SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 1998
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from to .
Commission file number 1-11415
AMERICAN STANDARD COMPANIES INC.
(Exact name of Registrant as specified in its charter)
Delaware 13-3465896
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One Centennial Avenue, P.O. Box 6820, Piscataway, NJ 08855-6820
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (732) 980-6000
Indicate by check mark whether the Registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
X Yes No
Indicate the number of shares outstanding of each of the issuer's
classes of common stock, as of the latest practicable date.
Common stock, $.01 par value, outstanding at
October 30, 1998 70,307,713
(shares)
<PAGE>
PART 1. FINANCIAL INFORMATION
Item 1. Financial Statements
American Standard Companies Inc. is a Delaware corporation organized in
March 1988, and has as its only investment all the outstanding common stock of
American Standard Inc. Hereinafter, "the Company" will refer to American
Standard Companies Inc. or to its subsidiary, American Standard Inc., as the
context requires.
The following summary statement of operations of the Company and
subsidiaries for the three months and nine months ended September 30, 1998 and
1997 has not been audited, but management believes that all adjustments,
consisting of normal recurring items, necessary for a fair presentation of
financial data for those periods have been included. Results for the three- and
nine-month periods of 1998 are not necessarily indicative of results for the
entire year.
<TABLE>
AMERICAN STANDARD COMPANIES INC. AND SUBSIDIARIES
UNAUDITED SUMMARY STATEMENT OF OPERATIONS
(In millions except share data)
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
1998 1997 1998 1997
---- ---- ----- -----
<S> <C> <C> <C> <C>
SALES $1,728 $1,519 $5,016 $4,469
------- ------ ------ ------
COST AND EXPENSES
Cost of sales 1,298 1,138 3,737 3,319
Selling and administrative expenses 282 236 829 730
Write-off of purchased research and
development - 90 - 90
Restructuring charge 35 - 35 -
Other expense (income) (1) 9 7 21
Interest expense 43 48 145 144
------- ------- ----- ----
1,657 1,521 4,753 4,304
INCOME (LOSS) BEFORE INCOME TAXES
AND EXTRAORDINARY ITEM 71 (2) 263 165
Income taxes 35 31 113 91
------- ------- ----- ----
INCOME (LOSS) BEFORE
EXTRAORDINARY ITEM 36 (33) 150 74
Extraordinary loss on retirement
of debt, net of tax - - 50 24
------ ------ ------ ----
NET INCOME (LOSS) $ 36 $ (33) $ 100 $ 50
====== ====== ====== ====
PER COMMON SHARE
Basic: Income (loss) before
extraordinary item $ .50 $ (.46) $ 2.08 $ .99
Extraordinary loss - - (.69) (.32)
------ ------- ------ -----
Net income (loss) $ .50 $ (.46) $ 1.39 $ .67
====== ======= ======- =====
Diluted: Income (loss) before
extraordinary item $ .49 $ (.46) $ 2.02 $ .96
Extraordinary loss - - (.67) (.31)
------ ------ ----- -----
Net Income (loss) $ .49 $ (.46) $ 1.35 $ .65
====== ======= ======- =====
Average number of outstanding
common shares
Basic 72,149,932 72,985,131 72,239,858 74,426,192
Diluted 74,207,253 72,985,131 74,442,546 76,903,567
<FN>
See accompanying notes
</FN>
</TABLE>
<PAGE>
<TABLE>
AMERICAN STANDARD COMPANIES INC. AND SUBSIDIARIES
UNAUDITED SUMMARY BALANCE SHEET
(Dollars in millions
except share data)
<CAPTION>
September 30, December 31,
1998 1997
---- ----
<S> <C> <C>
CURRENT ASSETS
Cash and cash equivalents $ 57 $ 29
Accounts receivable 1,032 831
Inventories
Finished products 298 255
Products in process 102 87
Raw materials 104 89
--- --
504 431
Other current assets 115 103
--- ---
TOTAL CURRENT ASSETS 1,708 1,394
FACILITIES, less accumulated depreciation;
Sept. 1998 - $683; Dec. 1997 - $578 1,210 1,139
GOODWILL 875 844
OTHER ASSETS 350 292
--- ---
TOTAL ASSETS $4,143 $3,669
====== ======
CURRENT LIABILITIES
Loans payable to banks $ 742 $ 718
Current maturities of long-term debt 170 30
Accounts payable 488 466
Accrued payrolls 225 180
Other accrued liabilities 591 447
--- ---
TOTAL CURRENT LIABILITIES 2,216 1,841
LONG-TERM DEBT 1,549 1,551
RESERVE FOR POSTRETIREMENT BENEFITS 470 438
OTHER LIABILITIES 447 449
--- ---
TOTAL LIABILITIES 4,682 4,279
STOCKHOLDERS' DEFICIT
Preferred stock, 2,000,000 shares
authorized, none issued and outstanding - -
Common stock $.01 par value, 200,000,000 shares
Authorized; 71,250,616 shares issued and
Outstanding in 1998; 71,962,713 in 1997 1 1
Capital surplus and other 593 587
Treasury Stock (343) (310)
Accumulated deficit (575) (675)
Foreign currency translation effects (215) (213)
---- ----
TOTAL STOCKHOLDERS' DEFICIT (539) (610)
---- -----
$4,143 $ 3,669
======= =======
<FN>
See accompanying notes
</FN>
</TABLE>
<PAGE>
Item1. Financial Statements (continued)
<TABLE>
AMERICAN STANDARD COMPANIES INC. AND SUBSIDIARIES
UNAUDITED CONSOLIDATED SUMMARY STATEMENT OF CASH FLOWS
(Dollars in millions)
<CAPTION>
Nine Months Ended
September 30,
1998 1997
---- ----
<S> <C> <C>
CASH PROVIDED (USED) BY:
OPERATING ACTIVITIES:
Income before extraordinary item $150 $74
Write-off of purchased in-process research and
development - 90
Depreciation 98 94
Amortization of goodwill and other intangibles 40 27
Restructuring charges 35 -
Non-cash interest 30 44
Non-cash stock compensation 4 10
Changes in assets and liabilities:
Accounts receivable (177) (92)
Inventories (64) (84)
Accounts payable and other accruals 140 54
Other assets and liabilities (22) 9
---- ----
Net cash provided by operating activities 234 226
---- ----
INVESTING ACTIVITIES:
Purchases of property, plant and equipment (156) (157)
Investments in affiliated companies (16) (1)
Acquisition of medical diagnostic businesses - ( 212)
Other (3) 5
---- ----
Net cash used by investing activities (175) (365)
---- ----
FINANCING ACTIVITIES:
Repurchases of common stock (42) (294)
Proceeds from issuance of long-term debt 1,011 399
Repayments of long-term debt, including
redemption premiums (971) (626)
Net change in revolving credit facility (10) 640
Net change in other short-term debt 8 11
Other (27) (8)
---- ----
Net cash provided (used) by financing activities (31) 122
---- ----
Effect of exchange rate changes on cash and
cash equivalents - (4)
---- ----
Net increase (decrease) in cash
and cash equivalents 28 (21)
Cash and cash equivalents at beginning
of period 29 60
---- ----
Cash and cash equivalents at end of period $ 57 $ 39
<FN>
==== ====
See accompanying notes
</FN>
</TABLE>
<PAGE>
AMERICAN STANDARD COMPANIES INC. AND SUBSIDIARIES
NOTES TO FINANCIAL STATEMENTS
Note 1. Restructuring Charges
In connection with a previously announced plan for a restructuring of its
European and North American plumbing operations, results for the third
quarter of 1998 include a restructuring charge of $35 million ($29 million
net of tax) related to the planned closure of two Plumbing Products' plants
in Europe. This charge includes $17 million of severance costs for
approximately 425 employees to be terminated and $18 million related
primarily to facility write-downs and lease cancellation. Closure of these
two facilities is expected to be completed by the end of 1998. The overall
restructuring program, which is designed to achieve lower product costs and
improve efficiency, is expected to result in charges of approximately $160 to
$185 million related to employee severance and consolidation of production
facilities. The Company expects to record the remaining charges in the fourth
quarter of 1998.
Note 2. Public Offering of Debt
In the first half of 1998, the Company completed public offerings of $1
billion principal amount of Senior Notes with interest rates ranging from
7-1/8% to 7-5/8% and maturity dates from 2003 to 2010. On June 1, 1998, the
Company used the net proceeds of these offerings (approximately $963 million,
net of underwriting discounts and interest rate hedge termination costs) to
redeem its 10-1/2% Senior Subordinated Discount Debentures and 9-7/8% Senior
Subordinated Notes. The total amount required to complete these redemptions,
including call premiums, was $954 million, net of the effect of the
settlement of certain interest rate swap transactions related to the Senior
Subordinated Discount Debentures. As a result of the redemptions, results for
the nine months ended September 30, 1998 include an extraordinary charge of
approximately $50 million (net of taxes), consisting of call premiums and the
write-off of unamortized debt issuance costs.
Note 3. Comprehensive Income
In the first quarter of 1998, the Company adopted Statement of Financial
Accounting Standards No. 130, Reporting Comprehensive Income. Total
comprehensive income (loss), consisting of net income or loss and foreign
currency translation effects, for the three months and nine months ended
September 30, 1998 was $26 million and $98 million, respectively, and for the
three months and nine months ended September 30, 1997 was $(37) million and
$11 million, respectively.
Note 4. Tax Matters
As described in Note 6 of Notes to Consolidated Financial Statements in the
Company's Annual Report on Form 10-K for the year ended December 31, 1997,
there are pending German tax issues for the years 1984 through 1990. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations -- Liquidity and Capital Resources."
Note 5. Earnings Per Share
The average number of outstanding shares of common stock used in computing
diluted earnings per share for the three months and nine months ended
September 30, 1998 included 2,057,321 and 2,202,688 average incremental
shares, respectively, for the assumed exercise of stock options. The nine
months ended September 30, 1997 included 2,477,375 incremental shares. The
third quarter of 1997 excluded incremental shares because of the net loss per
share.
Note 6. Impact of Recently Issued Accounting Standards
In June 1998, the Financial Accounting Standards Board issued Statement No.
133, Accounting for Derivative Instruments and Hedging Activities, which is
required to be adopted in years beginning after June 15, 1999. The Company's
use of derivative instruments and hedging activities is minimal, and
therefore management believes that the adoption of Statement No. 133 will not
have a significant effect on the Company's results of operations or financial
position.
<PAGE>
PART 1. FINANCIAL INFORMATION
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations
Overview
The Company's sales in the third quarter of 1998 increased 14% to
$1,728 million and operating income increased 4% to $162 million (excluding a
$35 million restructuring charge in the 1998 quarter and a $90 million write-off
of purchased in-process research and development in the 1997 quarter). Operating
income for the first nine months of 1998 was $489 million (excluding the
restructuring charge), an increase of 8% over the $452 million of operating
income in the first nine months of 1997 (excluding the write-off of purchased
in-process research and development).
<TABLE>
SUMMARY SEGMENT AND INCOME DATA
(Dollars in millions)
(Unaudited)
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
1998 1997 1998 1997
----- ----- ----- -----
<S> <C> <C> <C> <C>
Sales:
Air Conditioning Products $1,053 $ 919 $3,003 $2,684
Plumbing Products 387 352 1,129 1,062
Automotive Products 265 224 811 699
Medical Systems 23 24 73 24
----- ----- ----- -----
Total sales $1,728 $1,519 $5,016 $4,469
====== ====== ====== ======
Operating income (loss) before restructuring
charges and write-off of purchased
research and development:
Air Conditioning Products $108 $ 98 $308 $285
Plumbing Products 27 31 79 86
Automotive Products 33 31 117 94
Medical Systems (6) (5) (15) (13)
----- ----- ----- -----
162 155 489 452
Restructuring charges and write-off of
purchased research and development:
Plumbing Products restructuring charges (35) - (35) -
Medical Systems write-off of
purchased research and development - (90) - (90)
----- ----- ----- -----
(35) (90) (35) (90)
----- ----- ----- -----
Total operating income 127 65 454 362
Equity in net income of
unconsolidated joint ventures 9 3 21 9
Interest expense (43) (48) (145) (144)
Corporate and other expenses (22) (22) (67) (62)
----- ----- ----- -----
Income (loss) before income taxes
and extraordinary item $ 71 $ (2) $263 $165
==== ===== ==== ====
</TABLE>
<PAGE>
Results of Operations for the Third Quarter and First Nine Months of 1998
Compared with the Third Quarter and First Nine Months of
1997
The Company's sales in the third quarter of 1998 were $1,728 million,
an increase of $209 million, or 14% (with little effect from foreign exchange),
from $1,519 million in the third quarter of 1997. Sales increased 15% for Air
Conditioning Products, 10% for Plumbing Products and 18% Automotive Products
compared with the third quarter of 1997. Medical Systems contributed sales of
$23 million in the 1998 third quarter compared with $24 million in the prior
year period.
Operating income for the third quarter of 1998, excluding restructuring
charges of $35 million, was $162 million, an increase of $7 million, or 4% (with
little effect from foreign exchange), from $155 million in the third quarter of
1997 (excluding the $90 million write-off of purchased in-process research and
development). Operating income increased 10% for Air Conditioning Products and
6% for Automotive Products, and decreased 13% for Plumbing Products. Medical
Systems incurred an operating loss of $6 million compared with a loss of $5
million in the year-earlier quarter.
Sales for the first nine months of 1998 were $5,016 million, an
increase of $547 million, or 12% (15% excluding the unfavorable effects of
foreign exchange), from $4,469 million in the first nine months of 1997. The
increase reflected gains of 12% for Air Conditioning Products, 6% for Plumbing
Products, 16% for Automotive Products and sales for Medical Systems of $73
million for nine months in 1998 (compared with sales of $24 million for three
months in 1997 following the June 30, 1997 acquisition of the medical
diagnostics business). Operating income was $489 million for the first nine
months of 1998 (excluding the restructuring charges previously mentioned), an
increase of 8% (11% excluding the unfavorable effects of foreign exchange),
compared with $452 million in the first nine months of 1997 (excluding the
write-off of purchased in-process research and development). Operating income
increased 8% for Air Conditioning Products and 24% for Automotive Products but
declined 9% for Plumbing Products (1% excluding unfavorable foreign exchange
effects). Medical Systems incurred an operating loss of $15 million for the
first nine months of 1998 compared with an operating loss of $13 million for the
first nine months of 1997.
The following discussion of sales and operating income excludes the
effects of the restructuring charges for Plumbing Products in 1998 and the
write-off of purchased in-process research and development for Medical Systems
in 1997, as applicable.
Sales for Air Conditioning Products were $1,053 million for the third
quarter of 1998, an increase of 15% (16% excluding the unfavorable effects of
foreign exchange) from $919 million for the third quarter of 1997. Sales
increased 19% in the U.S. and 7% in international markets (excluding foreign
exchange effects). The U.S gain reflected a strong 26% increase in residential
product sales due to the effect of hotter than normal weather on the replacement
market as well as strong new construction. U.S. sales also benefited from
continued strength in commercial applied and unitary businesses and expanding
sales and service operations. International sales for the third quarter of 1998
increased principally because of higher volumes in Europe and Latin America,
offset partly by declines in China and other Far East countries. The applied
systems business was weakened by curtailments of large overseas construction
projects and competitive pricing pressures worldwide. Sales for Air Conditioning
Products for the first nine months of 1998 increased by 12% to $3,003 million
from $2,684 million in the first nine months of 1997, primarily for the reasons
cited for the third quarter increase, offset somewhat by the adverse effects of
a four-week strike in the first quarter of 1998 at the Lexington, Kentucky, air
handling facility.
<PAGE>
Operating income for Air Conditioning Products increased 10% (with
little effect from foreign exchange) to $108 million in the third quarter of
1998 from $98 million in the 1997 third quarter. This primarily reflected the
effects of hotter than normal weather on U.S. residential products and increased
volumes in the U.S commercial unitary business and in Latin America. Partly
offsetting these gains were declines in the applied business, principally
because of margin declines in Europe, a drop in Far East sales volume and
pricing pressures in the U.S. and Far East. Operating income for the first nine
months of 1998 increased 8% (9% excluding unfavorable foreign exchange effects)
to $308 million from $285 million in the first nine months of 1997. This gain
resulted essentially for the reasons mentioned for the third quarter increase,
except that operating income for the applied business increased for the
nine-month period, as first-half gains exceeded the third-quarter decline. In
addition, the first nine months of 1998 were adversely affected by the first
quarter strike at Lexington.
Sales for Plumbing Products increased 10% (11% excluding unfavorable
foreign exchange effects) to $387 million in the third quarter of 1998 from $352
million in the third quarter of 1997. The gain reflected an increase of 18% in
the U.S. and 8% in international sales excluding unfavorable foreign exchange
effects. Sales in the U.S. increased as a result of higher volume, primarily
through expanding major retailers, and continued gains in market share.
International sales increased primarily from moderate volume increases in Europe
and Latin America, and from the effect of including operations in China on a
consolidated basis since the fourth quarter of 1997 following the acquisition of
a majority interest in those operations. The gain in international sales was
partly offset by lower sales in the Far East (excluding China) as a result of
the economic adversity in the region. Sales of Plumbing Products for the first
nine months of 1998 increased 6% (11% excluding foreign exchange effects) to
$1,129 million from $1,062 million in the first nine months of 1997 due
principally to the same factors affecting the third quarter results.
Operating income for Plumbing Products decreased 13% (10% excluding the
unfavorable effects of foreign exchange) to $27 million for the third quarter of
1998 from $31 million for the third quarter of 1997, as declines in
international operations more than offset gains in the U.S. For international
operations, operating income decreased primarily because of the effects of
economic weakness in Asia (excluding China) and transitional costs associated
with implementing the low-cost sourcing program in Europe. Those decreases were
offset partly by higher volume in Latin America and the effect of consolidating
the China plumbing operations. In the U.S., operating income improved because of
higher sales volume. Operating income for the first nine months of 1998
decreased by 8% (1% excluding foreign exchange effects) from the 1997 period,
primarily for the reasons mentioned for the third quarter.
Sales for Automotive Products for the third quarter of 1998 increased
18% (16% excluding the favorable effects of foreign exchange) to $265 million
from $224 million in the third quarter of 1997. This increase resulted primarily
from higher volume, as unit volume of truck and bus production in Western Europe
increased 21% over the third quarter of 1997. In addition, sales increased
because of higher product content per vehicle on new model introductions
launched in 1997, increased shipments of anti-lock braking systems (ABS) to the
Company's U.S. joint venture and improved trailer business in Europe. The
increased sales in the U.S. reflected the phase-in of regulations requiring ABS
on all new heavy-duty trucks and trailers, together with an increased level of
heavy truck production. These gains were partly offset by a volume decline in
Brazil. Sales of Automotive Products for the first nine months of 1998 increased
16% (19% excluding the unfavorable effects of foreign exchange) to $811 million
from $699 million in the first nine months of 1997, primarily for the reasons
cited for the third quarter.
Operating income for Automotive Products for the third quarter of 1998
was $33 million, an increase of 6% (3% excluding the favorable effects of
foreign exchange) from $31 million in the third quarter of 1997. This increase
reflected the higher sales volume in Europe and to the U.S., offset partly by
weaker results in Brazil and increased development and maintenance costs.
Operating income for Automotive Products for the first nine months of 1998 was
$117 million, an increase of 24% (29% excluding the unfavorable effects of
foreign exchange) from $94 million in the first nine months of 1997, principally
from the increased sales volume.
<PAGE>
Medical Systems sales decreased $1 million in the third quarter of 1998
to $23 million, reflecting declining markets. The operating loss was $6 million
in the third quarter of 1998 compared with a $5 million loss in the 1997 third
quarter, primarily reflecting the declining markets and increased development
activity, including efforts to obtain U.S. and European regulatory approvals of
new diagnostic products and tests. Sales for Medical Systems for the first nine
months of 1998 were $73 million compared with $24 million for the nine months of
1997, primarily reflecting the acquisition of the medical diagnostics business
in June 1997. The operating loss for the first nine months of 1998 was $15
million compared with an operating loss of $13 million for the 1997 period,
primarily for the reasons cited for the third quarter.
Financial Review
The higher equity in earnings of unconsolidated joint ventures in the
third quarter of 1998 principally reflects the growth of Automotive Products'
U.S. joint venture with Meritor Automotive Inc. Corporate and other expenses
were essentially unchanged. Interest expense decreased $5 million in the third
quarter of 1998 compared to the year-earlier quarter as a result of lower
overall interest rates achieved through refinancings completed in the first half
of 1998 as described below.
Income taxes for the nine months ended September 30, 1998 reflect an
estimated effective income tax rate of 40% of pretax income (excluding
restructuring charges) compared with an effective rate for the 1997 period of
36% of pretax income (excluding the write-off of purchased in-process research
and development). The lower effective tax rate in 1997 resulted from the
utilization of certain previously unrecognized tax benefits. No similar benefits
are available in 1998. The income tax provision for the third quarter of 1998
was $41 million, or 39.1% of pretax income excluding restructuring charges,
compared with an effective rate of 35.3% of pretax income (excluding the
write-off of purchased in-process research and development) in the third quarter
of 1997. The effective rate in the third quarter of 1998 reflects the
year-to-date adjustment to 40% from the 40.5% rate used in the first half of the
year.
On June 1, 1998, the Company redeemed its 10-1/2% Senior Subordinated
Discount Debentures and its 9-7/8% Senior Subordinated Notes with the proceeds
of offerings of $1 billion principal amount of Senior Notes as described below.
As a result of these redemptions, results for the nine months ended September
30, 1998 included an extraordinary charge of $50 million, net of income taxes,
attributable to related call premiums and the write-off of unamortized debt
issuance costs. The nine months ended September 30, 1997, also included an
extraordinary charge of $24 million, net of income taxes, related to the
redemption of the Company's 11-3/8% Senior Debentures and retirement of debt
upon completion of the Company's 1997 Credit Agreement.
<PAGE>
Liquidity and Capital Resources
Net cash provided by operating activities, after cash interest paid of
$98 million, was $234 million for the first nine months of 1998, compared with
net cash provided of $226 million for the similar period of 1997. The $8 million
increase resulted primarily from higher earnings (excluding the restructuring
charges from 1998 and the write-off of purchased research and development from
1997). The Company made capital expenditures of $172 million for the first nine
months of 1998, including $16 million of investments in affiliated companies,
compared with capital expenditures of $158 million in the first nine months of
1997, including $1 million of investments in affiliated companies (excluding the
acquisition of the medical diagnostics business).
In the first half of 1998, the Company completed public offerings of $1
billion principal amount of Senior Notes with interest rates ranging from 7-1/8%
to 7-5/8% and maturity dates from 2003 to 2010. On June 1, 1998, the Company
used the net proceeds of these offerings (approximately $963 million, net of
underwriting discounts and interest rate hedge costs) to redeem its 10-1/2%
Senior Subordinated Discount Debentures and 9-7/8% Senior Subordinated Notes.
The total amount required to complete these redemptions, including call
premiums, was $954 million, net of the effect of the settlement of certain
interest rate swap transactions related to the Senior Subordinated Discount
Debentures. As a result of the redemptions, the Company expects to reduce its
annual net interest expense on the debt refinanced by approximately $20 million
before taxes.
On July 9, 1998, the Company's Board of Directors approved the
repurchase of up to $300 million of the Company's common stock, not to exceed
$100 million per year, during the three year period ending July 2001. During the
first nine months of 1998, the Company repurchased 1.4 million shares of its
common stock for $48 million, of which 1.2 million shares were purchased for $40
million in the third quarter pursuant to this plan.
In January 1997 the Company entered into the 1997 Credit Agreement.
This agreement, which requires no repayment of principal prior to its expiration
in 2002, provides the Company senior secured credit facilities aggregating $1.75
billion as follows: (a) a $750 million U.S. dollar revolving credit facility and
a $625 million multi-currency revolving credit facility (the "Revolving
Facilities"), which by their nature are short-term, and (b) a $375 million
multi-currency periodic access credit facility. Up to $500 million of the
Revolving Facilities may be used to issue letters of credit. The 1997 Credit
Agreement and certain other American Standard Inc. debt instruments contain
restrictive covenants and other requirements with which the Company believes it
is currently in compliance.
At September 30, 1998, the Company had borrowings of $688 million
outstanding under the Revolving Facilities. There was $626 million available
under the Revolving Facilities after reduction for borrowings and for $61
million of letters of credit usage. The Company's foreign subsidiaries had $75
million available at September 30, 1998, under overdraft facilities that can be
withdrawn by the banks at any time. In addition, the Company's operations in
China have $36 million available under bank credit facilities after reduction
for borrowings of $10 million and letters of credit usage of $11 million.
The Company has previously disclosed that the restructuring of its
European and North American plumbing operations would entail a special charge of
approximately $160 to $185 million related to employee severance and
consolidation of production facilities. In the third quarter of 1998 the Company
recorded a restructuring charge of $35 million ($29 million net of tax) related
to the announced closure of two European Plumbing Products facilities. The
Company expects to record the remaining charges in the fourth quarter of 1998.
<PAGE>
As described in Note 6 of Notes to Consolidated Financial Statements in
the Company's Annual Report on Form 10-K for the year ended December 31, 1997,
there are pending German Tax issues for the years 1984 through 1990. There has
been no change in the status of these issues since that report was filed.
Year 2000 Readiness Disclosure
The following is a Year 2000 Readiness Disclosure in accordance with
the Year 2000 Information and Readiness Disclosure Act.
For the past several years the Company has been in the process of
converting most of its computer applications and systems worldwide to client
server technology and in conjunction therewith has been installing software that
is Year 2000 compliant. For other systems, software that is Year 2000 compliant
is being installed. Most of these initiatives would have been undertaken
irrespective of any Year 2000 considerations. Substantial progress has been made
on these installations and many of the individual projects have been completed.
Total completion of these initiatives is expected by mid-1999.
The Company has established a comprehensive Year 2000 initiative,
having appointed teams for each operating group worldwide, coordinated by a team
leader reporting directly to the business group leader, and in some cases
employing third-party experts. These teams are responsible for assuring that all
core business systems will be fully functional for the year 2000, including
transactions with customers, suppliers, financial institutions and other third
parties. This evaluation includes the software installed in the projects
referred to above that were undertaken for business reasons other than Year 2000
considerations. In general, a coordinated approach was undertaken by the
Company's operating groups worldwide, with "best practices" shared among
groups. The principal phases of the initiative include: inventorying affected
technology and systems, including third-party relationships and imbedded
software in manufacturing systems; assessing the impact of Year 2000 issues and
prioritizing tasks based on size and perceived risk; replacement or modification
of non-compliant technology; testing; and developing contingency plans. The
Company is also reviewing its new and previously sold products that incorporate
equipment controls to identify and resolve any problems that such products may
have as a result of the arrival of the year 2000.
The Company has initiated communications with significant suppliers,
customers and other third parties to identify and assess Year 2000 risks and to
develop solutions that will minimize the impact on the Company. This process is
incomplete, but the Company expects timely to resolve any problems with critical
third parties or to develop contingency plans, and management does not believe
that third-party problems will have a material adverse effect on the Company's
operations. However, no assurance can be given that third party suppliers or
others on whom the Company relies will address such issues successfully.
The several phases of the project are in varying degrees of completion,
and management believes that substantial and satisfactory progress has been made
towards the objective of having all business systems Year 2000 compliant by
mid-1999. Overall, management estimates that the project is 70% complete. In
circumstances where there is substantial risk that any important objectives will
not be met, the Company will dedicate additional resources or develop and
implement appropriate contingency plans.
The Company's estimated cost to become Year 2000 compliant is
approximately $17 million, of which $7 million had been expended through
September 30, 1998. The costs of implementing client server technology and other
software changes referred to in the first paragraph of this section are not
included in these cost estimates. In addition, these costs are generally not
incremental to existing information technology budgets, as existing internal
resources were redeployed. All costs are being funded from operating cash flows
or other resources available to the Company. Total costs, anticipated impact and
the expected dates to complete the various phases of the project are based on
management's best estimates using information currently available and certain
<PAGE>
assumptions about future events. However, no assurance can be given that actual
results will be consistent with such estimates and, therefore, actual costs,
impacts and completion dates could differ materially from those plans. Based
upon information currently available and current estimates, management does not
believe that the Company's costs to become Year 2000 compliant will have a
material adverse effect on the Company's financial position, results of
operations or cash flows in future periods.
Comments in this Quarterly Report on Form 10-Q contain certain
forward-looking statements that are based on management's good faith
expectations and belief concerning future developments. Actual results may
differ materially from these expectations as a result of many factors, relevant
examples of which are set forth in the Company's 1997 Annual Report on Form 10-K
and in the "Management's Discussion and Analysis" section of the Company's 1997
Annual Report to Shareholders and Quarterly Reports on Form 10-Q.
PART II. OTHER INFORMATION
Item 1. Legal Proceedings.
For a discussion of German tax issues see "Management's
Discussion and Analysis of Financial Condition and Results of
Operations -- Liquidity and Capital Resources" in Part I of this
report which is incorporated herein by reference.
Item 5. Other Information
Stockholder Proposals. The Company's Annual Meeting of
Stockholders ("Annual Meeting") is scheduled to be held on Thursday,
May 6, 1999. In order for any stockholder proposal to be eligible for
inclusion in the Company's proxy statement relating to the Annual
Meeting, such proposal must be received by the Company at its
executive offices not later than December 7, 1998. In accordance with
the Company's By-laws, in order for any matter proposed by a
stockholder to be considered at the Annual Meeting, such proposal
must be received by the Company at its executive offices not later
than March 17, 1999 (50 days prior to the meeting). In addition to
the foregoing requirements relating to timely submission of
proposals, the eligibility of stockholders to submit proposals to be
considered at the Annual Meeting and determinations concerning the
appropriateness of the content of any proposal submitted to the
Company will be governed by the provisions of Rule 14a-8 under the
Securities Exchange Act of 1934, as amended.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits. The exhibits listed on the accompanying Index to
Exhibits are filed as part of this quarterly report on Form 10-Q.
(b) Reports on Form 8-K. During the quarter ended September 30, 1998,
the Company filed no Current Reports on Form 8-K.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the Company has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
AMERICAN STANDARD COMPANIES INC.
By:/s/ G. Ronald Simon
Vice President and Controller
(Principal Accounting Officer)
November 13, 1998
<PAGE>
<TABLE>
AMERICAN STANDARD COMPANIES INC..
INDEX TO EXHIBITS
<CAPTION>
(The File Number of the Registrant, American Standard Companies Inc. is 1-11415)
<S> <C>
Exhibit No. Description
3 (i) Restated Certificate of Incorporation of American Standard
Companies Inc.
(ii) Amended By-laws of American Standard Companies Inc.
4.1 Indenture, dated as of Jan. 15, 1998, among American Standard, Inc.,
American Standard Companies Inc. and
The Bank of New York, Trustee
4.2 Third Supplemental Indenture dated as of April 13, 1998 to
the Indenture dated as of January 15, 1998 among
American Standard Inc., American Standard Companies
Inc. and The Bank of New York relating to the 7-3/8%
Senior Notes due 2005.
4.3 Third Amendment dated as of August 7,
1998 to the Amended and Restated
Credit Agreement dated as of January
31, 1997 among American Standard
Companies Inc., American Standard
Inc., certain subsidiaries of
American Standard Inc., the financial
institutions party thereto and the
Chase Manhattan Bank, as
Administrative Agent.
(27) Financial Data Schedule
</TABLE>
RESTATED
CERTIFICATE OF INCORPORATION
OF
AMERICAN STANDARD COMPANIES INC.
American Standard Companies Inc., a corporation organized and existing
under the laws of the State of Delaware, hereby certifies as follows:
1. The Corporation was incorporated as ASI Holding Corporation and its
original Certificate of Incorporation was filed with the Secretary of State of
the State of Delaware on March 15, 1988.
2. On April 4, 1990, the Board of Directors of the Corporation unanimously
adopted a resolution authorizing the amendment of the Corporation's Certificate
of Incorporation in accordance with Section 242 of the General Corporation Law
of the State of Delaware. The amendment increased the authorized number of
shares of the Corporation's common stock. In lieu of a meeting and vote of the
stockholders of the Corporation, the Corporation's majority stockholder, by less
than unanimous written consent dated April 13, 1990, approved the amendment of
the Certificate of Incorporation and the taking of the actions contemplated
thereby, and such consent was filed with the minutes of the proceedings of
stockholders of the Corporation. Notice of such action was given to all
stockholders who did not consent in writing, all in accordance with the
provisions of Section 228 of the General Corporation Law of the State of
Delaware. The Certificate of Amendment was filed with the Secretary of State of
the State of Delaware on April 19, 1990.
<PAGE>
3. At a meeting duly held on December 5, 1991, the Board of Directors of
the Corporation adopted a resolution authorizing the amendment of the
Corporation's Certificate of Incorporation in accordance with Section 242 of the
General Corporation Law of the State of Delaware. The amendment decreased the
authorized number of shares of the Corporation's common stock. In lieu of a
meeting and vote of the stockholders of the Corporation, the Corporation's
majority stockholder, by less than unanimous written consent dated December 6,
1991, approved the amendment of the Certificate of Incorporation and the taking
of the actions contemplated thereby, and such consent was filed with the minutes
of the proceedings of stockholders of the Corporation. Notice of such action was
given to all stockholders who did not consent in writing, all in accordance with
the provisions of Section 228 of the General Corporation Law of the State of
Delaware. The Certificate of Amendment was filed with the Secretary of State of
the State of Delaware on December 20, 1991. A Certificate of Correction was
filed with the Secretary of State of the State of Delaware on January 3, 1992,
indicating the Certificate of Amendment had incorrectly stated that the adoption
of the resolution had been by unanimous written consent of the Board of
Directors of the Corporation.
4. At a meeting duly held on November 2, 1994, the Board of Directors of
the Corporation adopted a resolution authorizing the amendment of the
Corporation's Certificate of Incorporation in accordance with Section 242 of the
General Corporation Law of the State of Delaware. The amendment changed the name
of the Corporation and required or permitted indemnification of Directors,
officers, employees and agents in accordance with Delaware law. In lieu of a
meeting and vote of the stockholders of the Corporation, the Corporation's
majority stockholder, by less than unanimous written consent dated November 2,
1994, approved the amendment of the Certificate of Incorporation and the taking
of the actions contemplated thereby, and such consent was filed with the minutes
of the proceedings of stockholders of the Corporation. Notice of such action was
given to all stockholders who did not consent in writing, all in accordance with
the provisions of Section 228 of the General Corporation Law of the State of
Delaware. The Certificate of Amendment was filed with the Secretary of State of
the State of Delaware on November 9, 1994.
<PAGE>
5. At a meeting duly held on December 1, 1994, the Board of Directors of
the Corporation adopted a resolution authorizing the amendment of the
Corporation's Certificate of Incorporation in accordance with Section 242 of the
General Corporation Law of the State of Delaware. The amendment increased the
authorized number of shares of the Corporation's common stock, provided for the
issuance of up to 2,000,000 shares of preferred stock of the Corporation, having
such terms as the Board of Directors may determine, and provided for other
matters relating to such common stock and preferred stock. In lieu of a meeting
and vote of the stockholders of the Corporation, the Corporation's majority
stockholder, by less than unanimous written consent dated December 1, 1994,
approved the amendment of the Certificate of Incorporation and the taking of the
actions contemplated thereby, and such consent was filed with the minutes of the
proceedings of stockholders of the Corporation. Notice of such action was given
to all stockholders who did not consent in writing, all in accordance with the
provisions of Section 228 of the General Corporation Law of the State of
Delaware. The Certificate of Amendment was filed with the Secretary of State of
the State of Delaware on December 5, 1994.
6. At a meeting duly held on January 4, 1995, the Board of Directors of the
Corporation adopted a resolution authorizing the amendment and restatement of
the Corporation's Certificate of Incorporation as set forth herein in accordance
with the provisions of Sections 242 and 245 of the General Corporation Law of
the State of Delaware. In lieu of a meeting and vote of the stockholders of the
Corporation, the Corporation's majority stockholder, by less than unanimous
written consent dated January 4, 1995, approved the amendment and restatement of
the Corporation's Certificate of Incorporation and the taking of the actions
contemplated thereby, and such consent was filed with the minutes of the
proceedings of stockholders of the Corporation. Notice of such action was given
to all stockholders who did not consent in writing, all in accordance with the
provisions of Section 228 of the General Corporation Law of the State of
Delaware. The Restated Certificate of Incorporation so approved was filed with
the Secretary of State of the State of Delaware on January 24, 1995.
7. At a meeting duly held on March 5, 1998, the Board of Directors of the
Corporation adopted a resolution authorizing the amendment and restatement of
the Corporation's Restated Certificate of Incorporation as set forth herein in
accordance with the provisions of Sections 242 and 245 of the General
Corporation Law of the State of Delaware. At the Annual Meeting of Stockholders
of the Corporation, held on May 7, 1998, by the vote of more than a majority of
the shares of the Corporation's outstanding common stock, the Corporation's
stockholders approved the amendment and restatement of the Corporation's
Restated Certificate of Incorporation as set forth herein.
<PAGE>
8. Pursuant to Sections 242 and 245 of the General Corporation Law of the
State of Delaware, this Restated Certificate of Incorporation amends and
restates the provisions of the Restated Certificate of Incorporation of the
Corporation. The amendments have the effect of (i) removing certain obsolete
provisions; (ii) making a clarifying change to article SEVENTH conforming to the
Corporation's Amended By-laws and (iii) making such other changes as are proper
under the General Corporation Law of the State of Delaware and deemed necessary
or appropriate by the Board of Directors.
