as having been so authorized. The delivery of this
Prospectus and the accompanying Prospectus Supplement or any sale made hereunder
or thereunder at any time does not imply that the information included or
incorporated by reference herein or therein is correct as of any time subsequent
to its date. Neither this Prospectus nor the accompanying Prospectus Supplement
constitutes an offer to sell or a solicitation of an offer to buy any of the
securities offered hereby or thereby in any jurisdiction where, and to any
person to whom, it is unlawful to make such offer or solicitation.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at public reference
facilities maintained by the Commission at Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549. Copies of such material can be obtained at
prescribed rates from the Public Reference Section of the Commission at such
address. Such reports, proxy statements and other information can also be
inspected at the Commission's regional offices at 7 World Trade Center, Suite
1300, New York, New York 10048 and 500 West Madison, Chicago, Illinois 60661,
and at the offices of the New York Stock Exchange, 20 Broad Street, New York,
New York 10005. The Commission maintains an Internet site that contains reports,
proxy and information statements and other information regarding registrants,
such as the Company, that file electronically with the Commission and the
address of such site is http://www.sec.gov.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents, which have been filed by the Company with the
Commission, are hereby incorporated by reference in this Prospectus:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended June
30, 1996; and
(b) The Company's Quarterly Reports on Form 10-Q for the fiscal quarters
ended September 30, 1996, December 31, 1996 and March 31, 1997.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of the securities offered hereby shall be deemed
to be incorporated by reference into this Prospectus and to be a part hereof
from the respective dates of filing of such documents. Any statement contained
in this Prospectus or in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein, in the relevant
Prospectus Supplement or in any other subsequently filed document that also is
or is deemed to be incorporated by
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reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
Upon written or oral request directed to Investor Relations, Raychem
Corporation, MS 111/8610, 300 Constitution Drive, Menlo Park, California 94025,
telephone (415) 361-3333, the Company will provide, without charge, to any
person to whom this Prospectus is delivered, a copy of any document incorporated
by reference in this Prospectus (not including exhibits to any such document
except to the extent any such exhibits are specifically incorporated by
reference in the information incorporated in this Prospectus).
------------------------------------
STATEMENTS MADE IN THIS PROSPECTUS THAT ARE NOT STATEMENTS OF HISTORICAL
FACT ARE FORWARD-LOOKING STATEMENTS WITHIN THE MEANING OF SECTION 27A OF THE
SECURITIES ACT OF 1933, AS AMENDED, AND SECTION 21E OF THE EXCHANGE ACT.
FORWARD-LOOKING STATEMENTS ARE SUBJECT TO A NUMBER OF RISKS AND UNCERTAINTIES,
INCLUDING THE RISKS DESCRIBED IN THIS PROSPECTUS (AND THE COMPANY'S ANNUAL
REPORT ON FORM 10-K AND OTHER DOCUMENTS INCORPORATED HEREIN BY REFERENCE) WHICH
COULD CAUSE ACTUAL RESULTS TO DIFFER MATERIALLY FROM THE STATEMENTS MADE AND
INCORPORATED BY REFERENCE HEREIN.
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THE COMPANY
The Company, founded in 1957, is a broadly based materials science company
serving both domestic and international markets. The Company develops,
manufactures and sells a variety of high-performance products used by customers
in the aerospace, appliance, automotive, cable television, computer, defense,
industrial and commercial infrastructure, mass transit, medical, and
telecommunications industries and by other original equipment manufacturers.
The Company's principal domestic facilities are located in Menlo Park and
Redwood City, California, and in Fuquay-Varina, North Carolina. Additional
facilities of significant size are located in Belgium, Germany, Ireland, Japan,
Mexico, the People's Republic of China, and the United Kingdom. The Company's
principal executive offices are located at 300 Constitution Drive, Menlo Park,
California 94025, and its telephone number is (415) 361-3333. Unless otherwise
expressly stated or the context otherwise requires, the term "Company" means
Raychem Corporation and its consolidated subsidiaries.
USE OF PROCEEDS
Unless otherwise indicated in an accompanying Prospectus Supplement, the
Company will use the net proceeds from the sale of the Debt Securities offered
hereby for general corporate purposes. Pending such uses, the Company will
invest the net proceeds of the offering in marketable securities.
RATIO OF EARNINGS TO FIXED CHARGES
The following table below sets forth the ratios of earnings to fixed
charges of the Company and its consolidated subsidiaries for the periods
indicated.
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
MARCH 31, YEAR ENDED JUNE 30,
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1997 1996 1996 1995 1994 1993 1992
----- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges...... 11.13 6.31 6.70 2.94 1.93 1.98 1.27
</TABLE>
In the calculation of the ratio of earnings to fixed charges, "earnings"
consists of income before income taxes, extraordinary item and changes in
accounting principle, adjusted to add back fixed charges (excluding capitalized
interest) and equity in net loss of Ericsson Raynet joint venture. "Fixed
charges" consist of interest on all indebtedness, including both amounts
expensed and amounts capitalized, and the applicable portion of rental expense
which approximates the interest portion of lease payments.
DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms and provisions
of the Debt Securities to which any Prospectus Supplement may relate. Certain
other specific terms of any particular series of Debt Securities will be
described in the applicable Prospectus Supplement. To the extent that any
particular terms of the Debt Securities described in a Prospectus Supplement
differ from any of the terms described herein, then such terms described herein
shall be deemed to have been superseded by such Prospectus Supplement.
The Debt Securities are to be issued in one or more series under an
Indenture (the "Indenture") between the Company and Chase Trust Company of
California, as Trustee (the "Trustee"). The Debt Securities offered pursuant to
this Prospectus will be limited to U.S. $400,000,000 aggregate initial public
offering price (or (i) its equivalent (based on the applicable exchange rate at
the time of offering or issuance), if Debt Securities are issued with principal
amounts denominated in one or more Foreign Currencies as shall be designated by
the Company, or (ii) if Debt Securities are issued at an original issue
discount, such greater amount as shall result in an initial public offering
price of up to $400,000,000 (or the equivalent thereof in one or more Foreign
Currencies)). The statements herein relating to the Debt Securities and the
Indenture are summaries and are subject to the detailed provisions of the
Indenture. A copy of the form of Indenture is filed as an exhibit to the
Registration Statement of which this Prospectus is a part. The following
summaries of
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certain provisions of the Indenture do not purport to be complete and are
subject to, and are qualified in their entirety by reference to, all of the
provisions of the Indenture, including the definitions therein of certain terms
capitalized in this Prospectus. Whenever particular Sections or defined terms of
the Indenture are referred to herein or in a Prospectus Supplement, such
Sections or defined terms are incorporated herein or therein by reference. As
used in this "Description of Debt Securities," all references to the "Company"
mean Raychem Corporation excluding, unless the context otherwise requires or
unless otherwise expressly stated, its subsidiaries.
GENERAL
The Debt Securities will be unsecured and unsubordinated obligations of the
Company and will rank as to priority of payment equally with all other
unsubordinated and unsecured indebtedness of the Company. See "-- Ranking of
Debt Securities; Holding Company Structure." The Indenture does not limit the
aggregate amount of Debt Securities which may be issued thereunder, nor does it
limit the incurrence or issuance of other debt of the Company.
The Indenture provides that the Debt Securities may be issued from time to
time in one or more series. The Company may establish the terms of a series of
Debt Securities in or pursuant to a supplemental indenture or a resolution of
its Board of Directors (which term, as defined in the Indenture, includes any
duly authorized committee of the Board of Directors). The Indenture provides the
Company with the ability to "reopen" a series of Debt Securities and to issue
additional Debt Securities of such series. (Section 3.1 of the Indenture.)
Reference is made to the Prospectus Supplement relating to the particular
series of Debt Securities being offered thereby for the terms of such Debt
Securities, including, where applicable: (1) the specific designation of such
Debt Securities; (2) any limit upon the aggregate principal amount of such Debt
Securities; (3) the date or dates on which the principal of and premium, if any,
on such Debt Securities is payable or the method of determining such date or
dates; (4) the rate or rates (which may be fixed, variable or zero) at which
such Debt Securities will bear interest, if any, or the method of calculating
such rate or rates; (5) the date or dates from which interest, if any, will
accrue or the method by which such date or dates will be determined; (6) the
date or dates on which interest, if any, will be payable and the record date or
dates therefor; (7) the place or places where the principal of, premium, if any,
and interest, if any, on such Debt Securities will be payable; (8) the period or
periods within which, the price or prices at which, the currency (if other than
U.S. dollars) in which, and the other terms and conditions upon which, such Debt
Securities may be redeemed, in whole or in part, at the option of the Company;
(9) the obligation, if any, of the Company to redeem or purchase such Debt
Securities pursuant to any sinking fund or analogous provisions or upon the
happening of a specified event or at the option of a holder and the period or
periods within which, the price or prices at which, and the other terms and
conditions upon which, such Debt Securities shall be redeemed or purchased, in
whole or in part, pursuant to such obligation; (10) the denominations in which
such Debt Securities are authorized to be issued (if other than denominations of
$1,000 and integral multiples thereof in the case of Debt Securities in
registered form and denominations of $5,000 in the case of Debt Securities in
bearer form); (11) the currency (if other than U.S. dollars) in which such Debt
Securities are denominated and/or in which such Debt Securities are stated to be
payable; (12) if the amount of payments of principal of or premium, if any, or
interest, if any, on such Debt Securities shall be determined with reference to
an index, formula or other method (which index, formula or other method may be
based on a currency other than that in which such Debt Securities are stated to
be payable), the index, formula or other method by which such amount shall be
determined; (13) if the amount of payments of principal of or premium, if any,
or interest, if any, on such Debt Securities may be determined with reference to
an index, formula or other method based on the prices of securities or
commodities, with reference to changes in the prices of particular securities or
commodities or otherwise by application of a formula, the index, formula or
other method by which such amount shall be determined; (14) if other than the
entire principal amount thereof, the portion of the principal amount of such
Debt Securities which will be payable upon declaration of the acceleration of
the maturity thereof or the method by which such portion shall be determined;
(15) the person to whom any interest on any such Debt Security shall be payable
if other than the person in whose name such Debt Security is registered at the
close
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of business on the applicable record date; (16) provisions, if any, granting
special rights to the holders of such Debt Securities upon the occurrence of
such events as may be specified; (17) any addition to, or modification or
deletion of, any Event of Default or any covenant of the Company specified in
the Indenture with respect to such Debt Securities; (18) any Additional Amounts
the Company will pay on Debt Securities of that series held by a person who is
not a U.S. Person in respect of taxes, assessments or similar governmental
charges; (19) whether such Debt Securities shall be in registered or bearer form
or both; (20) if the defeasance and covenant defeasance provisions hereinafter
described will not be applicable to such Debt Securities; (21) whether such Debt
Securities are to be issued in whole or in part in the form of one or more
temporary or permanent Global Securities and, if so, the identity of the
depository for such Global Security or Securities and whether beneficial
interests in such Global Securities may be exchanged for definitive certificated
Debt Securities; and (22) any other terms pertaining to such Debt Securities.
Unless otherwise specified in the applicable Prospectus Supplement, the Debt
Securities will not be listed on any securities exchange. (Section 3.1 of the
Indenture.)
Unless otherwise specified in the applicable Prospectus Supplement, Debt
Securities will be issued only in fully registered form without coupons or in
the form of one or more Global Securities as specified below under " -- Global
Securities." Unless the Prospectus Supplement relating thereto specifies
otherwise, Debt Securities denominated in U.S. dollars will be issued only in
denominations of U.S. $1,000 and any integral multiple thereof (if in registered
form) or in denominations of U.S. $5,000 (if in bearer form). (Section 3.2 of
the Indenture.) The Prospectus Supplement relating to Debt Securities
denominated in a Foreign Currency will specify the authorized denominations
thereof. Where Debt Securities of any series are issued in bearer form, the
special restrictions and considerations, including special offering restrictions
and special federal income tax considerations, applicable to such Debt
Securities and the payment on and transfer and exchange of such Debt Securities
will be described in the applicable Prospectus Supplement. Bearer Debt
Securities will be transferable by delivery. (Section 3.5 of the Indenture.)
Debt Securities may be sold at a substantial discount below their stated
principal amount, bearing no interest or interest at a rate which at the time of
issuance is below market rates. Certain federal income tax consequences and
special considerations applicable to any such Debt Securities will be described
in the applicable Prospectus Supplement.
If the amount of payments of principal of or premium, if any, or interest,
if any, on Debt Securities of any series is determined with reference to any
type of index or formula or changes in prices of particular securities or
commodities, the federal income tax consequences, specific terms and other
information with respect to such Debt Securities and such index or formula and
securities or commodities will be described in the applicable Prospectus
Supplement.
If the principal of or premium, if any, or interest, if any, on Debt
Securities of any series are payable in a Foreign Currency, the restrictions,
federal income tax consequences, specific terms and other information with
respect to such Debt Securities and such Foreign Currency will be described in
the applicable Prospectus Supplement.
RANKING OF DEBT SECURITIES; HOLDING COMPANY STRUCTURE
The Debt Securities will be unsecured and unsubordinated obligations of the
Company and will rank as to priority of payment equally with all other unsecured
and unsubordinated indebtedness of the Company.
The Debt Securities are obligations exclusively of the Company. Although a
significant portion of the Company's consolidated assets is held by the Company
directly, the remainder of the Company's consolidated assets is held by its
subsidiaries. Accordingly, the cash flow of the Company and the consequent
ability to service its debt, including the Debt Securities, are in part
dependent upon the results of operations of such subsidiaries.
In addition, the Debt Securities will be effectively subordinated to all
existing and future liabilities (including indebtedness, trade payables, lease
obligations and letter of credit obligations) of the Company's subsidiaries.
Therefore, the Company's rights and the rights of its creditors, including the
holders of the Debt
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Securities, to participate in the assets of any subsidiary upon the latter's
liquidation or reorganization will be subject to the prior claims of such
subsidiary's creditors, except to the extent that the Company may itself be a
creditor with recognized claims against the subsidiary, in which case the claims
of the Company would still be effectively subordinate to any security interests
in, or mortgages or other liens on, the assets of such subsidiary and would be
subordinate to any indebtedness of such subsidiary senior to that held by the
Company. Although certain debt instruments to which the Company and its
subsidiaries are parties impose limitations on the incurrence of additional
indebtedness, both the Company and its subsidiaries retain the ability to incur
substantial additional indebtedness and other liabilities.
PAYMENT, REGISTRATION, TRANSFER AND EXCHANGE
Unless otherwise provided in the applicable Prospectus Supplement, payments
in respect of the Debt Securities will be made in the designated currency at the
office or agency maintained for that purpose by the Company in the Borough of
Manhattan, The City of New York (or other place set forth in the applicable
Prospectus Supplement), except that, at the option of the Company, interest
payments, if any, on Debt Securities in registered form may be made (i) by
checks mailed to the persons entitled thereto at their registered addresses or
(ii) by transfer to an account maintained by the persons entitled thereto.
(Section 3.7(a) and 9.2 of the Indenture.) Unless otherwise indicated in an
applicable Prospectus Supplement, payment of any installment of interest on a
Debt Security in registered form will be made to the person in whose name such
Debt Security is registered at the close of business on the regular record date
for such interest. (Section 3.7(a) of the Indenture.)
Payment in respect of Debt Securities in bearer form will be made in the
currency and in the manner designated in the Prospectus Supplement, subject to
any applicable laws and regulations, at such paying agencies outside the United
States as the Company may appoint from time to time. The paying agents outside
the United States initially appointed by the Company for a series of Debt
Securities in bearer form will be named in the Prospectus Supplement.
The Company may at any time designate additional paying agents or rescind
the designation of any paying agents with respect to the Debt Securities of any
series, except that, if Debt Securities of a series are issuable as registered
Debt Securities, the Company will be required to maintain a paying agent in each
Place of Payment for such series and, if Debt Securities of a series are
issuable as bearer Debt Securities, the Company will be required to maintain,
subject to any applicable laws and regulations, a paying agent in a Place of
Payment outside the United States where Debt Securities of such series and any
coupons appertaining thereto may be presented and surrendered for payment.
(Section 9.2 of the Indenture.)
Unless otherwise provided in the applicable Prospectus Supplement, Debt
Securities in registered form will be transferable or exchangeable at the office
or agency of the Company maintained for such purpose in the Borough of
Manhattan, The City of New York (or other place set forth in the applicable
Prospectus Supplement). (Sections 3.5 and 9.2 of the Indenture.) Debt Securities
may be transferred or exchanged without service charge, other than any tax or
other governmental charge imposed in connection therewith. (Section 3.5 of the
Indenture.)
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more Global Securities that will be deposited with, or on behalf
of, a depository (the "Depository") identified in the applicable Prospectus
Supplement and registered in the name of the Depository or a nominee for the
Depository. In such a case, one or more Global Securities will be issued in a
denomination or aggregate denominations equal to the portion of the aggregate
principal amount of outstanding Debt Securities of the series to be represented
by such Global Security or Securities. Unless and until it is exchanged in whole
or in part for Debt Securities in definitive certificated form, a Global
Security may not be transferred except as a whole by the Depository for such
Global Security to a nominee of such Depository or by a nominee of such
Depository to such Depository or another nominee of such Depository or by such
Depository or any such
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nominee to a successor Depository for such series or a nominee of such successor
Depository and except in the circumstances, if any, described in the applicable
Prospectus Supplement. (Section 3.5 of the Indenture.)
The Company expects that the following provisions will apply to depository
arrangements with respect to any portion of a series of Debt Securities to be
represented by a Global Security. Any additional specific terms of the
depository arrangement will be described in the applicable Prospectus
Supplement.
Upon the issuance of any Global Security, and the deposit of such Global
Security with or on behalf of the Depository for such Global Security, the
Depository will credit, on its book-entry registration and transfer system, the
respective principal amounts of the Debt Securities represented by such Global
Security to the accounts of institutions ("Participants") that have accounts
with the Depository or its nominee. The accounts to be credited will be
designated by the underwriters or agents engaging in the distribution of such
Debt Securities or by the Company, if such Debt Securities are offered and sold
directly by the Company. Ownership of beneficial interests in a Global Security
will be limited to Participants or persons that may hold interest through
Participants. Ownership of beneficial interests by Participants in such Global
Security will be shown on, and the transfer of such beneficial interests will be
effected only through, records maintained by the Depository for such Global
Security or by its nominee. Ownership of beneficial interests in such Global
Security by persons that hold through Participants will be shown on, and the
transfer of such beneficial interests within such Participants will be effected
only through, records maintained by such Participants. The laws of some
jurisdictions may require that certain purchasers of securities take physical
delivery of such securities in certificated form. The foregoing limitations and
such laws may impair the ability to transfer beneficial interests in such Global
Securities.
So long as the Depository for a Global Security, or its nominee, is the
registered owner of such Global Security, such Depository or such nominee, as
the case may be, will be considered the sole owner or holder of the Debt
Securities represented by such Global Security for all purposes under the
Indenture. Unless otherwise specified in the applicable Prospectus Supplement
and except as specified below, owners of beneficial interests in such Global
Security will not be entitled to have Debt Securities of the series represented
by such Global Security registered in their names, will not receive or be
entitled to receive physical delivery of Debt Securities of such series in
certificated form and will not be considered the holders thereof for any
purposes under the Indenture. Accordingly, each person owning a beneficial
interest in such Global Security must rely on the procedures of the Depository
and, if such person is not a Participant, on the procedures of the Participant
through which such person owns its interest, to exercise any rights of a holder
under the Indenture.
The Depository may grant proxies and otherwise authorize Participants to
give or take any request, demand, authorization, direction, notice, consent,
waiver or other action which a holder is entitled to give or take under the
Indenture. The Company understands that, under existing industry practices, if
the Company requests any action of holders or any owner of a beneficial interest
in such Global Security desires to give any notice or take any action a holder
is entitled to give or take under the Indenture, the Depository would authorize
the Participants to give such notice or take such action, and Participants would
authorize beneficial owners owning through such Participants to give such notice
or take such action or would otherwise act upon the instructions of beneficial
owners owning through them.
Unless otherwise specified in the applicable Prospectus Supplement,
payments with respect to principal, premium, if any, and interest, if any, on
Debt Securities represented by a Global Security registered in the name of a
Depository or its nominee will be made by the Company to such Depository or its
nominee, as the case may be, as the registered owner of such Global Security.
The Company expects that the Depository for any Debt Securities represented
by a Global Security, upon receipt of any payment of principal, premium or
interest, will credit Participants' accounts with payments in amounts
proportionate to their respective beneficial interests in the principal amount
of such Global Security as shown on the records of such Depository. The Company
also expects that payments by Participants to owners of beneficial interests in
such Global Security held through such Participants will be governed by standing
instructions and customary practices, as is now the case with the securities
held for the accounts of customers registered in "street names", and will be the
responsibility of such Participants. None of the
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Company, the Trustee or any agent of the Company or the Trustee shall have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial interests in a Global Security, or for
maintaining, supervising or reviewing any records relating to such beneficial
interests. (Section 3.8 of the Indenture.)
Unless otherwise specified in the applicable Prospectus Supplement, a
Global Security of any series will be exchangeable for certificated Debt
Securities of the same series only if (i) the Depository for such Global
Securities notifies the Company that it is unwilling or unable to continue as
Depository or such Depository ceases to be a clearing agency registered under
the Exchange Act (if so required by applicable law or regulation) and, in either
case, a successor Depository is not appointed by the Company within 90 days
after the Company receives such notice or becomes aware of such ineligibility,
(ii) the Company in its sole discretion determines that such Global Securities
shall be exchangeable for certificated Debt Securities or (iii) there shall have
occurred and be continuing an Event of Default under the Indenture with respect
to the Debt Securities of such series. Upon any such exchange, owners of
beneficial interests in such Global Security or Securities will be entitled to
physical delivery of individual Debt Securities in certificated form of like
tenor and terms equal in principal amount to such beneficial interests, and to
have such Debt Securities in certificated form registered in the names of the
beneficial owners, which names are expected to be provided by such Depository's
relevant Participants (as identified by such Depository) to the Trustee.
The Debt Securities of a series may also be issued in whole or in part in
the form of one or more bearer global securities (a "Bearer Global Security")
that will be deposited with or on behalf of a Depository, or with a nominee for
such Depository, identified in the applicable Prospectus Supplement. Any such
Bearer Global Securities may be issued in temporary or permanent form. (Section
3.4 of the Indenture.) The specific terms and procedures, including the specific
terms of the depository arrangement, with respect to any portion of a series of
Debt Securities to be represented by one or more Bearer Global Securities will
be described in the applicable Prospectus Supplement.
The following is based on information furnished to the Company:
In the event that the Depository Trust Company ("DTC") acts as Depository
for the Global Securities of any series, such Global Securities will be issued
as fully registered securities registered in the name of Cede & Co. (DTC's
partnership nominee). One fully registered Global Security will be issued with
respect to each $200 million (or such other amount as shall be permitted by DTC
from time to time) of principal amount of the Debt Securities of a series, and
an additional certificate will be issued with respect to any remaining principal
amount of such series.
DTC is a limited purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. DTC
holds securities that its Participants deposit with DTC. DTC also facilitates
the settlement among Participants of securities transactions, such as transfers
and pledges, in deposited securities through electronic computerized book-entry
changes in Participants' accounts, thereby eliminating the need for physical
movement of securities certificates. Direct Participants include securities
brokers and dealers, banks, trust companies, clearing corporations and certain
other organizations ("Direct Participants"). DTC is owned by a number of its
Direct Participants and by the New York Stock Exchange, Inc., the American Stock
Exchange, Inc. and the National Association of Securities Dealers, Inc. Access
to the DTC system is also available to others, such as securities brokers and
dealers and banks and trust companies that clear through or maintain a custodial
relationship with a Direct Participant, either directly or indirectly ("Indirect
Participants"). The rules applicable to DTC and its Participants are on file
with the Commission.
To facilitate subsequent transfers, the Debt Securities are registered in
the name of DTC's nominee, Cede & Co. The deposit of the Debt Securities with
DTC and their registration in the name of Cede & Co. will effect no change in
beneficial ownership. DTC has no knowledge of the actual beneficial owners of
the Debt Securities; DTC's records reflect only the identity of the Direct
Participants to whose accounts Debt
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Securities are credited, which may or may not be the beneficial owners. The
Participants remain responsible for keeping account of their holdings on behalf
of their customers.
Delivery of notices and other communications by DTC to Direct Participants,
by Direct Participants to Indirect Participants, and by Direct Participants and
Indirect Participants to beneficial owners of Debt Securities are governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
Neither DTC nor Cede & Co. consents or votes with respect to the Debt
Securities. Under its usual procedures, DTC mails a proxy (an "Omnibus Proxy")
to the issuer as soon as possible after the record date. The Omnibus Proxy
assigns Cede & Co.'s consenting or voting rights to those Direct Participants to
whose accounts the Debt Securities are credited on the record date (identified
on a list attached to the Omnibus Proxy).
If applicable, redemption notices shall be sent to Cede & Co. If less than
all of the Debt Securities of a series represented by Global Securities are
being redeemed, DTC's practice is to determine by lot the amount of the interest
of each Direct Participant in such issue to be redeemed.
To the extent that any Debt Securities provide for repayment or repurchase
at the option of the holders thereof, a beneficial owner shall give notice of
any option to elect to have its interest in the Global Security repaid by the
Company, through its Participant, to the Trustee, and shall effect delivery of
such interest in a Global Security by causing the Direct Participant to transfer
the Direct Participant's interest in the Global Security or Securities
representing such interest, on DTC's records, to the Trustee. The requirement
for physical delivery of Debt Securities in connection with a demand for
repayment or repurchase will be deemed satisfied when the ownership rights in
the Global Security or Securities representing such Debt Securities are
transferred by Direct Participants on DTC's records.
DTC may discontinue providing its services as securities depository with
respect to the Debt Securities at any time. Under such circumstances, in the
event that a successor securities depository is not appointed, Debt Security
certificates are required to be printed and delivered as described above.
The Company may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depository). In that event,
Debt Security certificates will be printed and delivered as described above.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that the Company believes to be reliable, but the
Company takes no responsibility for the accuracy thereof.
CERTAIN DEFINITIONS
"Attributable Debt" in respect of a Sale and Leaseback Transaction means,
as of the time of determination, the present value (discounted at the rate per
annum equal to the rate of interest implicit in the lease involved in such Sale
and Leaseback Transaction, as determined in good faith by the Company) of the
obligation of the lessee thereunder for rental payments (excluding, however, any
amounts required to be paid by such lessee, whether or not designated as rent or
additional rent, on account of maintenance and repairs, insurance, taxes,
assessments, water rates or similar charges or any amounts required to be paid
by such lessee thereunder contingent upon the amount of sales or similar
contingent amounts) during the remaining term of such lease (including any
period for which such lease has been extended or may, at the option of the
lessor, be extended). In the case of any lease which is terminable by the lessee
upon the payment of a penalty, such rental payments shall also include the
amount of such penalty, but no rental payments shall be considered as required
to be paid under such lease subsequent to the first date upon which it may be so
terminated.
"Consolidated Net Tangible Assets" means, with respect to the Company as at
any date, the total assets of the Company and its consolidated Subsidiaries
determined in accordance with GAAP as they appear on the most recently prepared
consolidated balance sheet of the Company as of the end of a fiscal quarter,
less (i) all liabilities shown on such consolidated balance sheet that are
classified and accounted for as current liabilities
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or that otherwise would be considered current liabilities under GAAP; and (ii)
all assets shown on such consolidated balance sheet that are classified and
accounted for as intangible assets or that otherwise would be considered
intangible assets under GAAP, including, without limitation, franchises, patents
and patent applications, trademarks, brand names and goodwill.
"Debt" means indebtedness for borrowed money or evidenced by bonds, notes,
debentures or other similar instruments.
"Funded Debt" means Debt of the Company or any of its Subsidiaries which,
under GAAP, would appear as indebtedness on the most recent consolidated balance
sheet of the Company, which matures by its terms more than 12 months from the
date of such consolidated balance sheet or which matures by its terms in less
than 12 months but by its terms is renewable or extendible beyond 12 months from
the date of such consolidated balance sheet at the option of the borrower.
"GAAP" means generally accepted accounting principles in the United States
as in effect on the date of application thereof.
"Lien" means any mortgage, pledge, lien, charge, security interest,
conditional sale or other title retention agreement or other encumbrance of any
nature whatsoever.
"Person" means any individual, corporation, business trust, partnership,
joint venture, joint-stock company, limited liability company, association,
company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Principal Property" means any manufacturing, processing, distribution,
research, research and development, warehousing or principal administration
facility (including, without limitation, land, fixtures and equipment) owned or
leased by the Company or any Subsidiary (including any of the foregoing acquired
or leased after the date of the Indenture) and located within the United States
of America, other than any of the foregoing which the Board of Directors of the
Company by Board Resolution and in good faith declares, together with all other
manufacturing, processing, distribution, research, research and development,
warehousing and principal administration facilities (including, without
limitation, land, fixtures and equipment) previously so declared, are not of
material importance to the business conducted by the Company and its
Subsidiaries taken as an entirety.
