Registration No. 33-61237
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
AMENDMENT NO. 1
to
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
______________
GIDDINGS & LEWIS, INC.
(Exact name of registrant as specified in its charter)
Wisconsin 39-1643189
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
142 Doty Street
Fond du Lac, Wisconsin 54935
(414) 921-9400
(Address, including zip code, and
telephone number, including area code, of
registrant's principal executive offices)
______________________________
Joseph R. Coppola
Chairman and Chief Executive Officer
Giddings & Lewis, Inc.
142 Doty Street
Fond du Lac, Wisconsin 54935
(414) 921-9400
(Name, address, including zip code,
and telephone number, including area
code, of agent for service)
______________________________
with a copy to:
Benjamin F. Garmer, III Gary T. Johnson
Foley & Lardner Jones, Day, Reavis & Pogue
777 East Wisconsin Avenue 77 West Wacker
Milwaukee, Wisconsin 53202 Chicago, Illinois 60601
________________________
Approximate date of commencement of proposed sale to the public:
From time to time after this Registration Statement becomes effective.
________________________
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please check
the following box. [_]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, please check the following
box. [X]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check
the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same
offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) of the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [X]
_________________
CALCULATION OF REGISTRATION FEE
Title of Each Proposed Proposed
Class of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Unit (1) Price (1) Fee (2)
Debt Securities $250,000,000 100% $250,000,000 $86,207
(1) Estimated in accordance with Rule 457(a) under the Securities Act of
1933 solely for purposes of calculating the registration fee.
(2) $51,725 of the registration fee was paid with the filing of the
Registration Statement.
________________________
The Registrant hereby amends this Registration Statement on such
date or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that
this Registration Statement shall thereafter become effective in
accordance with Section 8(a) of the Securities Act of 1933 or until this
Registration Statement shall become effective on such date as the
Commission, acting pursuant to said Section 8(a), may determine.
<PAGE>
SUBJECT TO COMPLETION, DATED AUGUST 8, 1995
PROSPECTUS
$250,000,000
GIDDINGS & LEWIS/R/
Debt Securities
____________________
Giddings & Lewis, Inc. (the "Company") may from time to time offer up
to $250 million aggregate principal amount, or, if applicable, the
equivalent thereof in one or more foreign currencies or currency units, of
its unsecured debt securities consisting of notes, debentures or other
evidences of indebtedness (the "Debt Securities"). The Debt Securities
may be offered as separate series in amounts, at prices and on terms to
be determined at the time or times of sale. An accompanying supplement to
this Prospectus (the "Prospectus Supplement") will set forth the specific
terms and conditions of the Debt Securities offered thereby, including,
where applicable, the specific designation, aggregate principal amount,
denominations, maturity, rate or rates and time or times of payment of
interest, any terms for redemption, any terms for sinking or analogous
fund payment(s), the initial public offering price, the proceeds to the
Company and any other specific terms in connection with the offering and
sale of such Debt Securities.
The Company may sell the Debt Securities to or through underwriters
or dealers, and may also sell Debt Securities directly to other purchasers
or through agents designated from time to time by the Company. See "Plan
of Distribution." The names of such underwriters, dealers or agents, any
applicable commissions or discounts and the net proceeds to the Company
from the sale of the Debt Securities will be set forth in the accompanying
Prospectus Supplement.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD
NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION
STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN
OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE
ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER,
SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR
QUALIFICATION UNDER THE SECURITIES LAWS OF ANY STATE.
The date of this Prospectus is , 1995.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports and other information with the
Securities and Exchange Commission (the "Commission"). Reports, proxy
statements and other information filed by the Company can be inspected and
copied at the public reference facilities maintained by the Commission at
Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the
following Regional Offices of the Commission: Midwest Regional Office,
Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661; and Northeast Regional Office, 7 World Trade Center, Suite 1300,
New York, New York 10048. Copies of such material can be obtained from
the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates.
The Company has filed with the Commission a Registration
Statement on Form S-3 (together with any amendments thereto, the
"Registration Statement") (of which this Prospectus is a part) under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to
the Debt Securities. This Prospectus does not contain all of the
information set forth in such Registration Statement, certain parts of
which have been omitted in accordance with the rules and regulations of
the Commission. Statements contained in this Prospectus as to the
contents of any contract or other document are not necessarily complete,
and in each instance reference is made to the copy of such contract or
other document filed or incorporated by reference as an exhibit to the
Registration Statement, each such statement being qualified in all
respects by such reference and the exhibits and schedules thereto. For
further information regarding the Company and the Debt Securities,
reference is hereby made to the Registration Statement and such exhibits
and schedules, which may be inspected without charge at the office of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, and copies
of which may be obtained from the Commission upon payment of the fees
prescribed by the Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Company with the
Commission pursuant to the Exchange Act are hereby incorporated herein by
reference:
1. The Company's Annual Report on Form 10-K for the year ended
December 31, 1994.
2. The Company's Quarterly Report on Form 10-Q for the quarter
ended April 2, 1995.
3. The Company's Current Reports on Form 8-K dated April 24,
1995 and July 19, 1995.
All documents filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of the offering made by this
Prospectus shall be deemed to be incorporated in this Prospectus by
reference and to be a part hereof from the respective dates of filing of
such documents. Any statement contained in a document incorporated or
deemed to be incorporated by reference in this Prospectus shall be deemed
to be modified or superseded for purposes of this Prospectus to the extent
that a statement contained in this Prospectus or in any other subsequently
filed document which also is or is deemed to be incorporated by reference
in this Prospectus modifies or supersedes such statement. Any statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person, including
any beneficial owner, to whom this Prospectus is delivered, upon written
or oral request of such person, a copy of any or all of the documents that
have been or may be incorporated in this Prospectus by reference (not
including exhibits to such documents unless such exhibits are specifically
incorporated by reference into such documents). Requests should be
directed to Richard C. Kleinfeldt, Vice President-Finance and Secretary,
Giddings & Lewis, Inc., 142 Doty Street, Fond du Lac, Wisconsin 54935
(Telephone: (414) 921-9400).
Unless otherwise indicated, currency amounts in this Prospectus and
any Prospectus Supplement are stated in United States dollars ("$",
"dollars", "U.S. dollars" or "U.S. $").
<PAGE>
THE COMPANY
The Company is a leading global designer and producer of large,
highly-engineered, high-precision, industrial automation systems,
including automated machine tools, smart manufacturing systems, flexible
transfer lines, assembly automation systems, measuring systems, industrial
controls, and related products and services. These products are supplied
primarily to the automotive, construction, aerospace, defense, appliance,
energy and electronics industries. Through its April 1995 acquisition of
Fadal Engineering Company, Inc., the Company expanded its product
offerings to include computer numerically controlled vertical machining
centers used in industrial machine shops. The Company manufactures its
products at fourteen facilities located in the United States, Canada,
England and Germany.
The Giddings & Lewis name has been continuously present in the
Company's domestic markets for over 100 years. The Company's overall
business strategy is to continue to strengthen its position within the
global industrial automation marketplace by providing its customers with a
creative, single source for a broad range of manufacturing products and
services. The key ongoing elements of the Company's business strategy are
to (i) continue to implement a focused customer-oriented marketing
approach, (ii) expand and extend the Company's product lines, and (iii)
expand its international franchise.
The Company is incorporated in the State of Wisconsin and its
principal offices are located at 142 Doty Street, Fond du Lac, Wisconsin
54935. The Company's telephone number is (414) 921-9400.
USE OF PROCEEDS
The Company currently intends to use the net proceeds from the sale
of any Debt Securities for general corporate purposes, which may include
the reduction of indebtedness, possible acquisitions and such other
purposes as will be stated in any Prospectus Supplement. Pending such
use, the net proceeds may be temporarily invested in short-term investment
securities or deposited in interest-bearing accounts. The precise amounts
and timing of the application of proceeds will depend upon the funding
requirements of the Company and the availability of other funds.
RATIOS OF EARNINGS TO FIXED CHARGES
Set forth below are the ratios of earnings to fixed charges
(unaudited) for the Company for the three months ended April 2, 1995 and
for the last five years:
Year Ended December 31,
Three Months Ended
April 2, 1995 1994 1993 1992 1991 1990
18.2 32.6 15.4 5.2 15.9 61.4
For the purpose of computing the ratios of earnings to fixed
charges, earnings have been calculated by adding fixed charges (excluding
capitalized interest) to income before income taxes. Fixed charges
represent interest expense and the estimated interest component of
rentals.
DESCRIPTION OF THE DEBT SECURITIES
The Debt Securities will be issued under an Indenture (the
"Indenture") by and between the Company and Firstar Trust Company, as
Trustee (the "Trustee"). The Indenture provides that Debt Securities may
be issued from time to time in one or more series pursuant to the terms of
one or more Officer's Certificates or supplemental indentures creating
such series. The particular terms of each series, or of Debt Securities
forming a part of a series, which are offered by a Prospectus Supplement
("Offered Debt Securities") will be described in such Prospectus
Supplement.
The following summaries of certain provisions of the Indenture and
the Debt Securities do not purport to be complete and are subject to, and
are qualified in their entirety by reference to, all the provisions of the
Indenture and any Officer's Certificates or any supplemental indentures
relating thereto, including the definitions therein of certain terms.
Wherever particular Sections or defined terms of the Indenture are
referred to herein or in a Prospectus Supplement, such Sections or defined
terms are incorporated by reference herein or therein, as the case may be.
General
The Indenture provides that Debt Securities in separate series may
be issued thereunder from time to time without limitation as to aggregate
principal amount. The Company may specify a maximum aggregate principal
amount for the Debt Securities of any series. (Section 301) The Debt
Securities are to have such terms and provisions which are not
inconsistent with the Indenture, including terms and provisions relating
to maturity, principal and interest, as the Company may determine. The
Debt Securities will be unsecured unsubordinated obligations of the
Company and will rank on a parity with all other unsecured and
unsubordinated indebtedness of the Company.
The applicable Prospectus Supplement will set forth the price or
prices at which the Offered Debt Securities will be issued and will
describe the following terms of such Offered Debt Securities: (i) the
title of such Offered Debt Securities; (ii) any limit on the aggregate
principal amount of such Offered Debt Securities or the series of which
they are a part; (iii) if other than the Trustee, the identity of each
Security Registrar and Paying Agent; (iv) the date or dates, or the method
by which such date or dates are determined or extended, on which the
principal and premium (if any) of any of such Offered Debt Securities will
be payable; (v) the rate or rates (which may be fixed or variable) at
which any of such Offered Debt Securities will bear interest, or the
method, if any, by which such rates will be determined, the date or dates
from which any such interest will accrue, the Interest Payment Dates on
which any such interest will be payable, or the method by which such date
will be determined, and the basis on which interest shall be calculated,
if other than that of a 360-day year of twelve thirty-day months; (vi) if
other than the fifteenth day next preceding an Interest Payment Date, the
Regular Record Date with respect to an Interest Payment Date; (vii) the
place or places, if any, other than or in addition to the Corporate Trust
Office, where the principal of and any premium and interest on any of such
Offered Debt Securities will be payable; (viii) the period or periods
within which, the price or prices at which and the terms and conditions on
which any of such Offered Debt Securities may be redeemed, in whole or in
part, at the option of the Company; (ix) the obligation, if any, of the
Company to redeem, repay or purchase any of such Offered Debt Securities
pursuant to any sinking fund or analogous provision or at the option of
the Holder thereof, and the period or periods within which, the price or
prices at which and the terms and conditions on which any of such Offered
Debt Securities will be redeemed, repaid or purchased, in whole or in
part, pursuant to any such obligation; (x) the denominations in which any
of such Offered Debt Securities will be issuable, if other than
denominations of $1,000 and any integral multiple thereof; (xi) if other
than the currency of the United States of America, the currency,
currencies or currency units in which the principal of or any premium or
interest on any of such Offered Debt Securities will be payable (and the
manner in which the equivalent of the principal amount thereof in the
currency of the United States of America is to be determined for purposes
of determining the principal amount deemed to be Outstanding at any time);
(xii) if the amount of principal of or any premium or interest on any of
such Offered Debt Securities may be determined with reference to an index,
the manner in which such amounts will be determined; (xiii) if the
principal of or any premium or interest on any of such Offered Debt
Securities is to be payable, at the election of the Company or the Holder
thereof, in one or more currencies or currency units other than those in
which such Offered Debt Securities are stated to be payable, the currency,
currencies or currency units in which payment of any such amount as to
which such election is made will be payable, and the periods within which
and the terms and conditions upon which such election is to be made;
(xiv) if other than the principal amount thereof, the portion of the
principal amount of any of such Offered Debt Securities which will be
payable upon declaration of acceleration of the Maturity thereof; (xv) if
applicable, that such Offered Debt Securities, in whole or any specified
part, are defeasible pursuant to the provisions of the Indenture described
under "Defeasance - Defeasance and Discharge" or "Defeasance - Covenant
Defeasance", or under both such captions; (xvi) any addition to or change
in the Events of Default applicable to any of such Offered Debt Securities
and any change in the right of the Trustee or the Holders to declare the
principal of and any premium or interest on any of such Offered Debt
Securities due and payable; (xvii) any addition to or change in the
covenants and definitions in the Indenture or in the provisions of the
Indenture described under "Consolidation, Merger, Conveyance or Transfer"
and under "Covenants"; (xviii) whether any of such Offered Debt Securities
will be issuable in whole or in part in the form of one or more Global
Securities and, if so, the respective Depositaries for such Global
Securities and, if different from those described under the Indenture
caption entitled "Registration, Registration of Transfer and Exchange,"
any circumstances under which any such Global Security may be exchanged
for Offered Debt Securities registered, and any transfer of such Global
Security may be registered, in the names of Persons other than the
Depositary for such Global Security or its nominee; and (xix) any other
terms of such Offered Debt Securities not inconsistent with the provisions
of the Indenture. (Section 301) If specified in any applicable
Prospectus Supplement, the Debt Securities of any series may be issued in
bearer form, and if so issued, the applicable Prospectus Supplement will
describe any additions to or changes in any of the provisions of the
Indenture which are necessary to permit or facilitate such issuance.
(Section 901)
Debt Securities, including Original Issue Discount Securities, may
be sold at a substantial discount below their principal amount. Certain
special United States federal income tax considerations (if any)
applicable to Debt Securities sold at an original issue discount will be
described in the applicable Prospectus Supplement. In addition, certain
special United States federal income tax or other considerations (if any)
applicable to any Debt Securities which are denominated in a currency or
currency unit other than United States dollars will be described in the
applicable Prospectus Supplement.
Except to the extent that the covenants described under the caption
"Restrictive Covenants" may otherwise provide, neither the Indenture nor
the Debt Securities will contain any covenants or other provisions
designed to afford Holders of the Debt Securities protection in the event
of a highly leveraged transaction, change in credit rating or other
similar occurrence involving the Company or any Subsidiary.
Form, Exchange and Transfer
Unless otherwise specified in the applicable Prospectus Supplement,
the Debt Securities of each series will be issuable only in fully
registered form, without coupons, and only in denominations of $1,000 and
integral multiples thereof. (Section 302)
At the option of the Holder, subject to the terms of the Indenture
and the limitations applicable to Global Securities, Debt Securities of
each series will be exchangeable for other Debt Securities of the same
series of any authorized denomination and of a like tenor and aggregate
principal amount. (Section 305)
Subject to the terms of the Indenture and the limitations
applicable to Global Securities, Debt Securities may be presented for
exchange as provided above or for registration of transfer (duly endorsed
or with a written instrument of transfer duly executed) at the office of
the Security Registrar or at one or more offices or agencies designated by
the Company for such purpose. No service charge will be made for any
registration of transfer or exchange of Debt Securities, but the Company
or the Trustee will require payment of a sum sufficient to cover any tax
or other governmental charge payable in connection therewith. Such
transfer or exchange will be effected upon the Security Registrar being
satisfied with the documents of title and identity of the person making
the request. Unless otherwise set forth in the applicable Prospectus
Supplement, the Company has appointed the Trustee as Security Registrar
for each series of Debt Securities for the purpose of registering Debt
Securities and transfers of Debt Securities at its Corporate Trust Office
in Milwaukee, Wisconsin. (Section 305) Any other office or agency (in
addition to the Security Registrar) initially designated by the Company
for the registration and transfer of any Debt Securities will be named in
the applicable Prospectus Supplement. The Company may at any time
designate additional offices and agencies for the registration and
transfer or exchange of any Debt Securities or rescind such designations,
except that the Company will be required to maintain an office or agency
in each Place of Payment for the Debt Securities of each series.
(Section 1002)
If the Debt Securities of any series are to be redeemed in part,
the Company will not be required to (i) issue, register the transfer of or
exchange any Debt Security of that series during a period beginning at the
opening of business 15 days before the selection of such Debt Securities
of that series to be redeemed and ending at the close of business on the
day of the mailing of a notice of redemption; or (ii) register the
transfer of or exchange any Debt Security so selected for redemption, in
whole or in part, except the unredeemed portion of any such Debt Security
being redeemed in part. (Section 305)
Global Securities
Some or all of the Debt Securities of any series may be
represented, in whole or in part, by one or more Global Securities which
will have an aggregate principal amount equal to that the Debt Securities
represented thereby. Each Global Security will be registered in the name
of a Depositary or a nominee thereof identified in the applicable
Prospectus Supplement, and will be deposited with such Depositary or
nominee or a custodian therefor.
Notwithstanding any provision of the Indenture or any Debt Security
described herein, no Global Security may be exchanged for Debt Securities
registered in the name of, and no transfer of a Global Security may be
registered to, any Person other than the Depositary for such Global
Security or any nominee of such Depositary unless (i) the Depositary
notifies the Company that it is unwilling or unable to continue as
Depositary for such Global Security or if the Company determines that the
Depositary is unable to continue as Depositary and the Company thereupon
fails to appoint a successor Depositary; (ii) the Company executes and
delivers to the Trustee a Company Order that such Global Security shall be
so exchangeable and the transfer thereof so registerable; (iii) the
Company provides for such exchange in creating such Global Security (which
will be described in any applicable Prospectus Supplement); (iv) there
shall have occurred and be continuing an Event of Default with respect to
the Debt Securities evidenced by such Global Security; or (v) there shall
exist such circumstances, if any, in addition to or in lieu of those
described above as may be described in the applicable Prospectus
Supplement. All securities issued in exchange for a Global Security or
any portion thereof will be registered in such names as the Depositary may
direct. (Section 305)
As long as the Depositary, or its nominee, is the registered Holder
of a Global Security, the Depositary or such nominee, as the case may be,
will be considered the sole owner and Holder of such Global Security and
the Debt Securities represented thereby for all purposes under the Debt
Securities and the Indenture. Except in the limited circumstances
referred to above, owners of beneficial interests in a Global Security
will not be entitled to have such Global Security or any Debt Securities
represented thereby registered in their names, will not receive or be
entitled to receive physical delivery of certificates representing Debt
Securities in exchange therefor and will not be considered to be the
owners or Holders of such Global Security or any Debt Securities
represented thereby for any purpose under the Debt Securities or the
Indenture. All payments of principal of and any premium and interest on a
Global Security will be made to the Depositary or its nominee, as the case
may be, as the Holder thereof. The laws of some jurisdictions require
that certain purchasers of securities take physical delivery of such
securities in definitive form. These laws may impair the ability to
transfer beneficial interests in a Global Security.
Ownership of beneficial interests in a Global Security will be
limited to institutions that have accounts with the Depositary or its
nominee ("participants") and to persons that may hold beneficial interests
through participants. In connection with the issuance of any Global
Security, the Depositary will credit, on its book-entry registration and
transfer system, the respective principal amounts of Debt Securities
represented by the Global Security to the accounts of its participants.
Ownership of beneficial interests in a Global Security will be shown only
on, and the transfer of those ownership interests will be effected only
through, records maintained by the Depositary (with respect to
participants' interests) or any such participant (with respect to
interests of persons held by such participants on their behalf).
Payments, transfers, exchanges and other matters relating to beneficial
interests in a Global Security may be subject to various policies and
procedures adopted by the Depositary from time to time. None of the
Company, the Trustee, the Security Registrar, the Paying Agent or any
agent of the Company or the Trustee will have any responsibility or
liability for (i) any aspects of the Depositary's or any participant's
records relating to, or for payments made on account of, beneficial
interests in a Global Security, or for maintaining, supervising or
reviewing any records relating to such beneficial interests; (ii) the
payments to the beneficial owners of the Global Security of amounts paid
to the Depositary or its nominee; or (iii) any other matter related to the
actions and practices of the Depositary. (Section 305)
Secondary trading of notes and debentures of corporate issuers is
generally settled in clearing-house or next-day funds. In contrast,
beneficial interests in a Global Security, in some cases, may trade in the
Depositary's same-day funds settlement system, in which secondary market
trading activity in those beneficial interests would be required by the
Depositary to settle in immediately available funds. There is no
assurance as to the effect, if any, that settlement in immediately
available funds would have on trading activity in such beneficial
interests. Also, settlement for purchases of beneficial interests in a
Global Security upon the original issuance thereof may be required to be
made in immediately available funds.
Payment and Paying Agents
Unless otherwise indicated in the applicable Prospectus Supplement,
payment of interest on a Debt Security on any Interest Payment Date will
be made to the Person in whose name such Debt Security (or one or more
Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest. (Section 307)
Principal and any premium and interest due on a Debt Security upon
Maturity or upon redemption or repurchase will be paid by wire transfer
(if appropriate instructions are received) against presentation and
surrender of the Debt Security by the Holder thereof at the office of the
Paying Agent. Interest payments on any Debt Security (other than interest
due at Maturity or on redemption or repurchase) will be made by check
mailed to the address of the Person entitled thereto as such address
appears in the Security Register; provided that a Holder of Debt
Securities of any series which pay interest on the same day and which are
in an aggregate principal amount in excess of $10,000,000 may elect to
receive payments of interest with respect to such series via wire
transfer. (Section 307) The Paying Agent or Agents initially designated
by the Company for the Debt Securities of a particular series will be
named in the applicable Prospectus Supplement. The Company may at any
time designate additional Paying Agents or one or more other offices or
agencies where the Debt Securities may be presented or surrendered for
payment and from time to time rescind such designations, except that the
Company will be required to maintain an office or agency in each Place of
Payment for the Debt Securities of a particular series. (Section 1002)
All moneys paid by the Company to a Paying Agent or the Trustee for
the payment of the principal of or any premium or interest on any Debt
Security which remain unclaimed at the end of one year after such
principal, premium or interest has become due and payable will be repaid
to the Company, and the Holder of such Security thereafter may, as an
unsecured creditor, look only to the Company for payment thereof, and all
liability of the Paying Agent and the Trustee with respect thereto, and
all liability of the Company as a trustee thereof, shall thereupon cease.
