Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
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 Amount Proposed Proposed
Class of to be Maximum Maximum Amount of
Securities Registered Offering Aggregate Registration
to be Price Offering Fee
Registered Per Unit * Price *
Debt Securities
$150,000,000 100% $150,000,000 $51,725
* Estimated in accordance with Rule 457(a) under the Securities Act of
1933 solely for purposes of calculating the registration fee.
________________________
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that
this Registration Statement shall thereafter become effective in
accordance with Section 8(a) of the Securities Act of 1933 or until 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 JULY 21, 1995
PROSPECTUS
$150,000,000
GIDDINGS & LEWIS/R/
Debt Securities
____________________
Giddings & Lewis, Inc. (the "Company") may from time to time offer up
to $150 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. $").
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") to be entered into 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 will provide 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: (1) the
title of such Offered Debt Securities; (2) any limit on the aggregate
principal amount of such Offered Debt Securities or the series of which
they are a part; (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 any of such Offered Debt Securities will
be payable; (5) 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; (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 and any premium and interest on any of such
Offered Debt Securities will be payable; (8) 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; (9) 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; (10) 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; (11) if other than the
currency of the United States of America, the currency, currencies or
currency units in which the principal of or any premium or interest on any
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); (12) 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; (13) 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; (14) 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; (15) 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; (16) 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; (17) the applicability of, and 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"; (18) 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 (19) 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 in an aggregate principal amount in excess of $10,000,000 may
elect to receive payments of interest 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 will provide 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.
Events of Default
Each of the following will constitute an Event of Default under the
Indenture with respect to Debt Securities of any series: (a) 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; (b) 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; (c) default in the deposit of any sinking fund payment, when due
by the terms of a Debt Security of that series; (d) 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; (e) 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
(f) 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
Modifications and amendments of the Indenture may be made by the
Company and the Trustee with the consent of the Holders of a majority in
aggregate principal amount of the Outstanding Securities of each series
affected by such modification or amendment; provided, however, that no
such modification or amendment may, without the consent of the Holder of
each Outstanding Security affected thereby, (a) extend the Stated Maturity
of the principal of, or any installment of principal of or interest on,
any Security, (b) reduce the principal amount of, or any premium or
interest on, any Debt Security, (c) reduce the amount of principal of an
Original Issue Discount Security payable upon acceleration of the Maturity
thereof, (d) change the place or currency of payment of principal of, or
any premium or interest on, any Debt Security, (e) impair the right to
institute suit for the enforcement of any payment on or with respect to
any Debt Security, (f) 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, (g) 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 (h) 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 will provide 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 will provide 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 will provide 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 (e) 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 Security is registered as the
owner thereof (whether or not such 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 consolidated 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 consolidated 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 . . . . . . . . . . . . . . . . . . . . 15
Plan of Distribution . . . . . . . . . . . . . . . . . . . . . 16
Legal Matters . . . . . . . . . . . . . . . . . . . . . . . . . 18
Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
<PAGE>
[LOGO]
$150,000,000
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 $51,725
registration fee . . . . . . . . . . . .
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 . . . . . . . . . 7,075
-------
Total . . . . . . . . . . . . . . . . . 375,000
=======
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 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 July 21, 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
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 July 21, 1995
Joseph R. Coppola Board, Chief
Executive Officer and
Director (Principal
Executive Officer)
/s/ Richard C. Kleinfeldt Vice President - July 21, 1995
Richard C. Kleinfeldt Finance, Secretary
and Director
(Principal Financial
and Accounting
Officer)
Albert J. Baciocco, Jr.* Director July 21, 1995
John A. Becker* Director July 21, 1995
Ruth M. Davis* Director July 21, 1995
Clyde H. Folley* Director July 21, 1995
Benjamin F. Garmer, III* Director July 21, 1995
John W. Guffey, Jr.* Director July 21, 1995
Ben R. Stuart* Director July 21, 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) Proposed form of Indenture for 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.
Giddings & Lewis, Inc.
Debt Securities
UNDERWRITING AGREEMENT
1. Introductory. Giddings & Lewis, Inc., a Wisconsin corporation
("Company"), proposes to issue and sell from time to time certain of its
unsecured debt securities registered under the registration statement
referred to in Section 2(a) ("Registered Securities"). The Registered
Securities will be issued under an indenture, dated as of ,
1995 ("Indenture"), between the Company and Firstar Trust Company, as
Trustee, in one or more series, which series may vary as to interest
rates, maturities, redemption provisions, selling prices and other terms,
with all such terms for any particular series of the Registered Securities
being determined at the time of sale. Particular series of the Registered
Securities will be sold pursuant to a Terms Agreement referred to in
Section 3, for resale in accordance with terms of offering determined at
the time of sale.
The Registered Securities involved in any such offering are
hereinafter referred to as the "Offered Securities". The firm or firms
which agree to purchase the Offered Securities are hereinafter referred to
as the "Underwriters" of such Securities, and the representative or
representatives of the Underwriters, if any, specified in a Terms
Agreement referred to in Section 3 are hereinafter referred to as the
"Representatives"; provided, however, that if the Terms Agreement does not
specify any representative of the Underwriters, the term
"Representatives", as used in this Agreement (other than in Sections 2(b),
5(c) and 6 and the second sentence of Section 3), shall mean the
Underwriters.
2. Representations and Warranties of the Company. The Company, as
of the date of each Terms Agreement referred to in Section 3, represents
and warrants to, and agrees with, each Underwriter that:
(a) A registration statement on Form S-3 (No. 33- ),
including a prospectus, relating to the Registered Securities has
been filed with the Securities and Exchange Commission ("Commission")
and has become effective. Such registration statement, as amended at
the time of any Terms Agreement referred to in Section 3, is
hereinafter referred to as the "Registration Statement", and the
prospectus included in such Registration Statement, as supplemented
as contemplated by Section 3 to reflect the terms of the Offered
Securities and the terms of offering thereof, as first filed with the
Commission pursuant to and in accordance with Rule 424(b)
("Rule 424(b)") under the Securities Act of 1933 ("Act"), including
all material incorporated by reference therein, is hereinafter
referred to as the "Prospectus".
(b) The Company is eligible to use Form S-3. On the effective
date of the Registration Statement relating to the Registered
Securities, such Registration Statement conformed in all respects to
the requirements of the Act, the Trust Indenture Act of 1939 ("Trust
Indenture Act") and the rules and regulations of the Commission
("Rules and Regulations") and did not include any untrue statement of
a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, and on the date of each Terms Agreement referred to in
Section 3, the Registration Statement and the Prospectus will conform
in all respects to the requirements of the Act, the Trust Indenture
Act and the Rules and Regulations, and neither of such documents will
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, except that the foregoing does not
apply to statements in or omissions from any of such documents based
upon written information furnished to the Company by any Underwriter
through the Representatives, if any, specifically for use therein.