"Restricted Subsidiary" means any Subsidiary of the Company which (i) owns
or leases a Principal Property and (ii) (A) substantially all of the property of
which is located, or substantially all of the business of which is carried on,
within the United States of America or (B) which is incorporated or organized
under the laws of any state of the United States of America or the District of
Columbia.
"Sale and Leaseback Transaction" means any direct or indirect arrangement
with any Person or to which any such Person is a party, providing for the
leasing to the Company or a Subsidiary of any Principal Property, whether owned
at the date of the Indenture or thereafter acquired, which has been or is to be
sold or transferred by the Company or such Subsidiary to such Person or to any
other Person to whom funds have been or are to be advanced by such Person on the
security of such Principal Property.
"Subsidiary" means (i) any corporation, at least a majority of the total
voting power of whose outstanding Voting Stock is at the date of determination
owned, directly or indirectly, by the Company and/or one or more other
Subsidiaries of the Company, and (ii) any Person (other than a corporation) in
which the Company and/or one or more other Subsidiaries of the Company own,
directly or indirectly, at the date of determination, at least a majority
ownership interest.
"Voting Stock" means, with respect to any corporation, securities of any
class or series of such corporation, the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the election of directors of the
corporation.
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CERTAIN COVENANTS
The Indenture will contain, among others, the following covenants:
Limitation on Liens. The Company will not, and will not permit any
Subsidiary to, incur, assume or guarantee any Debt secured by a Lien on any
Principal Property or on any Debt or shares of capital stock of, or other
ownership interests in, any Restricted Subsidiary ("Secured Debt") (whether such
Principal Property, Debt, capital stock or ownership interests are owned or
outstanding at the date of the Indenture or thereafter acquired or issued, as
the case may be) if, immediately after giving effect thereto, the sum, without
duplication, of (a) the aggregate principal amount of all Secured Debt (other
than Excluded Debt) and (b) the aggregate amount of all Attributable Debt in
respect of Sale and Leaseback Transactions (other than Excluded Transactions)
would exceed 15% of the Company's Consolidated Net Tangible Assets, unless the
Company provides, concurrently with or prior to the incurrence, assumption or
guarantee of such Secured Debt, that the Debt Securities shall be secured
equally and ratably with (or, at the option of the Company, prior to) such
Secured Debt.
The provisions described in the foregoing paragraph shall not apply to Debt
secured by the following Liens ("Excluded Debt"):
(i) (A) Liens existing as of the date of the Indenture or (B) Liens
relating to contracts entered into by the Company or any Subsidiary prior
to the date of the Indenture (including, but not limited to, Liens to
secure all or any part of the indebtedness incurred pursuant to the lease
financings initially entered into as of April 11, 1996);
(ii) Liens on any Principal Property, Debt, shares of capital stock or
other ownership interests existing at the time of acquisition thereof
(whether such acquisition is direct or by merger, acquisition of stock or
assets or otherwise) by the Company or any of its Subsidiaries, provided
such Liens were not created in contemplation of or in connection with such
acquisition;
(iii) Liens upon or with respect to any Principal Property acquired,
constructed, refurbished or improved by the Company or any of its
Subsidiaries after the date of the Indenture which (A) are created,
incurred or assumed contemporaneously with, or within 180 days after, the
latest to occur of the acquisition (whether by merger, acquisition of stock
or assets or otherwise), or the completion of construction, refurbishment
or improvement, or the commencement of commercial operation, of such
Principal Property, and (B) secure or provide for the payment of any part
of the purchase price of such Principal Property or the cost of such
construction, refurbishment or improvement; provided, however, that in the
case of any such construction, refurbishment or improvement, the Lien shall
relate only to Debt reasonably incurred to finance such construction,
refurbishment or improvement;
(iv) Liens securing Debt owing by any Subsidiary to the Company or to
any other Subsidiary;
(v) Liens in favor of governmental bodies to secure advance, progress
or other payments pursuant to any contract or statute;
(vi) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation and deposits
securing liability to insurance carriers under insurance or self-insurance
arrangements;
(vii) Liens for taxes not yet due or which are being contested by the
Company in good faith; and
(viii) Liens for the sole purpose of extending, renewing or replacing
in whole or in part the Debt secured thereby referred to in the foregoing
clauses (i) to (vii), inclusive, or in this clause (viii); provided,
however, that the Debt excluded pursuant to this clause (viii) shall be
excluded only in an amount not to exceed the principal amount of Debt so
secured at the time of such extension, renewal or replacement, and that
such extension, renewal or replacement shall be limited to all or part of
the Principal Property, Debt, shares of capital stock or other ownership
interests, as the case may be, subject to the Lien so extended, renewed or
replaced (plus refurbishment of or improvements on or to such Principal
Property).
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Limitation on Sale and Leaseback Transactions. The Company will not, and will
not permit any of its Subsidiaries to, enter into, assume, guarantee or
otherwise become liable with respect to any Sale and Leaseback Transaction
involving any Principal Property (whether such Principal Property is owned at
the date of the Indenture or thereafter acquired), if, immediately after giving
effect thereto, the sum, without duplication, of (a) the aggregate principal
amount of all Secured Debt (other than Excluded Debt) and (b) the aggregate
amount of all Attributable Debt in respect of Sale and Leaseback Transactions
(other than Excluded Transactions) would exceed 15% of the Company's
Consolidated Net Tangible Assets. The provisions set forth in the immediately
preceding sentence shall not apply to any Sale and Leaseback Transaction (an
"Excluded Transaction") if (w) within 180 days from the effective date of such
Sale and Leaseback Transaction, the Company or such Subsidiary applies an amount
not less than the greater of (i) the net proceeds of the sale of the Principal
Property sold pursuant to such Sale and Leaseback Transaction or (ii) the fair
value (as determined by the Company) of such Principal Property to retire (other
than pursuant to any mandatory prepayment or retirement) Funded Debt of the
Company or any Subsidiary (other than Funded Debt held by the Company or any
Subsidiary of the Company), including, for this purpose, any currently maturing
portion of such Funded Debt, or to purchase other property having a fair value
(as determined by the Company) at least equal to the fair value (as determined
by the Company) of the Principal Property sold in such Sale and Leaseback
Transaction, (x) such Sale and Leaseback Transaction occurs within 180 days
after the latest to occur of the date of acquisition by the Company or such
Subsidiary, completion of construction or commencement of commercial operations
of the Principal Property sold pursuant to such transaction, (y) such Sale and
Leaseback Transaction (A) is between the Company and any Subsidiary or between
any Subsidiaries, or (B) is entered into prior to the date of the Indenture
(including, but not limited to, the lease financings initially entered into as
of April 11, 1996), or (z) at the time such Sale and Leaseback Transaction is
entered into, the term of the related lease to the Company or such Subsidiary of
the Principal Property sold pursuant to such transaction is three years or less.
CONSOLIDATION, MERGER OR SALE BY THE COMPANY
The Indenture will provide that the Company will not consolidate or merge
with or into, or sell, convey, assign, transfer, lease or otherwise dispose of
all or substantially all of its assets to, any Person unless (i) the Person
formed by or surviving any such consolidation or merger (if other than the
Company) or which acquires the Company's assets is a corporation organized and
existing under the laws of the United States of America, any state thereof or
the District of Columbia, (ii) the Person formed by or surviving any such
consolidation or merger (if other than the Company) or which acquires the
Company's assets expressly assumes all of the obligations of the Company under
the Debt Securities and the Indenture and (iii) immediately after giving effect
to the transaction, no Default or Event of Default shall have occurred and be
continuing.
Upon any such consolidation, merger, sale, conveyance, assignment,
transfer, lease or other disposition in which the Company is not the continuing
corporation, the successor corporation formed by such consolidation or into
which the Company is merged or to which such sale, conveyance, assignment,
transfer, lease or other disposition is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
the Indenture with the same effect as if such successor corporation had been
named as the Company therein and thereafter (except in the case of a lease) the
Company shall be released from its obligations under the Indenture and the Debt
Securities.
The Indenture will contain no covenants or other specific provisions to
afford protection to holders of the Debt Securities in the event of a highly
leveraged transaction or a change in control of the Company, except to the
limited extent described above.
EVENTS OF DEFAULT, NOTICE AND CERTAIN RIGHTS ON DEFAULT
The Indenture will provide that, if an Event of Default specified therein
occurs with respect to the Debt Securities of any series and is continuing, the
Trustee or the holders of 25% in aggregate principal amount of all of the
outstanding Debt Securities of that series, by written notice to the Company
(and to the Trustee for such series, if notice is given by such holders of Debt
Securities), may declare the principal of (or, if the Debt
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Securities of that series are Original Issue Discount Securities or Indexed
Securities, such portion of the principal amount specified in the Prospectus
Supplement) and accrued interest on all the Debt Securities of that series to be
due and payable. (Section 5.2 of the Indenture.)
Events of Default with respect to Debt Securities of any series are defined
in the Indenture as being: (a) default in payment of any interest on any Debt
Security of that series or any coupon appertaining thereto or any Additional
Amount payable with respect to Debt Securities of such series as specified in
the applicable Prospectus Supplement when due and continuance of such default
for 30 days; (b) default in payment of principal of or premium, if any, on any
Debt Security of such series when due (whether at maturity, upon redemption,
repayment at the option of the Holder or otherwise) or default in the making of
a mandatory sinking fund payment in respect of any Debt Securities of that
series when due; (c) default by the Company in the performance or breach of any
other covenant or warranty of the Company in the Indenture or any Debt Security
of such series (other than a covenant or warranty included in the Indenture
solely for the benefit of series of Debt Securities other than that series)
which shall not have been remedied for a period of 60 days after notice to the
Company by the Trustee or the holders of not less than 25% in aggregate
principal amount of the Debt Securities of such series then outstanding; (d)
default under any bond, note, debenture or other evidence of Debt of the
Company, or under any mortgage, indenture or other instrument under which there
may be issued or by which there may be secured or evidenced any Debt of the
Company, which results in the acceleration of such Debt in an aggregate
principal amount exceeding $20,000,000 and such acceleration is not rescinded or
annulled or such Debt is not paid in full, or there has not been deposited in
trust a sum of money sufficient to pay in full such Debt, within 30 days after
the written notice to the Company by the Trustee or to the Company and the
Trustee by the holders of at least 25% in aggregate principal amount of the Debt
Securities of such series then outstanding; and (e) certain events of
bankruptcy, insolvency or reorganization of the Company. (Section 5.1 of the
Indenture.) Events of Default with respect to a specified series of Debt
Securities may be added to the Indenture and, if so added, will be described in
the applicable Prospectus Supplement. (Sections 3.1 and 5.1(7) of the
Indenture.)
The Indenture will provide that the Trustee will, subject to certain
exceptions, within 90 days after the occurrence of a Default with respect to the
Debt Securities of any series, give to the holders of the Debt Securities of
that series notice of all Defaults known to it unless such Default shall have
been cured or waived. "Default" means any event which is, or after notice or
passage of time or both would be, an Event of Default. (Section 1.1 of the
Indenture.)
The Indenture will provide that the holders of a majority in aggregate
principal amount of the outstanding Debt Securities of any series may direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the Trustee with
respect to the Debt Securities of that series. (Section 5.8 of the Indenture.)
The Indenture will include a covenant that the Company will file annually
with the Trustee a certificate as to the Company's compliance with all
conditions and covenants of the Indenture. (Section 9.7 of the Indenture.)
The holders of a majority in aggregate principal amount of the outstanding
Debt Securities of any series by notice to the Trustee may waive, on behalf of
the holders of all Debt Securities of such series, any past Default or Event of
Default with respect to that series and its consequences except (i) a Default or
Event of Default in the payment of the principal of, or premium, if any, or
interest, if any, on any Debt Security of such series, or (ii) in respect of a
covenant or provision of the Indenture that cannot be modified or amended
without the consent of each holder of a Debt Security of such series affected.
(Section 5.7 of the Indenture.)
MODIFICATION OF THE INDENTURE
The Indenture will contain provisions permitting the Company and the
Trustee to enter into one or more supplemental indentures without the consent of
the holders of any of the Debt Securities in order, among other things: (i) to
evidence the succession of another Person to the Company and the assumption of
the covenants of the Company in the Indenture and in the Debt Securities by such
successor to the Company; (ii) to add to the covenants of the Company or
surrender any right or power of the Company; (iii) to add
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additional Events of Default with respect to all or any series of Debt
Securities; (iv) to add or change any provisions to such extent as necessary to
facilitate the issuance of Debt Securities in bearer form or in global form; (v)
to amend or supplement any provision of the Indenture or any Debt Securities,
provided that such amendment or supplement does not apply to any outstanding
Debt Security issued prior to the date of such supplemental indenture and
entitled to the benefits of such provision; (vi) to secure the Debt Securities;
(vii) to establish the form or terms of Debt Securities; (viii) to evidence and
provide for successor Trustees; (ix) if allowed without penalty under applicable
laws and regulations, to permit payment in respect of Debt Securities in bearer
form in the United States; (x) to cure any ambiguity or correct any mistake or
to correct or supplement any inconsistent provisions or to make any other
provisions with respect to matters or questions arising under the Indenture,
provided that such action does not adversely affect the interests of any holder
of Debt Securities of any series; or (xi) to comply with the Trust Indenture Act
of 1939. (Section 8.1 of the Indenture.)
The Indenture also will contain provisions permitting the Company and the
Trustee, with the consent of the holders of a majority in aggregate principal
amount of the outstanding Debt Securities of each series affected by such
supplemental indenture, to execute supplemental indentures adding any provisions
to or changing or eliminating any of the provisions of the Indenture or any
supplemental indenture or modifying the rights of the holders of Debt Securities
of such series; provided, however, that no such supplemental indenture may,
without the consent of the holder of each Debt Security affected thereby: (i)
change the stated maturity of principal of or premium, if any, or interest, if
any, on any Debt Security; (ii) reduce the principal of, or any installment of
principal of, or premium, if any, or interest, if any, on, or the rate of
interest on, any Debt Security, or change the manner in which the amount of any
of the foregoing is determined; (iii) reduce the amount of premium, if any,
payable upon the redemption of any Debt Security or the repurchase by the
Company of any Debt Security at the option of the holder thereof; (iv) reduce
the amount of principal payable upon acceleration of the maturity of any
Original Issue Discount Security or Indexed Security; (v) change the currency in
which any Debt Security or any premium or interest thereon is payable; (vi)
change the index, securities or commodities with reference to which or the
formula by which the amount of principal thereof or any premium or interest
thereon is determined; (vii) impair the right to institute suit for the
enforcement of any payment on or after the stated maturity or redemption date or
date of repurchase at the option of the holder of any Debt Security; (viii)
reduce the percentage in principal amount of the outstanding Debt Securities of
any series the consent of whose holders is required for modification or
amendment of the Indenture or for waiver of compliance with certain provisions
of the Indenture or for waiver of certain defaults; (ix) change the obligation
of the Company to maintain an office or agency in the places and for the
purposes specified in the Indenture; or (x) modify the provisions relating to
waiver of certain defaults or any of the foregoing provisions. (Section 8.2 of
the Indenture.)
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
Upon the direction of the Company, the Indenture shall cease to be of
further effect with respect to any series of Debt Securities issued thereunder
specified by the Company (subject to the survival of certain provisions thereof)
when (i) either (A) all outstanding Debt Securities of such series and, in the
case of Debt Securities in bearer form, all coupons appertaining thereto have
been delivered to the Trustee for cancellation (subject to certain exceptions)
or (B) all Debt Securities of such series and, if applicable, any coupons
appertaining thereto, have become due and payable or will become due and payable
at their stated maturity within one year or are to be called for redemption
within one year and the Company has deposited with the Trustee, in trust, funds
in such currency in which such Debt Securities are payable in an amount
sufficient to pay the entire indebtedness on such Debt Securities in respect of
principal, premium, if any, and interest, if any, to the date of such deposit
(if such Debt Securities have become due and payable) or to the maturity or
redemption date thereof, as the case may be, (ii) the Company has paid all other
sums payable under the Indenture with respect to the Debt Securities of such
series, and (iii) certain other conditions are met.
Unless otherwise provided in the applicable Prospectus Supplement, the
Company may elect with respect to any series of Debt Securities either (a) to
defease and be discharged from any and all obligations with respect to such Debt
Securities (except for, among other things, the obligations to register the
transfer of and
15
<PAGE> 17
exchange such Debt Securities, to replace temporary or lost or stolen Debt
Securities, to maintain an office or agency in respect of such Debt Securities
and to hold monies for payment in trust) ("defeasance"), or (b) to be released
from its obligations with respect to such Debt Securities under certain
restrictive covenants set forth in the Indenture (including the covenants
described herein under "-- Certain Covenants" and "-- Consolidation, Merger or
Sale by the Company") and such other restrictive covenants, if any, as may be
set forth in the applicable Prospectus Supplement, and any omission to comply
with such obligations shall not constitute a Default or an Event of Default with
respect to the Debt Securities of such series ("covenant defeasance"), in either
case upon the irrevocable deposit with the Trustee (or other qualifying
trustee), in trust for such purpose, of money in an amount in such currency in
which such Debt Securities are payable, and/or Government Obligations (as
defined in the Indenture) which through the payment of principal and interest in
accordance with their terms will provide money in an amount, sufficient to pay
the principal of and any premium and any interest on such Debt Securities, and
any mandatory sinking fund payments thereon, on the scheduled due dates therefor
or the applicable redemption date, as the case may be.
Such defeasance or covenant defeasance shall only be effective if, among
other things, (i) it shall not result in a breach or violation of, or constitute
a default under, the Indenture or any other material agreement or instrument to
which the Company is a party or by which it is bound, (ii) the Company has
delivered to the Trustee an opinion of counsel to the effect that the holders of
such Debt Securities will not recognize income, gain or loss for federal income
tax purposes as a result of such defeasance or covenant defeasance, as the case
may be, and will be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such defeasance
or covenant defeasance had not occurred, (iii) if the monies or Government
Obligations deposited are sufficient to pay the outstanding Debt Securities of
such series provided such Debt Securities are redeemed on a particular
redemption date, the Company shall have given the Trustee irrevocable
instructions to redeem such Debt Securities on such date, and (iv) no Event of
Default or Default with respect to the Debt Securities of such series shall have
occurred and be continuing on the date of the aforesaid deposit into trust or,
solely insofar as an Event of Default or Default arising from the circumstances
specified in clause (e) of the second paragraph under " -- Events of Default,
Notice and Certain Rights on Default" above are concerned, at any time during
the period ending on the 91st day after the date of such deposit into trust.
Unless otherwise provided in the applicable Prospectus Supplement, if after
the Company has deposited funds and/or Government Obligations to effect
defeasance or covenant defeasance with respect to Debt Securities of any series,
(a) the holder of a Debt Security of such series is entitled to, and does, elect
pursuant to the Indenture or the terms of such Debt Security to receive payment
in a currency other than that in which such deposit has been made in respect of
such Debt Security, or (b) a Conversion Event (as defined below) occurs in
respect of the Foreign Currency in which such deposit has been made, the
indebtedness represented by such Debt Security shall be deemed to have been, and
will be, fully discharged and satisfied through the payment of the principal of,
and premium, if any, and interest, if any, on such Debt Security as the same
becomes due out of the proceeds yielded by converting the funds or Government
Obligations so deposited in respect of such Debt Security into the currency in
which such Debt Security becomes payable as a result of such election or such
Conversion Event based on (x) in the case of payments made pursuant to clause
(a) above, the applicable market exchange rate for such Foreign Currency in
effect on the second business day prior to each payment date, or (y) with
respect to a Conversion Event, the applicable market exchange rate for such
Foreign Currency in effect (as nearly as feasible) at the time of the Conversion
Event.
"Conversion Event" means the cessation of use of (i) a Foreign Currency
both by the government of the country or the confederation which issued such
Foreign Currency and, for the settlement of transactions, by a central bank or
other public institutions of or within the international banking community, (ii)
the ECU both within the European Monetary System and for the settlement of
transactions by public institutions of or within the European Union or (iii) any
currency unit or composite currency other than the ECU for the purposes for
which it was established.
In the event the Company effects covenant defeasance with respect to any
Debt Securities and such Debt Securities are declared due and payable because of
the occurrence of any Event of Default other than with respect to a covenant as
to which there has been covenant defeasance, the amount of monies and/or
16
<PAGE> 18
Government Obligations deposited with the Trustee to effect such covenant
defeasance may not be sufficient to pay amounts due on such Debt Securities at
the time of any acceleration resulting from such Event of Default. However, the
Company would remain liable to make payment of such amounts due at the time of
acceleration.
The applicable Prospectus Supplement may further describe the provisions,
if any, permitting or restricting such defeasance or covenant defeasance with
respect to the Debt Securities of a particular series.
GOVERNING LAW
The Indenture and the Debt Securities will be governed by, and construed in
accordance with, the laws of the State of New York.
THE TRUSTEE
Chase Trust Company of California will be the Trustee under the Indenture.
The Company may also maintain banking and other commercial relationships with
the Trustee and its affiliates in the ordinary course of business.
PLAN OF DISTRIBUTION
The Company may, from time to time, sell Debt Securities (1) through
underwriters or dealers, (2) directly to one or more purchasers, or (3) through
agents. A Prospectus Supplement will set forth the terms of the offering of the
Debt Securities offered thereby, including the name or names of any
underwriters, the purchase price of the Debt Securities, the proceeds to the
Company from the sale, any underwriting discounts and commissions, any initial
public offering price, any discounts or concessions allowed or reallowed or paid
to dealers, and any securities exchange or market on which the Debt Securities
may be listed. Only underwriters so named in such Prospectus Supplement are
deemed to be underwriters in connection with the Debt Securities offered
thereby.
If underwriters are used in the sale, the Debt Securities will be acquired
by the underwriters for their own account and may be resold from time to time in
one or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale. The
obligations of the underwriters to purchase the Debt Securities will be subject
to certain conditions precedent, and the underwriters will be obligated to
purchase all the Debt Securities of the series offered by the Prospectus
Supplement if any of the Debt Securities are purchased. Any initial public
offering price and any discounts or concessions allowed or reallowed or paid to
dealers may be changed from time to time.
Debt Securities may also be sold directly by the Company or through agents
designated by the Company from time to time. Any agent involved in the offering
and sale of Debt Securities in respect of which this Prospectus is delivered
will be named, and any commissions payable by the Company to such agent will be
set forth, in the related Prospectus Supplement. Unless otherwise indicated in
the related Prospectus Supplement, any such agent will be acting on a reasonable
efforts basis for the period of its appointment.
Debt Securities offered may be a new issue of securities with no
established trading market. Any underwriters to whom or agents through whom such
Debt Securities are sold by the Company for public offering and sale may make a
market in such Debt Securities, but such underwriters or agents will not be
obligated to do so and may discontinue any market making at any time without
notice. No assurance can be given as to the liquidity of or the trading market
for any such Debt Securities.
In order to facilitate the offering of the Debt Securities, any
underwriters or agents, as the case may be, involved in the offering of such
Debt Securities may engage in transactions that stabilize, maintain or otherwise
affect the price of the Debt Securities or any other securities the prices of
which may be used to determine payments on such Debt Securities. Specifically,
the underwriters or agents, as the case may be, may overallot in connection with
the offering, creating a short position in such Debt Securities for their own
account. In addition, to cover overallotments or to stabilize the price of such
Debt Securities or any such other
17
<PAGE> 19
securities, the underwriters or agents, as the case may be, may bid for, and
purchase, such Debt Securities or any such other securities in the open market.
Finally, in any offering of such Debt Securities through a syndicate of
underwriters, the underwriting syndicate may reclaim selling concessions allowed
to an underwriter or a dealer for distributing such Debt Securities in the
offering if the syndicate repurchases previously distributed Debt Securities in
transactions to cover syndicate short positions, in stabilization transactions
or otherwise. Any of these activities may stabilize or maintain the market price
of the Debt Securities above independent market levels. The underwriters or
agents, as the case may be, are not required to engage in these activities, and
may end any of these activities at any time.
Agents and underwriters may be entitled under agreements entered into with
the Company to indemnification by the Company against certain liabilities,
including liabilities under the Securities Act, or to contribution with respect
to payments which the agents or underwriters may be required to make in respect
thereof. Agents and underwriters may engage in transactions with, or perform
services for, the Company in the ordinary course of business.
LEGAL MATTERS
The validity of the issuance of the Debt Securities offered hereby and
certain related matters will be passed upon for the Company by the Vice
President and General Counsel of the Company, and Heller Ehrman White &
McAuliffe, Palo Alto, California, the Company's counsel. At July 16, 1997, the
Vice President and General Counsel beneficially owned 24,697 shares of Common
Stock of the Company (including options to purchase Common Stock of the Company)
and attorneys in the firm of Heller Ehrman White & McAuliffe who are directly
involved in the representation of the Company owned, in the aggregate, 200
shares of Common Stock of the Company. Brown & Wood LLP, San Francisco,
California, will act as counsel for any underwriters or agents.
EXPERTS
The financial statements incorporated in this Prospectus by reference to
the Company's Annual Report on Form 10-K for the year ended June 30, 1996 have
been so incorporated in reliance on the report of Price Waterhouse LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
18
<PAGE> 20
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses in connection with the issuance and distribution of the
securities being registered, other than underwriting discounts and commissions,
are estimated as follows:
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee....................... $121,212
Rating Agency Fees and Expenses*.......................................... 60,000
Blue Sky Fees and Expenses*............................................... 10,000
Legal Fees and Expenses*.................................................. 80,000
Accounting Fees and Expenses*............................................. 60,000
Printing and Engraving Expenses*.......................................... 50,000
Trustee Fees and Expenses*................................................ 10,000
Miscellaneous*............................................................ 8,788
--------
Total................................................................... 400,000
========
</TABLE>
- ---------------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 102 of the Delaware General Corporation Law allows a corporation to
eliminate the personal liability of directors of a corporation to the
corporation or to any of its stockholders for monetary damage for a breach of
his fiduciary duty as a director, except in the case where the director breached
his duty of loyalty, failed to act in good faith, engaged in intentional
misconduct or knowingly violated a law, authorized the payment of a dividend or
approved a stock repurchase in violation of Delaware corporate law or obtained
an improper personal benefit. The Registrant's Amended and Restated Certificate
of Incorporation contains a provision that eliminates directors' personal
liability as set forth above.
Section 145 of the Delaware General Corporation Law, as amended, provides
that a corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation or is or was serving at its request in such capacity in another
corporation or business association against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
In addition, Article 8 of the Registrant's Amended and Restated Certificate
of Incorporation provides as follows:
Limitation of Liability and Indemnification of Directors.
A. Elimination of Certain Liability of Directors.
A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for beach of fiduciary duty
as a director, except for liability (i) for any breach of the director's duty of
loyalty to the Corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv)
for any transaction from which the director derived an improper personal
benefit.
B. Indemnification and Insurance.
II-1
<PAGE> 21
(1) Right to Indemnification. Each person who was or is made a party or is
threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding") by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director or officer
of the Corporation or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise (including service with respect to
employee benefit plans), whether the basis of the proceeding is alleged action
in an official capacity as a director, officer, employee or agent or in any
other capacity while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Corporation to provide broader indemnification
rights than said law permitted the Corporation to provide prior to such
amendment), against all expense, liability and loss (including attorneys' fees,
judgments, fines, Employee Retirement Income Security Act of 1974 excise taxes
or penalties and amounts paid or to be paid in settlement) reasonably incurred
or suffered by such person in connection therewith and such indemnification
shall continue as to a person who has ceased to be a director, officer, employee
or agent and shall inure to the benefit of his or her heirs, executors and
administrators; provided, however, that the Corporation shall indemnify any such
person seeking indemnification in connection with a proceeding (or part thereof)
initiated by such person only if such proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation. The right to
indemnification conferred in this Section shall be a contract right and shall
include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition; provided,
however, that, if the Delaware General Corporation Law requires, the payment of
such expenses incurred by a director or officer in his or her capacity as a
director or officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including, without
limitation, service with respect to an employee benefit plan) in advance of the
final disposition of the proceeding, shall be made only upon delivery to the
Corporation of an undertaking, by or on behalf of such director or officer, to
repay all amounts so advanced if ultimately it shall be determined that such
director or officer is not entitled to be indemnified under this Section or
otherwise. The Corporation may, by action of its Board of Directors, provide
indemnification to employees and agents of the Corporation with the same scope
and effect as the foregoing indemnification of directors and officers.
(2) Non-Exclusivity of Rights. The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Section shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute, provisions of
this Certificate of Incorporation, Bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
(3) Insurance. The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the Corporation
or another corporation, partnership, joint venture, trust or other enterprise
against any such expense, liability or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability or
loss under the Delaware General Corporation Law.