9. The text of the Restated Certificate of Incorporation as heretofore
amended is hereby amended and restated to read in its entirety as follows:
FIRST: The name of the Corporation is American Standard Companies Inc.
<PAGE>
SECOND: The Corporation's registered office in the State of Delaware is at
Corporation Trust Center, 1209 Orange Street in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
THIRD: The nature of the business of the Corporation is to engage in any
lawful act or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware.
FOURTH: (a) The total number of shares of stock which the Corporation shall
have authority to issue is 200,000,000 shares of common stock, par value $.01
per share (the "Common Stock"), and 2,000,000 shares of preferred stock, par
value $.01 per share (the "Preferred Stock").
(b) Each holder of Common Stock shall be entitled to one vote for each
share of Common Stock held of record by such holder and shall be entitled to
vote with respect to all matters as to which a stockholder of a Delaware
corporation would be entitled to vote.
(c) The Preferred Stock may be issued at any time and from time to time in
one or more series. The Board of Directors is hereby authorized to provide for
the issuance of shares of Preferred Stock in series and, by filing a certificate
of designation pursuant to the applicable provisions of the General Corporation
Law of the State of Delaware (hereinafter referred to as a "Preferred Stock
Certificate of Designation"), to establish from time to time the number of
shares to be included in each such series, and to fix the designation, powers,
preferences and rights of shares of each such series and the qualifications,
limitations and restrictions thereof.
<PAGE>
The authority of the Board of Directors with respect to each series of
Preferred Stock shall include, but not be limited to, determination of the
following:
(i) the designation of the series, which may be by distinguishing
number, letter or title;
(ii) the number of shares of the series, which number the Board of
Directors may thereafter (except where otherwise provided in the applicable
Preferred Stock Certificate of Designation) increase or decrease (but not
below the number of shares thereof then outstanding);
(iii) whether dividends, if any, shall be cumulative or noncumulative
and the dividend rate of the series;
(iv) the dates on which dividends, if any, shall be payable;
(v) the redemption rights and price or prices, if any, for shares of
the series;
(vi) the terms and amount of any sinking fund provided for the
purchase or redemption of shares of the series;
(vii) the amounts payable on shares of the series in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the
affairs of the Corporation;
(viii) whether the shares of the series shall be convertible or
exchangeable into shares of any other class or series, or any other
security, of the Corporation or any other corporation, and, if so, the
specification of such other class or series or such other security, the
conversion or exchange price or prices or rate or rates, any adjustments
thereof, the date or dates as of which such shares shall be convertible or
exchangeable and all other terms and conditions upon which such conversion
or exchange may be made;
<PAGE>
(ix) restrictions on the issuance of shares of the same series or of
any other class or series; and
(x) the voting rights, if any, of the holders of shares of the series.
(d) The Common Stock shall be subject to the express terms of the
Preferred Stock and any series thereof.
(e) Except as may be required by law or as provided in this Restated
Certificate of Incorporation or in a Preferred Stock Certificate of
Designation, the Common Stock shall have the exclusive right to vote for
the election of Directors and for all other purposes, and holders of
Preferred Stock shall not be entitled to vote on any matter or receive
notice of any meeting of stockholders.
(f) The Corporation shall be entitled to treat the person in whose
name any share of its stock is registered as the owner thereof for all
purposes and shall not be bound to recognize any equitable or other claim
to, or interest in, such share on the part of any other person, whether or
not the Corporation shall have notice thereof, except as expressly provided
by applicable law.
FIFTH: The Board of Directors is hereby authorized to create and
issue, whether or not in connection with the issuance and sale of any of
its stock or other securities or property, and to retain outstanding,
rights entitling the holders thereof to purchase from the Corporation
shares of stock or other securities of the Corporation or any other
corporation. The times at which and the terms upon which such rights are to
be issued will be determined by the Board of Directors and set forth in the
contracts or instruments that evidence such rights. The authority of the
Board of Directors with respect to such rights shall include, but not be
limited to, determination of the following:
<PAGE>
(a) The initial purchase price per share or other unit of the stock or
other securities or property to be purchased upon exercise of such rights.
(b) Provisions relating to the times at which and the circumstances
under which such rights may be exercised or sold or otherwise transferred,
either together with or separately from, any other stock or other
securities of the Corporation.
(c) Provisions which adjust the number or exercise price of such
rights, or amount or nature of the stock or other securities or property
receivable upon exercise of such rights, in the event of a combination,
split or recapitalization of any stock of the Corporation, a change in
ownership of the Corporation's stock or other securities or any portion
thereof or a reorganization, merger, consolidation, sale of assets or other
occurrence relating to the Corporation or any stock of the Corporation, and
provisions restricting the ability of the Corporation to enter into any
such transaction absent an assumption by the other party or parties thereto
of the obligations of the Corporation under such rights.
(d) Provisions which deny the holder of a specified percentage of the
outstanding stock or other securities of the Corporation, or having other
specified characteristics or status, the right to exercise such rights
and/or cause the rights held by such holder to become void.
(e) Provisions which permit the Corporation to redeem and exchange
such rights.
(f) The appointment of a rights agent with respect to such rights.
SIXTH: In furtherance and not in limitation of the powers conferred
upon it by law, the Board of Directors shall have the power without the
assent or vote of the stockholders to adopt, amend, alter or repeal the
Amended By-Laws of the Corporation, except to the extent that the Amended
By-Laws or this Restated Certificate of Incorporation otherwise provide.
<PAGE>
SEVENTH: (a) The business and affairs of the Corporation shall be
managed by or under the direction of its Board of Directors, which may
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by law or by this Restated Certificate of Incorporation
directed or required to be exercised or done by the stockholders.
(b) The number of Directors constituting the initial Board of
Directors shall be eleven (11) and thereafter the number of Directors shall
be as set forth in or pursuant to the Amended By-Laws of the Corporation,
but shall not be more than twenty-one (21). The Board of Directors shall be
divided into three classes, designated Classes I, II and III, the number of
directorships in each of which Classes shall be as nearly equal in number
as possible. At the annual meeting of stockholders in 1995, Directors of
Class I were elected for a term expiring at the 1996 annual meeting of
stockholders, Directors of Class II were elected for a term expiring at the
1997 annual meeting of stockholders and Directors of Class III were elected
for a term expiring at the 1998 annual meeting of stockholders. At each
succeeding annual meeting of stockholders, the respective successors of the
Directors whose terms are then expiring shall be elected for terms expiring
at the annual meeting of stockholders held in the third succeeding year.
Vacancies in the Board of Directors may be filled as provided in the
Amended By-Laws. If the number of Directors is changed, any increases or
decreases shall be apportioned among the Classes so as to attain or
maintain in each Class a number of directors as nearly equal as reasonably
possible. The holders of a majority of the shares then entitled to vote at
an election of Directors may remove any Director or the entire Board of
Directors, but only for cause. Notwithstanding the foregoing, the election,
term, removal and filling of vacancies with respect to Directors elected
separately by the holders of one or more series of Preferred Stock shall
not be governed by this Article SEVENTH, but rather shall be as provided
for in the Preferred Stock Certificate of Designation creating and
establishing such series of Preferred Stock.
<PAGE>
(c) Advance notice of nominations by stockholders for the election of
Directors, and of stockholder proposals regarding action to be taken at any
meeting of stockholders, shall be given in the manner and to the extent
provided in the Amended By-Laws of the Corporation.
EIGHTH: (a) A Director shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director; provided that this provision shall not
eliminate or limit the liability of a Director (i) for any breach of his
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 the law, (iii) under Section 174 of the General
Corporation Law of the State of Delaware, or (iv) for any transaction from
which the Director derives an improper personal benefit. If the General
Corporation Law of the State of Delaware is amended after the filing of
this Restated Certificate of Incorporation to authorize corporate action
further eliminating or limiting the personal liability of Directors, then
the liability of a Director of the Corporation shall be eliminated or
limited to the fullest extent permitted by the General Corporation Law of
the State of Delaware, as so amended.
Any repeal or modification of the foregoing paragraph by the
stockholders of the Corporation shall not adversely affect any right or
protection of a Director of the Corporation existing in respect of any act
or omission occurring prior to the time of such repeal or modification.
(b) The Corporation shall indemnify, to the fullest extent now or
hereafter permitted by the General Corporation Law of the State of
Delaware, 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 or she is or was or has agreed to become a Director or officer
of the Corporation, or is or was serving or has agreed to serve at the
request of the Corporation as a Director or officer of another corporation,
partnership, joint venture, trust or other enterprise, or by reason of any
action alleged to be taken or omitted in such capacity, and may to the same
<PAGE>
extent indemnify any person who was or is a party or is threatened to be
made a party to such an action, suit or proceeding by reason of the fact
that he or she is or was or has agreed to become an employee or agent of
the Corporation, or is or was serving or has agreed to serve at the request
of the Corporation as an employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement in connection with such action, suit or proceeding or any appeal
therefrom.
NINTH: A Director of the Corporation, in determining what he
reasonably believes to be in the best interests of the Corporation, shall
consider the interests of the Corporation's stockholders and, in his
discretion, may consider any of the following:
(b) The interests of the Corporation's employees, suppliers, creditors
and customers;
(c) The state of the U.S. and global economy;
(d) Community and societal interests; and
(e) The long-term as well as short-term interests of the Corporation
and its stockholders, including the possibility that these interests may be
best served by the continued independence of the Corporation.
TENTH: Election of Directors at an annual or special meeting of
stockholders need not be by written ballot unless the Amended By-Laws of
the Corporation shall so provide.
<PAGE>
ELEVENTH: Cumulative voting for the election of Directors shall not be
permitted.
TWELFTH: Any action required or permitted to be taken by the
stockholders of the Corporation must be effected at a duly called annual or
special meeting of stockholders of the Corporation, and the ability of the
stockholders to consent in writing to the taking of any action is hereby
specifically denied. Except as otherwise required by law, special meetings
of stockholders of the Corporation may be called only by (i) the Chief
Executive Officer of the Corporation, (ii) the Board of Directors pursuant
to a resolution adopted by a majority of the total number of authorized
Directors
THIRTEENTH: The Corporation reserves the right at any time and from
time to time to amend, alter, change or repeal any provision contained in
this Restated Certificate of Incorporation, and any other provisions
authorized by the laws of the State of Delaware at the time in force may be
added or inserted, in the manner now or hereafter prescribed herein or by
applicable law, and all rights, preferences and privileges of whatsoever
nature conferred upon stockholders, Directors or any other persons
whomsoever by and pursuant to this Restated Certificate of Incorporation in
its present form or as hereafter amended are granted subject to the right
reserved in this Article THIRTEENTH; provided, however, that any amendment
or repeal of Article EIGHTH of this Restated Certificate of Incorporation
shall not adversely affect any right or protection existing hereunder
immediately prior to such amendment or repeal; and provided, further, that
Articles FIFTH, SIXTH, SEVENTH, EIGHTH, NINTH, ELEVENTH, TWELFTH and
THIRTEENTH of this Restated Certificate of Incorporation shall not be
amended, altered, changed or repealed without the affirmative vote of the
holders of at least 65% of the then outstanding stock of the Corporation
entitled to vote generally in the election of Directors.
<PAGE>
IN WITNESS WHEREOF, American Standard Companies Inc. has caused this
Restated Certificate of Incorporation to be signed by Richard A. Kalaher
its Vice President, General Counsel and Secretary, and attested by
Frederick C. Paine its Assistant Secretary, this 2nd day of September 1998.
AMERICAN STANDARD COMPANIES INC.
-------------------------------
Vice President, General Counsel
and Secretary
ATTEST:
By: _____________________
Assistant Secretary
STATE OF NEW JERSEY)
)SS:
COUNTY OF MIDDLESEX)
On the 2nd day of September, 1998 before me personally came Richard A.
Kalaher and Frederick C. Paine to me known, who, being by me duly sworn,
did depose and say: That they reside in Mendham, New Jersey and Lebanon,
New Jersey, respectively; that they are Vice President, General Counsel and
Secretary, and Assistant Secretary, respectively, of American Standard
Companies Inc., the corporation described in and which executed the
foregoing instrument; and that they are authorized to sign their names
thereto.
-----------------------
Notary Public
AMERICAN STANDARD COMPANIES INC.
AMENDED BY-LAWS
As Adopted on January 4, 1995,
as Amended on December 5, 1996,
as Amended on March 24, 1997 (effective May 1, 1997),
and as Amended on March 5, 1998
<PAGE>
AMERICAN STANDARD COMPANIES INC.
AMENDED BY-LAWS
TABLE OF CONTENTS
<TABLE>
<CAPTION>
ARTICLE I
STOCKHOLDERS
<S> <C>
PAGE
----
Section 1.1. Annual Meetings.............................................. 1
Section 1.2. Special Meetings............................................. 1
Section 1.3. Notice of Meetings; Waiver................................... 1
Section 1.4. Quorum....................................................... 2
Section 1.5. Voting....................................................... 2
Section 1.6. Voting by Ballot............................................. 3
Section 1.7. Adjournment.................................................. 3
Section 1.8. Proxies...................................................... 3
Section 1.9. Organization; Procedure...................................... 4
Section 1.10. Stockholder Proposals and Nominations
of Directors. . . ................... . . . . . . . . . . 4
Section 1.11. Inspectors of Elections . . ...................... . . . . . 5
Section 1.12. Opening and Closing of Polls. .................... . . . . . 6
Section 1.13. Consent of Stockholders in
Lieu of Meeting......................................... 6
ARTICLE II
BOARD OF DIRECTORS............................. 7
Section 2.1. General Powers. . . . . . .. . . . . . . . . . . . . . . . . 7
Section 2.2. Number and Term of Office.................................... 7
Section 2.3. Election of Directors........................................ 7
Section 2.4. Annual and Regular Meetings.................................. 8
Section 2.5. Special Meetings; Notice..................................... 8
Section 2.6. Quorum; Voting................................................ 9
Section 2.7. Adjournment................................................... 9
Section 2.8. Action Without a Meeting...................................... 9
Section 2.9. Organization.................................................. 9
Section 2.10. Regulations; Manner of Acting................................ 9
Section 2.11. Action by Telephonic Communications.......................... 9
Section 2.12. Resignations................................................. 10
Section 2.13. Removal of Directors......................................... 10
Section 2.14. Vacancies and Newly Created
Directorships.................................. 10
Section 2.15. Compensation................................................. 10
Section 2.16. Reliance on Accounts and Reports, etc........................ 11
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ARTICLE III
<S> <C>
EXECUTIVE COMMITTEE AND OTHER COMMITTEES.............. 11
Section 3.1. How Constituted.............................................. 11
Section 3.2. Powers....................................................... 11
Section 3.3. Proceedings.................................................. 12
Section 3.4. Quorum and Manner of Acting.................................. 12
Section 3.5. Action by Telephonic Communications.......................... 13
Section 3.6. Absent or Disqualified Members............................... 13
Section 3.7. Resignations................................................. 13
Section 3.8. Removal...................................................... 13
Section 3.9. Vacancies.................................................... 13
ARTICLE IV
OFFICERS.................................... 14
Section 4.1. Number....................................................... 14
Section 4.2. Election..................................................... 14
Section 4.3. Salaries..................................................... 14
Section 4.4. Removal and Resignation; Vacancies........................... 14
Section 4.5. Authority and Duties of Officers............................. 14
Section 4.6. The President................................................ 15
Section 4.7. Vice Presidents.............................................. 15
Section 4.8. The Secretary................................................ 15
Section 4.9. The Treasurer................................................ 16
Section 4.10. Additional Officers.......................................... 17
Section 4.11. Security..................................................... 18
ARTICLE V
CAPITAL STOCK................................ 18
Section 5.1. Certificates of Stock, Uncertificated
Shares......................................... 18
Section 5.2. Signatures; Facsimile........................................ 18
Section 5.3. Lost, Stolen or Destroyed Certificates....................... 19
Section 5.4. Transfer of Stock............................................ 19
Section 5.5. Record Date . . . . . . . . . . . . . . .................... 19
Section 5.6. Registered Stockholders...................................... 20
Section 5.7. Transfer Agent and Registrar................................. 21
ARTICLE VI
INDEMNIFICATION.............................. 21
Section 6.1. Nature of Indemnity.......................................... 21
Section 6.2. Successful Defense........................................... 22
Section 6.3. Determination That Indemnification
is Proper...................................... 22
Section 6.4. Advance Payment of Expenses.................................. 23
Section 6.5. Procedure for Indemnification of
Directors and Officers......................... 23
Section 6.6. Survival; Preservation of Other Rights....................... 24
Section 6.7. Insurance.................................................... 24
Section 6.8. Severability................................................. 24
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ARTICLE VII
<S> <C>
OFFICES...................................... 25
Section 7.1. Registered Office............................................ 25
Section 7.2. Other Offices................................................ 25
ARTICLE VIII
GENERAL PROVISIONS........................... 25
Section 8.1. Dividends.................................................... 25
Section 8.2. Reserves..................................................... 26
Section 8.3. Execution of Instruments..................................... 26
Section 8.4. Corporate Indebtedness....................................... 26
Section 8.5. Deposits..................................................... 27
Section 8.6. Checks....................................................... 27
Section 8.7. Sale, Transfer, etc. of Securities........................... 27
Section 8.8. Voting as Stockholder........................................ 27
Section 8.9. Fiscal Year.................................................. 27
Section 8.10. Seal......................................................... 27
Section 8.11. Books and Records; Inspection................................ 28
ARTICLE IX
AMENDMENT OF AMENDED BY-LAWS.................. 28
Section 9.1. Amendment.................................................... 28
ARTICLE X
CONSTRUCTION.................................. 28
Section 10.1. Construction................................................. 28
</TABLE>
<PAGE>
AMERICAN STANDARD COMPANIES INC.
AMENDED BY-LAWS
As adopted on January 4, 1995,
as amended on December 5, 1996,
as amended on March 24, 1997 (effective May 1, 1997),
and as amended on March 5, 1998
ARTICLE I
STOCKHOLDERS
Section 1.1. Annual Meetings. The annual meeting of the
stockholders of the Corporation for the election of Directors and for the
transaction of such other business as properly may come before such meeting
shall be held at such place, either within or without the State of Delaware, and
at 10:00 a.m. (local time) on the first Thursday in May (or, if such day is a
legal holiday, then on the next succeeding business day), or at such other date
and hour, as may be fixed from time to time by resolution of the Board of
Directors and set forth in the notice or waiver of notice of the meeting.
[Sections 211(a), (b).]<F1>
Section 1.2. Special Meetings. Special meetings of the stockholders may be
called at any time by the (i) Chief Executive Officer or (ii) by the Board of
Directors pursuant to a resolution adopted by a majority of the total number of
authorized Directors. Special meetings of the stockholders shall be held at such
places, within or without the State of Delaware, as shall be specified in the
respective notices or waivers of notice thereof. [Section 211(d).]
Section 1.3. Notice of Meetings; Waiver. The Secretary, Acting Secretary or
any Assistant Secretary shall cause written notice of the place, date and hour
of each meeting of the stockholders, and, in the case of a special meeting, the
purpose or purposes for which such meeting is called, to be given personally or
by mail, not less than ten nor more than sixty days prior to the meeting, to
each stockholder of record entitled to vote at such meeting. If such notice is
mailed, it shall be deemed to have been given to a stockholder when deposited in
the United States mail, postage prepaid, directed to the stockholder at his
address as it appears on the record of stockholders of the Corporation, or, if
he shall have filed with the Secretary or Acting or Assistant Secretary of the
Corporation a written request that notices to him be mailed to some other
address, then directed to him at such other address. Such further notice shall
be given as may be required by law.
<PAGE>
No notice of any meeting of stockholders need be given to any stockholder
who submits a signed waiver of notice, whether before or after the meeting.
Neither the business to be transacted at, nor the purpose of, any regular or
special meeting of the stockholders need be specified in a written waiver of
notice. The attendance of any stockholder at a meeting of stockholders shall
constitute a waiver of notice of such meeting, except when the stockholder
attends a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business on the ground that the meeting is
not lawfully called or convened. [Sections 222, 229.]
Section 1.4. Quorum. Except as otherwise required by law or by the Restated
Certificate of Incorporation, the presence in person or by proxy of the holders
of record of a majority of the shares entitled to vote at a meeting of
stockholders shall constitute a quorum for the transaction of business at such
meeting. [Section 216.]
Section 1.5. Voting. If, pursuant to Section 5.5 of these Amended By-Laws,
a record date has been fixed, every holder of record of shares entitled to vote
at a meeting of stockholders shall be entitled to one vote for each share
outstanding in his name on the books of the Corporation at the close of business
on such record date, provided, however, that the certificate of designation
pertaining to any series of the Corporation's preferred stock may provide for a
greater number of votes per share of such series. If no record date has been
fixed, then every holder of record of shares entitled to vote at a meeting of
stockholders shall be entitled to one vote (subject to the same proviso as set
forth in the immediately preceding sentence) for each share of stock standing in
his name on the books of the Corporation at the close of business on the day
next preceding the day on which notice of the meeting is given, or, if notice is
waived, at the close of business on the day next preceding the day on which the
meeting is held. Except as otherwise required by law, by the Restated
Certificate of Incorporation or by these Amended By-Laws, the vote of a majority
of the shares represented in person or by proxy at any meeting at which a quorum
is present shall be sufficient for the transaction of any business at such
meeting. [Sections 212(a), 216.]
<PAGE>
Section 1.6. Voting by Ballot. No vote of the stockholders need be taken by
written ballot unless otherwise required by law. Any vote which need not be
taken by ballot may be conducted in any manner approved by the meeting.
Section 1.7. Adjournment. If a quorum is not present at any meeting of the
stockholders, the stockholders present in person or by proxy shall have the
power to adjourn any such meeting from time to time until a quorum is present.
Notice of any adjourned meeting of the stockholders of the Corporation need not
be given if the place, date and hour thereof are announced at the meeting at
which the adjournment is taken, provided, however, that if the adjournment is
for more than thirty days, or if after the adjournment a new record date for the
adjourned meeting is fixed pursuant to Section 5.5 of these Amended By-Laws, a
notice of the adjourned meeting, conforming to the requirements of Section 1.3
hereof, shall be given to each stockholder of record entitled to vote at such
meeting. At any adjourned meeting at which a quorum is present, any business may
be transacted that might have been transacted on the original date of the
meeting. [Section 222(c).]
Section 1.8. Proxies. Any stockholder entitled to vote at any meeting of
the stockholders or to express consent to or dissent from corporate action
without a meeting may authorize another person or persons to vote at any such
meeting and express such consent or dissent for him by proxy. A stockholder may
authorize a valid proxy by executing a written instrument signed by such
stockholder, or by causing his or her signature to be affixed to such writing by
any reasonable means including, but not limited to, by facsimile signature, or
by transmitting or authorizing the transmission of a telegram, cablegram or
other means of electronic transmission to the person designated as the holder of
the proxy, a proxy solicitation firm or a like authorized agent. No such proxy
shall be voted or acted upon after the expiration of three years from the date
of such proxy, unless such proxy provides for a longer period. Every proxy shall
be revocable at the pleasure of the stockholder executing it, except in those
cases where applicable law provides that a proxy shall be irrevocable. A
stockholder may revoke any proxy which is not irrevocable by attending the
meeting and voting in person or by filing an instrument in writing revoking the
<PAGE>
proxy or by filing another duly executed proxy bearing a later date with the
Secretary. Proxies by telegram, cablegram or other electronic transmission must
either set forth or be submitted with information from which it can be
determined that the telegram, cablegram or other electronic transmission was
authorized by the stockholder. Any copy, facsimile telecommunication or other
reliable reproduction of a writing or transmission created pursuant to this
section may be substituted or used in lieu of the original writing or
transmission for any and all purposes for which the original writing or
transmission could be used, provided that such copy, facsimile telecommunication
or other reproduction shall be a complete reproduction of the entire original
writing or transmission. [Sections 212(b), (c), (d), (e).]
Section 1.9. Organization; Procedure. At every meeting of stockholders the
presiding officer shall be the President or, in the event of his absence or
disability, any Vice President or a presiding officer chosen by a majority of
the stockholders present in person or by proxy. The Secretary or Acting
Secretary, or in the event of his absence or disability, the Assistant
Secretary, if any, or if there be no Assistant Secretary, in the absence of the
Secretary or Acting Secretary, an appointee of the presiding officer, shall act
as Secretary of the meeting. The order of business and all other matters of
procedure at every meeting of stockholders may be determined by such presiding
officer.
<PAGE>
Section 1.10. Stockholder Proposals and Nominations of Directors.
Nominations for election to the Board of Directors of the Corporation at a
meeting of the stockholders may be made by the Board of Directors, or on behalf
of the Board of Directors by a Nominating Committee appointed by the Board of
Directors, or (subject to compliance with the remainder of this section) by any
stockholder of the Corporation entitled to vote for the election of Directors at
such meeting. Any nominations, other than those made by or on behalf of the
Board of Directors or any such Nominating Committee, and any proposal by any
stockholder to transact any corporate business at an annual or special
stockholders meeting, shall be made by written notice, mailed by certified mail,
to the Secretary of the Corporation and (i) in the case of an annual meeting,
received no later than 50 days prior to the date of the annual meeting;
provided, however, that if less than 50 days' advance notice of a meeting of
stockholders is given to the stockholders, such advance notice of proposed
business or nomination by such stockholder shall have been made or delivered to
the Secretary or Acting Secretary of the Corporation not later than the close of
business on the seventh day following the day on which the written notice of a
meeting was mailed, and (ii) in the case of a special meeting of stockholders,
received not later than the close of business on the tenth day following the day
on which written notice of the date of the meeting was mailed or public
disclosure of the date of the meeting was made, whichever occurs first.
Notwithstanding the foregoing, the inclusion of stockholder proposals in proxy
materials prepared by the Corporation shall be governed by Rule 14a-8 under the
Securities Exchange Act of 1934, as amended. The form of written notice of
Director nominations by a stockholder or stockholders shall set forth as to each
proposed nominee who is not an incumbent Director (i) the name, age, business
address and, if known, residence address of each nominee proposed in such
notice, (ii) the principal occupation or employment of each such nominee, (iii)
the number of shares of stock of the Corporation which are beneficially owned by
each such nominee and the nominating stockholder, and (iv) any other information
concerning the nominee that must be disclosed regarding nominees in proxy
solicitations pursuant to Section 14(a) of the Securities Exchange Act of 1934,
as amended, and the rules under such section.
<PAGE>
The Chairman of the Board, or in his absence the President, any Vice
President or the Secretary or Acting Secretary, may, if the facts warrant,
determine and declare to the meeting of stockholders that a nomination or a
proposal made by a stockholder was not made in accordance with the foregoing
procedure and that the defective nomination or proposal shall be disregarded.
Section 1.11. Inspectors of Elections. Preceding any meeting of the
stockholders, the Board of Directors shall appoint one or more persons to act as
Inspectors of Elections, and may designate one or more alternate inspectors. In
the event no inspector or alternate is able to act, the person presiding at the
meeting shall appoint one or more inspectors to act at the meeting. Each
inspector, before entering upon the discharge of the duties of an inspector,
shall take and sign an oath faithfully to execute the duties of inspector with
strict impartiality and according to the best of his or her ability. The
inspector shall:
(a) ascertain the number of shares outstanding and the voting power of
each;
(b) determine the shares represented at a meeting and the validity of
proxies and ballots;
(c) count all votes and ballots;
(d) determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the inspectors; and
(e) certify his or her determination of the number of shares
represented at the meeting, and his or her count of all votes and ballots.
The inspector may appoint or retain other persons or entities to assist in
the performance of the duties of inspector.
<PAGE>
When determining the shares represented and the validity of proxies and
ballots, the inspector shall be limited to an examination of the proxies, any
envelopes submitted with those proxies, any information provided in accordance
with Section 1.8 of these Amended By-Laws, ballots and the regular books and
records of the Corporation. The inspector may consider other reliable
information for the limited purpose of reconciling proxies and ballots submitted
by or on behalf of banks, brokers or their nominees or a similar person which
represent more votes than the holder of a proxy is authorized by the record
owner to cast or more votes than the stockholder holds of record. If the
inspector considers other reliable information as outlined in this section, the
inspector, at the time of his or her certification pursuant to (e) of this
section shall specify the precise information considered, the person or persons
from whom the information was obtained, when this information was obtained, the
means by which the information was obtained, and the basis for the inspector's
belief that such information is accurate and reliable. [Sections 231(a), (b),
(d).]
Section 1.12. Opening and Closing of Polls. The date and time for the
opening and the closing of the polls for each matter to be voted upon at a
meeting of stockholders shall be announced at the meeting. The inspector of the
election shall be prohibited from accepting any ballots, proxies or votes nor
any revocations thereof or changes thereto after the closing of the polls,
unless the Court of Chancery upon application by a stockholder shall determine
otherwise. [Section 231(c).]
Section 1.13. Consent of Stockholders in Lieu of Meeting. Any action
required or permitted to be taken by the stockholders of the Corporation must be
effected at a duly called annual or special meeting of the stockholders of the
Corporation, and the ability of stockholders to consent in writing to the taking
of any action is hereby specifically denied.
<PAGE>
ARTICLE II
BOARD OF DIRECTORS
Section 2.1. General Powers. Except as may otherwise be provided by law, by
the Restated Certificate of Incorporation or by these Amended By-Laws, the
business and affairs of the Corporation shall be managed by or under
thedirection of the Board of Directors which may exercise all such powers of the
Corporation. [Section 141(a).]
Section 2.2. Number and Term of Office. The number of Directors
constituting the entire Board of Directors shall be nine (9), which number may
be modified from time to time by resolution of the Board of Directors, but in no
event shall the number of Directors be less than three (3) or greater than
twenty-one (21). Each Director (whenever elected) shall hold office until his
successor has been duly elected and qualified, or until his earlier death,
resignation or removal. If the number of Directors is changed, any increase or
decrease shall be apportioned among the classes so as to maintain or attain a
number of Directors in each class as nearly equal as reasonably possible, but no
decrease in the number of Directors may shorten the term of any incumbent
Director.
Section 2.3. Election of Directors. The members of the Board of Directors
elected by the holders of the Common Stock of the Corporation were divided at
the annual meeting of stockholders held in 1995 into three classes, designated
Classes I, II and III, which shall be as nearly equal in number as possible. At
the annual meeting of stockholders in 1995, Directors of Class I were elected to
hold office for a term expiring at the annual meeting of stockholders held in
1996, Directors of Class II were elected to hold office for a term expiring at
the annual meeting of stockholders held in 1997 and Directors of Class III were
elected to hold office for a term expiring at the annual meeting of stockholders
held in 1998. At each succeeding annual meeting of stockholders following such
initial classification and election, the respective successors of Directors
whose terms are expiring shall be elected for terms expiring at the annual
<PAGE>
meeting of stockholders held in the third succeeding year. If the annual meeting
of stockholders for the election of Directors is not held on the date designated
therefor, the Directors shall cause the meeting to be held as soon thereafter as
convenient. At each meeting of the stockholders for the election of Directors,
provided a quorum is present, the Directors shall be elected by a plurality of
the votes validly cast in such election. Not-withstanding the foregoing, the
election, term, removal and filling of vacancies with respect to Directors
elected separately by the holders of one or more series of Preferred Stock of
the Corporation shall not be governed by this Article II, but rather shall be as
provided for in the resolutions adopted by the Board of Directors creating and
establishing such series of Preferred Stock. [Sections 141(d), 211(b), (c),
216.]
Section 2.4. Annual and Regular Meetings. The annual meeting of the Board
of Directors for the purpose of electing officers and for the transaction of
such other business as may come before the meeting shall be held as soon as
possible following adjournment of the annual meeting of the stockholders at the
place of such annual meeting of the stockholders. Notice of such annual meeting
of the Board of Directors need not be given. The Board of Directors from time to
time may by resolution provide for the holding of regular meetings and fix the
place (which may be within or without the State of Delaware) and the date and
hour of such meetings. Notice of regular meetings need not be given, provided,
however, that if the Board of Directors shall fix or change the time or place of
any regular meeting, notice of such action shall be mailed promptly, or sent by
facsimile transmission or telegram, to each Director who shall not have been
present at the meeting at which such action was taken, addressed to him at his
usual place of business, or shall be delivered to him personally. Notice of such
action need not be given to any Director who attends the first regular meeting
after such action is taken without protesting the lack of notice to him, prior
to or at the commencement of such meeting, or to any Director who submits a
signed waiver of notice, whether before or after such meeting. [Section 141(g).]
Section 2.5. Special Meetings; Notice. Special meetings of the Board of
Directors shall be held whenever called by the President or, in the event of his
absence or disability, by any Vice President or by the Secretary or Acting
Secretary, at such place (within or without the State of Delaware), date and
hour as may be specified in the respective notices or waivers of notice of such
meetings. Special meetings of the Board of Directors may be called on 24 hours'
notice, if notice is given to each Director personally or by telephone,
telegram, facsimile or other electronic means of transmission, or on five days'
notice, if notice is mailed to each Director, addressed to him at his usual
place of business. Notice of any special meeting need not be given to any
Director who attends such meeting without protesting the lack of notice to him,
prior to or at the commencement of such meeting, or to any Director who submits
a signed waiver of notice, whether before or after such meeting, and any
business may be transacted thereat. [Sections 141(g), 229.]
Section 2.6. Quorum; Voting. At all meetings of the Board of Directors, the
presence of a majority of the total authorized number of Directors shall
constitute a quorum for the transaction of business. Except as otherwise
required by law, the Restated Certificate of Incorporation or these Amended
By-Laws, the vote of a majority of the Directors present at any meeting at which
a quorum is present shall be the act of the Board of Directors. [Section
141(b).]
Section 2.7. Adjournment. A majority of the Directors present, whether or
not a quorum is present, may adjourn any meeting of the Board of Directors to
another time or place. No notice need be given of any adjourned meeting unless
the time and place of the adjourned meeting are not announced at the time of
adjournment, in which case notice conforming to the requirements of Section 2.5
shall be given to each Director.
<PAGE>
Section 2.8. Action Without a Meeting. Any action required or permitted to
be taken at any meeting of the Board of Directors may be taken without a meeting
if all members of the Board of Directors consent thereto in writing, and such
writing or writings are filed with the minutes of proceedings of the Board of
Directors. [Section 141(f).]
Section 2.9. Organization. Meetings of the Board of Directors shall be
presided over by the Chairman of the Board or, in his absence or if such office
is vacant, by the President, or in their absence by a chairman chosen at the
meeting. The Secretary or Acting Secretary shall act as secretary of the
meeting, but in his absence the chairman of the meeting may appoint any person
to act as secretary of the meeting.
Section 2.10. Regulations; Manner of Acting. To the extent consistent with
applicable law, the Restated Certificate of Incorporation and these Amended
By-Laws, the Board of Directors may adopt such rules and regulations for the
conduct of meetings of the Board of Directors and for the management of the
property, affairs and business of the Corporation as the Board of Directors may
deem appropriate. The Directors shall act only as a Board, and the individual
Directors shall have no power as such.
Section 2.11. Action by Telephonic Communications. Members of
the Board of Directors may participate in a meeting of the Board of Directors by
means of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and
participation in a meeting pursuant to this provision shall constitute presence
in person at such meeting. [Section 141(i).]
Section 2.12. Resignations. Any Director may resign at any time by
delivering a written notice of resignation, signed by such Director, to the
President or the Secretary or Acting Secretary. Unless otherwise specified
therein, such resignation shall take effect upon delivery. [Section 141(b).]
<PAGE>
Section 2.13. Removal of Directors. A Director may be removed for or
without cause, upon the affirmative vote of the holders of a majority of the
outstanding shares of stock of the Corporation then entitled to vote at an
election of Directors, cast at a special meeting of stockholders called for the
purpose or at an annual meeting. Any vacancy in the Board of Directors caused by
any such removal may be filled at any such meeting by the stockholders entitled
to vote for the election of the Director so removed. Notwithstanding the
foregoing, the election, term, removal and filling of vacancies with respect to
Directors elected separately by the holders of one or more series of Preferred
Stock of the Corporation shall not be governed by this Article II, but rather
shall be as provided for, either in the Restated Certificate of Incorporation or
in the Preferred Stock Certificate of Designation creating and establishing such
series of Preferred Stock. [Section 141(k).]
Section 2.14. Vacancies and Newly Created Directorships. If any vacancies
shall occur in the Board of Directors, by reason of death, resignation, removal
(and the stockholders shall not have filled such vacancy as provided in Section
2.13 above) or otherwise, or if the authorized number of Directors shall be
increased, the Directors then in office shall continue to act, and such
vacancies or newly created directorships, as the case may be, may be filled by a
majority of Directors then in office, although less than a quorum. A Director
elected by the Directors pursuant to this Section 2.14 to fill a vacancy or a
newly created directorship shall hold office until his successor has been
elected and qualified or until his earlier death, resignation or removal.
[Section 223.]
Section 2.15. Compensation. The amount, if any, which each Director shall
be entitled to receive as compensation for his services as such shall be fixed
from time to time by resolution of the Board of Directors. [Section 141(h).]
Section 2.16. Reliance on Accounts and Reports, etc. A Director, or a
member of any Committee designated by the Board of Directors shall, in the
performance of his duties, be fully protected in relying in good faith upon the
records of the Corporation and upon information, opinions, reports or statements
presented to the Corporation by any of the Corporation's officers or employees,
or Committees designated by the Board of Directors, or by any other person as to
the matters the member reasonably believes are within such other person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Corporation. [Section 141(e).]