(c) The Company has been duly incorporated and is a validly
existing corporation in good standing under the laws of the State of
Wisconsin, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
and the Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business
requires such qualification, except where the failure so to qualify
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(d) Each of Gidding & Lewis Limited, Cross & Trecker
Corporation, Giddings & Lewis GmbH, Fadal Engineering Co., Inc. and
The Cross Company (the "Material Subsidiaries") has been duly
incorporated and is an existing corporation in good standing under
the laws of the jurisdiction of its incorporation, with power and
authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus; and each Material Subsidiary
is duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or lease
of property or the conduct of its business requires such
qualification, except where the failure so to qualify would not have
a material adverse effect on the Company and its subsidiaries, taken
as a whole; all of the issued and outstanding capital stock of each
Material Subsidiary of the Company has been duly authorized and
validly issued and is fully paid and nonassessable; and the capital
stock of each Material Subsidiary owned by the Company, directly or
through subsidiaries, is owned free from liens, encumbrances and
defects. Other than the Material Subsidiaries, the Company has no
"significant subsidiaries" (as that term is defined in Regulation
S-X).
(e) The Indenture has been duly authorized and has been duly
qualified under the Trust Indenture Act; the Offered Securities have
been duly authorized; and when the Offered Securities are delivered
and paid for pursuant to the Terms Agreement on the Closing Date (as
defined below) or pursuant to Delayed Delivery Contracts (as
hereinafter defined), the Indenture will have been duly executed and
delivered, such Offered Securities will have been duly executed,
authenticated, issued and delivered and will conform to the
description thereof contained in the Prospectus and the Indenture and
such Offered Securities will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
(f) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required for
the consummation of the transactions contemplated by the Terms
Agreement (including the provisions of this Agreement) or for the use
of the proceeds received by the Company from such sale in the manner
contemplated by the description under the caption "Use of Proceeds"
contained in the Prospectus and in any applicable prospectus
supplement in connection with the issuance and sale of the Offered
Securities by the Company, except such as have been obtained and made
under the Act, the Trust Indenture Act and such as may be required
under state securities laws.
(g) The execution, delivery and performance of the Indenture,
the Terms Agreement (including the provisions of this Agreement) and
any Delayed Delivery Contracts and the issuance and sale of the
Offered Securities and compliance with the terms and provisions
thereof will not result in a breach or violation of any of the terms
and provisions of, or constitute a default under, (i) to the best of
the Company's knowledge, any statute, any rule, regulation or order
of any governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Company or any subsidiary of the Company
or any of their properties, or (ii) any agreement or instrument that
is material to the business of the Company and its subsidiaries taken
as a whole to which the Company or any such subsidiary is a party or
by which the Company or any such subsidiary is bound or to which any
of the properties of the Company or any such subsidiary is subject,
or the charter or by-laws of the Company or any such subsidiary, and
the Company has full power and authority to authorize, issue and sell
the Offered Securities as contemplated by the Terms Agreement
(including the provisions of this Agreement).
(h) The Terms Agreement (including the provisions of this
Agreement) and any Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company.
(i) Except as disclosed in the Prospectus, the Company and its
subsidiaries have good and marketable title to all real properties
and all other properties and assets owned by them, in each case free
from liens, encumbrances and defects that would materially affect the
value thereof or materially interfere with the use made or to be made
thereof by them; and except as disclosed in the Prospectus, the
Company and its subsidiaries hold any leased real or personal
property under valid and enforceable leases with no exceptions that
would materially interfere with the use made or to be made thereof by
them.
(j) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business now
operated by them and have not received any notice of proceedings
relating to the revocation or modification of any such certificate,
authority or permit that, if determined adversely to the Company or
any of its subsidiaries, would individually or in the aggregate have
a material adverse effect on the Company and its subsidiaries taken
as a whole.
(k) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent
that might have a material adverse effect on the Company and its
subsidiaries taken as a whole.
(l) The Company and its subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names and
other rights to inventions, know-how, patents, copyrights,
confidential information and other intellectual property
(collectively, "intellectual property rights") necessary to conduct
the business now operated by them, or presently employed by them, and
have not received any notice of infringement of or conflict with
asserted rights of others with respect to any intellectual property
rights that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material
adverse effect on the Company and its subsidiaries taken as a whole.
(m) No event of default or event which, but for the giving of
notice or the lapse of time or both, would constitute an event of
default exists or, upon the use of proceeds from the sale of the
Stock in the manner contemplated by the description under the caption
"Use of Proceeds" contained in the Prospectuses, will exist under any
agreement or instrument for borrowed money or any guarantee to which
the Company or any of its Subsidiaries is a party or to which any of
the properties or assets of the Company or any Subsidiary are
subject, except in the case in which default(s) in the aggregate
would not have a material adverse effect on the Company and its
subsidiaries taken as a whole or on the consummation of the
transactions contemplated hereby.
(n) Except as disclosed in the Prospectus, neither the Company
nor any of its subsidiaries is in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body or
any court, domestic or foreign, relating to the use, disposal or
release of hazardous or toxic substances or relating to the
protection or restoration of the environment or human exposure to
hazardous or toxic substances (collectively, "environmental laws"),
owns or operates any real property contaminated with any substance
that is subject to any environmental laws, is liable for any off-site
disposal or contamination pursuant to any environmental laws, or is
subject to any claim relating to any environmental laws, which
violation, contamination, liability or claim would individually or in
the aggregate have a material adverse effect on the Company and its
subsidiaries taken as a whole; and the Company is not aware of any
pending investigation which might lead to such a claim.
(o) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company, any
of its subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on
the condition (financial or other), business, prospects or results of
operations of the Company and its subsidiaries taken as a whole, or
would materially and adversely affect the ability of the Company to
perform its obligations under the Indenture, the Terms Agreement
(including the provisions of this Agreement) or any Delayed Delivery
Contracts, or which are otherwise material in the context of the sale
of the Offered Securities; and, to the best of the Company's
knowledge, no such actions, suits or proceedings are threatened or
contemplated.
(p) The descriptions in the Prospectus of statutes, legal and
governmental proceedings and contracts and other documents are
accurate in all material respects and fairly present in the
information required to be shown; and there are no legal or
governmental proceedings required to be described in the Prospectus
that are not described as required and no contracts or documents of a
character required to be described in the Registration Statement or
the Prospectus which are not described as required.
(q) The financial statements included in the Registration
Statement and Prospectus present fairly the financial position of the
Company and its consolidated subsidiaries as of the dates shown and
their results of operations and cash flows for the periods shown, and
such financial statements have been prepared in conformity with the
generally accepted accounting principles in the United States applied
on a consistent basis, except as may be stated therein; and any
exhibits or schedules included in the Registration Statement present
fairly the information required to be stated therein.