(Section 1003)
Restrictive Covenants
Limitations on Liens.
The Indenture provides that the Company may not, nor may it permit
any Restricted Subsidiary to, issue, assume or guarantee any indebtedness
for borrowed money (herein referred to as "Debt") if such Debt is secured
by a mortgage or lien (herein referred to as a "Mortgage") upon any
Principal Property of the Company or any Restricted Subsidiary or on any
shares of stock or Debt of any Restricted Subsidiary without in any such
case effectively providing that the Debt Securities of any series
Outstanding (together with, if the Company so determines, any other Debt
of the Company or such Restricted Subsidiary then existing or thereafter
created that is not subordinated to the Debt Securities) must be secured
equally and ratably with or prior to such secured Debt, unless the
aggregate amount of all such Debt plus all Attributable Debt (other than
Attributable Debt the proceeds of which are applied to reduce certain
indebtedness) would not exceed 10% of Consolidated Net Tangible Assets.
The foregoing restriction will not, however, apply to (i) Mortgages
existing on the date of the Indenture; (ii) Mortgages on property, shares
of stock or Debt of any corporation or other entity existing at the time
such corporation or other entity becomes a Restricted Subsidiary or an
obligor under the Indenture; (iii) Mortgages in favor of the Company or
any Restricted Subsidiary by a Restricted Subsidiary; (iv) Mortgages in
favor of the United States of America or any state thereof, or any agency
or instrumentality thereof, to secure progress, advance or other payments
pursuant to any contract with any such entity or provision of any statute;
(v) Mortgages on property, shares of stock or Debt existing at the time of
acquisition thereof, Mortgages on property which secure the payment of the
purchase price of such property, or Mortgages on property which secure
Debt incurred for the purpose of financing the purchase price of such
property or the construction or development of such property, which Debt
is incurred within 360 days after such acquisition or completion of such
construction or development; (vi) Mortgages to secure the performance of
statutory obligations, surety or appeal bonds, performance bonds or other
obligations of a like nature incurred in the ordinary course of business;
(vii) any extension, renewal or refinancing (or successive extensions,
renewals or refinancings), in whole or in part, of any Mortgage referred
to in the foregoing clauses (i) to (vi), inclusive, provided, however,
that such extension, renewal or refinancing Mortgage is limited to all or
a part of the same property (plus improvements thereon), shares of stock
or Debt that secured the Mortgage extended, renewed or refinanced and the
amount of Debt secured by such Mortgage is not increased; or (viii)
Mortgages for taxes, assessments or governmental charges or claims that
are not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently concluded,
provided, that any reserve or other appropriate provision as shall be
required in conformity with generally accepted accounting principles shall
have been made therefor. (Section 1005)
Limitations on Sale and Leaseback Transactions.
The Company will not, and will not permit any Restricted Subsidiary
to, enter into any arrangement with any bank, insurance company or other
lender or investor (not including the Company or any Restricted
Subsidiary), or to which any such lender or investor is a party, providing
for the leasing by the Company or a Restricted Subsidiary for a period,
including renewals, in excess of three years of any Principal Property
that has been sold or transferred, more than 360 days after the completion
of construction and commencement of full operation thereof, by the Company
or a Restricted Subsidiary to such lender or investor or to any Person to
whom funds have been or are to be advanced by such lender or investor on
the security of such Principal Property (a "Sale and Leaseback
Transaction") unless either (i) the Company or such Restricted Subsidiary
would be entitled to issue, assume or guarantee Debt secured by a Mortgage
on the Principal Property to be leased back at least equal in amount to
the Attributable Debt in respect of such transaction without equally and
ratably securing the Debt Securities of any series Outstanding which are
entitled to the benefits of such provision of the Indenture, provided that
such Attributable Debt shall thereupon be deemed to be Debt subject to the
provisions of the "Limitations on Liens" covenant; or (ii) an amount equal
to the net proceeds of the sale of the Principal Property sold and leased
back pursuant to such arrangement is applied to the retirement of Debt
Securities or Debt of the Company or a Restricted Subsidiary having a
remaining maturity of one year or more and which is not subordinated to
the Debt Securities of any series Outstanding. (Section 1006)
"Attributable Debt" means as to any particular Sale and Leaseback
Transaction, at any date as of which the amount thereof is to be
determined, the total amount determined by multiplying (i) the greater of
(a) the fair value of the Principal Property subject to such arrangement
or (b) the net proceeds of the sale of such Principal Property to the
lender or investor; by (ii) a fraction, the numerator of which is the
number of months in the unexpired initial term of the lease of such
Principal Property and the denominator of which is the number of months in
the full initial term of such lease; provided, however, that Sale and
Leaseback Transactions with respect to Principal Property financed by
obligations issued by a state or local government unit will not be
included in any calculation of Attributable Debt.
"Consolidated Net Tangible Assets" means the aggregate amount of
assets less (a) all current liabilities (excluding any current liabilities
for money borrowed having a maturity of less than 12 months but by its
terms being renewable or extendible beyond 12 months from such date at the
option of the borrower) and (b) all goodwill, trade names, trademarks,
patents, unamortized debt discount and expense and other like intangibles,
all as set forth on the most recent consolidated balance sheet of the
Company prepared in accordance with generally accepted accounting
principles.
"Principal Property" means any land, building, machinery or
equipment, or leasehold interests and improvements in respect of the
foregoing owned by the Company or a Restricted Subsidiary, which would be
reflected on a consolidated balance sheet of the Company and its
Subsidiaries prepared in accordance with generally accepted accounting
principles and which on the date as of which the determination is being
made exceeds one percent of the Consolidated Net Tangible Assets, but
excluding all such tangible property located outside the United States of
America and excluding any property which, in the opinion of the Board of
Directors set forth in a Board Resolution, is not of material importance
to the total business conducted by the Company and its Subsidiaries, taken
as a whole.
"Restricted Subsidiary" means any Subsidiary that in accordance
with generally accepted accounting principles is consolidated with the
Company in the Company's consolidated financial statements and that
generated 5% or more of the revenues, generated 5% or more of the
operating income, or held 5% or more of the assets of the Company and its
consolidated Subsidiaries for or at the end of the most recently completed
fiscal year of the Company for which an Annual Report on Form 10-K or
proxy statement of the Company containing audited financial results has
been filed with the Commission; provided, however, that "Restricted
Subsidiary" shall not include a Subsidiary that is engaged primarily in
financing the operations of the Company or its Subsidiaries, or both,
outside of the United States, and (i) more than 50% of whose net sales and
operating revenues during the preceding four calendar quarters was derived
from, or more than 50% of whose operating property is located in, the
United States or (ii) more than 50% of whose assets consist of securities
of other Restricted Subsidiaries.
"Subsidiary" means any corporation or other entity of which more
than 80% of the outstanding voting stock shall at the time be owned by the
Company or by the Company and one or more Subsidiaries or by one or more
Subsidiaries. (Section 101)
Consolidation, Merger and Sale of Assets
The Company may not consolidate with, or sell or convey all or
substantially all of its assets to, or merge with or into any other person
or entity unless (i) either the Company is the continuing corporation, or
the successor is a corporation organized and existing under the laws of
the United States or a state thereof and the successor corporation
expressly assumes by an indenture supplement the Company's obligations on
the Debt Securities and under the Indenture; (ii) the Company or the
successor corporation, as the case may be, is not immediately after the
merger or consolidation, or the sale or conveyance, in default in the
performance of any covenant or condition under the Indenture; and
(iii) after giving effect to the transaction, no Event of Default, and no
event which, after notice or lapse of time or both, would become an Event
of Default, shall have occurred or be continuing. (Section 801)
Events of Default
Each of the following will constitute an Event of Default under the
Indenture with respect to Debt Securities of any series: (i) default in
the payment of any interest upon any Debt Security of that series when it
became due and payable, and continuance of that default for a period of 30
days; (ii) default in the payment of the principal of (or premium, if any,
on) any Debt Security of that series when it became due and payable at its
Maturity; (iii) default in the deposit of any sinking fund payment, when
due by the terms of a Debt Security of that series; (iv) default in the
performance, or breach, of any covenant or warranty of the Company in the
Indenture with respect to any Debt Security of that series (other than a
covenant or warranty a default in the performance of which or the breach
of which is specifically dealt with elsewhere or that has expressly been
included in the Indenture solely for the benefit of a series other than
that series), and continuance of that default or breach for a period of 30
days after written notice has been given by the Trustee, or by the Holders
of at least 25% in principal amount of the Outstanding Securities of that
series, as provided in the Indenture; (v) default, after any applicable
grace period, by the Company under any instrument evidencing indebtedness
of the Company for borrowed money, if the effect of such default is to
cause more than $10,000,000 in principal amount of such indebtedness to
become due prior to its stated maturity and that acceleration shall not be
rescinded or annulled, or that indebtedness shall not have been
discharged, within 10 days after written notice has been given by the
Trustee or the Holders of at least 25% in principal amount of the
Outstanding Securities of that series, as provided in the Indenture; and
(vi) certain events in bankruptcy, insolvency or reorganization.
(Section 501)
If an Event of Default with respect to the Debt Securities of any
series at the time Outstanding shall occur and be continuing, either the
Trustee or the Holders of at least 25% in aggregate principal amount of
the Outstanding Securities of that series by notice as provided in the
Indenture may declare the principal amount of the Debt Securities of that
series (or, in the case of any Debt Security that is an Original Issue
Discount Security, such portion of the principal amount of such Debt
Security, as may be specified in the terms of such Debt Security) to be
due and payable immediately. After any such acceleration, but before a
judgment or decree based on acceleration, the Holders of a majority in
aggregate principal amount of the Outstanding Securities of that series
may, under certain circumstances, rescind and annul such acceleration if
(i) the Company has paid or deposited with the Trustee a sum sufficient to
pay (a) all overdue interest on all Outstanding Securities of that series,
(b) the principal and premium, if any, on any Debt Securities of that
series which have become due otherwise than by such acceleration and any
interest thereon at the rate or rates prescribed therefor in such Debt
Securities, (c) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed therefore
in such Debt Securities, and (d) certain fees of the Trustee; and (ii) all
Events of Default, other than the non-payment of accelerated principal (or
premium, if any) or interest on Debt Securities of that series, have been
cured or waived as provided in the Indenture. (Section 502) For
information as to waiver of defaults, see "Modification and Waiver".
Subject to the provisions of the Indenture relating to the duties
of the Trustee, in case an Event of Default shall occur and be continuing,
the Trustee will be under no obligation to exercise any of its rights or
powers under the Indenture at the request or direction of any of the
Holders, unless such Holders shall have offered to the Trustee reasonable
security or indemnity. (Section 603) Subject to such provisions for the
giving of security or the indemnification of the Trustee, the Holders of a
majority in aggregate principal amount of the Outstanding Securities of
any series will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the
Debt Securities of that series. (Section 512)
No Holder of a Debt Security of any series will have any right to
institute any proceeding with respect to the Indenture, or for the
appointment of a receiver or a trustee, or for any other remedy
thereunder, unless (i) such Holder has previously given to the Trustee
written notice of a continuing Event of Default with respect to the Debt
Securities of that series; (ii) the Holders of at least 25% in aggregate
principal amount of the Outstanding Securities of that series have made
written request, and such Holder or Holders have offered reasonable
indemnity, to the Trustee to institute such proceeding as Trustee; and
(iii) the Trustee has failed to institute such proceeding, and has not
received from the Holders of a majority in aggregate principal amount of
the Outstanding Securities of that series a direction inconsistent with
such request, within 60 days after such notice, request and offer.
(Section 507) However, such limitations do not apply to a suit instituted
by a Holder of a Debt Security for the enforcement of payment of the
principal of or any premium or interest on such Security on or after the
applicable due date specified in such Debt Security. (Section 508)
The Company will be required to furnish to the Trustee annually a
statement by certain of its officers as to whether or not the Company, to
their knowledge, is in default in the performance or observance of any of
the terms, provisions and conditions of the Indenture and, if so,
specifying all such known defaults. (Section 1004)
Modification and Waiver
Without the consent of any Holders of Outstanding Securities, the
Company and the Trustee may enter into one or more supplemental indentures
for any of the following purposes: (i) to evidence the succession of
another Person to the Company and the assumption by any such successor of
the covenants of the Company in the Indenture and in the Debt Securities;
(ii) to add to the covenants of the Company for the benefit of the Holders
of all or any series of Debt Securities (and if such covenants are to be
for the benefit of less than all series of Debt Securities, stating that
such covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power conferred upon the Company by
the Indenture; (iii) to add to or change any of the provisions of the
Indenture to such extent as shall be necessary to permit or facilitate the
issuance of Debt Securities of any series in bearer form, registrable or
not registrable as to principal, and with or without interest coupons, or
to permit or facilitate the issuance of Debt Securities of any series in
uncertificated form; (iv) to add to, change or eliminate any of the
provisions of the Indenture in respect of one or more series of Debt
Securities; provided, however, that any such addition, change or
elimination shall either (a) not adversely affect the rights of the
Holders of Outstanding Securities of any series in any material respect,
or (b) not apply to any Outstanding Securities of any series created prior
to the execution of such supplemental indenture where such addition,
change or elimination has an adverse effect on the rights of the Holders
of such Outstanding Securities in any material respect; (v) to secure the
Debt Securities of any series; (vi) to establish the form or terms of Debt
Securities of any series as permitted by the Indenture; (vii) to evidence
and provide for the acceptance of appointment of a successor Trustee under
the Indenture with respect to the Debt Securities of one or more series
and to add to or change any of the provisions of the Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
under the Indenture by more than one Trustee; (viii) to cure any ambiguity
or defect in and to correct or supplement any provision in the Indenture
or any Debt Security of any series that may be inconsistent with any other
provision in the Indenture or in the Debt Security of such series, or to
make any other provisions with respect to matters or questions arising
under the Indenture; provided, however, that any such action shall not
adversely affect the rights of the Holders of Outstanding Securities of
any series in any material respect; (ix) to modify, eliminate or add to
the provisions of the Indenture to such extent as shall be necessary to
effect qualification of the Indenture under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), or under any similar federal
statute hereafter enacted, and to add to the Indenture such other
provisions as may be expressly permitted by the Trust Indenture Act; or
(x) to amend or supplement the restrictions on the procedures for resale,
attempted resale and other transfers of any series of Debt Securities
(whether or not Outstanding) to reflect any change in applicable law or
regulation (or interpretation thereof) or in practices relating to the
resale or transfer of Restricted Securities generally. (Section 901)
Except as described above, the consent of the Holders of a majority
in aggregate principal amount of the Outstanding Securities of each series
affected by a modification or amendment (voting as one class) is required
for the purpose of adding any provisions to, or changing in any manner or
eliminating any of the provisions of, the Indenture pursuant to a
supplemental indenture; provided, however, that no such modification or
amendment may, without the consent of the Holder of each Outstanding
Security affected thereby, (i) extend the Stated Maturity of the principal
of, or any installment of principal of or interest on, any Security, (ii)
reduce the principal amount of, or any premium or interest on, any Debt
Security, (iii) reduce the amount of principal of an Original Issue
Discount Security payable upon acceleration of the Maturity thereof, (iv)
change the place or currency of payment of principal of, or any premium or
interest on, any Debt Security, (v) impair the right to institute suit
for the enforcement of any payment on or with respect to any Debt
Security, (vi) reduce the percentage in principal amount of Outstanding
Securities of any series, the consent of whose Holders is required for
modification or amendment of the Indenture, (vii) reduce the percentage in
principal amount of Outstanding Securities of any series necessary for
waiver of compliance with certain provisions of the Indenture or for
waiver of certain defaults or (viii) modify such provisions with respect
to modification and waiver. (Section 902)
The Holders of a majority in principal amount of the Outstanding
Securities of any series may waive compliance by the Company with certain
restrictive provisions of the Indenture. (Section 1007) The Holders of a
majority in principal amount of the Outstanding Securities of any series
may waive any past default under the Indenture, except a default in the
payment of principal, premium or interest and certain covenants and
provisions of the Indenture which cannot be amended without the consent of
the Holder of each Outstanding Security of such series affected. (Section
513)
The Indenture provides that in determining whether the Holders of
the requisite principal amount of the Outstanding Securities have given or
taken any direction, notice, consent, waiver or other action under the
Indenture as of any date, (i) the principal amount of an Original Issue
Discount Security that will be deemed to be Outstanding will be the amount
of the principal thereof that would be due and payable as of such date
upon acceleration of the Maturity thereof to such date, and (ii) the
principal amount of a Security denominated in one or more foreign
currencies or currency units that will be deemed to be Outstanding will be
the U.S. dollar equivalent, determined as of such date in the manner
prescribed for such Debt Security, of the principal amount of such Debt
Security (or, in the case of a Debt Security described in clause (i)
above, of the amount described in such clause). Certain Debt Securities,
including those for whose payment or redemption money has been deposited
or set aside in trust for the Holders and those that have been fully
defeased pursuant to Section 1302, will not be deemed to be Outstanding.
(Section 101)
Except in certain limited circumstances, the Company will be
entitled to set any day as a record date for the purpose of determining
the Holders of Outstanding Securities of any series entitled to give or
take any direction, notice, consent, waiver or other action under the
Indenture, in the manner and subject to the limitations provided in the
Indenture. In certain limited circumstances, the Trustee also will be
entitled to set a record date for action by Holders. If a record date is
set for any action to be taken by Holders of a particular series, such
action may be taken only by persons who are Holders of Outstanding
Securities of that series on that record date, whether or not such Holders
remain Holders after such record date. To be effective, such action must
be taken by Holders of the requisite principal amount of such Debt
Securities within a specific period following the record date. For any
particular record date, this period will be 90 days. (Section 104)
Defeasance and Covenant Defeasance
If and to the extent indicated in the applicable Prospectus
Supplement, the Company may elect, at its option at any time, to have the
provisions of Section 1302, relating to defeasance and discharge of
indebtedness, or Section 1303, relating to defeasance of certain
restrictive covenants in the Indenture, applied to the Debt Securities of
any series, or to any specified part of the series. (Section 1301)
Defeasance and Discharge. The Indenture provides that, upon the
Company's exercise of its option (if any) to have Section 1302 applied to
any Debt Securities, the Company will be discharged from all its
obligations with respect to such Debt Securities (except for certain
obligations to exchange or register the transfer of Debt Securities, to
replace stolen, lost or mutilated Debt Securities, to maintain paying
agencies and to hold moneys for payment in trust) upon the deposit in
trust for the benefit of the Holders of such Debt Securities of money or
U.S. Government Obligations, or both, which, through the payment of
principal and interest, if any, in respect thereof in accordance with
their terms, will provide money in an amount sufficient to pay the
principal of and any premium and interest on such Debt Securities on the
respective Stated Maturities in accordance with the terms of the Indenture
and such Debt Securities. Such defeasance or discharge may occur only if,
among other things, the Company has delivered to the Trustee an Opinion of
Counsel to the effect that Holders of such Debt Securities will not
recognize income, gain or loss for federal income tax purposes as a result
of such deposit, defeasance and discharge and will be subject to federal
income tax on the same amount, in the same manner and at the same times as
would have been the case if such deposit, defeasance and discharge were
not to occur. (Sections 1302 and 1304)
Defeasance of Certain Covenants. The Indenture provides that, upon
the Company's exercise of its option (if any) to have Section 1303 applied
to any Debt Securities, the Company may omit to comply with certain
restrictive covenants, including those described under "Restrictive
Covenants" and in clause (v) of "Events of Default" and any that may be
described in the applicable Prospectus Supplement will be deemed not to be
or result in an Event of Default, in each case with respect to such Debt
Securities. The Company, in order to exercise such option, will be
required to deposit, in trust for the benefit of the Holders of such Debt
Securities, money or U.S. Government Obligations, or both, which, through
the payment of principal and interest, if any, in respect thereof in
accordance with their terms, will provide money in an amount sufficient to
pay the principal of and any premium and interest on such Debt Securities
on the respective Stated Maturities or on redemption in accordance with
the terms of the Indenture and such Debt Securities. The Company will
also be required, among other things, to deliver to the Trustee an Opinion
of Counsel to the effect that Holders of such Debt Securities will not
recognize income, gain or loss for federal income tax purposes as a result
of such deposit and defeasance of certain obligations and will be subject
to federal income tax on the same amount, in the same manner and at the
same times as would have been the case if such deposit and defeasance were
not to occur. (Sections 1303 and 1304)
Notices
Except as may be described in any Prospectus Supplement with
respect to the Holders of a particular series of Debt Securities, notices
to Holders of Debt Securities will be given by mail to the addresses of
such Holders as they may appear in the Security Register. (Sections 101
and 106)
Title
The Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name a Debt Security is registered
as the owner thereof (whether or not such Debt Security may be overdue)
for the purpose of making payment and for all other purposes. (Section
308)
Governing Law
The Indenture and the Debt Securities will be governed by, and
construed in accordance with, the law of the State of Wisconsin. (Section
112)
Relationships with the Trustee
The Trustee is the transfer agent for the Company's common stock
and the Company maintains banking relationships with an affiliate of the
Trustee. John A. Becker, a director of the Company, is President, Chief
Operating Officer and a director of the Trustee's parent corporation,
Firstar Corporation, and a director of the Trustee.
FOREIGN CURRENCY RISKS
General
The principal of, or any premium or interest on, Debt Securities of
a series may be denominated in such foreign currencies or currency units
as may be designated by the Company at the time of offering (the "Foreign
Currency Securities").
THE INFORMATION SET FORTH BELOW DOES NOT DESCRIBE ALL RISKS OF AN
INVESTMENT IN FOREIGN CURRENCY SECURITIES THAT RESULT FROM SUCH DEBT
SECURITIES BEING DENOMINATED IN A FOREIGN CURRENCY OR CURRENCY UNIT EITHER
AS SUCH RISKS EXIST AT THE DATE OF THIS PROSPECTUS OR AS SUCH RISKS MAY
CHANGE FROM TIME TO TIME. ANY ADDITIONAL MATERIAL FOREIGN CURRENCY RISKS
PERTAINING TO A PARTICULAR DEBT SECURITY DENOMINATED IN A FOREIGN CURRENCY
WILL BE DISCLOSED IN THE PROSPECTUS SUPPLEMENT REGARDING SUCH DEBT
SECURITY. PROSPECTIVE PURCHASERS SHOULD CONSULT THEIR OWN FINANCIAL AND
LEGAL ADVISORS AS TO THE RISKS ENTAILED BY AN INVESTMENT IN FOREIGN
CURRENCY SECURITIES. FOREIGN CURRENCY SECURITIES ARE NOT AN APPROPRIATE
INVESTMENT FOR INVESTORS WHO ARE UNSOPHISTICATED WITH RESPECT TO FOREIGN
CURRENCY TRANSACTIONS.