The Company has purchased directors and officers liability insurance which
would indemnify the directors and officers of the Company against damages
arising out of certain kinds of claims which might be made against them based on
their negligent acts or omissions while acting in their capacity as such.
II-2
<PAGE> 22
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------ ------------------------------------------------------------------------------------
<C> <S>
1.1 Form of Underwriting Agreement
4.1 Form of Indenture between the Company and Chase Trust Company of California
4.2 Form of Note
5.1 Opinion of Heller Ehrman White & McAuliffe
12.1 Calculation of Ratios of Earnings to Fixed Charges
23.1 Consent of Heller Ehrman White & McAuliffe (included in Exhibit 5.1)
23.2 Consent of Price Waterhouse LLP
24.1 Powers of Attorney (see page II-5)
25.1 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of Chase Trust Company of California
</TABLE>
ITEM 17. UNDERTAKINGS
A. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in the volume of securities offered (if the total
dollar value of the securities offered would not exceed that which was
registered) and any deviation from the low or high and of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that paragraphs A(1)(i) and A(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated
by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
B. The undersigned registrant hereby undertakes that, for purposes of
determining liability under the Securities Act, each filing of the registrant's
annual report pursuant to Section 13(a) or 15(d) of the Exchange Act that is
incorporated by reference in the registration statement shall be deemed a new
II-3
<PAGE> 23
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-4
<PAGE> 24
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Menlo Park, State of California, on this 16th day of
July, 1997.
RAYCHEM CORPORATION
By: /s/ RICHARD A. KASHNOW
------------------------------------
Richard A. Kashnow
President and Chief Executive
Officer
POWER OF ATTORNEY TO SIGN AMENDMENTS
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below does hereby constitute and appoint Richard A. Kashnow and Raymond J. Sims,
or either or them, each with full power of substitution, such person's true and
lawful attorneys-in-fact and agents for such person in such person's name, place
and stead, in any and all capacities, to sign any or all amendments (including
post-effective amendments) to this Registration Statement on Form S-3 and all
registration statements filed pursuant to Rule 462(b) under the Securities Act
of 1933, and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises in order to effectuate the same as fully, to all intents and purposes,
as he or such person might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement on Form S-3 has been signed by the following persons in the following
capacities as of July 16th, 1997.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- --------------------------------------------- ----------------------------------------------
<C> <S>
/s/ RICHARD A. KASHNOW President, Chief Executive Officer and
- --------------------------------------------- Chairman of the Board (Principal Executive
Richard A. Kashnow Officer)
/s/ RAYMOND J. SIMS Senior Vice President and Chief Financial
- --------------------------------------------- Officer (Principal Financial Officer)
Raymond J. Sims
/s/ DEIDRA D. BARSOTTI Vice President and Controller (Principal
- --------------------------------------------- Accounting Officer)
Deidra D. Barsotti
/s/ RICHARD DULUDE Director
- ---------------------------------------------
Richard Dulude
/s/ JAMES F. GIBBONS Director
- ---------------------------------------------
James F. Gibbons
</TABLE>
II-5
<PAGE> 25
<TABLE>
<CAPTION>
SIGNATURE TITLE
- --------------------------------------------- ----------------------------------------------
<C> <S>
/s/ JOHN P. MCTAGUE Director
- ---------------------------------------------
John P. McTague
/s/ DEAN O. MORTON Director
- ---------------------------------------------
Dean O. Morton
/s/ ISAAC STEIN Director
- ---------------------------------------------
Isaac Stein
/s/ CHANG-LIN TIEN Director
- ---------------------------------------------
Chang-Lin Tien
/s/ CYRIL J. YANSOUNI Director
- ---------------------------------------------
Cyril J. Yansouni
</TABLE>
II-6
<PAGE> 26
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIALLY
ITEM NUMBERED
NO. DESCRIPTION OF ITEM PAGE
- ---- ---------------------------------------------------------------------------- ------------
<C> <S> <C>
1.1 Form of Underwriting Agreement..............................................
4.1 Form of Indenture between the Company and Chase Trust Company of
California..................................................................
4.2 Form of Note................................................................
5.1 Opinion of Heller Ehrman White & McAuliffe..................................
12.1 Calculation of Ratios of Earnings to Fixed Charges..........................
23.1 Consent of Heller Ehrman White & McAuliffe (included in Exhibit 5.1)........
23.2 Consent of Price Waterhouse LLP.............................................
24.1 Powers of Attorney (see page II-5)..........................................
25.1 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939,
as amended, of Chase Trust Company of California............................
</TABLE>
<PAGE> 1
EXHIBIT 1.1
RAYCHEM CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
____________
From time to time, Raychem Corporation, a Delaware corporation
(the "Company"), may enter into one or more underwriting agreements that
provide for the sale of designated securities to the several underwriters named
therein. The standard provisions set forth herein may be incorporated by
reference in any such underwriting agreement (an "Underwriting Agreement").
The Underwriting Agreement, including the provisions incorporated therein by
reference, is herein sometimes referred to as this Agreement. Terms defined in
the Underwriting Agreement are used herein as therein defined.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement, including a prospectus,
relating to the Offered Securities and has filed with, or transmitted for
filing to, or shall promptly hereafter file with or transmit for filing to, the
Commission a prospectus supplement (the "Prospectus Supplement") specifically
relating to the Offered Securities pursuant to Rule 424 under the Securities
Act of 1933, as amended (the "Securities Act"). The term "Registration
Statement" means the registration statement, including the exhibits thereto,
as amended to the date of this Agreement. The term "Basic Prospectus" means
the prospectus included in the Registration Statement. The term "Prospectus"
means the Basic Prospectus together with the Prospectus Supplement. The term
"preliminary prospectus" means a preliminary prospectus supplement specifically
relating to the Offered Securities, together with the Basic Prospectus. As
used herein, the terms "Basic Prospectus," "Prospectus" and "preliminary
prospectus" shall include in each case the documents, if any, incorporated by
reference therein. The terms "supplement," "amendment" and "amend" as used
herein shall include all documents deemed to be incorporated by reference in
the Prospectus that are filed subsequent to the date of the Basic Prospectus by
the Company with the Commission pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act").
1. REPRESENTATIONS AND WARRANTIES. The Company
represents and warrants to and agrees with each of the Underwriters that:
<PAGE> 2
(a) The Registration Statement has become effective; no
stop order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or threatened by
the Commission.
(b) (i) Each document, if any, filed or to be filed
pursuant to the Exchange Act and incorporated by reference in the Prospectus
complied or will comply when so filed in all material respects with the
Exchange Act and the applicable rules and regulations of the Commission
thereunder, (ii) each part of the Registration Statement, when such part became
effective, did not contain, and each such part, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, (iii) the Registration Statement and the
Prospectus comply, and, as amended or supplemented, if applicable, will comply
in all material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iv) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and warranties
set forth in this Section 1(b) do not apply (A) to statements or omissions in
the Registration Statement or the Prospectus based upon information relating to
any Underwriter furnished to the Company in writing by such Underwriter through
the Manager expressly for use therein or (B) to that part of the Registration
Statement that constitutes the Statement of Eligibility (a "Form T-1") under
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), of any
trustee.
(c) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the jurisdiction
of its incorporation, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on
the Company and its subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly
incorporated, is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is in good standing
in each jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(e) This Agreement has been duly authorized, executed and
delivered by the Company.
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(f) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company, enforceable in
accordance with its terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability.
(g) The Offered Securities have been duly authorized and,
when executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in accordance with
the terms of the Underwriting Agreement, will be entitled to the benefits of
the Indenture and will be valid and binding obligations of the Company,
enforceable in accordance with their terms except as (i) the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (ii) rights of acceleration, if any, and the
availability of equitable remedies may be limited by equitable principles of
general applicability.
(h) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Indenture and the Offered Securities will not contravene any provision of
applicable law or the certificate of incorporation or by-laws of the Company or
any agreement or other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its subsidiaries, taken as a
whole, or any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any subsidiary, and no consent,
approval, authorization or order of, or qualification with, any governmental
body or agency is required for the performance by the Company of its
obligations under this Agreement, the Indenture or the Offered Securities,
except such as may be required by the securities or Blue Sky laws of the
various states in connection with the offer and sale of the Offered Securities.
(i) There has not occurred any material adverse change
in the condition, financial or otherwise, or in the earnings, business,
operations or prospects of the Company and its subsidiaries, taken as a whole,
from that set forth in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement).
(j) There are no legal or governmental proceedings
pending or threatened to which the Company or any of its subsidiaries is a
party or to which any of the properties of the Company or any of its
subsidiaries is subject that are required to be described in the Registration
Statement or the Prospectus and are not so described or any statutes,
regulations, contracts or other documents that are required to be described in
the Registration Statement or the Prospectus or to be filed or incorporated by
reference as exhibits to the Registration Statement that are not described,
filed or incorporated as required.
(k) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any amendment thereto,
or filed pursuant to Rule 424 under the
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Securities Act, complied when so filed in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder.
(l) The Company is not an "investment company" or an
entity "controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended.
(m) The Company and its subsidiaries (i) are in
compliance with any and all applicable foreign, federal, state and local laws
and regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) have received all permits, licenses
or other approvals required of them under applicable Environmental Laws to
conduct their respective businesses and (iii) are in compliance with all terms
and conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and conditions
of such permits, licenses or approvals would not, singly or in the aggregate,
have a material adverse effect on the Company and its subsidiaries, taken as a
whole.
(n) In the ordinary course of its business, the Company
conducts a periodic review of the effect of Environmental Laws on the business,
operations and properties of the Company and its subsidiaries, in the course of
which it identifies and evaluates associated costs and liabilities (including,
without limitation, any capital or operating expenditures required for
clean-up, closure of properties or compliance with Environmental Laws or any
permit, license or approval, any related constraints on operating activities
and any potential liabilities to third parties). On the basis of such review,
the Company has reasonably concluded that such associated costs and liabilities
would not, singly or in the aggregate, have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(o) The Company has complied, if applicable, with all
provisions of Section 517.075, Florida Statutes relating to doing business with
the Government of Cuba or with any person or affiliate located in Cuba.
(p) The Company is eligible to use Form S-3 under the
Securities Act pursuant to the standards for that Form as in effect immediately
prior to October 21, 1992.
2. TERMS OF PUBLIC OFFERING. The Company is advised by
the Manager that the Underwriters propose to make a public offering of their
respective portions of the Offered Securities as soon after this Agreement has
been entered into as in the Manager's judgment is advisable. The terms of the
public offering of the Offered Securities are set forth in the Prospectus.
3. PAYMENT AND DELIVERY. Except as otherwise provided
in this Section 3, payment for the Offered Securities shall be made to the
Company by transfer of same day funds at the time set forth in the
Underwriting Agreement, upon delivery to the Manager
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<PAGE> 5
for the respective accounts of the several Underwriters of the Offered
Securities registered in such names and in such denominations as the Manager
shall request in writing not less than one full business day prior to the date
of delivery, with any transfer taxes payable in connection with the transfer of
the Offered Securities to the Underwriters duly paid.
4. CONDITIONS TO THE UNDERWRITERS' OBLIGATIONS. The
several obligations of the Underwriters are subject to the following
conditions:
(a) Subsequent to the execution and delivery of the
Underwriting Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change,
in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the
Securities Act; and
(ii) there shall not have occurred any change, or
any development involving a prospective change, in the
condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries,
taken as a whole, from that set forth in the Prospectus
(exclusive of any amendments or supplements thereto subsequent
to the date of this Agreement) that, in the judgment of the
Manager, is material and adverse and that makes it, in the
judgment of the Manager, impracticable to market the Offered
Securities on the terms and in the manner contemplated in the
Prospectus.
(b) The Underwriters shall have received on the Closing
Date a certificate, dated the Closing Date and signed by an executive
officer of the Company, to the effect set forth in clause (a)(i) above
and to the effect that the representations and warranties of the
Company contained in this Agreement are true and correct as of the
Closing Date and that the Company has complied with all of the
agreements and satisfied all of the conditions on its part to be
performed or satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely
upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing
Date an opinion of the General Counsel of the Company, dated the
Closing Date, to the effect that:
(i) the Company is duly qualified to transact
business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of
property requires such qualification, except to the
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<PAGE> 6
extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
(ii) each subsidiary of the Company has been duly
incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries,
taken as a whole;
(iii) neither the execution nor the delivery by the
Company of, nor the performance by the Company of its
obligations under, this Agreement, the Indenture or the
Offered Securities will (i) contravene any provision of the
Company's certificate of incorporation or by-laws, (ii)
violate any law applicable to the Company or any of its
subsidiaries, or (iii) to the knowledge of such counsel,
result in a breach or violation of, or constitute a default
(or an event which, with notice or lapse of time or both,
would become a default) under, (A) any agreement or other
instrument binding upon the Company or any of its subsidiaries
that is material to the Company and its subsidiaries, taken as
a whole, or (B) any order or decree of any governmental body,
agency or court having jurisdiction over the Company or any of
its subsidiaries.
(iv) the statements (A) in "Item 3 - Legal
Proceedings" of the Company's most recent annual report on
Form 10-K incorporated by reference in the Prospectus and (B)
in "Item 1 - Legal Proceedings" of Part II of the Company's
quarterly reports on Form 10-Q, if any, filed since such
annual report, in each case insofar as such statements
constitute summaries of the legal matters, documents or
proceedings referred to therein, fairly present the
information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters
referred to therein;
(v) after due inquiry, such counsel does not know of
any legal or governmental proceedings pending or threatened to
which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its
subsidiaries is subject that are required to be described in
the Registration Statement or the Prospectus and are not so
described or of any statutes, regulations, contracts or other
documents that are required to be described in the
Registration Statement or the Prospectus or to be filed or
incorporated by reference as exhibits to the Registration
Statement that are not described, filed or incorporated as
required; and
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<PAGE> 7
(vi) each document filed pursuant to the Exchange
Act and incorporated by reference in the Prospectus (except
for financial statements and schedules and other financial
data included therein, as to which such counsel need not
express any opinion) complied when so filed as to form in all
material respects with the Exchange Act and the applicable
rules and regulations of the Commission thereunder.
(d) The Underwriters shall have received on the Closing
Date an opinion of Heller Ehrman White & McAuliffe, outside counsel
for the Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware and is duly qualified to do
business and is in good standing in the State of California;
(ii) the Company has all requisite corporate power
and corporate authority to own and operate its properties and
to carry on its business as described in the Prospectus;
(iii) this Agreement has been duly authorized by all
necessary corporate action on the part of the Company and has
been duly executed and delivered by the Company;
(iv) the Indenture has been duly qualified under the
Trust Indenture Act; the Indenture has been duly authorized by
all necessary corporate action on the part of the Company and
has been duly executed and delivered by the Company and
(assuming the due authorization, execution and delivery
thereof by the Trustee) is a valid and binding obligation of
the Company, enforceable against the Company in accordance
with its terms, subject, as to enforcement, (i) to bankruptcy,
insolvency, reorganization, arrangement, moratorium and other
similar laws of general applicability relating to or affecting
creditors' rights and (ii) to general principles of equity,
whether such enforceability is considered in a proceeding in
equity or at law;
(v) the Offered Securities have been duly authorized
by all necessary corporate action on the part of the Company
and, when executed by the Company and authenticated by the
Trustee in the manner provided for in the Indenture (assuming
due authorization, execution and delivery of the Indenture by
the Trustee) and delivered to and paid for by the Underwriters
in accordance with the terms of this Agreement, will be valid
and binding obligations of the Company, enforceable against
the Company in accordance with their terms, subject, as to
enforcement, (i) to bankruptcy, insolvency, reorganization,
arrangement, moratorium and other similar laws of general
applicability relating to or affecting creditors' rights and
(ii) to general principles of equity, whether
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<PAGE> 8
such enforceability is considered in a proceeding in equity or
at law, and will be entitled to the benefits of the Indenture;
(vi) No governmental consents, approvals,
authorizations, registrations, declarations, qualifications or
filings are required in connection with the offering, issuance
or sale of the Offered Securities or for the performance by
the Company of its obligations under this Agreement, the
Indenture or the Offered Securities, except such as have been
made or obtained under the Securities Act and the Trust
Indenture Act and the applicable rules and regulations of the
Commission under the Securities Act and the Trust Indenture
Act or such as may be required under state securities laws for
the offering and sale of the Offered Securities;
(vii) the statements (A) in the Prospectus under the
captions "Description of [Notes/Debentures]" and "Description
of Debt Securities" and (B) in the Registration Statement
under Item 15, in each case insofar as such statements
constitute summaries of the legal matters, documents or
proceedings referred to therein, fairly present the
information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters
referred to therein;
(viii) the Company is not an "investment company" or
an entity "controlled" by an "investment company," as such
terms are defined in the Investment Company Act of 1940, as
amended;
(ix) if applicable, such counsel is of the opinion
ascribed to it in the Prospectus under the caption "Taxation"
(or other similar caption, as the case may be);
(x) the Registration Statement, at the time it
became effective, and the Registration Statement and the
Prospectus, as of the date such opinion is delivered (in each
case other than the financial statements and schedules and
other financial data included therein and other than any Form
T-1, with respect to which such counsel need express no
opinion) complied as to form in all material respects with the
Securities Act and the applicable rules and regulations of the
Commission thereunder; and
(xi) no facts have come to the attention of such
counsel that have led them to believe that the Registration
Statement, at the time the Registration Statement became
effective or as of the date such opinion is delivered,
contained or contains any untrue statement of a material fact
or omitted or omits to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or that the Prospectus, as of its date or as of
the date such opinion is delivered, contained or contains any
untrue statement of a material fact or omitted or omits to
state a material fact
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<PAGE> 9
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, except that such counsel may state that they
express no opinion, view or belief with respect to financial
statements and schedules and other financial data included in
the Registration Statement or the Prospectus or with respect
to any Form T-1.
(e) The Underwriters shall have received on the Closing
Date an opinion of Brown & Wood LLP, special counsel for the
Underwriters, dated the Closing Date, covering the matters referred to
in subparagraphs (iii), (iv), (v), (vii) (but only as to the
statements in the Prospectus under "Description of [Notes/Debentures]"
and "Description of Debt Securities"), (x) and (xi) of paragraph (d)
above.
In rendering their opinion pursuant to paragraph (d)
above, Heller Ehrman White & McAuliffe may state that the opinions set forth in
subparagraphs (iv) and (v) thereof regarding the validity and enforceability of
the Indenture and the Offered Securities against the Company, the opinion set
forth in subparagraph (vii) thereof regarding the information in the Prospectus
under the captions "Description of [Notes/Debentures]" and "Description of Debt
Securities" and any other opinion that might be governed by the laws of the
State of New York, are rendered as if the Indenture and the Offered Securities
were governed by and construed in accordance with the laws of the State of
California but without regard to California conflict of law principles and that
such counsel does not express any opinion, view or belief with respect to the
relationship of the laws of the State of New York to those of the State of
California. With respect to the subparagraph (xi) of paragraph (d) above,
Heller Ehrman White & McAuliffe may state that their belief is based upon their
participation in the preparation of the Registration Statement and Prospectus
and any amendments or supplements thereto and documents incorporated therein by
reference and review and discussion of the contents thereof, but is without
independent check or verification, except as specified. With respect to
subparagraph (xi) of paragraph (d) above, Brown & Wood LLP may state that their
belief is based upon their participation in the preparation of the Registration
Statement and Prospectus and any amendments or supplements thereto (but not
including documents incorporated therein by reference) and review and
discussion of the contents thereof (including documents incorporated therein by
reference), but is without independent check or verification, except as
specified.
The opinions of the General Counsel of the Company
and of Heller Ehrman White & McAuliffe described in paragraphs (c) and (d)
above shall be rendered to the Underwriters at the request of the Company and
shall so state therein.
(f) The Underwriters shall have received on the Closing
Date a letter, dated the Closing Date, in form and substance
satisfactory to the Underwriters, from Price Waterhouse LLP, the
Company's independent public accountants, containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in or incorporated by
reference into the Prospectus.
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<PAGE> 10
5. COVENANTS OF THE COMPANY. In further consideration
of the agreements of the Underwriters herein contained, the Company covenants
with each Underwriter as follows:
(a) To furnish the Manager, without charge, one signed
copy (or photocopy thereof) of the Registration Statement (including
exhibits thereto) and for delivery to each other Underwriter a
conformed copy of the Registration Statement (without exhibits thereto)
and, during the period mentioned in paragraph (c) below, as many copies
of the Prospectus, any documents incorporated by reference therein and
any supplements and amendments thereto or to the Registration Statement
as the Manager may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Offered Securities, to
furnish to the Manager a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement
to which the Manager reasonably objects.
(c) If, during such period after the first date of the
public offering of the Offered Securities as in the opinion of counsel
for the Underwriters the Prospectus is required by law to be delivered
in connection with sales by an Underwriter or dealer, any event shall
occur or condition exist as a result of which it is necessary to amend
or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances when the Prospectus is delivered to
a purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the
Commission and furnish, at its own expense, to the Underwriters and to
the dealers (whose names and addresses the Manager will furnish to the
Company) to which Offered Securities may have been sold by the Manager
on behalf of the Underwriters and to any other dealers upon request,
either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not,
in the light of the circumstances when the Prospectus is delivered to
a purchaser, be misleading or so that the Prospectus, as amended or
supplemented, will comply with law.
(d) To endeavor to qualify the Offered Securities for
offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Manager shall reasonably request and to maintain
such qualification for as long as the Manager shall reasonably
request; provided, however, that the Company shall not be required to
file any general consent to service of process or to qualify as
foreign corporation or securities dealer in any jurisdiction where it
is not so qualified.
(e) To make generally available to the Company's security
holders and to the Manager as soon as practicable an earning statement
covering a twelve month period beginning on the first day of the first
full fiscal quarter after the date of this Agreement, which earning
statement shall satisfy the provisions of Section 11(a) of the
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<PAGE> 11
Securities Act and the rules and regulations of the Commission
thereunder. If such fiscal quarter is the last fiscal quarter of the
Company's fiscal year, such earning statement shall be made available
not later than 90 days after the close of the period covered thereby
and in all other cases shall be made available not later than 45 days
after the close of the period covered thereby.
(f) During the period beginning on the date of the
Underwriting Agreement and continuing to and including the Closing
Date, not to offer, sell, contract to sell or otherwise dispose of any
debt securities of the Company or warrants to purchase debt securities
of the Company substantially similar to the Offered Securities (other
than (i) the Offered Securities and (ii) commercial paper issued in
the ordinary course of business), without the prior written consent of
the Manager.
(g) To pay all expenses incident to the performance of
its obligations under this Agreement, including: (i) the preparation
and filing of the Registration Statement and the Prospectus and all
amendments and supplements thereto; (ii) the preparation, issuance and
delivery of the Offered Securities; (iii) the fees and disbursements
of the Company's counsel and accountants and of the Trustee and its
counsel; (iv) the qualification of the Offered Securities under state
securities or Blue Sky laws in accordance with the provisions of
Section 5(d), including filing fees and the fees and disbursements of
counsel for the Underwriters in connection therewith and in connection
with the preparation of any Blue Sky or Legal Investment Memoranda;
(v) the printing and delivery to the Underwriters in quantities as
hereinabove stated of copies of the Registration Statement and all
amendments thereto and of any preliminary prospectus and the
Prospectus and any amendments or supplements thereto; (vi) the
printing and delivery to the Underwriters of copies of any Blue Sky or
Legal Investment Memoranda; (vii) any fees charged by rating agencies
for the rating of the Offered Securities; (viii) the filing fees and
expenses, if any, incurred with respect to any filing with the
National Association of Securities Dealers, Inc. made in connection
with the Offered Securities; and (ix) any expenses incurred by the
Company in connection with a "road show" presentation to potential
investors.
6. INDEMNIFICATION AND CONTRIBUTION. (a) The Company
agrees to indemnify and hold harmless each Underwriter and each person, if any,
who controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred by any Underwriter or any such
controlling person in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon
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information relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Manager expressly for use therein; provided,
however, that the foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of the Underwriter from whom the
person asserting any such losses, claims, damages or liabilities purchased
Offered Securities, or any person controlling such Underwriter, if a copy of
the Prospectus (as then amended or supplemented if the Company shall have
furnished any amendments or supplements thereto but excluding documents
incorporated by reference therein) was not sent or given by or on behalf of
such Underwriter to such person, if required by law so to have been delivered,
at or prior to the written confirmation of the sale of such Offered Securities
to such person, and if the Prospectus (as so amended or supplemented) would
have cured the defect giving rise to such losses, claims, damages or
liabilities, unless such failure is the result of noncompliance by the Company
with Section 5(c) hereof or unless the defect giving rise to such losses,
claims, damages or liabilities shall have been cured in a document incorporated
by reference in the Prospectus.
(b) Each Underwriter agrees, severally and not jointly,
to indemnify and hold harmless the Company, its directors, its officers who
sign the Registration Statement and each person, if any, who controls the
Company within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the foregoing indemnity
from the Company to such Underwriter, but only with reference to information
relating to such Underwriter furnished to the Company in writing by such
Underwriter through the Manager expressly for use in the Registration
Statement, any preliminary prospectus, the Prospectus or any amendments or
supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) of this Section
6, such person (the "indemnified party") shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in writing
and the indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by the Manager, in
the case of parties indemnified pursuant to paragraph (a) above, and by the
Company, in the case of parties indemnified pursuant to paragraph (b)
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above. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second and third sentences of this paragraph,
the indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
(d) To the extent the indemnification provided for in
paragraph (a) or (b) of this Section 6 is unavailable to an indemnified party
or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party under such paragraph, in lieu
of indemnifying such indemnified party thereunder, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Offered Securities or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault
of the Company on the one hand and of the Underwriters on the other hand in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other hand in connection with the offering of the
Offered Securities shall be deemed to be in the same respective proportions as
the net proceeds from the offering of such Offered Securities (before deducting
expenses) received by the Company and the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the
table on the cover of the Prospectus Supplement, bear to the aggregate public
offering price of the Offered Securities. The relative fault of the Company on
the one hand and the Underwriters on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The
Underwriters' respective obligations to contribute pursuant to this Section 6
are several in proportion to the respective principal amounts of Offered
Securities they have purchased hereunder, and not joint.
13
<PAGE> 14
(e) The Company and the Underwriters agree that it would
not be just or equitable if contribution pursuant to this Section 6 were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to in paragraph (d) of
this Section 6. The amount paid or payable by an indemnified party as a result
of the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 6, no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Offered Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 6 are not exclusive and shall not limit any rights or remedies which
may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained
in this Section 6 and the representations, warranties and other statements of
the Company contained in this Agreement shall remain operative and in full
force and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter or the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of the
Offered Securities.
7. TERMINATION. This Agreement shall be subject to
termination by notice given by the Manager to the Company, if (a) after the
execution and delivery of the Underwriting Agreement and prior to the Closing
Date (i) trading generally shall have been suspended or materially limited on
or by, as the case may be, any of the New York Stock Exchange, the American
Stock Exchange, the National Association of Securities Dealers, Inc., the
Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the
Chicago Board of Trade, (ii) trading of any securities of the Company shall
have been suspended on any exchange or in any over-the-counter market, (iii) a
general moratorium on commercial banking activities in New York shall have been
declared by either Federal or New York State authorities or (iv) there shall
have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the judgment of the
Manager, is material and adverse and (b) in the case of any of the events
specified in clauses (a)(i) through (iv), such event, singly or together with
any other such event, makes it, in the judgment of the Manager, impracticable
to market the Offered Securities on the terms and in the manner contemplated in
the Prospectus.
8. DEFAULTING UNDERWRITERS. If, on the Closing Date,
any one or more of the Underwriters shall fail or refuse to purchase Offered
Securities that it has or they have
14
<PAGE> 15
agreed to purchase hereunder on such date, and the aggregate amount of Offered
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase is not more than one-tenth of the aggregate amount of
the Offered Securities to be purchased on such date, the other Underwriters
shall be obligated severally in the proportions that the amount of Offered
Securities set forth opposite their respective names in the Underwriting
Agreement bears to the aggregate amount of Offered Securities set forth
opposite the names of all such non-defaulting Underwriters, or in such other
proportions as the Manager may specify, to purchase the Offered Securities
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase on such date; provided that in no event shall the amount of Offered
Securities that any Underwriter has agreed to purchase pursuant to this
Agreement be increased pursuant to this Section 8 by an amount in excess of
one-ninth of such amount of Offered Securities without the written consent of
such Underwriter. If, on the Closing Date, any Underwriter or Underwriters
shall fail or refuse to purchase Offered Securities and the aggregate amount of
Offered Securities with respect to which such default occurs is more than
one-tenth of the aggregate amount of Offered Securities to be purchased on such
date, and arrangements satisfactory to the Manager and the Company for the
purchase of such Offered Securities are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either the Manager
or the Company shall have the right to postpone the Closing Date, but in no
event for longer than seven days, in order that the required changes, if any,
in the Registration Statement and in the Prospectus or in any other documents
or arrangements may be effected. Any action taken under this paragraph shall
not relieve any defaulting Underwriter from liability in respect of any default
of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company shall be unable to perform its obligations under
this Agreement, the Company will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and disbursements
of their counsel) reasonably incurred by such Underwriters in connection with
this Agreement or the offering contemplated hereunder.