(r) Except as disclosed in the Prospectus, since the date of
the latest audited financial statements included in the Prospectus
(i) there has been no material adverse change, nor any development or
event involving a prospective material adverse change, in the
condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole,
(ii) there has been no dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock, and
(iii) the Company has not incurred any material liabilities or
obligations, direct or contingent, or entered into any material
transactions not in the ordinary course of business.
(s) The Company is not and, after giving effect to the offering
and sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act of
1940.
(t) Neither the Company nor any of its affiliates does business
with the government of Cuba or with any person or affiliate located
in Cuba within the meaning of Section 517.075, Florida Statutes and
the Company agrees to comply with such Section if prior to the
completion of the distribution of the Offered Securities it commences
doing such business.
3. Purchase and Offering of Offered Securities. The obligation of
the Underwriters to purchase the Offered Securities will be evidenced by
an agreement or exchange of other written communications ("Terms
Agreement") at the time the Company determines to sell the Offered
Securities. The Terms Agreement will incorporate by reference the
provisions of this Agreement, except as otherwise provided therein, and
will specify the firm or firms which will be Underwriters, the names of
any Representatives, the principal amount to be purchased by each
Underwriter, the purchase price to be paid by the Underwriters and the
terms of the Offered Securities not already specified in the Indenture,
including, but not limited to, interest rate, maturity, any redemption
provisions and any sinking fund requirements and whether any of the
Offered Securities may be sold to institutional investors pursuant to
Delayed Delivery Contracts (as defined below). The Terms Agreement will
also specify the time and date of delivery and payment (such time and
date, or such other time not later than [five] full business days there-
after as the Underwriter first named in the Terms Agreement (the "Lead
Underwriter") and the Company agree as the time for payment and delivery,
being herein and in the Terms Agreement referred to as the "Closing
Date"), the place of delivery and payment and any details of the terms of
offering that should be reflected in the prospectus supplement relating to
the offering of the Offered Securities. The obligations of the
Underwriters to purchase the Offered Securities will be several and not
joint. It is understood that the Underwriters propose to offer the
Securities for sale as set forth in the Prospectus.
If the Terms Agreement provides for sales of Offered Securities
pursuant to delayed delivery contracts, the Company authorizes the
Underwriters to solicit offers to purchase Offered Securities pursuant to
delayed delivery contracts substantially in the form of Annex I attached
hereto ("Delayed Delivery Contracts") with such changes therein as the
Company may authorize or approve. Delayed Delivery Contracts are to be
with institutional investors, including commercial and savings banks,
insurance companies, pension funds, investment companies and educational
and charitable institutions. On the Closing Date the Company will pay, as
compensation, to the Representatives for the accounts of the Underwriters,
the fee set forth in such Terms Agreement in respect of the principal
amount of Offered Securities to be sold pursuant to Delayed Delivery
Contracts ("Contract Securities"). The Underwriters will not have any
responsibility in respect of the validity or the performance of Delayed
Delivery Contracts. If the Company executes and delivers Delayed Delivery
Contracts, the Contract Securities will be deducted from the Offered
Securities to be purchased by the several Underwriters and the aggregate
principal amount of Offered Securities to be purchased by each Underwriter
will be reduced pro rata in proportion to the principal amount of Offered
Securities set forth opposite each Underwriter's name in such Terms
Agreement, except to the extent that the Lead Underwriter determines that
such reduction shall be otherwise than pro rata and so advise the Company.
The Company will advise the Lead Underwriter not later than the business
day prior to the Closing Date of the principal amount of Contract
Securities.
If the Terms Agreement specifies "Book-Entry Only" settlement or
otherwise states that the provisions of this paragraph shall apply, the
Company will deliver against payment of the purchase price the Offered
Securities in the form of one or more permanent global Securities in
definitive form (the "Global Securities") deposited with the Trustee as
custodian for The Depository Trust Company ("DTC") and registered in the
name of Cede & Co., as nominee for DTC. Interests in any permanent global
Securities will be held only in book-entry form through DTC, except in the
limited circumstances described in the Prospectus. Payment for the Offered
Securities shall be made by the Underwriters (if the Terms Agreement
specifies that the Offered Securities will not trade in DTC's Same Day
Funds Settlement System) by certified or official bank check or checks in
New York Clearing House (next day) funds or (if the Terms Agreement
specifies that the Offered Securities will trade in DTC's Same Day Funds
Settlement System) in Federal (same day) funds by official check or checks
or wire transfer to an account in New York previously designated to the
Lead Underwriter by the Company at a bank acceptable to the Lead
Underwriter, in each case drawn to the order of [Giddings & Lewis, Inc.]
at the place of payment specified in the Terms Agreement on the Closing
Date, against delivery to the Trustee as custodian for DTC of the Global
Securities representing all of the Offered Securities.
4. Certain Agreements of the Company. The Company agrees with the
several Underwriters that it will furnish to counsel for the Underwriters,
one signed copy of the Registration Statement relating to the Registered
Securities, including all exhibits, in the form it became effective and of
all amendments thereto and that, in connection with each offering of
Offered Securities:
(a) The Company will file the Prospectus with the Commission
pursuant to and in accordance with Rule 424(b)(2) (or, if applicable
and if consented to by the Lead Underwriter, subparagraph (5)) not
later than the second business day following the execution and
delivery of the Terms Agreement.
(b) The Company will advise the Lead Underwriter promptly of
any proposal to amend or supplement the Registration Statement or the
Prospectus and will afford the Lead Underwriter a reasonable
opportunity to comment on any such proposed amendment or supplement;
and the Company will also advise the Lead Underwriter promptly of the
filing of any such amendment or supplement and of the institution by
the Commission of any stop order proceedings in respect of the
Registration Statement or of any part thereof and will use its best
efforts to prevent the issuance of any such stop order and to obtain
as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection
with sales by any Underwriter or dealer, any event occurs as a result
of which the Prospectus as then amended or supplemented would include
an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Company promptly will notify the Lead Underwriter of such event
and will promptly prepare and file with the Commission, at its own
expense, an amendment or supplement which will correct such statement
or omission or an amendment which will effect such compliance.
Neither the Lead Underwriter's consent to, nor the Underwriters'
delivery of, any such amendment or supplement shall constitute a
waiver of any of the conditions set forth in Section 5.