Unless otherwise indicated in the applicable Prospectus Supplement,
a Foreign Currency Security will not be sold in, or to a resident of, the
country of the Specified Currency (as defined below) in which such Debt
Security is denominated. The information set forth below is by necessity
incomplete and prospective purchasers of Foreign Currency Securities
should consult their own financial and legal advisors with respect to any
matters that may affect the purchase or holding of a Foreign Currency
Security or the receipt of payments of principal of and any premium and
interest on a Foreign Currency Security in a Specified Currency.
Exchange Rates and Exchange Controls
An investment in Foreign Currency Securities entails significant
risks that are not associated with a similar investment in a security
denominated in U.S. dollars. Such risks include, without limitation, the
possibility of significant changes in the rate of exchange between the
U.S. dollar and the currency or currency unit designated by the Company at
the time of offering for payments of principal or any premium or interest
on the Foreign Currency Securities (the "Specified Currency") and the
possibility of the imposition or modification of foreign exchange controls
by either the United States or foreign governments. Such risks generally
depend on economic and political events and the supply of and demand for
the relevant currencies over which the Company has no control. In recent
years, rates of exchange between the U.S. dollar and certain foreign
currencies have been highly volatile and such volatility may be expected
in the future. Fluctuations in any particular exchange rate that have
occurred in the past are not necessarily indicative, however, of
fluctuations in the rate that may occur during the term of any Foreign
Currency Security. Depreciation of the Specified Currency applicable to a
Foreign Currency Security against the U.S. dollar would result in a
decrease in the U.S. dollar-equivalent yield of such Debt Security, in the
U.S. dollar-equivalent value of the principal repayable at Maturity or any
premium or interest on such Debt Security and, generally, in the U.S.
dollar-equivalent market value of such Debt Security.
Governments have imposed from time to time exchange controls and
may in the future impose or revise exchange controls at or prior to a
Foreign Currency Security's Maturity. Even if there are not exchange
controls, it is possible that the Specified Currency for any particular
Foreign Currency Security would not be available at the time or times of
payment on such Debt Security due to circumstances beyond the control of
the Company.
Judgments
In the event an action based on Foreign Currency Securities were
commenced in a court of the United States, it is likely that such court
would grant judgment relating to such Debt Securities only in U.S.
dollars. It is not clear, however, whether, in granting such judgment,
the rate of conversion into U.S. dollars would be determined with
reference to the date of default, the date judgment is rendered or some
other date. Holders of Foreign Currency Securities would bear the risk of
exchange rate fluctuations between the time the amount of the judgment is
calculated and the time the Trustee converts U.S. dollars into the
Specified Currency for payment of the judgment.
PLAN OF DISTRIBUTION
The Company may sell Debt Securities being offered hereby: (i)
directly to purchasers, (ii) through agents, (iii) through underwriters
and (iv) through dealers.
Offers to purchase Debt Securities may be solicited by agents
designated by the Company from time to time. Any such agent, who may be
deemed to be an underwriter as that term is defined in the Securities Act,
involved in the offer or sale of the Debt Securities in respect of which
this Prospectus is delivered will be named, and any commissions payable by
the Company to such agent will be set forth, in the Prospectus Supplement.
Unless otherwise indicated in the Prospectus Supplement, any such agent
will be acting on a best efforts basis for the period of its appointment.
If underwriters are utilized in the sale, the Company will execute
an underwriting agreement with such underwriters at the time of sale to
such underwriters and the names of the underwriters and the terms of the
transaction will be set forth in the Prospectus Supplement which will be
used by the underwriters to make resales of the Debt Securities in respect
of which this Prospectus is delivered to the public. Any underwriters
will acquire Debt Securities for their own account and may resell such
Debt Securities from time to time in one or more transactions, including
negotiated transactions, at fixed public offering prices or at varying
prices determined at the time of sale. Debt Securities may be offered to
the public either through underwriting syndicates represented by managing
underwriters, or directly by the managing underwriters. Only underwriters
named in the Prospectus Supplement are deemed to be underwriters in
connection with the Debt Securities offered thereby. If any underwriters
are utilized in the sale of the Debt Securities, the underwriting
agreement will provide that the obligations of the underwriters are
subject to certain conditions precedent and that the underwriters with
respect to a sale of Debt Securities will be obligated to purchase all
such Debt Securities, if any are purchased.
If a dealer is utilized in the sale of the Debt Securities in
respect of which this Prospectus is delivered, the Company will sell such
Debt Securities to the dealer, as principal. The dealer may then resell
such Debt Securities to the public at varying prices to be determined by
such dealer at the time of resale.
Agents, underwriters and dealers may be entitled under agreements
entered into with the Company to indemnification by the Company against
certain civil liabilities, including liabilities under the Securities Act,
or to contribution with respect to payments which the agents, underwriters
or dealers may be required to make in respect thereof. Agents,
underwriters and dealers may be customers of, engage in transactions with,
or perform services for the Company in the ordinary course of business.
Offers to purchase Debt Securities may be solicited directly by the
Company and sales thereof may be made by the Company directly to
institutional investors or others. The terms of any such sales will be
described in the Prospectus Supplement relating thereto.
If so indicated in the applicable Prospectus Supplement, the
Company will authorize agents and underwriters to solicit offers by
certain institutions to purchase Debt Securities from the Company at the
public offering price set forth in such Prospectus Supplement pursuant to
Delayed Delivery Contracts ("Contracts") providing for payment and
delivery on the date or dates stated in such Prospectus Supplement. Each
Contract will be for an amount not less than, and unless the Company
otherwise agrees the aggregate principal amount of Debt Securities sold
pursuant to Contracts shall be not less nor more than, the respective
amounts stated in such Prospectus Supplement. Institutions with whom
Contracts, when authorized, may be made include commercial and savings
banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and other institutions, but shall
in all cases be subject to the approval of the Company. Contracts will
not be subject to any conditions except the purchase by an institution of
the Debt Securities covered by its Contracts shall not at the time of
delivery be prohibited under the laws of any jurisdiction in the United
States to which such institution is subject. A commission indicated in
the Prospectus Supplement will be paid to underwriters and agents
soliciting purchases of Debt Securities pursuant to Contracts accepted by
the Company.
The place and time of delivery for the Debt Securities in respect
of which this Prospectus is delivered are set forth in the accompanying
Prospectus Supplement.
All Debt Securities will be a new issue of securities with no
established trading market. Any underwriters to whom Debt Securities are
sold by the Company for public offering and sale may make a market in such
Debt Securities, but such underwriters will not be obligated to do so and
may discontinue any market making at any time without notice. No
assurance can be given as to the liquidity of or the trading markets for
any Debt Securities.
LEGAL MATTERS
The validity of the Debt Securities will be passed upon for the
Company by Foley & Lardner, Milwaukee, Wisconsin. Certain legal matters
will be passed upon for the underwriters, dealers, purchasers or agents by
Jones, Day, Reavis & Pogue, Chicago, Illinois. Benjamin F. Garmer, III, a
partner of Foley & Lardner, is a director of the Company.
EXPERTS
The financial statements and schedule included or incorporated by
reference in the Company's Annual Report on Form 10-K for the year ended
December 31, 1994 and its Current Report on Form 8-K dated April 24, 1995,
incorporated by reference in this Prospectus, have been audited by Ernst &
Young LLP, independent auditors, as set forth in their reports thereon
included therein, and incorporated herein by reference. Such financial
statements and schedule are incorporated herein by reference in reliance
upon such reports given upon the authority of such firm as experts in
accounting and auditing.
<PAGE>
No dealer, salesperson or other person has been authorized to
give any information or to make any representation not contained
or incorporated by reference in this Prospectus and, if given or
made, such information or representation must not be relied upon
as having been authorized by the Company or any Underwriter.
This Prospectus does not constitute an offer to sell or a
solicitation of an offer to buy any of the securities offered
hereby in any jurisdiction to any person to whom it is unlawful
to make such offer in such jurisdiction. Neither the delivery of
this Prospectus nor any sale made hereunder shall, under any
circumstances, create any implication that the information herein
is correct as of any time subsequent to the date hereof or that
there has been no change in the affairs of the Company since such
date.
_______________________
TABLE OF CONTENTS
Prospectus
Page
Available Information . . . . . . . . . . . . . . . . . . 2
Incorporation of Certain
Documents by Reference . . . . . . . . . . . . . . . . 2
The Company . . . . . . . . . . . . . . . . . . . . . . 4
Use of Proceeds . . . . . . . . . . . . . . . . . . . . 4
Ratios of Earnings to Fixed Charges . . . . . . . . . . . 4
Description of the
Debt Securities . . . . . . . . . . . . . . . . . . . . 5
Foreign Currency Risks . . . . . . . . . . . . . . . . . 16
Plan of Distribution . . . . . . . . . . . . . . . . . . 17
Legal Matters . . . . . . . . . . . . . . . . . . . . . . 18
Experts . . . . . . . . . . . . . . . . . . . . . . . . 18
<PAGE>
[LOGO]
$250,000,000
Debt Securities
PROSPECTUS
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The expenses in connection with the issuance and distribution of
the securities covered hereby, other than underwriting and other discounts
and commissions, are, subject to future contingencies, estimated to be as
follows:
Securities and Exchange Commission
registration fee . . . . . . . . . . . . . $ 86,207
Printing and Engraving Expenses . . . . . 65,000
Fees of Rating Agencies . . . . . . . . . . 95,000
Trustee Fees and Expenses . . . . . . . . 36,200
Accounting Fees and Expenses . . . . . . . 40,000
Legal Fees and Expenses . . . . . . . . . . 65,000
Blue Sky Fees and Expenses . . . . . . . . 15,000
Miscellaneous Expenses . . . . . . . . . . 7,593
--------
Total . . . . . . . . . . . . . . . . . . $410,000
========
Item 15. Indemnification of Directors and Officers.
Pursuant to the Wisconsin Business Corporation Law and the
Registrant's By-Laws, directors and officers of the Registrant are
entitled to mandatory indemnification from the Registrant against certain
liabilities and expenses (i) to the extent such officers or directors are
successful in the defense of a proceeding and (ii) in proceedings in which
the director or officer is not successful in defense thereof, unless (in
the latter case only) it is determined that the director or officer
breached or failed to perform his or her duties to the Registrant and such
breach or failure constituted: (a) a willful failure to deal fairly with
the Registrant or its shareholders in connection with a matter in which
the director or officer had a material conflict of interest; (b) a
violation of criminal law unless the director or officer had a reasonable
cause to believe his or her conduct was lawful or had no reasonable cause
to believe his or her conduct was unlawful; (c) a transaction from which
the director or officer derived an improper personal profit; or (d)
willful misconduct. The Wisconsin Business Corporation Law specifically
states that it is the public policy of Wisconsin to require or permit
indemnification, allowance of expenses and insurance in connection with a
proceeding involving securities regulation, as described therein, to the
extent required or permitted as described above. Additionally, under the
Wisconsin Business Corporation Law, directors of the Registrant are not
subject to personal liability to the Registrant, its shareholders or any
person asserting rights on behalf thereof for certain breaches or failures
to perform any duty resulting solely from their status as directors,
except in circumstances paralleling those outlined in (a) through (d)
above.
Expenses for the defense of any action for which indemnification
may be available may be advanced by the Registrant under certain
circumstances.
The indemnification provided by the Wisconsin Business Corporation
Law and the Registrant's By-Laws is not exclusive of any other rights to
which a director or officer of the Registrant may be entitled. The
general effect of the foregoing provisions may be to reduce the
circumstances which an officer or director may be required to bear the
economic burden of the foregoing liabilities and expense.
The Registrant maintains a liability insurance policy for its
directors and officers as permitted by Wisconsin law which may extend to,
among other things, liability arising under the Securities Act of 1933.
The proposed form of Underwriting Agreement for the Debt Securities
contains provisions under which the Underwriters agree to indemnify the
directors and officers of the Registrant against certain liabilities,
including liabilities under the Securities Act of 1933.
Item 16. Exhibits.
The exhibits filed herewith are as specified on the Exhibit Index
included herein.
Item 17. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933.
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than
a 20% change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
Registration Statement.
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information
in the Registration Statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933,
each filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 that is incorporated
by reference in the Registration Statement shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as part of this Registration Statement in reliance
upon Rule 430A and contained in a form of prospectus filed by the
Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the
Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a
form of prospectus shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
(d) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in
the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit
to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused
this amendment to the Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Fond du Lac,
State of Wisconsin, on August 8, 1995.
GIDDINGS & LEWIS, INC.
By: /s/ Joseph R. Coppola
Joseph R. Coppola
Chairman of the Board and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
amendment to the Registration Statement has been signed below by the
following persons in the capacities and on the dates indicated.
Signature Title Date
/s/ Joseph R. Coppola Chairman of the August 8, 1995
Joseph R. Coppola Board, Chief
Executive Officer and
Director (Principal
Executive Officer)
/s/ Richard C. Vice President - August 8, 1995
Kleinfeldt Finance, Secretary
Richard C. Kleinfeldt and Director
(Principal Financial
and Accounting
Officer)
Albert J. Baciocco, Director August 8, 1995
Jr.*
John A. Becker* Director August 8, 1995
Ruth M. Davis* Director August 8, 1995
Clyde H. Folley* Director August 8, 1995
Benjamin F. Garmer, Director August 8, 1995
III*
John W. Guffey, Jr.* Director August 8, 1995
Ben R. Stuart* Director August 8, 1995
*By: /s/ Joseph R. Coppola
Joseph R. Coppola
Attorney-in-Fact
<PAGE>
EXHIBIT INDEX
Exhibit
Number Document Description
(1) Proposed form of Underwriting Agreement relating to
the Debt Securities.*
(4.1) Indenture between Giddings & Lewis, Inc. and
Firstar Trust Company, as Trustee, dated as of
August 7, 1995, relating to the Debt Securities.
(4.2) Credit Agreement among Giddings & Lewis, Inc.,
Giddings & Lewis GmbH, Giddings & Lewis AG, the
Institutions from time to time party thereto as
Lenders, the Institutions from time to time party
thereto as Issuing Banks, Citicorp North America,
Inc., as Agent, and Citicorp Investment Bank
Limited, as London Agent, dated as of December 21,
1992. [Incorporated by reference to Exhibit 4.2 to
Giddings & Lewis, Inc.'s Annual Report on Form 10-K
for the year ended December 31, 1992]
(4.3) Amendment to Credit Agreement among Giddings &
Lewis, Inc., Giddings & Lewis GmbH, Giddings &
Lewis Ltd., the Institutions from time to time
party thereto as Lenders, the Institutions from
time to time party thereto as Issuing Banks,
Citicorp North America, Inc., as Retiring Agent,
and Citibank N.A., as Agent, Citicorp Investment
Bank Limited, as Retiring London Agent, and
Citibank International plc, as an Agent, dated as
of December 21, 1994. [Incorporated by reference
to Exhibit 4.3 to Giddings & Lewis, Inc.'s Annual
Report on Form 10-K for the year ended December 31,
1994]
(4.4) Amendment No. 2 and Consent to Credit Agreement
among Giddings & Lewis, Inc., Giddings & Lewis
GmbH, Giddings & Lewis Ltd. and the Institutions
from time to time party thereto as Agent and
Lenders, dated as of April 24, 1995. [Incorporated
by reference to Exhibit 4.3 to Giddings & Lewis,
Inc.'s Current Report on Form 8-K dated April 24,
1995]
(4.5) Credit Agreement among Giddings & Lewis, Inc., the
Institutions from time to time party hereto as
Lenders and Citibank, N.A., as Agent, dated as of
April 24, 1995. [Incorporated by reference to
Exhibit 4.4 to Giddings & Lewis, Inc.'s Current
Report on Form 8-K dated April 24, 1995]
(5) Opinion of Foley & Lardner (including consent of
counsel).
(12) Statement re computation of ratios of earnings to
fixed charges.*
(23.1) Consent of Ernst & Young LLP.
(23.2) Consent of Foley & Lardner (filed as part of
Exhibit (5)).
(24) Powers of Attorney.*
(25) Form T-1 Statement of Eligibility and Qualification
under the Trust Indenture Act of 1939 of Firstar
Trust Company.*
*Previously filed.
______________________________________________________________________
GIDDINGS & LEWIS, INC.
the Company
AND
FIRSTAR TRUST COMPANY
the Trustee
_____
INDENTURE
Dated as of August 7, 1995
_____
____________________________________________________________________
<PAGE>
CROSS REFERENCE TABLE
Indenture
TIA Section Section
Section 310(a)(1) . . . . . . 609
(a)(2) . . . . . . . . 609
(a)(3) . . . . . . . . N.A.
(a)(4) . . . . . . . . N.A.
(a)(5) . . . . . . . . 609
(b) . . . . . . . . . . 608
(c) . . . . . . . . . . N.A.
Section 311(a) . . . . . . . 613
(b) . . . . . . . . . . 613
(c) . . . . . . . . . . N.A.
Section 312(a) . . . . . . . 701;702
(b) . . . . . . . . . . 702
(c) . . . . . . . . . . 702
Section 313(a) . . . . . . . 703
(b) . . . . . . . . . . 703
(c) . . . . . . . . . . 703
(d) . . . . . . . . . . 703
Section 314(a) . . . . . . . 704
(b) . . . . . . . . . . N.A.
(c) . . . . . . . . . . 102
(d) . . . . . . . . . . N.A.
(e) . . . . . . . . . . 102
(f) . . . . . . . . . . N.A.
Section 315(a) . . . . . . . 601
(b) . . . . . . . . . . 602
(c) . . . . . . . . . . 601
(d) . . . . . . . . . . 601
(e) . . . . . . . . . . 514
Section 316(a) (last sentence) 101
(a)(1)(A) . . . . . . . 512
(a)(1)(B) . . . . . . . 513
(a)(2) . . . . . . . . N.A.
(b) . . . . . . . . . . 508
(c) . . . . . . . . . . 104
Section 317(a)(1) . . . . . . 503
(a)(2) . . . . . . . . 504
(b) . . . . . . . . . . 1003
Section 318(a) . . . . . . . 107
This table shall not be deemed a part of the Indenture.
N.A. means not applicable.
TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . 1
SECTION 102. Compliance Certificates and Opinions. . . . . . . 9
SECTION 103. Form of Documents Delivered to Trustee. . . . . . 9
SECTION 104. Acts of Holders; Record Dates. . . . . . . . . . 10
SECTION 105. Notices, Etc., to Trustee and Company. . . . . . 11
SECTION 106. Notice to Holders; Waiver. . . . . . . . . . . . 12
SECTION 107. Applicability of Trust Indenture Act. . . . . . . 12
SECTION 108. Effect of Headings and Table of Contents. . . . . 12
SECTION 109. Successors and Assigns. . . . . . . . . . . . . . 13
SECTION 110. Separability Clause. . . . . . . . . . . . . . . 13
SECTION 111. Benefits of Indenture. . . . . . . . . . . . . . 13
SECTION 112. Governing Law. . . . . . . . . . . . . . . . . . 13
SECTION 113. Legal Holidays. . . . . . . . . . . . . . . . . . 13
SECTION 114. Execution in Counterparts. . . . . . . . . . . . 13
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally. . . . . . . . . . . . . . . . . 14
SECTION 202. Form of Trustee's Certificate of Authentication. 14
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. . . . . . . 15
SECTION 302. Denominations. . . . . . . . . . . . . . . . . . 17
SECTION 303. Execution, Authentication, Delivery and Dating. . 17
SECTION 304. Temporary Securities. . . . . . . . . . . . . . . 19
SECTION 305. Registration, Registration of Transfer and
Exchange. . . . . . . . . . . . . . . . . . . 20
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities. . . . . . . . . . . . . . . . . . 22
SECTION 307. Payment of Principal and Interest; Interest
Rights Preserved. . . . . . . . . . . . . . . 23
SECTION 308. Persons Deemed Owners. . . . . . . . . . . . . . 24
SECTION 309. Cancellation. . . . . . . . . . . . . . . . . . . 24
SECTION 310. Computation of Interest. . . . . . . . . . . . . 25
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. . . . . 25
SECTION 402. Application of Trust Money. . . . . . . . . . . . 26
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default. . . . . . . . . . . . . . . . 26
SECTION 502. Acceleration of Maturity; Rescission and
Annulment. . . . . . . . . . . . . . . . . . 28
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee. . . . . . . . . . . . 29
SECTION 504. Trustee May File Proofs of Claim. . . . . . . . . 30
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities. . . . . . . . . . . . . . . . . 30
SECTION 506. Application of Money Collected. . . . . . . . . . 31
SECTION 507. Limitation on Suits. . . . . . . . . . . . . . . 31
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest. . . . . . . 32
SECTION 509. Restoration of Rights and Remedies. . . . . . . . 32
SECTION 510. Rights and Remedies Cumulative. . . . . . . . . . 32
SECTION 511. Delay or Omission Not Waiver. . . . . . . . . . . 32
SECTION 512. Control by Holders. . . . . . . . . . . . . . . . 32
SECTION 513. Waiver of Past Defaults. . . . . . . . . . . . . 33
SECTION 514. Undertaking for Costs. . . . . . . . . . . . . . 33
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities. . . . . . . 34
SECTION 602. Notice of Defaults. . . . . . . . . . . . . . . . 35
SECTION 603. Certain Rights of Trustee. . . . . . . . . . . . 35
SECTION 604. Not Responsible for Recitals or Issuance of
Securities. . . . . . . . . . . . . . . . . . 36
SECTION 605. May Hold Securities. . . . . . . . . . . . . . . 36
SECTION 606. Money Held in Trust. . . . . . . . . . . . . . . 37
SECTION 607. Compensation and Reimbursement. . . . . . . . . . 37
SECTION 608. Disqualification; Conflicting Interests. . . . . 37
SECTION 609. Corporate Trustee Required; Eligibility. . . . . 42
SECTION 610. Resignation and Removal; Appointment of
Successor. . . . . . . . . . . . . . . . . . . . 43
SECTION 611. Acceptance of Appointment by Successor. . . . . . 44
SECTION 612. Merger, Conversion, Consolidation or Succession
to Business. . . . . . . . . . . . . . . . . 45
SECTION 613. Preferential Collection of Claims Against
Company. . . . . . . . . . . . . . . . . . . 46
SECTION 614. Compliance with Tax Laws. . . . . . . . . . . . . 49
SECTION 615. Appointment of Authenticating Agent. . . . . . . 49
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders. . . . . . . . . . . . . . . . . . . 51
SECTION 702. Preservation of Information; Communications to
Holders. . . . . . . . . . . . . . . . . . . 51
SECTION 703. Reports by Trustee. . . . . . . . . . . . . . . . 52
SECTION 704. Reports by Company. . . . . . . . . . . . . . . . 53
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 801. Consolidations and Mergers of Company and
Conveyances Permitted Subject to Certain
Conditions. . . . . . . . . . . . . . . . . . . . 54
SECTION 802. Rights and Duties of Successor Corporation. . . . 54
SECTION 803. Officer's Certificate and Opinion of Counsel. . . 55
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of
Holders. . . . . . . . . . . . . . . . . . . 55
SECTION 902. Supplemental Indentures with Consent of Holders. 56
SECTION 903. Execution of Supplemental Indentures; Opinions. . 57
SECTION 904. Effect of Supplemental Indentures. . . . . . . . 57
SECTION 905. Conformity with Trust Indenture Act. . . . . . . 58
SECTION 906. Reference in Securities to Supplemental
Indentures. . . . . . . . . . . . . . . . . . . 58
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest. . . . 58
SECTION 1002. Maintenance of Office or Agency. . . . . . . . . 58
SECTION 1003. Money for Securities Payments To Be Held in
Trust. . . . . . . . . . . . . . . . . . . . 59
SECTION 1004. Statement by Officers as to Default. . . . . . . 60
SECTION 1005. Limitation on Liens. . . . . . . . . . . . . . . 60
SECTION 1006. Limitation on Sale and Leaseback Transactions. . 61
SECTION 1007. Waiver of Certain Covenants. . . . . . . . . . . 62
SECTION 1008. Delivery of Certain Information. . . . . . . . . 62
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article. . . . . . . . . . . . . 62
SECTION 1102. Election to Redeem; Notice to Trustee. . . . . . 63
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed. . . . . . . . . . . . . . . . . . 63
SECTION 1104. Notice of Redemption. . . . . . . . . . . . . . . 63
SECTION 1105. Deposit of Redemption Price. . . . . . . . . . . 64
SECTION 1106. Securities Payable on Redemption Date. . . . . . 64
SECTION 1107. Securities Redeemed in Part. . . . . . . . . . . 65
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of this Article. . . . . . . . . . 65
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities. . . . . . . . . . . . . . . . . . 65
SECTION 1203. Redemption of Securities for Sinking Fund. . . . 66
ARTICLE THIRTEEN
DEFEASANCE
SECTION 1301. Applicability of Article; Company's Option to
Effect Defeasance. . . . . . . . . . . . . . 66
SECTION 1302. Defeasance and Discharge. . . . . . . . . . . . . 66
SECTION 1303. Covenant Defeasance. . . . . . . . . . . . . . . 67
SECTION 1304. Conditions of Defeasance. . . . . . . . . . . . . 67
SECTION 1305. Deposited Money and U.S. Government Obligations
to Be Held in Trust; Miscellaneous . . . . . 68
SECTION 1306. Reinstatement. . . . . . . . . . . . . . . . . . 69
ARTICLE FOURTEEN
REPURCHASE OF SECURITIES AT OPTION OF HOLDERS
SECTION 1401. Applicability of Article. . . . . . . . . . . . . 69
SECTION 1402. Notice of Repurchase Date. . . . . . . . . . . . 69
SECTION 1403. Deposit of Repurchase Price. . . . . . . . . . . 70
SECTION 1404. Securities Payable on Repurchase Date. . . . . . 70
SECTION 1405. Securities Repurchased in Part. . . . . . . . . . 71
ARTICLE FIFTEEN
CORPORATE OBLIGATION ONLY
SECTION 1501. Indenture and Securities Solely Corporate
Obligations. . . . . . . . . . . . . . . . . 71
<PAGE>
INDENTURE
INDENTURE, dated as of August 7, 1995, between GIDDINGS & LEWIS,
INC., a corporation duly organized and existing under the laws of the
State of Wisconsin (the "Company"), and FIRSTAR TRUST COMPANY, a Wisconsin
state banking corporation, as Trustee (the "Trustee").