<PAGE>
ARTICLE III
EXECUTIVE COMMITTEE AND OTHER COMMITTEES
Section 3.1. How Constituted. The Board of Directors may, by resolution
adopted by a majority of the whole Board, designate one or more Committees,
including an Executive Committee, each such Committee to consist of such number
of Directors as from time to time may be fixed by the Board of Directors. The
Board of Directors may designate one or more Directors as alternate members of
any such Committee, who may replace any absent or disqualified member or members
at any meeting of such Committee. Thereafter, members (and alternate members, if
any) of each such Committee may be designated at the annual meeting of the Board
of Directors. Any such Committee may be abolished or re-designated from time to
time by the Board of Directors. Each member (and each alternate member) of any
such Committee (whether designated at an annual meeting of the Board of
Directors or to fill a vacancy or otherwise) shall hold office until his
successor shall have been designated or until he shall cease to be a Director,
or until his earlier death, resignation or removal. [Section 141(c).]
Section 3.2. Powers. During the intervals between the meetings of the Board
of Directors, the Executive Committee, except as otherwise provided in this
section, shall have and may exercise all the powers and authority of the Board
of Directors in the management of the property, affairs and business of the
Corporation, including the power to declare dividends and to authorize the
issuance of stock. Each such other Committee, except as otherwise provided in
this section, shall have and may exercise such powers of the Board of Directors
as may be provided by resolution or resolutions of the Board of Directors.
Neither the Executive Committee nor any such other Committee shall have the
power or authority:
<PAGE>
(a) to amend the Restated Certificate of Incorporation (except
that a Committee may, to the extent authorized in the resolution or
resolutions providing for the issuance of shares of stock adopted by
the Board of Directors as provided in Section 151(a) of the Delaware
General Corporation Law, fix the designations and any of the
preferences or rights of such shares relating to dividends, redemption,
dissolution, any distribution of assets of the Corporation or the
conversion into, or the exchange of such shares for, shares of any
other class or classes or any other series of the same or any other
class or classes of stock of the Corporation or fix the number of
shares of any series of stock or authorize the increase or decrease of
the shares of any series),
(b) to adopt an agreement of merger or consolidation,
(c) to recommend to the stockholders the sale, lease or
exchange of all or substantially all of the Corporation's property and
assets,
(d) to recommend to the stockholders a dissolution of the
Corporation or a revocation of a dissolution, or
(e) to amend the Amended By-Laws of the Corporation.
The Executive Committee shall have, and any such other Committee may be
granted by the Board of Directors, power to authorize the seal of the
Corporation to be affixed to any or all papers which may require it. [Section
141(c).]
Section 3.3. Proceedings. Each such Committee may fix its own rules of
procedure and may meet at such place (within or without the State of Delaware),
at such time and upon such notice, if any, as it shall determine from time to
time. Each such Committee shall keep minutes of its proceedings and shall report
such proceedings to the Board of Directors at the meeting of the Board of
Directors next following any such proceedings.
<PAGE>
Section 3.4. Quorum and Manner of Acting. Except as may be otherwise
provided in the resolution creating such Committee, at all meetings of any
Committee the presence of members (or alternate members) constituting a majority
of the total authorized membership of such Committee shall constitute a quorum
for the transaction of business. The act of the majority of the members present
at any meeting at which a quorum is present shall be the act of such Committee.
Any action required or permitted to be taken at any meeting of any such
Committee may be taken without a meeting, if all members of such Committee shall
consent to such action in writing and such writing or writings are filed with
the minutes of the proceedings of the Committee. The members of any such
Committee shall act only as a Committee, and the individual members of such
Committee shall have no power as such. [Section 141(c), (f).]
Section 3.5. Action by Telephonic Communications. Members of any Committee
designated by the Board of Directors may participate in a meeting of such
Committee by means of conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other,
and participation in a meeting pursuant to this provision shall constitute
presence in person at such meeting. [Section 141(i).]
Section 3.6. Absent or Disqualified Members. In the absence or
disqualification of a member of any Committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent or disqualified
member. [Section 141(c).]
Section 3.7. Resignations. Any member (and any alternate member) of any
Committee may resign at any time by delivering a written notice of resignation,
signed by such member, to the Chairman or the President. Unless otherwise
specified therein, such resignation shall take effect upon delivery.
<PAGE>
Section 3.8. Removal. Any member (and any alternate member) of any
Committee may be removed at any time, either for or without cause, by resolution
adopted by a majority of the whole Board of Directors.
Section 3.9. Vacancies. If any vacancy shall occur in any Committee, by
reason of disqualification, death, resignation, removal or otherwise, the
remaining members (and any alternate members) shall continue to act, and any
such vacancy may be filled by the Board of Directors.
ARTICLE IV
OFFICERS
Section 4.1. Number. The officers of the Corporation shall be chosen by the
Board of Directors and shall be a President, one or more Vice Presidents, a
Secretary, a Controller, a General Auditor and a Treasurer, and it may, if it so
determines, elect a Chairman of the Board of Directors from among its members.
The Board of Directors also may elect a Vice Chairman and one or more Acting or
Assistant Secretaries, Assistant Controllers and Assistant Treasurers in such
numbers as the Board of Directors may determine. Any number of offices may be
held by the same person, except that neither the Chairman of the Board of
Directors nor the President shall also hold the office of Secretary. No officer,
other than the Chairman or Vice Chairman, need be a Director of the Corporation.
[Section 142(a), (b).]
Section 4.2. Election. Unless otherwise determined by the Board of
Directors, the officers of the Corporation shall be elected by the Board of
Directors at the annual meeting of the Board of Directors, and shall be elected
to hold office until the next succeeding annual meeting of the Board of
Directors. In the event of the failure to elect officers at such annual meeting,
officers may be elected at any regular or special meeting of the Board of
Directors. Each officer shall hold office until his successor has been elected
and qualified, or until his earlier death, resignation or removal. [Section
142(b).]
<PAGE>
Section 4.3. Salaries. The salaries of all officers and agents of the
Corporation shall be fixed by the Board of Directors.
Section 4.4. Removal and Resignation; Vacancies. Any officer may be removed
for or without cause at any time by the Board of Directors. Any officer may
resign at any time by delivering a written notice of resignation, signed by such
officer, to the Board of Directors or the President or the Secretary or Acting
Secretary. Unless otherwise specified therein, such resignation shall take
effect upon delivery. Any vacancy occurring in any office of the Corporation, by
death, resignation, removal or otherwise, shall be filled by the Board of
Directors. [Section 142(b), (e).]
Section 4.5. Authority and Duties of Officers. The officers of the
Corporation shall have such authority and shall exercise such powers and perform
such duties as may be specified in these Amended By-Laws, except that in any
event each officer shall exercise such powers and perform such duties as may be
required by law. [Section 142(a).]
Section 4.6. The President. The President shall preside at all meetings of
the stockholders and Directors at which he is present in the absence of the
Chairman or Vice Chairman, shall be the chief executive officer and the chief
operating officer of the Corporation, shall have general control and supervision
of the policies and operations of the Corporation and shall see that all orders
and resolutions of the Board of Directors are carried into effect. He shall
manage and administer the Corporation's business and affairs and shall also
perform all duties and exercise all powers usually pertaining to the office of a
chief executive officer and a chief operating officer of a corporation. He shall
have the authority to sign, in the name and on behalf of the Corporation,
checks, orders, contracts, leases, notes, drafts and other documents and
instruments in connection with the business of the Corporation, and together
with the Secretary or an Acting or Assistant Secretary, conveyances of real
estate and other documents and instruments to which the seal of the Corporation
is affixed. He shall have the authority to cause the employment or appointment
of such employees and agents of the Corporation as the conduct of the business
of the Corporation may require, to fix their compensation, and to remove or
suspend any employee or agent elected or appointed by the President or the Board
of Directors. The President shall perform such other duties and have such other
powers as the Board of Directors or the Chairman may from time to time
prescribe.
<PAGE>
Section 4.7. Vice Presidents. Each Vice President shall perform such duties
and exercise such powers as may be assigned to him from time to time by the
President. In the absence of the President, the duties of the President shall be
performed and his powers may be exercised by such Vice President as shall be
designated by the President, or failing such designation, such duties shall be
performed and such powers may be exercised by each Vice President in the order
of their earliest election to that office, subject in any case to review and
superseding action by the President.
Section 4.8. The Secretary. The Secretary shall have the following powers
and duties:
(a) He shall keep or cause to be kept a record of all the
proceedings of the meetings of the stockholders and of the Board of
Directors in books provided for that purpose.
(b) He shall cause all notices to be duly given in accordance
with the provisions of these Amended By-Laws and as required by law.
(c) Whenever any Committee shall be appointed pursuant to a
resolution of the Board of Directors, he shall furnish a copy of such
resolution to the members of such Committee.
(d) He shall be the custodian of the records and of the seal
of the Corporation and cause such seal (or a facsimile thereof) to be
affixed to all certificates representing shares of the Corporation
prior to the issuance thereof and to all instruments the execution of
which on behalf of the Corporation under its seal shall have been duly
authorized in accordance with these Amended By-Laws, and when so
affixed he may attest the same.
<PAGE>
(e) He shall properly maintain and file all books, reports,
statements, certificates and all other documents and records required
by law, the Restated Certificate of Incorporation or these Amended
By-Laws.
(f) He shall have charge of the stock books and ledgers of the
Corporation and shall cause the stock and transfer books to be kept in
such manner as to show at any time the number of shares of stock of the
Corporation of each class issued and outstanding, the names (arranged
alphabetically or chronologically) and the addresses of the holders of
record of such shares, the number of shares held by each holder and the
date as of which each became such holder of record.
(g) He shall sign (unless the Treasurer, an Assistant
Treasurer or Acting or Assistant Secretary shall have signed)
certificates representing shares of the Corporation the issuance of
which shall have been authorized by the Board of Directors.
(h) He shall perform, in general, all duties incident to the
office of Secretary and such other duties as may be specified in these
Amended By-Laws or as may be assigned to him from time to time by the
Board of Directors, or the President.
Section 4.9. The Treasurer. The Treasurer shall have the following powers
and duties:
(a) He shall have charge and supervision over and be
responsible for the moneys, securities, receipts and disbursements of
the Corporation, and shall keep or cause to be kept full and accurate
records of all receipts of the Corporation.
(b) He shall cause the moneys and other valuable effects of
the Corporation to be deposited in the name and to the credit of the
Corporation in such banks or trust companies or with such bankers or
other depositaries as shall be selected in accordance with Section 8.5
of these Amended By-Laws.
<PAGE>
(c) He shall cause the moneys of the Corporation to be
disbursed by checks or drafts (signed as provided in Section 8.6 of
these Amended By-Laws) upon the authorized depositaries of the
Corporation and cause to be taken and preserved proper vouchers for all
moneys disbursed.
(d) He shall render to the Board of Directors or the
President, whenever requested, a statement of the financial condition
of the Corporation and of all his transactions as Treasurer, and render
a full financial report at the annual meeting of the stockholders, if
called upon to do so.
(e) He shall be empowered from time to time to require from
all officers or agents of the Corporation reports or statements giving
such information as he may desire with respect to any and all financial
transactions of the Corporation.
(f) He may sign (unless an Assistant Treasurer or the
Secretary or an Acting or Assistant Secretary shall have signed)
certificates representing stock of the Corporation the issuance of
which shall have been authorized by the Board of Directors.
(g) He shall perform, in general, all duties incident to the
office of treasurer and such other duties as may be specified in these
Amended By-Laws or as may be assigned to him from time to time by the
Board of Directors, or the President.
Section 4.10. Additional Officers. The Board of Directors may appoint such
other officers and agents as it may deem appropriate, and such other officers
and agents and the officers specified in Section 4.1 hereof not covered in
Sections 4.6 through 4.9 hereof shall hold their offices for such terms and
shall exercise such powers and perform such duties as generally pertain to their
respective offices, as well as such powers and duties as from time to time may
be authorized or prescribed by the Board of Directors. The Board of Directors
from time to time may delegate to any officer or agent the power to appoint
subordinate officers or agents and to prescribe their respective rights, terms
of office, authorities and duties. Any such officer or agent may remove any such
subordinate officer or agent appointed by him, for or without cause. [Section
142(a), (b).]
<PAGE>
Section 4.11. Security. The Board of Directors may require any officer,
agent or employee of the Corporation to provide security for the faithful
performance of his duties, in such amount and of such character as may be
determined from time to time by the Board of Directors. [Section 142(c).]
ARTICLE V
CAPITAL STOCK
Section 5.1. Certificates of Stock, Uncertificated Shares. The shares of
the Corporation shall be represented by certificates, provided that the Board of
Directors may provide by resolution or resolutions that some or all of any or
all classes or series of the stock of the Corporation, or rights associated
therewith shall be uncertificated shares. Any such resolution shall not apply to
shares represented by a certificate until each certificate is surrendered to the
Corporation. Notwithstanding the adoption of such a resolution by the Board of
Directors, every holder of stock in the Corporation represented by certificates
and upon request every holder of uncertificated shares shall be entitled to have
a certificate signed by, or in the name of the Corporation, by the Chairman,
President or a Vice President, and by the Treasurer or an Assistant Treasurer,
or the Secretary or an Acting or Assistant Secretary, representing the number of
shares registered in certificate form. Such certificate shall be in such form as
the Board of Directors may determine, to the extent consistent with applicable
law, the Restated Certificate of Incorporation and these Amended By-Laws.
[Section 158.]
<PAGE>
Section 5.2. Signatures; Facsimile. All of such signatures on the
certificate may be a facsimile, engraved or printed, to the extent permitted by
law. In case any officer, transfer agent or registrar who has signed, or whose
facsimile signature has been placed upon a certificate shall have ceased to be
such officer, transfer agent or registrar before such certificate is issued, it
may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue. [Section 158.]
Section 5.3. Lost, Stolen or Destroyed Certificates. The Board of Directors
may direct that a new certificate be issued in place of any certificate
theretofore issued by the Corporation alleged to have been lost, stolen or
destroyed, upon delivery to the Board of Directors of an affidavit of the owner
or owners of such certificate, setting forth such allegation. The Board of
Directors may require the owner of such lost, stolen or destroyed certificate,
or his legal representative, to give the Corporation a bond sufficient to
indemnify it against any claim that may be made against it on account of the
alleged loss, theft or destruction of any such certificate or the issuance of
any such new certificate. [Section 167.]
Section 5.4. Transfer of Stock. Upon surrender to the Corporation or the
transfer agent of the Corporation of a certificate for shares, duly endorsed or
accompanied by appropriate evidence of succession, assignment or authority to
transfer, the Corporation shall issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Within a reasonable time after the transfer of uncertificated stock, the
Corporation shall send to the registered owner thereof a written notice
containing the information required to be set forth or stated on certificates
pursuant to Sections 151, 156, 202(a) or 218(a) of the General Corporation Law
of the State of Delaware. Subject to the provisions of the Restated Certificate
of Incorporation and these Amended By-Laws, the Board of Directors may prescribe
such additional rules and regulations as it may deem appropriate relating to the
issue, transfer and registration of shares of the Corporation. [Section 151(f).]
<PAGE>
Section 5.5. Record Date. In order to determine the stockholders entitled
to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to express consent to corporate action in writing without a
meeting, or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other lawful
action, the Board of Directors may fix, in advance, a record date, which record
date shall not precede the date on which the resolution fixing the record date
is adopted by the Board of Directors, and which shall not be more than sixty nor
less than ten days before the date of such meeting. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
In order that the Corporation may determine the stockholders entitled
pursuant to these Amended By-Laws to consent to corporate action in writing
without a meeting, the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record date
is adopted by the Board of Directors, and which date shall not be more than ten
days after the date upon which the resolution fixing the record date is adopted
by the Board of Directors. If no record date has been fixed by the Board of
Directors, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting, when no prior action by the Board
of Directors is required by law, shall be the first date on which a signed
written consent setting forth the action taken or proposed to be taken is
delivered to the Corporation by delivery to its registered office in the State
of Delaware, its principal place of business, or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to the Corporation's registered office
shall be by hand or by certified or registered mail, return receipt requested.
If no record date has been fixed by the Board of Directors and prior action by
the Board of Directors is required by law, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting shall be at the close of business on the day on which the Board of
Directors adopts the resolution taking such prior action.
<PAGE>
In order that the Corporation may determine the stockholders entitled to
receive payment of any dividend or other distribution or allotment of any rights
of the stockholders entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other lawful action,
the Board of Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted,
and which record date shall be not more than sixty days prior to such action. If
no record date is fixed, the record date for determining stockholders for any
such purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto. [Section 213.]
Section 5.6. Registered Stockholders. Prior to due surrender of a
certificate for registration of transfer, the Corporation may treat the
registered owner as the person exclusively entitled to receive dividends and
other distributions, to vote, to receive notice and otherwise to exercise all
the rights and powers of the owner of the shares represented by such
certificate, and the Corporation shall not be bound to recognize any equitable
or legal claim to or interest in such shares on the part of any other person,
whether or not the Corporation shall have notice of such claim or interests.
Whenever any transfer of shares shall be made for collateral security, and not
absolutely, it shall be so expressed in the entry of the transfer if, when the
certificates are presented to the Corporation for transfer or uncertificated
shares are requested to be transferred, both the transferor and transferee
request the Corporation to do so. [Section 159.]
Section 5.7. Transfer Agent and Registrar. The Board of Directors may
appoint one or more transfer agents and one or more registrars, and may require
all certificates representing shares to bear the signature of any such transfer
agents or registrars.
<PAGE>
ARTICLE VI
INDEMNIFICATIO <F2>
Section 6.1. Nature of Indemnity. The Corporation shall 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 or has agreed to become a Director or officer of the Corporation, or is or
was serving or has agreed to serve at the request of the Corporation as a
director or officer of another corporation, partnership, joint venture, trust or
other enterprise, or by reason of any action alleged to have been taken or
omitted in such capacity, and may indemnify any person who was or is a party or
is threatened to be made a party to such an action, suit or proceeding by reason
of the fact that he is or was or has agreed to become an employee or agent of
the Corporation, or is or was serving or has agreed to serve at the request of
the Corporation as an employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him or on his behalf in connection with such action, suit or
proceeding and any appeal therefrom, 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; except that in the case of
an action or suit by or in the right of the Corporation to procure a judgment in
its favor (1) such indemnification shall be limited to expenses (including
attorneys' fees) actually and reasonably incurred by such person in the defense
or settlement of such action or suit, and (2) no indemnification shall be made
in respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the extent that the
Delaware Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Delaware Court of
Chancery or such other court shall deem proper.
<PAGE>
The termination of any action, suit or proceeding by judgment, order
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which 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 reasonable cause to believe that his conduct was unlawful.
Section 6.2. Successful Defense. To the extent that a Director, officer,
employee or agent of the Corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in Section
6.1 hereof or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
Section 6.3. Determination That Indemnification is Proper. Any
indemnification of a Director or officer of the Corporation under Section 6.1
hereof (unless ordered by a court) shall be made by the Corporation unless a
determination is made that indemnification of the Director or officer is not
proper in the circumstances because he has not met the applicable standard of
conduct set forth in Section 6.1 hereof. Any indemnification of an employee or
agent of the Corporation under Section 6.1 hereof (unless ordered by a court)
may be made by the Corporation upon a determination that indemnification of the
employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in Section 6.1 hereof. Any such
determination shall be made (1) by a majority vote of the Directors who are not
parties to such action, suit or proceeding, even though less than a quorum, or
(2) if there are no such Directors, or if such Directors so direct, by
independent legal counsel in a written opinion, or (3) by the stockholders.
<PAGE>
Section 6.4. Advance Payment of Expenses. Expenses (including attorneys'
fees) incurred by a Director or officer in defending any civil, criminal,
administrative or investigative action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of the Director or
officer to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Corporation as authorized in this Article.
Such expenses (including attorneys' fees) incurred by other employees and agents
may be so paid upon such terms and conditions, if any, as the Board of Directors
deems appropriate. The Board of Directors may authorize the Corporation's
counsel to represent such Director, officer, employee or agent in any action,
suit or proceeding, whether or not the Corporation is a party to such action,
suit or proceeding.
Section 6.5. Procedure for Indemnification of Directors and Officers. Any
indemnification of a Director or officer of the Corporation under Sections 6.1
and 6.2, or advance of costs, charges and expenses to a Director or officer
under Section 6.4 of this Article, shall be made promptly, and in any event
within 30 days, upon the written request of the Director or officer. If a
determination by the Corporation that the Director or officer is entitled to
indemnification pursuant to this Article is required, and the Corporation fails
to respond within sixty days to a written request for indemnity, the Corporation
shall be deemed to have approved such request. If the Corporation denies a
written request for indemnity or advancement of expenses, in whole or in part,
or if payment in full pursuant to such request is not made within 30 days, the
right to indemnification or advances as granted by this Article shall be
enforceable by the Director or officer in any court of competent jurisdiction.
Such person's costs and expenses incurred in connection with successfully
establishing his right to indemnification, in whole or in part, in any such
action shall also be indemnified by the Corporation. It shall be a defense to
any such action (other than an action brought to enforce a claim for the advance
of costs, charges and expenses under Section 6.4 of this Article where the
required undertaking, if any, has been received by the Corporation) that the
claimant has not met the standard of conduct set forth in Section 6.1 of this
Article, but the burden of proving such defense shall be on the Corporation.
Neither the failure of the Corporation (including its Board of Directors, its
independent legal counsel, and its stockholders) to have made a determination
prior to the commencement of such action that indemnification of the claimant is
proper in the circumstances because he has met the applicable standard of
conduct set forth in Section 6.1 of this Article, nor the fact that there has
been an actual determination by the Corporation (including its Board of
Directors, its independent legal counsel, and its stockholders) that the
claimant has not met such applicable standard of conduct, shall be a defense to
the action or create a presumption that the claimant has not met the applicable
standard of conduct.
<PAGE>
Section 6.6. Survival; Preservation of Other Rights. The foregoing
indemnification provisions shall be deemed to be a contract between the
Corporation and each Director, officer, employee and agent who serves in any
such capacity at any time while these provisions as well as the relevant
provisions of the General Corporation Law of the State of Delaware are in
effect. Any repeal or modification of these indemnification provisions shall not
affect any right or obligation then existing with respect to any state of facts
then or previously existing or any action, suit or proceeding previously or
thereafter brought or threatened based in whole or in part upon any such state
of facts. Such a "contract right" may not be modified retroactively without the
consent of such Director, officer, employee or agent.
The indemnification provided by this Article VI shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any by-law, agreement, vote of stockholders or disinterested Directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a Director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a person.
Section 6.7. Insurance. The Corporation shall purchase and maintain
insurance on behalf of any person who is or was or has agreed to become a
Director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director or officer of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him and incurred by him or on his behalf in any such capacity, or arising out of
his status as such, whether or not the Corporation would have the power to
indemnify him against such liability under the provisions of this Article,
provided that such insurance is available on acceptable terms, which
determination shall be made by a vote of a majority of the entire Board of
Directors.
<PAGE>
Section 6.8. Severability. If this Article VI or any portion hereof shall
be invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each Director or officer and may
indemnify each employee or agent of the Corporation as to costs, charges and
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement with respect to any action, suit or proceeding, whether civil,
criminal, administrative or investigative, including an action by or in the
right of the Corporation, to the fullest extent permitted by any applicable
portion of this Article that shall not have been invalidated and to the fullest
extent permitted by applicable law.
ARTICLE VII
OFFICES
Section 7.1. Registered Office. The registered office of the Corporation in
the State of Delaware shall be located at Corporation Trust Center, 1209 Orange
Street in the City of Wilmington, County of New Castle.
Section 7.2. Other Offices. The Corporation may maintain offices or places
of business at such other locations within or without the State of Delaware as
the Board of Directors may from time to time determine or as the business of the
Corporation may require.
<PAGE>
ARTICLE VIII
GENERAL PROVISIONS
Section 8.1. Dividends. Subject to any applicable provisions of law and the
Restated Certificate of Incorporation, dividends upon the shares of the
Corporation may be declared by the Board of Directors at any regular or special
meeting of the Board of Directors and any such dividend may be paid in cash,
property, shares of the Corporation's capital stock or rights to acquire the
same.
A member of the Board of Directors, or a member of any Committee designated
by the Board of Directors shall be fully protected in relying in good faith upon
the records of the Corporation and upon such information, opinions, reports or
statements presented to the Corporation by any of its officers or employees, or
Committees of the Board of Directors, or by any other person as to matters the
Director reasonably believes are within such other person's professional or
expert competence and who has been selected with reasonable care by or on behalf
of the Corporation, as to the value and amount of the assets, liabilities and/or
net profits of the Corporation, or any other facts pertinent to the existence
and amount of surplus or other funds from which dividends might properly be
declared and paid. [Sections 172, 173.]
Section 8.2. Reserves. There may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the Board of Directors
from time to time, in its absolute discretion, thinks proper as a reserve or
reserves to meet contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the Corporation or for such other purpose as the
Board of Directors shall think conducive to the interest of the Corporation, and
the Board of Directors may similarly modify or abolish any such reserve.
Section 8.3. Execution of Instruments. The President, any Vice President,
the Secretary or Acting Secretary or the Treasurer may enter into any contract
or execute and deliver any instrument in the name and on behalf of the
Corporation. The Board of Directors or the President may authorize any other
officer or agent to enter into any contract or execute and deliver any
instrument in the name and on behalf of the Corporation. Any such authorization
may be general or limited to specific contracts or instruments.
<PAGE>
Section 8.4. Corporate Indebtedness. No loan shall be contracted on behalf
of the Corporation, and no evidence of indebtedness shall be issued in its name,
unless authorized by the Board of Directors or the President or any Vice
President. Such authorization may be general or confined to specific instances.
Loans so authorized may be effected at any time for the Corporation from any
bank, trust company or other institution, or from any firm, corporation or
individual. All bonds, debentures, notes and other obligations or evidences of
indebtedness of the Corporation issued for such loans shall be made, executed
and delivered as the Board of Directors or the President or any Vice President
shall authorize. When so authorized by the Board of Directors or the President
or any Vice President, any part of or all the properties, including contract
rights, assets, business or good will of the Corporation, whether then owned or
thereafter acquired, may be mortgaged, pledged, hypothecated or conveyed or
assigned in trust as security for the payment of such bonds, debentures, notes
and other obligations or evidences of indebtedness of the Corporation, and of
the interest thereon, by instruments executed and delivered in the name of the
Corporation.
Section 8.5. Deposits. Any funds of the Corporation may be deposited from
time to time in such banks, trust companies or other depositaries as may be
determined by the Board of Directors or the President, or by such officers or
agents as may be authorized by the Board of Directors or the President or any
Vice President to make such determination.
Section 8.6. Checks. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such agent or agents
of the Corporation, and in such manner, as the Board of Directors or the
President or any Vice President from time to time may determine.
<PAGE>
Section 8.7. Sale, Transfer, etc. of Securities. To the extent authorized
by the Board of Directors or by the President, any Vice President, the Secretary
or Acting Secretary or the Treasurer or any other officers designated by the
Board of Directors or the President may sell, transfer, endorse, and assign any
shares of stock, bonds or other securities owned by or held in the name of the
Corporation, and may make, execute and deliver in the name of the Corporation,
under its corporate seal, any instruments that may be appropriate to effect any
such sale, transfer, endorsement or assignment.
Section 8.8. Voting as Stockholder. Unless otherwise determined by
resolution of the Board of Directors, the President or any Vice President or the
Secretary or Acting Secretary shall have full power and authority on behalf of
the Corporation to attend any meeting of stockholders of any corporation in
which the Corporation may hold stock, and to act, vote (or execute proxies to
vote) and exercise in person or by proxy all other rights, powers and privileges
incident to the ownership of such stock. Such officers acting on behalf of the
Corporation shall have full power and authority to execute any instrument
expressing consent to or dissent from any action of any such corporation without
a meeting. The Board of Directors may by resolution from time to time confer
such power and authority upon any other person or persons.
Section 8.9. Fiscal Year. The fiscal year of the Corporation shall commence
on the first day of January of each year and shall terminate in each case on
December 31.
Section 8.10. Seal. The seal of the Corporation shall be circular in form
and shall contain the name of the Corporation, the year of its incorporation and
the words "Corporate Seal" and "Delaware". The form of such seal shall be
subject to alteration by the Board of Directors. The seal may be used by causing
it or a facsimile thereof to be impressed, affixed or reproduced, or may be used
in any other lawful manner.
Section 8.11. Books and Records; Inspection. Except to the extent otherwise
required by law, the books and records of the Corporation shall be kept at such
place or places within or without the State of Delaware as may be determined
from time to time by the Board of Directors.
<PAGE>
ARTICLE IX
AMENDMENT OF AMENDED BY-LAWS
Section 9.1. Amendment. These Amended By-Laws may be amended, altered or
repealed
(a) by resolution adopted by a majority of the Board of
Directors at any special or regular meeting of the Board if, in the
case of such special meeting only, notice of such amendment, alteration
or repeal is contained in the notice or waiver of notice of such
meeting; or
(b) at any regular or special meeting of the stockholders upon
the affirmative vote of a majority of the combined voting power of the
then outstanding stock of the Corporation entitled to vote generally in
the election of Directors, provided, however, that any amendment,
alteration or repeal of Article I, sections 1.2, 1.10 or 1.13, Article
VI or this Section 9.1 as it pertains to Directors and officers, shall
require the affirmative vote of not less than 65% of the combined
voting power of the then outstanding stock of the Corporation entitled
to vote generally in the election of Directors. In the case of such
special meeting only, notice of such amendment, alteration or repeal
must be contained in the notice or waiver of notice of such meeting.
[Section 109(a).]
ARTICLE X
CONSTRUCTION
Section 10.1. Construction. In the event of any conflict between the
provisions of these Amended By-Laws as in effect from time to time and the
provisions of the Restated Certificate of Incorporation of the Corporation as in
effect from time to time, the provisions of such Restated Certificate of
Incorporation shall be controlling.
<PAGE>
Footnotes:
- --------
<F1> 1. Citations are to the General Corporation Law of the State of Delaware
as in effect on December 20, 1994 (the "GCL"), and are inserted for
reference only, and do not constitute a part of the Amended By-Laws.
<F2> 2. Section 145.
AMERICAN STANDARD INC.
as Issuer
and AMERICAN STANDARD COMPANIES INC.
as Guarantor
to
BANK OF NEW YORK
Trustee
INDENTURE
Dated as of January 15, 1998
Senior Debt Securities
<PAGE>
<TABLE>
TABLE OF CONTENTS
<CAPTION>
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
<S> <C>
Page
SECTION 1.01. Definitions....................................................2
SECTION 1.02. Compliance Certificates and Opinions..........................14
SECTION 1.03. Form of Documents Delivered to Trustee........................14
SECTION 1.04. Acts of Holders...............................................15
SECTION 1.05. Notices, etc., to Trustee and Issuer..........................17
SECTION 1.06. Notice to Holders: Waiver....................................18
SECTION 1.07. Counterparts; Effect of Headings and Table of Contents........19
SECTION 1.08. Successors and Assigns........................................20
SECTION 1.09. Severability Clause...........................................20
SECTION 1.10. Benefits of Indenture.........................................20
SECTION 1.11. Governing Law.................................................20
SECTION 1.12. Legal Holidays................................................20
SECTION 1.13. No Recourse Against Others....................................21
SECTION 1.14. Conflict with Trust Indenture Act.............................21
ARTICLE II
SECURITIES FORMS
SECTION 2.01. Forms of Securities............................................21
SECTION 2.02. Form of Trustee's Certificate of Authentication................22
SECTION 2.03. Securities Issuable in Global Form.............................22
ARTICLE III
THE SECURITIES
SECTION 3.01. Amount Unlimited; Issuable in Series...........................24
SECTION 3.02. Denominations..................................................28
SECTION 3.03. Execution, Authentication, Delivery and Dating.................28
SECTION 3.04. Temporary Securities...........................................31
SECTION 3.05. Registration, Registration of Transfer and Exchange............35
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities...............39
SECTION 3.07. Payment of Interest; Interest Rights Preserved.................41
SECTION 3.08. Persons Deemed Owners..........................................44
SECTION 3.09. Cancellation...................................................45
SECTION 3.10. Computation of Interest........................................45
SECTION 3.11. USIP Numbers...................................................45
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture........................46
SECTION 4.02. Application of Trust Funds.....................................48
SECTION 4.03. Reinstatement..................................................48
ARTICLE V
REMEDIES
SECTION 5.01. Events of Default..............................................49
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment.............51
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement
by Trustee................................................52
SECTION 5.04. Trustee May File Proofs of Claim...............................53
SECTION 5.05. Trustee May Enforce Claims Without Possession of Securities
or Coupons................................................55
SECTION 5.06. Application of Money Collected.................................55
SECTION 5.07. Limitation on Suits............................................55
SECTION 5.08. Unconditional Right of Holders to Receive Principal,
Premium, and Interest.....................................56
SECTION 5.09. Restoration of Rights and Remedies.............................57
SECTION 5.10. Rights and Remedies Cumulative.................................57
SECTION 5.11. Delay or Omission Not Waiver...................................57
SECTION 5.12. Control by Holders of Securities...............................57
SECTION 5.13. Waiver of Past Defaults........................................58
SECTION 5.14. Waiver of Usury, Stay or Extension Laws........................58
SECTION 5.15. Undertaking for Costs..........................................59
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ARTICLE VI
THE TRUSTEE
<S> <C>
SECTION 6.01. Notice of Defaults.............................................59
SECTION 6.02. Certain Rights of Trustee......................................60
SECTION 6.03. Not Responsible for Recitals or Issuance of Securities.........62
SECTION 6.04. May Hold Securities............................................63
SECTION 6.05. Money Held in Trust............................................63
SECTION 6.06. Compensation and Reimbursement.................................63
SECTION 6.07. Corporate Trustee Required; Eligibility; Conflicting Interests.64
SECTION 6.08. Resignation and Removal; Appointment of Successor..............64
SECTION 6.09. Acceptance of Appointment by Successor.........................66
SECTION 6.10. Merger, Conversion, Consolidation or Succession to Business....68
SECTION 6.11. Appointment of Authenticating Agent............................68
SECTION 6.12. Certain Duties and Responsibilities of the Trustee.............70
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND ISSUER AND GUARANTOR
SECTION 7.01. Disclosure of Names and Addresses of Holders...................72
SECTION 7.02. Reports by Trustee.............................................72
SECTION 7.03. Reports by Issuer and Guarantor................................72
SECTION 7.04. Issuer to Furnish Trustee Names and Addresses of Holders.......73
ARTICLE VIII
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 8.01. Consolidations and Mergers of Issuer or Guarantor and Sales,
Leases and Conveyances Permitted Subject to
Certain Conditions..........................................74
SECTION 8.02. Rights and Duties of Successor.................................75
SECTION 8.03. Officers' Certificate and Opinion of Counsel...................75
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders.............76
SECTION 9.02. Supplemental Indentures with Consent of Holders................78
SECTION 9.03. Execution of Supplemental Indentures...........................79
SECTION 9.04. Effect of Supplemental Indentures..............................79
SECTION 9.05. Conformity with Trust Indenture Act............................80
SECTION 9.06. Reference in Securities to Supplemental Indentures.............80
ARTICLE X
COVENANTS
SECTION 10.01. Payment of Principal, Premium; and Interest...................80
SECTION 10.02. Maintenance of Office or Agency...............................80
SECTION 10.03. Money for Securities Payments to Be Held in Trust.............82
SECTION 10.04. Existence.....................................................84
SECTION 10.05. Maintenance of Properties.....................................84
SECTION 10.06. Insurance.....................................................85
SECTION 10.07. Payment of Taxes and Other Claims.............................85
SECTION 10.08. Statement as to Compliance....................................85
SECTION 10.09. Waiver of Certain Covenants...................................86
SECTION 10.10. Additional Amounts............................................86
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.01. Applicability of Article......................................87
SECTION 11.02. Election to Redeem; Notice to Trustee.........................88
SECTION 11.03. Selection by Trustee of Securities to Be Redeemed.............88
SECTION 11.04. Notice of Redemption..........................................88
SECTION 11.05 Deposit of Redemption Price...................................90
SECTION 11.06. Securities Payable on Redemption Date.........................90
SECTION 11.07. Securities Redeemed in Part...................................92
SECTION 11.08. Calculation of Original Issue Discount........................92
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ARTICLE XII
GUARANTEES
<S> <C>
SECTION 12.01. Guarantees....................................................92
SECTION 12.02. Execution and Delivery of Guarantees..........................94
SECTION 12.04. Limitation of Guarantor's Liability...........................95
ARTICLE XIII
SINKING FUNDS
SECTION 13.01. Applicability of Article......................................95
SECTION 13.02. Satisfaction of Sinking Fund Payments with Securities.........96
SECTION 13.03. Redemption of Securities for Sinking Fund.....................96
ARTICLE XIV
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 14.01. Applicability of Article......................................97
SECTION 14.02. Repayment of Securities.......................................97
SECTION 14.03. Exercise of Option............................................97
SECTION 14.04. When Securities Presented for Repayment Become Due
and Payable...............................................98
SECTION 14.05. Securities Repaid in Part.....................................99
ARTICLE XV
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 15.01. Applicability of Article; Issuer's Option to Effect
Defeasance or Covenant Defeasance.......................100
SECTION 15.02. Defeasance and Discharge.....................................100
SECTION 15.03. Covenant Defeasance..........................................101
SECTION 15.04. Conditions to Defeasance or Covenant Defeasance..............102
SECTION 15.05. Deposited Money and Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions.................104
ARTICLE XVI MEETINGS OF HOLDERS OF SECURITIES
SECTION 16.01. Purposes for Which Meetings May Be Called....................105
SECTION 16.02. Call, Notice and Place of Meetings...........................105
SECTION 16.03. Persons Entitled to Vote at Meetings.........................106
SECTION 16.04. Quorum; Action...............................................106
SECTION 16.05. Determination of Voting Rights; Conduct
and Adjournment of Meetings..............................108
SECTION 16.06. Counting Votes and Recording Action of Meetings..............109
SIGNATURES AND SEALS........................................................110
EXHIBIT A - FORM OF REDEEMABLE OR NON-REDEEMABLE SENIOR SECURITY............A-1
EXHIBIT B - FORMS OF CERTIFICATION..........................................B-1
EXHIBIT C - FORM OF NOTATION OF GUARANTEE...................................C-1
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
AMERICAN STANDARD INC.