(d) As soon as practicable, but not later than 16 months, after
the date of each Terms Agreement, the Company will make generally
available to its security holders an earnings statement covering a
period of at least 12 months beginning after the later of (i) the
effective date of the Registration Statement relating to the
Registered Securities, (ii) the effective date of the most recent
post-effective amendment to the Registration Statement to become
effective prior to the date of such Terms Agreement and (iii) the
date of the Company's most recent Annual Report on Form 10-K filed
with the Commission prior to the date of such Terms Agreement, which
will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives copies of
the Registration Statement, including all exhibits, any related
preliminary prospectus, any related preliminary prospectus
supplement, the Prospectus and all amendments and supplements to such
documents, in each case as soon as available and in such quantities
as the Lead Underwriter reasonably requests. The Company will pay
the expenses of printing and distributing to the Underwriters all
such documents.
(f) The Company will arrange for the qualification of the
Offered Securities for sale and, if requested by the Lead
Underwriter, the determination of their eligibility for investment
under the laws of such jurisdictions as the Lead Underwriter
designates and will continue such qualifications in effect so long as
required for the distribution; provided, however, that the Company
shall not be obligated to file any general consent to service or
process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction which it is not so qualified or to
subject itself to taxation in respect of any business in any
jurisdiction which it is not otherwise so subject.
(g) During the period of five years after the date of any Terms
Agreement, the Company will furnish to the Representatives and, upon
request, to each of the other Underwriters, if any, as soon as
practicable after the end of each fiscal year, a copy of its annual
report to stockholders for such year; and the Company will furnish to
the Representatives (i) as soon as available, a copy of each report
and any definitive proxy statement of the Company filed with the
Commission under the Securities Exchange Act of 1934 or mailed to
stockholders, and (ii) from time to time, such other information
concerning the Company as the Lead Underwriter may reasonably
request.
(h) The Company will pay all expenses incident to the
performance of its obligations under the Terms Agreement (including
the provisions of this Agreement) and will reimburse the Underwriters
(if and to the extent incurred by them) for any filing fees or other
expenses (including fees and disbursements of counsel) incurred by
them in connection with qualification of the Registered Securities
for sale and determination of their eligibility for investment under
the laws of such jurisdictions as the Lead Underwriter may designate
and the printing of memoranda relating thereto, for any fees charged
by investment rating agencies for the rating of the Offered
Securities, for any applicable filing fee of the National Association
of Securities Dealers, Inc. relating to the Registered Securities,
for any travel expenses of the Company's officers and employees and
any other expenses of the Company in connection with attending or
hosting meetings with prospective purchasers of Registered Securities
and for expenses incurred in distributing the Prospectus, any
preliminary prospectuses, any preliminary prospectus supplements or
any other amendments or supplements to the Prospectus to the
Underwriters.
(i) The Company will not offer, sell, contract to sell, pledge
or otherwise dispose of, directly or indirectly, or file with the
Commission a registration statement under the Act relating to United
States dollar-denominated debt securities issued or guaranteed by the
Company and having a maturity of more than one year from the date of
issue, or publicly disclose the intention to make any such offer,
sale, pledge, disposal or filing, without the prior written consent
of the Lead Underwriter for a period beginning at the time of
execution of the Terms Agreement and ending on the later of (i) the
date of termination of the syndicate and (ii) the Closing Date.
5. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the
Offered Securities will be subject to the accuracy of the representations
and warranties on the part of the Company herein, to the accuracy of the
statements of Company officers made pursuant to the provisions hereof, to
the performance by the Company of its obligations hereunder and to the
following additional conditions precedent:
(a) On or prior to the date of the Terms Agreement, the
Representatives shall have received a letter, dated the date of
delivery thereof, of Ernst & Young LLP confirming that they are inde-
pendent public accountants within the meaning of the Act and the
applicable published Rules and Regulations thereunder and stating to
the effect that:
(i) in their opinion the financial statements and any
schedules and pro forma financial statements and any summary of
earnings examined by them and included in the Prospectus comply
in form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations;
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review
of interim financial information as described in Statement of
Auditing Standards No. 71, Interim Financial Information, on any
unaudited financial statements included in the Registration
Statement;
(iii) on the basis of the review referred to in
clause (ii) above, a reading of the latest available interim
financial statements of the Company and its subsidiaries,
inquiries of officials of the Company and its subsidiaries who
have responsibility for financial and accounting matters and
other specified procedures, nothing came to their attention that
caused them to believe that:
(A) the unaudited financial statements, if any, and
any summary of earnings included in the Prospectus do not
comply in form in all material respects with the applicable
accounting requirements of the Act and the related
published Rules and Regulations or any material
modifications should be made to such unaudited financial
statements and summary of earnings for them to be in
conformity with generally accepted accounting principles;
(B) if any unaudited "capsule" information is
contained in the Prospectus, the unaudited consolidated net
sales, net operating income, net income and net income per
share amounts or other amounts constituting such "capsule"
information and described in such letter do not agree with
the corresponding amounts set forth in the unaudited
consolidated financial statements or were not determined on
a basis substantially consistent with that of the
corresponding amounts in the audited statements of income;
(C) at the date of the latest available balance sheet
read by such accountants, or at a subsequent specified date
not more than five days prior to the date of the Terms
Agreement, there was any change in the capital stock or any
increase in short-term indebtedness or long-term debt of
the Company and its consolidated subsidiaries or, at the
date of the latest available balance sheet read by such
accountants, there was any decrease in consolidated net
current assets or net assets, as compared with amounts
shown on the latest balance sheet included in the
Prospectus; or
(D) for the period from the closing date of the
latest income statement included in the Prospectus to the
closing date of the latest available income statement read
by such accountants there were any decreases, as compared
with the corresponding period of the previous year and with
the period of corresponding length ended the date of the
latest income statement included in the Prospectus, in
consolidated net sales, net operating income in the ratio
of earnings to fixed charges and preferred stock dividends
combined;
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such
letter, in which case the letter shall be accompanied by an
explanation by the Company as to the significance thereof; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Prospectus (in each case
to the extent that such dollar amounts, percentages and other
financial information are derived from the general accounting
records of the Company and its subsidiaries subject to the
internal controls of the Company's accounting system or are
derived directly from such records by analysis or computation)
with the results obtained from inquiries, a reading of such
general accounting records and other procedures specified in
such letter and have found such dollar amounts, percentages and
other financial information to be in agreement with such
results, except as otherwise specified in such letter.
All financial statements and schedules and pro forma financial
statements included in material incorporated by reference into the
Prospectus shall be deemed included in the Prospectus for purposes of
this subsection.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 4(a) of this
Agreement. No stop order suspending the effectiveness of the
Registration Statement or of any part thereof shall have been issued
and no proceedings for that purpose shall have been instituted or, to
the knowledge of the Company or any Underwriter, shall be
contemplated by the Commission.