RECITALS OF THE COMPANY
A. The Company has duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time of its
unsecured debentures, notes or other evidences of indebtedness (the
"Securities"), to be issued in one or more series unlimited as to
principal amount, to bear such rates of interest, to mature at such times
and to have such other provisions as in this Indenture provided.
B. All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That, in order to declare the terms and conditions upon which
the Securities are authenticated, issued and delivered, and in
consideration of the premises and the purchase of the Securities by the
Holders (as defined herein) thereof, the Company and the Trustee covenant
and agree with each other, for the benefit of all Holders from time to
time of the Securities or of any series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions
For all purposes of this Indenture and of any supplemental
indenture hereto, except as otherwise expressly provided or unless the
context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as
the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act (as defined herein), either directly or by reference
therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(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;
(5) the word "or" is not exclusive;
(6) the word "including" means including without limitation;
and
(7) words in the singular include the plural and words in the
plural include the singular.
"Act," when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with the 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 that Person,
directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Attributable Debt" means, as to any particular Sale and
Leaseback Transaction, at any date as of which the amount thereof is to be
determined, the total amount determined by multiplying (i) the greater of
(a) the fair value of the Principal Property subject to such arrangement
(as determined by any two of the Chairman of the Board of the Company, its
President, its Treasurer and its Controller); or (b) the net proceeds of
the sale of such Principal Property to the lender or investor; by (ii) a
fraction, the numerator of which is the number of months in the unexpired
initial term of the lease of such Principal Property and the denominator
of which is the number of months in the full initial term of such lease;
provided, however, that Sale and Leaseback Transactions with respect to
Principal Property financed by obligations issued by a state or local
governmental unit (whether or not tax exempt pursuant to
Section 103(b)(4)(F), 103(b)(4)(E) or 103(b)(6) of the Internal Revenue
Code, or any successor provision thereof) shall not be included in any
calculation of Attributable Debt.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 615 to act on behalf of the Trustee to
authenticate Securities of one or more series.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee thereof.
"Board Resolution" means a copy of a resolution delivered to the
Trustee that is certified by the Secretary or an Assistant Secretary of
the Company to have been duly adopted by the Board of Directors and to be
in full force and effect on the date of such certification.
"Business Day" when used with respect to any Place of Payment,
means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a
day on which banking institutions in New York, New York, or Milwaukee,
Wisconsin, and the Place of Payment are authorized or obligated by law or
executive order to close.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the United States Securities
Exchange Act of 1934, or if at any time after the execution of this
instrument such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body performing
such duties on such date.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or
order delivered to the Trustee that is signed in the name of the Company
by its Chairman of the Board, its President or any Vice President, and by
its Treasurer, any Assistant Treasurer, its Controller, any Assistant
Controller, its Secretary or any Assistant Secretary.
"Consolidated Net Tangible Assets" means the aggregate amount of
assets (less applicable reserves and other properly deductible items)
after deducting therefrom (a) all current liabilities (excluding any
current liabilities for money borrowed having a maturity of less than 12
months but by its terms being renewable or extendible beyond 12 months
from such date at the option of the borrower) and (b) all goodwill, trade
names, trademarks, patents, unamortized debt discount and expense and
other like intangibles, all as set forth on the most recent balance sheet
of the Company and its consolidated subsidiaries and computed in
accordance with GAAP.
"Corporate Trust Office" means the office of the Trustee at
which the corporate trust business of the Trustee shall, at any particular
time, be principally administered, which office is, at the date as of
which this Indenture is dated, located at 615 East Michigan Street,
Milwaukee, Wisconsin 53203.
"Corporation" means a corporation, association, company, joint-
stock company or business trust.
"Debt" has the meaning specified in Section 1005.
"Defaulted Interest" has the meaning specified in Section 307.
"defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as Depositary by the Company pursuant to
Section 301.
"Direction" has the meaning specified in Section 104(c).
"Exempt Securities" has the meaning given it in Section 1008.
"Event of Default" has the meaning specified in Section 501.
"Funded Debt" means all indebtedness for borrowed money having a
maturity of more than 12 months from the date as of which the amount
thereof is to be determined.
"GAAP" means generally accepted accounting principles set forth
in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such
other statements by such other entity as may be approved by a significant
segment of the accounting profession in the United States.
"Global Security" means a Security evidencing all or part of a
series of Securities, issued to the Depositary for such series or its
nominee, and registered in the name of such Depositary or nominee.
"Global Security Registered Owner" has the meaning given it in
Section 305.
"Holder" means a Person in whose name a Security is registered
in the Security Register.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof. The term "Indenture" shall also include the terms of
particular series of Securities established as contemplated by
Section 301, whether or not a supplemental indenture is entered into with
respect thereto.
"Interest," when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date," when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"Maturity," when used with respect to any Security, means the
date on which the principal of such Security or an installment of
principal becomes due and payable as therein or herein provided, whether
at the Stated Maturity or by declaration of acceleration, call for
redemption, occurrence of any Repurchase Date or otherwise.
"Mortgage" has the meaning specified in Section 1005.
"Officer's Certificate" means a certificate delivered to the
Trustee that is signed by the Company's Chairman of the Board, its
President or any Vice President, and by its Treasurer, any Assistant
Treasurer, its Controller, any Assistant Controller, its Secretary or any
Assistant Secretary.
"Opinion of Counsel" means a written opinion of counsel from
counsel for the Company (who may be an employee of the Company), or
outside counsel for the Company.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502.
"Outstanding," when used with respect to any series of
Securities, means, as of the date of determination, all Securities of that
series which are authenticated and delivered under this Indenture, except:
(i) Securities of that series previously cancelled by the
Trustee or delivered to the Trustee for cancellation;
(ii) Securities of that series for whose payment or redemption
money in the necessary amount has been previously deposited with the
Trustee or any Paying Agent (other than the Company) in trust or set
aside and segregated in trust by the Company (if the Company shall
act as its own Paying Agent) for the Holders of such Securities;
provided that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made; and
(iii) Securities of that series which have been paid
pursuant to Section 306 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which there
shall have been presented to the Trustee proof satisfactory to it
that such Securities are held by a bona fide purchaser in whose hands
such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities of any series
have given any request, demand, authorization, direction, notice, consent
or waiver hereunder, (A) the principal amount of an Original Issue
Discount Security that shall be deemed to be Outstanding shall be the
amount of the principal thereof that would be due and payable as of the
date of such determination upon acceleration of the Maturity thereof
pursuant to Section 502, (B) the principal amount of a Security
denominated in one or more foreign currencies or currency units shall be
the U.S. dollar equivalent, determined in the manner provided for such
Security on the date of original issuance thereof, as contemplated by
Section 301, of the principal amount (or, in the case of an Original Issue
Discount Security, the U.S. dollar equivalent on the date of original
issuance of such Security of the amount determined as provided in (A)
above) of such Security, and (C) Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or of
such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in
relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned
shall be so disregarded. Notwithstanding the foregoing clause (C),
Securities so owned by the Company, such obligor, or such Affiliate that
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 so long as the pledgee is not
the Company or any other obligor upon the Securities or an Affiliate of
the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay
the principal of, premium (if any), or interest on any Securities on
behalf of the Company.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or any other entity or government or
any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of
any series, means such city or political subdivision thereof where the
principal of, premium (if any), and interest on the Securities of that
series are payable as specified for such Securities as contemplated by
Section 301.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed,
lost or stolen Security.
"Principal Property" means any land, building, machinery or
equipment, or leasehold interests and improvements in respect of the
foregoing owned by the Company or a Restricted Subsidiary, which would be
reflected on a consolidated balance sheet of the Company and its
Subsidiaries prepared in accordance with GAAP and which on the date as of
which the determination is being made exceeds one percent of the
Consolidated Net Tangible Assets, but excluding all such tangible property
located outside the United States of America and excluding any property
which, in the opinion of the Board of Directors set forth in a Board
Resolution, is not of material importance to the total business conducted
by the Company and its Subsidiaries, taken as a whole.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the fifteenth day
(whether or not a Business Day) next preceding such Interest Payment Date
or such other date with respect to Securities of any series specified as
contemplated by Section 301.
"Repurchase Date," when used with respect to any Security of any
series to be repurchased, means the date, if any, fixed for such
repurchase pursuant to Section 301.
"Repurchase Price," when used with respect to any Security of
any series to be repurchased, means the price, if any, at which such
Security is to be repurchased pursuant to Section 301.
"Responsible Officer," when used with respect to the Trustee,
means the Chairman of the Board of Directors, the President, any Vice
President, the Secretary, any Assistant Secretary, the Treasurer, any
Assistant Treasurer or any other officer or assistant officer of the
Trustee customarily performing functions similar to those performed by the
persons who at the time shall be such officers, respectively, or to whom
any corporate trust matter is referred at the Trustee's Corporate Trust
Office because of that person's knowledge of and familiarity with the
particular subject.
"Restricted Subsidiary" means any Subsidiary that in accordance
with GAAP is consolidated with the Company in the Company's consolidated
financial statements and that generated 5% or more of the revenues,
generated 5% or more of the operating income, or held 5% or more of the
assets of the Company and its consolidated Subsidiaries for or at the end
of the most recently completed fiscal year of the Company for which an
Annual Report on Form 10-K or proxy statement of the Company containing
audited financial results has been filed with the Commission; provided,
however, that "Restricted Subsidiary" shall not include a Subsidiary that
is engaged primarily in financing the operations of the Company or its
Subsidiaries, or both, outside the states of the United States, and (a)
more than 50% of whose net sales and operating revenues during the
preceding four calendar quarters was derived from, or more than 50% of
whose operating properties is located in, the United States (excluding its
territories and possessions, but including Puerto Rico), or (b) more than
50% of whose assets consists of securities of other Restricted
Subsidiaries.
"Restricted Security" means a Security that is a "restricted
security" as defined in Rule 144(a)(3) under the Securities Act or any
successor provision thereto or a Security that by its terms can only be
sold pursuant to Regulation S, Rule 144, or Rule 144A under the Securities
Act (or successor provisions thereto) or in a transaction exempt from the
registration requirements of the Securities Act pursuant to Section 4 of
the Securities Act; provided, however, that once the Security is sold
pursuant to the provisions of Rule 144, including Rule 144(k), it will
cease to be a Restricted Security.
"Rule 144A Information" means the information satisfying the
requirements of Rule 144A(d)(4) under the Securities Act on the date
hereof.
"Sale and Leaseback Transaction" has the meaning specified in
Section 1006.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities of any series
authenticated and delivered under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of
such Security or such installment of principal or interest is due and
payable.
"Subsidiary" means a corporation, association, partnership or
other entity of which more than 80% of the outstanding Voting Stock is
owned, directly or indirectly, by the Company or by one or more other
Subsidiaries, or by the Company and one or more other Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean or include each Person who is then a
Trustee hereunder, and if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean
the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument is qualified (to the
extent required by law) under such act.
"U.S. Government Obligations" means securities that are (x)
direct obligations of the United States of America for the payment of
which its full faith and credit is pledged or (y) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of
the United States of America, the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, 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 (as defined in Section 3(a)(2) of the Securities Act) as
custodian with respect to any such U.S. Government Obligation or a
specific payment of principal of or interest on any such U.S. Government
Obligation held by such custodian for the account of the holder of such
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 U.S. Government Obligation or the specific
payment of principal of or interest on the U.S. Government Obligation
evidenced by such depository receipt.
"Vice President" 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," and when used with
respect to the Company means any vice president who is an officer of the
Company, whether or not designated by a number or word or words before
such title.
"Voting Stock" means securities of the class or classes having
general voting power under ordinary circumstances to elect at least a
majority of the board of directors, managers or trustees of such
corporation, association, partnership or other entity (irrespective of
whether or not at the time securities of any other class or classes shall
have or might have voting power by reason of the happening of any
contingency).
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officer's 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 shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he or she has made such examination or investigation as is necessary
to enable him or her to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only
one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect
to some matters and one or more other such Persons as to other matters,
and any such Person may certify or give an opinion as to such matters in
one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows that
the certificate or opinion or representations with respect to the matters
upon which such officer's certificate or opinion is based are erroneous.
Any such certificate or Opinion of Counsel may be based, insofar as it
relates to factual matters or information which is in the possession of
the Company, upon a certificate or opinion of, or representations by, an
officer or officers of the Company, unless such counsel knows that the
certificate or opinion or representations with respect to such matters are
erroneous. Any Opinion of Counsel may be stated to be based on the
opinion of other counsel, in which event it shall be accompanied by a copy
of such other opinion.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions
or other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or
taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in
person or by agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, where it is
expressly hereby required, to the Company. Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument
or instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section.
Without limiting the generality of the foregoing, a Holder,
including a Depositary that is a Holder of a Global Security, may make,
give or take, by a proxy, or proxies, duly appointed in writing, any
request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be made, given or
taken by Holders, and a Depositary that is a Holder of a Global Security
may provide its proxy or proxies to the beneficial owners of interest in
any such Global Security.
(b) 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 or her
the execution thereof. Where such execution is by an officer of a
corporation or a member of a partnership, acting on behalf of such
corporation or partnership, such certificate or affidavit shall also
constitute sufficient proof of such officer's authority. Notwithstanding
the foregoing, the fact and date of the execution of any such instrument
or writing, and the authority of the Person executing the same, may also
be proved in any other manner that the Trustee deems sufficient.
(c) Except as provided in the next paragraph of this Subsection
(c) or as specifically provided otherwise pursuant to Section 301 with
respect to any series of Securities, the Company may set any day as the
record date for the purpose of determining the Holders of Securities of
any series entitled to give or take any request, demand, authorization,
direction, notice, consent, waiver or other action, or to vote on any
action, authorized or permitted to be given or taken by Holders of
Securities of such series. With regard to any record date set pursuant to
this Subsection (c), the Holders of Outstanding Securities of the relevant
series on such record date (or their duly appointed agents), and only such
Persons, shall be entitled to give or take the relevant action, whether or
not such Holders remain Holders after such record date. With regard to
any action that may be given or taken hereunder only by Holders of a
requisite principal amount of Outstanding Securities of any series (or
their duly appointed agents) and for which a record date is set pursuant
to this Subsection (c), the Company may, at its option, set an expiration
date after which no such action purported to be given or taken by any
Holder shall be effective hereunder unless given or taken on or prior to
such expiration date by Holders of the requisite principal amounts of
Outstanding Securities of such series on such record date (or their duly
appointed agents). On or prior to any expiration date set pursuant to
this Subsection (c), the Company may, on one or more occasions at its
option, extend such date to any later date. Nothing in this Subsection
(c) shall prevent any Holder (or any duly appointed agent thereof) from
giving or taking, after any expiration date, any action identical to, or,
at any time, contrary to or different from any action given or taken, or
purported to have been given or taken, hereunder by a Holder on or prior
to such date, in which event the Company may set a record date in respect
hereof pursuant to this Subsection (c).
Notwithstanding the foregoing, upon receipt by the Trustee, with
respect to Securities of any series, of (i) any Notice of Default pursuant
to Section 501, (ii) any declaration of acceleration, or any rescission
and annulment of any such declaration pursuant to Section 502, or (iii)
any direction given pursuant to Section 512 (any such notice, declaration,
rescission and annulment, or direction being referred to herein as a
"Direction"), a record date shall automatically and without any other
action by any Person be set for the purpose of determining the Holders of
Outstanding Securities of such series entitled to join in such Direction,
which record date shall be the close of business on the day the Trustee
receives such Direction. The Holders of Outstanding Securities of such
series on such record date (or their duly appointed agents), and only such
Persons, shall be entitled to join in such Direction, whether or not such
Holders remain Holders after such record date; provided that, unless such
Direction shall have become effective by virtue of Holders of the
requisite principal amount of Outstanding Securities of such series on
such record date (or their duly appointed agents) having joined therein on
or prior to the 90th day after such record date, such Direction shall
automatically and without any action by any Person be cancelled and be of
no further effect. Nothing in this paragraph shall prevent a Holder (or a
duly appointed agent thereof) from giving, before or after the expiration
of such 90-day period, a Direction contrary to or different from, or,
after the expiration of such period, identical to, a Direction that has
been cancelled pursuant to the proviso to the preceding sentence, in which
event a new record date in respect thereof shall be set pursuant to this
Subsection (c).
(d) The ownership of Securities shall be proved by the Security
Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every Security
issued upon the registration of transfer thereof or in exchange thereof 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 Company in reliance thereon, whether or not
notation of such action is made upon such Security.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office
or at such other address as previously furnished in writing to the
Holders and the Company by the Trustee for such purpose, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, registered or certified
mail postage prepaid, to the Company addressed to it at 142 Doty
Street, Fond du Lac, Wisconsin 54935, Attn: Secretary, or at such
other address as previously furnished in writing to the Trustee by
the Company for such purpose.
SECTION 106. Notice to Holders; Waiver.
Except as otherwise provided in any supplemental indenture with
respect to Holders of Securities of any series issued pursuant to such
supplemental indenture, where this Indenture provides for notice to
Holders of any event, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder affected by such event, at such Holder's
address as it appears in the Security Register, not later than the latest
date (if any), and not earlier than the earliest date (if any), prescribed
for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in
any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Any notice
mailed to the 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. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled
to receive such notice, either before or after the event, and such waiver
shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice
by mail, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose
hereunder.
SECTION 107. Applicability of Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this
Indenture by any of the provisions of the Trust Indenture Act, such
required provision shall control.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction
hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities of
any series shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any
way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto, 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 112. Governing Law.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of Wisconsin.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date,
Repurchase Date, sinking fund payment date or Stated Maturity or Maturity
of any Security of any series or any date by which any report or other
information is due pursuant to any provision of this Indenture shall not
be a Business Day, then (notwithstanding any other provision of this
Indenture or such Securities) payment of interest or principal (and
premium, if any) or delivery of such report or information need not be
made on or by such date, but may be made on the next succeeding Business
Day with the same force and effect (a) with respect to any payment, as if
made on the Interest Payment Date, Repurchase Date or Redemption Date,
sinking fund payment date or at the Stated Maturity or Maturity, and (b)
with respect to any such report or other information, as if delivered by
the stated due date. No interest shall accrue for the period from and
after such Interest Payment Date, Redemption Date, Repurchase Date,
sinking fund payment date or Stated Maturity or Maturity, as the case may
be, to such next succeeding Business Day.
SECTION 114. Execution in Counterparts.
This Indenture may be executed in any number of counterparts,
each of which shall be an original; but such counterparts shall together
constitute but one and the same instrument.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in substantially the form
as shall be established without the approval of any Holders by or pursuant
to one or more Board Resolutions in accordance with Section 301 or in one
or more indentures supplemental hereto, in each case, including without
limitation such appropriate legends, insertions, omissions, substitutions
and other variations as are required or are not prohibited by this
Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as the
Company may deem appropriate and as are not inconsistent with the
provisions of this Indenture, or as necessary or appropriate to comply
with any law or with any rule or regulation made pursuant thereto or with
any rules or regulations of any securities exchange on which such series
of Securities may be listed, or to conform to general usage, or as may,
consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
The definitive Securities of each series shall be printed,
lithographed or engraved on steel engraved borders or may be produced in
any other manner, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
SECTION 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificates 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.