9. COUNTERPARTS. This Agreement may be signed in two or
more counterparts, each of which shall be an original, with the same effect as
if the signatures thereto and hereto were upon the same instrument.
10. APPLICABLE LAW. This Agreement shall be governed by
and construed in accordance with the internal laws of the State of New York.
11. HEADINGS. The headings of the sections of this
Agreement have been inserted for convenience of reference only and shall not be
deemed a part of this Agreement.
15
<PAGE> 16
UNDERWRITING AGREEMENT
[date]
Raychem Corporation
300 Constitution Drive
Menlo Park, California 94025
Dear Sirs and Mesdames:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or underwriters
being herein called the "Underwriters"), and we understand that Raychem
Corporation, a Delaware corporation (the "Company"), proposes to issue and sell
$________ aggregate [initial offering price/principal amount] of [Full title of
Debt Securities] (the "Offered Securities"). The Offered Securities will be
issued pursuant to the provisions of an Indenture dated as of ____________ (the
"Indenture") between the Company and Chase Trust Company of California, as
Trustee (the "Trustee").
Subject to the terms and conditions set forth or incorporated
by reference herein, the Company hereby agrees to sell to the several
Underwriters, and each Underwriter agrees, severally and not jointly, to
purchase from the Company the respective principal amounts of Offered Securities
set forth below opposite their names at a purchase price of ___% of the
principal amount of Offered Securities[, plus accrued interest, if any, from
[date] to the date of payment and delivery]:
<TABLE>
<CAPTION>
Principal Amount of
Name Offered Securities
---- ------------------
<S> <C>
Morgan Stanley & Co. Incorporated
[Insert syndicate list, if any]
Total . . . . . . . . . . . . . .
</TABLE>
The Underwriters will pay for the Offered Securities upon
delivery thereof at _____________ at ______ a.m. (New York time) on ___________,
or at such other time, not later than 5:00 p.m. (New York time) on ___________,
as shall be designated by the Manager. The time and date of such payment and
delivery are hereinafter referred to as the Closing Date.
<PAGE> 17
The Offered Securities shall have the terms set forth in
the Prospectus dated ___________, and the Prospectus Supplement dated
______________, including the following:
Terms of Offered Securities
Maturity Date:
Interest Rate:
Redemption Provisions:
Interest Payment Dates: __________ and __________ commencing
[Interest accrues from _________]
Form and Denomination:
[Other Terms:]
All provisions contained in the document entitled Raychem
Corporation Underwriting Agreement Standard Provisions (Debt Securities) dated
_________, a copy of which is attached hereto, are herein incorporated by
reference in their entirety and shall be deemed to be a part of this Agreement
to the same extent as if such provisions had been set forth in full herein,
except that, if any term defined in such document is otherwise defined herein,
the definition set forth herein shall control.
2
<PAGE> 18
Please confirm your agreement by having an authorized officer
sign a copy of this Agreement in the space set forth below.
Very truly yours,
MORGAN STANLEY & CO. INCORPORATED
Acting severally on behalf of itself
and the several Underwriters named
herein
By:_____________________________
Name:
Title:
Accepted:
RAYCHEM CORPORATION
By:_________________________
Name:
Title:
3
<PAGE> 1
EXHIBIT 4.1
RAYCHEM CORPORATION
TO
CHASE TRUST COMPANY OF CALIFORNIA
INDENTURE
--------------------------------
DATED AS OF
--------------------------------
PROVIDING FOR ISSUANCE OF SECURITIES IN SERIES
<PAGE> 2
Reconciliation and tie between Indenture, dated as of _________, and the Trust
Indenture Act of 1939, as amended.
<TABLE>
<CAPTION>
Trust Indenture Act of 1939 Section Indenture Section
- ----------------------------------- -----------------
<S> <C>
310(a) 6.10(d)(2)
310(a)(1) 6.12
(a)(2) 6.12
(b) 6.3; 6.10(d)(1); 6.12(b)
311 6.3
312(a) 6.8
313 1.1 ("Outstanding" definition)
313(a) 6.7
(c) 6.6; 6.7; 9.6(c)
(d) 6.7
314(a) 9.6; 9.7
(c)(1) 1.2
(c)(2) 1.2
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
Trust Indenture Act of 1939 Section Indenture Section
- ----------------------------------- -----------------
<S> <C>
(e) 1.2
(f) 9.7
315(a)-(d) 3.3
315(a) 6.1
(b) 6.6
(c) 6.1(b)
(d) 6.1
(e) 6.10(d); 5.15
316(a)(last sentence) 1.1
(a)(1)(A) 5.2; 5.8
(a)(1)(B) 5.7
(b) 5.9; 5.10
317(a)(1) 5.3
(a)(2) 5.4
(b) 9.3
318(a) 1.11
(c) 1.11
</TABLE>
- ----------
This reconciliation and tie section does not constitute part of the Indenture.
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C> <C>
ARTICLE 1 Definitions and Other Provisions of General Application.......................................1
1.1 Definitions...................................................................................1
1.2 Compliance Certificates and Opinions.........................................................11
1.3 Form of Documents Delivered to Trustee.......................................................12
1.4 Acts of Holders..............................................................................12
1.5 Notices, etc., to Trustee and Company........................................................14
1.6 Notice to Holders; Waiver....................................................................14
1.7 Headings and Table of Contents...............................................................15
1.8 Successors and Assigns.......................................................................15
1.9 Separatability...............................................................................16
1.10 Benefits of Indenture........................................................................16
1.11 Governing Law................................................................................16
1.12 Legal Holidays...............................................................................16
ARTICLE 2 Security Forms...............................................................................16
2.1 Forms Generally..............................................................................16
2.2 Form of Trustee's Certificate of Authentication..............................................17
2.3 Securities in Global Form....................................................................17
2.4 Form of Legend for Securities in Global Form.................................................18
ARTICLE 3 The Securities...............................................................................19
3.1 Amount Unlimited; Issuable in Series.........................................................19
3.2 Denominations................................................................................22
3.3 Execution, Authentication, Delivery and Dating...............................................22
3.4 Temporary Securities.........................................................................25
3.5 Registration, Transfer and Exchange..........................................................26
3.5 Replacement Securities.......................................................................30
3.7 Payment of Interest; Interest Rights Preserved...............................................31
3.8 Persons Deemed Owners........................................................................33
3.9 Cancellation.................................................................................34
3.10 Computation of Interest......................................................................34
3.11 CUSIP Numbers................................................................................34
3.12 Currency of Payment in Respect of Securities.................................................34
ARTICLE 4 Satisfaction, Discharge and Defeasance.................................................................35
4.1 Termination of Company's Obligations Under the Indenture.....................................35
4.2 Application of Trust Funds...................................................................36
</TABLE>
i
<PAGE> 5
TABLE OF CONTENTS (CONT'D)
<TABLE>
<CAPTION>
Page
<S> <C> <C>
4.3 Applicability of Defeasance Provisions; Company's Option to
Effect Defeasance or Covenant Defeasance.....................................................36
4.4 Defeasance...................................................................................37
4.5 Covenant Defeasance..........................................................................38
4.6 Conditions to Defeasance or Covenant Defeasance..............................................38
4.7 Deposited Money and Government Obligations to Be Held in Trust...............................40
4.8 Repayment to Company.........................................................................41
4.9 Indemnity for Government Obligations.........................................................41
4.10 Reinstatement................................................................................41
ARTICLE 5 Defaults and Remedies........................................................................42
5.1 Events of Default............................................................................42
5.2 Acceleration; Rescission and Annulment.......................................................44
5.3 Collection of Indebtedness and Suits for Enforcement by Trustee..............................45
5.4 Trustee May File Proofs of Claim.............................................................46
5.5 Trustee May Enforce Claims Without Possession of Securities or
Coupons......................................................................................47
5.6 Delay or Omission Not Waiver.................................................................47
5.7 Waiver of Past Defaults......................................................................47
5.8 Control by Majority..........................................................................47
5.9 Limitation on Suits by Holders...............................................................48
5.10 Rights of Holders to Receive Payment.........................................................48
5.11 Application of Money Collected...............................................................49
5.12 Restoration of Rights and Remedies...........................................................49
5.13 Rights and Remedies Cumulative...............................................................49
5.14 Waiver of Stay or Extension Laws.............................................................50
5.15 Undertaking for Costs........................................................................50
ARTICLE 6 The Trustee..................................................................................51
6.1 Certain Duties and Responsibilities of the Trustee...........................................51
6.2 Rights of Trustee............................................................................51
6.3 Trustee May Hold Securities..................................................................52
6.4 Money Held in Trust..........................................................................52
6.5 Trustee's Disclaimer.........................................................................53
6.6 Notice of Defaults...........................................................................53
6.7 Reports by Trustee to Holders................................................................53
6.8 Securityholder Lists.........................................................................53
6.9 Compensation and Indemnity...................................................................54
6.10 Replacement of Trustee.......................................................................55
</TABLE>
ii
<PAGE> 6
TABLE OF CONTENTS (CONT'D)
<TABLE>
<CAPTION>
Page
<S> <C> <C>
6.11 Acceptance of Appointment by Successor.......................................................56
6.13 Merger, Conversion, Consolidation or Succession to Business..................................58
6.14 Appointment of Authenticating Agent..........................................................58
ARTICLE 7 Consolidation, Merger or Sale by the Company.................................................60
7.1 Consolidation, Merger or Sale of Assets Permitted............................................60
7.2 Successor Person Substituted for Company.....................................................61
ARTICLE 8 Supplemental Indentures......................................................................61
8.1 Supplemental Indentures Without Consent of Holders...........................................61
8.2 Supplemental Indentures With Consent of Holders..............................................63
8.3 Compliance with Trust Indenture Act..........................................................64
8.4 Execution of Supplemental Indentures.........................................................64
8.5 Effect of Supplemental Indentures............................................................64
8.6 Reference in Securities to Supplemental Indentures...........................................65
ARTICLE 9 Covenants....................................................................................65
9.1 Payment of Principal, Premium, if any, and Interest..........................................65
9.2 Maintenance of Office or Agency..............................................................65
9.3 Money for Securities Payments to Be Held in Trust; Unclaimed
Money........................................................................................67
9.4 Corporate Existence..........................................................................68
9.5 Insurance....................................................................................68
9.6 Reports by the Company.......................................................................68
9.7 Annual Review Certificate; Notice of Defaults or Events of Default...........................69
9.8 Limitation on Liens..........................................................................69
9.9 Limitation on Sale and Leaseback Transactions................................................71
9.10 Books of Record and Account; Compliance with Law.............................................72
9.11 Taxes........................................................................................72
9.12 Additional Amounts...........................................................................72
ARTICLE 10 Redemption...................................................................................73
10.1 Applicability of Article.....................................................................73
10.2 Election to Redeem; Notice to Trustee........................................................74
10.3 Selection of Securities to Be Redeemed.......................................................74
10.4 Notice of Redemption.........................................................................74
10.5 Deposit of Redemption Price..................................................................76
10.6 Securities Payable on Redemption Date........................................................76
10.7 Securities Redeemed in Part..................................................................77
</TABLE>
iii
<PAGE> 7
TABLE OF CONTENTS (CONT'D)
<TABLE>
<CAPTION>
Page
<S> <C> <C>
ARTICLE 11 Sinking Funds................................................................................77
11.1 Applicability of Article.....................................................................77
11.2 Satisfaction of Sinking Fund Payments with Securities........................................78
11.3 Redemption of Securities for Sinking Fund....................................................78
</TABLE>
This Table of Contents does not constitute part of the Indenture.
iv
<PAGE> 8
INDENTURE, dated as of ________, from Raychem Corporation, a Delaware
corporation (the "Company"), to Chase Trust Company of California (the
"Trustee").
RECITALS
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 ("Securities") to be issued
in one or more series as herein provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed as
follows for the equal and ratable benefit of the Holders of the Securities:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1 Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with GAAP; and
(4) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision.
"Act" shall have the meaning set forth in Section 1.4(a).
"Additional Amounts" means any additional amounts which, pursuant to
Section 3.1(b)(18), are required by the terms of the Securities of any series,
under circumstances specified pursuant to Section 3.1(b)(18), to be paid by the
Company in respect of certain
<PAGE> 9
taxes, assessments or similar governmental charges imposed on certain Holders of
the Securities of such series specified pursuant to Section 3.1(b)(18).
"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 purposes of this definition, "control"
when used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" means any Paying Agent or Registrar.
"Attributable Debt" in respect of a Sale and Leaseback Transaction
means, as of the time of determination, the present value (discounted at the
rate per annum equal to the rate of interest implicit in the lease involved in
such Sale and Leaseback Transaction, as determined in good faith by the Company)
of the obligation of the lessee thereunder for rental payments (excluding,
however, any amounts required to be paid by such lessee, whether or not
designated as rent or additional rent, on account of maintenance and repairs,
insurance, taxes, assessments, water rates or similar charges or any amounts
required to be paid by such lessee thereunder contingent upon the amount of
sales or similar contingent amounts) during the remaining term of such lease
(including any period for which such lease has been extended or may, at the
option of the lessor, be extended). In the case of any lease which is terminable
by the lessee upon the payment of a penalty, such rental payments shall also
include the amount of such penalty, but no rental payments shall be considered
as required to be paid under such lease subsequent to the first date upon which
it may be so terminated.
"Authenticating Agent" means any authenticating agent appointed by the
Trustee pursuant to Section 6.14.
"Authorized Newspaper" means a newspaper of general circulation, in the
official language of the country of publication or in the English language,
customarily published on each Business Day whether or not published on
Saturdays, Sundays or holidays. Whenever successive publications in an
Authorized Newspaper are required hereunder they may be made (unless otherwise
expressly provided herein) on the same or different days of the week and in the
same or different Authorized Newspapers.
"Bankruptcy Law" shall have the meaning set forth in Section 5.1.
"Bearer Security" means any Security issued hereunder which is payable
to bearer.
2
<PAGE> 10
"Board" or "Board of Directors" means the Board of Directors of the
Company or any duly authorized committee thereof.
"Board Resolution" means a copy of a resolution of the Board of
Directors, 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 the certificate, and delivered to the Trustee.
"Business Day" when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means, unless otherwise specified with respect to any Securities pursuant to
Section 3.1, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions in that Place of Payment or particular
location are authorized or obligated by law or executive order to close.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or, if
at any time after the execution of this Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Company" means the party named as the Company in the first paragraph
of this Indenture until a successor corporation shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter means such
successor.
"Company Order" and "Company Request" mean, respectively, a written
order or request signed in the name of the Company by two Officers, one of whom
must be the Chairman of the Board, the President, the Chief Financial Officer,
the Treasurer, any Assistant Treasurer, the Controller or any Vice President of
the Company.
"Consolidated Net Tangible Assets" means, with respect to the Company
as at any date, the total assets of the Company and its consolidated
Subsidiaries determined in accordance with GAAP as they appear on the most
recently prepared consolidated balance sheet of the Company as of the end of a
fiscal quarter, less (i) all liabilities shown on such consolidated balance
sheet that are classified and accounted for as current liabilities or that
otherwise would be considered current liabilities under GAAP; and (ii) all
assets shown on such consolidated balance sheet that are classified and
accounted for as intangible assets or that otherwise would be considered
intangible assets under GAAP, including, without limitation, franchises, patents
and patent applications, trademarks, brand names and goodwill.
"Conversion Event" means the cessation of use of (i) a Foreign Currency
both by the government of the country or the confederation which issued such
Foreign Currency
3
<PAGE> 11
and, for the settlement of transactions, by a central bank or other public
institutions of or within the international banking community, (ii) the ECU both
within the European Monetary System and for the settlement of transactions by
public institutions of or within the European Union or (iii) any currency unit
or composite currency other than the ECU for the purposes for which it was
established.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the date hereof is located at 101 California
Street, Suite 2725, San Francisco, California 94111 , Attention: Corporate Trust
Administration.
"currency" means Dollars or any Foreign Currency.
"Custodian" shall have the meaning set forth in Section 5.1.
"Debt" means indebtedness for borrowed money or evidenced by bonds,
notes, debentures or other similar instruments.
"Default" means any event which is, or after notice or passage of time,
or both, would be, an Event of Default.
"Defaulted Interest" shall have the meaning set forth in Section
3.7(b).
"Depository" when used with respect to the Securities of or within any
series issuable or issued in whole or in part in global form, means the Person
designated as Depository by the Company pursuant to Section 3.1 and its
successors in such capacity, and if at any time there is more than one such
Person, shall be a collective reference to such Persons.
"Dollar" and "$" mean the currency of the United States as at the time
of payment is legal tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised from time
to time by the Council of the European Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Community.
"European Union" means the European Community, the European Coal and
Steel Community and the European Atomic Energy Community.
"Event of Default" shall have the meaning set forth in Section 5.1.
4
<PAGE> 12
"Foreign Currency" means any currency, currency unit or composite
currency, including, without limitation, the ECU, issued by the government of
one or more countries other than the United States of America or by any
recognized confederation or association of such governments.
"Funded Debt" means Debt of the Company or any of its Subsidiaries
which, under GAAP, would appear as indebtedness on the most recent consolidated
balance sheet of the Company, which matures by its terms more than 12 months
from the date of such consolidated balance sheet or which matures by its terms
in less than 12 months but by its terms is renewable or extendible beyond 12
months from the date of such consolidated balance sheet at the option of the
borrower.
"GAAP" means generally accepted accounting principles in the United
States as in effect on the date of application thereof.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the other government or
governments in the confederation which issued the Foreign Currency in which the
principal of or any premium or interest on the relevant Security shall be
payable, in each case where the payment or payments thereunder are supported by
the full faith and credit of such government or governments or (ii) obligations
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America or such other government or
governments, in each case where the timely payment or payments thereunder are
unconditionally guaranteed as a full faith and credit obligation by the United
States of America or such other government or governments, and which, in the
case of (i) or (ii), are not callable or redeemable at the option of the issuer
or issuers thereof, and shall also include a depository receipt issued by a bank
or trust company as custodian with respect to any such Government Obligation or
a specific payment of interest on or principal of any such Government Obligation
held by such custodian for the account of the holder of a depository receipt,
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest on or principal of the Government
Obligation evidenced by such depository receipt.
"Holder" means, with respect to a Bearer Security, a bearer thereof or
of a coupon appertaining thereto and, with respect to a Registered Security, a
person in whose name a Security is registered on the Register.
"Indenture" means this Indenture as originally executed or as amended
or supplemented from time to time and shall include the forms and terms of
particular series of Securities established as contemplated hereunder.
5
<PAGE> 13
"Indexed Security" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"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.
"Lien" means any mortgage, pledge, lien, charge, security interest,
conditional sale or other title retention agreement or other encumbrance of any
nature whatsoever.
"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, repurchase by the Company at
the option of the Holder or otherwise.
"Officer" means the Chairman of the Board, the President, any Vice
President, the Chief Financial Officer, the Treasurer, any Assistant Treasurer,
the Controller, the Secretary or any Assistant Secretary of the Company.
"Officers' Certificate", when used with respect to the Company, means a
certificate signed by two Officers, one of whom must be the Chairman of the
Board, the President, the Chief Financial Officer, the Treasurer, an Assistant
Treasurer, the Controller or a Vice President of the Company.
"Opinion of Counsel" means a written opinion from the general counsel
of the Company or other legal counsel who is reasonably acceptable to the
Trustee. Such counsel may be an employee of or counsel to the Company.
"Original Issue Discount Security" means any Security which provides
for an amount less than the stated principal amount thereof to be due and
payable upon declaration of acceleration of the Maturity thereof pursuant to
Section 5.2.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
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(ii) Securities, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such Securities
and any coupons appertaining thereto, provided that, if such Securities
are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provisions therefor satisfactory to the
Trustee have been made;
(iii) Securities, except to the extent provided in Sections
4.4 and 4.5, with respect to which the Company has effected defeasance
and/or covenant defeasance as provided in Article 4; and
(iv) Securities which have been paid pursuant to Section
3.6 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 any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether
sufficient funds are available for redemption or for any other purpose, and for
the purpose of making the calculations required by Section 313 of the Trust
Indenture Act, (a) the principal amount of any Original Issue Discount
Securities that may be counted in making such determination or calculation and
that shall be deemed to be Outstanding for such purpose shall be equal to the
amount of principal thereof that would be (or shall have been declared to be)
due and payable, at the time of such determination, upon a declaration of
acceleration of the maturity thereof pursuant to Section 5.2, (b) the principal
amount of any Indexed Security that may be counted in making such determination
and that shall be deemed outstanding for such purpose shall be equal to the
principal face amount of such Indexed Security at original issuance, unless
otherwise provided in or pursuant to this Indenture, (c) the principal amount of
a Security denominated in a Foreign Currency shall be the Dollar equivalent,
determined on the date of original issuance of such Security, of the principal
amount (or, in the case of an Original Issue Discount Security, the Dollar
equivalent on the date of original issuance of such Security of the amount
determined as provided in (a) above) of such Security, and (d) Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in making such calculation or in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the
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<PAGE> 15
Trustee knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, premium, if any, or interest on any Securities on behalf of the
Company.
"Periodic Offering" means an offering of Securities of a series from
time to time the specific terms of which Securities, including, without
limitation, the rate or rates of interest or formula for determining the rate or
rates of interest thereon, if any, the Maturity thereof and the redemption
provisions, if any, with respect thereto, are to be determined by the Company
upon the issuance of such Securities.
"Person" means any individual, corporation, business trust,
partnership, joint venture, joint-stock company, limited liability company,
association, company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of or
within any series, means the place or places where the principal of, premium, if
any, and interest on such Securities are payable as specified or contemplated by
Sections 3.1 and 9.2.
"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 3.6 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 amount", when used with respect to any Security, means the
amount of principal, if any, payable in respect thereof at Maturity; provided,
however, that when used with respect to an Indexed Security in any context other
than the making of payments at Maturity, "principal amount" means the principal
face amount of such Indexed Security at original issuance.
"Principal Property" means any manufacturing, processing, distribution,
research, research and development, warehousing or principal administration
facility (including, without limitation, land, fixtures and equipment) owned or
leased by the Company or any Subsidiary (including any of the foregoing acquired
or leased after the date of the Indenture) and located within the United States
of America, other than any of the foregoing which the Board of Directors of the
Company by Board Resolution and in good
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<PAGE> 16
faith declares, together with all other manufacturing, processing, distribution,
research, research and development, warehousing and principal administration
facilities (including, without limitation, land, fixtures and equipment)
previously so declared, are not of material importance to the business conducted
by the Company and its Subsidiaries taken as an entirety.
"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, in whole or in part, means the price at which it is to be redeemed
pursuant to this Indenture.
"Register" shall have the meaning set forth in Section 3.5.
"Registered Security" means any Security issued hereunder and
registered as to principal and interest in the Register.
"Registrar" shall have the meaning set forth in Section 3.5.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of or within any series means the date specified for that
purpose as contemplated by Section 3.1.
"Responsible Officer", when used with respect to the Trustee, shall
mean the president, any senior vice president, any vice president, any assistant
vice president, any senior trust officer, any trust officer, or any officer of
the Trustee customarily performing functions similar to those performed by the
persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his knowledge of and familiarity
with a particular subject.
"Restricted Subsidiary" means any Subsidiary of the Company which (i)
owns or leases a Principal Property and (ii) (A) substantially all of the
property of which is located, or substantially all of the business of which is
carried on, within the United States of America or (B) which is incorporated or
organized under the laws of any state of the United States of America or the
District of Columbia.
"Sale and Leaseback Transaction" means any direct or indirect
arrangement with any Person or to which any such Person is a party, providing
for the leasing to the Company or a Subsidiary of any Principal Property,
whether owned at the date of this Indenture or thereafter acquired, which has
been or is to be sold or transferred by the Company or such Subsidiary to such
Person or to any other Person to whom funds have been or are to be advanced by
such Person on the security of such Principal Property.
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"Secured Debt" shall have the meaning set forth in Section 9.8(a).
"Security" or "Securities" has the meaning stated in the first recital
of this Indenture and more particularly means a Security or Securities of the
Company issued, authenticated and delivered under this Indenture.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or in a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary" means (i) any corporation, at least a majority of the
total voting power of whose outstanding Voting Stock is at the date of
determination owned, directly or indirectly, by the Company and/or one or more
other Subsidiaries of the Company, and (ii) any Person (other than a
corporation) in which the Company and/or one or more other Subsidiaries of the
Company own, directly or indirectly, at the date of determination, at least a
majority ownership interest.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
effect on the date of this Indenture, except as provided in Section 8.3.
"Trustee" means the party named as such in the first paragraph of this
Indenture until a successor Trustee replaces it pursuant to the applicable
provisions of this Indenture, and thereafter means such successor Trustee and
if, at any time, there is more than one Trustee, "Trustee" as used with respect
to the Securities of any series shall mean the Trustee with respect to the
Securities of that series.
"United States" means, unless otherwise specified with respect to the
Securities of any series as contemplated by Section 3.1, the United States of
America (including the states thereof and the District of Columbia), its
territories, its possessions and other areas subject to its jurisdiction.
"United States Alien", except as otherwise provided with respect to the
Securities of any series as contemplated by Section 3.1, means any Person who,
for United States Federal income tax purposes, is a foreign corporation, a
non-resident alien individual, a non-resident alien fiduciary of a foreign
estate or trust, or a foreign partnership one or more of the members of which
is, for United States Federal income tax purposes, a foreign corporation, a
non-resident alien individual or a non-resident alien fiduciary of a foreign
estate or trust.
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"U.S. Person" means, unless otherwise specified with respect to the
Securities of any series as contemplated by Section 3.1, any citizen or resident
of the United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States, any estate the income of
which is subject to United States federal income taxation regardless of its
source, or any trust whose administration is subject to the primary supervision
of a United States court and which has one or more United States fiduciaries who
have the authority to control all substantial decisions of the trust.
"Voting Stock" means, with respect to any corporation, securities of
any class or series of such corporation, the holders of which are ordinarily, in
the absence of contingencies, entitled to vote for the election of directors of
the corporation.
Section 1.2 Compliance Certificates and Opinions. Upon any application
or request by the Company to the Trustee to take any action under any provision
of this Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Sections 2.3 and 9.7 and the last paragraph of Section 3.3) shall include:
(1) a statement that each individual signing such
certificate or opinion has read such condition or covenant and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or
not such condition or covenant has been complied with; and
(4) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied with.
Section 1.3 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,
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it is not necessary that all such matters be certified by, or covered by the
opinion of, only one such Person, or that they be so certified or covered by
only one document, but one such Person may certify or give an opinion with
respect to some matters and one or more other such Persons as to other matters,
and any such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations as 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 1.4 Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; 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 conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his
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authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
(c) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed by any trust
company, bank, banker or other depository, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depository, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of any
Bearer Security continues until (i) another such certificate or affidavit
bearing a later date issued in respect of the same Bearer Security is produced,
(ii) such Bearer Security is produced to the Trustee by some other Person, (iii)
such Bearer Security is surrendered in exchange for a Registered Security or
(iv) such Bearer Security is no longer Outstanding. The ownership of Bearer
Securities may also be proved in any other manner which the Trustee deems
sufficient.
(d) The ownership of Registered Securities shall be proved by the
Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
(f) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by or pursuant to a Board Resolution, fix in advance
a record date for the determination of Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other Act, but the
Company shall have no obligation to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or other Act
may be given before or after such record date, but only the Holders of record at
the close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Securities shall be computed as of such record
date; provided that no such authorization, agreement or consent by the Holders
on such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six months after the
record date.
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Section 1.5 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 (unless otherwise herein
expressly provided) if in writing and sent by overnight delivery
service or mailed, first-class postage prepaid, to the Trustee at its
Corporate Trust Office, Attention: Corporate Trust Administration, 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 sent by overnight delivery
service or mailed, first-class postage prepaid, to the Company
addressed to it at Raychem Corporation, 300 Constitution Drive, Menlo
Park, California 94025, Attention: Treasurer or at any other address
previously furnished in writing to the Trustee by the Company.