(c) Subsequent to the execution of the Terms Agreement, there
shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or
other), business, properties or results of operations of the Company
or its subsidiaries which, in the judgment of a majority in interest
of the Underwriters including any Representatives, is material and
adverse and makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for the
Offered Securities; (ii) any downgrading in the rating of any debt
securities of the Company by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under
the Act), or any public announcement that any such organization has
under surveillance or review its rating of any debt securities of the
Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of
such rating); (iii) any suspension or limitation of trading in
securities generally on the New York Stock Exchange, or any setting
of minimum prices for trading on such exchange, or any suspension of
trading of any securities of the Company on any exchange or in the
over-the-counter market; (iv) any banking moratorium declared by U.S.
Federal, New York or Wisconsin authorities; or (v) any outbreak or
escalation of major hostilities in which the United States is
involved, any declaration of war by Congress or any other substantial
national or international calamity or emergency if, in the judgment
of a majority in interest of the Underwriters including any
Representatives, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the public offering or the
sale of and payment for the Offered Securities.
(d) The Representatives shall have received an opinion, dated
the Closing Date, of Foley & Lardner, counsel for the Company, to the
effect that:
(i) The Company and each Material Subsidiary has been duly
incorporated and is an existing corporation in good standing
under the laws of the state of its incorporation, with corporate
power and authority to own its properties and conduct its
business as described in the Prospectus; and each of the Company
and the Material Subsidiaries is duly qualified to do business
as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification;
(ii) The Company, directly or indirectly, owns all of the
outstanding shares of capital stock of each Material Subsidiary,
free and clear of all liens, claims or encumbrances;
(iii) The Indenture has been duly authorized, executed
and delivered by the Company and has been duly qualified under
the Trust Indenture Act; the Offered Securities have been duly
authorized; the Offered Securities other than any Contract
Securities have been duly executed, authenticated, issued and
delivered; the Indenture and the Offered Securities other than
any Contract Securities constitute, and any Contract Securities,
when executed, authenticated, issued and delivered in the manner
provided in the Indenture and sold pursuant to Delayed Delivery
Contracts, will constitute, valid and legally binding
obligations of the Company enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles; and the Offered Securities other than
any Contract Securities conform, and any Contract Securities,
when so issued and delivered and sold will conform, to the
description thereof contained in the Prospectus;
(iv) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application
of the proceeds thereof as described in the Prospectus, will not
be an "investment company" as defined in the Investment Company
Act of 1940;
(v) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is
required for the consummation of the transactions contemplated
by the Terms Agreement (including the provisions of this
Agreement) in connection with the issuance or sale of the
Offered Securities by the Company, except such as have been
obtained and made under the Act, the Trust Indenture Act and
such as may be required under state securities laws;
(vi) The execution, delivery and performance of the
Indenture, the Terms Agreement (including the provisions of this
Agreement) and any Delayed Delivery Contracts and the issuance
and sale of the Offered Securities and compliance with the terms
and provisions thereof will not result in a breach or violation
of any of the terms and provisions of, or constitute a default
under, any statute, any rule, regulation or order of any
governmental agency or body or any court having jurisdiction
over the Company or any subsidiary of the Company or any of
their properties, or any agreement or instrument to which the
Company or any such subsidiary is a party or by which the
Company or any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is subject, or
the charter or by-laws of the Company or any such subsidiary,
and the Company has full power and authority to authorize, issue
and sell the Offered Securities as contemplated by the Terms
Agreement (including the provisions of this Agreement);
(vii) The Registration Statement has become effective
under the Act, the Prospectus was filed with the Commission
pursuant to the subparagraph of Rule 424(b) specified in such
opinion on the date specified therein, and, to the best of the
knowledge of such counsel, no stop order suspending the effec-
tiveness of the Registration Statement or any part thereof has
been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Act;
(viii) The Registration Statement relating to the
Registered Securities, as of its effective date, the
Registration Statement and the Prospectus, as of the date of the
Terms Agreement, and any amendment or supplement thereto, as of
its date, complied as to form in all material respects with the
requirements of the Act, the Trust Indenture Act and the Rules
and Regulations; such counsel have no reason to believe that
such Registration Statement, as of its effective date, the
Registration Statement, as of the date of the Terms Agreement or
as of the Closing Date, or any amendment thereto, as of its date
or as of the Closing Date, contained any untrue statement of a
material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein
not misleading or that the Prospectus, as of the date of the
Terms Agreement or as of such Closing Date, or any amendment or
supplement thereto, as of its date or as of the Closing Date,
contained any untrue statement of a material fact or omitted to
state any material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; the descriptions in the
Registration Statement and Prospectus of statutes, legal and
governmental proceedings and contracts and other documents are
accurate and fairly present the information required to be
shown; and such counsel do not know of any legal or governmental
proceedings required to be described in the Prospectus which are
not described as required or of any contracts or documents of a
character required to be described in the Registration Statement
or Prospectus or to be filed as exhibits to the Registration
Statement which are not described and filed as required; it
being understood that such counsel need express no opinion as to
the financial statements or other financial or statistical data
contained in the Registration Statement or the Prospectus; and
(ix) The Terms Agreement (including the provisions of this
Agreement) and any Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company.
It is understood that the opinion of such counsel may state that
such counsel is relying as to factual matters on certificates of
officers of the Company and of state officials and, as to legal
matters in jurisdictions other than in which they are domiciled, on
opinions of local counsel of other counsel or of other counsel
retained or having rendered legal services with respect to specific
matters, in which case their opinion is to state that they are so
doing and they believe such reliance is reasonable.
(e) The Representatives shall have received from Jones, Day,
Reavis & Pogue, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to the incorporation
of the Company, the validity of the Offered Securities, the
Registration Statement, the Prospectus and other related matters as
the Representatives may require, and the Company shall have furnished
to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters. In rendering such opinion,
Jones, Day, Reavis & Pogue may rely as to matters of law other than
the law of the State of Delaware, the State of New York and the
Federal law of the United States upon the opinion of other counsel of
good standing believed to be reliable, provided that such opinion
shall be attached to the opinion of counsel for the Underwriters.
(f) The Representatives shall have received a certificate,
dated the Closing Date, of the President or any Vice-President and a
principal financial or accounting officer of the Company in which
such officers, to the best of their knowledge after reasonable
investigation, shall state that the representations and warranties of
the Company in this Agreement are true and correct, that the Company
has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the
Closing Date, that no stop order suspending the effectiveness of the
Registration Statement or of any part thereof has been issued and no
proceedings for that purpose have been instituted or are contemplated
by the Commission and that, subsequent to the date of the most recent
financial statements in the Prospectus, there has been no material
adverse change, nor any development or event involving a prospective
material adverse change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole except as set forth in or contemplated
by the Prospectus or as described in such certificate.