FIRSTAR TRUST COMPANY,
as Trustee
By: _________________________________
Authorized Signatory
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities of all series which
may be issued, executed, authenticated, delivered and Outstanding under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall
be established, without the approval of any Holders, by or pursuant to
authority granted by one or more Board Resolutions and, subject to
Section 303, there shall be set forth in an Officer's Certificate, or
established in one or more indentures supplemental hereto, prior to the
issuance of Securities of any series, any or all of the following, as
applicable:
(1) the title of the Securities of the series (which shall
distinguish the Securities of such series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under this Indenture (except for Securities of the series
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant
to Section 304, 305, 306, 906, 1107 or 1405 and except for any
Securities of the series which, pursuant to Section 303, are deemed
never to have been authenticated and delivered hereunder);
(3) if other than the Trustee, the identity of each Security
Registrar and Paying Agent;
(4) the date or dates, or the method by which such date or
dates are determined or extended, on which the principal and premium
(if any) of the Securities of the series shall be payable;
(5) the rate or rates (which may be fixed or variable) at which
the Securities of the series shall bear interest, or the method by
which such rates will be determined, if any, the date or dates from
which such interest shall accrue, the Interest Payment Dates on which
any such interest shall be payable, or the method by which such date
will be determined, and the basis upon which interest shall be
calculated if other than that of a 360-day year of twelve thirty-day
months;
(6) if other than the fifteenth day next preceding an Interest
Payment Date, the Regular Record Date with respect to an Interest
Payment Date;
(7) the place or places, if any, other than or in addition to
the Corporate Trust Office, where the principal of, premium (if any),
and interest on Securities of the series shall be payable;
(8) the period or periods within which, the price or prices at
which, and the terms and conditions upon which Securities of the
series may be redeemed, in whole or in part, at the option of the
Company if the Company is to have such option;
(9) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices at which, and the
terms and conditions upon which Securities of the series shall be
redeemed, repaid, or purchased, in whole or in part, pursuant to such
obligation;
(10) if other than denominations of $1,000 and integral
multiples thereof, the denominations in which Securities of the
series shall be issuable;
(11) if other than the currency of the United States of America,
the currency, currencies or currency units in which payment of the
principal, premium (if any), and interest on any Securities of the
series shall be payable and the manner of determining the equivalent
thereof in the currency of the United States of America for purposes
of the definition of "Outstanding" in Section 101;
(12) if the amount of payments of principal of, premium (if
any), or interest on any Securities of the series may be determined
with reference to an index, the manner in which such amounts shall be
determined;
(13) if the principal of, premium (if any), or interest on any
Securities of the series is to be payable, at the election of the
Company or a Holder thereof, in one or more currencies or currency
units other than that or those in which the Securities are stated to
be payable, the currency, currencies or currency units in which
payment of the principal of, premium (if any), and interest on
Securities of such series as to which such election is made shall be
payable, and the periods within which and the terms and conditions
upon which such election is to be made;
(14) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502 or provable in bankruptcy pursuant to
Sections 503 and 504;
(15) the application, if any, of either or both of Section 1302
and Section 1303 to the Securities of the series;
(16) any addition to or change in the Events of Default with
respect to the Securities of the series and any change in the right
of the Trustee or the Holders to declare the principal of, premium
(if any), and interest on, such Securities due and payable;
(17) any addition to or change in the covenants and definitions
currently set forth in this Indenture or in the terms currently set
forth in Article Eight or Article Ten;
(18) if and as applicable, that the Securities of the series
shall be issuable in whole or in part in the form of one or more
Global Securities and, in such case, the Depositary or Depositaries
for such Global Security or Global Securities and any circumstances
other than those set forth in Section 305 in which any such Global
Security may be transferred to, and registered and exchanged for
Securities of the series registered in the name of, a Person other
than the Depositary for such Global Security or nominee thereof, and
in which any such transfer may be registered; and
(19) any other terms of the series (which terms shall not be
prohibited by the provisions of this Indenture, except as permitted
by Section 901(4)).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be
provided in or pursuant to the Board Resolution referred to above and
(subject to Section 303) set forth, or determined in the manner provided,
in the Officer's Certificate referred to above or in any such indenture
supplemental hereto. All Securities of any one series need not be issued
at the same time. Unless otherwise provided, Securities within a single
series may have different terms and a series may be reopened, without the
consent of the Holders, for issuance of additional Securities of such
series.
If any of the terms of the series are established by action
taken by or pursuant to one or more Board Resolutions, a copy of an
appropriate record of such action(s) shall be certified by the Secretary
or any Assistant Secretary of the Company and delivered to the Trustee at
or prior to the delivery of the Officer's Certificate setting forth the
terms of the Securities of such series.
SECTION 302. Denominations.
Unless other denominations and amounts shall be fixed from time
to time by or pursuant to one or more Board Resolutions, the Securities of
each series shall be issuable in registered form without coupons in such
denominations as shall be specified as contemplated by Section 301. In
the absence of any contrary provisions with respect to the Securities of
any series pursuant to Section 301, the Securities of such series shall be
issuable in denominations of $1,000 and any integral multiple of $1,000.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President, any of its Vice Presidents, the
Treasurer or any Assistant Treasurer and attested by its Secretary or any
of its Assistant Secretaries. The signature of any of these officers on
the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who, at the time such manual or facsimile signatures were
affixed to such Securities, were properly serving as such officers of the
Company shall bind the Company, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to the authentication
and delivery of such Securities or did not hold such offices at the date
of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any
series executed by the Company to the Trustee for authentication, together
with a Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with the Company Order shall
authenticate and deliver such Securities as provided in this Indenture.
If the form or terms of the Securities of the series have been established
in or pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to
Section 601) shall be fully protected in relying upon,
(a) a copy of any Board Resolution;
(b) an executed supplemental indenture, if any;
(c) an Officer's Certificate; and
(d) an Opinion of Counsel stating:
(1) if the form of such Securities has been established by
or pursuant to one or more Board Resolutions as permitted by
Section 201, that such form has been established in conformity
with the provisions of this Indenture;
(2) if the terms of such Securities have been established
by or pursuant to one or more Board Resolutions as permitted by
Section 301, that such terms have been established in conformity
with the provisions of this Indenture; and
(3) that such Securities have been duly authorized and,
when executed, authenticated, issued and delivered in accordance
with the terms of this Indenture, and assuming due
authentication thereof by the Trustee, and when such Securities
are delivered and paid for by the purchaser thereof, will
constitute valid and legally binding obligations of the Company
enforceable against the Company in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent conveyance or
transfer, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and to
general equity principles; provided, however, that such Opinion
of Counsel need express no opinion as to whether a court in the
United States would render a money judgment in a currency other
than that of the United States and the counsel rendering such
Opinion of Counsel shall be entitled to assume for purposes of
such Opinion of Counsel that the internal laws of any state
other than Wisconsin are the same as the internal laws of
Wisconsin.
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 or
immunities under such Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the
preceding paragraph, if all Securities of any series are not to be
originally issued at one time, it shall not be necessary to deliver the
Officer's Certificate otherwise required pursuant to Section 301 or a
Company Order or an Opinion of Counsel otherwise required pursuant to such
preceding paragraph at or prior to the time of authentication of each
Security of such series if such documents are delivered at or prior to the
authentication upon original issuance of the first Security of such series
to be issued.
Each Security shall be dated and issued as of the date of its
authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears
on such Security a certificate of authentication substantially in the form
provided for herein executed by the Trustee or its Authenticating Agent by
manual signature, and such certificate upon any such Security shall be
conclusive evidence, and the only evidence, that such Security has been
duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any such Security shall have been authenticated and
delivered hereunder but never issued and sold by the Company, and the
Company shall deliver such Security to the Trustee for cancellation as
provided in Section 309, for all purposes of this Indenture such Security
shall be deemed never to have been authenticated and delivered hereunder
and shall never be entitled to the benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series,
the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities of that series which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in
any authorized denomination, substantially of the tenor of the definitive
Securities of that series in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by
their execution of such Securities. In the case of Securities of any
series, such temporary Securities may be in the form of Global Securities.
If temporary Securities of any series are issued, the Company
will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of
such series, the temporary Securities of such series shall be
exchangeable, subject to Section 305 hereof, for definitive Securities of
such series upon surrender of the temporary Securities of such series at
the office or agency of the Company in a Place of Payment for that series,
without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor one or
more definitive Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor. Until
so exchanged the temporary Securities of any series shall in all respects
be entitled to the same benefits under this Indenture as definitive
Securities of such series and tenor.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company may act as, or may appoint an agent or the Trustee
to act as, the depository for the safekeeping of certificated Securities,
issuing agent of the Securities and registrar for the registration of
Securities and transfers of Securities (the "Security Registrar") pursuant
to Section 301. The Company shall cause to be kept a register (the
register maintained by the Trustee, any agent or in any other office or
agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to
such reasonable regulations as it may prescribe, the Company shall provide
for the registration of Securities and transfers of Securities. Unless
the Company or another agent is designated as the Security Registrar with
respect to any series of Securities pursuant to Section 301, the Trustee
is hereby appointed "Security Registrar" of each series of Securities for
the purpose of registering Securities and transfers of Securities on such
Security Register as herein provided at the Corporate Trust Office.
Upon surrender for registration of transfer of any Security of
any series at the office or agency in a Place of Payment for that series,
the Company shall execute, and the Trustee shall authenticate and deliver,
in the name of the designated transferee or transferees, one or more new
Securities of the same series, of any authorized denominations and of a
like aggregate principal amount and tenor bearing a number not
contemporaneously outstanding. No Security to be issued upon exchange of
an Outstanding Security shall be issued in a denomination less than $1,000
unless otherwise specified pursuant to Section 301.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series, of any authorized
denomination or denominations and of a like aggregate principal amount and
denomination or tenor, upon surrender of such Securities to be exchanged
at such office or agency, and upon payment of any taxes or governmental
charges as hereinafter provided. Whenever any such Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the
exchange is entitled to receive.
All Securities of any series issued upon any registration of
transfer or exchange of Securities shall be the valid obligations of the
Company, evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Securities of the same series surrendered upon such
registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the
Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar
duly executed, by the Holder thereof or such Holder's attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer
or exchange of Securities, but the Company or the Trustee shall 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 such Securities, other than exchanges pursuant to Section 304,
906, 1107 or 1405 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of, or exchange Securities of any series during a period
beginning at the opening of business 15 days before any selection of
Securities of that series to be redeemed and ending at the close of
business on the day of the mailing of a notice of redemption of Securities
of that series selected for redemption under Section 1104; or (ii) to
register the transfer of or exchange any Security so selected for
redemption in whole or in part, except the unredeemed portion of any such
Security being redeemed in part; or (iii) to register the transfer of or
exchange any Security during a period beginning five days before the date
of Maturity with respect to such Securities and ending on such date of
Maturity.
Notwithstanding the foregoing and except as otherwise specified
or contemplated by Section 301, no Global Security shall be exchangeable
pursuant to this Section 305 or Sections 304, 906, 1107 and 1405 for
Securities registered in the name of, and no transfer of a Global Security
of any series may be registered to, any Person other than the Depositary
for such Security or its nominee unless (1) such Depositary notifies the
Company that it is unwilling or unable to continue as Depositary for such
Global Security or if the Company determines that the Depositary is unable
to continue as Depositary and the Company thereupon fails to appoint a
successor Depositary; (2) the Company executes and delivers to the Trustee
a Company Order that such Global Security shall be so exchangeable and the
transfer thereof so registerable; (3) the Company provides for such
exchange pursuant to Section 301; or (4) there shall have occurred and be
continuing an Event of Default, or an event which after notice or lapse of
time would be an Event of Default, with respect to the Securities
evidenced by such Global Security. Upon the occurrence in respect of any
Global Security of any series of any one or more of the conditions
specified in clauses (1), (2), (3) or (4) of the preceding sentence or
such other conditions as may be specified as contemplated by Section 301
for such series, such Global Security may be exchanged for Securities of
the same series registered in the names of, and the transfer of such
Global Security may be registered to, such Persons (including Persons
other than the Depositary with respect to such series and its nominees) as
such Depositary shall direct. Notwithstanding any other provisions of
this Indenture, any Security of any series authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, any
Global Security of that series shall also be a Global Security and shall
bear the legend specified in the Officer's Certificate or supplemental
indenture specified in Section 201 except for any Security of that series
authenticated and delivered in exchange for, or upon registration of
transfer of, a Global Security pursuant to the preceding sentence.
In the event that a Global Security is deposited upon issuance
with a Depositary, it will be registered in the name of the Depositary or
a nominee of the Depositary (the "Global Security Registered Owner").
Payments in respect of the principal of, premium (if any) and interest on
any Securities registered in the name of the Global Security Registered
Owner will be payable to the Global Security Registered Owner in its
capacity as the registered owner of such Global Security. The Company and
the Trustee may treat the person in whose name(s) the Securities,
including the Global Security, are registered as the owner thereof for the
purpose of receiving such payments and for any and all other purposes
whatsoever. None of the Company, the Trustee, the Security Registrar, the
Paying Agent or any agent of the Company or the Trustee will have any
responsibility or liability for (i) any aspect of the records relating to
or payments made on account of the beneficial ownership interests of the
Global Security by the Depositary or any of its participants, or for
maintaining, supervising or reviewing any records of the Depositary or any
of its participants relating to the beneficial ownership interests of the
Global Security; (ii) the payments to the beneficial owners of the Global
Security of amounts paid to the Global Security Registered Owner; or
(iii) for any other matter relating to the actions and practices of the
Depositary or any of its participants. Neither the Company nor the
Trustee will be liable for any delay by the Global Security Registered
Owner or the Depositary or any of its participants in identifying the
beneficial owners of the Securities, and the Company and the Trustee may
conclusively rely on, and will be protected in relying on, instructions
from the Global Security Registered Owner or the Depositary for all
purposes (including with respect to the registration and delivery, and the
respective principal amounts, of the Securities to be issued).
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee or the
Company, together with such security, bond or indemnity as may be required
by the Company or the Trustee to save each of them and any agent of either
of them harmless, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of the same
series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of
any Security; and (ii) such security, bond or indemnity in a form
satisfactory to both of them to save each of them and any agent of either
of them harmless, then, in the absence of notice to the Company or the
Trustee that such Security has been acquired by a bona fide purchaser, the
Company shall execute and the Trustee shall authenticate and deliver, in
lieu of any such destroyed, lost or stolen Security, a new Security of the
same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
Notwithstanding the provisions of the previous paragraphs of
this Section, in case any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, the Company in
its discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any Security under this Section, the
Company or the Trustee shall 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), if any, connected therewith.
Every new Security of any series issued pursuant to this Section
in lieu of any destroyed, lost or stolen Security of the same series shall
constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately and with any and all other
Securities of that series duly issued hereunder. A new Security shall
have such legends as are on the old Security, unless the Company provides
otherwise.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Principal and Interest; Interest Rights
Preserved.
Principal, premium (if any), and interest due on a Security at
Maturity or upon redemption or repurchase will be paid by wire transfer in
immediately available funds against presentation and surrender of the
Security by the Holder thereof at the office of the Paying Agent, but only
if appropriate wire transfer instructions have been received in writing
(or such other means as deemed acceptable by the Paying Agent) by the
Paying Agent not less than 15 days before Maturity or the Redemption Date
or Repurchase Date. In the event such instructions are not received by
such 15th day, such principal, premium (if any), and interest due will be
paid by check against such presentation and surrender.
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Security which is
payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that Security (or
one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest. All interest payments on
any Security (other than interest due at Maturity or on redemption or
repayment) will be made by mailing a check for such interest, payable to
or upon the written order of the Person entitled thereto pursuant to
Section 301, to the address of such Person as it appears on the Security
Register. Notwithstanding the foregoing, any Holder of Securities of any
series which pay interest on the same Interest Payment Date and which are
in an aggregate principal amount in excess of $10,000,000 may elect to
receive payments of interest with respect to such series (other than
interest due at Maturity or on redemption or repayment) via wire transfer
in immediately available funds to a bank in New York, New York (or other
bank approved by the Paying Agent) by making arrangements therefor in
writing (or such other means as deemed acceptable by the Paying Agent)
with the Paying Agent not later than the Regular Record Date immediately
preceding the applicable Interest Payment Date.
Any interest on any Security of any series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date
for Securities of such series (herein called "Defaulted Interest") shall
forthwith cease to be payable to the registered Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security of such
series and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal to
the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit 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 Company of such Special Record Date and, in the name and
at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class posted prepaid, to each Holder of
Securities of such series at such Holder's address as it appears in
the Security Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names
the Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following
clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which the Securities of such series in respect of which interest is
in default are listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of
or in exchange for or in lieu of any other Security shall carry the rights
to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name such Security is registered as
the owner of such Security for the purpose of receiving payment of
principal of, premium (if any), and (subject to Sections 305 and 307) any
interest on such Security and for all other purposes whatsoever, whether
or not such Security be overdue, and none of the Company, the Trustee, or
any agent of the Company or the Trustee shall be affected by notice to the
contrary.
Notwithstanding the foregoing, with respect to any Global
Security, nothing herein shall prevent the Company, the Trustee, or any
agent of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by any Depositary,
as a Holder, with respect to such Global Security or impair, as between
such Depositary and owners of beneficial interests in such Global
Security, the operation of customary practices governing the exercise of
the rights of such Depositary (or its nominee) as Holder of such Global
Security.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration
of transfer or exchange or for credit against any sinking fund payment
shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee and shall be promptly cancelled by it. The Company may at
any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired
in any manner whatsoever, and may deliver to the Trustee (or to any other
Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and
sold, and all such Securities so delivered shall be promptly cancelled by
the Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities cancelled as provided in this Section. The
Trustee is hereby directed by the Company to destroy all cancelled
Securities held by the Trustee or hold such Securities in accordance with
the Trustee's standard retention policy, and the Trustee shall provide the
Company with a certificate of a Responsible Officer certifying as to the
destruction or retention of such Securities, all in accordance with the
Trustee's customary procedures.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall
be computed on the basis of a 360-day year consisting of twelve 30-day
months. No interest will accrue with respect to the 31st day of any
month.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect with respect
to any series of Securities specified in a Company Request (except as to
any surviving rights of registration of transfer or exchange of Securities
herein expressly provided for), and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to such series of Securities
when:
(1) either
(A) all Securities of such series theretofore
authenticated and delivered (other than (i) Securities which
have been destroyed, lost or stolen and which have been replaced
or paid for as provided in Section 306; and (ii) Securities for
whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided
in Section 1003) have been delivered to the Trustee for
cancellation; or
(B) all Securities of such series not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount sufficient to pay and
discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for
principal, premium (if any), and interest to the date of such
deposit (in the case of such Securities which have become due
and payable) or to the Stated Maturity or Redemption Date, as
the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company with respect to such series of
Securities; and
(3) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture with respect to such series have been
complied with.
Notwithstanding the satisfaction and discharge of this Indenture
with respect to a series of Securities, the obligations of the Company and
the Trustee to the Holders of Securities of other series not so satisfied
and discharged, the obligations of the Company to the Trustee under
Section 607, the obligations of the Trustee to any Authenticating Agent
under Section 615, and, if money shall have been deposited with the
Trustee pursuant to subclause (B) of clause (1) of this Section, the
obligations of the Trustee under Section 402 and the last paragraph of
Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in
trust and applied by it, in accordance with the provisions of the
Securities of each series and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Persons entitled
thereto, for all sums due or to become due thereon for principal, premium
(if any), and interest.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default," wherever used herein with respect to
Securities of any series, means any one of the following events (whatever
the reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body):
(1) default in the payment of any interest upon any Security of
that series when it becomes due and payable, and continuance of that
default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, 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
due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture with respect to any
Security of that series (other than a covenant or warranty a default
in the performance of which or the breach of which is elsewhere in
this Section specifically dealt with or that has expressly been
included in this Indenture solely for the benefit of series of
Securities other than that series), and continuance of that default
or breach for a period of 30 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series a written notice
specifying the default or breach and requiring it to be remedied and
stating that the notice is a "Notice of Default" hereunder; or
(5) if an event of default as defined in any mortgage,
indenture, bonds, debentures, notes or instrument under which there
may be issued, or by which there may be secured or evidenced, any
indebtedness of the Company for money borrowed, whether such
indebtedness now exists or shall hereafter be created, shall happen
and shall result in more than $10,000,000 (or its equivalent in any
other currency) in principal amount of such indebtedness becoming or
being declared due and payable before the date on which it would
otherwise become due and payable (in which case the Company shall
give notice to the Trustee of such default as soon as is reasonably
practicable), and that acceleration shall not be rescinded or
annulled, or such indebtedness shall not have been discharged, within
a period of 10 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and
the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series a written notice specifying the
event of default and requiring the Company to cause the acceleration
to be rescinded or annulled or to cause that indebtedness to be
discharged and stating that the notice is a "Notice of Default"
hereunder; or
(6) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law; or (B) a
decree or order adjudging the Company bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the
Company under any applicable federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or
other similar official of the Company or of all or substantially all
of its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for relief
or any such other decree or order unstayed and in effect for a period
of 60 consecutive days; or
(7) the commencement by the Company of a voluntary case or
proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or of any other case
or proceeding to be adjudicated bankrupt or insolvent, or the consent
by it to the entry of a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any applicable
federal or state bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency
case or proceeding against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under any
applicable federal or state law, or the consent by it to the filing
of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or
other similar official of the Company or of all or substantially all
of its property, or the making by it of an assignment for the benefit
of creditors, or the admission by it in writing of its inability to
pay its debts generally as they become due, or the taking of
corporate action by the Company in furtherance of any such action; or
(8) any other Event of Default provided with respect to
Securities of that series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series
at the time Outstanding occurs and is continuing, then in every such case
the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities of that series may declare the
principal amount (or, if any of the Securities of that series are Original
Issue Discount Securities, such portion of the principal amount of such
Securities as may be specified in the terms thereof) of all of the
Securities of that series to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by Holders), and
upon any such declaration such principal amount (or specified amount),
plus any interest accrued on the Securities of such series to the date of
declaration, shall become immediately due and payable.
Upon payment (i) of (A) such principal amount; and (B) such
interest; and (ii) of interest on any overdue principal and overdue
interest at the rate or rates prescribed therefor in the Securities of
such series (in each case to the extent that the payment of such interest
shall be legally enforceable), all of the Company's obligations in respect
of the payment of principal of and interest on the Securities of such
series shall terminate.