Section 1.6 Notice to Holders; Waiver. Where this Indenture provides
for notice to Holders of any event, (i) if any of the Securities affected by
such event are Registered Securities, such notice to the Holders thereof shall
be sufficiently given (unless otherwise herein or in the terms of such
Registered Security expressly provided) if in writing and sent by overnight
delivery service or mailed, first-class postage prepaid, to each such Holder
affected by such event, at his address as it appears in the Register, within the
time prescribed for the giving of such notice, and (ii) if any of the Securities
affected by such event are Bearer Securities, notice to the Holders thereof
shall be sufficiently given (unless otherwise herein or in the terms of such
Bearer Securities expressly provided) if published once in an Authorized
Newspaper in New York, New York, and in such other city or cities, if any, as
may be specified as contemplated by Section 3.1. 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 of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. In any case where notice is given to Holders by
publication, neither the failure to publish such notice, nor any defect in any
notice so published, shall affect the sufficiency of such notice with respect to
other Holders of Bearer Securities or the sufficiency of any notice to Holders
of Registered Securities given as provided herein. Any notice mailed to a Holder
in the manner herein prescribed shall be conclusively deemed to have been
received by such Holder, whether or not such Holder actually receives such
notice.
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If by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice as provided above,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder. If it is
impossible or, in the opinion of the Trustee, impracticable to give any notice
by publication in the manner herein required, then such publication in lieu
thereof as shall be made with the approval of the Trustee shall constitute a
sufficient publication of such notice.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
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 equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
Section 1.7 Headings and Table of Contents. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
Section 1.8 Successors and Assigns. All covenants and agreements in
this Indenture by the Company shall bind its successor and assigns, whether so
expressed or not.
Section 1.9 Separability. In case any provision of this Indenture or
the Securities shall be invalid, illegal or unenforceable, then, to the extent
permitted by applicable law, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
Section 1.10 Benefits of Indenture. Nothing in this Indenture or in the
Securities, expressed 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 1.11 Governing Law. THIS INDENTURE, THE SECURITIES AND ANY
COUPONS APPERTAINING THERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK. This Indenture is subject to
the Trust Indenture Act and if any provision hereof limits, qualifies or
conflicts with the Trust Indenture Act, the Trust Indenture Act shall control.
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Section 1.12 Legal Holidays. In any case where any Interest Payment
Date, Redemption Date, sinking fund payment date, Stated Maturity or 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 any Security or
coupon other than a provision in the Securities of any series which specifically
states that such provision shall apply in lieu of this Section), payment of
principal, premium, if any, or interest 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 such date;
provided that no interest shall accrue on the amount so payable for the period
from and after such Interest Payment Date, Redemption Date, sinking fund payment
date, Stated Maturity or Maturity, as the case may be.
ARTICLE 2
SECURITY FORMS
Section 2.1 Forms Generally. The Securities of each series and the
coupons, if any, to be attached thereto shall be in substantially such form as
shall be established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities
and coupons, if any, as evidenced by their execution of the Securities and
coupons, if any. Unless otherwise provided as contemplated in Section 3.1,
Securities will be issued only in registered form without coupons or in the form
of one or more global securities. If temporary Securities of any series are
issued as permitted by Section 3.4, the form thereof also shall be established
as provided in the preceding sentence. If the forms of Securities and coupons,
if any, of any series are established by, or by action taken pursuant to, a
Board Resolution, a copy of the Board Resolution together with an appropriate
record (which may be in the form of an Officers' Certificate) of any such action
taken pursuant thereto, including a copy of the approved form of Securities or
coupons, if any, 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 3.3 for the authentication and delivery of
such Securities.
Unless otherwise specified as contemplated by Section 3.1, Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as
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determined by the officers executing such Securities and coupons, if any, as
evidenced by their execution of such Securities and coupons, if any.
Section 2.2 Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication shall be in substantially the following
form:
This is one of the Securities of the series described in the
within-mentioned Indenture.
CHASE TRUST COMPANY OF CALIFORNIA
as Trustee
By
-------------------------------
Authorized Signatory
Section 2.3 Securities in Global Form. If Securities of or within a
series are issuable in whole or in part in global form, any such Security may
provide that it shall represent the aggregate or specified amount of Outstanding
Securities from time to time endorsed thereon and may also provide that the
aggregate amount of Outstanding Securities represented thereby may from time to
time be reduced to reflect exchanges. Any endorsement of a Security in global
form to reflect the amount, or any increase or decrease in the amount, or
changes in the rights of Holders, of Outstanding Securities represented thereby,
shall be made in such manner and by such Person or Persons as shall be specified
therein or pursuant to Section 3.1 or in the Company Order to be delivered to
the Trustee pursuant to Section 3.3 or 3.4. Subject to the provisions of Section
3.3 and, if applicable, Section 3.4, the Trustee shall deliver and redeliver any
Security in permanent global form in the manner and upon instructions given by
the Person or Persons specified therein or pursuant to Section 3.1 or in the
applicable Company Order. Any instructions by the Company with respect to
endorsement or delivery or redelivery of a Security in global form shall be in
writing but need not comply with Section 1.2 hereof and need not be accompanied
by an Opinion of Counsel.
The provisions of the last paragraph of Section 3.3 shall apply to any
Security in global form if such Security was never issued and sold by the
Company and the Company delivers to the Trustee the Security in global form
together with written instructions (which need not comply with Section 1.2 and
need not be accompanied by an Opinion of Counsel) with regard to the reduction
in the principal amount of Securities represented thereby, together with the
written statement contemplated by the last paragraph of Section 3.3.
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Notwithstanding the provisions of Section 2.1 and 3.7, unless otherwise
specified as contemplated by Section 3.1, payment of principal of, premium, if
any, and interest on any Security in permanent global form shall be made to the
Person or Persons specified therein.
Section 2.4 Form of Legend for Securities in Global Form. Any Security
in global form authenticated and delivered hereunder shall bear a legend in
substantially the following form and such other legends as may be approved by
the officers executing such Security, as evidenced by their execution thereof:
This Security is in global form within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depository
or a nominee of a Depository. Unless and until it is exchanged in whole
or in part for Securities in certificated form, this Security may not
be transferred except as a whole by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or
another nominee of the Depository or by the Depository or any such
nominee to a successor Depository or a nominee of such successor
Depository.
ARTICLE 3
THE SECURITIES
Section 3.1 Amount Unlimited; Issuable in Series.
(a) The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited. The Securities
may be issued from time to time in one or more series.
(b) The following matters shall be established with respect to
each series of Securities issued hereunder (i) by a Board Resolution, (ii) by
action taken pursuant to a Board Resolution and (subject to Section 3.3) set
forth, or determined in the manner provided, in an Officers' Certificate or
(iii) in one or more indentures supplemental hereto:
(1) the title of the Securities of the series (which
title shall distinguish the Securities of the series from all other
series of Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (which limit shall not pertain to Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant
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to Section 3.4, 3.5, 3.6, 8.6, or 10.7 or upon the Company's repurchase
of any Securities in part at the option of the Holders thereof);
(3) the date or dates on which the principal of and
premium, if any, on the Securities of the series is payable or the
method of determination thereof;
(4) the rate or rates (which may be fixed, variable or
zero) at which the Securities of the series shall bear interest, if
any, or the method of calculating such rate or rates of interest;
(5) the date or dates from which interest, if any, shall
accrue or the method by which such date or dates shall be determined;
(6) the Interest Payment Dates on which any such
interest, if any, shall be payable and, with respect to Registered
Securities, the Regular Record Date, if any, for the interest payable
on any Registered Security on any Interest Payment Date;
(7) each Place of Payment for the Securities of the
series;
(8) the period or periods within which, the price or
prices at which, the currency (if other than Dollars) in which, and the
other terms and conditions upon which, Securities of the series may be
redeemed, in whole or in part, at the option of the Company and, if
other than as provided in Section 10.3, the manner in which the
particular Securities of such series (if less than all Securities of
such series are to be redeemed) are to be selected for redemption;
(9) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or upon the happening of a specified event or at
the option of a Holder thereof and the period or periods within which,
the price or prices at which, and the other terms and conditions upon
which, Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(10) if other than denominations of $1,000 and any
integral multiple thereof, if Registered Securities, and if other than
the denomination of $5,000, if Bearer Securities, the denominations in
which Securities of the series shall be issuable;
(11) if other than Dollars, the currency for which the
Securities of the series may be purchased or in which the Securities of
the series shall be denominated and/or the currency in which the
principal of, premium, if any, and interest, if any, on the Securities
of the series shall be payable and the particular
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provisions applicable thereto in accordance with, in addition to, or in
lieu of the provisions of this Indenture;
(12) if the amount of payments of principal of, or
premium, if any, or interest, if any, on the Securities of the series
shall be determined with reference to an index, formula or other method
(which index, formula or method may be based, without limitation, on a
currency or currencies (including currency unit or units) other than
that in which the Securities of the series are denominated or
designated to be payable), the index, formula or other method by which
such amount shall be determined;
(13) if the amount of payments of principal, premium, if
any, or interest, if any, on the Securities of the series shall be
determined with reference to an index, formula or other method based on
the prices of securities or commodities, with reference to changes in
the prices of securities or commodities or otherwise by application of
a formula, the index, formula or other method by which such amount
shall be determined;
(14) if other than the entire principal amount thereof,
the portion of the principal amount of such Securities of the series
which shall be payable upon declaration of acceleration thereof
pursuant to Section 5.2 or the method by which such portion shall be
determined;
(15) if other than as provided in Section 3.7, the Person
to whom any interest on any Registered Security of the series shall be
payable and the manner in which, or the Person to whom, any interest on
any Bearer Securities of the series shall be payable;
(16) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of such events
as may be specified;
(17) any addition to or modification or deletion of any
Events of Default or any covenants of the Company pertaining to the
Securities of the series;
(18) under what circumstances, if any, the Company will
pay Additional Amounts on the Securities of that series held by a
Person who is not a U.S. Person in respect of taxes, assessments or
similar governmental charges withheld or deducted and, if so, whether
the Company will have the option to redeem such Securities rather than
pay such Additional Amounts (and the terms of any such option);
(19) whether Securities of the series shall be issuable as
Registered Securities or Bearer Securities (with or without interest
coupons), or both, and any
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restrictions applicable to the offering, sale or delivery of Bearer
Securities and, if other than as provided in Section 3.5, the terms
upon which Bearer Securities of a series may be exchanged for
Registered Securities of the same series and vice versa;
(20) the date as of which any Bearer Securities of the
series and any temporary global Security representing Outstanding
Securities of the series shall be dated if other than the date of
original issuance of the first Security of the series to be issued;
(21) the forms of the Securities and coupons, if any, of
the series;
(22) if either or both of Section 4.4 relating to
defeasance or Section 4.5 relating to covenant defeasance shall not be
applicable to the Securities of such series, or, if such defeasance or
covenant defeasance shall be applicable to the Securities of such
series, any covenants in addition to those specified in Section 4.5
relating to the Securities of such series which shall be subject to
covenant defeasance and any deletions from, or modifications or
additions to, the provisions of Article 4 in respect of the Securities
of such series or such other means of defeasance or covenant defeasance
as may be specified for the Securities of such series;
(23) if other than the Trustee, the identity of the
Registrar and any Paying Agent;
(24) if the Securities of the series shall be issued in
whole or in part in global form, (i) the Depository for such global
Securities, (ii) whether beneficial owners of interests in any
Securities of the series in global form may exchange such interests for
certificated Securities of such series and of like tenor of any
authorized form and denomination, and (iii) if other than as provided
in Section 3.5, the circumstances under which any such exchange may
occur; and
(25) any other terms of the Securities of such series and
any deletions from or modifications or additions to this Indenture in
respect of such Securities.
(c) All Securities of any one series and coupons, if any,
appertaining to any Bearer Securities of such series shall be substantially
identical except, in the case of Registered Securities, as to denomination and
except as may otherwise be provided (i) by a Board Resolution, (ii) by action
taken pursuant to a Board Resolution and (subject to Section 3.3) set forth, or
determined in the manner provided, in the related Officers' Certificate or (iii)
in an indenture supplemental hereto. All Securities of any one series need not
be issued at the same time and, unless otherwise provided, a series may be
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reopened, without the consent of the Holders, for issuances of additional
Securities of such series.
(d) If any of the terms of the Securities of any series are
established by action taken pursuant to a Board Resolution, a copy of such Board
Resolution shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth, or providing the manner for determining,
the terms of the Securities of such series, and an appropriate record of any
action taken pursuant thereto in connection with the issuance of any Securities
of such series shall be delivered to the Trustee prior to the authentication and
delivery thereof.
Section 3.2 Denominations. Unless otherwise provided as contemplated by
Section 3.1, any Registered Securities of a series shall be issuable in
denominations of $1,000 and any integral multiple thereof and any Bearer
Securities of a series shall be issuable in denominations of $5,000.
Section 3.3 Execution, Authentication, Delivery and Dating. Securities
shall be executed on behalf of the Company by two Officers. The Company's seal
shall be reproduced on the Securities. The signatures of any of these Officers
on the Securities may be manual or facsimile. The coupons, if any, of Bearer
Securities shall bear the facsimile signature of two Officers.
Securities and coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper Officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time, the Company may deliver Securities,
together with any coupons appertaining thereto, 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; provided,
however, that in the case of Securities offered in a Periodic Offering, the
Trustee shall authenticate and deliver such Securities from time to time in
accordance with such other procedures (including, without limitation, the
receipt by the Trustee of oral or electronic instructions from the Company or
its duly authorized agents, promptly confirmed in writing) acceptable to the
Trustee as may be specified by or pursuant to a Company Order delivered to the
Trustee prior to the time of the first authentication of Securities of such
series.
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If the form or terms of the Securities of a series have been established by or
pursuant to one or more Board Resolutions as permitted by Sections 2.1 and 3.1,
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 Sections 315(a) through (d) of the Trust
Indenture Act) shall be fully protected in relying upon, an Opinion of Counsel
stating,
(1) if the forms of such Securities and any coupons have
been established by or pursuant to a Board Resolution as permitted by
Section 2.1, that such forms have been established in conformity with
the provisions of this Indenture;
(2) if the terms of such Securities and any coupons have
been established by or pursuant to a Board Resolution as permitted by
Section 3.1, that such terms have been, or in the case of Securities of
a series offered in a Periodic Offering, will be, established in
conformity with the provisions of this Indenture, subject in the case
of Securities offered in a Periodic Offering, to any conditions
specified in such Opinion of Counsel; and
(3) that such Securities together with any coupons
appertaining thereto, 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 other similar laws of general
applicability relating to or affecting the enforcement of creditors'
rights and to general equity principles.
Notwithstanding that such form or terms have been so established, the Trustee
shall have the right to decline to authenticate such Securities if, in the
written opinion of counsel to the Trustee (which counsel may be an employee of
the Trustee) reasonably acceptable to the Company, the issue of such Securities
pursuant to this Indenture will adversely affect the Trustee's own rights,
duties or immunities under this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and of the two preceding
paragraphs, if all of the Securities of any series are not to be issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 3.1 or the Company Order and Opinion of Counsel
otherwise required pursuant to the two preceding paragraphs in connection with
the authentication of each Security of such series if such documents, with
appropriate modifications to cover such future issuances, are delivered at or
prior to the authentication upon original issuance of the first Security of such
series to be issued.
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With respect to Securities of a series offered in a Periodic Offering,
the Trustee may rely, as to the authorization by the Company of any of such
Securities, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of Counsel and the other
documents delivered pursuant to Sections 2.1 and 3.1 and this Section, as
applicable, in connection with the first authentication of Securities of such
series.
If the Company shall establish pursuant to Section 3.1 that the
Securities of a series are to be issued in whole or in part in global form, then
the Company shall execute and the Trustee shall, in accordance with this Section
and the Company Order with respect to such series, authenticate and deliver one
or more Securities in global form that (i) shall represent and shall be
denominated in an amount equal to the aggregate principal amount of the
Outstanding Securities of such series to be represented by such Security or
Securities in global form, (ii) shall be registered, if a Registered Security,
in the name of the Depository for such Security or Securities in global form or
the nominee of such Depository, (iii) shall be delivered by the Trustee to such
Depository or pursuant to such Depository's instruction and (iv) shall bear the
legend contemplated by Section 2.4.
Each Depository designated pursuant to Section 3.1 for a Registered
Security in global form must, at the time of its designation and at all times
while it serves as Depository, be a clearing agency registered under the
Securities Exchange Act of 1934 or any successor thereto (if so required by
applicable law or regulation) and any other applicable statute or regulation.
The Trustee shall have no responsibility to determine if the Depository is so
registered.
Each Registered Security shall be dated the date of its authentication
and each Bearer Security shall be dated as of the date specified as contemplated
by Section 3.1.
No Security or coupon appertaining thereto shall be entitled to any
benefits under this Indenture or be valid or obligatory for any purpose until
authenticated by the manual signature of one of the authorized signatories of
the Trustee or an Authenticating Agent and no coupon shall be valid until the
Security to which it appertains has been so authenticated. Such signature upon
any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered under this Indenture and is
entitled to the benefits of this Indenture. Except as permitted by Section 3.6
or 3.7, the Trustee shall not authenticate and deliver any Bearer Security
unless all appurtenant coupons for interest then matured have been detached and
canceled.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 3.9 together with a written statement (which need not comply
with Section 1.2 and need not be
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accompanied by an Opinion of Counsel) stating that such Security has never been
issued and sold by the Company, for all purposes of this Indenture such Security
shall be deemed never to have been authenticated and delivered hereunder and
shall not be entitled to the benefits of this Indenture.
Section 3.4 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 of such series which
are printed, lithographed, typewritten, mimeographed or otherwise produced, in
any authorized denomination, substantially of the tenor and form, with or
without coupons, of the definitive Securities in lieu of which they are issued
and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities and coupons, if
any. In the case of Securities of any series, such temporary Securities may be
in global form, representing all or a portion of the Outstanding Securities of
such series.
Except in the case of temporary Securities in global form, each of
which shall be exchanged in accordance with the provisions thereof, if temporary
Securities of any series are issued, the Company will cause definitive
Securities of such series to be prepared without unreasonable delay. After
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 pursuant to Section 9.2 in a Place of Payment for such series,
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series (accompanied by any unmatured coupons
appertaining thereto), the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations and of like
tenor; provided, however, that no definitive Bearer Security shall be delivered
in exchange for a temporary Registered Security; and provided further that no
definitive Bearer Security shall be delivered in exchange for a temporary Bearer
Security unless the Trustee shall have received from the Person entitled to
receive the definitive Bearer Security a certificate substantially in the form
approved in or pursuant to the Board Resolutions relating thereto and such
delivery shall occur only outside the United States. 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 except as
otherwise specified as contemplated by Section 3.1.
Section 3.5 Registration, Transfer and Exchange. The Company shall
cause to be kept at the Corporate Trust Office of the Trustee or in any office
or agency to be maintained by the Company in accordance with Section 9.2 in a
Place of Payment a register (the "Register") in which, subject to such
reasonable regulations as it may
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prescribe, the Company shall provide for the registration of Registered
Securities and the registration of transfers of Registered Securities. The
Register shall be in written form or any other form capable of being converted
into written form within a reasonable time. The Trustee is hereby appointed
"Registrar" for the purpose of registering Registered Securities and transfers
of Registered Securities as herein provided.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency maintained pursuant to Section 9.2 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 Registered Securities of the same series, of any
authorized denominations and of a like aggregate principal amount containing
identical terms and provisions.
Bearer Securities or any coupons appertaining thereto shall be
transferable by delivery.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series, of any authorized
denominations and of a like aggregate principal amount containing identical
terms and provisions, upon surrender of the Registered Securities to be
exchanged at such office or agency. Whenever any Registered Securities are so
surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Registered
Securities which the Holder making the exchange is entitled to receive. Unless
otherwise specified as contemplated by Section 3.1, Bearer Securities may not be
issued in exchange for Registered Securities.
Unless otherwise specified as contemplated by Section 3.1, at the
option of the Holder, Bearer Securities of such series may be exchanged for
Registered Securities (if the Securities of such series are issuable in
registered form) or Bearer Securities (if Bearer Securities of such series are
issuable in more than one denomination and such exchanges are permitted by such
series) of the same series, of any authorized denominations and of like tenor
and aggregate principal amount, upon surrender of the Bearer Securities to be
exchanged at any such office or agency, with all unmatured coupons and all
matured coupons in default thereto appertaining. If the Holder of a Bearer
Security is unable to produce any such unmatured coupon or coupons or matured
coupon or coupons in default, such exchange may be effected if the Bearer
Securities are accompanied by payment in funds acceptable to the Company and the
Trustee in an amount equal to the face amount of such missing coupon or coupons,
or the surrender of such missing coupon or coupons may be waived by the Company
and the Trustee if there be furnished to them such security or indemnity as they
may require to save each of them and any Paying Agent harmless. If thereafter
the Holder of such Security shall surrender to any Paying Agent any such missing
coupon in respect of which such a payment shall have been
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made, such Holder shall be entitled to receive the amount of such payment;
provided, however, that, except as otherwise provided in Section 9.2, interest
represented by coupons shall be payable only upon presentation and surrender of
those coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case any Bearer Security of any series is
surrendered at any such office or agency in exchange for a Registered Security
of the same series after the close of business at such office or agency on (i)
any Regular Record Date and before the opening of business at such office or
agency on the relevant Interest Payment Date, or (ii) any Special Record Date
and before the opening of business at such office or agency on the related date
for payment of Defaulted Interest, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date or proposed date of
payment, as the case may be (or, if such coupon is so surrendered with such
Bearer Security, such coupon shall be returned to the person so surrendering the
Bearer Security), and interest or Defaulted Interest, as the case may be, will
not be payable on such Interest Payment Date or proposed date for payment, as
the case may be, in respect of the Registered Security issued in exchange for
such Bearer Security, but will be payable only to the Holder of such coupon,
when due in accordance with the provisions of this Indenture.
Notwithstanding any other provision of this Section, unless and until
it is exchanged in whole or in part for Securities in definitive certificated
form, a Security in global form representing all or a portion of the Securities
of a series may not be transferred except as a whole by the Depository for such
series to a nominee of such Depository or by a nominee of such Depository to
such Depository or another nominee of such Depository or by such Depository or
any such nominee to a successor Depository for such series or a nominee of such
successor Depository.
Unless otherwise specified pursuant to Section 3.1 with respect to the
Securities of any series, a Security in global form will be exchangeable for
certificated Securities of the same series in definitive form only if (i) the
Depository for the Global Securities of such series notifies the Company that it
is unwilling or unable to continue as Depository for the global Securities of
such series or such Depository ceases to be a clearing agency registered as such
under the Securities Exchange Act of 1934, as amended, or any successor thereto
if so required by applicable law or regulation and, in either case, a successor
Depository for such Securities shall not have been appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such
ineligibility, as the case may be, (ii) the Company, in its sole discretion,
determines that such Securities in global form shall be exchangeable for
certificated Securities and executes and delivers to the Trustee a Company Order
to the effect that such global Securities shall be so exchangeable, or (iii)
there shall have occurred and be continuing an Event of Default with respect to
the Securities of such series, the Company's election pursuant to Section
3.1(b)(24) shall no longer be effective with respect to the Securities of such
series and the Company shall execute, and the Trustee, upon receipt of a Company
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Order for the authentication and delivery of certificated Securities of such
series of like tenor and terms, shall authenticate and deliver, without charge,
Securities of such series of like tenor and terms in certificated form, in
authorized denominations and in an aggregate principal amount equal to the
principal amount of the Security or Securities of such series of like tenor and
terms in global form in exchange for such Security or Securities in global form.
Upon any such exchange, owners of beneficial interests in such Securities in
global form will be entitled to physical delivery of individual Securities in
certificated form of like tenor and terms equal in principal amount to such
beneficial interests, and to have such Securities in certificated form
registered in the names of the beneficial owners.
If specified by the Company pursuant to Section 3.1 with respect to a
series of Securities, the Depository for such series may surrender a Security in
global form of such series in exchange in whole or in part for Securities of
such series in certificated form on such terms as are acceptable to the Company
and such Depository. Thereupon, the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(i) to each Person specified by such Depository a new
certificated Security or Securities of the same series of like tenor
and terms, of any authorized denomination as requested by such Person
in aggregate principal amount equal to and in exchange for such
Person's beneficial interest in the Security in global form; and
(ii) to such Depository a new Security in global form of
like tenor and terms in a denomination equal to the difference, if any,
between the principal amount of the surrendered Security in global form
and the aggregate principal amount of certificated Securities delivered
to Holders thereof.
Upon the exchange of a Security in global form for Securities in
certificated form, such Security in global form shall be canceled by the
Trustee. Unless expressly provided with respect to the Securities of any series
that such Security may be exchanged for Bearer Securities, Securities in
certificated form issued in exchange for a Security in global form pursuant to
this Section shall be registered in such names and in such authorized
denominations as the Depository for such Security in global form, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the Persons
in whose names such Securities are so registered.
Whenever any Securities are surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
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All Securities issued upon any registration of transfer or upon any exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the Registrar or
the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company, the Registrar and the Trustee 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 for
any 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 or transfer or exchange of Securities, other
than exchanges pursuant to Section 3.4, 8.6, or 10.7 or upon the Company's
repurchase of any Securities in part at the option of the Holder thereof not
involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of, or exchange any Securities for a period beginning at the opening of business
15 days before any selection for redemption of Securities of like tenor and of
the series of which such Security is a part and ending at the close of business
on the earliest date on which the relevant notice of redemption is deemed to
have been given to all Holders of Securities of like tenor and of such series to
be redeemed; (ii) to register the transfer of or exchange any Registered
Security so selected for redemption, in whole or in part, except the unredeemed
portion of any Security being redeemed in part; or (iii) to exchange any Bearer
Security so selected for redemption, except that such a Bearer Security may be
exchanged for a Registered Security of that series and like tenor; provided that
such Registered Security shall be simultaneously surrendered for redemption.
Section 3.6 Replacement Securities. If a mutilated Security or a
Security with a mutilated coupon appertaining to it is surrendered to the
Trustee, together with, in proper cases, such security or indemnity as may be
required by the Company or the Trustee to save each of them harmless, the
Company shall execute and the Trustee shall authenticate and deliver a
replacement Registered Security, if such surrendered Security was a Registered
Security, or a replacement Bearer Security with coupons corresponding to the
coupons appertaining to the surrendered Security, if such surrendered Security
was a Bearer Security, of the same series, terms and date of maturity, if the
Trustee's requirements are met.
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 or
Security with a destroyed,
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lost or stolen coupon and (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security or coupon has
been acquired by a bona fide purchaser, the Company shall execute and the
Trustee shall authenticate and deliver in lieu of any such destroyed, lost or
stolen Security or in exchange for the Security to which a destroyed, lost or
stolen coupon appertains (with all appurtenant coupons not destroyed, lost or
stolen), a replacement Registered Security, if such Holder's claim appertains to
a Registered Security, or a replacement Bearer Security with coupons
corresponding to the coupons appertaining to the destroyed, lost or stolen
Bearer Security or the Bearer Security to which such lost, destroyed or stolen
coupon appertains, if such Holder's claim appertains to a Bearer Security, of
the same series and principal amount, containing identical terms and provisions
and bearing a number not contemporaneously outstanding with coupons
corresponding to the coupons, if any, appertaining to the destroyed, lost or
stolen Security.
In case any such mutilated, destroyed, lost or stolen Security or
coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security or coupon, pay such Security
or coupon; provided, however, that payment of principal of and any premium or
interest on Bearer Securities shall, except as otherwise provided in Section
9.2, be payable only at an office or agency located outside the United States
and, unless otherwise specified as contemplated by Section 3.1, any interest on
Bearer Securities shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security, or
in exchange for a Security to which a destroyed, lost or stolen coupon
appertains, shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Security and its
coupon, if any, or the destroyed, lost or stolen coupon, shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
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Section 3.7 Payment of Interest; Interest Rights Preserved.
(a) Unless otherwise provided as contemplated by Section 3.1,
interest, if any, on any Registered Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such interest
at the office or agency maintained for such purpose pursuant to 9.2; provided,
however, that at the option of the Company, interest on any series of Registered
Securities that bear interest may be paid (i) by check mailed to the address of
the Persons entitled thereto as they shall appear on the Register of Holders of
Securities of such series or (ii) by transfer to an account maintained by the
Persons entitled thereto.
Unless otherwise provided as contemplated by Section 3.1 and except as
otherwise provided in Section 9.2, (i) interest, if any, on Bearer Securities
shall be paid only against presentation and surrender of the coupons for such
interest installments as are evidenced thereby as they mature and (ii) original
issue discount, if any, on Bearer Securities shall be paid only against
presentation and surrender of such Securities, in either case at the office of a
Paying Agent located outside the United States, unless the Company shall have
otherwise instructed the Trustee in writing, provided that any such instruction
for payment in the United States does not cause any Bearer Security to be
treated as a "registration-required obligation" under United States laws and
regulations. The interest, if any, on any temporary Bearer Security shall be
paid, as to any installment of interest evidenced by a coupon attached thereto
only upon presentation and surrender of such coupon and, as to other
installments of interest, only upon presentation of such Security for notation
thereon of the payment of such interest.