(g) The Representatives shall have received a letter or letters
(which may refer to a letter or letters previously delivered to the
Representatives), dated the Closing Date, of Ernst & Young LLP which
meets the requirements of subsection (a) of this Section, except that
the specified date referred to in such subsection will be a date not
more than five days prior to the Closing Date for the purposes of
this subsection.
The Company will furnish the Representatives with such conformed copies of
such opinions, certificates, letters and documents as the Representatives
reasonably request. The Lead Underwriter may, in its sole discretion,
waive on behalf of the Underwriters compliance with any conditions to the
obligations of the Underwriters under this Agreement and the Terms
Agreement.
6. Indemnification and Contribution. (a) The Company will
indemnify and hold harmless each Underwriter against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of
any material fact contained in the Registration Statement, the Prospectus,
or any amendment or supplement thereto, or any related preliminary
prospectus or preliminary prospectus supplement, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal
or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the Company
will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives, if any, specifically for use therein, it being understood
and agreed that the only such information furnished by any Underwriter
consists of the information described as such in the Terms Agreement; and,
provided, further, that as to any untrue statement or omission in any
preliminary prospectus this subsection shall not inure to the benefit of
any Underwriter on account of any loss, claim, damage, liability or action
arising from the sale of Offered Securities to any person by that
Underwriter if that Underwriter failed to send or give a copy of the
Prospectus, as the same may be amended or supplemented, to that person if
required under the Act, and the untrue statement or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact in such preliminary prospectus was corrected in such
Prospectus unless such failure resulted form non-compliance by the Company
with Sections 4(b), 4(c) and 4(e) hereof.
(b) Each Underwriter will severally and not jointly indemnify
and hold harmless the Company against any losses, claims, damages or
liabilities to which the Company may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained
in the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus or
preliminary prospectus supplement, or arise out of or are based upon
the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter through the Representatives, if any, specifically for use
therein, and will reimburse any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses
are incurred, it being understood and agreed that the only such
information furnished by any Underwriter consists of the information
described as such in the Terms Agreement.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under subsection (a) or (b) above, notify the
indemnifying party of the commencement thereof; but the omission so
to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is
brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that
it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party
will not be liable to such indemnified party under this Section for
any legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement
of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party unless such
settlement includes an unconditional release of such indemnified
party from all liability on any claims that are the subject matter of
such action.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as
a result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other from the offering of the
Securities or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and
the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters.
The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Underwriters
and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or
omission. The amount paid by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim which
is the subject of this subsection (d). Notwithstanding the provisions
of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection
(d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be
in addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each person, if
any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section shall be in
addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions,
to each director of the Company, to each officer of the Company who
has signed the Registration Statement and to each person, if any, who
controls the Company within the meaning of the Act.
7. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Offered Securities under the
Terms Agreement and the aggregate principal amount of Offered Securities
that such defaulting Underwriter or Underwriters agreed but failed to pur-
chase does not exceed 10% of the total principal amount of Offered
Securities, the Lead Underwriter may make arrangements satisfactory to the
Company for the purchase of such Offered Securities by other persons,
including any of the Underwriters, but if no such arrangements are made by
the Closing Date, the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective commitments under the Terms
Agreement (including the provisions of this Agreement), to purchase the
Offered Securities that such defaulting Underwriters agreed but failed to
purchase. If any Underwriter or Underwriters so default and the aggregate
principal amount of Offered Securities with respect to which such default
or defaults occur exceeds 10% of the total principal amount of Offered
Securities and arrangements satisfactory to the Lead Underwriter and the
Company for the purchase of such Offered Securities by other persons are
not made within 36 hours after such default, the Terms Agreement will
terminate without liability on the part of any non-defaulting Underwriter
or the Company, except as provided in Section 8. As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default. The respective commitments of
the several Underwriters for the purposes of this Section shall be
determined without regard to reduction in the respective Underwriters'
obligations to purchase the principal amounts of the Offered Securities
set forth opposite their names in the Terms Agreement as a result of
Delayed Delivery Contracts entered into by the Company.
8. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Underwriters
set forth in or made pursuant to the Terms Agreement (including the
provisions of this Agreement) will remain in full force and effect,
regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter, the Company or any of their
respective representatives, officers or directors or any controlling
person, and will survive delivery of and payment for the Offered
Securities. If the Terms Agreement is terminated pursuant to Section 7 or
if for any reason the purchase of the Offered Securities by the Under-
writers is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 4 and the
respective obligations of the Company and the Underwriters pursuant to
Section 6 shall remain in effect. If the purchase of the Offered
Securities by the Underwriters is not consummated for any reason other
than solely because of the termination of the Terms Agreement pursuant to
Section 7 or the occurrence of any event specified in clause (iii), (iv)
or (v) of Section 5(c), the Company will reimburse the Underwriters for
all out-of-pocket expenses (including fees and disbursements of counsel)
reasonably incurred by them in connection with the offering of the Offered
Securities.
9. Notices. All communications hereunder will be in writing and,
if sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to them at their address furnished to the Company in writing for
the purpose of communications hereunder or, if sent to the Company, will
be mailed, delivered or telegraphed and confirmed to it at 142 Doty
Street, Fond du Lac, Wisconsin 54935, Attention: ________________.
10. Successors. The Terms Agreement (including the provisions of
this Agreement) will inure to the benefit of and be binding upon the
Company and such Underwriters as are identified in the Terms Agreement and
their respective successors and the officers and directors and controlling
persons referred to in Section 6, and no other person will have any right
or obligation hereunder.
11. Representation of Underwriters. Any Representatives will act
for the several Underwriters in connection with the financing described in
the Terms Agreement, and any action under such Terms Agreement (including
the provisions of this Agreement) taken by the Representatives jointly or
by the Lead Underwriter will be binding upon all the Underwriters.
12. Counterparts. The Terms Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all
such counterparts shall together constitute one and the same Agreement.
13. Applicable Law. This Agreement and the Terms Agreement shall be
governed by, and construed in accordance with, the laws of the State of
New York, without regard to principles of conflicts of laws.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New
York in any suit or proceeding arising out of or relating to the Terms
Agreement (including the provisions of this Agreement) or the transactions
contemplated thereby.
<PAGE>
ANNEX I
(Three copies of this Delayed Delivery Contract should be signed and
returned to the address shown below so as to arrive not later than
9:00 A.M., New York time, on ....................................,
19...*.)
________________
* Insert date which is third full business day prior to Closing Date
under the Terms Agreement.