American Standard Companies Inc.
Reconciliation and tie between Trust Indenture Act of 1939
(the "Trust Indenture Act" or "TIA") and Indenture, dated as of October [ ],
1997.
<S> <C>
Trust Indenture Indenture
Act Section Section
ss. 310(a)(1)...........................................................607
(a)(2)...........................................................607
(b).........................................................607, 608
ss. 312(c) .............................................................701
ss. 313(a) .............................................................702
(c)..............................................................702
ss. 314(a) .............................................................703
(a)(4)..........................................................1009
(c)(1)...........................................................102
(c)(2)...........................................................102
(e)..............................................................102
ss. 315(b) .............................................................601
ss. 316(a)(last sentence).............................. 101 ("Outstanding")
(a)(1)(A)................................................. 502, 512
(a)(1)(B)........................................................513
(b)..............................................................508
ss. 317(a)(1)...........................................................503
(a)(2).......................................................... 504
ss. 318(a) .............................................................111
(c)..............................................................111
- -------------------
<FN>
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
Attention should also be directed to TIA Section 3.18(c),
which provides that the provisions of TIA Sections 3.10 to and including 317 are
a part of and govern every qualified indenture, whether or not physically
contained therein.
</FN>
</TABLE>
<PAGE>
INDENTURE, dated as of October [ ], 1997, between AMERICAN
STANDARD INC., a Delaware corporation (hereinafter called the "Issuer"), having
its principal office at One Centennial Avenue, P.O. Box 6820, Piscataway, New
Jersey 08835-6820, and AMERICAN STANDARD COMPANIES INC., a Delaware corporation
(hereinafter called the "Guarantor"), having its principal office at One
Centennial Avenue, P.O. Box 6820, Piscataway, New Jersey 08835-6820, and THE
BANK OF NEW YORK, a New York banking corporation, as Trustee hereunder
(hereinafter called the "Trustee"), having its principal office at 101 Barclay
Street, Floor 21 West, New York, New York 10286, Attn: Corporate Trust Trustee
Administration.
RECITALS OF THE ISSUER
The Issuer and the Guarantor deem it necessary to issue from
time to time for lawful purposes senior debt securities (hereinafter called the
"Securities") evidencing unsecured and senior indebtedness of the Issuer, fully
and unconditionally guaranteed (the "Guarantees") by the Guarantor, and have
duly authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of the Securities, to be issued in one or more series
as provided in this Indenture.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act" or "TIA"), that are
deemed to be incorporated into this Indenture and shall, to the extent
applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement
of the Issuer and the Guarantor, in accordance with its terms, have been done.
Further, all things necessary to make the Securities, when duly issued and
executed by the Issuer and authenticated and delivered hereunder, and the
Guarantees, when duly issued and executed by the Guarantor, the valid joint and
several obligations of the Issuer and the Guarantor, respectively, and to make
this Indenture, a valid and binding agreement of the Issuer and the Guarantor,
have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions. For all purposes of this Indenture, except as
otherwise expressly provided 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
TIA, either directly or by reference therein, have the meanings
assigned to them therein, and the terms "cash transaction" and
"self-liquidating paper," as used in TIA Section 3.11, shall have the
meanings assigned to them in the rules of the Commission adopted under
the TIA;
(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," when used with respect to any Holder, has the meaning
specified in Section 1.04.
"Additional Amounts" means any additional amounts which are
required by a Security or by or pursuant to a Board Resolution, under
circumstances specified therein, to be paid by the Issuer or Guarantor pursuant
to Section 10.10 in respect of certain taxes, duties, assessments or other
governmental charges imposed on certain holders and which are owing to such
holders.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
<PAGE>
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 6.11 hereof to act on behalf of the Trustee to
authenticate Securities.
"Authorized Newspaper" means a newspaper, printed in the
English language or in an official language of the country of publication,
customarily published on each Business Day, whether or not published on
Saturdays, Sundays or holidays, and of general circulation in each place in
connection with which the term is used or in the financial community of each
such place. Whenever successive publications are required to be made in
Authorized Newspapers, the successive publications may be made in the same or in
different Authorized Newspapers in the same city meeting the foregoing
requirements and in each case on any Business Day.
"Bankruptcy Law" has the meaning specified in Section 5.01.
"Bearer Security" means any Security established pursuant to
Section 3.01 which is payable to bearer.
"Board of Directors" means the board of directors of the
Issuer or Guarantor or any committee of that board duly authorized to act
hereunder, as the case may be.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Issuer or the Guarantor, as the
case may be, to have been duly adopted by the Board of Directors and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day," when used with respect to any Place of Payment
or any other particular location referred to in this Indenture or in the
Securities, means, unless otherwise specified with respect to any Securities
issued pursuant to Section 3.01, any day, other than a Saturday or Sunday, that
is not a day on which banking institutions in that Place of Payment or
particular location are authorized or required by law, regulation or executive
order to close.
"Capital Stock" of any Person means any and all shares,
interests, participations, rights to purchase, warrants, options or other
equivalents (however designated) of corporate stock or other equity of such
Person.
"CEDEL" means Centrale de Livraison de Valueurs Mobilieres,
S.A., or its successor.
"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 execution of this instrument such Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"Common Stock" means the Common Stock, par value $.01 per
share, of the Issuer or any security into which the common stock may be
converted.
"Consolidated Net Assets" means as of any particular time the
aggregate amount of assets (less applicable reserves and other properly
deductible items) after deducting therefrom all current liabilities except for
(a) notes and loans payable, (b) current maturities of long-term debt and (c)
current maturities of obligations under capital leases, all as set forth on the
most recent consolidated balance sheet of the Issuer and its consolidated
Subsidiaries and computed in accordance with GAAP.
"Corporate Trust Office" means the office of the Trustee at
which, at any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at the address
specified in the preamble hereto.
"corporation" includes corporations, associations, companies
and business trusts.
"coupon" means any interest coupon appertaining to a Bearer
Security.
"Custodian" has the meaning specified in Section 5.01.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States of America as at the time shall be
legal tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
"Euroclear" means Morgan Guaranty Trust Company of New York,
<PAGE>
Brussels office, or its successor as operator of the Euroclear System.
"European Communities" means the European Economic Community,
the European Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Event of Default" has the meaning specified in Article Five.
"Facility" means the Amended and Restated Credit Agreement among American
Standard Companies Inc., American Standard Inc. and the finacial institutions
named therein.
"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.
"GAAP" means, except as otherwise provided herein, generally
accepted accounting principles, as in effect from time to time, as used in the
United States applied on a consistent basis.
"Global Security" means a Security evidencing all or a part of
a series of Securities issued to and registered in the name of the depository
for such series, or its nominee, in accordance with Section 3.05, and bearing
the legend prescribed in Section 2.03.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the government which issued the
Foreign Currency in which the Securities of a particular series are payable, for
the payment of which its full faith and credit is pledged 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 government which issued the Foreign
Currency in which the Securities of such series are payable, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States of America or such other government, which, in either case, are
not callable or redeemable at the option of the issuer 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.
"Guarantee" shall have the meaning specified in Section 12.01.
"Guarantor" means American Standard Companies, Inc. a Delaware corporation,
and subject to the provisions of Article Twelve, shall also include its
successors and assigns.
"Holder" means, in the case of a Registered Security, the Person in whose
name a Security is registered in the Security Register and, in the case of a
Bearer Security, the bearer thereof and, when used with respect to any coupon,
shall mean the bearer thereof.
"Indebtedness" means, with respect to any Person, without duplication, (i)
any Obligation of such Person relating to any indebtedness of such Person (A)
for borrowed money (whether or not the recourse of the lender is to the whole of
the assets, of such person or only to a portion thereof), (B) evidenced by
notes, debentures or similar instruments (including purchase money obligations)
given in connection with the acquisition of any property or assets (other than
trade accounts payable for inventory or similar property acquired in the
ordinary course of business), including securities, for the payment of which
such Person is liable, directly or indirectly, or the payment of which is
secured by a lien, charge or encumbrance on property or assets of such Person,
(C) for goods, materials or services purchased in the ordinary course of
business (other than trade accounts payable arising in the ordinary course of
business), (D) with respect to letters of credit or bankers acceptances issued
for the account of such Person or performance, surety or similar bonds, (E) for
the payment of money relating to a Capitalized Lease Obligation or (F) under
interest rate swaps, caps or similar agreements and foreign exchange contracts,
currency swaps or similar agreements; (ii) any liability of others of the kind
described in the preceding clause (i), which such Person has guaranteed or which
is otherwise its legal liability; and (iii) any and all deferrals, renewals,
extensions and refunding of, or amendments, modifications or supplements to, any
liability of the kind described in any of the preceding clauses (i) or (ii).
<PAGE>
"Indenture" means this instrument as originally executed or as it may be
supplemented or amended from time to time by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, and shall
include the terms of particular series of Securities established as contemplated
by Section 3.01; provided, however, that, if at any time more than one Person is
acting as Trustee under this instrument, "Indenture" shall mean, with respect to
any one or more series of Securities for which such Person is Trustee, this
instrument as originally executed or as it may be supplemented or amended from
time to time by one or more indentures supplemental hereto entered into pursuant
to the applicable provisions hereof and shall include the terms of the or those
particular series of Securities for which such Person is Trustee established as
contemplated by Section 3.01, exclusive, however, of any provisions or terms
which relate solely to other series of Securities for which such Person is
Trustee, regardless of when such terms or provisions were adopted, and exclusive
of any provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had become such
Trustee but to which such Person, as such Trustee, was not a party.
"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, shall mean 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.
"Issuer" means the Person named as the "Issuer" in the first paragraph of
this Indenture until a successor shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Issuer" shall mean such
successor.
"Issuer Request" and "Issuer Order" mean, respectively, a written request
or order signed in the name of the Issuer by its Chairman of the Board, the
President or a Vice President, and by its Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary, of the Issuer, and delivered to the
Trustee.
"Make-Whole Amount," when used with respect to any Security, means the
amount, if any, in addition to principal which is required by a Security, under
the terms and conditions specified therein or as otherwise specified as
contemplated by Section 3.01, to be paid by the Issuer to the Holder thereof in
connection with any optional redemption or accelerated payment of such Security.
"Maturity," when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption, notice of option to elect
repayment or otherwise.
"Obligation" of any Person with respect to any specified Indebtedness means
any obligation of such Person to pay principal, premium, interest (including
interest accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to such Person, whether or not a claim for such
post-petition interest is allowed in such Proceeding), penalties, reimbursement
or indemnification amounts, fees, expenses or other amounts relating to such
Indebtedness.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board of Directors, the President or a Vice President and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary of the Issuer or
the Guarantor, as the case may be, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Issuer or the Guarantor, as the case may be, or who may be an employee
of or other counsel for the Issuer of the Guarantor, as the case may be, and who
shall be satisfactory to the Trustee and delivered to the Trustee.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.02.
"Outstanding," when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
<PAGE>
(ii) Securities, or portions thereof, for whose payment or redemption
(including repayment at the option of the Holder) money in the necessary amount
has been theretofore deposited with the Trustee or any Paying Agent (other than
the Issuer or Guarantor) in trust or set aside and segregated in trust by the
Issuer (if the Issuer or Guarantor shall act as its own Paying Agent) for the
Holders of such Securities and any coupons appertaining thereto; provided,
however, that, if such Securities are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii) Securities, except to the extent provided in Sections 15.02 and
15.03, with respect to which the Issuer has effected defeasance and/or covenant
defeasance as provided in Article Fourteen; and
(iv) Securities which have been paid pursuant to Section 3.06 or in
exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in respect
of which there shall have been presented to the Trustee proof satisfactory to it
that such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Issuer; 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 are present at a meeting of Holders for
quorum purposes, and for the purpose of making the calculations required by TIA
Section 3.13, (i) the principal amount of an Original Issue Discount Security
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 5.02, (ii) the principal amount of
any Security denominated in a Foreign Currency that may be counted in making
such determination or calculation and that shall be deemed Outstanding for such
purpose shall be equal to the Dollar equivalent, determined pursuant to Section
3.01 as of the date such Security is originally issued by the Issuer, of the
principal amount (or, in the case of an Original Issue Discount Security, the
Dollar equivalent as of such date of original issuance of the amount determined
as provided in clause (i) above) of such Security, (iii) the principal amount of
any Indexed Security that may be counted in making such determination or
calculation 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 with respect to such Security pursuant to Section
3.01, and (iv) Securities owned by the Issuer or any other obligor upon the
Securities or any Affiliate of the Issuer 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 a Responsible Officer of the Trustee actually
knows to be so owned shall be so disregarded. Securities owned as provided in
clause (iv) above 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 Issuer or any other obligor upon the Securities or any Affiliate of
the Issuer or of such other obligor. In case of a dispute as to such right, the
advice of counsel shall be full protection in respect of any decision made by
the Trustee in accordance with such advice.
"Paying Agent" means any Person authorized by the Issuer or
Guarantor to pay the principal of (and premium) or interest on any Securities or
coupons on behalf of the Issuer or Guarantor.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of or within
any series, means the place or places where the principal of (and premium) and
interest on such Securities are payable as specified as contemplated by Sections
3.01 and 10.02 or the Corporate Trust Office of the Trustee.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains.
"Preferred Stock" means, with respect to any Person, all capital stock
issued by such Person that are entitled to a preference or priority over any
other capital stock issued by such Person with respect to any distribution of
such Person's assets, whether by dividend or upon any voluntary or involuntary
liquidation, dissolution or winding up.
<PAGE>
"Redemption Date," when used with respect to any Security to be redeemed,
in whole or in part, means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price," when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Registered Security" shall mean any Security which is registered in the
Security Register.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Registered Securities of or within any series means the date specified
for that purpose as contemplated by Section 3.01, whether or not a Business Day.
"Repayment Date" means, when used with respect to any Security to be repaid
at the option of the Holder, the date fixed for such repayment by or pursuant to
this Indenture.
"Repayment Price" means, when used with respect to any Security to be
repaid at the option of the Holder, the price at which it is to be repaid by or
pursuant to this Indenture.
"Responsible Officer," when used with respect to the Trustee, means any
vice president (whether or not designated by a number or a word or words added
before or after the title "vice president"), any assistant secretary, any
assistant treasurer, any trust officer or assistant trust officer, the
controller or any other officer or employee of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of such officer's
knowledge and familiarity with the particular subject.
"Security" has the meaning stated in the first recital of this Indenture
and, more particularly, means any Security or Securities authenticated and
delivered under this Indenture; provided, however, that, if at any time there is
more than one Person acting as Trustee under this Indenture, "Securities" with
respect to the Indenture as to which such Person is Trustee shall have the
meaning stated in the first recital of this Indenture and shall more
particularly mean Securities authenticated and delivered under this Indenture,
exclusive, however, of Securities of any series as to which such Person is not
Trustee.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 3.05.
"Significant Subsidiary" means any Subsidiary which is a "significant
subsidiary" (as defined in Article I, Rule 1-02 of Regulation S-X, promulgated
under the Securities Act of 1933) of the Issuer.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of or within any series means a date fixed by the Trustee
pursuant to Section 3.07.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Stock Trading Day" means each day on which the securities exchange or
quotation system which is used to determine the market price is open for trading
or quotation.
"Subsidiary" means a Person (other than an individual), a
majority of the outstanding voting stock, partnership interests, membership
interests or other equity interest, as the case may be, of which is owned or
controlled, directly or indirectly, by the Issuer or by one or more other
Subsidiaries of the Issuer. For the purposes of this definition, "voting stock"
means stock having voting power for the election of directors, trustees or
managers, as the case may be, whether at all times or only so long as no senior
class of stock has such voting power by reason of any contingency.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939, as amended and as in force at the date as of which this Indenture was
executed, except as provided in Section 9.05.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder;
provided, however, that if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
<PAGE>
"United States" means, unless otherwise specified with respect
to any Securities pursuant to Section 3.01, the United States of America
(including the states and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction.
"United States Person" means, unless otherwise specified with
respect to any Securities pursuant to Section 3.01, an individual who is a
citizen or resident of the United States, a corporation, partnership or other
entity created or organized in or under the laws of the United States or an
estate or trust the income of which is subject to United States Federal income
taxation regardless of its source.
"Yield to Maturity" means the yield to maturity, computed at
the time of issuance of a Security (or, if applicable, at the most recent
redetermination of interest on such Security) and as set forth in such Security
in accordance with generally accepted United States bond yield computation
principles.
SECTION 1.02. Compliance Certificates and Opinions. Upon any
application or request by the Issuer or Guarantor to the Trustee to take any
action under any provision of this Indenture, the Issuer or the Guarantor, as
the case may be, 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 (including certificates
delivered pursuant to Section 10.08) 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 or not, in the opinion of each
such individual, such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any certificate or opinion of an officer of the Issuer or
Guarantor may be based, insofar as it relates to legal matters, upon an Opinion
of Counsel, or a certificate or representations by counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the opinion,
certificate or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such Opinion of Counsel or
certificate or representations 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 Issuer stating that the information as to such factual matters
is in the possession of the Issuer, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 1.04. 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 of the Outstanding Securities of
all series or one or more series, as the case may be, may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by agents duly appointed in writing. If Securities of
a series are issuable as Bearer Securities, any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders of Securities of such series may, alternatively, be
embodied in and evidenced by the record of Holders of Securities of such series
voting in favor thereof, either in person or by proxies duly appointed in
writing, at any meeting of Holders of Securities of such series duly called and
held in accordance with the provisions of Article Fifteen, or a combination of
such instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or record or both are received by the Trustee and, where it is hereby expressly
<PAGE>
required, by the Issuer or the Guarantor. Such instrument or instruments and any
such record (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments or so voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent, or of the holding by any
Person of a Security, shall be sufficient for any purpose of this Indenture and
conclusive in favor of the Trustee and the Issuer or the Guarantor and any agent
of the Trustee, the Issuer or the Guarantor, if made in the manner provided in
this Section. The record of any meeting of Holders of Securities shall be proved
in the manner provided in Section 16.06.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other reasonable manner which the Trustee deems sufficient.
(c) The ownership of Registered Securities shall be proved by
the Security Register. As to any matter relating to beneficial ownership
interests in any Global Security, the appropriate depository's records shall be
dispositive for purposes of this Indenture.
(d) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed, as
depository, 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, the Issuer and Guarantor may assume that such
ownership of any Bearer Security continues until (1) another certificate or
affidavit bearing a later date issued in respect of the same Bearer Security is
produced, or (2) such Bearer Security is produced to the Trustee by some other
Person, or (3) such Bearer Security is surrendered in exchange for a Registered
Security, or (4) such Bearer Security is no longer Outstanding. The ownership of
Bearer Securities may also be proved in any other manner which the Trustee deems
sufficient.
(e) If the Issuer or the Guarantor shall solicit from the
Holders of Registered Securities any request, demand, authorization, direction,
notice, consent, waiver or other Act, the Issuer or Guarantor may, at its
option, in 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 Issuer
of Guarantor shall have no obligation to do so. Notwithstanding TIA Section
3.16(c), such record date shall be the record date specified in or pursuant to
such Board Resolution, which shall be a date not earlier than the date 30 days
prior to the first solicitation of Holders generally in connection therewith and
not later than the date such solicitation is completed. 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 eleven
months after the record date.
(f) 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, any
Security Registrar, any Paying Agent, any Authenticating Agent or the Issuer in
reliance thereon, whether or not notation of such action is made upon such
Security.
SECTION 1.05. Notices, etc., to Trustee and Issuer. 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 Issuer or the
Guarantor shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing to or with the Trustee at its
Corporate Trust Office; or
<PAGE>
(2) the Issuer or the Guarantor by the Trustee or by any
Holder shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and mailed, first
class postage prepaid, to the Issuer or the Guarantor addressed to it
at the address of its principal office specified in the first paragraph
of this Indenture or at any other address previously furnished in
writing to the Trustee by the Issuer or the Guarantor , Attention:
Chief Financial Officer; or
(3) either the Trustee or the Issuer and the Guarantor, by
the other party, shall be sufficient for every purpose hereunder if
given by facsimile transmission, receipt confirmed by telephone
followed by an original copy delivered by guaranteed overnight courier;
if to the Trustee at facsimile number [(212) 815-5915]; and if to the
Issuer at facsimile number [ ].
SECTION 1.06. Notice to Holders: Waiver. Where this Indenture
provides for notice of any event to Holders of Registered Securities by the
Issuer, the Guarantor or the Trustee, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each such Holder affected by such event, at his
address as it appears in the Security Register, not later than the latest date,
if any, and not earlier than the earliest date, if any, prescribed for the
giving of such notice. In any case where notice to Holders of Registered
Securities is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. Any notice 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.
If by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause it shall be impracticable to give
such notice by mail, then such notification to Holders of Registered Securities
as shall be made with the approval of the Trustee shall constitute a sufficient
notification to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise
specified with respect to any Securities pursuant to Section 3.01, where this
Indenture provides for notice to Holders of Bearer Securities of any event, such
notice shall be sufficiently given if published in an Authorized Newspaper in
The City of New York and in such other city or cities as may be specified in
such Securities on a Business Day, such publication to be not later than the
latest date, if any, and not earlier than the earliest date, if any, prescribed
for the giving of such notice. Any such notice shall be deemed to have been
given on the date of such publication or, if published more than once, on the
date of the first such publication.
If by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any other cause it
shall be impracticable to publish any notice to Holders of Bearer Securities as
provided above, then such notification to Holders of Bearer Securities as shall
be given with the approval of the Trustee shall constitute sufficient notice to
such Holders for every purpose hereunder. Neither the failure to give notice by
publication to any particular Holder of Bearer Securities as provided above, 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 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 the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 1.07. Counterparts; Effect of Headings and Table of
Contents. This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Indenture. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 1.08. Successors and Assigns. All covenants and
agreements in this Indenture by the Issuer and the Guarantor shall bind their
respective successors and assigns, whether so expressed or not.
SECTION 1.09. Severability Clause. In case any provision in
this Indenture or in any Security or coupon shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
<PAGE>
SECTION 1.10. Benefits of Indenture. Nothing in this Indenture
or in the Securities or coupons, express or implied, shall give to any Person,
other than the parties hereto, any Security Registrar, any Paying Agent, any
Authenticating Agent 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 and the Securities
and coupons shall be governed by and construed in accordance with the laws of
the State of New York without regard to conflicts of laws principles thereof.
This Indenture is subject to the provisions of the TIA that are required to be
part of this Indenture and shall, to the extent applicable, be governed by such
provisions.
SECTION 1.12. Legal Holidays. In any case where any Interest
Payment Date, Redemption Date, Repayment Date, sinking fund payment date, Stated
Maturity or Maturity of any Security or the last date on which a Holder has the
right to exchange a Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or any
Security or coupon other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu hereof), payment of
interest or principal (and premium) or exchange of such security need not be
made at such Place of Payment on such date, but (except as otherwise provided in
the supplemental indenture with respect to such Security) may be made on the
next succeeding Business Day at such Place of Payment with the same force and
effect as if made on the Interest Payment Date, Redemption Date, Repayment Date
or sinking fund payment date, or at the Stated Maturity or Maturity, or on such
last day for exchange, provided that no interest shall accrue on the amount so
payable for the period from and after such Interest Payment Date, Redemption
Date, Repayment Date, sinking fund payment date, Stated Maturity or Maturity, as
the case may be.
SECTION 1.13. No Recourse Against Others. No recourse under or
upon any obligation, covenant or agreement contained in this Indenture, or in
any Security, or because of any indebtedness evidenced thereby, shall be had
against any past, present or future stockholder, employee, officer, director,
incorporator, limited or general partner, as such, of the Issuer or of any
successor, either directly or through the Issuer or Guarantor or any successor,
under any rule of law, statute or constitutional provision or by the enforcement
of any assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities by the Holders and as part of the consideration for the issue of the
Securities.
SECTION 1.14. Conflict with Trust Indenture Act. If any
provision hereof limits, qualifies or conflicts with another provision hereof
which is required or deemed to be included in this Indenture by any of the
provisions of the Trust Indenture Act, such required provision shall control. If
any provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
ARTICLE II
SECURITIES FORMS
SECTION 2.01. Forms of Securities. The Registered Securities,
if any, of each series and the Bearer Securities, if any, of each series and
related coupons shall be substantially in the form of Exhibit A hereto or in
such other form as shall be established in one or more indentures supplemental
hereto or approved from time to time by or pursuant to a Board Resolution in
accordance with Section 3.01, shall have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture or any indenture supplemental hereto, and may have such letters,
numbers or other marks of identification or designation and such legends or
endorsements placed thereon as the Issuer may deem appropriate and as are not
inconsistent with the provisions of this Indenture, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto or with
any rule or regulation of any stock exchange on which the Securities may be
listed, or to conform to usage.
Unless otherwise specified as contemplated by Section 3.01,
Bearer Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed,
lithographed or engraved or produced by any combination of these methods on a
steel engraved border or steel engraved borders or mechanically reproduced on
safety paper or may be produced in any other manner, all as determined by the
officers executing such Securities or coupons, as evidenced by their execution
of such Securities or coupons.
SECTION 2.02. Form of Trustee's Certificate of
Authentication. Subject to Section 6.11, the Trustee's certificate of
authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated: ______________ The Bank of New York
as Trustee
By:
Authorized Signatory
<PAGE>
SECTION 2.03. Securities Issuable in Global Form. If
Securities of or within a series are issuable in the form of one or more Global
Securities, then, notwithstanding clause (10) of Section 3.01 and the provisions
of Section 3.02, any such Global Security or Securities may provide that it or
they shall represent the aggregate amount of all Outstanding Securities of such
series (or such lesser amount as is permitted by the terms thereof) from time to
time endorsed thereon and may also provide that the aggregate amount of
Outstanding Securities of such series represented thereby may from time to time
be increased or decreased to reflect exchanges. Any endorsement of any Global
Security to reflect the amount, or any increase or decrease in the amount, or
changes in the rights of Holders thereof, of Outstanding Securities represented
thereby shall be made by the Trustee in such manner or by such Person or Persons
as shall be specified therein or in the Issuer Order to be delivered to the
Trustee pursuant to Section 3.03 or 3.04. Subject to the provisions of Section
3.03 and, if applicable, Section 3.04, the Trustee shall deliver and redeliver
any Global Security in permanent global form in the manner and upon instructions
given by the Person or Persons specified therein or in the applicable Issuer
Order. If an Issuer Order pursuant to Section 3.03 or 3.04 has been, or
simultaneously is, delivered, any instructions by the Issuer with respect to
endorsement or delivery or redelivery of a Global Security shall be in writing
but need not comply with Section 1.02 and need not be accompanied by an Opinion
of Counsel.
The provisions of the last sentence of Section 3.03 shall
apply to any Security represented by a Global Security if such Security was
never issued and sold by the Issuer and the Issuer delivers to the Trustee the
Global Security together with written instructions (which need not comply with
Section 1.02 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 sentence of Section
3.03.
Notwithstanding the provisions of Section 3.07, unless
otherwise specified as contemplated by Section 3.01, payment of principal of and
any premium, and interest on any Global Security in permanent global form shall
be made to the registered Holder thereof.
Notwithstanding the provisions of Section 3.08 and except as
provided in the preceding paragraph, the Issuer, the Trustee and any agent of
the Issuer and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a permanent Global Security (i) in the
case of a permanent Global Security in registered form, the Holder of such
permanent Global Security in registered form, or (ii) in the case of a permanent
Global Security in bearer form, Euroclear or CEDEL.
Any Global Security authenticated and delivered hereunder
shall bear a legend in substantially the following form:
"This Security is a Global Security within the meaning set forth in the
Indenture hereinafter referred to and is registered in the name of a
Depository or a nominee of a Depository. This Security is exchangeable
for Securities registered in the name of a person other than the
Depository or its nominee only in the limited circumstances described
in the Indenture, and 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 its nominee to a successor Depository or its
nominee."
ARTICLE III
THE SECURITIES
SECTION 3.01. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in one or more Board Resolutions or pursuant to authority
granted by one or more Board Resolutions and, subject to Section 3.03, set forth
in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series:
(1) The title of the Securities and Guarantees of the series
(which shall distinguish the Securities and Guarantees of such series
from all other series of Securities);
(2) Any limit upon the aggregate principal amount of the
Securities and Guarantees of the series that may be authenticated and
delivered under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of the series pursuant to Section 3.04, 3.05,
3.06, 9.06, 11.07 or 14.05);
(3) The price (expressed as a percentage of the principal
amount thereof) at which such Securities will be issued and, if other
than the principal amount thereof, the portion of the principal amount
thereof payable upon declaration of acceleration of the maturity
thereof;
<PAGE>
(4) The date or dates, or the method for determining such
date or dates, on which the principal of such Securities will be
payable;
(5) The rate or rates (which may be fixed or variable), or
the method by which such rate or rates shall be determined, at which
such Securities will bear interest, if any;
(6) The date or dates, or the method for determining such
date or dates, from which any such interest will accrue, the dates on
which any such interest will be payable, the record dates for such
interest payment dates, or the method by which such dates shall be
determined, the persons to whom such interest shall be payable, and the
basis upon which interest shall be calculated if other than that of a
360-day year of twelve 30-day months;
(7) The place or places where the principal of (and premium,
if any) and interest, if any, on such Securities will be payable, where
such Securities may be surrendered for registration of transfer or
exchange and where notices or demands to or upon the Issuer in respect
of such Securities and this Indenture may be served;
(8) The period or periods, if any, within which the price or
prices at which and the other terms and conditions upon which such
Securities may, pursuant to any optional or mandatory redemption
provisions, be redeemed, as a whole or in part, at the option of the
Issuer;
(9) The obligation, if any, of the Issuer to redeem, repay
or purchase such Securities pursuant to any sinking fund or analogous
provision 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 such Securities will be redeemed, repaid or
purchased, as a whole or in part, pursuant to such obligation;
(10) The denominations in which any Securities will be
issuable, if other than denominations of U.S.$1,000 and any integral
multiple thereof;
(11) If other than Dollars, the currency or currencies in
which such Securities are denominated and payable, which may be a
foreign currency or units of two or more foreign currencies or a
composite currency or currencies, the manner of determining the
equivalent thereof in Dollars for purposes of the definition of
"Outstanding" in Section 1.01, and the terms and conditions relating
thereto;
(12) Whether the amount of payments of principal of (and
premium, if any, including any amount due upon redemption, if any) or
interest, if any, on such Securities may be determined with reference
to an index, formula or other method (which index, formula or method
may, but need not be, based on the yield on or trading price of other
securities, including United States Treasury securities or on a
currency, currencies, currency unit or units, or composite currency or
currencies) and the manner in which such amounts shall be determined;
(13) Whether the principal of (and premium, if any) or
interest on the Securities of the series are to be payable, at the
election of the Issuer or a holder thereof, in a currency or
currencies, currency unit or units or composite currency or currencies
other than that in which such Securities are denominated or stated to
be payable, the period or periods within which, and the terms and
conditions upon which, such election may be made, and the time and
manner of, and identity of the exchange rate agent with responsibility
for, determining the exchange rate between the currency or currencies,
currency unit or units or composite currency or currencies in which
such Securities are denominated or stated to be payable and the
currency or currencies, currency unit or units or composite currency or
currencies in which such Securities are to be so payable;
(14) Provisions, if any, granting special rights to the
holders of Securities of the series upon the occurrence of such events
as may be specified;
(15) Any deletions from, modifications of or additions to the
Events of Default or covenants of the Issuer with respect to Securities
of the series, whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth herein;
(16) Whether and under what circumstances the Issuer will pay
any additional amounts on such Securities in respect of any tax,
assessment or governmental charge and, if so, whether the Issuer will
have the option to redeem such Securities in lieu of making such
payment;
<PAGE>
(17) Whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or
both, any restrictions applicable to the offer, sale or delivery of
Bearer Securities and the terms upon which Bearer Securities of the
series may be exchanged for Registered Securities of the series and
vice versa (if permitted by applicable laws and regulations), whether
any Securities of the series are to be issuable initially in temporary
global form and whether any Securities of the series are to be issuable
in permanent global form with or without coupons and, if so, whether
beneficial owners of interests in any such permanent global Security
may exchange such interests for Securities of such series and of like
tenor of any authorized form and denomination and the circumstances
under which any such exchanges may occur, if other than in the manner
provided in the Indenture, and, if Registered Securities of the series
are to be issuable as a Global Security, the identity of the depository
for such series;
(18) The date as of which any Bearer Securities of the series
and any temporary Global Security representing outstanding Securities
of the series shall be dated if other than the date of original
issuance of the first Security of the series to be issued;
(19) The Person to whom any interest on any Registered
Security of the series shall be payable, if other than the Person in
whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, the manner in which, or the Person to whom, any interest on
any Bearer Security of the series shall be payable, if otherwise than
upon presentation and surrender of the coupons appertaining thereto as
they severally mature, and the extent to which, or the manner in which,
any interest payable on a temporary Global Security on an Interest
Payment Date will be paid if other than in the manner provided herein;
(20) Whether such Securities will be issued in certificated
or book entry form;
(21) The applicability, if any, of the defeasance and
covenant defeasance provisions of Article Fifteen hereof to the
Securities of the series;
(22) The terms and conditions, if any, under which the
Securities may be converted or exchanged into other securities of the
Issuer or any other Person;
(23) If the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
then the form and/or terms of such certificates, documents or
conditions; and
(24) Any other terms of the series (which terms shall not
be inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons 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 in or pursuant to such Board Resolution (subject to
Section 3.03) and set forth in such Officers' Certificate or in any such
indenture supplemental hereto. All Securities of any one series need not be
issued at the same time and, unless otherwise provided, a series may be
reopened, without the consent of the Holders, for issuances of additional
Securities of such series.
If any of the terms of the Securities and Guarantees of any
series are established by action taken pursuant to one or more Board
Resolutions, a copy of an appropriate record of such action(s) shall be
certified by the Secretary or an Assistant Secretary of the Issuer and delivered
to the Trustee at or prior to the delivery of the Officers' Certificate setting
forth the terms of the Securities of such series.
SECTION 3.02. Denominations. The Securities of each series
shall be issuable in such denominations as shall be specified as contemplated by
Section 3.01. With respect to Securities of any series denominated in Dollars,
in the absence of any such provisions with respect to the Securities of any
series, the Securities of such series, other than Global Securities (which may
be of any denomination), shall be issuable in denominations of $1,000 and any
integral multiple thereof.
SECTION 3.03. Execution, Authentication, Delivery and Dating.
The Securities and any coupons appertaining thereto shall be executed on behalf
of the Issuer by its Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon, and attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities and coupons may be manual or facsimile signatures of
the present or any future such authorized officer and may be imprinted or
otherwise reproduced on the Securities.
<PAGE>
Securities or coupons bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the Issuer
shall bind the Issuer, 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 or
coupons.
At any time and from time to time after the execution and
delivery of this Indenture, the Issuer may deliver Securities of any series,
together with any coupon appertaining thereto, executed by the Issuer to the
Trustee for authentication, together with an Issuer Order for the authentication
and delivery of such Securities, and the Trustee in accordance with the Issuer
Order shall authenticate and make available for delivery such Securities;
provided, however, that, in connection with its original issuance, no Bearer
Security shall be mailed or otherwise delivered to any location in the United
States; and provided further that, unless otherwise specified with respect to
any series of Securities pursuant to Section 3.01, a Bearer Security may be
delivered in connection with its original issuance only if the Person entitled
to receive such Bearer Security shall have furnished a certificate to Euroclear
or CEDEL, as the case may be, in the form set forth in Exhibit B-1 to this
Indenture or such other certificate as may be specified with respect to any
series of Securities pursuant to Section 3.01, dated no earlier than 15 days
prior to the earlier of the date on which such Bearer Security is delivered and
the date on which any temporary Security first becomes exchangeable for such
Bearer Security in accordance with the terms of such temporary Security and this
Indenture. If any Security shall be represented by a permanent global Bearer
Security, then, for purposes of this Section and Section 3.04, the notation of a
beneficial owner's interest therein upon original issuance of such Security or
upon exchange of a portion of a temporary Global Security shall be deemed to be
delivery in connection with its original issuance of such beneficial owner's
interest in such permanent Global Security. Except as permitted by Section 3.06,
the Trustee shall not authenticate and deliver any Bearer Security unless all
appurtenant coupons for interest then matured have been detached and canceled.