(b) Unless otherwise provided as contemplated by Section 3.1, any
interest on Registered Securities 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 Holders
on the relevant Regular Record Date by virtue of their having been such Holders,
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 such
Defaulted Interest to the Persons in whose names such Registered
Securities (or their respective Predecessor Securities) are registered
at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner.
The Company shall 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
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be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause (1) provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage
prepaid, to each Holder of such Registered Securities at his address as
it appears in the Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names such
Registered Securities (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of such Defaulted
Interest to the Persons in whose names such Registered Securities (or
their respective Predecessor Securities) are registered at the close of
business on a specified date in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Registered Securities may be listed, and upon such notice as may
be required by such exchange, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this clause (2), such
manner of payment shall be deemed practicable by the Trustee.
(c) Subject to the foregoing provisions of this Section and
Section 3.5, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
Section 3.8 Persons Deemed Owners. Prior to due presentment of any
Registered Security for registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the Person in whose name such
Registered Security is registered as the owner of such Registered Security for
the purpose of receiving payment of principal of, premium, if any, and (subject
to Section 3.7) interest on such Registered Security and for all other purposes
whatsoever, whether or not such Registered Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security and the bearer of any coupon as the
absolute owner of
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such Bearer Security or coupon for the purpose of receiving payment thereof or
on account thereof and for all other purposes whatsoever, whether or not such
Bearer Security or coupon be overdue, and neither the Company, the Trustee nor
any agent of the Company or the Trustee shall be affected by notice to the
contrary.
None of the Company, the Trustee or any agent of the Company or the
Trustee shall have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests of a
Security in global form, or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests. Notwithstanding the
foregoing, with respect to any Security in global form, nothing herein shall
prevent the Company or the Trustee, or any agent of the Company or the Trustee,
from giving effect to any written certification, proxy or other authorization
furnished by any Depository (or its nominee), as a Holder, with respect to such
Security in global form or impair, as between such Depository and owners of
beneficial interests in such Security in global form, the operation of customary
practices governing the exercise of the rights of such Depository (or its
nominee) as Holder of such Security in global form.
Section 3.9 Cancellation. The Company at any time may deliver
Securities and coupons to the Trustee for cancellation. The Registrar and any
Paying Agent shall forward to the Trustee any Securities and coupons surrendered
to them for replacement, for registration of transfer, or for exchange or
payment. The Trustee shall cancel all Securities and coupons surrendered for
replacement, for registration of transfer, or for exchange, payment, redemption
or cancellation and may, but shall not be required to, dispose of canceled
Securities and coupons and issue a certificate of destruction to the Company.
The Company may not issue new Securities to replace Securities that it has paid
or delivered to the Trustee for cancellation.
Section 3.10 Computation of Interest. Except as otherwise specified as
contemplated by Section 3.1, 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, in such case, 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. Neither the
Company nor the Trustee shall have any responsibility for any defect in the
CUSIP number that appears on any Security, check, advice of payment or
redemption notice.
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Section 3.12 Currency of Payment in Respect of Securities. Unless
otherwise specified with respect to any Securities pursuant to Section 3.1,
payment of the principal of, premium, if any, and interest, if any, on any
Registered or Bearer Security of such series will be made in Dollars.
ARTICLE 4
SATISFACTION, DISCHARGE AND DEFEASANCE
Section 4.1 Termination of Company's Obligations Under the Indenture.
This Indenture shall upon a Company Request cease to be of further effect with
respect to Securities of any series and any coupons appertaining thereto (except
as specified below) and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture with respect to such Securities and any coupons appertaining thereto
when
(1) either
(A) all such Securities previously authenticated
and delivered and all coupons appertaining thereto (other than (i) such coupons
appertaining to Bearer Securities surrendered in exchange for Registered
Securities and maturing after such exchange, surrender of which is not required
or has been waived as provided in Section 3.5, (ii) such Securities and coupons
which have been destroyed, lost or stolen and which have been replaced or paid
as provided in Section 3.6, (iii) such coupons appertaining to Bearer Securities
called for redemption and maturing after the relevant Redemption Date, surrender
of which has been waived as provided in Section 10.6 and (iv) such Securities
and coupons for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the Company
or discharged from such trust, as provided in Section 9.3) have been delivered
to the Trustee for cancellation; or
(B) all Securities of such series and, in the
case of (i) or (ii) below, any coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) if redeemable at the option of the Company, are to be
called for redemption within one year under arrangements satisfactory
to the Trustee for the
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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 irrevocably
deposited or caused to be deposited with the Trustee as trust funds in trust for
the purpose an amount in the currency in which the Securities of such series are
payable, sufficient to pay and discharge the entire indebtedness on such
Securities and such coupons not theretofore delivered to the Trustee for
cancellation, in respect of principal, premium, if any, and interest, to the
date of such deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with respect to
the Securities of any series, the obligation of the Company to the Trustee and
any predecessor Trustee under Section 6.9, 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 Company and the Trustee with respect to the Securities of
such series under Sections 3.4, 3.5, 3.6, 4.2, 9.2 and 9.3 and with respect to
the payment of Additional Amounts, if any, with respect to such Securities as
contemplated by Section 3.1(b)(18) shall survive.
Section 4.2 Application of Trust Funds. Subject to the provisions of
the last paragraph of Section 9.3, all money deposited with the Trustee pursuant
to Section 4.1 shall be held in trust and applied by it, in accordance with the
provisions of the Securities, the coupons and this Indenture, to the payment,
either directly or through any Paying Agent (other than the Company acting as
its own Paying Agent) as the Trustee may determine, to the Persons entitled
thereto, of the principal, premium, if any, and interest for whose payment such
money has been deposited with or received by the Trustee, but such money need
not be segregated from other funds except to the extent required by law.
Section 4.3 Applicability of Defeasance Provisions; Company's Option to
Effect Defeasance or Covenant Defeasance. Unless pursuant to Section 3.1 either
or both of (i) defeasance of the Securities of or within a series under Section
4.4 or (ii) covenant defeasance of the Securities of or within a series under
Section 4.5 shall not be applicable with respect to the Securities of any
series, then the provisions of such Section or
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Sections, as the case may be, together with the provisions of Sections 4.6
through 4.10 inclusive, with such modifications thereto as may be specified
pursuant to Section 3.1 with respect to such Securities, shall be applicable to
such Securities and any coupons appertaining thereto, and the Company may at its
option by Board Resolution, at any time, with respect to such Securities and any
coupons appertaining thereto, elect to have Section 4.4 or Section 4.5 (unless
such Section 4.4 or Section 4.5, as the case may be, shall not be applicable to
the Securities of such series) be applied to such Outstanding Securities and any
coupons appertaining thereto upon compliance with the conditions set forth below
in this Article. Unless otherwise specified pursuant to Section 3.1, the
Company's right, if any, to effect defeasance pursuant to Section 4.4 or
covenant defeasance pursuant to Section 4.5 may only be exercised with respect
to all of the Outstanding Securities of a series and any coupons appertaining
thereto.
Section 4.4 Defeasance. Upon the Company's exercise of the option
specified in Section 4.3 applicable to this Section with respect to the
Securities of a series, the Company shall be deemed to have been discharged from
its obligations with respect to such Securities and any coupons appertaining
thereto (except as specified below) on the date the conditions set forth in
Section 4.6 are satisfied (hereinafter "defeasance"). For this purpose, such
defeasance means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by such Securities and any coupons
appertaining thereto which shall thereafter be deemed to be "Outstanding" only
for the purposes of Section 4.7 and the other Sections of this Indenture
referred to in clause (ii) of this Section, and to have satisfied all its other
obligations under such Securities and any coupons appertaining thereto and this
Indenture insofar as such Securities and any coupons appertaining thereto are
concerned (and the Trustee, at the expense of the Company, shall on Company
Order execute proper instruments acknowledging the same), except the following
which shall survive until otherwise terminated or discharged hereunder: (i) the
rights of Holders of such Securities and any coupons appertaining thereto to
receive, solely from the trust funds described in Section 4.6(a) and as more
fully set forth in such Section and in Section 4.7, payments in respect of the
principal of, premium, if any, and interest, if any, on such Securities and any
coupons appertaining thereto when such payments are due; (ii) the Company's
obligations with respect to such Securities under Sections 3.4, 3.5, 3.6, 9.2
and 9.3 and with respect to the payment of Additional Amounts, if any, payable
with respect to such Securities as specified pursuant to Section 3.1(b)(18);
(iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder
and (iv) this Article 4. Subject to compliance with this Article 4, the Company
may exercise its option under this Section notwithstanding the prior exercise of
its option under Section 4.5 with respect to such Securities and any coupons
appertaining thereto. Following a defeasance, payment of such Securities may not
be accelerated because of an Event of Default.
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Section 4.5 Covenant Defeasance. Upon the Company's exercise of the
option specified in Section 4.3 applicable to this Section with respect to any
Securities of a series, the Company shall be released from its obligations under
Sections 7.1, 9.4 (other than the Company's obligation to maintain its corporate
existence), 9.5, 9.8, 9.9, 9.10, and 9.11 and, if specified pursuant to Section
3.1, its obligations under any other covenant, with respect to such Securities
and any coupons appertaining thereto on and after the date the conditions set
forth in Section 4.6 are satisfied (hereinafter, "covenant defeasance"), and
such Securities and any coupons appertaining thereto shall thereafter be deemed
to be not "Outstanding" for the purposes of any direction, waiver, consent or
declaration or Act of Holders (and the consequences of any thereof) in
connection with Sections 7.1, 9.4 (other than the Company's obligation to
maintain its corporate existence), 9.5, 9.8, 9.9, 9.10 and 9.11 and any such
other covenant, but shall continue to be deemed "Outstanding" for all other
purposes hereunder. For this purpose, such covenant defeasance means that, with
respect to such Securities and any coupons appertaining thereto, the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such Section or such other covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such Section or such other covenant or by reason of reference in any such
Section or such other covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a Default or an Event
of Default under Section 5.1(3) or 5.1(7) or otherwise, as the case may be, but,
except as specified above, the remainder of this Indenture and such Securities
and any coupons appertaining thereto shall be unaffected thereby.
Section 4.6 Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of Section 4.4 or Section 4.5
to any Securities of or within a series and any coupons appertaining thereto:
(a) The Company shall have irrevocably deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 6.12 who shall agree in writing to comply with, and shall be entitled to
the benefits of, the provisions of Sections 4.3 through 4.10 inclusive and the
last paragraph of Section 9.3 applicable to the Trustee, for purposes of such
Sections also a "Trustee") as trust funds in trust for the purpose of making the
payments referred to in clauses (x) and (y) of this Section 4.6(a), specifically
pledged as security for, and dedicated solely to, the benefit of the Holders of
such Securities and any coupons appertaining thereto, with instructions to the
Trustee as to the application thereof, (A) money in an amount (in such currency
in which such Securities and any coupons appertaining thereto are then specified
as payable at Stated Maturity or, if such defeasance or covenant defeasance is
to be effected in compliance with Section 4.6(g) below, on the relevant
Redemption Date, as the case may be), or (B) if Securities of such series are
not subject to repayment or repurchase at the option of Holders, Government
Obligations applicable to such Securities and any coupons
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appertaining thereto (determined on the basis of the currency in which such
Securities and coupons, if any, are then specified as payable at Stated Maturity
or the applicable Redemption Date, as the case may be) which through the payment
of interest and principal in respect thereof in accordance with their terms will
provide (without consideration of any reinvestment of such principal and
interest), not later than one day before the due date of any payment referred to
in clause (x) or (y) of this Section 4.6(a), money in an amount or (C) a
combination thereof in an amount, sufficient, in the opinion of a nationally
recognized firm of independent certified public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee to pay and discharge, (x) the
principal of, and premium, if any, and interest, if any, on such Securities and
any coupons appertaining thereto on the Stated Maturity of such principal or
installment of principal or interest or on the applicable Redemption Date, as
the case may be, and (y) any mandatory sinking fund payments applicable to such
Securities on the day on which such payments are due and payable in accordance
with the terms of this Indenture and such Securities and any coupons
appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a Default or Event of Default under, this
Indenture or result in a breach or violation of, or constitute a default under,
any other material agreement or instrument to which the Company is a party or by
which it is bound.
(c) In the case of an election under Section 4.4, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect that (i)
the Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (ii) since the date of this Indenture, there has
been a change in the applicable federal income tax law, in either case to the
effect that, and based thereon such opinion shall confirm that, the Holders of
such Securities and any coupons appertaining thereto will not recognize income,
gain or loss for federal income tax purposes as a result of such defeasance and
will be subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such defeasance had not
occurred.
(d) In the case of an election under Section 4.5, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Securities and any coupons appertaining thereto will not
recognize income, gain or loss for federal income tax purposes as a result of
such covenant defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such covenant defeasance had not occurred.
(e) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under
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Section 4.4 or the covenant defeasance under Section 4.5 (as the case may be)
have been complied with.
(f) No Event of Default or Default with respect to such Securities
or any coupons appertaining thereto shall have occurred and be continuing on the
date of such deposit, or, insofar as Defaults in Events of Default under
Sections 5.1(5) and 5.1(6) are concerned, at any time during the period ending
on the 91st day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such period).
(g) If the monies or Government Obligations or combination
thereof, as the case may be, deposited under Section 4.6(a) above are sufficient
to pay the principal of, and premium, if any, and interest, if any, on such
Securities and coupons, if any, appertaining thereto provided such Securities
are redeemed on a particular Redemption Date, the Company shall have given the
Trustee irrevocable instructions to redeem such Securities on such date and to
provide notice of such redemption to Holders as provided in or pursuant to this
Indenture.
(h) Such defeasance or covenant defeasance shall be effected in
compliance with any additional or substitute terms, conditions or limitations
which may be imposed on the Company in connection therewith as contemplated by
Section 3.1.
Section 4.7 Deposited Money and Government Obligations to Be Held in
Trust. Subject to the provisions of the last paragraph of Section 9.3, all money
and Government Obligations (or other property as may be provided pursuant to
Section 3.1) (including the proceeds thereof) deposited with the Trustee
pursuant to Section 4.6 in respect of any Securities of any series and any
coupons appertaining thereto shall be held in trust and applied by the Trustee,
in accordance with the provisions of such Securities and any coupons
appertaining thereto and this Indenture, to the payment, either directly or
through any Paying Agent (other than the Company acting as its own Paying Agent)
as the Trustee may determine, to the Holders of such Securities and any coupons
appertaining thereto of all sums due and to become due thereon in respect of
principal, premium, if any, and interest, if any, but such money need not be
segregated from other funds except to the extent required by law.
Unless otherwise specified in or pursuant to this Indenture or any
Securities, if, after a deposit referred to in Section 4.6(a) has been made, (a)
the Holder of a Security in respect of which such deposit was made is entitled
to, and does, elect pursuant to Section 3.1 or the terms of such Security to
receive payment in a currency other than that in which the deposit pursuant to
Section 4.6(a) has been made in respect of such Security, or (b) a Conversion
Event occurs in respect of the Foreign Currency in which the deposit pursuant to
Section 4.6(a) has been made, the indebtedness represented by such Security and
any
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coupons appertaining thereto shall be deemed to have been, and will be, fully
discharged and satisfied through the payment of the principal of and premium, if
any, and interest, if any, on such Security as the same becomes due out of the
proceeds yielded by converting (from time to time as specified below in the case
of any such election) the monies or Government Obligations (or other property
and any proceeds therefrom) deposited in respect of such Security into the
currency in which such Security becomes payable as a result of such election or
Conversion Event based on (x) in the case of payments made pursuant to clause
(a) above, the applicable market exchange rate for such Foreign Currency in
effect on the second Business Day prior to each payment date, or (y) with
respect to a Conversion Event, the applicable market exchange rate for such
Foreign Currency in effect (as nearly as feasible) at the time of the Conversion
Event.
Section 4.8 Repayment to Company. Anything in this Article 4 to the
contrary notwithstanding, the Trustee shall deliver or pay to the Company from
time to time upon Company Request any money or Government Obligations (or other
property and any proceeds therefrom) held by it as provided in Section 4.6(a)
with respect to the Securities of any series 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 a
defeasance or covenant defeasance, as applicable, of such Securities in
accordance with Section 4.6.
Section 4.9 Indemnity for Government Obligations. The Company shall
pay, and shall indemnify the Trustee against, any tax, fee or other charge
imposed on or assessed against Government Obligations deposited pursuant to this
Article or the principal and interest received on such Government Obligations.
Section 4.10 Reinstatement. If the Trustee or any Paying Agent is
unable to apply any monies or Government Obligations (or other property or any
proceeds therefrom) deposited pursuant to Section 4.6(a) in accordance with this
Indenture or the Securities of the applicable series by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
the Company's obligations under this Indenture and the Securities of such series
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 4.6(a) until such time as the Trustee or a Paying Agent is permitted to
apply such monies or Government Obligations (or other property or any proceeds
therefrom) in accordance with this Indenture and the Securities of such series;
provided, however, that if the Company makes any payment of principal of,
premium, if any, or interest on any Security of such series following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the cash and
Government Obligations(or other property or any proceeds therefrom) held by the
Trustee or Paying Agent.
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ARTICLE 5
DEFAULTS AND REMEDIES
Section 5.1 Events of Default. "Event of Default", wherever used herein
with respect to Securities of any series, means any 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) unless such event is specifically deleted
or modified in or pursuant to the supplemental indenture, Board Resolution or
Officers' Certificate establishing the terms of such series pursuant to Section
3.1 of this Indenture:
(1) default in the payment of any interest on any
Security of that series or any coupon appertaining thereto, or any
Additional Amounts payable with respect to any Security of that series,
when the same becomes due and payable and continuance of such default
for a period of 30 days; or
(2) default in the payment of any principal of or
premium, if any, on any Security of that series when the same becomes
due and payable at its Maturity (whether at Stated Maturity, upon
redemption, repurchase at the option of the Holder or otherwise), or
default in the making of any mandatory sinking fund payment in respect
of any Securities of that series when and as due by the terms of the
Securities of that series; or
(3) default in the performance, or breach, of any
covenant or warranty of the Company in this Indenture or any Security
of such series (other than a covenant or warranty for which the
consequences of breach or nonperformance are addressed elsewhere in
this Section 5.1 or a covenant or warranty which has expressly been
included in this Indenture, whether or not by means of a supplemental
indenture, solely for the benefit of Securities of a series other than
such series), and continuance of such default or breach for a period of
60 days after there has been given, by registered or certified mail, to
the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in aggregate principal amount of the
Outstanding Securities of such series a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(4) default under any bond, note, debenture or other
evidence of Debt of the Company (including an event of default with
respect to any other series of Securities), or under any mortgage,
indenture or other instrument under which there may be issued or by
which there may be secured or evidenced any Debt of
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the Company, whether such Debt exists on the date of this Indenture or
shall hereafter be incurred or created, which results in such Debt in
an aggregate principal amount exceeding $20,000,000 becoming or being
declared due and payable prior to the date on which it would otherwise
have become due and payable, and such acceleration shall not be
rescinded or annulled or such Debt shall not be paid in full, or there
has not been deposited into trust a sum of money sufficient to pay in
full such Debt, within a period of 30 days after there shall have been
given, by registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Outstanding Securities of such series
a written notice specifying such default and requiring the Company to
cause such acceleration to be rescinded or annulled or to pay in full
such Debt or to deposit into trust a sum of money sufficient to pay in
full such Debt and stating that such notice is a "Notice of Default"
hereunder; or
(5) the Company pursuant to or within the meaning of any
Bankruptcy Law (A) commences a voluntary case or proceeding, (B)
consents to the entry of an order for relief against it in an
involuntary case or proceeding or to the commencement of any bankruptcy
or insolvency case or proceeding against it, (C) consents to the
appointment of a Custodian of it or for all or substantially all of its
property; or (D) makes a general assignment for the benefit of its
creditors; or
(6) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that (A) is for relief against the
Company in an involuntary case, (B) appoints a Custodian of the Company
or for all or substantially all of its property, (C) orders the winding
up or liquidation of the Company , (D) adjudges the Company a bankrupt
or insolvent or (E) approves as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect
to the Company; and any such order or decree described in this clause
(6) remains unstayed and in effect for 60 days; or
(7) any other Event of Default provided as contemplated
by Section 3.1 with respect to Securities of that series.
The term "Bankruptcy Law" means Title 11, U.S. Code, or any similar
federal or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy
Law.
Section 5.2 Acceleration; Rescission and Annulment. If an Event of
Default with respect to the Securities of any series at the time Outstanding
occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of all of the Outstanding Securities of such series,
by written notice to the Company (and, if
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given by the Holders, to the Trustee), may declare the principal of (or, if the
Securities of that series are Original Issue Discount Securities or Indexed
Securities, such portion of the principal amount as may be specified in the
terms of that series) and accrued interest, if any, on all the Securities of
that series to be due and payable and upon any such declaration such principal
(or, in the case of Original Issue Discount Securities or Indexed Securities,
such specified amount) and interest, if any, shall be 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 aggregate principal amount of the
Outstanding Securities of that series, by written notice to the Trustee, may
rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a
sum of money sufficient to pay
(i) all overdue installments of interest on any
Securities of such series and any coupons appertaining thereto which
have become due otherwise than by such declaration of acceleration and
any Additional Amounts with respect thereto,
(ii) the principal of and any premium on any Securities of
such series which have become due otherwise than by such declaration of
acceleration and any Additional Amounts with respect thereto and, to
the extent permitted by applicable law, interest thereon at the rate or
rates borne by or provided for in such Securities,
(iii) to the extent permitted by applicable law, interest
upon installments of interest, if any, which have become due otherwise
than by such declaration of acceleration and any Additional Amounts
with respect thereto at the rate or rates borne by or provided for in
such Securities, and
(iv) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel and all other amounts due the
Trustee under Section 6.9; and
(2) all Events of Default with respect to Securities of
such series, other than the non-payment of the principal of, and
interest on, and any Additional Amounts with respect to, Securities of
such series which shall have become due solely by such declaration of
acceleration, shall have been cured or waived as provided in Section
5.7.
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No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 5.3 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 or coupon, if any, or any Additional Amounts with respect to
any Security when the same 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 or coupons, if any, the whole amount then due and
payable on such Securities for principal, premium, if any, interest and
Additional Amounts, if any, and, to the extent that payment of such interest
shall be legally enforceable, interest on any overdue principal, premium, if
any, interest and Additional Amounts, if any, at the rate or rates borne by or
prescribed therefor in such Securities or coupons, if any, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay the money it is required to pay the Trustee
pursuant to the preceding paragraph forthwith upon the demand of the Trustee,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the money so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and any coupons
appertaining thereto and collect the monies adjudged or decreed to be payable in
the manner provided by law out of the property of the Company or any other
obligor upon such Securities and any coupons appertaining thereto, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series 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 secure any other proper remedy.
Section 5.4 Trustee May File Proofs of Claim. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement,
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adjustment, composition or other judicial proceeding relative to the Company or
any other obligor upon the Securities or the property of the Company or such
other obligor or their creditors, the Trustee (irrespective of whether the
principal of the Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee shall
have made any demand on the Company for the payment of any overdue principal,
premium, interest or Additional Amounts) shall be entitled and empowered, by
intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount, or
such lesser amount as may be provided for in the Securities of such
series, of the principal and any premium, interest and Additional
Amounts owing and unpaid in respect of such Securities and any coupons
appertaining thereto and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents or counsel) and
of the Holders of Securities or any coupons allowed in such judicial
proceeding, and
(b) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same;
and any Custodian in any such judicial proceeding is hereby authorized by each
Holder of Securities or any coupons 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 of Securities or any coupons, to pay to the Trustee any amount
due to it for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel and any other amounts due the Trustee
under Section 6.9.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or any coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or any coupon in any such proceeding.
Section 5.5 Trustee May Enforce Claims Without Possession of Securities
or Coupons. All rights of action and claims under this Indenture or any of the
Securities or coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery or judgment, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, shall be for the ratable benefit of each and every Holder of a
Security or coupon in respect of which such judgment has been recovered.
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Section 5.6 Delay or Omission Not Waiver. No delay or omission by the
Trustee or any Holder of any Securities to exercise any right or remedy accruing
upon an Event of Default shall, to the extent permitted by applicable law,
impair any such right or remedy or constitute a waiver of or acquiescence in any
such Event of Default. Every right and remedy given by this Article 5 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 Trustees or by the Holders of
Securities or coupons, as the case may be.
Section 5.7 Waiver of Past Defaults. The Holders of a majority in
aggregate principal amount of the Outstanding Securities of any series by
written notice to the Trustee may waive on behalf of the Holders of all
Securities of such series any past Default or Event of Default with respect to
that series and its consequences except (i) a Default or Event of Default in the
payment of the principal of, or premium, if any, or interest on, or Additional
Amounts, if any, with respect to, any Security of such series or any coupon
appertaining thereto or (ii) in respect of a covenant or provision hereof which
pursuant to Section 8.2 cannot be amended or modified 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.
Section 5.8 Control by Majority. The Holders of a majority in aggregate
principal amount of the Outstanding Securities of any series shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on it
with respect to Securities of that series; provided, however, that (i) the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture, (ii) the Trustee may refuse to follow any direction that is unduly
prejudicial to the rights of the Holders of Securities of such series not
consenting or that would in the good faith judgment of the Trustee have a
substantial likelihood of involving the Trustee in personal liability and (iii)
the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
Section 5.9 Limitation on Suits by Holders. No Holder of any Security
of any series or any coupons appertaining thereto 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) the Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of such series;
(2) the Holders of at least 25% in aggregate principal
amount of the Outstanding Securities of that series have made a written
request to the Trustee to
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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
indemnity satisfactory to the Trustee against any loss, liability or
expense to be, or which may be, incurred by the Trustee in pursuing the
remedy;
(4) the Trustee for 60 days after its receipt of such
notice, request and the offer of indemnity has failed to institute any
such proceedings; and
(5) during such 60 day period, the Holders of a majority
in aggregate principal amount of the Outstanding Securities of such
series have not given to the Trustee a direction inconsistent with such
written request.
No one or more Holders shall have any right in any manner whatever by
virtue of, or by availing of, any provision of this Indenture to affect, disturb
or prejudice the rights of any other 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 5.10 Rights of Holders to Receive Payment. Notwithstanding any
other provision of this Indenture, the Holder of any Security or coupon shall
have the right, which is absolute and unconditional, to receive payment of the
principal of, and premium, if any, and, subject to Sections 3.5 and 3.7,
interest on, and Additional Amounts, if any, with respect to, such Security and
such coupon on the respective due dates expressed in such Security or coupon
(or, in case of redemption, on the Redemption Date or, in the case of
repurchase by the Company at the option of such Holder, on any date such
repurchase is due to be made), and to institute suit for the enforcement of any
such payment, and such right, shall not be impaired or affected without the
consent of such Holder.
Section 5.11 Application of Money Collected. If the Trustee collects
any money pursuant to this Article, it shall pay out the money 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, premium, if any, 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 Trustee for amounts due under Section 6.9;
Second: to Holders of Securities and coupons in respect of which or for
the benefit of which such money has been collected for amounts due and unpaid on
such Securities for principal, premium, if any, interest and Additional Amounts,
if any, ratably, without preference or priority of any kind, according to the
amounts due and
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payable on such Securities for principal, premium, if any, interest and
Additional Amounts, if any, respectively; and
Third: to the Company.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 5.11. At least 15 days before such record date,
the Trustee shall mail to each holder and the Company a notice that states the
record date, the payment date and the amount to be paid.
Section 5.12 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 5.13 Rights and Remedies Cumulative. To the extent permitted by
applicable law and except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 3.6, no right or remedy herein conferred upon or reserved
to the Trustee or 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 5.14 Waiver of stay or extension laws. The Company covenants
that (to the extent that it may lawfully do so) it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
indenture; and the Company expressly waives (to the extent that it may lawfully
do so) all benefit or advantage of any such law and covenants (to the extent it
may lawfully do so) that it will not hinder, delay or impede the execution of
any power herein granted to the trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
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Section 5.15 Undertaking for costs. All parties to this indenture
agree, and each holder of any security by his acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this indenture, or in any suit
against the trustee for any action taken or omitted by it as trustee, the filing
by any party litigant in such suit of any undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this section 5.15 shall not apply to
any suit instituted by the trustee, to any suit instituted by any holder, or
group of holders, holding in the aggregate more than 10% in principal amount of
outstanding securities of any series, or to any suit instituted by any holder
for the enforcement of the payment of the principal of, or premium, if any, or
interest, if any, on or additional amounts, if any, with respect to any security
on or after the respective stated maturities expressed in such security (or, in
the case of redemption, on or after the redemption date, or, in the case of
repurchase by the company at the option of the holder, on or after the date for
repurchase).
ARTICLE 6
THE TRUSTEE
Section 6.1 Certain Duties and Responsibilities of the Trustee.
(a) Except during the continuance of an Event of Default, the
Trustee's duties and responsibilities under this Indenture shall be governed by
Section 315(a) of the Trust Indenture Act and no implied duties shall be
inferred against the Trustee.