DELAYED DELIVERY CONTRACT
[Insert date of initial public offering]
GIDDINGS & LEWIS, INC.
c/o CS FIRST BOSTON CORPORATION
Park Avenue Plaza
New York, N.Y. 10055
Attention: [Insert name of CS First Boston Corporate Finance
Officer]
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Giddings & Lewis,
Inc., a Wisconsin corporation ("Company"), and the Company agrees to sell
to the undersigned, [If one delayed closing, insert as of the date hereof,
for delivery on , 19 ("Delivery Date"),]
[$]..............
principal amount of the Company's [Insert title of securities]
("Securities"), offered by the Company's Prospectus dated , 19
and a Prospectus Supplement dated , 19 relating
thereto, receipt of copies of which is hereby acknowledged, at % of the
principal amount thereof plus accrued interest, if any, and on the further
terms and conditions set forth in this Delayed Delivery Contract
("Contract").
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of the date hereof,
for delivery on the dates set forth below, Securities in the principal
amounts set forth below:
Delivery Date Principal Amount
. . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . .
Each of such delivery dates is hereinafter referred to as a Delivery
Date.]
Payment for the Securities that the undersigned has agreed to
purchase for delivery on the each Delivery Date shall be made to the
Company or its order by certified or official bank check in New York
Clearing House (next day) funds at the office of at
.M. on the such Delivery Date upon delivery to the undersigned of
the Securities to be purchased by the undersigned for delivery on such
Delivery Date in definitive fully registered form and in such
denominations and registered in such names as the undersigned may
designate by written or telegraphic communication addressed to the Company
not less than five full business days prior to the such Delivery Date.
It is expressly agreed that the provisions for delayed delivery and
payment are for the sole convenience of the undersigned; that the purchase
hereunder of Securities is to be regarded in all respects as a purchase as
of the date of this Contract; that the obligation of the Company to make
delivery of and accept payment for, and the obligation of the undersigned
to take delivery of and make payment for, Securities on the each Delivery
Date shall be subject only to the conditions that (1) investment in the
Securities shall not at the such Delivery Date be prohibited under the
laws of any jurisdiction in the United States to which the undersigned is
subject and (2) the Company shall have sold to the Underwriters the total
principal amount of the Securities less the principal amount thereof
covered by this and other similar Contracts. The undersigned represents
that its investment in the Securities is not, as of the date hereof,
prohibited under the laws of any jurisdiction to which the undersigned is
subject and which governs such investment.
Promptly after completion of the sale to the Underwriters the Company
will mail or deliver to the undersigned at its address set forth below
notice to such effect, accompanied by a copy copies of the opinion[s] of
counsel for the Company delivered to the Underwriters in connection
therewith.
This Contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be
on a first-come, first-served basis. If this Contract is acceptable to
the Company, it is requested that the Company sign the form of acceptance
below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding
contract between the Company and the undersigned when such counterpart is
so mailed or delivered.
Yours very truly,
(Name of Purchaser)
By
(Title of Signatory)
(Address of Purchaser)
Accepted, as of the above date.
GIDDINGS & LEWIS, INC.
By
[Insert Title]
_______________________________________________________________________
GIDDINGS & LEWIS, INC.
the Company
AND
FIRSTAR TRUST COMPANY
the Trustee
_____
INDENTURE
Dated as of ____________, 1995
_____
________________________________________________________________________
<PAGE>
CROSS REFERENCE TABLE*
TIA Section Indenture 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.
<PAGE>
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 Effects
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; . . . . . . . . . . . . . . . . . . 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 ____________, 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) the applicability of, and 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 in an aggregate principal amount in excess of $10,000,000 may elect
to receive payments of interest (other than interest payable on the Stated
Maturity or on redemption or repurchase) 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 a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under any applicable federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of 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 a bankrupt or insolvent, or the consent by
it to the entry of a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any applicable
federal or state bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case
or proceeding against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable
federal or state law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of 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 510(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 upon 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 a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by 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 910(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 Effects
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: __________________________________
Title: ____________________________
Attest: __________________________________
Title: ____________________________
FIRSTAR TRUST COMPANY
as Trustee
By: __________________________________
Title: ____________________________
Attest: __________________________________
Title: ____________________________
STATE OF WISCONSIN )
) SS.
COUNTY OF FOND DU LAC )
On this _____ day of ________, 1995, before me, a Notary Public and
for said county and state, personally appeared ________________ and
________________ 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 ________________ and ________________ 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 ________ day of ________________, 1995.
[Notarial Seal]
Notary Public
My Commission
STATE OF WISCONSIN )
) SS.
COUNTY OF MILWAUKEE )
On this _____ day of ________, 1995, before me, a Notary Public and
for said county and state, personally appeared ________________ and
________________ 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 ________________ and ________________ 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 ________ day of ________________, 1995.
[Notarial Seal]
Notary Public
My Commission
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
July 21, 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 (the "Registration Statement"), to be 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 $150,000,000 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 the Indenture, to be entered into between the Company
and Firstar Trust Company substantially in the form filed as an exhibit to
the Registration Statement (the "Indenture"), and a supplemental indenture
(the "Supplemental Indenture") or an officers' certificate (the "Officers'
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; and (d) 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;
b. The due execution and delivery of the Indenture
by the parties thereto in substantially the form of the proposed
Indenture attached as Exhibit 4.1 to the Registration Statement;
and
c. The due execution and delivery of the
Supplemental Indenture or the Officers' 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 12
<TABLE>
GIDDINGS & LEWIS, INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(In thousands, except ratios)
<CAPTION>
Three Year Ended December 31,
Months
Ended
April 2,
1995 1994 1993 1992 1991 1990
<S> <C> <C> <C> <C> <C> <C>
Earnings Before Taxes $11,690 $77,606 $70,027 $46,024 $30,137 $26,393
Add:
Interest Expense $477 $1,720 $4,141 $10,009 $1,524 $184
Estimated Interest Component
of Rental Payments $203 $733 $719 $836 $499 $253
Earnings, as Adjusted $12,370 $80,059 $74,887 $56,869 $32,160 $26,830
Fixed Charges:
Interest Expense $477 $1,720 $4,141 $10,009 $1,524 $184
Estimated Interest Component
of Rental Payments $203 $733 $719 $836 $499 $253
Total Fixed Charges $680 $2,453 $4,860 $10,845 $2,023 $437
Ratio of Earnings to Fixed 18.2x 32.6x 15.4x 5.2x 15.9x 61.4x
Charges
</TABLE>
Exhibit 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3 dated July 21, 1995) and related
Prospectus of Giddings & Lewis, Inc. for the registration of $150 million
of debt securities and to the incorporation by reference therein of: (1)
our report 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
July 20, 1995
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, That I
Albert J. Baciocco, Jr.
hereby constitute and appoint Joseph R. Coppola and Richard C. Kleinfeldt,
and each of them individually, my true and lawful attorneys-in-fact and
agents, with full power of substitution and re-substitution, for me and in
my name, place and stead, in any and all capacities, to sign my name as a
director of Giddings & Lewis, Inc. (the "Company") to the Registration
Statement on Form S-3, and any amendments (including post-effective
amendments) or supplements thereto, relating to a public offering or
offerings of Debt Securities to be effected by the Company, and to file
said Registration Statement, and any amendment (including any post-
effective amendment) or supplement thereto, with the Securities and
Exchange Commission in connection with the registration of the offer and
sale of the Debt Securities under the Securities Act of 1933, as amended.