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 provided in this Article, the Holders of a majority in
aggregate principal amount of the Outstanding Securities of that series,
by written notice to the Company and the Trustee, may rescind and annul
such declaration and its consequences (and the particular event on which
the declaration of acceleration is based shall no longer be grounds for a
declaration of acceleration) if both:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(A) all overdue installments of interest on all
Outstanding Securities of that series,
(B) the principal of (and premium, if any, on) any
Outstanding Securities of that series which have become due
otherwise than by such declaration of acceleration and any
interest thereon at the rate or rates prescribed therefor or in
such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor 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 non-payment of the principal (or premium, if
any) 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 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if:
(1) default is made in the payment of any installment of
interest on any Security of any series when such interest becomes due
and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security of any series at the Maturity
thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit
of the Holders of Securities of such series, the whole amount then due and
payable on such Securities for principal, premium (if any), and interest
and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal, premium (if any), and any
overdue interest, at the rate or rates prescribed therefor in such series
of 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 an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities
of such series by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether
for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, adjustment, composition or other
judicial proceeding relative to the Company (or any other obligor upon the
Securities of any series), its property or its 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 Company for the payment of overdue principal, premium (if
any), or interest) shall be entitled and empowered, by intervention in
such proceeding or otherwise, to (i) 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, premium (if any), and interest (if any) 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)
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 to make such payments to the Trustee and, in the
event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 607.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities of any series or the rights of any Holder thereof
or to authorize the Trustee to vote in respect of the claim of any Holder
in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or any of
the Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any
proceeding relating thereto, any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Securities in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of
principal, premium (if any) or interest, upon presentation of the
Securities and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To the payment of the amounts then due and unpaid for
principal of, premium (if any) and interest on the Securities in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal, premium (if any) and interest, respectively; and
THIRD: To the payment of the remainder, if any, to the Company
or any other Person or Persons entitled thereto.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that same series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that same series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to
be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of
a majority in principal amount of the Outstanding Securities of that
same 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 of such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of, premium (if any),
and (subject to Section 307) any interest on such Security on the Stated
Maturity or Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date or, in the case of repurchase at the
option of the Holder, on the Repurchase 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 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has
been discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every such case,
subject to any determination in such proceeding, the Company, the Trustee
and the Holders shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had
been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder,
or otherwise, shall not prevent the concurrent assertion or employment of
any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of
Securities of any series to exercise any right or remedy accruing upon any
Event of Default with respect to such series of Securities shall impair
any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or
by the Holders, as the case may be.
SECTION 512. Control by Holders.
The Holders of a majority in aggregate principal amount of the
applicable 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 applicable Outstanding
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of any series may on behalf of the
Holders of all the Outstanding Securities of such series waive any past
default hereunder with respect to such series and its consequences, except
a default
(1) in the payment of the principal of, premium (if any), or
interest on any Security of such series when due (other than amounts
due and payable solely upon acceleration pursuant to Section 502)
unless theretofore paid in full and cured in accordance with the
terms of this Indenture, or
(2) in respect of a covenant or provision hereof which under
Section 902 cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder by such
Holder's acceptance of Securities 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, suffered or omitted by it as Trustee, to the
filing by any party litigant in such suit other than the Trustee 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,
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 Company, to any suit instituted by the Trustee, to any suit instituted
by any Holder, or group of Holders, holding in the aggregate more than 10%
in 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, premium (if any), or interest on any Security on or after
the Stated Maturity or Maturities expressed in such Security (or, in the
case of redemption, on or after the Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) With respect to 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 statements,
certificates or opinions furnished to the Trustee and conforming to
the requirements of this Indenture; but in the case of any such
statements, certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture.
(b) With respect to Securities of any series, in case an Event
of Default with respect to the Securities of such series has occurred and
is continuing, the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill
in their exercise, as a prudent individual would exercise or use under the
circumstances in the conduct of his or her own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent
facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it with respect to Securities of any
series in good faith in accordance with the direction of the Holders
of a majority in principal amount of the Outstanding Securities of
such series, determined as provided in and subject to Section 512,
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; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to
the provisions of this Section.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder
with respect to the Securities of any series, the Trustee shall transmit
by mail to all Holders of Securities of such series, as their names and
addresses appear in the Security Register, 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, premium (if any), or interest on any Security
of such series or in the payment of any sinking fund installment with
respect to Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the
executive committee, or a trust committee of directors or Responsible
Officers of the Trustee in good faith determines that the withholding of
such notice is in the interest of the Holders of Securities of such
series; and provided, further, that in the case of any default of the
character specified in Section 501(4) with respect to Securities of such
series, no such notice to Holders shall be given until at least 90 days
after the occurrence thereof. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Securities of such
series. Except with respect to an Event of Default pursuant to
Section 501(1), (2) or (3), the Trustee shall not be charged with
knowledge of any default or Event of Default hereunder unless the written
notice thereof shall have been given to a Responsible Officer at the
Corporate Trust Office by the Company, a Paying Agent, any Holder or an
agent of any Holder.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company
Order, and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon
an Officer's Certificate;
(d) the Trustee may consult with counsel, and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Securities of any series pursuant
to this Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses
and liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company pertaining to the
Securities, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements
of the Company, and neither the Trustee nor any Authenticating Agent
assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of
the Securities except that 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 Company of the Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Paying Agent, any Authenticating Agent, any
Security Registrar or any other agent of the Company, in its individual or
any other capacity, may become the owner or pledgee of Securities and,
subject to Sections 608 and 613, may otherwise deal with the Company with
the same rights it would have if it were not Trustee, Paying Agent,
Authenticating Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any money received by
it hereunder except as otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time such compensation
for all services rendered by it hereunder as has been agreed upon in
writing prior to the performance of such services (which compensation
shall not be limited by any provision of law in regard to the
compensation of a trustee of any express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence,
willful misconduct or bad faith on its own part, arising out of or in
connection with the acceptance or administration of the trust or
trusts hereunder, including the reasonable costs and expenses of
defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 501(6) or (7) occurs, the expenses
and the compensation for the services are intended to constitute expenses
of administration under any bankruptcy, insolvency, reorganization or
other similar law.
SECTION 608. Disqualification; Conflicting Interests.
(a) If the Trustee has or shall acquire any conflicting
interest (as defined in this Section) with respect to the Securities of
any series then, within 90 days after ascertaining that it has such
conflicting interest and if the default (as defined in this Section) to
which such conflicting interest relates has not been cured or duly waived
or otherwise eliminated before the end of such 90-day period, the Trustee
shall either eliminate such conflicting interest or, except as otherwise
provided below in this Section, resign with respect to the Securities of
that series in the manner and with the effect hereinafter specified in
this Article.
(b) In the event that the Trustee shall fail to comply with the
provisions of Subsection (a) of this Section with respect to the
Securities of any series, the Trustee shall, within 10 days after the
expiration of such 90-day period, transmit by mail to the Company and all
Holders of Securities of that series, as their names and addresses appear
in the Security Register, notice of such failure.
(c) For the purposes of this Section, the Trustee shall be
deemed to have a conflicting interest with respect to the Securities of
any series if the Securities of such series are in default (as determined
in accordance with the provisions of Section 501, but exclusive of any
period of grace or requirement of notice) and
(1) the Trustee is trustee under another indenture under which
any other securities, or certificates of interest or participation in
any securities, of the Company are outstanding or is trustee for more
than one outstanding series of securities (as defined in this
Section) under a single indenture of the Company, unless such other
indenture is a collateral trust indenture under which the only
collateral consists of Securities issued under this Indenture;
provided that there shall be excluded from the operation of this
Section other series of Securities issued under this Indenture and
any other indenture or indentures under which other securities, or
certificates of interest or participation in other securities, of the
Company are outstanding, if any such other indenture or indentures
(and all series of securities issuable thereunder) are wholly
unsecured and rank equally with the Securities of such series, and
such other indenture or indentures (and such series) are qualified
under the Trust Indenture Act, except as otherwise set forth in
Section 310(b)(1) of the Trust Indenture Act;
(2) the Trustee or any of its directors or executive officers
is an obligor upon the Securities or an underwriter for the Company;
(3) the Trustee directly or indirectly controls or is directly
or indirectly controlled by or is under direct or indirect common
control with an underwriter for the Company;
(4) the Trustee or any of its directors or executive officers
is a director, officer, partner, employee, appointee, or
representative of the Company, or of an underwriter (other than the
Trustee itself) for the Company who is currently engaged in the
business of underwriting, except that (i) one individual may be a
director and/or an executive officer of the Trustee and a director
and/or an executive officer of the Company, but may not be at the
same time an executive officer of both the Trustee and the Company;
(ii) if and so long as the number of directors of the Trustee in
office is more than nine, one additional individual may be a director
and/or an executive officer of the Trustee and a director of the
Company; and (iii) the Trustee may be designated by the Company or by
any underwriter for the Company to act in the capacity of transfer
agent, registrar, custodian, paying agent, fiscal agent, escrow agent
or depositary, or in any other similar capacity, or, subject to the
provisions of paragraph (1) of this Subsection, to act as trustee,
whether under an indenture or otherwise;
(5) 10% or more of the voting securities of the Trustee is
beneficially owned either by the Company or by any director, partner
or executive officer thereof, or 20% or more of such voting
securities is beneficially owned, collectively, by any two or more of
such persons; or 10% or more of the voting securities of the Trustee
is beneficially owned either by an underwriter for the Company or by
any director, partner or executive officer thereof, or is
beneficially owned, collectively, by any two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this Subsection defined), (i) 5% or more of the voting
securities, or 10% or more of any other class of security, of the
Company not including the Securities issued under this Indenture and
securities issued under any other indenture for which the Trustee is
also trustee, or (ii) 10% or more of any class of security of an
underwriter for the Company;
(7) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this Subsection defined), 5% or more of the voting
securities of any person who, to the knowledge of the Trustee, owns
10% or more of the voting securities of, or controls directly or
indirectly or is under direct or indirect common control with, the
Company;
(8) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this Subsection defined), 10% or more of any class of
security of any person who, to the knowledge of the Trustee, owns 50%
or more of the voting securities of the Company;
(9) the Trustee owns, on the date of default under the
Securities of such series (as determined in accordance with the
provisions of Section 501, but exclusive of any period of grace or
requirement of notice) or any anniversary of such default while such
default upon the Securities of such series remains outstanding, in
the capacity of executor, administrator, testamentary or inter vivos
trustee, guardian, committee or conservator, or in any other similar
capacity, an aggregate of 25% or more of the voting securities, or of
any class of security, of any person, the beneficial ownership of a
specified percentage of which would have constituted a conflicting
interest under paragraph (6), (7) or (8) of this Subsection. As to
any such securities of which the Trustee acquired ownership through
becoming executor, administrator or testamentary trustee of an estate
which included them, the provisions of the preceding sentence shall
not apply, for a period of two years from the date of such
acquisition, to the extent that such securities included in such
estate do not exceed 25% of such voting securities or 25% of any such
class of security. Promptly after the dates of any such default upon
the Securities of such series and annually in each succeeding year
that the Securities of such series remain in default, the Trustee
shall make a check of its holdings of such securities in any of the
above-mentioned capacities as of such date. If the Company fails to
make payment in full of the principal of, premium (if any), or
interest on any of the Securities of any series when and as the same
becomes due and payable, and such failure continues for 30 days
thereafter, the Trustee shall make a prompt check of its holdings of
such securities in any of the above-mentioned capacities as of the
date of the expiration of such 30-day period, and after such date,
notwithstanding the foregoing provisions of this paragraph, all such
securities so held by the Trustee, with sole or joint control over
such securities vested in it, shall, but only so long as such failure
shall continue, be considered as though beneficially owned by the
Trustee for the purposes of paragraphs (6), (7) and (8) of this
Subsection; or
(10) except under the circumstances described in Subsections
(1), (3), (4), (5) or (6) of Section 613(b), the Trustee shall be or
shall become a creditor of the Company.
For purposes of paragraph (1) of this Subsection, the term
"series of securities" or "series" means a series, class, or group of
securities issuable under an indenture pursuant to whose terms holders of
one such series may vote to direct the indenture trustee, or otherwise
take action pursuant to a vote of such holders, separately from holders of
another such series; provided that "series of securities" or "series"
shall not include any series of securities issuable under an indenture if
all such series rank equally and are wholly unsecured.
The specification of percentages in paragraphs (5) to (9),
inclusive, of this Subsection shall not be construed as indicating that
the ownership of such percentages of the securities of a person is or is
not necessary or sufficient to constitute direct or indirect control for
the purposes of paragraphs (3) or (7) of this Subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of this
Subsection only, (i) the terms "security" and "securities" shall include
only such securities as are generally known as corporate securities, but
shall not include any note or other evidence of indebtedness issued to
evidence an obligation to repay moneys lent to a person by one or more
banks, trust companies or banking firms, or any certificate of interest or
participation in any such note or evidence of indebtedness; (ii) an
obligation shall be deemed to be "in default" when a default in payment of
principal shall have continued for 30 days or more and shall not have been
cured; and (iii) the Trustee shall not be deemed to be the owner or holder
of (A) any security which it holds as collateral security, as trustee or
otherwise, for an obligation which is not in default as defined in clause
(ii) above, or (B) any security which it holds as collateral security
under this Indenture, irrespective of any default hereunder, or (C) any
security which it holds as agent for collection, or as custodian, escrow
agent or depositary, or in any similar representative capacity.
(d) For the purposes of this Section:
(1) The term "underwriter," when used with reference to the
Company, means every person who, within one year prior to the time as
of which the determination is made, has purchased from the Company
with a view to, or has offered or sold for the Company in connection
with, the distribution of any security of the Company outstanding at
such time, or has participated or has had a direct or indirect
participation in any such undertaking, or has participated or has had
a participation in the direct or indirect underwriting of any such
undertaking, but such term shall not include a person whose interest
was limited to a commission from an underwriter or dealer not in
excess of the usual and customary distributors' or sellers'
commission.
(2) The term "director" means any director of a corporation or
any individual performing similar functions with respect to any
organization, whether incorporated or unincorporated.
(3) The term "person" means an individual, a corporation, a
partnership, an association, a joint-stock company, a trust, an
unincorporated organization or a government or political subdivision
thereof. As used in this paragraph, the term "trust" shall include
only a trust where the interest or interests of the beneficiary or
beneficiaries are evidenced by a security.
(4) The term "voting security" means any security presently
entitling the owner or holder thereof to vote in the direction or
management of the affairs of a person, or any security issued under
or pursuant to any trust, agreement or arrangement whereby a trustee
or trustees or agent or agents for the owner or holder of such
security are currently entitled to vote in the direction or
management of the affairs of a person.
(5) The term "Company" means any obligor upon the Securities of
any series.
(6) The term "executive officer" means the president, every
vice president, every trust officer, the cashier, the secretary and
the treasurer of a corporation, and any individual customarily
performing similar functions with respect to any organization whether
incorporated or unincorporated, but shall not include the chairman of
the board of directors.
(e) The percentages of voting securities and other securities
specified in this Section shall be calculated in accordance with the
following provisions:
(1) A specified percentage of the voting securities of the
Trustee, the Company or any other person referred to in this Section
(each of whom is referred to as a "person" in this paragraph) means
such amount of the outstanding voting securities of such person as
entitles the holder or holders thereof to cast such specified
percentage of the aggregate votes which the holders of all the
outstanding voting securities of such person are entitled to cast in
the direction or management of the affairs of such person.
(2) A specified percentage of a class of securities of a person
means such percentage of the aggregate amount of securities of the
class outstanding.
(3) The term "amount," when used in regard to securities, means
the principal amount if relating to evidences of indebtedness, the
number of shares if relating to capital shares and the number of
units if relating to any other kind of security.
(4) The term "outstanding" means issued and not held by or for
the account of the issuer. The following securities shall not be
deemed outstanding within the meaning of this definition:
(i) securities of an issuer held in a sinking fund
relating to securities of the issuer of the same class;
(ii) securities of an issuer held in a sinking fund
relating to another class of securities of the issuer, if the
obligation evidenced by such other class of securities is not in
default as to principal or interest or otherwise;
(iii) securities pledged by the issuer thereof as
security for an obligation of the issuer not in default as to
principal or interest or otherwise; and
(iv) securities held in escrow if placed in escrow by the
issuer thereof;
provided, however, that any voting securities of an issuer shall be deemed
outstanding if any person other than the issuer is entitled to exercise
voting rights thereof.
(5) A security shall be deemed to be of the same class as
another security if both securities confer upon the holder or holders
thereof substantially the same rights and privileges; provided,
however, that, in the case of secured evidences of indebtedness, all
of which are issued under a single indenture, differences in the
interest rates or maturity dates of various series thereof shall not
be deemed sufficient to constitute such series different classes and
provided, further, that, in the case of unsecured evidences of
indebtedness, differences in the interest rates or maturity dates
thereof shall not be deemed sufficient to constitute them securities
of different classes, whether or not they are issued under a single
indenture.
(f) Except in the case of a default in the payment of the
principal of, premium (if any) or interest on any of the Securities of any
series, or in the payment of any sinking fund installment, the Trustee
shall not be required to resign as provided by this Section if the Trustee
shall have sustained the burden of proving, on application to the
Commission, and after opportunity for hearing thereon, that (i) a default
hereunder may be cured or waived during a reasonable period and under the
procedures described in such application and (ii) a stay of the Trustee's
duty to resign will not be inconsistent with the interest of the Holders
of the Securities of such series. The filing of such an application shall
automatically stay the performance of the duty to resign until the
Commission orders otherwise.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United
States or of any state of the United States which is authorized under such
laws to exercise corporate trust powers and is subject to supervision or
examination by federal or state authority. Such Trustee shall have a
combined capital and surplus of at least $10,000,000. If such Person
publishes reports of condition at least annually, pursuant to law or to
the requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. Neither the Company nor any
Person directly or indirectly controlling, controlled by, or under common
control with the Company shall serve as Trustee hereunder. If at any time
the Trustee shall cease to be eligible in accordance with the provisions
of this Section, it shall resign immediately in the manner and with the
effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee in accordance
with the applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving not less than 30 days prior
written notice to the Company specifying its intention to resign, the
reason therefor, and specifying the date on which the resignation shall
become effective. Notwithstanding the foregoing, unless the reason for
such resignation is a conflict pursuant to Section 608, then such Trustee
must resign with respect to all Securities if the Trustee resigns with
respect to any series of Securities. If the instrument of acceptance by a
successor Trustee required by Section 611 shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of
such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by the Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series, delivered
to the Trustee and to the Company.
(d) The Trustee may be removed with respect to any or all
series of Securities at any time upon 30 days notice by the filing with it
of an instrument in writing signed on behalf of the Company by a duly
authorized officer of the Company specifying such removal and the date on
which it is to become effective.
(e) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been
a bona fide Holder of a Security of any series for at least six
months, or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the
Company or by any such Holder who has been a bona fide Holder of a
Security of any series at least six months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge
or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a Board
Resolution may remove the Trustee with respect to any series of Securities
or all Securities, or (ii) subject to Section 514, any Holder who has been
a bona fide Holder of a Security of any series for at least six months
may, on behalf of himself or herself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the
Trustee with respect to such series of Securities or all Securities and
the appointment of a successor Trustee or Trustees.
(f) 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 Company,
by or pursuant to a Board Resolution, shall appoint a successor Trustee or
Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect
to the Securities of one or more or all of such series and that at any
time there shall be only one Trustee with respect to the Securities of any
particular series) and shall comply with the applicable requirements of
Section 611. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of
such series delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of
such appointment in accordance with the applicable requirements of
Section 611, become the successor Trustee with respect to the Securities
of such series and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Company or
the Holders and accepted appointment in the manner required by
Section 611, any Holder who has been a bona fide Holder of a Security of
such series for at least six months may, on behalf of himself or herself
and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to
the Securities of such series.
(g) The Company shall give or cause to be given notice of each
resignation and each removal of the Trustee with respect to the Securities
of any series and each appointment of a successor Trustee with respect to
the Securities of any series to all Holders of Securities of such series
in the manner provided in Section 106. Each notice shall include the name
of the successor Trustee with respect to the Securities of such series and
the address of its Corporate Trust Office.
SECTION 611. 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 Company and to the retiring
Trustee an instrument accepting such appointment and thereupon the
resignation or removal of the retiring Trustee shall become effective and
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the
retiring Trustee; but, on the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute
and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held
by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to
the Securities of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall accept
such appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates, (2) if the
retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series as to which
the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such Trustee;
and upon the execution and delivery of such supplemental indenture the
resignation or removal of the retiring Trustee shall become effective to
the extent provided therein and each such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments reasonably necessary for more fully
and certainly vesting in and confirming to such successor Trustee all such
rights, powers and trusts referred to in paragraph (a) or (b) of this
Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Trustee, shall be
the successor of the Trustee hereunder, provided such corporation shall be
otherwise qualified and eligible under this Article, without the execution
or filing of any paper or any further act on the part of any of the
parties hereto. In case any Securities shall have been authenticated, but
not delivered, by or on behalf of the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities. In case any Securities shall have not been
authenticated by such predecessor Trustee, any successor Trustee may
authenticate and deliver such Securities in either its own name or that of
its predecessor Trustee, with full force and effect which this Indenture
provides for the certificate of authentication of the Trustee.
SECTION 613. Preferential Collection of Claims Against Company.
(a) Subject to Subsection (b) of this Section, if the Trustee
of Securities of any series shall be, or shall become a creditor, directly
or indirectly, secured or unsecured, of the Company within three months
prior to a default upon Securities of such series, as defined in
Subsection (c) of this Section, or subsequent to such a default, then,
unless and until such default shall be cured, the Trustee shall set apart
and hold in a special account for the benefit of the Trustee individually
and the Holders of the Securities of such series:
(1) an amount equal to any and all reductions in the amount due
and owing upon any claim as such creditor in respect of principal or
interest, effected after the beginning of such three-month period and
valid as against the Company and its other creditors, except any such
reduction resulting from the receipt or disposition of any property
described in paragraph (2) of this Subsection, or from the exercise
of any right of set-off which the Trustee could have exercised if a
petition in bankruptcy had been filed by or against the Company upon
the date of such default; and
(2) all property received by the Trustee in respect of any
claim as such creditor, either as security therefor, or in
satisfaction or composition thereof, or otherwise, after the
beginning of such three-month period, or an amount equal to the
proceeds of any such property, if disposed of, subject, however, to
the rights, if any, of the Company and its other creditors in such
property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on
account of any such claim by any Person (other than the Company)
who is liable thereon, and (ii) the proceeds of the bona fide
sale of any such claim by the Trustee to a third person, and
(iii) distributions made in cash, securities or other property
in respect of claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to
the federal Bankruptcy Code (as defined herein) or any other
applicable federal or state law;
(B) to realize, for its own account, upon any property
held by it as security for any such claim, if such property was
so held prior to the beginning of such three-month period;
(C) to realize, for its own account, but only to the
extent of the claim hereinafter mentioned, upon any property
held by it as security for any such claim, if such claim was
created after the beginning of such three-month period and such
property was received as security therefor simultaneously with
the creation thereof, and if the Trustee shall sustain the
burden of proving that at the time such property was so received
the Trustee had no reasonable cause to believe that a default as
defined in Subsection (c) of this Section would occur within
three months; or
(D) to receive payment on any claim referred to in
paragraph (B) or (C), against the release of any property held
as security for such claim as provided in paragraph (B) or (C),
as the case may be, to the extent of the fair value of such
property.