(b) In case an Event of Default has occurred and is continuing,
the Trustee shall exercise the rights and powers vested in it by this Indenture,
and shall use the same degree of care and skill in their exercise, as a prudent
man would exercise or use under the circumstances in the conduct of his own
affairs.
Section 6.2 Rights of Trustee. Subject to the provisions of the Trust
Indenture Act:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any document believed by it to be genuine and to
have been signed or presented by the proper party or parties. The Trustee need
not investigate any fact or matter stated in the document but the Trustee may,
in its discretion, make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee
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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.
(b) Any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order (other than
delivery of any Security, together with any coupons appertaining thereto, to the
Trustee for authentication and delivery pursuant to Section 3.3, which shall be
sufficiently evidenced as provided therein) and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution.
(c) Before the Trustee acts or refrains from acting, it may
consult with counsel (who may be in-house counsel) or require an Officers'
Certificate. The Trustee shall not be liable for any action it takes or omits to
take in good faith in reliance on a Board Resolution, the written advice of
counsel, who may be an attorney for the Company, an Officers' Certificate or an
Opinion of Counsel.
(d) The Trustee may act through agents or attorneys and shall not
be responsible for the misconduct or negligence of any agent or attorney
appointed with due care.
(e) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers.
(f) The Trustee shall not be required 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 its rights or powers, if it shall
have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
(g) The permissive rights of the Trustee to do things enumerated
in this Indenture shall not be construed as a duty unless so specified herein.
(h) The Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith and without negligence in
accordance with the direction of the Holders of a majority in principal amount
of the Outstanding Securities of any series relating to the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Indenture.
(i) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities of any series or any related coupons
pursuant to this Indenture, unless such Holders shall have offered to the
Trustee security or indemnity reasonably satisfactory to
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the Trustee against the costs, expenses and liabilities which might be incurred
by it in compliance with such request or direction.
(j) The Trustee's rights to immunities and protection from
liability hereunder and its rights to payment of its fees and expenses shall
survive its resignation or removal.
Section 6.3 Trustee May Hold Securities. The Trustee, any Paying Agent,
any Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and coupons and, subject
to Sections 310(b) and 311 of the Trust Indenture Act, may otherwise deal with
the Company and an Affiliate or Subsidiary of the Company with the same rights
it would have if it were not Trustee, Paying Agent, Registrar or such other
agent.
Section 6.4 Money Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed upon in writing with the
Company.
Section 6.5 Trustee's Disclaimer. The recitals contained herein and in
the Securities, except the Trustee's certificate of authentication, shall be
taken as the statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representation as to
the validity, adequacy or priority of this Indenture or the Securities or any
coupon. The Trustee shall not be accountable for the Company's use of the
proceeds from the Securities or for monies paid over to the Company pursuant to
the Indenture.
Section 6.6 Notice of Defaults. If a Default occurs and is continuing
with respect to the Securities of any series and if it is known to a Responsible
Officer of the Trustee, the Trustee shall, within 90 days after it occurs,
transmit by mail, in the manner and to the extent provided in Section 313(c) of
the Trust Indenture Act, notice of all Defaults known to it unless such Default
shall have been cured or waived; provided, however, that in the case of a
Default in payment on the Securities of any series, the Trustee may withhold the
notice if and so long as the board of directors, the executive committee or a
committee of its Responsible Officers in good faith determines that withholding
such notice is in the interests of Holders of Securities of that series; and
provided, further, that in the case of any Default of the character specified in
Section 5.1(3) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof.
The Trustee shall not be deemed to have notice of a Default or an Event
of Default unless (i) the Trustee has received written notice thereof from the
Company or any Holder or (ii) a Responsible Officer of the Trustee shall have
actual knowledge thereof. Except
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as otherwise expressly provided herein, the Trustee shall not be bound to
ascertain or inquire as to the performance or observance of any of the terms,
conditions, covenants or agreements herein, or of any of the documents executed
in connection with the Securities, or as to the existence of a Default or an
Event of Default thereunder.
Section 6.7 Reports by Trustee to Holders. Within 60 days after each
November 15 of each year commencing with the first November 15 after the first
issuance of Securities pursuant to this Indenture, the Trustee shall transmit by
mail to all Holders of Securities as provided in Section 313(c) of the Trust
Indenture Act a brief report dated as of such November 15 if required by and in
compliance with Section 313(a) of the Trust Indenture Act.
Section 6.8 Securityholder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Holders of Securities of each series. If the
Trustee is not the Registrar, the Company shall furnish to the Trustee
semiannually on or before the last day of June and December in each year, and at
such other times as the Trustee may request in writing, a list, in such form and
as of such date as the Trustee may reasonably require, containing all the
information in the possession or control of the Registrar, the Company or any of
its Paying Agents other than the Trustee as to the names and addresses of
Holders of Securities of each such series. If there are Bearer Securities of any
series outstanding, even if the Trustee is the Registrar, the Company shall
furnish to the Trustee such a list containing such information with respect to
Holders of such Bearer Securities only.
Section 6.9 Compensation and Indemnity.
(a) The Company shall pay to the Trustee such compensation as the
Company and the Trustee shall from time to time agree in writing for all
services rendered by it hereunder. The Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Company
shall reimburse the Trustee upon request for all reasonable out-of-pocket
expenses incurred by it in connection with the performance of its duties under
this Indenture, except any such expense as may be attributable to its negligence
or bad faith. Such expenses shall include the reasonable compensation and
expenses of the Trustee's agents and counsel.
(b) The Company shall indemnify the Trustee for, and hold it
harmless against, any loss or liability, damage, claim or reasonable expense
including taxes (other than taxes based upon or determined or measured by the
income of the Trustee) incurred by it arising out of or in connection with its
acceptance or administration of the trust or trusts hereunder, including the
reasonable costs and expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its powers or duties
hereunder. The Trustee shall notify the Company promptly of any claim for which
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it may seek indemnity. The Company shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel and the Company
shall pay the reasonable fees and expenses of such counsel. The Company need not
pay for any settlement made without its consent.
(c) The Company need not reimburse any expense or indemnify
against any loss or liability incurred by the Trustee through negligence or
willful misconduct.
(d) To secure the payment obligations of the Company pursuant to
this Section, the Trustee shall have a lien prior to the Securities of any
series on all money or property held or collected by the Trustee, in its
capacity as Trustee, except that held in trust to pay principal, premium, if
any, and interest on and Additional Amounts, if any, with respect to particular
Securities.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 5.1(5) or Section 5.1(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 provisions of this Section shall survive the termination of this
Indenture and the registration or removal of the Trustee. All indemnifications
and releases from liability granted in this Article 6 to the Trustee shall
extend to its directors, officers, employees and agents and to the Trustee and
to each Paying Agent and Registrar. Whether or not expressly provided for
herein, every provision of this Indenture relating to the conduct or affecting
the liability of the Trustee shall be subject to the provision of this Article
6.
Section 6.10 Replacement of Trustee.
(a) The resignation or removal of the Trustee and the appointment
of a successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in Section 6.11.
(b) The Trustee may resign at any time with respect to the
Securities of any 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 any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Holders of a majority in aggregate principal amount of the
Outstanding Securities of any series may remove the Trustee with respect to that
series by so notifying
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the Trustee and the Company and may appoint a successor Trustee for such series
with the Company's consent.
(d) If at any time:
(1) the Trustee fails to comply with Section 310(b) of the
Trust Indenture Act after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Security for at least
six months, or
(2) the Trustee shall cease to be eligible under Section
310(a) of the Trust Indenture Act and shall fail to resign after
written request therefor by the Company or by any Holder of a Security
who has been a bona fide Holder of a Security for at least six months;
or
(3) the Trustee becomes incapable of acting, is adjudged a
bankrupt or an insolvent or a receiver or public officer takes charge
of the Trustee or its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a Board Resolution may
remove the Trustee with respect to all Securities, or (ii) subject to Section
315(e) of the Trust Indenture Act, 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.
(e) if the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, with respect to Securities of one or more
series, the Company, by or pursuant to Board Resolution, shall promptly appoint
a successor Trustee 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
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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.
Section 6.11 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment. Thereupon, the resignation or removal of the
retiring Trustee shall become effective, and the successor Trustee, without
further act, deed or conveyance, shall become vested with all the rights, powers
and duties of the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and such successor Trustee shall execute and deliver an
indenture supplemental hereto wherein such successor Trustee shall accept such
appointment and which (i) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, such 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, (ii) 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 (iii) 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 further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with
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respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under the Trust Indenture Act.
(e) 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
in the manner provided for notices to the Holders of Securities in Section 1.6.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust office.
Section 6.12 Eligibility; Disqualification. There shall at all times be
a Trustee hereunder which shall be eligible to act as Trustee under Section
310(a)(1) of the Trust Indenture Act and shall have a combined capital and
surplus of at least $50,000,000 (or, in the case of a Trustee which is a
subsidiary of a bank holding company, which Trustee shall have a combined
capital and surplus of at least $10,000,000 and whose ultimate parent bank
holding company shall have a combined capital and surplus of at least
$50,000,000). If such corporation (or ultimate parent bank holding company, as
the case may be) publishes reports of condition at least annually, pursuant to
law or the requirements of federal, state, territorial or District of Columbia
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation (or ultimate parent bank
holding company, as the case may be) shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. If
at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
Section 6.13 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
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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 6.14 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, exchange,
registration of transfer or partial redemption thereof, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Any such appointment shall be evidenced by an instrument in writing
signed by a Responsible Officer of the Trustee, a copy of which instrument shall
be promptly furnished to the Company. 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, except as may otherwise be provided pursuant to
Section 3.1, shall at all times be a bank or trust company or corporation
organized and doing business and in good standing under the laws of the United
States of America or of any state 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 the requirements of the
aforesaid 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. In case 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 further act
on the part of the Trustee or the Authenticating Agent.
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An Authenticating Agent for any series of Securities may at any time
resign by giving written notice of resignation to the Trustee for such series
and to the Company. The Trustee for any series of Securities may at any time
terminate the agency of an Authenticating Agent by giving written notice of
termination 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 for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth in
Section 1.6. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent herein. 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 including reimbursement of its reasonable expenses
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 or in lieu of the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in the following form:
This is one of the Securities of the series described in the
within-mentioned Indenture.
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----------------------------------------------
Trustee
By
--------------------------------------------
as Authenticating Agent
By
--------------------------------------------
Authorized Signatory
ARTICLE 7
CONSOLIDATION, MERGER OR SALE BY THE COMPANY
Section 7.1 Consolidation, Merger or Sale of Assets Permitted. The
Company shall not consolidate or merge with or into, or sell, convey, assign,
transfer, lease or otherwise dispose of all or substantially all of its assets
to, any Person unless:
(1) the Person formed by or surviving any such
consolidation or merger (if other than the Company), or which acquires
the Company's assets, is a corporation organized and existing under the
laws of the United States of America, any state thereof or the
District of Columbia;
(2) the Person formed by or surviving any such
consolidation or merger (if other than the Company), or which acquires
the Company's assets, expressly assumes by supplemental indenture all
the obligations of the Company under the Securities and this Indenture;
and
(3) immediately after giving effect to the transaction no
Default or Event of Default shall have occurred and be continuing.
The Company shall deliver to the Trustee prior to the proposed
transaction an Officers' Certificate and an Opinion of Counsel each stating that
the proposed transaction and such supplemental indenture comply with this
Indenture and that all conditions precedent to the consummation of the
transaction under this Indenture have been met.
Section 7.2 Successor Person Substituted for Company. Upon any
consolidation by the Company with or merger of the Company into any other Person
or any sale, conveyance, assignment, transfer, lease or other disposition of all
or substantially all of the assets of the Company to any Person in accordance
with Section 7.1, the successor Person formed by such consolidation or into
which the Company is merged or to which
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such sale, conveyance, assignment, transfer, lease or other disposition is made
shall succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and thereafter, except in the case
of a lease, the predecessor Person shall be released from all obligations and
covenants under this Indenture, the Securities and the coupons.
ARTICLE 8
SUPPLEMENTAL INDENTURES
Section 8.1 Supplemental Indentures Without Consent of Holders. Without
the consent of any Holders, the Company, when authorized by or pursuant to a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into indentures supplemental hereto, in form reasonably satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; 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 with respect
to all or any series of Securities; or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to facilitate the
issuance of Bearer Securities (including, without limitation, to
provide that Bearer Securities may be registrable as to principal only)
or to facilitate the issuance of Securities in global form; or
(5) to amend or supplement any provision contained herein
or in any supplemental indenture (which amendment or supplement may
apply to one or more series of Securities or to one or more Securities
within any series as specified in such supplemental indenture),
provided that such amendment or supplement does not apply to any
Outstanding Security issued prior to the date of such supplemental
indenture and entitled to the benefits of such provision; or
(6) to secure the Securities; or
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(7) to establish the form or terms of Securities of any
series as permitted by Sections 2.1 and 3.1; 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) if allowed without penalty under applicable laws and
regulations, to permit payment in the United States of principal,
premium, if any, or interest, if any, on Bearer Securities or coupons,
if any; or
(10) to cure any ambiguity or correct any mistake or to
correct or supplement any provision herein which may be inconsistent
with any other provision herein or to make any other provisions with
respect to matters or questions arising under this Indenture, provided
such action shall not adversely affect the interests of any Holder of
Securities of any series; or
(11) to make any change to comply with the Trust Indenture
Act of 1939 or any amendment thereof, or any requirement of the
Securities and Exchange Commission in connection with the qualification
of this Indenture under the Trust Indenture Act of 1939 or any
amendment thereof.
Section 8.2 Supplemental Indentures With Consent of Holders. With the
written consent of the Holders of a majority of the aggregate 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 or pursuant to a Board Resolution) and the Trustee
may enter into an indenture or indentures supplemental hereto to add any
provisions to or to change or eliminate any provisions of this Indenture or of
any other indenture supplemental hereto or to modify the rights of the Holders
of such Securities; provided, however, that without the consent of the Holder of
each Outstanding Security affected thereby, an amendment under this Section may
not:
(1) change the Stated Maturity of the principal of or
premium, if any, on or of any installment of principal of or premium,
if any, or interest, if any, on, or Additional Amounts, if any, with
respect to, any Security, or reduce the principal amount of, or any
installment of principal of, or premium, if any, or interest, if any,
on, or any Additional Amounts payable with respect to, any Security or
the rate of interest on any Security, or reduce the amount of premium,
if any, payable upon redemption of any Security or the repurchase by
the Company of any Security at the option of the Holder thereof, or
change the manner in which the
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amount of any principal thereof or premium, if any, or interest thereon
or Additional Amounts, if any, with respect thereto is determined, or
reduce the amount of the principal of any Original Issue Discount
Security or Indexed Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
5.2, or change the currency in which any Securities or any premium or
the interest thereon or Additional Amounts, if any, with respect
thereto, is payable, or change the index, securities or commodities
with reference to which or the formula by which the amount of principal
or any premium or the interest thereon is determined, 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, in the case of repurchase by the Company
at the option of the Holder, on or after the date for repurchase);
(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;
(3) change any obligation of the Company to maintain an
office or agency in the places and for the purposes specified in
Section 9.2; or
(4) make any change in Section 5.7 or this 8.2 except to
increase any percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of the
Holders of each Outstanding Security affected thereby.
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 is not necessary under this Section 8.2 for the Holders to consent
to the particular form of any proposed supplemental indenture, but it is
sufficient if they consent to the substance thereof.
Section 8.3 Compliance with Trust Indenture Act. Every amendment to
this Indenture or the Securities of one or more series shall be set forth in a
supplemental indenture that complies with the Trust Indenture Act as then in
effect.
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Section 8.4 Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modification thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Section 8.5 Effect of Supplemental Indentures. Upon the execution of
any supplemental indenture under this Article, this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder and of any coupon appertaining
thereto shall be bound thereby.
Section 8.6 Reference in Securities to Supplemental Indentures.
Securities, including any coupons, 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 including any coupons 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 including any coupons of such series.
ARTICLE 9
COVENANTS
Section 9.1 Payment of Principal, Premium, if any, and Interest. The
Company covenants and agrees for the benefit of the Holders of each series of
Securities that it will duly and punctually pay the principal of, and premium,
if any, and interest on, and Additional Amounts, if any, with respect to, the
Securities of that series in accordance with the terms of the Securities of such
series, any coupons appertaining thereto and this Indenture. An installment of
principal, premium, if any, interest or Additional Amounts, if any, shall be
considered paid on the date it is due if the Trustee or Paying Agent holds on
that date money designated for and sufficient to pay the installment.
Section 9.2 Maintenance of Office or Agency. If Securities of a series
are issued as Registered Securities, the Company will maintain in each Place of
Payment for such 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
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registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities of that series and this Indenture may
be served. If Securities of a series are issuable as Bearer Securities, the
Company will maintain, (i) subject to any laws or regulations applicable
thereto, an office or agency in a Place of Payment for that series which is
located outside the United States where Securities of that series and related
coupons may be presented and surrendered for payment; provided, however, that if
the Securities of that series are listed on any stock exchange located outside
the United States and such stock exchange shall so require, the Company will
maintain a Paying Agent for the Securities of that series in any other required
city located outside the United States, as the case may be, so long as the
Securities of that series are listed on such exchange, and (ii) subject to any
laws or regulations applicable thereto, an office or agency in a Place of
Payment for that series which is located outside the United States, where
Securities of that series may be surrendered for 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 any 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.
Unless otherwise specified as contemplated by Section 3.1, no payment
of principal, premium or interest on Bearer Securities shall be made at any
office or agency of the Company in the United States, by check mailed to any
address in the United States, by transfer to an account located in the United
States or upon presentation or surrender in the United States of a Bearer
Security or coupon for payment, even if the payment would be credited to an
account located outside the United States; provided, however, that, if the
Securities of a series are denominated and payable in Dollars, payment of
principal of and any premium or interest on any such Bearer Security shall be
made at the office of the Company's Paying Agent in the Borough of Manhattan,
The City of New York, if (but only if) payment in Dollars of the full amount of
such principal, premium or interest, as the case may be, at all offices or
agencies outside the United States maintained for the purpose by the Company in
accordance with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Company may also from time to time designate one or more other
offices or agencies where the Securities (including any coupons, if any) 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 (including any coupons, if any) of any series for
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such purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
Unless otherwise provided in or pursuant to this Indenture, the Company
hereby designates the Borough of Manhattan, The City of New York, as the Place
of Payment for each series of Securities and initially appoints the Trustee, at
its offices which on the date of this Indenture are located at c/o The Chase
Manhattan Bank, Corporate Trust Securities Window, 55 Water Street, Room 234,
North Building, New York, New York 10041, as the Company's agency in the Borough
of Manhattan, The City of New York for the foregoing purposes and as Registrar
and Paying Agent. The Company may subsequently appoint a different office or
agency in the Borough of Manhattan, The City of New York and a different
Registrar and Paying Agent for the Securities of any series.
Section 9.3 Money for Securities Payments to Be Held in Trust;
Unclaimed Money. 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 premium, if any, or interest on, or Additional Amounts, if
any, with respect to, 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, premium, if any, or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee in writing of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of, premium, if any, or interest on or Additional Amounts, if
any, with respect to the Securities of that series in trust for the
benefit of the Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company
(or any other obligor upon the Securities of that series) in the making
of any payment of principal, premium, if any, or interest on the
Securities; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any
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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 any principal, premium or interest
on any Security of any series and remaining unclaimed for two years after such
principal, premium, if any, or interest has become due and payable shall be paid
to the Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security and coupon, if any,
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in The City of New York, or cause to be mailed to such Holder,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication
or mailing, any unclaimed balance of such money then remaining will be repaid to
the Company.
Section 9.4 Corporate Existence. Except as provided in Article 7, the
Company will at all times do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence and its
rights and franchises; provided that nothing in this Section 9.4 shall prevent
the abandonment or termination of any right or franchise of the Company if, in
the opinion of the Company, such abandonment or termination is in the best
interests of the Company and not prejudicial in any material respect to the
Holders of the Securities.
Section 9.5 Insurance. The Company covenants and agrees that it will
maintain, and cause each of its Subsidiaries to maintain, insurance with
responsible and reputable insurance companies or associations in such amounts
and covering such risks as are consistent with sound business practice for
corporations engaged in the same or similar business similarly situated. In lieu
of the foregoing or in combination therewith, in case of itself or of any one or
more of its Subsidiaries, the Company will maintain or cause to be maintained a
system or systems of self-insurance which will accord with the financially sound
and approved practices of companies owning or operating properties of a similar
character and maintaining such systems.
Section 9.6 Reports by the Company. The Company covenants:
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(a) to file with the Trustee, within 30 days after the Company is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934, as amended; or, if the Company is not required to file information,
documents or reports pursuant to either of such Sections, then to file with the
Trustee and the Commission, in accordance with rules and regulations prescribed
from time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to Section 13
of the Securities Exchange Act of 1934, as amended, in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(b) to file with the Trustee and the Commission, in accordance
with the rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants provided for in this Indenture, as
may be required from time to time by such rules and regulations; and
(c) to transmit to all Holders of Securities, within 30 days after
the filing thereof with the Trustee, in the manner and to the extent provided in
Section 313(c) of the Trust Indenture Act, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
subsections (a) and (b) of this Section 9.6, as may be required by the rules and
regulations prescribed from time to time by the Commission.
Section 9.7 Annual Review Certificate; Notice of Defaults or Events of
Default.
(a) The Company covenants and agrees to deliver to the Trustee,
within 120 days after the end of each fiscal year of the Company, a certificate
from the principal executive officer, principal financial officer or principal
accounting officer as to his or her knowledge of the Company's compliance with
all conditions and covenants under this Indenture. For purposes of this Section
9.7, such compliance shall be determined without regard to any period of grace
or requirement of notice provided under this Indenture.
(b) The Company covenants and agrees to deliver to the Trustee,
within a reasonable time after the Company becomes aware of the occurrence of a
Default or an Event of Default of the character specified in Section 5.1(4)
hereof, written notice of the occurrence of such Default or Event of Default.
Section 9.8 Limitation on Liens.
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(a) The Company will not, and will not permit any Subsidiary to,
incur, assume or guarantee any Debt secured by a Lien on any Principal Property
or on any Debt or shares of capital stock of, or other ownership interests in,
any Restricted Subsidiary ("Secured Debt") (whether such Principal Property,
Debt, capital stock or ownership interests are owned or outstanding at the date
of this Indenture or thereafter acquired or issued, as the case may be) if,
immediately after giving effect thereto, the sum, without duplication, of (a)
the aggregate principal amount of all Secured Debt (other than Excluded Debt)
and (b) the aggregate amount of all Attributable Debt in respect of Sale and
Leaseback Transactions (other than Excluded Transactions) would exceed 15% of
the Company's Consolidated Net Tangible Assets, unless the Company provides,
concurrently with or prior to the incurrence, assumption or guarantee of such
Secured Debt, that the Securities shall be secured equally and ratably with (or,
at the option of the Company, prior to) such Secured Debt.
(b) The provisions set forth in Section 9.8(a) shall not apply to
Debt secured by the following Liens ("Excluded Debt"):
(i) (A) Liens existing as of the date of this Indenture or (B)
Liens relating to contracts entered into by the Company or any
Subsidiary prior to the date of this Indenture (including, but not
limited to, Liens to secure all or any part of the indebtedness
incurred pursuant to the lease financings initially entered into as of
April 11, 1996);
(ii) Liens on any Principal Property, Debt, shares of capital
stock or other ownership interests existing at the time of acquisition
thereof (whether such acquisition is direct or by merger, acquisition
of stock or assets or otherwise) by the Company or any of its
Subsidiaries, provided such Liens were not created in contemplation of
or in connection with such acquisition;
(iii) Liens upon or with respect to any Principal Property
acquired, constructed, refurbished or improved by the Company or any of
its Subsidiaries after the date of this Indenture which (A) are
created, incurred or assumed contemporaneously with, or within 180 days
after, the latest to occur of the acquisition (whether by merger,
acquisition of stock or assets or otherwise), or the completion of
construction, refurbishment or improvement, or the commencement of
commercial operation, of such Principal Property and (B) secure or
provide for the payment of any part of the purchase price of such
Principal Property or the cost of such construction, refurbishment or
improvement; provided, however, that in the case of any such
construction, refurbishment or improvement, the Lien shall relate only
to Debt reasonably incurred to finance such construction, refurbishment
or improvement;
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(iv) Liens securing Debt owing by any Subsidiary to the
Company or to any other Subsidiary;
(v) Liens in favor of governmental bodies to secure advance,
progress or other payments pursuant to any contract or statute;
(vi) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation and deposits securing liability to insurance carriers under
insurance or self-insurance arrangements;
(vii) Liens for taxes not yet due or which are being contested
by the Company in good faith; and
(viii) Liens for the sole purpose of extending, renewing or
replacing in whole or in part the Debt secured thereby referred to in
the foregoing clauses (i) to (vii), inclusive, or in this clause
(viii); provided, however, that the Debt excluded pursuant to this
clause (viii) shall be excluded only in an amount not to exceed the
principal amount of Debt so secured at the time of such extension,
renewal or replacement, and that such extension, renewal or replacement
shall be limited to all or part of the Principal Property, Debt, shares
of capital stock or other ownership interests, as the case may be,
subject to the Lien so extended, renewed or replaced (plus
refurbishment of or improvements on or to such Principal Property).
Section 9.9 Limitation on Sale and Leaseback Transactions. The Company
will not, and will not permit any of its Subsidiaries to, enter into, assume,
guarantee or otherwise become liable with respect to any Sale and Leaseback
Transaction involving any Principal Property (whether such Principal Property is
owned at the date of this Indenture or thereafter acquired), if, immediately
after giving effect thereto, the sum, without duplication, of (a) the aggregate
principal amount of all Secured Debt (other than Excluded Debt) and (b) the
aggregate amount of all Attributable Debt in respect of Sale and Leaseback
Transactions (other than Excluded Transactions) would exceed 15% of the
Company's Consolidated Net Tangible Assets. The provisions set forth in the
immediately preceding sentence shall not apply to any Sale and Leaseback
Transaction (an "Excluded Transaction") if (w) within 180 days from the
effective date of such Sale and Leaseback Transaction, the Company or such
Subsidiary applies an amount not less than the greater of (i) the net proceeds
of the sale of the Principal Property sold pursuant to such Sale and Leaseback
Transaction or (ii) the fair value (as determined by the Company) of such
Principal Property to retire (other than pursuant to any mandatory prepayment or
retirement) Funded Debt of the Company or any Subsidiary (other than Funded Debt
held by the Company or any Subsidiary of the Company), including, for this
purpose, any currently maturing portion of such Funded Debt, or to purchase
other
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property having a fair value (as determined by the Company) at least equal to
the fair value (as determined by the Company) of the Principal Property sold in
such Sale and Leaseback Transaction, (x) such Sale and Leaseback Transaction
occurs within 180 days after the latest to occur of the date of acquisition by
the Company or such Subsidiary, completion of construction or commencement of
commercial operations of the Principal Property sold pursuant to such
transaction, (y) such Sale and Leaseback Transaction (A) is between the Company
and any Subsidiary or between any Subsidiaries, or (B) is entered into prior to
the date of this Indenture (including, but not limited to, the lease financings
initially entered into as of April 11, 1996), or (z) at the time such Sale and
Leaseback Transaction is entered into, the term of the related lease to the
Company or such Subsidiary of the Principal Property sold pursuant to such
transaction is three years or less.
Section 9.10 Books of Record and Account; Compliance with Law.
(a) The Company will keep, and will cause each Subsidiary to keep,
proper books of record and account, either on a consolidated or individual
basis. The Company shall cause its books of record and account to be examined by
one or more firms of independent public accountants not less frequently than
annually. The Company shall prepare its financial statements in accordance with
GAAP.
(b) The Company shall, and shall cause each of its Subsidiaries
to, comply with all statutes, laws, ordinances, or government rules and
regulations to which it is subject, non-compliance with which would materially
adversely affect the business, prospects, earnings, properties, assets or
condition, financial or otherwise, of the Company and its Subsidiaries taken as
a whole.
Section 9.11 Taxes. The Company shall, and shall cause each of its
Subsidiaries to, pay or discharge or cause to be paid or discharged prior to
delinquency all taxes, assessments and governmental levies the non-payment of
which would materially adversely affect the business, prospects, earnings,
properties, assets or condition, financial or otherwise, of the Company and its
Subsidiaries taken as a whole except those taxes, assessments and governmental
levies whose amount, applicability or validity is being contested in good faith
and by appropriate proceedings.