If all the Securities of any series are not to be issued at
one time and if the Board Resolution or supplemental indenture establishing such
series shall so permit, such Issuer Order may set forth procedures acceptable to
the Trustee for the issuance of such Securities and determining the terms of
particular Securities of such series, such as interest rate or formula, maturity
date, date of issuance and date from which interest shall accrue. 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 TIA Section 3.15(a) through 3.15(d)) shall
be fully protected in relying upon,
(i) an Opinion of Counsel stating that
(a) the form or forms of such Securities and any
coupons have been established in conformity with the
provisions of this Indenture;
(b) the terms of such Securities and any coupons have
been established in conformity with the provisions of this
Indenture;
(c) such Securities, together with any coupons
appertaining thereto, when completed by appropriate insertions
and executed and delivered by the Issuer to the Trustee for
authentication in accordance with this Indenture,
authenticated and made available for delivery by the Trustee
in accordance with this Indenture and issued by the Issuer in
the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute legal, valid and legally
binding obligations of the Issuer, enforceable in accordance
with their terms, subject to applicable bankruptcy,
insolvency, fraudulent transfer, reorganization and other
similar laws of general applicability relating to or affecting
the enforcement of creditors' rights generally and to general
equitable principles; and
(d) that all laws and requirements in respect of the
execution and delivery by the Issuer of such Securities have
been complied with.
(ii) an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the issuance of
the Securities have been complied with and that, to the best of the
knowledge of the signers of such certificate, that no Event of Default
with respect to any of the Securities shall have occurred and be
continuing.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties,
obligations or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
<PAGE>
Notwithstanding the provisions of Section 3.01 and of the
preceding paragraph, if all the Securities of any series are not to be issued at
one time, it shall not be necessary to deliver an Officers' Certificate
otherwise required pursuant to Section 3.01 or an Issuer Order, or an Opinion of
Counsel or an Officers' Certificate otherwise required pursuant to the preceding
paragraph at the time of issuance of each Security of such series, but such
order, opinion and certificates, with appropriate modifications to cover such
future issuances, shall be delivered at or before the time of issuance of the
first Security of such series.
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 3.01.
No Security or coupon shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there appears on
such Security or Security to which such coupon appertains a certificate of
authentication substantially in the form provided for herein duly executed by
the Trustee by manual signature of an authorized signatory, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture. Notwithstanding the foregoing, if any Security
(including a Global Security) shall have been authenticated and delivered
hereunder but never issued and sold by the Issuer, and the Issuer shall deliver
such Security to the Trustee for cancellation as provided in Section 3.09
together with a written statement (which need not comply with Section 1.02 and
need not be accompanied by an Opinion of Counsel) stating that such Security has
never been issued and sold by the Issuer, for all purposes of this Indenture
such Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
SECTION 3.04. Temporary Securities. (a) Pending the
preparation of definitive Securities of any series, the Issuer may execute, and
upon Issuer Order the Trustee shall authenticate and make available for
delivery, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form, or, if authorized, in bearer form with one or
more coupons or without coupons, and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as conclusively evidenced by their execution of such
Securities. In the case of Securities of any series, such temporary Securities
may be in global form.
Except in the case of temporary Global Securities (which shall
be exchanged as otherwise provided herein or as otherwise provided in or
pursuant to a Board Resolution), if temporary Securities of any series are
issued, the Issuer will cause definitive Securities of that series to be
prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Issuer in a
Place of Payment for that series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series
(accompanied by any non-matured coupons appertaining thereto), the Issuer shall
execute and the Trustee shall authenticate and make available for delivery in
exchange therefor a like principal amount of definitive Securities of the same
series of authorized denominations; provided, however, that no definitive Bearer
Security shall be delivered in exchange for a temporary Registered Security; and
provided further that a definitive Bearer Security shall be delivered in
exchange for a temporary Bearer Security only in compliance with the conditions
set forth in Section 3.03. 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.
(b) Unless otherwise provided in or pursuant to a Board
Resolution, the following provisions of this Section 3.04(b) shall govern the
exchange of temporary Securities other than through the facilities of The
Depository Trust Company. If any such temporary Security is issued in global
form, then such temporary Global Security shall, unless otherwise provided
therein, be delivered to the London office of a depository or common depository
(the "Common Depository"), for the benefit of Euroclear and CEDEL, for credit to
the respective accounts of the beneficial owners of such Securities (or to such
other accounts as they may direct).
Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such temporary
Global Security (the "Exchange Date"), the Issuer shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary Global Security, executed by the Issuer. On or after
the Exchange Date, such temporary Global Security shall be surrendered by the
Common Depository to the Trustee, as the Issuer's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities
without charge, and the Trustee shall authenticate and deliver, in exchange for
each portion of such temporary Global Security, an equal aggregate principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such temporary Global Security to be
exchanged. The definitive Securities to be delivered in exchange for any such
temporary Global Security shall be in bearer form, registered form, permanent
<PAGE>
global bearer form or permanent global registered form, or any combination
thereof, as specified as contemplated by Section 3.01, and, if any combination
thereof is so specified, as requested by the beneficial owner thereof; provided,
however, that, unless otherwise specified in such temporary Global Security,
upon such presentation by the Common Depository, such temporary Global Security
is accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by Euroclear as to the portion of such temporary Global Security held for
its account then to be exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by CEDEL as to the portion of such temporary Global
Security held for its account then to be exchanged, each in the form set forth
in Exhibit B-2 to this Indenture or in such other form as may be established
pursuant to Section 3.01; and provided further that definitive Bearer Securities
shall be delivered in exchange for a portion of a temporary Global Security only
in compliance with the requirements of Section 3.03.
Unless otherwise specified in such temporary Global Security,
the interest of a beneficial owner of Securities of a series in a temporary
Global Security shall be exchanged for definitive Securities of the same series
and of like tenor following the Exchange Date when the account holder instructs
Euroclear or CEDEL, as the case may be, to request such exchange on his behalf
and delivers to Euroclear or CEDEL, as the case may be, a certificate in the
form set forth in Exhibit B-1 to this Indenture (or in such other form as may be
established pursuant to Section 3.01), dated no earlier than 15 days prior to
the Exchange Date, copies of which certificate shall be available from the
offices of Euroclear and CEDEL, the Trustee, any Authenticating Agent appointed
for such series of Securities and each Paying Agent. Unless otherwise specified
in such temporary Global Security, any such exchange shall be made free of
charge to the beneficial owners of such temporary Global Security, except that a
Person receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like unless such Person takes delivery of such definitive
Securities in person at the offices of Euroclear or CEDEL. Definitive Securities
in bearer form to be delivered in exchange for any portion of a temporary Global
Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 3.01, interest payable on a temporary
Global Security on an Interest Payment Date for Securities of such series
occurring prior to the applicable Exchange Date shall be payable to Euroclear
and CEDEL on such Interest Payment Date upon delivery by Euroclear and CEDEL to
the Trustee of a certificate or certificates in the form set forth in Exhibit
B-2 to this Indenture (or in such other forms as may be established pursuant to
Section 3.01), for credit without further interest on or after such Interest
Payment Date to the respective accounts of Persons who are the beneficial owners
of such temporary Global Security on such Interest Payment Date and who have
each delivered to Euroclear or CEDEL, as the case may be, a certificate dated no
earlier than 15 days prior to the Interest Payment Date occurring prior to such
Exchange Date in the form set forth as Exhibit B-1 to this Indenture (or in such
other forms as may be established pursuant to Section 3.01). Notwithstanding
anything to the contrary herein contained, the certifications made pursuant to
this paragraph shall satisfy the certification requirements of the preceding two
paragraphs of this Section 3.04(b) and of the third paragraph of Section 3.03 of
this Indenture and the interests of the Persons who are the beneficial owners of
the temporary Global Security with respect to which such certification was made
will be exchanged for definitive Securities of the same series and of like tenor
on the Exchange Date or the date of certification if such date occurs after the
Exchange Date, without further act or deed by such beneficial owners. Except as
otherwise provided in this paragraph, no payments of principal or interest owing
with respect to a beneficial interest in a temporary Global Security will be
made unless and until such interest in such temporary Global Security shall have
been exchanged for an interest in a definitive Security. Any interest so
received by Euroclear and CEDEL and not paid as herein provided shall be
returned to the Trustee prior to the expiration of two years after such Interest
Payment Date in order to be repaid to the Issuer.
SECTION 3.05. Registration, Registration of Transfer and
Exchange. The Issuer shall cause to be kept at the Corporate Trust Office of the
Trustee or in any office or agency of the Issuer in a Place of Payment a
register for each series of Securities (the registers maintained in such office
or in any such office or agency of the Issuer in a Place of Payment being herein
sometimes referred to collectively as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Issuer shall provide for
the registration of Registered Securities and of transfers of Registered
Securities. The Security Register shall be in written form or any other form
capable of being converted into written form within a reasonable time. The
Trustee, at its Corporate Trust Office, is hereby initially appointed "Security
Registrar" for the purpose of registering Registered Securities and transfers of
Registered Securities on such Security Register as herein provided. In the event
that the Trustee shall cease to be Security Registrar, it shall have the right
to examine the Security Register at all reasonable times.
<PAGE>
Subject to the provisions of this Section 3.05, upon surrender
for registration of transfer of any Registered Security of any series at any
office or agency of the Issuer in a Place of Payment for that series, the Issuer
shall execute, and the Trustee shall authenticate and make available for
delivery, 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, bearing a number not contemporaneously
outstanding, and containing identical terms and provisions.
Subject to the provisions of this Section 3.05, 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 denomination or
denominations and of a like aggregate principal amount, containing identical
terms and provisions, upon surrender of the Registered Securities to be
exchanged at any such office or agency. Whenever any such Registered Securities
are so surrendered for exchange, the Issuer shall execute, and the Trustee shall
authenticate and make available for delivery, the Registered Securities which
the Holder making the exchange is entitled to receive. Unless otherwise
specified with respect to any series of Securities as contemplated by Section
3.01, Bearer Securities may not be issued in exchange for Registered Securities.
If (but only if) permitted by the applicable Board Resolution
and (subject to Section 3.03) set forth in the applicable Officers' Certificate,
or in any indenture supplemental hereto, delivered as contemplated by Section
3.01, at the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, 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, any such permitted exchange
may be effected if the Bearer Securities are accompanied by payment in funds
acceptable to the Issuer 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 Issuer and the Trustee if there is furnished to them such security
or indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Security shall surrender to any
Paying Agent any such missing coupon in respect of which such a payment shall
have been made, such Holder shall be entitled to receive the amount of such
payment; provided, however, that, except as otherwise provided in Section 11.06,
interest represented by coupons shall be payable only upon presentation and
surrender of those coupons at an office or agency located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such office or agency in a permitted exchange for a
Registered Security of the same series and like tenor 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 proposed date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, 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. Whenever any Securities are so
surrendered for exchange, the Issuer shall execute, and the Trustee shall
authenticate and make available for delivery, the Securities which the Holder
making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified
as contemplated by Section 3.01, any permanent Global Security shall be
exchangeable only as provided in this paragraph. If the depository for any
permanent Global Security is The Depository Trust Company ("DTC"), then, unless
the terms of such Global Security expressly permit such Global Security to be
exchanged in whole or in part for definitive Securities, a Global Security may
be transferred, in whole but not in part, only to a nominee of DTC, or by a
nominee of DTC to DTC, or to a successor to DTC for such Global Security
selected or approved by the Issuer or to a nominee of such successor to DTC. If
at any time DTC notifies the Issuer that it is unwilling or unable to continue
as depository for the applicable Global Security or Securities or if at any time
DTC ceases to be a clearing agency registered under the Securities Exchange Act
of 1934 if so required by applicable law or regulation, the Issuer shall appoint
a successor depository with respect to such Global Security or Securities. If
(x) a successor depository for such Global Security or Securities is not
appointed by the Issuer within 90 days after the Issuer receives such notice or
becomes aware of such unwillingness, inability or ineligibility, (y) an Event of
Default has occurred and is continuing and the beneficial owners representing a
majority in principal amount of the applicable series of Securities represented
by such Global Security or Securities advise DTC to cease acting as depository
for such Global Security or Securities or (z) the Issuer, in its sole
discretion, determines at any time that all Outstanding Securities (but not less
than all) of any series issued or issuable in the form of one or more Global
Securities shall no longer be represented by such Global Security or Securities,
then the Issuer shall execute, and the Trustee shall authenticate and deliver
definitive Securities of like series, rank, tenor and terms in definitive form
in an aggregate principal amount equal to the principal amount of such Global
Security or Securities. If any beneficial owner of an interest in a permanent
global Security is otherwise entitled to exchange such interest for Securities
of such series and of like tenor and principal amount of another authorized form
and denomination, as specified as contemplated by Section 3.01 and provided that
any applicable notice provided in the permanent Global Security shall have been
given, then without unnecessary delay but in any event not later than the
earliest date on which such interest may be so exchanged, the Issuer shall
execute, and the Trustee shall authenticate and make available for delivery
definitive Securities in aggregate principal amount equal to the principal
<PAGE>
amount of such beneficial owner's interest in such permanent Global Security. On
or after the earliest date on which such interests may be so exchanged, such
permanent Global Security shall be surrendered for exchange by DTC or such other
depository as shall be specified in the Issuer Order with respect thereto to the
Trustee, as the Issuer's agent for such purpose; provided, however, that no such
exchanges may occur during a period beginning at the opening of business 15 days
before any selection of Securities to be redeemed and ending on the relevant
Redemption Date if the Security for which exchange is requested may be among
those selected for redemption; and provided further that no Bearer Security
delivered in exchange for a portion of a permanent Global Security shall be
mailed or otherwise delivered to any location in the United States. If a
Registered Security is issued in exchange for any portion of a permanent Global
Security after the close of business at the office or agency where such exchange
occurs on (i) any Regular Record Date and before the opening of business at such
office or agency on the relevant Interest Payment Date, or (ii) any Special
Record Date and the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, 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 such Registered
Security, but will be payable on such Interest Payment Date or proposed date for
payment, as the case may be, only to the Person to whom interest in respect of
such portion of such permanent Global Security is payable in accordance with the
provisions of this Indenture.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Issuer, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange or redemption shall (if so required by
the Issuer or the Security Registrar) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Issuer, the Trustee
and the Security Registrar, duly executed by the Holder thereof or his attorney
duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 3.04, 9.06, 11.07 or 14.05 not involving any
transfer.
The Issuer or the Trustee, as applicable, shall not be
required (i) to issue, register the transfer of or exchange any Security if such
Security may be among those selected for redemption during a period beginning at
the opening of business 15 days before the mailing of a notice of redemption of
the Securities to be redeemed under Section 11.03 and ending at the close of
business on (A) if such Securities are issuable only as Registered Securities,
the day of such mailing of the relevant notice of redemption and (B) if such
Securities are issuable as Bearer Securities, the day of the first publication
of the relevant notice of redemption or, if such Securities are also issuable as
Registered Securities and there is no publication, the mailing of the relevant
notice of redemption, or (ii) to register the transfer of or exchange any
Registered Security so selected for redemption in whole or in part, except, in
the case of any Registered Security to be redeemed in part, the portion thereof
not to be redeemed, or (iii) to exchange any Bearer Security so selected for
redemption except 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, or (iv) to issue, register
the transfer of or exchange any Security which has been surrendered for
repayment at the option of the Holder, except the portion, if any, of such
Security not to be so repaid.
Each Holder of a Security agrees to indemnify the Issuer and
the Trustee against any liability that may result from the transfer, exchange or
assignment of such Holder's Security in violation of any provisions of this
Indenture and/or applicable United States Federal or state securities law.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen
Securities. If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee or the Issuer, together with,
in proper cases, such security or indemnity as may be required by the Issuer or
the Trustee to save each of them or any agent of either of them harmless, the
Issuer shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new 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 surrendered Security.
If there shall be delivered to the Issuer and to the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon, and (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Issuer or the Trustee that such Security or coupon has
been acquired by a bona fide purchaser, the Issuer shall execute and upon its
request the Trustee shall authenticate and deliver, in lieu of any such
<PAGE>
destroyed, lost or stolen Security or in exchange for the Security to which a
destroyed, lost or stolen coupon appertains (with all appurtenant coupons not
destroyed, lost or stolen), a new Security of the same series 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 such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs,
in case any such mutilated, destroyed, lost or stolen Security or coupon has
become or is about to become due and payable, the Issuer in its discretion may,
instead of issuing a new Security, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains, pay such Security or
coupon; provided, however, that payment of principal of (and premium), and any
interest on, Bearer Securities shall, except as otherwise provided in Section
11.06, be payable only at an office or agency located outside the United States
and, unless otherwise specified as contemplated by Section 3.01, 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
Issuer 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 and counsel of its
selection) 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 Issuer, whether or not the destroyed, lost or stolen Security
and its coupons, if any, or the destroyed, lost or stolen coupon shall be at any
time enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities or
coupons.
SECTION 3.07. Payment of Interest; Interest Rights Preserved.
Except as otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 3.01, interest on any Registered
Security that 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 of the
Issuer maintained for such purpose pursuant to Section 10.02; provided, however,
that each installment of interest on any Registered Security may at the Issuer's
option be paid by (i) mailing a check for such interest, payable to or upon the
written order of the Person entitled thereto pursuant to Section 3.08, to the
address of such Person as it appears on the Security Register or (ii) transfer
to an account maintained by the payee located inside the United States.
Unless otherwise provided as contemplated by Section 3.01 with
respect to the Securities of any series, payment of interest may be made, in the
case of a Bearer Security, by transfer to an account maintained by the payee
with a bank located outside the United States.
Unless otherwise provided as contemplated by Section 3.01,
every permanent global Security will provide that interest, if any, payable on
any Interest Payment Date will be paid to DTC, Euroclear and/or CEDEL, as the
case may be, with respect to that portion of such permanent global Security held
for its account by Cede & Co. or the Common Depository, as the case may be, for
the purpose of permitting such party to credit the interest received by it in
respect of such permanent global Security to the accounts of the beneficial
owners thereof.
In case a Bearer Security of any series is surrendered in
exchange for a Registered Security of such series after the close of business
(at an office or agency in a Place of Payment for such series) on any Regular
Record Date and before the opening of business (at such office or agency) on the
next succeeding Interest Payment Date, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date and interest will not
be payable on such Interest Payment Date in respect of the Registered Security
issued in exchange 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.
Except as otherwise specified with respect to a series of
Securities in accordance with the provisions of Section 3.01, any interest on
any Registered Security of any series that 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 registered
Holder thereof on the relevant Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Issuer, at its election
in each case, as provided in clause (1) or (2) below:
<PAGE>
(1) The Issuer may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of
such series (or their respective Predecessor Securities) are registered
at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner.
The Issuer shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Registered Security of
such series and the date of the proposed payment (which shall not be
less than 20 days after such notice is received by the Trustee), and at
the same time the Issuer shall deposit with the Trustee an amount of
money in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 3.01 for
the Securities of such series) 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 on or prior
to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Issuer of such Special Record Date
and, in the name and at the expense of the Issuer, shall cause notice
of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to each
Holder of Registered Securities of such series at his address as it
appears in the Security Register not less than 10 days prior to such
Special Record Date. The Trustee may, in its discretion, in the name
and at the expense of the Issuer, cause a similar notice to be
published at least once in an Authorized Newspaper in each Place of
Payment, but such publications shall not be a condition precedent to
the establishment of such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been mailed as aforesaid, such Defaulted Interest shall be paid
to the Persons in whose names the Registered Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on such Special Record Date and shall no longer be
payable pursuant to the following clause (2). In case a Bearer Security
of any series is surrendered at the office or agency in a Place of
Payment for such series in exchange for a Registered Security of such
series after the close of business at such office or agency on any
Special Record Date and before the opening of business at such office
or agency on the related proposed date for payment of Defaulted
Interest, such Bearer Security shall be surrendered without the coupon
relating to such proposed date of payment and Defaulted Interest will
not be payable on such proposed date of payment 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.
(2) The Issuer may make payment of any Defaulted Interest on
the Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Issuer to the Trustee
of the proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and
Section 3.05, 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 3.08. Persons Deemed Owners. Prior to due presentment
of a Registered Security for registration of transfer, the Issuer, the Trustee
and any agent of the Issuer or the Trustee may treat the Person in whose name
such Registered Security is registered as the owner of such Security for the
purpose of receiving payment of principal of (and premium), and (subject to
Sections 3.05 and 3.07) interest on, such Registered Security and for all other
purposes whatsoever, whether or not such Registered Security be overdue, and
neither the Issuer, the Trustee nor any agent of the Issuer or the Trustee shall
be affected by notice to the contrary. All such payments so made to any such
Person, or upon such Person's order, shall be valid, and, to the extent of the
sum or sums so paid, effectual to satisfy and discharge the liability for money
payable upon any such Security.
Title to any Bearer Security and any coupons appertaining
thereto shall pass by delivery. The Issuer, the Trustee and any agent of the
Issuer or the Trustee may treat the Holder of any Bearer Security and the Holder
of any coupon as the absolute owner of such Security or coupon for the purpose
of receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Security or coupon be overdue, and neither the
Issuer, the Trustee nor any agent of the Issuer or the Trustee shall be affected
by notice to the contrary.
<PAGE>
No Holder of any beneficial interest in any Global Security
held on its behalf by a depository shall have any rights under this Indenture
with respect to such Global Security and such depository shall be treated by the
Issuer, the Trustee, and any agent of the Issuer or the Trustee as the owner of
such Global Security for all purposes whatsoever. None of the Issuer, the
Trustee, any Paying Agent or the Security Registrar will have any responsibility
or liability for any aspect of the records relating to or payments made on
account of beneficial ownership interests of a Global Security or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
Notwithstanding the foregoing, with respect to any Global
Security, nothing herein shall prevent the Issuer, the Trustee, or any agent of
the Issuer or the Trustee, from giving effect to any written certification,
proxy or other authorization furnished by any depository, as a Holder, with
respect to such Global Security or impair, as between such depository and owners
of beneficial interests in such Global Security, the operation of customary
practices governing the exercise of the rights of such depository (or its
nominee) as Holder of such Global Security.
SECTION 3.09. Cancellation. All Securities and coupons
surrendered for payment, redemption, repayment at the option of the Holder,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee, and any such Securities and coupons and Securities and coupons
surrendered directly to the Trustee for any such purpose shall be promptly
cancelled by it. The Issuer may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Issuer may have acquired in any manner whatsoever, and may deliver to
the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the Issuer
has not issued and sold, and all Securities so delivered shall be promptly
cancelled by the Trustee. If the Issuer shall so acquire any of the Securities,
however, such acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. Cancelled
Securities and coupons held by the Trustee shall be returned to the Issuer.
SECTION 3.10. Computation of Interest. Except as otherwise
specified as contemplated by Section 3.01 with respect to Securities of any
series, interest on the Securities of each series shall be computed on the basis
of a 360-day year consisting of twelve 30-day months.
SECTION 3.11. CUSIP Numbers.
The Issuer in issuing the Securities may use "CUSIP" numbers
(if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Issuer will promptly notify
the Trustee of any change in the "CUSIP" numbers.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture. This
Indenture shall upon Issuer Request cease to be of further effect with respect
to any series of Securities and any related Guarantees specified in such Issuer
Request (except as to any surviving rights of registration of transfer or
exchange of Securities of such series herein expressly provided for), and the
Trustee, upon receipt of an Issuer Order, and at the expense of the Issuer,
shall execute instruments in form and substance satisfactory to the Trustee, the
Issuer and the Guarantor acknowledging satisfaction and discharge of this
Indenture as to such series when
(1) either
(A) all Securities of such series theretofore authenticated
and delivered and all coupons, if any, appertaining thereto (other than
(i) coupons appertaining to Bearer Securities surrendered for exchange
for Registered Securities and maturing after such exchange, whose
surrender is not required or has been waived as provided in Section
3.05, (ii) Securities and coupons of such series which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 3.06, (iii) coupons appertaining to Securities
called for redemption and maturing after the relevant Redemption Date,
whose surrender has been waived as provided in Section 11.06, and (iv)
Securities and coupons of such series for whose payment money has
theretofore been deposited in trust or segregated and held in trust by
the Issuer and thereafter repaid to the Issuer or discharged from such
trust, as provided in Section 10.03) 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
<PAGE>
(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 Issuer, are
to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of
the Issuer,
and the Issuer, in the case of (i), (ii) or (iii) above, has
irrevocably (except as provided in the second proviso to Section 4.03)
deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose an amount in the currency or currencies, currency
unit or units or composite currency or currencies 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, for principal
(and premium) and interest to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated Maturity
or Redemption Date, as the case may be;
(2) the Issuer has paid or caused to be paid all other
sums payable hereunder by the Issuer; and
(3) the Issuer 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, the obligations of the Issuer to the Trustee and any predecessor
Trustee under Section 6.06, the obligations of the Issuer to any Authenticating
Agent under Section 6.11 and, if money shall have been deposited with and held
by the Trustee pursuant to subclause (B) of clause (1) of this Section, the
obligations of the Trustee under Section 4.02 and the last paragraph of Section
10.03 shall survive.
Notwithstanding the reference to premium under subclause (B)
of clause (1) of this Section, the Issuer shall not be required to deposit
pursuant thereto any premium or Make-Whole Amount that would be payable on the
Securities of such series only upon acceleration of the Maturity thereof
pursuant to Section 5.02.
SECTION 4.02. Application of Trust Funds. Subject to the
provisions of the last paragraph of Section 10.03, all money deposited with the
Trustee pursuant to Section 4.01 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the coupons and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Issuer acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium), and
any 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 4.03. Reinstatement. If the Trustee or the Paying
Agent is unable to apply any money in accordance with this Article Four by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Issuer's
obligations under this Indenture and the Securities shall be revived and
reinstated as though no deposit had occurred pursuant to this Article Four until
such time as the Trustee or Paying Agent is permitted to apply all money held in
trust with respect to the Securities; provided, however, that if the Issuer
makes any payment of principal of or any premium or interest on any Securities
following the reinstatement of its obligations, the Issuer shall be subrogated
to the rights of the Holders of the Securities to receive such payment from the
money so held by the Trustee or Paying Agent in trust; provided further that, if
the Issuer's obligations are revived and reinstated as herein provided, the
Trustee or Paying Agent shall, upon Issuer Request, discharge from trust and pay
to the Issuer all funds (together with the earnings thereon, if any) previously
deposited therewith pursuant to Section 4.02 and thereupon the Issuer, the
Trustee, any Paying Agent and the holders of the Securities of such series shall
be restored severally and respectively to their former positions hereunder as if
no satisfaction and discharge had been effected.
ARTICLE V
REMEDIES
SECTION 5.01. Events of Default. "Event of Default," wherever
used herein with respect to any particular series of Securities, means any one
of the following events (whatever the reason for such Event of Default and
whether or not 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):
<PAGE>
(1) default in the payment of any interest on any Security
of that series or of any coupon appertaining thereto, when such
interest or coupon becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of (or premium,
on) any Security of that series when it becomes due and payable at its
Maturity; or
(3) default in the deposit of any sinking fund payment,
when and as due by the terms of any Security of that series; or
(4) default in the performance, or breach, of any covenant
or warranty of the Issuer in this Indenture with respect to any
Security of that series (other than a covenant or warranty a default in
whose performance or whose breach is elsewhere in this Section
specifically dealt with), and continuance of such default or breach for
a period of 60 days after there has been given, by registered or
certified mail, to the Issuer and the Guarantor by the Trustee or to
the Issuer or the Guarantor and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities of that series a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(5) default under any bond, debenture, note, mortgage,
indenture or instrument under which there may be issued or by which
there may be secured or evidenced any indebtedness for money borrowed
by the Issuer or the Guarantor (or by any Subsidiary, the repayment of
which the Issuer or the Guarantor has guaranteed or for which the
Issuer or Guarantor is directly responsible or liable as obligor or
guarantor), having an aggregate principal amount outstanding of at
least $20,000,000, whether such indebtedness now exists or shall
hereafter be created, which default shall have resulted in such
indebtedness becoming or being declared due and payable prior to the
date on which it would otherwise have become due and payable, without
such indebtedness having been discharged, or such acceleration having
been rescinded or annulled, within a period of 10 days after there
shall have been given, by registered or certified mail, to the Issuer
and the Guarantor by the Trustee or to the Issuer, the Guarantor and
the Trustee by the Holders of at least 10% in principal amount of the
Outstanding Securities of that series a written notice specifying such
default and requiring the Issuer to cause such indebtedness to be
discharged or cause such acceleration to be rescinded or annulled and
stating that such notice is a "Notice of Default" hereunder; or
(6) the Issuer or the Guarantor or any Significant
Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case,
(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
(7) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that:
(A) is for relief against the Issuer or the Guarantor
or any Significant Subsidiary in an involuntary case,
(B) appoints a Custodian of the Issuer or the Guarantor
or any Significant Subsidiary or for all or substantially
all of either of its property, or
(C) orders the liquidation of the Issuer or the
Guarantor or any Significant Subsidiary, and the order or
decree remains unstayed and in effect for 90 days; or
(8) any other Event of Default provided with respect to
Securities of that series.
As used in this Section 5.01, the term "Bankruptcy Law" means title 11, U.S.
Code or any similar Federal or state law for the relief of debtors and the term
"Custodian" means any receiver, trustee, assignee, liquidator or other similar
official under any Bankruptcy Law.
<PAGE>
SECTION 5.02. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default with respect to Securities of any series at
the time Outstanding occurs and is continuing (other than an Event of Default
specified in Section 5.01(6) or (7)), then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if Securities of
that Series are Original Issue Discount Securities or Indexed Securities, such
portion of the principal as may be specified in the terms thereof) of and the
Make-Whole Amount, if any, on all the Securities of that series to be due and
payable immediately, by a notice in writing to the Issuer (and to the Trustee if
given by the Holders), and upon any such declaration such principal or specified
portion thereof and Make-Whole Amount, if any, shall become immediately due and
payable. If an Event of Default specified in Section 5.01(6) or (7) with respect
to Securities of any series at the time Outstanding occurs and is continuing,
then, and in every such case, the principal amount (or, if any Securities of
that series are Original Discount Securities or Indexed Securities, such portion
of the principal amount as may be specified in the terms thereof) of, on all of
the Securities of that series shall become and be immediately due and payable
without any declaration or other action on the part of the Trustee or any
holder.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities of that series, by written notice to the
Issuer and the Trustee, may rescind and annul such declaration of acceleration
and its consequences if:
(1) the Issuer or the Guarantor has paid or deposited with
the Trustee a sum sufficient to pay in the currency, currency unit or
composite currency in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 3.01 for the
Securities of such series):
(A) all overdue installments of interest on all
Outstanding Securities of that series and any related
coupons,
(B) the principal of (and premium on) any Outstanding
Securities of that series which have become due otherwise
than by such declaration of acceleration and interest
thereon at the rate or rates borne by or provided for in
such Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue installments of interest at
the rate or rates borne by or provided for in such
Securities, and (D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(2) all Events of Default with respect to Securities of
that series, other than the nonpayment of the principal of
(or premium) or interest on Securities of that series which
have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Issuer and the Guarantor covenant that if:
(1) default is made in the payment of any installment of interest on
any Security of any series and any related coupon when such interest
becomes due and payable and such default continues for a period of 30 days,
or
(2) default is made in the payment of the principal of (or premium on)
any Security of any series at its Maturity,then the Issuer or the Guarantor
will, upon demand of the Trustee, pay to the Trustee, for the benefit of
the Holders of such Securities of such series and coupons, the whole amount
then due and payable on such Securities and coupons for principal (and
premium) and interest, with interest upon any overdue principal (and
premium) and, to the extent that payment of such interest shall be legally
enforceable, upon any overdue installments of interest at the rate or rates
borne by or provided for in such Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
If the Issuer or the Guarantor fails to pay such amounts
forthwith upon such demand, the Trustee, in its own name and as trustee of an
express trust, may at the expense of the Issuer institute a judicial proceeding
for the collection of the sums so due and unpaid, and may prosecute such
proceeding to judgment or final decree, and may enforce the same against the
Issuer or any other obligor upon such Securities of such series and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Issuer or any other obligor upon such Securities of such
series, wherever situated.
<PAGE>
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion at the
expense of the Issuer proceed to protect and enforce its rights and the rights
of the Holders of Securities of such series and any related coupons by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 5.04. Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Issuer or Guarantor or any other obligor upon the
Securities or the property of the Issuer or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
of any series 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 Issuer or Guarantor or the obligor for the payment of overdue
principal, premium, or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount, or such
lesser amount as may be provided for in the Securities of such series,
of principal (and premium) and interest owing and unpaid in respect of
the Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder of Securities of such series and 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, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee and any predecessor Trustee, their agents and counsel, and any and all
other amounts due the Trustee or any predecessor Trustee under Section 6.06.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder of
a Security or coupon any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or coupons or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder of a Security or coupon in any such proceeding; provided, however, that
the Trustee may, on behalf of the Holders, vote for the election of a trustee in
bankruptcy or similar official and may be a member of the creditors' committee.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party) the Trustee shall be held to represent all
the Holders of the Securities, and it shall not be necessary to make any Holders
of the Securities parties to any such proceedings.
SECTION 5.05. 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 of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities and coupons in respect of which such judgment has been recovered.
SECTION 5.06. Application of Money Collected. Any money
collected by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal (or premium) or interest,
upon presentation of the Securities or coupons, or both, as the case may be, and
the notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of costs and expenses of collection, including
all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses and disbursements of the Trustee, its agents and
counsel all other amounts due the Trustee and any predecessor Trustee under
Section 6.06;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities and coupons for principal (and premium) and interest, in respect
of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
aggregate amounts due and payable on such Securities and coupons for
principal (and premium) and interest, respectively; and
THIRD: To the payment of the remainder, if any, to the Issuer or the
Guarantor, as the case may be.
<PAGE>
SECTION 5.07. Limitation on Suits. No Holder of any Security of any
series or any related coupon shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request
to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series; it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by virtue of, or
by availing 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 such
Holders.
SECTION 5.08. Unconditional Right of Holders to Receive
Principal, Premium, and Interest. Notwithstanding any other provision in this
Indenture, the Holder of any Security or coupon shall have the right which is
absolute and unconditional to receive payment of the principal of (and premium)
and (subject to Sections 3.05 and 3.07) interest on such Security or payment of
such coupon on the respective due dates expressed in such Security or coupon
(or, in the case of redemption, on the Redemption Date) and to institute suit
for the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
SECTION 5.09. Restoration of Rights and Remedies. If the
Trustee or any Holder of a Security or coupon has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, the Issuer, the
Trustee and the Holders of Securities and coupons shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 5.10. Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or coupons in the last paragraph of Section
3.06, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders of Securities or coupons is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 5.11. Delay or Omission Not Waiver. No delay or
omission of the Trustee or of any Holder of any Security or coupon to exercise
any right or remedy accruing upon any Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders of Securities or
coupons, as the case may be.
SECTION 5.12. Control by Holders of Securities. The Holders of
not less than a majority in principal amount of the Outstanding Securities of
any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee with respect to the Securities of
such series, provided that
<PAGE>
(1) such direction shall not be in conflict with any rule of
law or with the terms of this Indenture,
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve
it in personal liability or be unduly prejudicial to the Holders of
Securities of such series not joining therein, it being understood that
(subject to Section 6.02) the Trustee shall have no duty to ascertain
whether or not such actions or forbearance are unduly prejudicial to
such Holders.
Nothing in this Indenture shall impair the right of the
Trustee in its discretion to take any action deemed proper by the Trustee and
which is not inconsistent with such direction by Holders.
SECTION 5.13. Waiver of Past Defaults. The Holders of not less
than a majority in principal amount of the Outstanding Securities of any series
may on behalf of the Holders of all the Securities of such series and any
related coupons waive any past default hereunder with respect to such series and
its consequences, except a default
(1) in the payment of the principal of (or premium) or
interest on any Security of such series or any related coupons, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 5.14. Waiver of Usury, Stay or Extension Laws. The
Issuer covenants (to the extent that it may lawfully do so) that it will not at
any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any usury, stay or extension law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Issuer (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
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 an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees and expenses, 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 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 the 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)
or interest on 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).
ARTICLE VI
THE TRUSTEE
SECTION 6.01. Notice of Defaults. Within 90 days after the
occurrence of any default hereunder with respect to the Securities of any
series, the Trustee shall transmit in the manner and to the extent provided in
TIA Section 3.13(c), notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of (or premium)
or interest on any Security of such series, or in the payment of any sinking
fund installment with respect to the Securities of such series, the Trustee
shall be protected in withholding such notice if and so long as Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interests of the Holders of the Securities and coupons of such
series; and provided further that in the case of any default or breach of the
character specified in Section 5.01(4) with respect to the Securities and
coupons of such series, no such notice to Holders shall be given until at least
60 days after the occurrence thereof. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to the Securities of such series.