For the purposes of paragraphs (B), (C) and (D), property
substituted after the beginning of such three-month period for property
held as security at the time of such substitution shall, to the extent of
the fair value of the property released, have the same status as the
property released, and, to the extent that any claim referred to in any of
such paragraphs is created in renewal of or in substitution for or for the
purpose of repaying or refunding any pre-existing claim of the Trustee as
such creditor, such claim shall have the same status as such pre-existing
claim.
If the Trustee shall be required to account, the funds and
property held in such special account and the proceeds thereof shall be
apportioned between the Trustee and the Holders of the Securities of such
series in such manner that the Trustee and such Holders realize, as a
result of payments from such special account and payments of dividends on
claims filed against the Company in bankruptcy or receivership or in
proceedings for reorganization pursuant to the federal Bankruptcy Code or
any other applicable federal or state law, the same percentage of their
respective claims, figured before crediting to the claim of the Trustee
anything on account of the receipt by it from the Company of the funds and
property in such special account and before crediting to the respective
claims of the Trustee and such Holders dividends on claims filed against
the Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the federal Bankruptcy Code or any other
applicable federal or state law, but after crediting thereon receipts on
account of the indebtedness represented by their respective claims from
all sources other than from such dividends and from the funds and property
so held in such special account. As used in this paragraph, with respect
to any claim, the term "dividends" shall include any distribution with
respect to such claim, in bankruptcy or receivership or proceedings for
reorganization pursuant to the federal Bankruptcy Code or any other
applicable federal or state law, whether such distribution is made in
cash, securities, or other property, but shall not include any such
distribution with respect to the secured portion, if any, of such claim.
The court in which such bankruptcy, receivership, or proceeding for
reorganization is pending shall have jurisdiction (i) to apportion between
the Trustee and such Holders, in accordance with the provisions of this
paragraph, the funds and property held in such special account and
proceeds thereof, or (ii) in lieu of such apportionment, in whole or in
part, to give to the provisions of this paragraph due consideration in
determining the fairness of the distributions to be made to the Trustee
and such Holders with respect to their respective claims, in which event
it shall not be necessary to liquidate or to appraise the value of any
securities or other property held in such special account or as security
for any such claim, or to make a specific allocation of such distributions
as between the secured and unsecured portions of such claims, or
otherwise, to apply the provisions of this paragraph as a mathematical
formula.
Any Trustee which has resigned or been removed after the
beginning of such three-month period shall be subject to the provisions of
this Subsection as though such resignation or removal had not occurred.
If any Trustee has resigned or been removed prior to the beginning of such
three-month period, it shall be subject to the provisions of this
Subsection if and only if the following conditions exist:
(i) the receipt of property or reduction of claim, which would
have given rise to the obligation to account if such Trustee had
continued as Trustee, occurred after the beginning of such three-
month period; and
(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
(b) There shall be excluded from the operation of Subsection
(a) of this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one
year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court
of competent jurisdiction, or by this Indenture, for the purpose of
preserving any property which shall at any time be subject to the
lien of this Indenture or of discharging tax liens or other prior
liens or encumbrances thereon, if notice of such advances and of the
circumstances surrounding the making thereof is given to the Holders
of Securities of the appropriate series at the time and in the manner
provided in this Indenture;
(3) disbursements made in the ordinary course of business in
the capacity of trustee under an indenture, transfer agent,
registrar, custodian, paying agent, fiscal agent or depositary, or
other similar capacity;
(4) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in cash transactions as defined in Subsection (c) of
this Section;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Company; or
(6) the acquisition, ownership, acceptance or negotiation of
any drafts, bills of exchange, acceptances or obligations which fall
within the classification of self-liquidating paper as defined in
Subsection (c) of this Section.
(c) For the purposes of this Section only:
(1) The term "default" means any failure to make payment in
full of the principal of or interest on any of the Securities of such
series or upon the other indenture securities when and as such
principal or interest becomes due and payable.
(2) The term "cash transaction" means any transaction in which
full payment for goods or securities sold is made within seven days
after delivery of the goods or securities in currency or in checks or
other orders drawn upon banks or bankers and payable upon demand.
(3) The term "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated
or incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares
or merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise
previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the making,
drawing, negotiating, or incurring of the draft, bill of exchange,
acceptance or obligation.
(4) The term "Company" means any obligor upon the Securities.
(5) The term "federal Bankruptcy Code" means the Bankruptcy
Code, Title 11 of the United States Code.
SECTION 614. Compliance with Tax Laws.
The Trustee hereby agrees to comply with all U.S. federal income
tax information reporting and withholding requirements with respect to
payments of premium (if any) and interest on the Securities, whether
acting as Trustee, Security Registrar, Paying Agent or otherwise with
respect to the Securities.
SECTION 615. 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 original
issue and upon exchange, registration of transfer or partial redemption
thereof or pursuant to Section 306, and Securities so authenticated shall
be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder.
Any such appointment shall be evidenced by an instrument in writing signed
by a Responsible Officer of the Trustee, a copy of which instrument shall
be promptly furnished to the Company. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee
or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by
an Authenticating Agent and a certificate of authentication executed on
behalf of the Trustee by an Authenticating Agent. Each Authenticating
Agent shall be acceptable to the Company and shall at all times be a
corporation organized and doing business under the laws of the United
States of America, any state thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $10,000,000 and subject to
supervision or examination by federal or state authority. If such
Authenticating Agent publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to
the corporate agency or corporate trust business of an Authenticating
Agent, shall continue to be an Authenticating Agent, provided such
corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the
Trustee or the Authenticating Agent.
An Authenticating Agent for any series of securities may resign
at any time by giving written notice thereof to the Trustee and to the
Company. The Trustee may at any time terminate the agency of an
Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such Securities may appoint a
successor Authenticating Agent which shall be acceptable to the Company
and shall mail written notice of such appointment by first-class mail,
postage prepaid, to all Holders of Securities of the series with respect
to which such Authenticating Agent will serve, as their names and
addresses appear in the Security Register. 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 effects as if originally named as an Authenticating Agent. No
successor Authenticating Agent shall be appointed unless eligible under
the provisions of this Section.
The Trustee agrees to pay each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to
the provisions of Section 607.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in substantially the following
form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
FIRSTAR TRUST COMPANY
as Trustee
By: __________________________________
As Authenticating Agent
By: __________________________________
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each Regular
Record Date (or, if there is no Regular Record Date relating to a series,
semi-annually on the dates set forth in or pursuant to the Board
Resolution or supplemental indenture with respect to such series), a list,
in such form as the Trustee may reasonably require, of the names and
addresses of the Holders of Securities of such series as of such date, and
(b) at such other times as the Trustee may reasonably request
in writing, within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more than 15
days prior to the time such list is furnished,
provided, however, that so long as the Trustee shall be the Security
Registrar, no such list need be furnished.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in
the most recent list furnished to the Trustee as provided in Section 701
and the names and addresses of Holders received by the Trustee in its
capacity as Security Registrar. The Trustee may destroy any list
furnished to it as provided in Section 701 upon receipt of a new list so
furnished.
(b) If three or more Holders (herein referred to as
"applicants") apply in writing to the Trustee and furnish to the Trustee
reasonable proof that each such applicant has owned a Security for a
period of at least six months preceding the date of such application, and
such application states that the applicants desire to communicate with
other Holders with respect to their rights under this Indenture or under
the Securities and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee
shall, within five business days after the receipt of such application, at
its election, either
(i) afford such applicants access to the information preserved
at the time by the Trustee in accordance with Section 702(a), or
(ii) inform such applicants as to the approximate number of
Holders whose names and addresses appear in the information preserved
at the time by the Trustee in accordance with Section 702(a), and as
to the approximate cost of mailing to such Holders the form of proxy
or other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access
to such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder whose name and address appear in the
information preserved at the time by the Trustee in accordance with
Section 702(a) a copy of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to
the Trustee of the material to be mailed and of payment, or provision for
the payment, of the reasonable expenses of mailing, unless within five
days after such tender the Trustee shall mail to such applicants, together
with a copy of the material to be mailed, a written statement to the
effect that, in the opinion of the Trustee, such mailing would be contrary
to the best interest of the Holders or would be in violation of applicable
law. Such written statement shall specify the basis of such opinion.
(c) Every Holder, by receiving and holding Securities, agrees
with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the
Holders in accordance with Section 702(b), regardless of the source from
which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing pursuant to a request made under
Section 702(b).
(d) The Company agrees with the Trustee that the Trustee shall
not be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders in accordance
with Section 7.02(b), 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 Section 7.02(b).
SECTION 703. Reports by Trustee.
(a) The term "reporting date," as used in this Section, means
April 15. Within 60 days after the reporting date in each year (beginning
with April 15, 1996), the Trustee shall transmit by mail to all Holders of
Securities, as their names and addresses appear in the Security Register,
a brief report dated as of such date in accordance with, and only if
required under, Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall transmit by mail to all Holders of
Securities, as their names and addresses appear in the Security Register,
a brief report with respect to the matters specified in, and within the
times required under, Section 313(b) of the Trust Indenture Act.
(c) A copy of each such report shall, at the time of such
transmission to Holders of Securities, be filed by the Trustee with the
Commission, each stock exchange upon which the Securities are listed, and
also with the Company. The Company will notify the Trustee if and when
Securities of any series are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company will:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may
from time to time by rules and regulations prescribe) which the
Company may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934;
or, if the Company is not required to file information, documents or
reports pursuant to either of said Sections, then it will file with
the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of
the supplementary and periodic information, documents and reports
which may be required pursuant to Section 13 of the 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 Company with the conditions and
covenants of this Indenture as may be required from time to time by
such rules and regulations;
(3) transmit by mail to all Holders, as their names and
addresses appear in the Security Register, within 30 days after the
filing thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section as may be required by rules
and regulations prescribed from time to time by the Commission; and
(4) deliver to the Trustee, forthwith upon becoming aware of
any default or defaults in the performance of any covenant, agreement
or condition contained in this Indenture, and in any event not less
often than annually, an Officer's Certificate specifying such default
or defaults, or the extent of the Company's compliance with all
conditions and covenants hereof (which compliance shall be determined
without regard to any period of grace or notice provided hereunder),
as the case may be.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 801. Consolidations and Mergers of Company and Conveyances
Permitted Subject to Certain Conditions.
The Company shall not consolidate with, or sell or convey all or
substantially all of its assets to, or merge with or into any other person
or entity unless (i) either the Company shall be the continuing
corporation, or the successor shall be a corporation organized and
existing under the laws of the United States of America or a state thereof
and the successor corporation shall expressly assume the due and punctual
payment of the principal of and interest on all the Securities and the due
and punctual performance and observance of all of the covenants and
conditions of the Company under this Indenture by supplemental indenture
satisfactory to the Trustee, executed and delivered to the Trustee by such
corporation; (ii) the Company or the successor corporation, as the case
may be, shall not, immediately after the merger or consolidation, or the
sale or conveyance, be in default in the performance of any such covenant
or condition; and (iii) after giving effect to the transaction, no event
which, after notice or lapse of time, would become an Event of Default
shall have occurred or be continuing.
SECTION 802. Rights and Duties of Successor Corporation.
In case of any such consolidation, merger, sale or conveyance
and upon any such assumption by the successor corporation, such successor
corporation shall succeed to and be substituted for the Company, with the
same effect as if it had been named herein as the party of the first part,
and the predecessor corporation shall be relieved of any further
obligation under this Indenture and the Securities. Such successor
corporation thereupon may cause to be signed, and may issue either in its
own name or in the name of the Company, any or all of the Securities
issuable hereunder which theretofore shall not have been signed by the
Company and delivered to the Trustee; and, upon the order of such
successor corporation, instead of the Company, 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
Company to the Trustee for authentication, and any Securities which such
successor corporation thereafter shall cause to be signed and delivered to
the Trustee for that purpose. All the Securities of any series so issued
shall in all respects have the same legal rank and benefit under this
Indenture as the Securities of that series theretofore or thereafter
issued in accordance with the terms of this Indenture as though all of
such Securities had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale 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 803. Officer's Certificate and Opinion of Counsel.
The Trustee, subject to the provisions of Sections 601 and 603,
may receive an Officer's Certificate and an Opinion of Counsel as
conclusive evidence that any such consolidation, merger, sale or
conveyance, and any such assumption, complies with the provisions of this
Article Eight.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized
by or pursuant to one or more Board Resolutions, 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 and the Company,
for any of the following purposes:
(1) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the
Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for
the benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(3) to add to or change any of the provisions of this Indenture
to such extent as shall be necessary to permit or facilitate the
issuance of Securities of any series in bearer form, registrable or
not registrable as to principal, and with or without interest
coupons, or to permit or facilitate the issuance of Securities of any
series in uncertificated form; or
(4) to add to, change or eliminate any of the provisions of
this Indenture in respect of one or more series of Securities;
provided, however, that any such addition, change or elimination
shall either (i) not adversely affect the rights of the Holders of
Outstanding Securities of any series in any material respect, or
(ii) not apply to any Outstanding Securities of any series created
prior to the execution of such supplemental indenture where such
addition, change or elimination has an adverse effect on the rights
of the Holders of such Outstanding Securities in any material
respect; or
(5) to secure the Securities of any series; or
(6) to establish the form or terms of Securities of any series
as permitted by Sections 201 and 301; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of
one or more series and to add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611(b); or
(8) to cure any ambiguity or defect in and to correct or
supplement any provision in this Indenture or any Security of any
series that may be inconsistent with any other provision in this
Indenture or in the Security of such series, or to make any other
provisions with respect to matters or questions arising under this
Indenture; provided, however, that any such action pursuant to this
clause (8) shall not adversely affect the rights of the Holders of
Outstanding Securities of any series in any material respect; or
(9) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect
qualification of this Indenture under the Trust Indenture Act, or
under any similar federal statute hereafter enacted, and to add to
this Indenture such other provisions as may be expressly permitted by
the Trust Indenture Act; or
(10) to amend or supplement the restrictions on and procedures
for resale, attempted resale and other transfers of any series of
Securities (whether or not Outstanding) to reflect any change in
applicable law or regulation (or interpretation thereof) or in
practices relating to the resale or transfer of Restricted Securities
generally.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Securities of all series at the time
Outstanding affected by such supplemental indenture (voting as one class),
by the Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by or pursuant to a Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders of Securities of such series under this
Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Security of each
series affected thereby,
(1) extend the Stated Maturity of the principal of, or any
installment or principal of or interest on, any such Security, or
reduce the principal amount thereof or the rate of interest thereon
or premium (if any), payable upon the redemption thereof, or reduce
the obligation of the Company to pay principal amounts, 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 502, or change any Place of
Payment where, or the coin or currency in which, any such Security of
such series or any principal, premium (if any), or interest thereon
is payable or impair the right to institute suit for the enforcement
of any such payment on or after the due date thereof (or, in the case
of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any modifications or amendments to this Indenture or to
the terms and conditions of that series of Securities, or to approve
any supplemental indenture relating to such series, or the consent of
whose Holders is required for any waiver with respect to such series
(of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 513
or Section 1007, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes
in the references to the "Trustee" and concomitant changes in this
Section and Section 1007, or the deletion of this proviso, in
accordance with the requirements of Sections 611(b) and 901(7).
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 previously
created series of Securities, or which modifies the rights of the Holders
of Securities of such previously created 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 such previously
created series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
SECTION 903. Execution of Supplemental Indentures; Opinions.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully protected
in relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not (except to the extent required in the case of a
supplemental indenture entered into under Section 901(9)) be obligated to,
enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Except as provided in this Article, upon the execution of any
supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall
form a part of this Indenture for all purposes; and every Holder of
Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act if at that
date the Indenture shall then be qualified under the Trust Indenture Act.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and
shall if required by the Company, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If
the Company shall so determine, new Securities of any series so modified
as to conform, in the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series
of Securities that it will duly and punctually pay the principal of,
premium (if any) and interest on the Securities of that series in
accordance with the terms of the Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any
series of Securities an office or agency where Securities of that series
may be presented or surrendered for payment, where Securities of that
series may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. The Company
will give prompt written notice to the Trustee of the location, and any
change in the location, of each such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate
Trust Office of the Trustee, and the Company hereby appoints the Trustee
as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may
be presented or surrendered for any or all such purposes and may from time
to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of Payment for
Securities of any series for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of
any change in the location of any such other office or agency.
SECTION 1003. Money for Securities Payments To Be Held in Trust.
If the Company shall at any time act as its own Paying Agent
with respect to any series of any Securities, it will, on or before each
due date of the principal of, premium (if any), or interest on any of the
Securities of that series, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay the principal,
premium (if any), or interest so becoming due until such sums shall be
paid to such Persons or otherwise disposed of as herein provided, and will
promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities, it will, on or before each due date of the
principal of, premium (if any), or interest on any Securities of that
series, deposit with a Paying Agent a sum sufficient to pay such amount,
such sum to be held as provided in the following paragraph, and (unless
such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent 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
(i) hold all sums held by it for the payment of the principal of, premium
(if any), or interest on any Securities of that series in trust for the
benefit of the Holders of such Securities of that series until such sums
shall be paid to such Holders or otherwise disposed of as herein provided;
(ii) give the Trustee notice of any default by the Company (or any other
obligor upon any Securities of that series) in the making of any payment
of principal, premium (if any), or interest; and (iii) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent
for payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose,
pay, or direct the Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by
the Company or such Paying Agent; and upon such payment by any Paying
Agent to the Trustee, the Company and such Paying Agent shall be released
from all further liability with respect to such sums.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of,
premium (if any), or interest on any Security of any series and remaining
unclaimed for one year after such principal, premium (if any), or interest
has become due and payable shall be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such
trust; and the Holder of such Security shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such
deposited money, and all liability of the Company as trustee thereof,
shall thereupon cease.
SECTION 1004. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company ending after the date hereof, a
statement signed by the Chairman of the Board, the President, any Vice
President, the Treasurer, or any Assistant Treasurer of the Company
stating that in the course of the performance by the signer of such
officer's duties as an officer of the Company such officer would normally
obtain knowledge of any default by the Company in the performance or
fulfillment of any covenant, agreement or condition contained in this
Indenture, and stating whether such officer has obtained knowledge of any
such default, and, if so, specifying each such default of which the signer
has knowledge and the nature thereof.
SECTION 1005. Limitation on Liens.
The Company will not itself, and will not permit any Restricted
Subsidiary to, incur, issue, assume or guarantee any notes, bonds,
debentures or other similar evidences of indebtedness for borrowed money
(notes, bonds, debentures or other similar evidences of indebtedness for
borrowed money being hereinafter called "Debt") secured by pledge of, or
mortgage or other lien on, any Principal Property of the Company or any
Restricted Subsidiary, or any shares of stock or Debt of any Restricted
Subsidiary (pledges, mortgages and other liens being hereinafter called
"Mortgage" or "Mortgages"), without effectively providing that the
Securities (together with, if the Company shall so determine, any other
Debt of the Company or that Restricted Subsidiary then existing or
thereafter created that is not subordinate to such Securities) shall be
secured equally and ratably with (or prior to) such secured Debt (for the
purpose of providing such equal and ratable security the principal amount
of such Securities shall mean and shall not be less than that principal
amount which could be declared to be due and payable pursuant to
Section 502 on the date of the making of such effective provision and the
extent of such equal and ratable security shall be adjusted, to the extent
permitted by law, as and when that principal amount changes over time
pursuant to Section 502 and any other provision hereof), so long as such
secured Debt shall be so secured, unless, after giving effect thereto, the
aggregate amount of all such secured Debt plus all Attributable Debt of
the Company and its Restricted Subsidiaries in respect of Sale and
Leaseback Transactions (other than such Sale and Leaseback Transactions
the proceeds of which are applied to reduce indebtedness under clause (2)
of Section 1006) would not exceed 10% of Consolidated Net Tangible Assets;
provided, however, that this Section shall not apply to, and there shall
be excluded from secured Debt in any computation under this Section, Debt
secured by:
(1) Mortgages existing as of the date of this Indenture;
(2) Mortgages on property of, or on any shares of stock (or
other interest in) or Debt of, any corporation, association,
partnership or other entity existing at the time such entity becomes
a Restricted Subsidiary or an obligor under this Indenture;
(3) Mortgages in favor of the Company or any Restricted
Subsidiary by a Restricted Subsidiary;
(4) Mortgages (including the assignment of moneys due or to
become due thereon) in favor of the United States of America or any
state thereof, or any agency, department or other instrumentality
thereof, to secure progress, advance or other payments pursuant to
any contract or provision of any statute;
(5) Mortgages on property, shares of stock or Debt existing at
the time of acquisition thereof (including acquisition through merger
or consolidation) or to secure the payment of all or any part of the
purchase price, construction cost, or development cost thereof or to
secure any Debt incurred prior to, at the time of, or within 360 days
after, the acquisition of such property or shares or Debts or the
completion of any such construction or development for the purpose of
financing all or any part of the purchase price or construction cost
or development cost thereof;
(6) Mortgages to secure the performance of statutory
obligations, surety or appeal bonds, performance bonds or other
obligations of a like nature incurred in the ordinary course of
business;
(7) any extension, renewal or refinancing (or successive
extensions, renewals or refinancings), as a whole or in part, of any
Mortgage referred to in the foregoing clauses (1) to (6), inclusive;
provided, however, that (i) such extension, renewal or refinancing
Mortgage shall be limited to all or part of the same property, shares
of stock or Debt that secured the Mortgage extended, renewed or
refinanced (plus improvements on such property) and (ii) the
principal amount of Debt secured by such Mortgage at such time is not
increased; and
(8) Mortgages for taxes, assessments or governmental charges or
claims that are not yet delinquent or that are being contested in
good faith by appropriate proceedings promptly instituted and
diligently concluded; provided, that any reserve or other appropriate
provision as shall be required in conformity with GAAP shall have
been made therefor.
SECTION 1006. Limitation on Sale and Leaseback Transactions.