Section 9.12 Additional Amounts. If any Securities of a series provide
for the payment of Additional Amounts pursuant to Section 3.1(b)(18), the
Company agrees to pay to the Holder of each such Security or any coupon
appertaining thereto Additional Amounts as provided in or pursuant to this
Indenture or such Securities. Whenever in this Indenture there is mentioned, in
any context, the payment of the principal of or any premium or interest on, or
in respect of, any Security of any series or any coupon appertaining thereto,
such mention shall be deemed to include mention of the payment of any Additional
Amounts provided by the terms of such series established hereby or
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<PAGE> 78
pursuant hereto to the extent that, in such context, Additional Amounts are,
were or would be payable in respect thereof pursuant to such terms, and express
mention of the payment of Additional Amounts (if applicable) in any provision
hereof shall not be construed as excluding Additional Amounts in those
provisions hereof where such express mention is not made.
Except as otherwise provided in or pursuant to this Indenture or the
Securities of any series, if the Securities of a series provide for the payment
of Additional Amounts, at least 10 days prior to the first Interest Payment Date
with respect to such series of Securities (or if the Securities of such series
shall not bear interest prior to Maturity, the first day on which a payment of
principal is made), and at least 10 days prior to each date of payment of
principal or interest if there has been any change with respect to the matters
set forth in the below-mentioned Officers' Certificate, the Company shall
furnish to the Trustee and the principal Paying Agent or Paying Agents, if other
than the Trustee, an Officers' Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such payment of principal of and premium,
if any, or interest on the Securities of such series shall be made to Holders of
Securities of such series or the coupons appertaining thereto who are United
States Aliens without withholding for or on account of any tax, assessment or
similar governmental charge described in the terms of the Securities of such
series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Securities or coupons, and the Company
agrees to pay to the Trustee or such Paying Agent on or prior to the date such
payment is due the Additional Amounts required by the terms of such Securities.
The Company covenants to indemnify the Trustee and any Paying Agent for, and to
hold them harmless against, any loss, liability or expense reasonably incurred
without negligence or bad faith on their part arising out of or in connection
with actions taken or omitted by any of them in reliance on any Officers'
Certificate furnished pursuant to this Section.
ARTICLE 10
REDEMPTION
Section 10.1 Applicability of Article. Securities (including coupons,
if any) 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 Section 3.1 for Securities of any series) in accordance with
this Article.
Section 10.2 Election to Redeem; Notice to Trustee. The election of the
Company to redeem any Securities, including coupons, if any, shall be evidenced
by or pursuant to a Board Resolution. In the case of any redemption at the
election of the
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Company of less than all the Securities or coupons, if any, of any series, the
Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date, of the principal amount of Securities of
such series to be redeemed and, if applicable, of the tenor of the Securities to
be redeemed. In the case of any redemption of Securities (i) prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture or (ii) pursuant to an election of the
Company which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction or condition.
Section 10.3 Selection of Securities to Be Redeemed. Unless otherwise
specified as contemplated by Section 3.1, if less than all the Securities
(including coupons, if any) of a series with the same terms are to be redeemed,
the Trustee, not more than 45 days prior to the Redemption Date, shall select
the Securities of the series to be redeemed in such manner as the Trustee shall
deem fair and appropriate. The Trustee shall make the selection from Securities
of the series that are Outstanding and that have not previously been called for
redemption and may provide for the selection for redemption of portions (equal
to the minimum authorized denomination for Securities of that series or any
integral multiple thereof) of the principal amount of Securities of such series
of a denomination larger than the minimum authorized denomination for Securities
of that series. The Trustee shall promptly notify the Company in writing of the
Securities selected by the Trustee for redemption and, in the case of any
Securities selected for partial redemption, the principal amount thereof to be
redeemed.
For purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities (including coupons, if
any) shall relate, in the case of any Securities (including coupons, if any)
redeemed or to be redeemed only in part, to the portion of the principal amount
of such Securities (including coupons, if any) which has been or is to be
redeemed.
Section 10.4 Notice of Redemption. Unless otherwise specified as
contemplated by Section 3.1, notice of redemption shall be given in the manner
provided in Section 1.6 not less than 30 days nor more than 60 days prior to the
Redemption Date to the Holders of the Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
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(3) if less than all the Outstanding Securities of a
series are to be redeemed, the identification (and, in the case of
partial redemption, the principal amounts) of the particular Security
or Securities to be redeemed;
(4) in case any Security is to be redeemed in part only,
the notice which relates to such Security shall state that on and after
the Redemption Date, upon surrender of such Security, the holder will
receive, without a charge, a new Security or Securities of authorized
denominations for the principal amount thereof remaining unredeemed;
(5) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all coupons appertaining
thereto, if any, maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price;
(6) that Securities of the series called for redemption
and all unmatured coupons, if any, appertaining thereto must be
surrendered to the Paying Agent to collect the Redemption Price;
(7) that, on the Redemption Date, the Redemption Price,
together with (except as otherwise set forth in Section 10.6 or as may
otherwise be specified with respect to such Securities pursuant to
Section 3.1) accrued and unpaid interest, if any, on and Additional
Amounts, if any, with respect to the Securities (or portions thereof)
to be redeemed, will become due and payable upon each such Security, or
the portion thereof, to be redeemed and, if applicable, that interest
thereon will cease to accrue on and after said date;
(8) that the redemption is for a sinking fund, if such is
the case;
(9) that, unless otherwise specified in such notice,
Bearer Securities of any series, if any, surrendered for redemption
must be accompanied by all coupons maturing subsequent to the
Redemption Date or the amount of any such missing coupon or coupons
will be deducted from the Redemption Price, unless security or
indemnity satisfactory to the Company, the Trustee and any Paying Agent
is furnished; and
(10) the CUSIP number, if any, of the Securities.
Notice of redemption of Securities to be redeemed 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.
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Section 10.5 Deposit of Redemption Price. On or prior to any Redemption
Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if
the Company is acting as its own Paying Agent, which it may not do in the case
of a sinking fund payment under Article 11, segregate and hold in trust as
provided in Section 9.3) an amount of money in the currency in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 3.1 for the Securities of such series) sufficient to pay on the
Redemption Date the Redemption Price of, and (unless the Redemption Date shall
be an Interest Payment Date) interest accrued to the Redemption Date on, all
Securities or portions thereof which are to be redeemed on that date.
Unless any Security by its terms prohibits any sinking fund payment
obligation from being satisfied by delivering and crediting Securities
(including Securities redeemed otherwise than through a sinking fund), the
Company may deliver such Securities to the Trustee for crediting against such
payment obligation in accordance with the terms of such Securities and this
Indenture.
Section 10.6 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 (together with (except as otherwise set forth in this Section
10.6 or as may otherwise be specified with respect to such Securities pursuant
to Section 3.1) accrued interest, if any, thereon and Additional Amounts, if
any, with respect thereto to the Redemption Date), and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest and the coupons
for any such interest appertaining to any Bearer Security so to be redeemed,
except to the extent provided below, shall be void. Except as provided in the
next succeeding paragraph, upon surrender of any such Security, including
coupons, if any, for redemption in accordance with said notice, such Security
shall be paid by the Company at the Redemption Price, together with accrued
interest and Additional Amounts, if any, to the Redemption Date; provided,
however, that installments of interest on Bearer Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable only at an
office or agency located outside the United States (except as otherwise provided
in Section 9.2) and, unless otherwise specified as contemplated by Section 3.1,
only upon presentation and surrender of coupons for such interest; and provided,
further, that, unless otherwise specified as contemplated by Section 3.1,
installments of interest on Registered Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Section 3.7.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Bearer Security may be
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paid after deducting from the Redemption Price an amount equal to the face
amount of all such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Bearer Security shall
surrender to the Trustee or any Paying Agent any such missing coupon in respect
of which a deduction shall have been made from the Redemption Price, such Holder
shall be entitled to receive the amount so deducted; provided, however, that
interest represented by coupons shall be payable only at an office or agency
located outside of the United States (except as otherwise provided pursuant to
Section 9.2) and, unless otherwise specified as contemplated by Section 3.1,
only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by or
prescribed therefor in the Security.
Section 10.7 Securities Redeemed in Part. Upon surrender of a Security
that is redeemed in part at any Place of Payment therefor (with, if the Company
or the Trustee so required, 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), the Company
shall execute and the Trustee shall authenticate and deliver to the Holder of
that Security, without service charge, a new Security or Securities of the same
series, having the same form, terms and Stated Maturity, in any authorized
denomination equal in aggregate principal amount to the unredeemed portion of
the principal amount of the Security surrendered.
ARTICLE 11
SINKING FUNDS
Section 11.1 Applicability of Article. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 3.1 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 11.2. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
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Section 11.2 Satisfaction of Sinking Fund Payments with Securities. The
Company (i) may deliver Outstanding Securities of a series (other than any
previously called for redemption) together, in the case of Bearer Securities of
such series, with all unmatured coupons appertaining thereto and (ii) 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 the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
Section 11.3 Redemption of Securities for Sinking Fund. Not less than
60 days prior to each sinking fund payment date for any series of Securities,
the Company will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing sinking fund payment for that series pursuant to the
terms of that series, the portion thereof, if any, which is to be satisfied by
payment of cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities of that series pursuant to Section 11.2 and
will also deliver to the Trustee any Securities to be so delivered. Not less
than 30 days before each such sinking fund payment date the Trustee shall select
the Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 10.3 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 10.4. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
10.6 and 10.7.
This Indenture may be executed in any number of counterparts, each of which
shall be an original, but such counterparts shall together constitute but one
instrument.
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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.
RAYCHEM CORPORATION
By:
-------------------------------
Raymond J. Sims
Senior Vice President &
Chief Financial Officer
[Seal]
Attest:
- ----------------------------
Secretary
CHASE TRUST COMPANY OF
CALIFORNIA
By:
-------------------------------
Name:
Title:
[Seal]
Attest:
- ----------------------------
Title:
77
<PAGE> 1
EXHIBIT 4.2
[Legend for inclusion in Global Debt Security -- THIS [NOTE/DEBENTURE] IS IN
GLOBAL FORM WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF A DEPOSITORY. UNLESS AND
UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN CERTIFICATED FORM,
THIS [NOTE/DEBENTURE] MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY
TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE
DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH
NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY]
[Legend for inclusion in Global Debt Security -- UNLESS THIS [NOTE/DEBENTURE] IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW
YORK CORPORATION ("DTC"), TO THE COMPANY (AS DEFINED BELOW) OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY [NOTE/DEBENTURE] ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
No.:
CUSIP No.: Principal Amount: $___________
RAYCHEM CORPORATION
__% [Notes/Debentures] due __
Raychem Corporation, a Delaware corporation (hereinafter called the
"Company", which term includes any successor corporation under the Indenture
referred to below), for value received, hereby promises to pay to __________, or
registered assigns, the principal sum of _____________ DOLLARS ($_____________)
[revise appropriately if denominated in another currency] on __________, and to
pay interest thereon from __________, __________ or from the most recent date to
which interest has been paid or duly provided for, semiannually on __________
and __________ of each year (each, an "Interest Payment Date"), commencing
__________, __________, and at Maturity, at the rate of __% per annum, until the
principal hereof is paid or duly made available for payment. Interest on this
[Note/Debenture] shall be calculated on the basis of a 360-day year consisting
of twelve 30-day months. 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 [Note/Debenture] (or one or more
Predecessor Debt 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 which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date shall
forthwith cease to be payable to the registered Holder hereof on the relevant
Regular Record Date by virtue of having been such Holder, and may be paid to the
Person in whose name this [Note/Debenture] (or one or more Predecessor Debt
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to the Holder of this [Note/Debenture] not less than 10
days prior to such Special Record Date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the [Notes/Debentures] may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in such Indenture.
Payment of the principal of and the interest on this [Note/Debenture]
will be made at the office or agency of the Company maintained for that purpose
in the Borough of Manhattan, The City of New York, in such coin or currency of
the United States of America, as at the time of payment is legal tender for
payment of public and
<PAGE> 2
private debts [revise appropriately if denominated in another currency];
provided, however, that, at the option of the Company, interest may be paid by
check mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register or by transfer to an account maintained by the
Person entitled thereto.
This [Note/Debenture] is one of a duly authorized issue of Debt
Securities of the Company (herein called the ["Notes/Debentures"]) issued and to
be issued in one or more series under an Indenture dated as of __________, 199__
(herein called, together with all indentures supplemental thereto, the
"Indenture") between the Company and Chase Trust Company of California, as
trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the [Notes/Debentures], and the terms upon which the
[Notes/Debentures] are, and are to be, authenticated and delivered. This
[Note/Debenture] is one of the series designated on the face hereof, limited
(subject to exceptions provided in the Indenture) in aggregate principal amount
to $__,000,000.
[Include if Debt Securities are not subject to redemption prior to
maturity-- The [Notes/Debentures] are not subject to redemption prior to the
Stated Maturity of the principal thereof.]
[Include if Debt Securities are redeemable prior to maturity-- The
[Notes/Debentures] shall not be subject to redemption prior to __________. The
Company shall have the right to redeem the [Notes/Debentures], in whole or in
part from time to time, on or after __________, upon not less than 30 nor more
than 60 days notice, at the following prices (expressed as percentages of the
principal amount of the [Notes/Debentures] to be redeemed) together (except as
otherwise provided in the Indenture) with accrued and unpaid interest, to, but
excluding, the Redemption Date, if redeemed during the 12-month period beginning
__________ of the years set forth below:
<TABLE>
<CAPTION>
Redemption
Year Price
- ---- -----
<S> <C>
......................................................... %
.........................................................
.........................................................
.........................................................
.........................................................
</TABLE>
and 100% of the principal amount thereof if redeemed on or after __________.]
If an Event of Default with respect to the [Notes/Debentures] shall
occur and be continuing, the principal of the [Notes/Debentures] may be declared
due and payable in the manner and with the effect provided in the Indenture.
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 Debt Securities of each series
issued under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than a majority in aggregate principal amount
of the Debt Securities at the time Outstanding of each series affected thereby.
The Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Debt Securities of any series
at the time Outstanding, on behalf of the Holders of all Debt 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 [Note/Debenture] shall be
conclusive and binding upon such Holder and upon all future Holders of this
[Note/Debenture] and of any [Notes/Debentures] 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 [Note/Debenture].
No reference herein to the Indenture and no provision of this
[Note/Debenture] or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
2
<PAGE> 3
interest on this [Note/Debenture], at the time, place and rate, and in the coin
or currency, herein and in the Indenture prescribed.
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this [Note/Debenture] may be registered on the
Security Register upon surrender of this [Note/Debenture] for registration of
transfer at the office or agency of the Company maintained for the purpose in
any place where the principal of and interest on this [Note/Debenture] are
payable, duly endorsed, 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 by his attorney duly authorized in writing, and thereupon one
or more new [Notes/Debentures], of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The [Notes/Debentures] are issuable only in registered form without
coupons in the denominations of $1,000 and integral multiples of $1,000. As
provided in the Indenture and subject to certain limitations set forth therein,
the [Notes/Debentures] are exchangeable for a like aggregate principal amount of
[Notes/Debentures] of authorized denominations as requested by the Holders
surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith, other than
in certain cases provided in the Indenture.
Prior to due presentment of this [Note/Debenture] 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 [Note/Debenture] is registered as the
owner hereof for all purposes, whether or not this [Note/Debenture] be overdue,
and neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
The Indenture contains provisions whereby (i) the Company may be
discharged from its obligations with respect to the [Notes/Debentures] (subject
to certain exceptions) or (ii) the Company may be released from its obligations
under specified covenants and agreements in the Indenture, in each case if the
Company irrevocably deposits with the Trustee money or Government Obligations
sufficient to pay and discharge the entire indebtedness on all
[Notes/Debentures], and satisfies certain other conditions, all as more fully
provided in the Indenture.
This [Note/Debenture] shall be governed by and construed in accordance
with the laws of the State of New York.
All terms used in this [Note/Debenture] which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
Unless the certificate of authentication hereon has been executed by or
on behalf of the Trustee under the Indenture by the manual signature of one of
its authorized signatories, this [Note/Debenture] shall not be entitled to any
benefits under the Indenture or be valid or obligatory for any purpose.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
3
<PAGE> 4
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
-------------
[Seal] RAYCHEM CORPORATION
Attest: By:
------------------------------- -------------------------------
Name: Name:
Title: Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series
described in the within-mentioned Indenture.
CHASE TRUST COMPANY OF CALIFORNIA, as Trustee
By:
-------------------------------
Authorized Signatory
4
<PAGE> 5
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C>
TEN COM--as tenants in common UNIF GIFT MIN ACT--____Custodian____
TEN ENT--as tenants by the entireties (Cust) (Minor)
JT TEN--as joint tenants with right Under Uniform Gifts to Minors Act
of survivorship and not as ___________________
tenants in common (State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
--------------------------------------
FOR VALUE RECEIVED, the undersigned registered holder hereby sell(s), assign(s)
and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- -------------------------------------------------------
- --------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE
- --------------------------------------------------------------------------------
the within security and all rights thereunder, hereby irrevocably constituting
and appointing
- --------------------------------------------------------------------------------
Attorney to transfer said security on the books of the Company with full power
of substitution in the premises.
Dated:
- --------------------------------------------------------------------------------
Notice: The signature to this assignment must correspond with
the name as it appears upon the face of the within security in every
particular, without alteration or enlargement or any change whatever.
<PAGE> 1
EXHIBIT 5.1
July 16, 1997
11850-0332
Raychem Corporation
300 Constitution Drive
Menlo Park, California 94025
RE: REGISTRATION STATEMENT ON FORM S-3
Dear Ladies and Gentlemen:
We have acted as counsel to Raychem Corporation, a Delaware corporation
(the "Company"), in connection with the Registration Statement on Form S-3 to be
filed with the Securities and Exchange Commission on or about July 16, 1997 (the
"Registration Statement"), relating to $400,000,000 principal amount of
Debentures (the "Debentures"), as more specifically set forth in the form of
Indenture included as Exhibit 4.1 to the Registration Statement (the
"Indenture"), all as disclosed in the Registration Statement.
I.
We have assumed the authenticity of all records, documents and
instruments submitted to us as originals, the genuineness of all signatures, the
legal capacity of all natural persons and the conformity to the originals of all
records, documents and instruments submitted to us as copies. We have based our
opinion upon the following records, documents, instruments and certificates and
such additional certificates relating to factual matters as we have deemed
necessary or appropriate for our opinion:
(a) The Amended and Restated Certificate of Incorporation of the
Company, certified by the Secretary of State of the State of
Delaware as of July 14, 1997 and certified to us by an officer
of the Company as being complete and in full force and effect
as of the date of this opinion;
<PAGE> 2
Raychem Corporation Heller Ehrman White & McAuliffe
July 16, 1997 ATTORNEYS
Page 2
(b) The Bylaws of the Comapny certified to us by an officer of the
Company as being complete and in full force and effect as of
the date of this opinion;
(c) Certificate of an officer of the Company (i) as to all of the
proceedings and actions of the Board of Directors of the
Company relating to the Debentures, and (ii) as to certain
other factual matters;
(d) The Registration Statement; and
(e) The Indenture.
This opinion is limited to the General Corporation Law of the State of
Delaware, and we disclaim any opinion as to the laws of any other jurisdiction.
We further disclaim any opinion as to any statute, rule, regulation, ordinance,
order or other promulgation of any regional or local governmental body or as to
any related judicial or administrative opinion.
Based upon the foregoing and our examination of such questions of law as
we have deemed necessary or appropriate for the purpose of this opinion, and
assuming (i) that the full consideration for each Debenture as stated in the
Indenture and the Registration Statement is paid, and (ii) that all applicable
securities laws are complied with, it is our opinion that, when issued and sold
by the Company, the Debentures will be legally issued, fully paid and
nonassessable.
This opinion is rendered to you in connection with the Registration
Statement and is solely for your benefit. This opinion may not be relied upon by
any other person, firm, corporation or other entity without our prior written
consent. We disclaim any obligation to advise you of any change of law that
occurs, or any facts of which we become aware, after the date of this opinion.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Heller Ehrman White & McAuliffe
<PAGE> 1
Exhibit 12.1
Calculation of Ratios of Earnings to Fixed Charges
(Dollar amounts in thousands)
(unaudited)
<TABLE>
<CAPTION>
Nine Months Ended
March 31, Year Ended June 30,
--------- -------------------
1997 1996 1996 1995 1994 1993 1992
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Income before income taxes,
extraordinary item, and change
in accounting principle 159,077 91,697 146,130 (270) 33,745 39,584 12,585(a)
add:
Interest expense 8,628 13,915 19,216 20,434 22,318 26,991 28,423
Portion of rents representative
of interest factor (b) 7,039 8,931 11,550 11,550 12,870 12,870 12,210
Equity in net losses of Ericsson
Raynet joint venture -- 29,818 29,818 85,946
less:
Capitalized interest (309) (143) (660) (724) (1,172) (362) (1,794)
---------------------- ------------------------------------------------------------
Income as adjusted 174,435 144,218 206,054 116,936 67,761 79,083 51,424
====================== ============================================================
Fixed Charges:
Interest expense 8,628 13,915 19,216 20,434 22,318 26,991 28,423
Portion of rents representative
of interest factor (b) 7,039 8,931 11,550 11,550 12,870 12,870 12,210
Debt prepayment penalty (c) -- -- -- 7,814 -- -- --
---------------------- ------------------------------------------------------------
Fixed Charges 15,667 22,846 30,766 39,798 35,188 39,861 40,633
====================== ============================================================
Ratio of earnings to fixed charges 11.13 6.31 6.70 2.94 1.93 1.98 1.27
====================== ============================================================
</TABLE>
(a) Reflects restatement of litigation settlement from
extraordinary item to "Other Expense, net".
(b) Calculated as approximately one-third of rental
expense, representing a reasonable approximation
of such rentals attributable to interest.
(c) Represents effective interest charged on the early
retirement of debt. Recorded as an extraordinary loss on
the income statement.
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
July 17, 1996, which appears on page 21 of the 1996 Annual Report to
Stockholders of Raychem Corporation, which is incorporated by reference in
Raychem Corporation's Annual Report on Form 10-K for the year ended June 30,
1996. We also consent to the incorporation by reference of our report on the
Financial Statement Schedules, which appears on page 14 of such Annual Report on
Form 10-K. We also consent to the reference to us under the heading "Experts" in
such Prospectus.
Price Waterhouse LLP
San Jose, California
July 16, 1997
<PAGE> 1
EXHIBIT 25.1
-------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
FORM T-l
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
---------------------------
CHASE TRUST COMPANY OF CALIFORNIA
(Exact name of trustee as specified in its charter)
CALIFORNIA 94-2926573
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
101 California Street
San Francisco, California 94111
(Address of principal executive offices) (Zip Code)
---------------------------
RAYCHEM CORPORATION
(Exact name of obligor as specified in its charter)
DELAWARE 94-1369731
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
300 Constitution Drive
Menlo Park, California 94025
(Address of principal executive offices) (Zip Code)
---------------------------
Debt Securities
(Title of the indenture securities)
----------------------------------
<PAGE> 2
GENERAL
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.
Superintendent of Banks of the State of California,
235 Montgomery Street, San Francisco, California 94104-2980.
Board of Governors of the Federal Reserve System,
Washington, D.C. 20551
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH THE 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.
1. A copy of the Articles of Incorporation of the Trustee as now
in effect, including the Restated Articles of Incorporation dated December 23,
1986 and the Certificate of Amendment dated March 26, 1992 (see Exhibit 1 to
Form T-1 filed in connection with Registration Statement No. 33-55136, which is
incorporated by reference) and a copy of the Certificate of Amendment dated
March 26, 1997 attached hereto as Exhibit 1.
2. A copy of the Certificate of Authority of the Trustee to
Commence Business (See Exhibit 2 to Form T-1 filed in connection with
Registration Statement No. 33-55136, which is incorporated by reference).
3. Authorization to exercise corporate trust powers (Contained in
Exhibit 2).
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4
to Form T-1 filed in connection with Registration Statement No. 33-55136, which
is incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 21(b) of the
Act (See Exhibit 6 to Form T-1 filed in connection with Registration Statement
No. 33-55136, which is incorporated by reference).
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or examining
authority.
8. Not applicable.
9. Not applicable.
2
<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Chase Trust Company of California, a corporation organized and existing
under the laws of the State of California, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of San Francisco and State of California, on the
10th day of July, 1997.
CHASE TRUST COMPANY OF CALIFORNIA
By /s/ James Nagy
-------------------------------
JAMES NAGY
Assistant Vice President
3
<PAGE> 4
EXHIBIT 7. REPORT OF CONDITION OF THE TRUSTEE.
CONSOLIDATED REPORT OF CONDITION OF Chemical Trust Company of California
-------------------------------------
(Legal Title)
LOCATED AT San Francisco San Francisco CA 94111
----------------------------------------------------------------------
(City) (County) (State) (Zip)
AS OF CLOSE OF BUSINESS ON March 31, 1997 BANK NO. 1476
----------------------- ----------
================================================================================
<TABLE>
<CAPTION>
ASSETS DOLLAR AMOUNT IN THOUSANDS
<S> <C>
1. Cash and due from banks 11,768
2. U.S. Treasury securities 10,025
3. Obligations of other U.S. Government agencies and corporations
4. Obligations of States and political subdivisions
5. Other securities (including $ corporate stock
-----------
(a) Loans
(b) Less: Reserve for possible loan losses
(c) Loans (Net)
7. Bank Premises, furniture and fixtures and other assets representing bank
premises (including $ -0- capital leases) 120
--------------
8. Real estate owned other than bank premises
9. Investments in subsidiaries not consolidated
10. Other assets (complete schedule on reverse) (including $ intangibles) 851
--
11. TOTAL ASSETS 22,764
LIABILITIES
12. Liabilities For borrowed money
13. Mortgage indebtedness (including $ capital leases)
---------------
14. Other liabilities (complete on schedule on reverse 2,941
15. TOTAL LIABILITIES 2,941
=====
16. Capital notes and debentures
SHAREHOLDERS EQUITY
17. Preferred stock--
(Number shares outstanding ) Amount $
---------------------
18. Common stock-- 10
(Number shares authorized 100 ) Amount $ 100
----------------------
(Number shares outstanding 100 ) Amount $ 100
--------------------
19. Surplus Amount $ 9,990
20. TOTAL CONTRIBUTED CAPITAL 10,000
21. Retained earnings and other capital reserves 9,823
22. TOTAL SHAREHOLDERS EQUITY 19,823
23. TOTAL LIABILITIES AND CAPITAL ACCOUNTS 22,764
======
</TABLE>
4
<PAGE> 5
MEMORANDA
1. Assets deposited with State Treasurer to qualify for exercise of
fiduciary powers (market value) 630
- --------------------------------------------------------------------------------
The undersigned,
Francis J. Farrell, VP & Manager and C. Scott Boone, Senior Vice President
- --------------------------------------------------------------------------------
(Name and Title) (Name and Title)
of the above named trust company, each declares, for himself alone and not for
the other: I have a personal knowledge of the matters contained in this report
(including the reverse side hereof), and I believe that each statement in said
report is true. Each of the undersigned, for himself alone and not for the
other, certifies under penalty of perjury that the foregoing is true and
correct.
Executed on 4/22/97 , at San Francisco , California
----------------- ----------------------
(Date) (City)
/s/Francis J. Farrell /s/C. Scott Boone
--------------------------- ------------------------
(Signature) (Signature)
SCHEDULE OF OTHER ASSETS
<TABLE>
<S> <C>
Accounts Receivable $326
Deferred Taxes 396
Other 129
-----
Total (same as Item 10) $851
SCHEDULE OF OTHER LIABILITIES
Accrued Income Taxes $1,738
Accrued Expenses & A/P 47
Accrued Pension & Benefits 771
Accrued Incentive Expense 23
All Other Liabilities 362
-----
Total (same as Item 14) $2,941
</TABLE>
5
<PAGE> 6
EXHIBIT 1
CERTIFICATE OF AMENDMENT
OF THE
ARTICLES OF INCORPORATION
OF
CHEMICAL TRUST COMPANY OF CALIFORNIA
The undersigned, Francis J. Farrell and Paula Oswald, certify that:
1. They are respectively a Vice President and an Assistant Secretary of
Chemical Trust Company of California (the "Corporation"), a California
corporation.
2. Article One of the articles of incorporation of the Corporation is
amended effective April 1, 1997 to read as follows:
One: The name of the corporation is:
CHASE TRUST COMPANY OF CALIFORNIA
3. The foregoing amendment of the articles of incorporation has been duly
approved by the board of directors of the Corporation at a meeting duly called
and held on March 27, 1997.
4. The foregoing amendment of articles of incorporation has been duly
approved by the unanimous written consent of the sole shareholder of
the Corporation pursuant to Section 603 of the California Corporations
Code.
Each of the undersigned declares under the penalty of perjury that the
matters set forth in this certificate are true and correct of his or her own
knowledge.
In witness whereof, the undersigned have executed this certificate at
San Francisco, California on March 26, 1997:
/s/ Francis J. Farrell
----------------------------------
Vice President
/s/ Paula Oswald
----------------------------------
Assistant Secretary