<PAGE>
SECTION 6.02. Certain Rights of Trustee. Subject to the provisions of
TIA Section 3.15(a) through 3.15(d):
(1) the Trustee may conclusively rely and shall be protected
in acting or refraining from acting upon any resolution, Officers'
Certificate, certificate, statement, instrument, Opinion of Counsel,
opinion, report, notice, request, direction, consent, order, bond,
debenture, note, coupon or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(2) any request or direction of the Issuer mentioned herein
shall be sufficiently evidenced by an Issuer Request or Issuer Order
(other than delivery of any Security, together with any coupons
appertaining thereto, to the Trustee for authentication and delivery
pursuant to Section 3.03 which shall be sufficiently evidenced as
provided therein) and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(4) before the Trustee acts or refrains from acting, the
Trustee may consult with counsel of its selection and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(5) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders 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 the Trustee against the costs, expenses and liabilities
which might be incurred by it and/or its counsel in compliance with
such request or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, coupon or other paper or
document, unless requested in writing so to do by the Holders of not
less than a majority in aggregate principal amount of the Outstanding
Securities of any series; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in
the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the Trustee
may require reasonable indemnity against such expenses or liabilities
as a condition to proceeding; the reasonable expenses of every such
examination shall be paid by the Holders or, if paid by the Trustee,
shall be repaid by the Holders upon demand. The Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall determine
to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Issuer, relevant to the
facts or matters that are the subject of its inquiry, personally or by
agent or attorney;
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(8) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this
Indenture;
(9) the Trustee shall not be required to give any bond or
surety in respect of the performance of its powers and duties
hereunder;
(10) the permissive rights of the Trustee to do things
enumerated in this Indenture shall not be construed as a duty and the
Trustee shall not be answerable for other than its negligence or
willful misconduct; and
<PAGE>
(11) except for (i) a default under Sections 5.01.(1) or (2)
hereof, or (ii) any other event of which the Trustee has "actual
knowledge" and which event, with the giving of notice or the passage of
time or both, would constitute an Event of Default under this
Indenture, the Trustee shall not be deemed to have notice of any
default or Event of Default unless specifically notified in writing
(and such writing references the Securities and this Indenture) of such
event by the Issuer or the Holders of not less than 25% in aggregate
principal amount of the Securities then outstanding; as used herein,
the term "actual knowledge" means the actual fact or statement of
knowing, without any duty to make any investigation with regard
thereto.
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 any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
Except during the continuance of an Event of Default, the
Trustee undertakes to perform only such duties as are specifically set forth in
this Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee.
SECTION 6.03. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any coupons shall be taken as
the statements of the Issuer, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Issuer of Securities or the proceeds thereof.
SECTION 6.04. May Hold Securities. The Trustee, any Paying
Agent, Security Registrar, Authenticating Agent or any other agent of the
Issuer, in its individual or any other capacity, may become the owner or pledgee
of Securities and coupons and, subject to TIA Sections 3.10(b) and 311, may
otherwise deal with the Issuer with the same rights it would have if it were not
Trustee, Paying Agent, Security Registrar, Authenticating Agent or such other
agent.
SECTION 6.05. 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 in writing with the
Issuer.
SECTION 6.06. Compensation and Reimbursement.The Issuer
agrees:
(1) to pay to the Trustee from time to time, and the Trustee
shall be entitled to, such compensation as shall be agreed to in
writing between the Issuer and the Trustee for all services rendered by
it hereunder (which compensation shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse each of the Trustee and any predecessor Trustee upon its
request for all expenses, disbursements and advances incurred or made
by the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the reasonable expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or
willful misconduct; and
(3) to indemnify each of the Trustee and any predecessor
Trustee for, and to hold it harmless against, any and all loss,
liability, claim, damage or expense (including taxes, other than taxes
based upon the income of the Trustee) incurred without negligence or
willful misconduct on its part, arising out of or in connection with
the acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against or
investigating any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
When the Trustee or any predecessor Trustee incurs expenses or
renders services in connection with an Event of Default specified in Section
5.01(6) or Section 5.01(7), 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.
As security for the performance of the obligations of the
Issuer under this Section, the Trustee shall have a lien prior to the Securities
upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the benefit of the Holders for the payment of principal
of (or premium) or interest on particular Securities or any coupons.
The provisions of this Section shall survive the termination
of this Indenture.
<PAGE>
SECTION 6.07. Corporate Trustee Required; Eligibility;
Conflicting Interests. There shall at all times be a Trustee hereunder which
shall be eligible to act as Trustee under TIA Section 3.10(a)(1) and shall have
a combined capital and surplus of at least $50,000,000. If such corporation
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 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. Neither the Issuer
nor any Person directly or indirectly controlling, controlled by, or under
common control with the Issuer shall serve as Trustee.
SECTION 6.08. Resignation and Removal; Appointment of
Successor. (a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.09.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the Issuer.
If an instrument of acceptance by a successor Trustee shall not have been
delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may at the expense of the Issuer petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series delivered to the Trustee and to the
Issuer. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
TIA Section 3.10(b) after written request therefor by the Issuer or by
any Holder of a Security who has been a bona fide Holder of a Security
for at least six months, or
(2) the Trustee shall cease to be eligible under Section
6.07 and shall fail to resign after written request therefor by the
Issuer 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 shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Issuer by or pursuant to a Board Resolution may
remove the Trustee and appoint a successor Trustee with respect to all
Securities, or (ii) subject to TIA Section 3.15(e), any Holder of a Security 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 shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause with respect to the Securities of one or more series, the Issuer, by
or pursuant to a Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there shall
be only one Trustee with respect to the Securities of any particular series).
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
Issuer and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Issuer. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Issuer or
the Holders of Securities and accepted appointment in the manner hereinafter
provided, any Holder of a Security who has been a bona fide Holder of a Security
of such series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to Securities of such series.
(f) The Issuer 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 1.06.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
<PAGE>
SECTION 6.09. 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 so appointed shall execute, acknowledge
and deliver to the Issuer and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on request of the Issuer or the
successor Trustee, such retiring Trustee shall, upon payment of all of its fees,
charges and reasonable expenses (and those of its counsel), 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, subject nevertheless to its claim, if any, provided for in Section
6.06.
(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
Issuer, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto, pursuant to Article Nine hereof, wherein each successor
Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any 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 Issuer or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Issuer
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 6.09, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 6.10. 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 of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities or coupons 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 or coupons so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities or coupons. In case any Securities or coupons
shall not have been authenticated by such predecessor Trustee, any such
successor Trustee may authenticate and deliver such Securities or coupons, in
either its own name or that of its predecessor Trustee, with the full force and
effect which this Indenture provides for the certificate of authentication of
the Trustee.
SECTION 6.11. Appointment of Authenticating Agent. At any time
when any of the Securities remain Outstanding, 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 exchange, registration of transfer or
partial redemption or repayment 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
<PAGE>
Responsible Officer of the Trustee, a copy of which instrument shall be promptly
furnished to the Issuer. 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
Issuer and 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.
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 Issuer. 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 Issuer. 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 Issuer 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 1.06. 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 Issuer 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 designated therein
referred to in the within-mentioned Indenture.
The Bank of New York
as Trustee
Dated: ______________ By:
as Authenticating Agent
Dated: ______________ By:
Authorized Signatory
SECTION 6.12. Certain Duties and Responsibilities of the Trustee. (a)
With respect to the Securities of any series, except during the continuance
of an Event of Default with respect to the Securities of such series:
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions
which by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this
Indenture, but shall not be under any duty to verify the contents or
accuracy thereof.
<PAGE>
(b) In case an Event of Default with respect to the Securities
of any series has occurred and is continuing, the Trustee shall, with respect to
Securities of such series, exercise such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their exercise,
as a prudent man would exercise or use under the circumstances in the conduct of
his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders of a majority in principal amount of the Outstanding
Securities of any series relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to the Securities of such series.
(d) Whether or not therein expressly so provided, every provision
of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the
provisions of this Section 6.12.
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND ISSUER AND GUARANTOR
SECTION 7.01. Disclosure of Names and Addresses of Holders.
Every Holder of Securities or coupons, by receiving and holding the same, agrees
with the Issuer and Guarantor and the Trustee that neither the Issuer nor the
Trustee nor any Authenticating Agent nor any Paying Agent nor any Security
Registrar shall be held accountable by reason of the disclosure of any
information as to the names and addresses of the Holders of Securities in
accordance with TIA Section 3.12, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under TIA Section
3.12(b).
SECTION 7.02. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant thereto. If required by Section 313(a) of the Trust Indenture Act, the
Trustee shall, within sixty days after each [ ] following the date of this
Indenture deliver to Holders a brief report, dated as of such [ ], which
complies with the provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange, if
any, upon which the Securities are listed, with the Commission and with the
Issuer. The Issuer will promptly notify the Trustee when the Securities are
listed on any stock exchange and of any delisting thereof.
SECTION 7.03. Reports by Issuer and Guarantor. The Issuer
and the Guarantor will:
(1) file with the Trustee, within 15 days after the Issuer
and the Guarantor are 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 Issuer and the Guarantor may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Issuer or the Guarantor are
not required to file information, documents or reports pursuant to
either of such Sections, then it will file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from
time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to
Section 13 of the Securities Exchange Act of 1934 [in respect of a
security listed] and registered on a national securities exchange as
may be prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Issuer and the Guarantor with the
conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations; and
<PAGE>
(3) transmit by mail to the Holders of Securities, within 30
days after the filing thereof with the Trustee, in the manner and to
the extent provided in TIA Section 313(c), such summaries of any
information, documents and reports required to be filed by the Issuer
and the Guarantor pursuant to paragraphs (1) and (2) of this Section as
may be required by rules and regulations prescribed from time to time
by the Commission.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Issuer's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 7.04. Issuer to Furnish Trustee Names and Addresses
of Holders. The Issuer will furnish or cause to be furnished to the Trustee:
(a) semiannually, not later than 15 days after the Regular
Record Date for interest for each series of Securities, a list, in such
form as the Trustee may reasonably require, of the names and addresses
of the Holders of Registered Securities of such series as of such
Regular Record Date, or if there is no Regular Record Date for interest
for such series of Securities, semiannually, upon such dates as are set
forth in the Board Resolution or indenture supplemental hereto
authorizing such series, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Issuer of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished,
provided, however, that, so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished.
ARTICLE VIII
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 8.01. Consolidations and Mergers of Issuer or
Guarantor and Sales, Leases and Conveyances Permitted Subject to Certain
Conditions. Each of the Issuer and the Guarantor may consolidate with, or sell,
lease or convey all or substantially all of its assets to, or merge with or into
any other Person, provided that in any such case, (1) either the Issuer or the
Guarantor, as the case may be, shall be the continuing Person, or the successor
Person shall be a corporation or partnership organized and existing under the
laws of the United States or a State thereof and such successor Person shall
expressly assume the due and punctual payment of the principal of (and premium)
and any interest on all of the Securities, according to their tenor, or
expressly assume the obligations under the Guarantees, according to their tenor,
as the case may be, or expressly assume the obligations under the Guarantees,
according to their tenor, as the case may be, and the due and punctual
performance and observance of all of the covenants and conditions of this
Indenture to be performed by the Issuer or the Guarantor by supplemental
indenture, complying with Article Nine hereof, satisfactory to the Trustee,
executed and delivered to the Trustee by such Person and (2) immediately after
giving effect to such transaction and treating any indebtedness which becomes an
obligation of the Issuer, the Guarantor or any Subsidiary as a result thereof as
having been incurred by the Issuer, the Guarantor or such Subsidiary at the time
of such transaction, no Event of Default, and no event which, after notice or
the lapse of time, or both, would become an Event of Default, shall have
occurred and be continuing.
SECTION 8.02. Rights and Duties of Successor. In case of any
such consolidation, merger, sale, lease or conveyance and upon any such
assumption by the successor Person, such successor Person shall succeed to and
be substituted for the Issuer or the Guarantor, with the same effect as if it
had been named herein as the party of the first part, and the predecessor
Person, except in the event of a lease, shall be relieved of any further
obligation under this Indenture and the Securities. Such successor Person
thereupon may cause to be signed, and may issue either in its own name or in the
name of the Issuer or the Guarantor, any or all of the Securities or the
Guarantees, as the case may be, issuable hereunder which theretofore shall not
have been signed by the Issuer or the Guarantor and delivered to the Trustee;
and, upon the order of such successor Person, instead of the Issuer or the
Guarantor, and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities which previously shall have been signed and delivered by the officers
of the Issuer or the Guarantor to the Trustee for authentication, and any
Securities or Guarantees which such successor Person thereafter shall cause to
be signed and delivered to the Trustee for that purpose. All the Securities and
Guarantees so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Securities and Guarantees theretofore or thereafter
issued in accordance with the terms of this Indenture as though all of such
Securities and Guarantees had been issued at the date of the execution hereof.
<PAGE>
In case of any such consolidation, merger, sale, lease or
conveyance, such changes in phraseology and form (but not in substance) may be
made in the Securities thereafter to be issued as may be appropriate.
SECTION 8.03. Officers' Certificate and Opinion of Counsel.
Any consolidation, merger, sale, lease or conveyance permitted under Section
8.01 is also subject to the condition that the Trustee receive an Officers'
Certificate and an Opinion of Counsel to the effect that any such consolidation,
merger, sale, lease or conveyance, and the assumption by any successor Person,
complies with the provisions of this Article and that all conditions precedent
herein provided for relating to such transaction have been complied with.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of
Holders. Without the consent of any Holders of Securities or coupons, the Issuer
and the Guarantor, when authorized by or pursuant to a Board Resolution, and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any of
the following purposes:
(1) to evidence the succession of another Person to the
Issuer or the Guarantor, as the case may be, and the assumption by any
such successor of the covenants of the Issuer or the Guarantor, as the
case may be, contained herein and in the Securities; or
(2) to add to the covenants of the Issuer and the Guarantor
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 Issuer or the Guarantor; or
(3) to add any additional Events of Default for the benefit
of the Holders of all or any series of Securities (and if such Events
of Default are to be for the benefit of less than all series of
Securities, stating that such Events of Default are expressly being
included solely for the benefit of such series); provided, however,
that in respect of any such additional Events of Default such
supplemental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that allowed
in the case of other defaults) or may provide for an immediate
enforcement upon such default or may limit the remedies available to
the Trustee upon such default or may limit the right of the Holders of
a majority in aggregate principal amount of that or those series of
Securities to which such additional Events of Default apply to waive
such default; or
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of or premium, or interest on Bearer Securities, to permit
Bearer Securities to be issued in exchange for Registered Securities,
to permit Bearer Securities to be issued in exchange for Bearer
Securities of other authorized denominations or to permit or facilitate
the issuance of Securities in uncertificated form, provided that any
such action shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material
respect; or
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any
series and any related coupons as permitted by Sections 2.01 and 3.01;
or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee; or
<PAGE>
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture which shall not be
inconsistent with the provisions of this Indenture, provided such
provisions shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material
respect; or
(10) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to
Sections 4.01, 15.02 and 15.03; provided that any such action shall not
adversely affect the interests of the Holders of Securities of such
series and any related coupons or any other series of Securities in any
material respect.
SECTION 9.02. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount
of all Outstanding Securities affected by such supplemental indenture, by Act of
said Holders delivered to the Issuer, the Guarantor and the Trustee, the Issuer
and the Guarantor, when authorized by or pursuant to a Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of modifying in any manner the rights of
the Holders of Securities and any related coupons under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of (or
premium, if any, on) or any installment of principal of or interest on,
any Security; or reduce the principal amount thereof or the rate or
amount of interest thereon, or any premium payable upon the redemption
thereof, or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.02 or the
amount thereof provable in bankruptcy pursuant to Section 5.04, or
change any Place of Payment where, or the currency or currencies,
currency unit or units or composite currency or currencies in which,
any Security or any premium or the interest thereon is payable, or
impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of
redemption or repayment at the option of the Holder, on or after the
Redemption Date or the Repayment Date, as the case may be), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver with respect to such series (or
compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this
Indenture, or reduce the requirements of Section 16.04 for quorum or
voting, or
(3) modify any of the provisions of this Section, Section
5.13 or Section 10.09, except to increase the required percentage to
effect such action or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby, provided,
however, that this clause shall not be deemed to require the consent of
any Holder with respect to changes in the references to "the Trustee"
and concomitant changes in this Section 9.02 and Section 10.09, or the
deletion of this proviso, in accordance with the requirements of
Sections 6.09(b) and 9.01(1).
It shall not be necessary for any Act of Holders under this
Section 9.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
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.
SECTION 9.03. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the 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 9.04. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture shall
be modified in accordance therewith, and such supplemental indenture shall form
a part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder and of any
coupon appertaining thereto shall be bound thereby.
<PAGE>
SECTION 9.05. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
SECTION 9.06. Reference in Securities to Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall,
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Issuer shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Issuer, to any such supplemental indenture may be
prepared and executed by the Issuer and authenticated and made available for
delivery by the Trustee in exchange for Outstanding Securities of such series.
ARTICLE X
COVENANTS
SECTION 10.01. Payment of Principal, Premium; and Interest.
The Issuer 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)
and interest on the Securities of that series in accordance with the terms of
such series of Securities, any coupons appertaining thereto and this Indenture.
Unless otherwise specified as contemplated by Section 3.01 with respect to any
series of Securities, any interest due on Bearer Securities on or before
Maturity shall be payable only upon presentation and surrender of the several
coupons for such interest installments as are evidenced thereby as they
severally mature. Unless otherwise specified with respect to Securities of any
series pursuant to Section 3.01, at the option of the Issuer, all payments of
principal may be paid by check to the registered Holder of the Registered
Security or other person entitled thereto against surrender of such Security.
SECTION 10.02. Maintenance of Office or Agency. If Securities
of a series are issuable only as Registered Securities, the Issuer shall
maintain in each Place of Payment for any series of Securities an office or
agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Issuer 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 Issuer will
maintain: (A) in the Borough of Manhattan, The City of New York, an office or
agency where any Registered Securities of that series may be presented or
surrendered for payment, where any Registered Securities of that series may be
surrendered for registration of transfer, where Securities of that series may be
surrendered for exchange, where notices and demands to or upon the Issuer in
respect of the Securities of that series and this Indenture may be served and
where Bearer Securities of that series and related coupons may be presented or
surrendered for payment in the circumstances described in the following
paragraph (and not otherwise); (B) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series which is located outside the
United States, an office or agency 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 Issuer will
maintain a Paying Agent for the Securities of that series in any 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 (C) subject to any laws or
regulations applicable thereto, in a Place of Payment for that series located
outside the United States an office or agency where any Registered Securities of
that series may be surrendered for registration of transfer, where Securities of
that series may be surrendered for exchange and where notices and demands to or
upon the Issuer in respect of the Securities of that series and this Indenture
may be served. The Issuer will give prompt written notice to the Trustee of the
location, and any change in the location, of each such office or agency. If at
any time the Issuer shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof in writing, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, except that Bearer Securities of that
series and the related coupons may be presented and surrendered for payment at
the offices specified in the Security, in London, England, and the Issuer hereby
appoints the same as its agent to receive such respective presentations,
surrenders, notices and demands, and the Issuer hereby appoints the Trustee its
agent to receive all such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 3.01, no payment of principal, premium or Make-Whole Amount
or interest on Bearer Securities shall be made at any office or agency of the
Issuer in the United States or by check mailed to any address in the United
States or by transfer to an account maintained with a bank located in the United
States; provided, however, that, if the Securities of a series are payable in
Dollars, payment of principal of and any premium or Make-Whole Amount and
interest on any Bearer Security shall be made at the office of the Issuer'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 Make-Whole
Amount, or interest, as the case may be, at all offices or agencies outside the
United States maintained for the purpose by the Issuer in accordance with this
Indenture, is illegal or effectively precluded by exchange controls or other
similar restrictions.
<PAGE>
The Issuer may from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all of 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 Issuer of its obligation to maintain
an office or agency in accordance with the requirements set forth above for
Securities of any series for such purposes. The Issuer 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 specified with
respect to any Securities pursuant to Section 3.01 with respect to a series of
Securities, the Issuer hereby designates as a Place of Payment for each series
of Securities the office or agency of the Issuer in the Borough of Manhattan,
The City of New York, and initially appoints the Trustee's agent with its
Corporate Trust Office as Paying Agent in such city and as its agent to receive
all such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 3.01, if and so long as the Securities of any series (i) are
denominated in a Foreign Currency or (ii) may be payable in a Foreign Currency,
or so long as it is required under any other provision of this Indenture, then
the Issuer will maintain with respect to each such series of Securities, or as
so required, at least one exchange rate agent.
SECTION 10.03. Money for Securities Payments to Be Held in
Trust. If the Issuer or the Guarantor shall at any time act as its own Paying
Agent with respect to any series of any Securities and any related coupons, it
will, on or before each due date of the principal of (and premium), or interest
on any of the Securities of that series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum in the currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 3.01 for the Securities of such series) sufficient to pay the principal
(and premium) or interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided, and will promptly notify
the Trustee of its action or failure so to act.
Whenever the Issuer shall have one or more Paying Agents for
any series of Securities and any related coupons, it will, on or before each due
date of the principal of (and premium), or interest on any Securities of that
series, deposit with a Paying Agent a sum (in the currency or currencies,
currency unit or units or composite currency or currencies described in the
preceding paragraph) sufficient to pay the principal (and premium) or interest
so becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium, or interest and (unless such Paying Agent
is the Trustee) the Issuer will promptly notify the Trustee of its action or
failure so to act.
The Issuer 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 principal of
(and premium) or interest on Securities in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons
or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Issuer (or
any other obligor upon the Securities) in the making of any such
payment of principal (and premium) or interest on the Securities of
that series; and
(3) at any time during the continuance of any such default
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Issuer Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Issuer, the Guarantor 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
Issuer, the Guarantor 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 sums.
Except as otherwise provided in the Securities of any series,
any money deposited with the Trustee or any Paying Agent, or then held by the
Issuer or the Guarantor, in trust for the payment of the principal of (and
premium) or interest on any Security of any series and remaining unclaimed for
two years after such principal (and premium) or interest has become due and
payable shall be paid to the Issuer upon Issuer Request or (if then held by the
Issuer or the Guarantor) shall be discharged from such trust; and the Holder of
such Security shall thereafter, as an unsecured general creditor, look only to
the Issuer for payment of such principal of (and premium) or interest on any
Security, without interest thereon, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Issuer
<PAGE>
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 Issuer cause to be published once, in an Authorized
Newspaper, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Issuer.
SECTION 10.04. Existence. Subject to Article Eight, each of
the Issuer and the Guarantor will do or cause to be done all things necessary to
preserve and keep in full force and effect its existence, all material rights
and material franchises; provided, however, that neither the Issuer nor the
Guarantor shall be required to preserve any such right or franchise if its Board
of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Issuer or the Guarantor, as the
case may be.
SECTION 10.05. Maintenance of Properties. Each of the Issuer
and the Guarantor will cause all of its material properties used or useful in
the conduct of its business or the business of any Subsidiary to be maintained
and kept in good condition, repair and working order and supplied with all
necessary equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Issuer or the Guarantor, as the case may be, may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that the Guarantor, the Issuer and
their Subsidiaries shall not be prevented from selling or otherwise disposing of
their properties for value in the ordinary course of business.
SECTION 10.06. Insurance. Each of the Issuer and the Guarantor
will cause each of its and its Subsidiaries' insurable properties to be insured
against loss or damage in an amount at least equal to their then full insurable
value with insurers of recognized responsibility.
SECTION 10.07. Payment of Taxes and Other Claims. Each of the
Issuer and the Guarantor will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all taxes, assessments
and governmental charges levied or imposed upon it or any Subsidiary or upon the
income, profits or property of the Issuer or any Subsidiary, and (2) all lawful
claims for labor, materials and supplies which, if unpaid, might by law become a
lien upon the property of the Issuer, the Guarantor or any Subsidiary; provided,
however, that neither the Issuer nor the Guarantor shall be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith
by appropriate proceedings.
SECTION 10.08. Statement as to Compliance. The Issuer and the
Guarantor will deliver to the Trustee, within 120 days after the end of each
fiscal year, a brief certificate from the principal executive officer, principal
financial officer or principal accounting officer of the Issuer and the
Guarantor as to his or her knowledge of the Issuer's and the Guarantor's
compliance with all conditions and covenants under this Indenture and, in the
event of any noncompliance, specifying such noncompliance and the nature and
status thereof. For purposes of this Section 10.08, such compliance shall be
determined without regard to any period of grace or requirement of notice under
this Indenture.
The Issuer shall deliver to the Trustee, as soon as possible
and in any event within five days after the Issuer becomes aware of the
occurrence of any Event of Default or an event which, with notice or the lapse
of time or both, would constitute an Event of Default, an Officers' Certificate
setting forth the details of such Event of Default or default and the action
which the Issuer proposes to take with respect thereto.
SECTION 10.09. Waiver of Certain Covenants. The Issuer and the
Guarantor may omit in any particular instance to comply with any term, provision
or condition set forth in Sections 10.04 to 10.08, inclusive, if before or after
the time for such compliance the Holders of at least a majority in principal
amount of all outstanding Securities of such series, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Issuer and the Guarantor
and the duties of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
SECTION 10.10. Additional Amounts. If any Securities of a
series provide for the payment of Additional Amounts, the Issuer will pay to the
holder of any Security of such series or any coupon appertaining thereto
Additional Amounts as may be specified as contemplated by Section 3.01. 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 payment of any related coupon or the net proceeds received on the
sale or exchange of any Security of any series, such mention shall be deemed to
include mention of the payment of Additional Amounts provided by the terms of
<PAGE>
such series established pursuant to Section 3.01 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 provisions hereof shall not be construed as excluding
Additional Amounts in those provisions hereof where such express mention is not
made.
Except as otherwise specified as contemplated by Section 3.01,
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 that
series of Securities (or if the Securities of that series will not bear interest
prior to Maturity, the first day on which a payment of principal and any premium
is made), and at least 10 days prior to each date of payment of principal and
any premium or interest if there has been any change with respect to the matters
set forth in the below mentioned Officers' Certificate, the Issuer will furnish
the Trustee and the Issuer's principal Paying Agent or Paying Agents, if other
than the Trustee, with an Officers' Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such payment of principal of and any
premium or interest on the Securities of that series shall be made to Holders of
Securities of that series or any related coupons who are not United States
Persons without withholding for or on account of any tax, assessment or other
governmental charge described in the Securities of the 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 of that series or related coupons and the Issuer will pay
to the Trustee or such Paying Agent the Additional Amounts required by the terms
of such Securities. If the Trustee or any Paying Agent, as the case may be,
shall not so receive the above mentioned certificate, then the Trustee or such
Paying Agent shall be entitled (i) to assume that no such withholding or
deduction is required with respect to any payment of principal or interest with
respect to any Securities of a series or related coupons until it shall have
received a certificate advising otherwise and (ii) to make all payments of
principal and interest with respect to the Securities of a series or related
coupons without withholding or deductions until otherwise advised. The Issuer
covenants to indemnify the Trustee and any Paying Agent for, and to hold them
harmless against, any loss, liability, claim, damage 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 or in reliance on any
Officers' Certificate furnished pursuant to this Section or in reliance on the
Issuer's not furnishing such an Officers' Certificate.
RIDER 10.11
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.01. Applicability of Article. Securities of any
series which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise specified as contemplated
by Section 3.01 for Securities of any series) in accordance with this Article.
SECTION 11.02. Election to Redeem; Notice to Trustee. The
election of the Issuer to redeem any Securities shall be evidenced by or
pursuant to a Board Resolution. In case of any redemption at the election of the
Issuer of less than all of the Securities of any series, the Issuer shall, at
least 45 days prior to the giving of the notice of redemption in Section 11.04
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount of Securities of
such series to be redeemed. In the case of any redemption of Securities prior to
the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Issuer shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction.
SECTION 11.03. Selection by Trustee of Securities to Be
Redeemed. If less than all the Securities of any series issued on the same day
with the same terms are to be redeemed, the particular Securities to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the
Trustee, from the Outstanding Securities of such series issued on such date with
the same terms not previously called for redemption, by such method as the
Trustee shall deem fair and appropriate and which may provide for the selection
for redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series.
The Trustee shall promptly notify the Issuer and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has been or
is to be redeemed.
<PAGE>
SECTION 11.04. Notice of Redemption. Notice of redemption
shall be given in the manner provided in Section 1.06, not less than 30 days nor
more than 60 days prior to the Redemption Date, unless a shorter period is
specified by the terms of such series established pursuant to Section 3.01, to
each Holder of Securities to be redeemed, but failure to give such notice in the
manner herein provided to the Holder of any Security designated for redemption
as a whole or in part, or any defect in the notice to any such Holder, shall not
affect the validity of the proceedings for the redemption of any other such
Security or portion thereof.
Any notice that is mailed to the Holders of Registered
Securities in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, accrued interest to the
Redemption Date payable as provided in Section 11.06, if any,
(3) if less than all Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption, the principal amount) 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) that on the Redemption Date the Redemption Price and
accrued interest to the Redemption Date payable as provided in Section
11.06, if any, will become due and payable upon each such Security, or
the portion thereof, to be redeemed and, if applicable, that interest
thereon shall cease to accrue on and after said date,
(6) 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 and accrued interest,
if any,
(7) that the redemption is for a sinking fund, if such is
the case,
(8) 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 date fixed for
redemption or the amount of any such missing coupon or coupons will be
deducted from the Redemption Price, unless security or indemnity
satisfactory to the Issuer, the Trustee for such series and any Paying
Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed
and any Registered Securities of such series are not to be redeemed,
and if such Bearer Securities may be exchanged for Registered
Securities not subject to redemption on this Redemption Date pursuant
to Section 3.05 or otherwise, the last date, as determined by the
Issuer, on which such exchanges may be made, and
(10) the CUSIP number of such Security, if any.
Notice of redemption of Securities to be redeemed at the
election of the Issuer shall be given by the Issuer or, at the Issuer's request,
by the Trustee in the name and at the expense of the Issuer.
SECTION 11.05. Deposit of Redemption Price. On or prior to 10
a.m. New York City time on any Redemption Date, the Issuer shall deposit with
the Trustee or with a Paying Agent (or, if the Issuer is acting as its own
Paying Agent, which it may not do in the case of a sinking fund payment under
Article Thirteen, segregate and hold in trust as provided in Section 10.03) an
amount of money in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 3.01 for the
Securities of such series) sufficient to pay on the Redemption Date the
Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Securities or portions thereof which
are to be redeemed on that date.
SECTION 11.06. Securities Payable on Redemption Date. Notice
of redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 3.01 for the
Securities of such series) (together with accrued interest, if any, to the
Redemption Date), and from and after such date (unless the Issuer shall default
in the payment of the Redemption Price and accrued interest) such Securities
shall, if the same were interest-bearing, cease to bear interest and the coupons
for such interest appertaining to any Bearer Securities so to be redeemed,
<PAGE>
except to the extent provided below, shall be void. Upon surrender of any such
Security for redemption in accordance with said notice, together with all
coupons, if any, appertaining thereto maturing after the Redemption Date, such
Security shall be paid by the Issuer at the Redemption Price, together with
accrued interest, 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
10.02) and, unless otherwise specified as contemplated by Section 3.01, only
upon presentation and surrender of coupons for such interest; and provided
further that installments of interest on Registered Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Record Dates according to their terms and
the provisions of Section 3.07.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Issuer and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided,
however, that interest represented by coupons shall be payable only at an office
or agency located outside the United States (except as otherwise provided in
Section 10.02) and, unless otherwise specified as contemplated by Section 3.01,
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) shall, until
paid, bear interest from the Redemption Date at the rate borne by the Security.
SECTION 11.07. Securities Redeemed in Part. Any Registered
Security which is to be redeemed only in part (pursuant to the provisions of
this Article or of Article Thirteen) shall be surrendered at a Place of Payment
therefor (with, if the Issuer or the Trustee so requires, due endorsement by, or
a written instrument of transfer in form satisfactory to the Issuer and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing) and the Issuer shall execute and the Trustee shall authenticate and
make available for delivery to the Holder of such Security without service
charge a new Security or Securities of the same series, of any authorized
denomination as requested by such Holder in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Security so
surrendered. If a Global Security is so surrendered, the Issuer shall execute
and the Trustee shall authenticate and deliver to the depository, without
service charge, a new Global Security in a denomination equal to and in exchange
for the unredeemed portion of the principal of the Global Security so
surrendered.
SECTION 11.08. Calculation of Original Issue Discount. The
Issuer shall file with the Trustee promptly at the end of each calendar year (i)
a written notice specifying the amount of original issue discount (including
daily rates and accrual periods) accrued on Outstanding Securities as of the end
of such year and (ii) such other specific information relating to such original
issue discount as may then be relevant under the Internal Revenue Code of 1986,
as amended from time to time.
ARTICLE XII
GUARANTEES
SECTION 12.01. Guarantees. If Securities of or within a series
are specified, as contemplated by Section 3.01, to be guaranteed by the
Guarantor, then the Guarantor hereby fully and unconditionally guarantees to
each Holder of any such Security authenticated and made available for delivery
by the Trustee and to each Holder of any coupon appertaining to any such
Security, and to the Trustee on behalf of each such Holder, the due and punctual
payment of the principal of (and premium, if any, on) and interest (including,
in case of default, interest on principal and, to the extent permitted by
applicable law, on overdue interest and including any additional interest
required to be paid according to the terms of any such Security or any coupon
appertaining thereto), if any, on each such Security, and the due and punctual
payment of any sinking fund payment (or analogous obligation), if any, provided
for with respect to any such Security, when and as the same shall become due and
payable, whether at Stated Maturity, upon redemption, upon acceleration, upon
tender for repayment at the option of any Holder or otherwise, according to the
terms thereof and of this Indenture, including, without limitation, the payment
of any Additional Amounts, if any, provided for with respect to any such
Security as described under Section 10.10 hereof (the "Guarantor Debt"). In case
of the failure of the Issuer or any successor thereto punctually to pay any such
principal, premium, interest or sinking fund payment, the Guarantor hereby
agrees to cause any such payment to be made punctually when and as the same
shall become due and payable, whether at Stated Maturity, upon redemption, upon
declaration of acceleration, upon tender for repayment at the option of any
Holder or otherwise, as if such payment were made by the Issuer.
<PAGE>
The Guarantor hereby agrees that its Guarantor Debt hereunder
shall be as if it were principal debtor and not merely surety and shall be
absolute and unconditional, irrespective of the identity of the Issuer, the
validity, regularity or enforceability of any such Security or any coupon
appertaining thereto or this Indenture, the absence of any action to enforce the
same, any waiver or consent by the Holder of any such Security or any coupon
appertaining thereto with respect to any provisions thereof, the recovery of any
judgment against the Issuer or any action to enforce the same, or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a guarantor. The Guarantor hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Issuer, any right to require a proceeding first against the
Issuer, protest, notice and all demands whatsoever and covenants that its
Guarantees will not be discharged except by complete performance of its
obligations contained in any such Security or any coupon appertaining thereto
and in this Guarantee.
If the Trustee or the Holder of any Security or any coupon
appertaining thereto is required by any court or otherwise to return to the
Issuer or the Guarantor, or any custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official acting in relation to the Issuer
or the Guarantor, any amount paid to the Trustee or such Holder in respect of a
Security or any coupons appertaining thereto, the Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and effect. The
Guarantor further agrees, to the fullest extent that it may lawfully do so,
that, as between the Guarantor, on the one hand, and the Holders and the
Trustee, on the other hand, the maturity of the obligations guaranteed hereby
may be accelerated as provided in Article V hereof for the purposes of this
Guarantee, notwithstanding any stay, injunction or other prohibition extent
under any applicable bankruptcy law preventing such acceleration in respect of
the obligations guaranteed hereby.
The Guarantor shall be subrogated to all rights of the Holders
of the Securities of a series (and of any coupons appertaining thereto) against
the Issuer in respect of any amounts paid by the Guarantor on account of such
Securities or any coupon appertaining thereto or this Indenture; provided,
however, that the Guarantor shall not be entitled to enforce or to receive any
payments arising out of, or based upon, such right of subrogation until the
principal of (and premium, if any, on) and interest, if any, on all Securities
of such series shall have been indefeasibly paid in full.
SECTION 12.02. Execution and Delivery of Guarantees. To
evidence its Guarantees with respect to Securities of or within any series that
are specified, as contemplated by Section 3.01, to be guaranteed by the
Guarantor, the Guarantor hereby agrees to execute the Guarantees, in the form of
Exhibit B or such other form as shall be established in one or more indentures
supplemented hereto or approved from time to time by or pursuant to a Board
Resolution, to be endorsed on each Security of such series authenticated and
made available for delivery by the Trustee. Each such Guarantee shall be
executed on behalf of the Guarantor by its Chairman of the Board, or its Vice
Chairman of the Board, or its President, or one of its Executive Vice Presidents
or Vice Presidents, or by its Treasurer or one of its Assistant Treasurers and
attested by its Secretary or one of its Assistant Secretaries. The signature of
any of these officers on the Guarantees may be manual or facsimile.
Guarantees bearing the manual or facsimile signatures of the
individuals who were the proper officers of the Guarantor shall bind the
Guarantor, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of the Securities
upon which such Guarantees are endorsed or did not hold such offices at the date
of such Securities.
The delivery of any Securities by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the
Guarantees endorsed thereon on behalf of the Guarantor. The Guarantor hereby
agrees that its Guarantees set forth in this Article shall remain in full force
and effect notwithstanding any failure to endorse on each security a notation of
such Guarantee.
SECTION 12.03. Limitation of Guarantor's Liability. The
Guarantor, and by its acceptance of a Security each Holder, hereby confirms that
it is the intention of all such parties that in no event shall any Guarantor
Debt under the Guarantees constitute or result in a fraudulent transfer or
conveyance for purposes of, or resulting a violation of, any United States
federal, or applicable United States state, fraudulent transfer or conveyance or
similar law. To effectuate the foregoing intention, in the event that the
Guarantor Debt, if any, in respect of the Securities of any series would, but
for this sentence, constitute or result in such a fraudulent transfer or
conveyance or violation, then the liability of the Guarantor under its
Guarantees in respect of the Securities of such series shall be reduced to the
extent necessary to eliminate such fraudulent transfer or conveyance or
violation under the applicable fraudulent transfer or conveyance or similar law.