The Company will not itself, and it will not permit any
Restricted Subsidiary to, enter into any arrangement with any bank,
insurance company or other lender or investor (not including the Company
or any Restricted Subsidiary) or to which any such lender or investor is a
party, providing for the leasing by the Company or any such Restricted
Subsidiary for a period, including renewals, in excess of three years of
any Principal Property that has been or is to be sold or transferred, more
than 360 days after the completion of construction and commencement of
full operation thereof, by the Company or any such Restricted Subsidiary
to such lender or investor or to any Person to whom funds have been or are
to be advanced by such lender or investor on the security of such
Principal Property (herein referred to as a "Sale and Leaseback
Transaction") unless either:
(1) the Company or such Restricted Subsidiary could create Debt
secured by a Mortgage pursuant to Section 1005 on the Principal
Property to be leased back in an amount equal to the Attributable
Debt with respect to such Sale and Leaseback Transaction without
equally and ratably securing the Securities, or
(2) the Company or such Restricted Subsidiary within 120 days
after the sale or transfer shall have been made by the Company or by
any such Restricted Subsidiary, applies an amount equal to the net
proceeds of the sale of the Principal Property sold and leased back
pursuant to such arrangement to the retirement of Securities or
Funded Debt of the Company or any of its Restricted Subsidiaries.
SECTION 1007. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any term, provision or condition set forth in Sections 1005 and 1006 with
respect to the Securities of any series if before or after the time for
such compliance the Holders of at least a majority in principal amount of
the Outstanding Securities of such series shall, by the Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver
shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective,
the obligations of the Company and the duties of the Trustee in respect of
any such term, provision or condition shall remain in full force and
effect.
SECTION 1008. Delivery of Certain Information.
At any time the Company is not subject to Section 13 or 15(d) of
the Securities Exchange Act of 1934, for the benefit of Holders from time
to time of any of the Securities which are not registered under the
Securities Act ("Exempt Securities"), upon request of a Holder of Exempt
Securities, the Company will furnish or cause to be furnished at its
expense Rule 144A Information to that Holder or to a prospective purchaser
of the Exempt Security designated by that Holder, as the case may be,
unless at that time (1) the Commission shall have waived such requirement
in writing or otherwise taken the position that subsection 144A(d)(4)(i)
does not apply to the Company or (2) the provision of such information
shall no longer be required by law to effect resales under Rule 144A under
the Securities Act or otherwise to effect resales without registration
under the Securities Act. As used in this Section 1008 only, "Holder"
shall include a holder of interest in a Global Security which is an Exempt
Security and prospective purchaser of an Exempt Security shall include a
prospective purchaser of an interest represented by a Global Security
which is an Exempt Security.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their terms and
(except as otherwise specified as contemplated by Section 301 for
Securities of any series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the
election of the Company of less than all the Securities of any series, the
Company shall, at least 45 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such Redemption Date, of the principal amount of
Securities of such series to be redeemed, the Redemption Price, the place
or places of payment, that payment will be made upon presentation and
surrender of such Securities, that such redemption is pursuant to the
mandatory or optional sinking fund, or both, if such be the case, that
interest, if any (or, in the case of Original Issue Discount Securities,
original issue discount) accrued to the date fixed for redemption will be
paid as specified in such notice, and that on and after that date
interest, if any, thereon or on the portions thereof to be redeemed (or,
in the case of Original Issue Discount Securities, original issue
discount) will cease to accrue. In the case of any redemption of such
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities, the Company shall furnish the
Trustee with an Officer's Certificate evidencing compliance with such
restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If fewer than all the Securities of any series are to be
redeemed (unless all of the Securities of such series issued on the same
day with the same terms are to be redeemed), the particular Securities of
such series to be redeemed shall be selected not more than 60 days prior
to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the
Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple
thereof) of the principal amount of Securities of such series of a
denomination larger than the minimum authorized denomination for
Securities of that series.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than the Trustee) 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 such Securities redeemed or to be redeemed only
in part, to the portion of the principal amount of such Securities which
has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at such
Holder's address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if fewer than all the Outstanding Securities of any series
to be redeemed, the identification (and, in the case of partial
redemption of any Securities, the principal amounts) of the
particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after
said date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the
case.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money 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 which are
to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such
date (unless the Company shall default in the payment of the Redemption
Price and accrued interest) such Securities shall cease to bear interest.
Upon surrender of any such Security for redemption in accordance with said
notice, such Security shall be paid by the Company at the Redemption
Price, together with accrued interest to the Redemption Date; provided,
however, that, unless otherwise specified as contemplated by Section 301,
installments of interest whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one
or more Predecessor Securities, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any such Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal and premium (if any)
shall, until paid, bear interest from the Redemption Date at the rate
prescribed therefor in such Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or such Holder's attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and of like tenor,
of any authorized denomination as requested by such Holder, in aggregate
principal amount equal to and in exchange for the unredeemed portion of
the principal of the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of this Article.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of a series, if such sinking
fund is established pursuant to Section 301, except as otherwise specified
as contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a
"mandatory sinking fund payment," and any payment in excess of such
minimum amount provided for by the terms of Securities of any series is
herein referred to as an "optional sinking fund payment." If provided for
by the terms of any Securities of any series, the cash amount of any
sinking fund payment may be subject to reduction as provided in
Section 1202. Each sinking fund payment made with respect to the
Securities of any series shall be applied to the redemption of the
Securities of such series as provided for by the terms of Securities of
such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (i) may deliver Outstanding Securities of a series
(other than any previously called for redemption) and (ii) may apply as a
credit Securities of a series which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or
through the application of permitted optional sinking fund payments
pursuant to the terms of such Securities, in each case in satisfaction of
all or any part of any sinking fund payment with respect to the Securities
of such series required to be made pursuant to the terms of such
Securities as provided for by the terms of such series; provided that such
Securities 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 sinking fund payment shall be reduced accordingly. Such
Securities shall first be applied to the sinking fund payment next due,
and any excess shall be applied to the following sinking fund payments in
the order they are due.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date
for any series of Securities, the Company will deliver to the Trustee an
Officer's Certificate specifying the amount of the next ensuing sinking
fund payment for that series pursuant to the terms of that series, the
portion thereof, if any, which is to be satisfied by payment of cash and
the portion thereof, if any, which is to be satisfied by delivering and
crediting Securities of that series pursuant to Section 1202 and will also
deliver to the Trustee any Securities to be so delivered and credited.
Not less than 30 days before each such sinking fund payment date, the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of
the redemption thereof to be given in the name of and at the expense of
the Company in the manner provided in Section 1104. Such notice having
been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
DEFEASANCE
SECTION 1301. Applicability of Article; Company's Option to Effect
Defeasance.
If pursuant to Section 301 provision is made for either or both
of (a) defeasance of the Securities of a series under Section 1302 or (b)
covenant defeasance of the Securities of a series under Section 1303, then
the provisions of such Section or Sections, as the case may be, together
with the other provisions of this Article Thirteen, shall be applicable to
the Securities of such series, and the Company may at its option by or
pursuant to Board Resolution, at any time, with respect to such Securities
of any series, elect to have either Section 1302 or Section 1303 applied
to the Outstanding Securities of such series upon compliance with the
conditions set forth in this Article Thirteen.
SECTION 1302. Defeasance and Discharge.
Upon the Company's exercise of the above option applicable to
this Section with respect to any Securities of or within a series, the
Company shall be deemed to have been discharged from its obligations with
respect to the Outstanding Securities of such series on the date the
conditions set forth in Section 1304 are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the Company
shall be deemed to have paid and discharged the entire indebtedness
represented by the Outstanding Securities of such series and to have
satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging
the same), except for the following which shall survive until otherwise
terminated or discharged hereunder: (A) the rights of Holders of such
Outstanding Securities to receive, solely from the trust fund described in
Section 1304 and as more fully set forth in such Section, payments in
respect of the principal of, premium (if any), and interest on such
Securities when such payments are due, (B) the Company's obligations with
respect to such Securities under Sections 304, 305, 306, 1002, 1003 and
Article Fourteen and with respect to the Trustee under Section 607, (C)
the rights, powers, trusts, duties, and immunities of the Trustee
hereunder including pursuant to Section 607 hereof and (D) this Article
Thirteen. Subject to compliance with this Article Thirteen, the Company
may exercise its option under this Section 1302 notwithstanding the prior
exercise of its option under Section 1303 with respect to such Securities.
SECTION 1303. Covenant Defeasance.
Upon the Company's exercise of the above option applicable to
this Section with respect to any Securities of or within a series, the
Company shall be released from its obligations under Sections 501(5), 1005
and 1006 and, if specified pursuant to Section 301, its obligations under
any other covenant, with respect to the Outstanding Securities of such
series on and after the date the conditions set forth below are satisfied
(hereinafter, "covenant defeasance") and such Securities shall thereafter
be deemed to be not "Outstanding" for the purpose of any direction,
waiver, consent or declaration or Act of Holders (and the consequences of
any thereof) in connection with Sections 501(5), 1005 and 1006 or such
other covenants, but shall continue to be deemed Outstanding for all other
purposes hereunder. For this purpose, such covenant defeasance means
that, with respect to the Outstanding Securities of such series, the
Company may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such Section or such
other covenant, whether directly or indirectly, by reason of any reference
in any such Section 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 Sections 501(4), 501(5), 501(8) or otherwise, as the case
may be, but, except as specified above, the remainder of this Indenture
and such Securities shall be unaffected thereby.
SECTION 1304. Conditions of Defeasance.
The following shall be the conditions to application of either
Section 1302 or Section 1303 to the Outstanding Securities of or within a
series:
(1) the Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 609 who shall agree to comply with the
provisions of this Article Thirteen applicable to it) as trust funds
in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of such Securities, (A) money in an amount, or
(B) U.S. Government Obligations which through the scheduled payment
of principal and interest, if any, in respect thereof in accordance
with their terms will provide, not later than one day before the due
date of any payment of principal of, premium (if any), and interest,
if any, on such Securities, money in an amount, or (C) a combination
thereof, sufficient, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge, (i) the principal of, premium (if
any), and each installment of principal of, premium (if any) and
interest, if any, on the Outstanding Securities of such series on the
Stated Maturity of such principal or installment of principal or
interest and (ii) any mandatory sinking fund payments or analogous
payments applicable to the Outstanding Securities of such series on
the day on which such payments are due and payable in accordance with
the terms of this Indenture and of such Securities.
(2) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default under Subsections
501(6) and (7) with respect to any other series of Securities, at any
time during the period ending on the 123rd day after the date of such
deposit or, if longer, ending on the day following the expiration of
the longest preference period applicable to the Company in respect of
such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
(3) 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
Company is a party or by which it is bound.
(4) In the case of an election under Section 1302, the Company
shall have delivered to the Trustee an Opinion of Counsel stating
that the Holders of the Outstanding Securities of such series 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.
(5) In the case of an election under Section 1303, the Company
shall have delivered to the Trustee an Opinion of Counsel to the
effect that the Holders of the Outstanding Securities of such series
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 has not occurred.
(6) The Company delivers to the Trustee an Officer's
Certificate stating that all conditions precedent to the defeasance
and discharge of the Securities of such series as contemplated by
this Article Thirteen have been satisfied.
SECTION 1305. Deposited Money and U.S. Government Obligations to Be Held
in Trust; Miscellaneous.
Subject to the provisions of the last paragraph of Section 1003,
all money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee, collectively, for
purposes of this Section 1305, the "Trustee") pursuant to Section 1304 in
respect of the Outstanding Securities of such series shall be held in
trust and applied by the Trustee, in accordance with the provisions of
such Securities and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Holders of such Securities, of
all sums due and to become due thereon in respect of principal, premium
(if any), and interest (if any), but such money need not be segregated
from other funds except to the extend required by law.
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 1304 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 the Outstanding
Securities of such series.
Anything in this Article Thirteen to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time
to time upon Company Request any money or U.S. Government Obligations held
by it as provided in Section 1304 which, in the opinion of a nationally
recognized firm of independent public accounts expressed in a written
certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect an
equivalent defeasance or covenant defeasance.
SECTION 1306. Reinstatement.
If the Trustee or any Paying Agent is unable to apply any money
or U.S. Government Obligations in accordance with this Article Thirteen by
reason of any legal proceeding or by reason of any order or judgment of
any court or government authority enjoining, restraining or otherwise
prohibiting such application, the Company's obligations under this
Indenture and Securities of the defeased series shall be revived and
reinstated as though no deposit had occurred pursuant to this Article
Thirteen until such time as the Trustee or any Paying Agent is permitted
to apply all such money or U.S. Government Obligations in accordance with
this Article Thirteen.
ARTICLE FOURTEEN
REPURCHASE OF SECURITIES AT OPTION OF HOLDERS
SECTION 1401. Applicability of Article.
Securities of any series which are repurchasable before their
Stated Maturity at the option of the Holders shall be repurchasable in
accordance with their terms and (except as otherwise specified as
contemplated by Section 301 for Securities of any series) in accordance
with this Article.
SECTION 1402. Notice of Repurchase Date.
Notice of any Repurchase Date with respect to Securities of any
series shall, unless otherwise specified by the terms of the Securities of
any series, be given by the Company not less than 45 nor more than 60 days
prior to such Repurchase Date to each Holder of Securities of such series
in accordance with Section 106.
The notice as to Repurchase Date shall state:
(1) the Repurchase Date;
(2) the Repurchase Price;
(3) the place or places where such Securities are to be
surrendered for payment of the Repurchase Price and the date by which
Securities must be so surrendered in order to be repurchased;
(4) a description of the procedure which a Holder must follow
to exercise a repurchase right; and
(5) that exercise of the option to elect repurchase is
irrevocable.
No failure of the Company to give the foregoing notice shall limit any
Holder's right to exercise a repurchase right.
SECTION 1403. Deposit of Repurchase Price.
On or prior to the Repurchase Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money sufficient to pay the Repurchase Price of
and (unless the Repurchase Date shall be an Interest Payment Date) accrued
interest, if any, on all of the Securities of such series which are to be
repurchased on that date.
SECTION 1404. Securities Payable on Repurchase Date.
The form of option to elect repurchase having been delivered as
specified in the form of Security for such series as provided in
Section 201, the Securities of such series so to be repurchased shall, on
the Repurchase Date, become due and payable at the Repurchase Price
applicable thereto and from and after such date (unless the Company shall
default in the payment of the Repurchase Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any such
Security for repurchase in accordance with said notice, such Security
shall be paid by the Company at the Repurchase Price together with accrued
interest to the Repurchase Date; provided, however, that installments of
interest whose Stated Maturity is on or prior to such Repurchase Date
shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of
Section 307.
If any such Security shall not be paid upon surrender thereof
for repurchase, the principal (and premium, if any) shall, until paid,
bear interest from the Repurchase Date at the rate prescribed therefor in
such Security.
SECTION 1405. Securities Repurchased in Part.
Any Security which by its terms may be repurchased in part at
the option of the Holder and which is to be repurchased only in part shall
be surrendered at any office or agency of the Company designated for that
purpose pursuant to Section 1002 (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or such Holder's attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and deliver to
the Holder of such Security without service charge, a new Security or
Securities of the same series, of any authorized denomination as requested
by such Holder, in aggregate principal amount equal to and in exchange for
the unrepurchased portion of the principal of the Security so surrendered.
ARTICLE FIFTEEN
CORPORATE OBLIGATION ONLY
SECTION 1501. Indenture and Securities Solely Corporate Obligations.
No recourse under or upon any obligation, covenant or agreement
contained in this Indenture, any supplemental indenture, or in any
Security, because of any indebtedness evidenced thereby, shall be had
against any incorporator, or against any past, present or future
shareholder, employee, officer or director, as such, of the Company or of
any successor corporation, either directly or through the Company or any
successor corporation, under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or penalty or by any
legal or equitable proceeding or otherwise, all such liability, whether at
common law, in equity, by any constitution, statute or otherwise, of
incorporators, shareholders, employees, officers or directors being
expressly waived and released by the acceptance of the Securities by the
Holders thereof and as part of the consideration of the issuance of the
Securities.
Firstar Trust Company hereby accepts the trusts in this
Indenture upon the terms and conditions hereinabove set forth.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above written.
GIDDINGS & LEWIS, INC.
By: /s/ Joseph R. Coppola
Title: Chairman and Chief
Executive Officer
Attest: /s/ Richard C. Kleinfeldt
Title: Vice President Finance
and Secretary
FIRSTAR TRUST COMPANY
as Trustee
By: /s/ Gene E. Ploeger
Title: Assistant Vice President
Attest: /s/ Yvonne Siira
Title: Assistant Secretary
<PAGE>
STATE OF WISCONSIN )
) SS.
COUNTY OF FOND DU LAC )
On this 4th day of August, 1995, before me, a Notary Public and
for said county and state, personally appeared J. R. Coppola and R. C.
Kleinfeldt to me personally known and known to me to be the same persons
who executed the within and foregoing instrument, who, being by me duly
sworn, did depose, acknowledge and say: That they are respectively the
Chairman and Chief Executive Officer and Vice President Finance -
Secretary of GIDDINGS & LEWIS, INC., the Wisconsin corporation described
in and which executed the foregoing instrument; that said instrument was
signed on behalf of the said corporation by authority of its Board of
Directors; and they acknowledged the execution of said instrument to be
the voluntary act and deed of said corporation by it voluntarily executed.
IN WITNESS WHEREOF, I have hereunto set my hand and official
seal this 4th day of August, 1995.
[Notarial Seal]
Notary Public /s/ Samantha Inks
My Commission Expires: 12/08/96
STATE OF WISCONSIN )
) SS.
COUNTY OF MILWAUKEE )
On this 7th day of August, 1995, before me, a Notary Public and
for said county and state, personally appeared Gene E. Ploeger and Yvonne
Siira to me personally known and known to me to be the same persons who
executed the within and foregoing instrument, who, being by me duly sworn,
did depose, acknowledge and say: That they are respectively the Assistant
Vice President and Assistant Secretary of FIRSTAR TRUST COMPANY, a
Wisconsin state banking corporation, described in and which executed the
foregoing instrument; and that said instrument was signed on behalf of the
said corporation by authority of its Board of Directors; and they
acknowledged the execution of said instrument to be the voluntary act and
deed of said corporation by it voluntarily executed.
IN WITNESS WHEREOF, I have hereunto set my hand and official
seal this 7th day of August, 1995.
[Notarial Seal]
Notary Public /s/ Charles F. Pedersen
My Commission Expires: 06/23/96
FOLEY & LARDNER
A T T O R N E Y S A T L A W
FIRSTAR CENTER
777 EAST WISCONSIN AVENUE
MILWAUKEE, WISCONSIN 53202-5367
A MEMBER OF GLOBALEX
WITH MEMBER OFFICES IN
MADISON BERLIN
CHICAGO TELEPHONE (414) 271-2400 BRUSSELS
WASHINGTON, D.C. DRESDEN
JACKSONVILLE TELEX 26-819 FRANKFURT
ORLANDO LONDON
TALLAHASSEE (FOLEY LARD MIL) PARIS
TAMPA SINGAPORE
WEST PALM BEACH FACSIMILE (414) 297-4900 STUTTGART
TAIPEI
WRITER'S DIRECT LINE
August 8, 1995
Giddings & Lewis, Inc.
142 Doty Street
Fond du Lac, Wisconsin 54935
Gentlemen:
We have acted as counsel for Giddings & Lewis, Inc., a Wisconsin
corporation (the "Company"), in connection with the preparation of a Form
S-3 Registration Statement, including the Prospectus constituting a part
thereof (such Registration Statement as amended up to and including the
date hereof is referred to herein as the "Registration Statement"), as
filed with the Securities and Exchange Commission under the Securities Act
of 1933, as amended, and relating to the issuance and sale of up to
$250,000,000 principal amount of debt securities (the "Debt Securities")
in the manner set forth in the Registration Statement and Prospectus. The
Debt Securities may be offered from time to time in one or more series.
Each series of Debt Securities will be issued under that certain Indenture
between the Company and Firstar Trust Company, as Trustee, dated as of
August 7, 1995 (the "Indenture"), and a supplemental indenture (the
"Supplemental Indenture") or an officer's certificate (the "Officer's
Certificate"), as the case may be, providing for the issuance of such
series.
In connection with our opinion, we have examined: (a) the
Registration Statement, including the Prospectus; (b) the exhibits
(including those incorporated by reference) constituting a part of said
Registration Statement; (c) the Restated Articles of Incorporation and By-
laws of the Company, as amended; (d) the Indenture; and (e) such other
proceedings, documents and records as we have deemed necessary to enable
us to render this opinion.
Based upon the foregoing, we are of the opinion that:
1. The Company is a validly existing corporation under the
laws of the State of Wisconsin.
2. The Debt Securities, when executed, authenticated and
issued in the manner and for the consideration contemplated by the
Registration Statement and Prospectus, will be legally issued and valid
and binding obligations of the Company enforceable in accordance with
their terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other comparable laws affecting
the enforcement of creditors' rights generally or the application of
equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law); provided, that prior to
the issuance of the Debt Securities there shall be taken various
proceedings in the manner contemplated by us as counsel, which include the
following:
a. The completion of the requisite procedures under
the applicable provisions of the Securities Act of 1933, as
amended, and the Trust Indenture Act of 1939, as amended; and
b. The due execution and delivery of the
Supplemental Indenture or the Officer's Certificate, as the case
may be, creating the applicable series of Debt Securities, and
the filing of other documents and the taking of such other
actions or proceedings as provided in the Indenture with respect
to the issuance of the Debt Securities thereunder.
We hereby consent to the reference to our firm under the caption
"Legal Matters" in the Prospectus which is filed as part of the
Registration Statement, and to the filing of this opinion as an exhibit to
such Registration Statement. In giving this consent, we hereby disclaim
that we are experts within the meaning of Section 11 of the Securities Act
of 1933, as amended, or within the category of persons whose consent is
required by Section 7 of said Act.
Very truly yours,
FOLEY & LARDNER
Exhibit 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
Amendment No. 1 to the Registration Statement (Form S-3 No. 33-61237) and
the related Prospectus of Giddings & Lewis, Inc. for the registration of
$250 million of debt securities and to the incorporation by reference
therein of: (1) our reports dated January 27, 1995 with respect to the
consolidated financial statements of Giddings & Lewis, Inc. incorporated
by reference in its Annual Report (Form 10-K) for the year ended December
31, 1994 and the related financial statement schedule included therein;
and (2) our report dated March 3, 1995, except for Note 11, as to which
the date is April 24, 1995, with respect to the financial statements of
Fadal Engineering Co., Inc. included in the Current Report on Form 8-K of
Giddings & Lewis, Inc. dated April 24, 1995, both filed with the
Securities and Exchange Commission.
ERNST & YOUNG LLP
Milwaukee, Wisconsin
August 8, 1995