<PAGE>
ARTICLE XIII
SINKING FUNDS
SECTION 13.01. 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
3.01 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 such Securities of any series is herein referred to as an
"optional sinking fund payment." If provided for by the terms of any Securities
of any series, the cash amount of any mandatory sinking fund payment may be
subject to reduction as provided in Section 13.02. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided for
by the terms of Securities of such series.
SECTION 13.02. Satisfaction of Sinking Fund Payments with
Securities. The Issuer may, in satisfaction of all or any part of any mandatory
sinking fund payment with respect to the Securities of a series, (1) deliver
Outstanding Securities of such series (other than any previously called for
redemption) together in the case of any Bearer Securities of such series with
all unmatured coupons appertaining thereto and (2) apply as a credit Securities
of such series which have been redeemed either at the election of the Issuer
pursuant to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities, as
provided for by the terms of such Securities, or which have otherwise been
acquired by the Issuer; provided that such Securities so delivered or applied as
a credit have not been previously so credited. Such Securities shall be received
and credited for such purpose by the Trustee at the applicable Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such mandatory sinking fund payment shall be reduced
accordingly.
SECTION 13.03. Redemption of Securities for Sinking Fund. Not
less than 60 days prior to each sinking fund payment date for Securities of any
series, the Issuer will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing mandatory sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash in the currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 3.01 for the Securities of such series) and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 13.02, and the optional amount, if any, to be added in cash
to the next ensuing mandatory sinking fund payment, and will also deliver to the
Trustee any Securities to be so delivered and credited. If such Officers'
Certificate shall specify an optional amount to be added in cash to the next
ensuing mandatory sinking fund payment, the Issuer shall thereupon be obligated
to pay the amount therein specified. Not less than 30 days before each such
sinking fund payment date the Trustee shall select the Securities to be redeemed
upon such sinking fund payment date in the manner specified in Section 11.03 and
cause notice of the redemption thereof to be given in the name of and at the
expense of the Issuer in the manner provided in Section 11.04. Such notice
having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Sections 11.06 and 11.07.
ARTICLE XIV
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 14.01. Applicability of Article. Repayment of
Securities of any series before their Stated Maturity at the option of Holders
thereof shall be made in accordance with the terms of such Securities, if any,
and (except as otherwise specified by the terms of such series established
pursuant to Section 3.01) in accordance with this Article.
SECTION 14.02. Repayment of Securities. Securities of any
series subject to repayment in whole or in part at the option of the Holders
thereof will, unless otherwise provided in the terms of such Securities, be
repaid at a price equal to the principal amount thereof, together with interest,
if any, thereon accrued to the Repayment Date specified in or pursuant to the
terms of such Securities. The Issuer covenants that on or prior to the Repayment
Date it will deposit with the Trustee or with a Paying Agent (or, if the Issuer
is acting as its own Paying Agent, segregate and hold in trust as provided in
Section 10.03) an amount of money in the currency or currencies, currency unit
or units or composite currency or currencies in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 3.01 for
the Securities of such series) sufficient to pay the principal (or, if so
provided by the terms of the Securities of any series, a percentage of the
principal) of, and (except if the Repayment Date shall be an Interest Payment
Date) accrued interest on, all the Securities or portions thereof, as the case
may be, to be repaid on such date.
<PAGE>
SECTION 14.03. Exercise of Option. Securities of any series
subject to repayment at the option of the Holders thereof will contain an
"Option to Elect Repayment" form on the reverse of such Securities. In order for
any Security to be repaid at the option of the Holder, the Trustee must receive
at the Place of Payment therefor specified in the terms of such Security (or at
such other place or places of which the Issuer shall from time to time notify
the Holders of such Securities) not earlier than 60 days nor later than 30 days
prior to the Repayment Date (1) the Security so providing for such repayment
together with the "Option to Elect Repayment" form on the reverse thereof duly
completed by the Holder (or by the Holder's attorney duly authorized in writing)
or (2) a facsimile transmission or a letter from a member of a national
securities exchange, or the National Association of Securities Dealers, Inc.
("NASD"), or a commercial bank or trust company in the United States setting
forth the name of the Holder of the Security, the principal amount of the
Security, the certificate number, the principal amount of the Security to be
repaid, the CUSIP number, if any, or a description of the tenor and terms of the
Security, a statement that the option to elect repayment is being exercised
thereby and a guarantee that the Security to be repaid, together with the duly
completed form entitled "Option to Elect Repayment" on the reverse of the
Security, will be received by the Trustee not later than the fifth Business Day
after the date of such facsimile transmission or letter; provided, however, that
such facsimile transmission or letter shall only be effective if such Security
and form duly completed are received by the Trustee by such fifth Business Day.
If less than the entire principal amount of such Security is to be repaid in
accordance with the terms of such Security, the principal amount of such
Security to be repaid, in increments of the minimum denomination for Securities
of such series, and the denomination or denominations of the Security or
Securities to be issued to the Holder for the portion of the principal amount of
such Security surrendered that is not to be repaid, must be specified. The
principal amount of any Security providing for repayment at the option of the
Holder thereof may not be repaid in part if, following such repayment, the
unpaid principal amount of such Security would be less than the minimum
authorized denomination of Securities of the series of which such Security to be
repaid is a part. Except as otherwise may be provided by the terms of any
Security providing for repayment at the option of the Holder thereof, exercise
of the repayment option by the Holder shall be irrevocable unless waived by the
Issuer.
SECTION 14.04. When Securities Presented for Repayment Become
Due and Payable. If Securities of any series providing for repayment at the
option of the Holders thereof shall have been surrendered as provided in this
Article and as provided by or pursuant to the terms of such Securities, such
Securities or the portions thereof, as the case may be, to be repaid shall
become due and payable and shall be paid by the Issuer on the Repayment Date
therein specified, and on and after such Repayment Date (unless the Issuer shall
default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be
repaid, except to the extent provided below, shall be void. Upon surrender of
any such Security for repayment in accordance with such provisions, together
with all coupons, if any, appertaining thereto maturing after the Repayment
Date, the principal amount of such Security so to be repaid shall be paid by the
Issuer, together with accrued interest, if any, to the Repayment Date; provided,
however, that coupons whose Stated Maturity is on or prior to the Repayment Date
shall be payable only at an office or agency located outside the United States
(except as otherwise provided in Section 10.02) and, unless otherwise specified
pursuant to Section 3.01, only upon presentation and surrender of such coupons;
and provided further that, in the case of Registered Securities, installments of
interest, if any, whose Stated Maturity is on or prior to the Repayment Date
shall be payable (but without interest thereon, unless the Issuer shall default
in the payment thereof) to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
3.07.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 14.02 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
Issuer and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to the Trustee or any
Paying Agent any such missing coupon in respect of which a deduction shall have
been made as provided in the preceding sentence, 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 the
United States (except as otherwise provided in Section 10.02) and, unless
otherwise specified as contemplated by Section 3.01, only upon presentation and
surrender of those coupons.
If the principal amount of any Security surrendered for
repayment shall not be so repaid upon surrender thereof, such principal amount
(together with interest, if any, thereon accrued to such Repayment Date) shall,
until paid, bear interest from the Repayment Date at the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) set forth
in such Security.
<PAGE>
SECTION 14.05. Securities Repaid in Part. Upon surrender of
any Registered Security which is to be repaid in part only, the Issuer shall
execute and the Trustee shall authenticate and make available for delivery to
the Holder of such Security, without service charge and at the expense of the
Issuer, a new Registered Security or Securities of the same series, of any
authorized denomination specified by the Holder, in an aggregate principal
amount equal to and in exchange for the portion of the principal of such
Security so surrendered which is not to be repaid.
ARTICLE XV
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 15.01. Applicability of Article; Issuer's Option to
Effect Defeasance or Covenant Defeasance. If, pursuant to Section 3.01,
provision is made for either or both of (a) defeasance of the Securities of or
within a series under Section 15.02 or (b) covenant defeasance of the Securities
of or within a series under Section 15.03, then the provisions of such Section
or Sections, as the case may be, together with the other provisions of this
Article (with such modifications thereto as may be specified pursuant to Section
3.01 with respect to any Securities), shall be applicable to such Securities and
any coupons appertaining thereto, and the Issuer may at its option by Board
Resolution, at any time, with respect to such Securities and any coupons
appertaining thereto, elect to have Section 15.02 (if applicable) or Section
15.03 (if applicable) be applied to such Outstanding Securities and any coupons
appertaining thereto upon compliance with the conditions set forth below in this
Article.
SECTION 15.02. Defeasance and Discharge. Upon the Issuer's
exercise of the above option applicable to this Section with respect to any
Securities of or within a series, the Issuer shall be deemed to have been
discharged from its obligations with respect to such Outstanding Securities and
any coupons appertaining thereto on the date the conditions set forth in Section
15.04 are satisfied (hereinafter, "defeasance"). For this purpose, such
defeasance means that the Issuer shall be deemed to have paid and discharged the
entire indebtedness represented by such Outstanding Securities and any coupons
appertaining thereto, which shall thereafter be deemed to be "Outstanding" only
for the purposes of Section 15.05 and the other Sections of this Indenture
referred to in clauses (A) and (B) below, and to have satisfied all of 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 Issuer, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of such Outstanding Securities and any coupons appertaining thereto to
receive, solely from the trust fund described in Section 15.04 and as more fully
set forth in such Section, payments in respect of the principal of (and premium)
and interest, if any, on such Securities and any coupons appertaining thereto
when such payments are due, (B) the Issuer's obligations with respect to such
Securities under Sections 3.05, 3.06, 10.02 and 10.03 and with respect to the
payment of Additional Amounts, if any, on such Securities as contemplated by
Section 10.10, (C) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (D) this Article. Subject to compliance with this Article
Fifteen, the Issuer may exercise its option under this Section notwithstanding
the prior exercise of its option under Section 15.03 with respect to such
Securities and any coupons appertaining thereto.
SECTION 15.03. Covenant Defeasance. Upon the Issuer's exercise
of the above option applicable to this Section with respect to any Securities of
or within a series, the Issuer shall be released from its obligations under
Sections 10.04 to 10.08, inclusive, and, if specified pursuant to Section 3.01,
its obligations under any other covenant contained herein or in any indenture
supplemental hereto, with respect to such Outstanding Securities and any coupons
appertaining thereto on and after the date the conditions set forth in Section
15.04 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 10.04 to 10.08, inclusive, or 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 Outstanding Securities
and any coupons appertaining thereto, the Issuer 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 5.01(4) or 5.01(8) 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.
<PAGE>
SECTION 15.04. Conditions to Defeasance or Covenant
Defeasance. The following shall be the conditions to application of Section
15.02 or Section 15.03 to any Outstanding Securities of or within a series and
any coupons appertaining thereto:
(a) The Issuer shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 6.07 who shall agree to comply with the
provisions of this Article Fifteen applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of such Securities and any coupons appertaining thereto, (1) an
amount in such currency, currencies or currency unit in which such
Securities and any coupons appertaining thereto are then specified as
payable at Stated Maturity, or (2) Government Obligations applicable to
such Securities and coupons appertaining thereto (determined on the
basis of the currency, currencies or currency unit in which such
Securities and coupons appertaining thereto are then specified as
payable at Stated Maturity) which through the scheduled payment of
principal and interest in respect thereof in accordance with their
terms will provide, not later than the due date of any payment of
principal of (and premium) and interest, if any, on such Securities and
any coupons appertaining thereto, money in an amount, or (3) a
combination thereof, in any case, in an amount, sufficient, without
consideration of any reinvestment of such principal and interest, in
the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge, (i) the
principal of (and premium) and interest, if any, on such Outstanding
Securities and any coupons appertaining thereto on the Stated Maturity
of such principal or installment of principal or interest and (ii) any
mandatory sinking fund payments or analogous payments applicable to
such Outstanding Securities and any coupons appertaining thereto on the
day on which such payments are due and payable in accordance with the
terms of this Indenture and of 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 under, this Indenture
or any other material agreement or instrument to which the Issuer is a
party or by which it is bound.
(c) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to such
Securities and any coupons appertaining thereto shall have occurred and
be continuing on the date of such deposit or, insofar as Sections
5.01(6) and 5.01(7) 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).
(d) In the case of an election under Section 15.02, the Issuer
shall have delivered to the Trustee an Opinion of Counsel stating that
(i) the Issuer has received from, or there has been published by, the
Internal Revenue Service a ruling, or (ii) since the date of execution
of this Indenture, there has been a change in the applicable Federal
income tax law, in either case to the effect that, and based thereon
such opinion shall confirm that, the Holders of such Outstanding
Securities 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.
(e) In the case of an election under Section 15.03, the Issuer
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of such Outstanding 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.
(f) The Issuer shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance under Section 15.02 or the
covenant defeasance under Section 15.03 (as the case may be) have been
complied with and an Opinion of Counsel to the effect that either (i)
as a result of a deposit pursuant to subsection (a) above and the
related exercise of the Issuer's option under Section 15.02 or Section
15.03 (as the case may be), registration is not required under the
Investment Company Act of 1940, as amended, by the Issuer, with respect
to the trust funds representing such deposit or by the Trustee for such
trust funds or (ii) all necessary registrations under said Act have
been effected.
(g) Notwithstanding any other provisions of this Section, 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 Issuer in connection therewith pursuant to Section
3.01.
<PAGE>
SECTION 15.05. Deposited Money and Government Obligations to
Be Held in Trust; Other Miscellaneous Provisions. Subject to the provisions of
the last paragraph of Section 10.03, all money and Government Obligations (or
other property as may be provided pursuant to Section 3.01) (including the
proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this Section 15.05, the "Trustee") pursuant to
Section 15.04 in respect of any Outstanding 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 (including the Issuer 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 (and premium) and interest, but such money need not be segregated from
other funds except to the extent required by law.
Unless otherwise specified with respect to any Security
pursuant to Section 3.01, if, after a deposit referred to in Section 15.04(a)
has been made, the Holder of a Security in respect of which such deposit was
made is entitled to, and does, elect pursuant to Section 3.01 or the terms of
such Security to receive payment in a currency or currency unit other than that
in which the deposit pursuant to Section 15.04(a) has been made in respect of
such Security, the indebtedness represented by such Security and any 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), 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 amount or other property deposited in respect of such
Security into the currency or currency unit in which such Security becomes
payable as a result of such election based on the applicable market exchange
rate for such currency or currency unit in effect on the second Business Day
prior to each payment date.
The Issuer shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the Government
Obligations deposited pursuant to Section 15.04 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of such Outstanding Securities and any
coupons appertaining thereto.
Anything in this Article to the contrary notwithstanding,
subject to Section 6.06, the Trustee shall deliver or pay to the Issuer from
time to time upon Issuer Request any money or Government Obligations (or other
property and any proceeds therefrom) held by it as provided in Section 15.04
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, in
accordance with this Article.
ARTICLE XVI
MEETINGS OF HOLDERS OF SECURITIES
SECTION 16.01. Purposes for Which Meetings May Be Called. A
meeting of Holders of Securities of any series may be called at any time and
from time to time pursuant to this Article to make, give or take any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be made, given or taken by Holders of Securities
of such series.
SECTION 16.02. Call, Notice and Place of Meetings. (a) The
Trustee may at any time call a meeting of Holders of Securities of any series
for any purpose specified in Section 16.01, to be held at such time and at such
place as the Trustee shall determine. Notice of every meeting of Holders of
Securities of any series, setting forth the time and the place of such meeting
and in general terms the action proposed to be taken at such meeting, shall be
given, in the manner provided in Section 1.06, not less than 20 nor more than
180 days prior to the date fixed for the meeting.
<PAGE>
(b) In case at any time the Issuer, pursuant to a Board
Resolution, or the Holders of at least 25% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified in
Section 16.01, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have made the
first publication of the notice of such meeting within 20 days after receipt of
such request or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Issuer or the Holders of Securities of such series in
the amount above specified, as the case may be, may determine the time and the
place for such meeting and may call such meeting for such purposes by giving
notice thereof as provided in subsection (a) of this Section.
SECTION 16.03. Persons Entitled to Vote at Meetings. To be
entitled to vote at any meeting of Holders of Securities of any series, a Person
shall be (1) a Holder of one or more Outstanding Securities of such series, or
(2) a Person appointed by an instrument in writing as proxy for a Holder or
Holders of one or more Outstanding Securities of such series by such Holder or
Holders. The only Persons who shall be entitled to be present or to speak at any
meeting of Holders of Securities of any series shall be the Persons entitled to
vote at such meeting and their counsel, any representatives of the Trustee and
its counsel and any representatives of the Issuer and its counsel.
<PAGE>
SECTION 16.04. Quorum; Action. The Persons entitled to vote a
majority in principal amount of the Outstanding Securities of a series shall
constitute a quorum for a meeting of Holders of Securities of such series;
provided, however, that if any action is to be taken at such meeting with
respect to a consent or waiver which this Indenture expressly provides may be
given by the Holders of not less than a specified percentage in principal amount
of the Outstanding Securities of a series, the Persons entitled to vote such
specified percentage in principal amount of the Outstanding Securities of such
series shall constitute a quorum. In the absence of a quorum within 30 minutes
after the time appointed for any such meeting, the meeting shall, if convened at
the request of Holders of Securities of such series, be dissolved. In any other
case the meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at the reconvening of any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days; at the reconvening of any meeting adjourned or further
adjourned for lack of a quorum, the persons entitled to vote 25% in aggregate
principal amount of the then Outstanding Securities shall constitute a quorum
for the taking of any action set forth in the notice of the original meeting.
Notice of the reconvening of any adjourned meeting shall be given as provided in
Section 15.02(a), except that such notice need be given only once not less than
five days prior to the date on which the meeting is scheduled to be reconvened.
Except as limited by the proviso to Section 9.02, any
resolution presented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted by the affirmative vote of the
persons entitled to vote a majority in aggregate principal amount of the
Outstanding Securities represented at such meeting; provided, however, that,
except as limited by the proviso to Section 9.02, any resolution with respect to
any request, demand, authorization, direction, notice, consent, waiver or other
action which this Indenture expressly provides may be made, given or taken by
the Holders of a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of a series may be adopted at a
meeting or an adjourned meeting duly reconvened and at which a quorum is present
as aforesaid by the affirmative vote of the Holders of such specified percentage
in principal amount of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with this Section
shall be binding on all the Holders of Securities of such series and the related
coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section
15.04, if any action is to be taken at a meeting of Holders of Securities of any
series with respect to any request, demand, authorization, direction, notice,
consent, waiver or other action that this Indenture expressly provides may be
made, given or taken by the Holders of a specified percentage in principal
amount of all Outstanding Securities affected thereby, or of the Holders of such
series and one or more additional series:
(i) there shall be no minimum quorum requirement for
such meeting; and
(ii) the principal amount of the Outstanding Securities of
such series that vote in favor of such request, demand, authorization,
direction, notice, consent, waiver or other action shall be taken into
account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made, given
or taken under this Indenture.
SECTION 16.05. Determination of Voting Rights; Conduct and
Adjournment of Meetings. (a) Notwithstanding any provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders of Securities of a series in regard to proof of the
holding of Securities of such series and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section
1.04 and the appointment of any proxy shall be proved in the manner specified in
Section 1.04 or by having the signature of the Person executing the proxy
witnessed or guaranteed by any trust company, bank or banker authorized by
Section 1.04 to certify to the holding of Bearer Securities. Such regulations
may provide that written instruments appointing proxies, regular on their face,
may be presumed valid and genuine without the proof specified in Section 1.04 or
other proof.
(b) The Trustee shall, by an instrument in writing appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Issuer or by Holders of Securities as provided in Section 16.02(b), in which
case the Issuer or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
<PAGE>
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 16.02 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting, and the
meeting may be held as so adjourned without further notice.
SECTION 16.06. Counting Votes and Recording Action of
Meetings. The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
Series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the fact, setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 16.02 and, if
applicable, Section 16.04. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Issuer and another to the Trustee to be preserved
by the Trustee, the latter to have attached thereto the ballots voted at the
meeting. Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SIGNATURES AND SEALS
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed all as of the day and year first above written.
AMERICAN STANDARD INC.
By: /s/Thomas S. Battaglia
Name: Thomas S. Battaglia
Title: Vice President and Treasurer
AMERICAN STANDARD COMPANIES INC.
By: /s/Thomas S. Battaglia
Name: Thomas S. Battaglia
Title: Vice President and Treasurer
THE BANK OF NEW YORK,
as Trustee
By: /s/ Van K. Brown
Name: Van K. Brown
Title: Assistant Vice President
<PAGE>
FORM OF REDEEMABLE OR NON-REDEEMABLE SENIOR SECURITY
[Face of Security]
[If the Holder of this Security (as indicated below) is The Depository Trust
Company ("DTC") or a nominee of DTC, this Security is a Global Security and the
following two legends apply:
Unless this Security is presented by an authorized representative of The
Depository Trust Company ("DTC"), 55 Water Street, New York, New York to the
issuer or its agent for registration of transfer, exchange or payment, and such
Security issued is registered in the name of CEDE & CO., or such other name as
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, since the
registered owner hereof, CEDE & CO., has an interest herein.
Unless and until this Security is exchanged in whole or in part for Securities
in certificated form, this Security may not be transferred except as a whole by
DTC to a nominee thereof or by a nominee thereof to DTC or another nominee of
DTC or by DTC or any such nominee to a successor of DTC or a nominee of such
successor.]
[If this Security is an Original Issue Discount Security, insert -- FOR PURPOSES
OF SECTION 1272 THROUGH 1275 OF THE UNITED STATES INTERNAL REVENUE CODE, THE
ISSUE PRICE OF THIS SECURITY IS , THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THIS
SECURITY IS , THE ISSUE DATE IS , 19 AND THE YIELD TO MATURITY IS %. [THE METHOD
USED TO DETERMINE THE AMOUNT OF ORIGINAL ISSUE DISCOUNT APPLICABLE TO THE SHORT
ACCRUAL PERIOD OF , 19 TO , 19 , IS % OF THE PRINCIPAL AMOUNT OF THIS SECURITY.]
AMERICAN STANDARD INC.
[Designation of Series]
No. _______ $_________
CUSIP No.
AMERICAN STANDARD INC., a Delaware corporation (herein referred to as the
"Issuer," which term includes any successor Person under the Indenture referred
to on the reverse hereof), for value received, hereby promises to pay to
______________________________ or registered assigns the principal sum of
_______ Dollars on _____________________ (the "Stated Maturity Date") [or insert
date fixed for earlier redemption (the "Redemption Date," and together with the
Stated Maturity Date with respect to principal repayable on such date, the
"Maturity Date.")]
[If the Security is to bear interest prior to Maturity, insert -- and to pay
interest thereon from ______________ or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semi-annually on
__________ and _________ in each year (each, an "Interest Payment Date"),
commencing __________, at the rate of __% per annum, until the principal hereof
is paid or duly provided for. 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 Holder in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the ________ or ______ (whether or
not a Business Day), as the case may be, next preceding such Interest Payment
Date [at the office or agency of the Issuer maintained for such purpose;
provided, however, that such interest may be paid, at the Issuer's option, by
mailing a check to such Holder at its registered address or by transfer of funds
to an account maintained by such Holder within the United States]. Any such
interest not so punctually paid or duly provided for shall forthwith cease to be
payable to the Holder on such Regular Record Date, and may be paid to the Holder
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series 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
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in the Indenture. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.]
<PAGE>
[If the Security is not to bear interest prior to Maturity, insert -- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at the
[Stated] Maturity Date and in such case the overdue principal of this Security
shall bear interest at the rate of % per annum (to the extent that the payment
of such interest shall be legally enforceable), which shall accrue from the date
of such default in payment to the date payment of such principal has been made
or duly provided for. Interest on any overdue principal shall be payable on
demand. Any such interest on any overdue principal that is not so paid on demand
shall bear interest at the rate of % per annum (to the extent that the payment
of such interest shall be legally enforceable), which shall accrue from the date
of such demand for payment to the date payment of such interest has been made or
duly provided for, and such interest shall also be payable on demand.]
The principal of this Security payable on the Stated Maturity Date [or the
principal of, premium, and, if the Redemption Date is not an Interest Payment
Date, interest on this Security payable on the Redemption Date] will be paid
against presentation of this Security at the office or agency of the Issuer
maintained for that purpose in ___________________, in such coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest payable on this Security on any Interest Payment Date and on the
[Stated] Maturity Date [or Redemption Date, as the case may be,] will include
interest accrued from and including the next preceding Interest Payment Date in
respect of which interest has been paid or duly provided for (or from and
including ____________, if no interest has been paid on this Security) to but
excluding such Interest Payment Date or the [Stated] Maturity Date [or
Redemption Date, as the case may be.] If any Interest Payment Date or the
[Stated] Maturity Date or [Redemption Date] falls on a day that is not a
Business Day, as defined below, principal, premium, and/or interest payable with
respect to such Interest Payment Date or [Stated] Maturity Date [or Redemption
Date, as the case may be,] will be paid on the next succeeding Business Day with
the same force and effect as if it were paid on the date such payment was due,
and no interest shall accrue on the amount so payable for the period from and
after such Interest Payment Date or [Stated] Maturity Date [or Redemption Date,
as the case may be.] "Business Day" means any day, other than a Saturday or
Sunday, on which banks in New York are not required or authorized by law or
executive order to close.
[If this Security is a Global Security, insert -- All payments of principal,
premium, and interest in respect of this Security will be made by the Issuer in
immediately available funds.]
Reference is hereby made to the further provisions of this Security set forth on
the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the Certificate of Authentication hereon has been executed by the Trustee
by manual signature of one of its authorized signatories, this Security shall
not be entitled to any benefit under the Indenture, or be valid or obligatory
for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed
under its facsimile corporate seal.
AMERICAN STANDARD INC.
By:
By:
Attest:
<PAGE>
[Reverse of Security]
AMERICAN STANDARD INC.
This Security is one of a duly authorized issue of securities of the Issuer
(herein called the "Securities"), issued and to be issued in one or more series
under an Indenture, dated as of [ ], 1997 (herein called the "Indenture")
between the Issuer and The Bank of New York, as Trustee (herein called the
"Trustee," which term includes any successor trustee under the Indenture with
respect to the series of which this Security is a part), 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 Issuer, the Trustee and the Holders of the Securities, and of the terms
upon which the Securities are, and are to be, authenticated and delivered. This
Security is one of the duly authorized series of Securities designated on the
face hereof (collectively, the "Securities"), [if applicable, insert -- and the
aggregate principal amount of the Securities to be issued under such series is
limited to $______ (except for Securities authenticated and delivered upon
transfer of, or in exchange for, or in lieu of other Securities).] All terms
used in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
If an Event of Default, as defined in the Indenture, shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.
[If applicable, insert -- The Securities may not be redeemed prior to the Stated
Maturity Date.]
[If applicable, insert -- The Securities are subject to redemption [ (l) (If
applicable, insert -- on _________ in any year commencing with the year ____ and
ending with the year ____ through operation of the sinking fund for this series
at a Redemption Price equal to 100% of the principal amount, and (2) ] [If
applicable, insert -- at any time [on or after ___________], as a whole or in
part, at the election of the Issuer, at the following Redemption Prices
(expressed as percentages of the principal amount):
If redeemed on or before _______, __% and if redeemed during the 12-month period
beginning _______ of the years indicated at the Redemption Prices indicated
below.
Year Redemption Price Year Redemption Price
and thereafter at a Redemption Price equal to __% of the principal amount,
together in the case of any such redemption [If applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date; provided, however, that installments of interest on this
Security whose Stated Maturity is on or prior to such Redemption Date will be
payable to the Holder of this Security, or one or more Predecessor Securities,
of record at the close of business on the relevant Record Dates referred to on
the face hereof, all as provided in the Indenture.]
[If applicable, insert -- The Securities are subject to redemption (1) on
_______ in any year commencing with the year ____ and ending with the year ____
through operation of the sinking fund for this series at the Redemption Prices
for redemption through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below, and (2) at any time [on
or after _______], as a whole or in part, at the election of the Issuer, at the
Redemption Prices for redemption otherwise than through operation of the sinking
fund (expressed as percentages of the principal amount) set forth in the table
below: If redeemed during the 12-month period beginning ________ of the years
indicated,
Redemption Price for Redemption Price for
Redemption Through Redemption Otherwise
Operation of the Than Through Operation
Year Sinking Fund of the Sinking Fund
<PAGE>
and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date;
provided, however, that installments of interest on this Security whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holder of
this Security, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]
[If applicable, insert -- Notwithstanding the foregoing, the Issuer may not,
prior to _______, redeem any Securities as contemplated by [Clause (2) of] the
preceding paragraph as a part of, or in anticipation of, any refunding operation
by the application, directly or indirectly, of moneys borrowed having an
interest cost to the Issuer (calculated in accordance with generally accepted
financial practice) of less than __% per annum.]
[If applicable, insert -- The sinking fund for the Securities provides for the
redemption on _______ in each year, beginning with the year ____ and ending with
the year ____, of [not less than] $_______] [("mandatory sinking fund") and not
more than $_______] aggregate principal amount of the Securities. [The
Securities acquired or redeemed by the Issuer otherwise than through [mandatory]
sinking fund payments may be credited against subsequent [mandatory] sinking
fund payments otherwise required to be made in the [describe order] order in
which they become due.]]
Notice of redemption will be given by mail to Holders of Securities, not less
than 30 nor more than 60 days prior to the Redemption Date, all as provided in
the Indenture.
In the event of redemption of this Security in part only, a new Security or
Securities for the unredeemed portion hereof shall be issued in the name of the
Holder hereof upon the cancellation hereof.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Securities under the Indenture at
any time by the Issuer and the Trustee with the consent of the Holders of not
less than a majority of the aggregate principal amount of all Securities issued
under the Indenture at the time Outstanding and affected thereby. The Indenture
also contains provisions permitting the Holders of not less than a majority of
the aggregate principal amount of the Outstanding Securities, on behalf of the
Holders of all such Securities, to waive compliance by the Issuer with certain
provisions of the Indenture. Furthermore, provisions in the Indenture permit the
Holders of not less than a majority of the aggregate principal amount, in
certain instances, of the Outstanding Securities of any series to waive, on
behalf of all of the Holders of Securities of such series, certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and other Securities issued upon the
registration of transfer hereof or in exchange hereafter or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security or of the
Indenture shall alter or impair the obligation of the Issuer, which is absolute
and unconditional, to pay the principal of (and premium) and interest on this
Security at the times, places and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein [and
herein] set forth, the transfer of this Security is registrable in the Security
Register of the Issuer upon surrender of this Security for registration of
transfer at the office or agency of the Issuer in any place where the principal
of (and premium) and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Issuer and the Security Registrar duly executed by, the Holder hereof or by his
attorney duly authorized in writing, and thereupon one or more new Securities,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations therein [and
herein] set forth, this Security is exchangeable for a like aggregate principal
amount of Securities of different authorized denominations but otherwise having
the same terms and conditions, as requested by the Holder hereof surrendering
the same.
The Securities of this series are issuable only in registered form [without
coupons] in denominations of $_______ and any integral multiple thereof.
No service charge shall be made for any such registration of transfer or
exchange, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Issuer, the
Trustee nor any such agent shall be affected by notice to the contrary.
<PAGE>
No recourse shall be had for the payment of the principal of or premium, or the
interest on this Security, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture or any indenture
supplemental thereto, against any past, present or future stockholder, employee,
officer, director, incorporator, limited or general partner, as such, of the or
of any successor, either directly or through the Issuer or any successor,
whether by virtue of any constitution, statute or rule of law or by the
enforcement of any assessment or penalty or otherwise, all such liability being,
by the acceptance hereof and as part of the consideration for the issue hereof,
expressly waived and released.
The Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed entirely in such State without regard to conflicts of law
principles thereof.
<PAGE>
FORMS OF CERTIFICATION
EXHIBIT B-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be
delivered]
This is to certify that, as of the date hereof, and except as
set forth below, the above-captioned Securities held by you for our account (i)
are owned by person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States Federal income taxation regardless of its
source ("United States person(s)"), (ii) are owned by United States person(s)
that are (a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section
1.165-12(c)(1)(v) are herein referred to as "financial institutions") purchasing
for their own account or for resale, or (b) United States person(s) who acquired
the Securities through foreign branches of United States financial institutions
and who hold the Securities through such United States financial institutions on
the date hereof (and in either case (a) or (b), each such United States
financial institution hereby agrees, on its own behalf or through its agent,
that you may advise AMERICAN STANDARD INC. or its agent that such financial
institution will comply with the requirements of Section 165(j)(3)(A), (B) or
(C) of the United States Internal Revenue Code of 1986, as amended, and the
regulations thereunder), or (iii) are owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period (as
defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and, in addition, if the owner is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)), this is to further certify that such financial institution
has not acquired the Securities for purposes of resale directly or indirectly to
a United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or
prior to the date on which you intend to submit your certification relating to
the above-captioned Securities held by you for our account in accordance with
your Operating Procedures if any applicable statement herein is not correct on
such date, and in the absence of any such notification it may be assumed that
this certification applies as of such date.
This certificate excepts and does not relate to [U.S.$] of
such interest in the above-captioned Securities in respect of which we are not
able to certify and as to which we understand an exchange for an interest in a
permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until we
do so certify.
We understand that this certificate may be required in
connection with certain tax legislation in the United States. If administrative
or legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: ________, ____
[To be dated no earlier than the 15th day prior to (i) the Exchange Date or (ii)
the relevant Interest Payment Date occurring prior to the Exchange Date, as
applicable]
[Name of Person Making Certification]
------------------------------------
(Authorized Signature)
Name:
Title:
<PAGE>
EXHIBIT B-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be
delivered]
This is to certify that, based solely on written
certifications that we have received in writing, by tested telex or by
electronic transmission from each of the persons appearing in our records as
persons entitled to a portion of the principal amount set forth below (our
"Member Organizations") substantially in the form attached hereto, as of the
date hereof, [U.S.$] principal amount of the above-captioned Securities (i) is
owned by person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States Federal income taxation regardless of its
source ("United States person(s)"), (ii) is owned by United States person(s)
that are (a) foreign branches of United States financial institutions (financial
institutions, as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v)
are herein referred to as "financial institutions") purchasing for their own
account or for resale, or (b) United States person(s) who acquired the
Securities through foreign branches of United States financial institutions and
who hold the Securities through such United States financial institutions on the
date hereof (and in either case (a) or (b), each such financial institution has
agreed, on its own behalf or through its agent, that we may advise American
Standard Inc. or its agent that such financial institution will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder), or (iii) is owned by United
States or foreign financial institution(s) for purposes of resale during the
restricted period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and, to the further effect, that financial institutions
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) have certified that they have not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and its
"Possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We further certify that (i) we are not making available
herewith for exchange (or, if relevant, collection of any interest) any portion
of the temporary Global Security representing the above-captioned Securities
excepted in the above-referenced certificates of Member Organizations and (ii)
as of the date hereof we have not received any notification from any of our
Member Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in
connection with certain tax legislation in the United States. If administrative
or legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: _______ ____
[To be dated no earlier than the Exchange Date or the relevant Interest Payment
Date occurring prior to the Exchange Date, as applicable]
[Morgan Guaranty Trust Company of New York, Brussels Office,] as Operator
of the Euroclear System [CEDEL S.A.]
By:
<PAGE>
FORM OF NOTATION ON SECURITY
RELATING TO AMERICAN STANDARD COMPANIES INC.
The Guarantor has unconditionally guaranteed, to the extent
set forth in the Indenture and subject to the provisions in the Indenture, the
due and punctual payment and performance of the obligations of the Company in
connection with the Indenture and each Series of Securities issued thereunder.
In case of the failure of the Company punctually to perform or make any such
payment, the Guarantor hereby agrees to cause such payment and performance to be
made punctually.
The obligations of the Guarantor to the Holders and to the
Trustee pursuant to the Guarantee and the Indenture are expressly set forth in
Article Twelve of the Indenture and reference is hereby made to the Indenture
for the precise terms of the Guarantee. Capitalized terms used and not defined
herein have the meanings ascribed thereto in the Indenture.
AMERICAN STANDARD COMAPANIES INC.
By:
Name:
Title:
Attest:
By:
Name:
Title:
AMERICAN STANDARD INC., as Issuer
AMERICAN STANDARD COMPANIES INC., as Guarantor
and
THE BANK OF NEW YORK, as Trustee
---------------
Third Supplemental Indenture
Dated as of April 13, 1998
---------------
7 3/8% Senior Notes due 2005
<PAGE>
THIRD SUPPLEMENTAL INDENTURE, dated as of April 13, 1998 (the
"Third Supplemental Indenture"), to the Indenture, dated as of January 15, 1998
(as amended, modified or supplemented from time to time in accordance therewith,
the "Indenture"), among AMERICAN STANDARD INC., a Delaware corporation
(hereinafter called the "Issuer"), having its principal office at One Centennial
Avenue, P.O. Box 6820, Piscataway, New Jersey 08835-6820, and AMERICAN STANDARD
COMPANIES INC., a Delaware corporation (hereinafter called the "Guarantor"),
having its principal office at One Centennial Avenue, P.O. Box 6820, Piscataway,
New Jersey 08835-6820, and THE BANK OF NEW YORK, a New York banking corporation,
as Trustee hereunder (hereafter called the "Trustee"), having its principal
office at 101 Barclay Street, Floor 21 West, New York, New York 10286.
RECITALS
WHEREAS, the Issuer, the Guarantor and the Trustee have each
duly authorized the execution and delivery of the Indenture to provide for the
issuance from time to time of one or more series of its senior debt securities
(the "Securities") to be issued in one or more series as in the Indenture
provided;
WHEREAS, the Issuer and the Guarantor desire and have
requested the Trustee to join them in the execution and delivery of this Third
Supplemental Indenture in order to establish and provide for the issuance by the
Issuer and the Guarantor of a series of Securities designated as its 7 3/8%
Senior Notes due 2005 (the "7 3/8% Notes") in the aggregate principal amount of
$250,000,000, substantially in the form attached hereto as Exhibit A, on the
terms set forth herein;
WHEREAS, Section 9.01 of the Indenture provides that a
supplemental indenture may be entered into by the Issuer and the Guarantor and
the Trustee for such purpose provided certain conditions are met;
WHEREAS, the conditions set forth in the Indenture for the
execution and delivery of this Third Supplemental Indenture have been complied
with; and
WHEREAS, all things necessary to make this Third Supplemental
Indenture a valid agreement of the Issuer, the Guarantor and the Trustee, in
accordance with its terms, and a valid amendment of, and supplement to, the
Indenture have been done;
NOW, THEREFORE:
In consideration of the premises and the purchase and
acceptance of the 7 3/8% Notes by the Holders thereof the Company mutually
covenants and agrees with the Trustee, for the equal and proportionate benefit
of all Holders of the 7 3/8% Notes, that the Indenture is supplemented and
amended, to the extent and for the purposes expressed herein, as follows:
Section 1. SCOPE OF THIS THIRD SUPPLEMENTAL INDENTURE
(a) The changes, modifications and supplements to the
Indenture effected by this Third Supplemental Indenture in Section 2 hereof
shall only be applicable with respect to, and govern the terms of, the 7 3/8%
Notes issued by the Issuer and the Guarantor, which shall be limited in original
aggregate principal amount to $250,000,000, and shall not apply to any other
Securities which may be issued under the Indenture unless a supplemental
indenture with respect to such other Securities specifically incorporates such
changes, modifications and supplements.
(b) Pursuant to this Third Supplemental Indenture, there is
hereby created and designated a series of Securities under the Indenture
entitled "7 3/8% Senior Notes due 2005." The 7 3/8% Notes shall be in the form
of Exhibit A hereto. The Guarantee to be endorsed on the 7 3/8% Notes shall be
in substantially the form set forth in exhibit B.
<PAGE>
(1) the title of the Securities of such series shall be "7
3/8% Senior Notes due 2005" and the 7 3/8% Notes are endorsed to the
benefit of Article XII of the Indenture;
(2) the 7 3/8% Notes shall be initially authenticated and
delivered from time to time in aggregate principal amount limited to
$250,000,000;
(3) the Notes will be issued at a price of 99.488%;
(4) the principal of each 7 3/8% Note shall be payable on
April 15, 2005;
(5) the 7 3/8% Notes shall bear interest at the rate of
seven and three hundred seventy five thousandths per centum (7 3/8%)
per annum;
(6) interest shall accrue on the 7 3/8% Notes from April 13,
1998, or the most recent date to which interest has been paid or duly
provided for; the Interest Payment Dates for such Notes shall be April
15 and October 15 in each year, commencing October 15, 1998, and the
Regular Record Dates with respect to the Interest Payment Dates for
such Notes shall be April 1 and October 1 in each year, respectively
(whether or not a Business Day);
(7) the Corporate Trust Office of The Bank of New York, in
New York, New York shall be the place at which (i) the principal of,
premium, if any, and interest, if any, on the 7 3/8% Notes shall be
payable, (ii) registration of transfer of such Notes may be effected,
(iii) exchanges of such Notes may be effected and (iv) notices and
demands to or upon the Issuer in respect of such Notes and the
Indenture may be served; and The Bank of New York shall be the Security
Registrar for the 7 3/8% Notes;
(8) the 7 3/8% Notes shall not be redeemable by the
Issuer prior to Maturity;
(9) not applicable;
(10) not applicable;
(11) not applicable;
(12) not applicable;
(13) not applicable;
(14) not applicable;
(15) see Section 2 of this Third Supplemental Indenture;
(16) not applicable;
(17) the 7 3/8%% Notes are to be issued as Registered
Securities; each 7 3/8% Note is to be initially registered in the name
of Cede & Co., as nominee for The Depository Trust Company (the
"Depositary"). The 7 3/8% Notes shall not be transferable or
exchangeable, nor shall any purported transfer be registered, except as
follows:
(i) a 7 3/8% Note may be transferred in whole, and
appropriate registration of transfer effected, if
such transfer is by such nominee to the Depositary,
or by the Depositary to another nominee thereof, or
by any nominee of the Depositary to any other nominee
thereof, or by the Depositary or any nominee thereof
to any successor securities depositary or any nominee
thereof; and
(ii) a 7 3/8% Note may be exchanged for certificated notes
registered in the respective names of the beneficial
holders thereof, and thereafter shall be transferable
without restriction, if:
(A) The Depositary, or any successor
securities depositary, shall have notified the Issuer
and the Trustee that it is unwilling or unable to
continue to act as securities depositary with respect
to such 7 3/8% Note or the Issuer becomes aware that
the Depositary has ceased to be a clearing agency
registered under the Securities Exchange Act of 1934,
as amended, and, in any such case, the Trustee shall
not have been notified by the Issuer within ninety
(90) days of the identity of a successor securities
depositary with respect to such 7 3/8% Note;
<PAGE>
(B) The Issuer shall have delivered to the
Trustee an Issuer's Order to the effect that such 7
3/8% Note shall be so exchangeable on and after a
date specified therein; or
(C) (1) an Event of Default shall have
occurred and be continuing, (2) the Trustee shall
have given notice of such Event of Default pursuant
to Section 5.02 of the Indenture and (3) there shall
have been delivered to the Issuer and the Trustee an
Opinion of Counsel to the effect that the interests
of the beneficial owners of such Security in respect
thereof will be materially impaired unless such
owners become Holders of certificated notes.
(18) not applicable;
(19) not applicable;
(20) the 7 3/8% Notes will be issued in book entry form;
(21) the 7 3/8% Notes are subject to the defeasance and
covenant defeasance provisions of the Indenture;
(22) not applicable;
(23) not applicable; and
(24) not applicable.
Section 2. ADDITIONAL PROVISIONS
(a) ADDITIONAL DEFINITIONS Each of the following definitions,
which constitute part of this Third Supplemental Indenture, shall be inserted in
proper alphabetical order in Article I of the Indenture. Any definition set
forth in the Indenture which is also set forth below shall have the meaning set
forth below for purposes of terms of the Indenture and this Third Supplemental
Indenture. Capitalized terms used in this Third Supplemental Indenture but not
defined herein shall have the meaning ascribed to such terms in the Indenture.
"Attributable Liens" means in connection with a sale and
lease-back transaction, the lesser of (a) the fair market value of the assets
subject to such transaction and (b) the present value (discounted at a rate per
annum equal to the average interest borne by all outstanding securities issued
under the Indenture (which may include securities in addition to the 7 3/8%
Notes) determined on a weighted average basis and compounded semiannually) of
the obligations of the lessee for rental payments during the term of the related
lease.
"Capital Lease" means any Indebtedness represented by a lease
obligation of a person incurred with respect to real property or equipment
acquired or leased by such person and used in its business that is required to
be recorded as a capital lease in accordance with GAAP.
"Closing Date" means April 13, 1998.
"Exempted Debt" means the sum of the following as of the date
of determination: (i) Indebtedness of the Issuer and Guarantor incurred after
the Closing Date and secured by Liens not otherwise permitted by the first
sentence under Limitation on Liens below (Section 10.11), and (ii) Attributable
Liens of the Issuer and Guarantor and their Subsidiaries in respect of sale and
lease-back transactions entered into after the Closing Date, other than sale and
lease-back transactions permitted by the limitation on sale and lease-back
transactions set forth under Section 10.12. For purposes of determining whether
or not a sale and lease-back transaction is "permitted" by Section 10.12,
Limitation on Sale and Lease-Back Transactions, the last paragraph under Section
10.11, Limitation on Liens (creating an exception for Exempted Debt), will be
disregarded.
"Lien" means any lien, security interest, charge or
encumbrance of any kind (including any conditional sale or other title retention
agreement, any lease in the nature thereof, and any agreement to give any
security interest).
<PAGE>
"Permitted Liens" means (i) Liens securing Indebtedness under
the Facility and any initial or subsequent renewal, extension, refinancing,
replacement or refunding thereof; (ii) Liens on accounts receivable, merchandise
inventory, equipment, and patents, trademarks, trade names and other
intangibles, securing Indebtedness; (iii) Liens on any asset of the Issuer and
Guarantor, any Subsidiary, or any joint venture to which the Issuer or the
Guarantor or any of their Subsidiaries is a party, created solely to secure
obligations incurred to finance the refurbishment, improvement or construction
of such asset, which obligations are incurred no later than 24 months after
completion of such refurbishment, improvement or construction, and all renewals,
extensions, refinancings, replacements or refundings of such obligations;
(iv)(a) Liens given to secure the payment of the purchase price incurred in
connection with the acquisition (including acquisition through merger or
consolidation) of property (including shares of stock), including Capital Lease
transactions in connection with any such acquisition, and (b) Liens existing on
property at the time of acquisition thereof or at the time of acquisition by the
Issuer or Guarantor or a Subsidiary or any person then owning such property
whether or not such existing Liens were given to secure the payment of the
purchase price of the property to which they attach; provided that, with respect
to clause (a), the Liens shall be given within 24 months after such acquisition
and shall attach solely to the property acquired or purchased and any
improvements then or thereafter placed thereon; (v) Liens in favor of customs
and revenue authorities arising as a matter of law to secure payment of customs
duties in connection with the importation of goods; (vi) Liens upon specific
items of inventory or other goods and proceeds of any person securing such
person's obligations in respect of bankers' acceptances issued or created for
the account of such person to facilitate the purchase, shipment or storage of
such inventory or other goods; (vii) Liens securing reimbursement obligations
with respect to letters of credit that encumber documents and other property
relating to such letters of credit and the products and proceeds thereof; (viii)
Liens on key-man life insurance policies granted to secure Indebtedness of the
Issuer or Guarantor against the cash surrender value thereof; (ix) Liens
encumbering customary initial deposits and margin deposits and other Liens in
the ordinary course of business, in each case securing Indebtedness of the
Company under interest swap obligations and currency agreements and forward
contract, option, futures contracts, futures options or similar agreements or
arrangements designed to protect the Issuer or the Guarantor or any of their
Subsidiaries from fluctuations in interest rates, currencies or the price of
commodities; (x) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for the sale of goods entered into by the
Issuer or Guarantor or any of their Subsidiaries in the ordinary course of
business and (xi) Liens in favor of the Issuer or Guarantor or any Subsidiary.
(b) ADDITIONAL SECTIONS Each of the following provisions,
which constitutes part of this Third Supplemental Indenture, is numbered to
conform with the format of the Indenture:
Section 10.11 Limitation on Liens
The Issuer and the Guarantor will not, and will not permit any
of their Subsidiaries to, create, incur, or permit to exist, any Lien on any of
their respective properties or assets, whether now owned or hereafter acquired,
or upon any income or profits therefrom, in order to secure any Indebtedness of
either of the Issuer or the Guarantor, without effectively providing that the 7
3/8% Notes shall be equally and ratably secured until such time as such
Indebtedness is no longer secured by such Lien, except: (i) Liens existing as of
the Closing Date; (ii) Liens granted after the Closing Date on any assets or
properties of the Issuer or the Guarantor or any of their Subsidiaries securing
Indebtedness of the Issuer or the Guarantor created in favor of the Holders of
the 7 3/8% Notes; (iii) Liens securing Indebtedness of the Issuer or the
Guarantor which is incurred to extend, renew or refinance Indebtedness which is
secured by Liens permitted to be incurred under the Indenture; provided that
such Liens do not extend to or cover any property or assets of the Issuer or the
Guarantor or any of their Subsidiaries other than the property or assets
securing the Indebtedness being refinanced and that the principal amount of such
Indebtedness does not exceed the principal amount of the Indebtedness being
refinanced; (iv) Permitted Liens; and (v) Liens created in substitution of or as
replacements for any Liens permitted by the preceding clauses (i) through (iv),
provided that, based on a good faith determination of an officer each of the
Issuer and the Guarantor, the property or asset encumbered under any such
substitute or replacement Lien is substantially similar in nature to the
property or asset encumbered by the otherwise permitted Lien which is being
replaced.
Notwithstanding the foregoing, the Issuer and the Guarantor
and any Subsidiary may, without securing the 7 3/8% Notes, create, incur or
permit to exist Liens which would otherwise be subject to the restrictions set
forth in the preceding paragraph, if after giving effect thereto and at the time
of determination, Exempted Debt does not exceed the greater of (i) 10% of
Consolidated Net Assets or (ii) $250,000,000.
<PAGE>
Section 10.12 Limitation on Sale and Lease-Back Transactions
The Issuer and Guarantor will not, and will not permit any of
their Subsidiaries to, enter into any sale and lease-back transaction for the
sale and leasing back of any property or asset, whether now owned or hereafter
acquired, of the Issuer or Guarantor or any of their Subsidiaries (except such
transactions (i) entered into prior to the Closing Date or (ii) for the sale and
leasing back of any property or asset by a Subsidiary of the Issuer or Guarantor
to the Issuer or Guarantor or (iii) involving leases for less than three years
or (iv) in which the lease for the property or asset is entered into within 120
days after the later of the date of acquisition, completion of construction or
commencement or full operations of such property or asset) unless (a) the Issuer
or Guarantor or such Subsidiary would be entitled under the Limitation on Liens
covenant above to create, incur or permit to exist a Lien on the assets to be
leased in an amount at least equal to the Attributable Liens in respect of such
transaction without equally and ratably securing the 7 3/8% Notes, or (b) the
proceeds of the sale of the assets to be leased are at least equal to their fair
market value and the proceeds are applied to the purchase or acquisition (or in
the case of real property, the construction) of assets or to the repayment of
Indebtedness of the Issuer or Guarantor or a Subsidiary of the Issuer or
Guarantor which by its terms matures not earlier than one year after the date of
such repayment.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed as of the day and year first above
written.
AMERICAN STANDARD INC.
By: /s/ Thomas S. Battaglia
Name: Thomas S. Battaglia
Title: Vice President and Treasurer
AMERICAN STANDARD COMPANIES INC., as Guarantor
By: /s/ Thomas S. Battaglia
Name: Thomas S. Battaglia
Title: Vice President and Treasurer
THE BANK OF NEW YORK, as Trustee
By: /s/ Van K. Brown
Name: Van K. Brown
Title: Assistant Vice President
<PAGE>
FORM OF SENIOR SECURITY
[Face of Security]
If the Holder of this Security (as indicated below) is The Depository Trust
Company ("DTC") or a nominee of DTC, this Security is a Global Security and the
following two legends apply:
Unless this Security is presented by an authorized representative of The
Depository Trust Company ("DTC"), 55 Water Street, New York, New York to the
issuer or its agent for registration of transfer, exchange or payment, and such
Security issued is registered in the name of CEDE & CO., or such other name as
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, since the
registered owner hereof, CEDE & CO., has an interest herein.
Unless and until this Security is exchanged in whole or in part for Securities
in certificated form, this Security may not be transferred except as a whole by
DTC to a nominee thereof or by a nominee thereof to DTC or another nominee of
DTC or by DTC or any such nominee to a successor of DTC or a nominee of such
successor.
<PAGE>
AMERICAN STANDARD INC.
7 3/8% Senior Notes Due 2005
No. _______ $_________
CUSIP No. ______
AMERICAN STANDARD INC., a Delaware corporation (herein referred to as the
"Issuer," which term includes any successor Person under the Indenture referred
to on the reverse hereof), for value received, hereby promises to pay to
______________________________ or registered assigns the principal sum of
_______ Dollars on February 1, 2005 (the "Stated Maturity Date") and to pay
interest thereon from January 15, 1998 or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semi-annually on
February 1 and August 1 in each year (each, an "Interest Payment Date"),
commencing August 1, 1998, at the rate of 7 3/8% per annum, until the principal
hereof is paid or duly provided for. 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 Holder in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be January 15 or July 15
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date at the office or agency of the Issuer maintained for such
purpose; provided, however, that such interest may be paid, at the Issuer's
option, by mailing a check to such Holder at its registered address or by
transfer of funds to an account maintained by such Holder within the United
States. Any such interest not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular Record Date, and may
be paid to the Holder in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series 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 Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in the Indenture.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
The principal of this Security payable on the Stated Maturity Date or the
principal of, premium, and interest on this Security will be paid against
presentation of this Security at the office or agency of the Issuer maintained
for that purpose in New York, in such coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
Interest payable on this Security on any Interest Payment Date and on the Stated
Maturity Date will include interest accrued from and including the next
preceding Interest Payment Date in respect of which interest has been paid or
duly provided for (or from and including January 15, 1998, if no interest has
been paid on this Security) to but excluding such Interest Payment Date or the
Stated Maturity Date, as the case may be. If any Interest Payment Date or the
Stated Maturity Date falls on a day that is not a Business Day, as defined
below, principal, premium, and/or interest payable with respect to such Interest
Payment Date or Stated Maturity Date, as the case may be, will be paid on the
next succeeding Business Day with the same force and effect as if it were paid
on the date such payment was due, and no interest shall accrue on the amount so
payable for the period from and after such Interest Payment Date or Stated
Maturity Date, as the case may be. "Business Day" means any day, other than a
Saturday or Sunday, on which banks in New York are not required or authorized by
law or executive order to close.
All payments of principal, premium, and interest in respect of this Security
will be made by the Issuer in immediately available funds.
Reference is hereby made to the further provisions of this Security set forth on
the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the Certificate of Authentication hereon has been executed by the Trustee
by manual signature of one of its authorized signatories, this Security shall
not be entitled to any benefit under the Indenture, or be valid or obligatory
for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed
under its facsimile corporate seal.
Dated: ______________ AMERICAN STANDARD INC.
By:
Title:
Attest:
Assistant Secretary
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
Dated:
THE BANK OF NEW YORK
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
by
Authorized Signatory
<PAGE>
[Reverse of Security]
AMERICAN STANDARD INC.
This Security is one of a duly authorized issue of securities of the Issuer
(herein called the "Securities"), issued and to be issued in one or more series
under an Indenture, dated as of January 15, 1998 (herein called the "Indenture")
among the Issuer, the Guarantor and The Bank of New York, as Trustee (herein
called the "Trustee," which term includes any successor trustee under the
Indenture with respect to the series of which this Security is a part), 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 Issuer, the Trustee and the Holders of the Securities, and of
the terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the duly authorized series of Securities
designated on the face hereof (collectively, the "Securities"), and the
aggregate principal amount of the Securities to be issued under such series is
limited to $250,000,000 (except for Securities authenticated and delivered upon
transfer of, or in exchange for, or in lieu of other Securities). All terms used
in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
If an Event of Default, as defined in the Indenture, shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the Guarantor and the rights of the Holders of the Securities under
the Indenture at any time by the Issuer, the Guarantor and the Trustee with the
consent of the Holders of not less than a majority of the aggregate principal
amount of all Securities issued under the Indenture at the time Outstanding and
affected thereby. The Indenture also contains provisions permitting the Holders
of not less than a majority of the aggregate principal amount of the Outstanding
Securities, on behalf of the Holders of all such Securities, to waive compliance
by the Issuer and the Guarantor with certain provisions of the Indenture.
Furthermore, provisions in the Indenture permit the Holders of not less than a
majority of the aggregate principal amount, in certain instances, of the
Outstanding Securities of any series to waive, on behalf of all of the Holders
of Securities of such series, certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and other Securities issued upon the registration of transfer
hereof or in exchange hereafter or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security or of the
Indenture shall alter or impair the obligation of the Issuer, which is absolute
and unconditional, to pay the principal of (and premium) and interest on this
Security at the times, places and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein and
herein set forth, the transfer of this Security is registrable in the Security
Register of the Issuer upon surrender of this Security for registration of
transfer at the office or agency of the Issuer in any place where the principal
of (and premium) and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Issuer and the Security Registrar duly executed by, the Holder hereof or by his
attorney duly authorized in writing, and thereupon one or more new Securities,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations therein and
herein set forth, this Security is exchangeable for a like aggregate principal
amount of Securities of different authorized denominations but otherwise having
the same terms and conditions, as requested by the Holder hereof surrendering
the same.
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof.
No service charge shall be made for any such registration of transfer or
exchange, but the Issuer and the Guarantor may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
Prior to due presentment of this Security for registration of transfer, the
Issuer, the Guarantor, the Trustee and any agent of the Issuer or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Issuer, the Trustee nor any such agent shall be affected by notice to the
contrary.
No recourse shall be had for the payment of the principal of or premium, or the
interest on this Security, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture or any indenture
supplemental thereto, against any past, present or future stockholder, employee,
officer, director, incorporator, limited or general partner, as such, of the or
of any successor, either directly or through the Issuer or any successor,
whether by virtue of any constitution, statute or rule of law or by the
enforcement of any assessment or penalty or otherwise, all such liability being,
by the acceptance hereof and as part of the consideration for the issue hereof,
expressly waived and released.
The Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed entirely in such State without regard to conflicts of law
principles thereof.
<PAGE>
ASSIGNMENT FORM
To assign this Securities, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer
this Security on the books of the Company. The agent may substitute
another to act for him.
Date: ____________________ Your Signature: ____________________
Signature Guarantee: __________________________________
(Signature must be guaranteed)
Sign exactly as your name appears on the other side of this Security.
FORM OF NOTATION ON SECURITY
RELATING TO AMERICAN STANDARD COMPANIES INC.
The Guarantor has unconditionally guaranteed, to the extent
set forth in the Indenture and subject to the provisions in the Indenture, the
due and punctual payment and performance of the obligations of the Issuer in
connection with the Indenture and each Series of Securities issued thereunder.
In case of the failure of the Issuer punctually to perform or make any such
payment, the Guarantor hereby agrees to cause such payment and performance to be
made punctually.
The obligations of the Guarantor to the Holders and to the
Trustee pursuant to the Guarantee and the Indenture are expressly set forth in
Article Twelve of the Indenture and reference is hereby made to the Indenture
for the precise terms of the Guarantee. Capitalized terms used and not defined
herein have the meanings ascribed thereto in the Indenture.
AMERICAN STANDARD COMPANIES INC.
By:
Name:
Title:
Attest:
By:
Name:
[Assistant] Secretary
(Seal)
THIRD AMENDMENT (this "Amendment") dated as of August 7, 1998 to
the Amended and Restated Credit Agreement dated as of January 31, 1997
(as amended, the "Credit Agreement"; capitalized terms used and not
otherwise defined herein shall have the meanings assigned to them in
the Credit Agreement), among American Standard Companies Inc.
("Holding"); American Standard Inc. ("ASI"); the Subsidiaries of ASI
listed in Schedule I thereto (the "Subsidiary Borrowers" and, together
with ASI, the "Borrowers"); the financial institutions party thereto
(the "Lenders"); The Chase Manhattan Bank, as administrative agent for
the Lenders (in such capacity, the "Administrative Agent"); Citibank,
N.A., as Documentation Agent (the "Documentation Agent"); and The Bank
of Nova Scotia and Nationsbank, N.A., as Co-Syndication Agents (the
"Co-Syndication Agents" and, together with the Documentation Agent and
the Administrative Agent, the "Agents").
ASI, Holding and the Subsidiary Borrowers have requested that the Credit
Agreement be amended in order to (a) modify the calculations of permitted
charges in connection with programs to establish low cost sourcing by shifting
production to low cost countries, (b) permit Holding to finance the repurchase
of an additional $300,000,000 of shares of its common stock, (c) identify
additional countries for which the sale or discount of receivables by
Subsidiaries is not subject to basket limitations, (d) in the event ASI effects
covenant defeasance of its 10-7/8% Senior Notes, exclude from the definitions of
Consolidated Total Debt and Consolidated Interest Expense, respectively, the (i)
principal amount of the 10-7/8% Senior Notes and (ii) interest on the 10-7/8%
Senior Notes less the accreted earnings attributable to the instruments used to
effect the covenant defeasance of the 10-7/8% Senior Notes, (e) permit Holding
to form or recapitalize special purpose subsidiaries to acquire shares of
corporations owning sales offices in share exchange transactions and (f) permit
ASI to sell certain assets related to distribution of its European plumbing
products for consideration in an aggregate amount not in excess of $50,000,000
without the further consent of the Required Lenders. The Lenders and the Agents
have agreed to such amendments upon the terms and subject to the conditions set
forth herein. Accordingly, the parties hereto agree as follows:
ARTICLE I. AMENDMENT
SECTION 1.01. Amendment of Section 1.01. Section 1.01 of the Credit
Agreement is hereby amended by amending the definitions of "Consolidated
Interest Expense", "Consolidated Total Debt" and "Special Charges" as described
below:
(a) the definition of "Consolidated Interest Expense" is hereby amended by
inserting the following sentence at the end of such definition:
"Notwithstanding the foregoing, in the event ASI shall effect the
"covenant defeasance option" provided for in Section 8.01(b) of the Senior
Indenture relating to the 10-7/8% Senior Notes, for so long as the 10-7/8%
Senior Notes remain outstanding, there shall be excluded from Consolidated
Interest Expense the amount of interest expense attributable to the 10-7/8%
Senior Notes less the amount of income attributable to the "U.S. Government
Obligations" (as such term is defined in the Senior Indenture relating to
the 10-7/8% Senior Notes) that are deposited by ASI with the trustee under
such Senior Indenture to effect the "covenant defeasance option" provided
for in Section 8.01(b) of such Senior Indenture."
(b) the definition of "Consolidated Total Debt" is hereby amended by
inserting the following sentence at the end of such definition:
"Notwithstanding the foregoing, in the event ASI shall effect the
"covenant defeasance option" provided for in Section 8.01(b) of the Senior
Indenture relating to the 10-7/8% Senior Notes, for so long as the 10-7/8%
Senior Notes remain outstanding, there shall be excluded from Consolidated
Total Debt the outstanding principal amount of the 10-7/8% Senior Notes."
<PAGE>
(c) the definition of "Special Charges" is hereby amended to read in its
entirety as follows:
"Special Charges" shall mean any charges incurred in 1997, 1998, 1999 and
2000 in an aggregate amount not to exceed $150,000,000, as reflected in ASI's
financial statements delivered pursuant to paragraphs (a) and (b) of Section
5.01, related to programs to relocate production capabilities to low-cost
sourcing facilities."
SECTION 1.02. Amendment of Section 3.04(a). Section 3.04(a) of the Credit
Agreement is hereby amended by amending clause (C) thereof to read in its
entirety as follows:
"(C) to finance the repurchase by Holding (y) in an aggregate amount not to
exceed $308,000,000 of shares of its common stock and (z) in an additional
aggregate amount not to exceed $300,000,000 of shares of its common stock;
provided that the aggregate amount of repurchases by Holding pursuant to clause
(z) shall not exceed $100,000,000 in each consecutive 12-month period commencing
on July 9, 1998.
SECTION 1.03. Amendment of Section 6.02(a)(ii). Section 6.02(a)(ii) of the
Credit Agreement is hereby amended by amending clause (1) thereof by adding the
following proviso immediately following the word "Lenders" in the sixth line of
Section 6.02(a)(ii):
"provided, that during the period commencing on August 7, 1998 and ending
on June 1, 1999 and subject to the requirement that the written approval of the
Required Lenders shall have been obtained for transfers for consideration in
excess of $50,000,000 in the aggregate during any fiscal year of ASI, ASI or any
Subsidiary may transfer assets of its European plumbing distribution businesses
for consideration in an amount not to exceed $50,000,000 in the aggregate
without obtaining the written approval of the Required Lenders".
SECTION 1.04. Amendment of Section 6.02(a)(iv). Section 6.02(a)(iv) of the
Credit Agreement is hereby amended by amending paragraph (B) thereof by
replacing the reference to "or Spain" appearing in the last line of such
paragraph (B) with ", Spain, Australia, the Peoples Republic of China,
Indonesia, Japan, Malaysia, Phillippines, Singapore, South Korea, Taiwan,
Thailand or Vietnam".
SECTION 1.05. Amendment of Article VI Paragraph B. Paragraph B. of Article
VI of the Credit Agreement is hereby amended by inserting the following sentence
at the end of such paragraph:
"Notwithstanding the foregoing, Holding shall be permitted (a) to form
direct, wholly owned subsidiaries, the sole purpose of which shall be to
acquire from third parties 100% of the shares of capital stock of
corporations owning sales offices engaged in the sale of ASI's Trane air
conditioning products (the "Sales Offices Corporations") or (b) to
recapitalize direct subsidiaries of ASI, the sole purpose of which shall be
to merge with Sales Offices Corporations such that Holding shall own at
least 80% of the capital stock of such subsidiaries; provided, that in no
event (i) shall the total number of subsidiaries formed or recapitalized
pursuant to clauses (a) or (b) exceed three and (ii) shall the aggregate
contributed equity capital of all such subsidiaries exceed $50,000,000."
ARTICLE II. REPRESENTATIONS AND WARRANTIES
Each of Holding, ASI and the other Borrowers hereby represents and warrants
(but, in the case of representations and warranties relating to Credit Parties
and their Subsidiaries, only as to itself and its Subsidiaries, it being
understood that Holding and ASI make all representations and warranties as to
all parties) to each Lender and the Administrative Agent that this Amendment (a)
has been duly authorized, executed and delivered by Holding, ASI and each other
Borrower or Credit Party and constitutes the legal, valid and binding obligation
of each such person enforceable against it in accordance with its terms, except
as enforcement thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting the enforceability
of creditors' rights generally and by general principles of equity, and (b) will
not conflict in any respect material to the rights or interests of the Lenders
with or result in any breach of any of the terms, covenants, conditions or
provisions of, or constitute (with notice or lapse of time or both) a default
under, or result in a required prepayment of, or (other than as permitted by the
Credit Agreement as amended hereby or as contemplated by the Security Documents)
result in the creation or imposition of (or the obligation to create or impose)
any Lien upon any of the properties or assets of any Credit Party or any of its
Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust,
agreement or other instrument to which any Credit Party is a party or by which
it may be subject.
ARTICLE III. EFFECTIVENESS
SECTION 3.01. Effectiveness. This Amendment shall become effective when the
following conditions precedent shall have been satisfied:
<PAGE>
(a) the Administrative Agent shall have received, on behalf of the Lenders,
an Officer's Certificate of ASI, dated the date of this Amendment, confirming
compliance with the conditions precedent set forth in paragraphs (b) and (c) of
Section 4.01 of the Credit Agreement insofar as such conditions precedent relate
to ASI and its subsidiaries;
(b) all legal matters incidental to this Amendment shall be satisfactory to
the Administrative Agent and to Cravath, Swaine & Moore, counsel for the
Administrative Agent; and
(c) the signature lines at the foot of this Amendment shall have been
executed by Lenders sufficient to effect this Amendment under the terms of the
Credit Agreement.
ARTICLE IV. MISCELLANEOUS
SECTION 4.01. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 4.02. Expenses. ASI shall pay all reasonable out-of-pocket expenses
incurred by the Administrative Agent in connection with the preparation,
negotiation, execution, delivery and enforcement of this Amendment, including,
but not limited to, the reasonable fees, charges and disbursements of Cravath,
Swaine & Moore, counsel for the Administrative Agent. The agreement set forth in
this Section 4.02 shall survive the termination of the Credit Agreement.
SECTION 4.03. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall constitute an original but all of which when
taken together shall constitute but one agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their duly authorized officers, all as of the
date first above written.
AMERICAN STANDARD COMPANIES INC.,
by
Name:
Title:
AMERICAN STANDARD INC.,
by
Name:
Title:
AMERICAN STANDARD CREDIT INC.,
by
Name:
Title:
WABCO STANDARD GMBH,
by
Name:
Title:
<PAGE>
AMERICAN STANDARD (UK) CO.,
by
Name:
Title:
STANDARD EUROPE, a European Economic
Interest Grouping,
by
Name:
Title:
WABCO STANDARD TRANE INC.,
by
Name:
Title:
WABCO STANDARD TRANE B.V.,
by
Name:
Title:
THE CHASE MANHATTAN BANK, individually
and as Administrative Agent,
by
Name:
Title:
CITIBANK, N.A., individually and as
Documentation Agent,
by
Name:
Title:
THE BANK OF NOVA SCOTIA, individually
and as Co-Syndication Agent,
by
Name:
Title:
<PAGE>
NATIONSBANK, N.A., individually and as
Co-Syndication Agent,
by
Name:
Title:
BANKERS TRUST COMPANY,
by
Name:
Title:
DEUTSCHE BANK AG, NEW YORK AND/OR CAYMAN ISLANDS BRANCH,
by
Name:
Title:
by
Name:
Title:
THE BANK OF NEW YORK,
by
Name:
Title:
BANQUE PARIBAS,
by
Name:
Title:
by
Name:
Title:
CIBC INC.,
by
Name:
Title:
<PAGE>
COMPAGNIE FINANCIERE DE CIC ET DE L'UNION EUROPEENNE,
by
Name:
Title:
by
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH,
by
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN TRUST COMPANY,
by
Name:
Title:
THE LONG TERM CREDIT BANK OF JAPAN, LIMITED,
by
Name:
Title:
THE SANWA BANK LIMITED, NEW YORK BRANCH,
by
Name:
Title:
THE SUMITOMO BANK, LTD.,
by
Name:
Title:
THE TORONTO-DOMINION BANK,
by
Name:
Title:
<PAGE>
ABN AMRO BANK N.V., NEW YORK BRANCH,
by
Name:
Title:
by
Name:
Title:
ALLIED IRISH BANK plc, CAYMAN ISLANDS BRANCH,
by
Name:
Title:
by
Name:
Title:
ARAB BANKING CORPORATION,
by
Name:
Title:
BANCA COMMERCIALE ITALIANA, NEW YORK BRANCH,
by
Name:
Title:
by
Name:
Title:
BANK OF AMERICA ILLINOIS,
by
Name:
Title:
BANK OF IRELAND,
by
Name:
Title:
<PAGE>
BANK OF MONTREAL,
by
Name:
Title:
BANK OF SCOTLAND,
by
Name:
Title:
THE BANK OF TOKYO-MITSUBISHI, LTD., NEW YORK BRANCH,
by
Name:
Title:
CREDIT AGRICOLE,
by
Name:
Title:
CREDITO ITALIANO, SpA,
by
Name:
Title:
by
Name:
Title:
FLEET NATIONAL BANK,
by
Name:
Title:
LLOYDS BANK, PLC,
by
Name:
Title:
by
Name:
Title:
<PAGE>
MERITA BANK LTD.,
by
Name:
Title:
by
Name:
Title:
THE MITSUBISHI TRUST AND BANKING CORPORATION,
by
Name:
Title:
THE MITSUI TRUST AND BANKING COMPANY, LTD.,
by
Name:
Title:
NATIONAL CITY BANK,
by
Name:
Title:
THE ROYAL BANK OF SCOTLAND plc,
by
Name:
Title:
THE SAKURA BANK, LIMITED,
by
Name:
Title:
SOCIETE GENERALE, NEW YORK BRANCH,
by
Name:
Title:
<PAGE>
STANDARD CHARTERED BANK,
by
Name:
Title:
by
Name:
Title:
THE SUMITOMO TRUST AND BANKING CO., LTD., NEW YORK BRANCH,
by
Name:
Title:
THE TOKAI BANK, LIMITED, NEW YORK BRANCH,
by
Name:
Title:
UNITED STATES NATIONAL BANK OF OREGON,
by
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.,
by
Name:
Title:
BAYERISCHE VEREINSBANK AG,
by
Name:
Title:
DAI-ICHI KANGYO BANK, LIMITED,
by
Name:
Title:
<PAGE>
FIRST UNION NATIONAL BANK,
by
Name:
Title:
FUJI BANK LIMITED,
by
Name:
Title:
TOYO TRUST & BANKING CO., LTD.,
by
Name:
Title:
NATEXIS BANQUE BFCE,
by
Name:
Title:
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000,000
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> SEP-30-1998
<EXCHANGE-RATE> 1
<CASH> 57
<SECURITIES> 0
<RECEIVABLES> 1,067
<ALLOWANCES> 35
<INVENTORY> 504
<CURRENT-ASSETS> 1,708
<PP&E> 1,892
<DEPRECIATION> 682
<TOTAL-ASSETS> 4,143
<CURRENT-LIABILITIES> 2,216
<BONDS> 1,549
0
0
<COMMON> 1
<OTHER-SE> (540)
<TOTAL-LIABILITY-AND-EQUITY> 4,143
<SALES> 5,016
<TOTAL-REVENUES> 5,016
<CGS> 3,737
<TOTAL-COSTS> 3,737
<OTHER-EXPENSES> 7
<LOSS-PROVISION> 9
<INTEREST-EXPENSE> 145
<INCOME-PRETAX> 263
<INCOME-TAX> 113
<INCOME-CONTINUING> 150
<DISCONTINUED> 0
<EXTRAORDINARY> 50
<CHANGES> 0
<NET-INCOME> 100
<EPS-PRIMARY> 1.39
<EPS-DILUTED> 1.35
</TABLE>