I hereby ratify and confirm all that said attorneys-in-fact and
agents, or each of them, have done or shall lawfully do by virtue of this
Power of Attorney.
WITNESS my hand this 12th day of July, 1995.
/s/ Albert J. Baciocco, Jr.
Albert J. Baciocco, Jr.
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, That I
John A. Becker
hereby constitute and appoint Joseph R. Coppola and Richard C. Kleinfeldt,
and each of them individually, my true and lawful attorneys-in-fact and
agents, with full power of substitution and re-substitution, for me and in
my name, place and stead, in any and all capacities, to sign my name as a
director of Giddings & Lewis, Inc. (the "Company") to the Registration
Statement on Form S-3, and any amendments (including post-effective
amendments) or supplements thereto, relating to a public offering or
offerings of Debt Securities to be effected by the Company, and to file
said Registration Statement, and any amendment (including any post-
effective amendment) or supplement thereto, with the Securities and
Exchange Commission in connection with the registration of the offer and
sale of the Debt Securities under the Securities Act of 1933, as amended.
I hereby ratify and confirm all that said attorneys-in-fact and
agents, or each of them, have done or shall lawfully do by virtue of this
Power of Attorney.
WITNESS my hand this 12th day of July, 1995.
/s/ John A. Becker
John A. Becker
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, That I
Ruth M. Davis
hereby constitute and appoint Joseph R. Coppola and Richard C. Kleinfeldt,
and each of them individually, my true and lawful attorneys-in-fact and
agents, with full power of substitution and re-substitution, for me and in
my name, place and stead, in any and all capacities, to sign my name as a
director of Giddings & Lewis, Inc. (the "Company") to the Registration
Statement on Form S-3, and any amendments (including post-effective
amendments) or supplements thereto, relating to a public offering or
offerings of Debt Securities to be effected by the Company, and to file
said Registration Statement, and any amendment (including any post-
effective amendment) or supplement thereto, with the Securities and
Exchange Commission in connection with the registration of the offer and
sale of the Debt Securities under the Securities Act of 1933, as amended.
I hereby ratify and confirm all that said attorneys-in-fact and
agents, or each of them, have done or shall lawfully do by virtue of this
Power of Attorney.
WITNESS my hand this 10th day of July, 1995.
/s/ Ruth M. Davis
Ruth M. Davis
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, That I
Clyde H. Folley
hereby constitute and appoint Joseph R. Coppola and Richard C. Kleinfeldt,
and each of them individually, my true and lawful attorneys-in-fact and
agents, with full power of substitution and re-substitution, for me and in
my name, place and stead, in any and all capacities, to sign my name as a
director of Giddings & Lewis, Inc. (the "Company") to the Registration
Statement on Form S-3, and any amendments (including post-effective
amendments) or supplements thereto, relating to a public offering or
offerings of Debt Securities to be effected by the Company, and to file
said Registration Statement, and any amendment (including any post-
effective amendment) or supplement thereto, with the Securities and
Exchange Commission in connection with the registration of the offer and
sale of the Debt Securities under the Securities Act of 1933, as amended.
I hereby ratify and confirm all that said attorneys-in-fact and
agents, or each of them, have done or shall lawfully do by virtue of this
Power of Attorney.
WITNESS my hand this 17th day of July, 1995.
/s/ Clyde H. Folley
Clyde H. Folley
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, That I
Benjamin F. Garmer, III
hereby constitute and appoint Joseph R. Coppola and Richard C. Kleinfeldt,
and each of them individually, my true and lawful attorneys-in-fact and
agents, with full power of substitution and re-substitution, for me and in
my name, place and stead, in any and all capacities, to sign my name as a
director of Giddings & Lewis, Inc. (the "Company") to the Registration
Statement on Form S-3, and any amendments (including post-effective
amendments) or supplements thereto, relating to a public offering or
offerings of Debt Securities to be effected by the Company, and to file
said Registration Statement, and any amendment (including any post-
effective amendment) or supplement thereto, with the Securities and
Exchange Commission in connection with the registration of the offer and
sale of the Debt Securities under the Securities Act of 1933, as amended.
I hereby ratify and confirm all that said attorneys-in-fact and
agents, or each of them, have done or shall lawfully do by virtue of this
Power of Attorney.
WITNESS my hand this 13th day of July, 1995.
/s/ Benjamin F. Garmer, III
Benjamin F. Garmer, III
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, That I
John W. Guffey, Jr.
hereby constitute and appoint Joseph R. Coppola and Richard C. Kleinfeldt,
and each of them individually, my true and lawful attorneys-in-fact and
agents, with full power of substitution and re-substitution, for me and in
my name, place and stead, in any and all capacities, to sign my name as a
director of Giddings & Lewis, Inc. (the "Company") to the Registration
Statement on Form S-3, and any amendments (including post-effective
amendments) or supplements thereto, relating to a public offering or
offerings of Debt Securities to be effected by the Company, and to file
said Registration Statement, and any amendment (including any post-
effective amendment) or supplement thereto, with the Securities and
Exchange Commission in connection with the registration of the offer and
sale of the Debt Securities under the Securities Act of 1933, as amended.
I hereby ratify and confirm all that said attorneys-in-fact and
agents, or each of them, have done or shall lawfully do by virtue of this
Power of Attorney.
WITNESS my hand this 12th day of July, 1995.
/s/ John W. Guffey, Jr.
John W. Guffey, Jr.
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, That I
Ben R. Stuart
hereby constitute and appoint Joseph R. Coppola and Richard C. Kleinfeldt,
and each of them individually, my true and lawful attorneys-in-fact and
agents, with full power of substitution and re-substitution, for me and in
my name, place and stead, in any and all capacities, to sign my name as a
director of Giddings & Lewis, Inc. (the "Company") to the Registration
Statement on Form S-3, and any amendments (including post-effective
amendments) or supplements thereto, relating to a public offering or
offerings of Debt Securities to be effected by the Company, and to file
said Registration Statement, and any amendment (including any post-
effective amendment) or supplement thereto, with the Securities and
Exchange Commission in connection with the registration of the offer and
sale of the Debt Securities under the Securities Act of 1933, as amended.
I hereby ratify and confirm all that said attorneys-in-fact and
agents, or each of them, have done or shall lawfully do by virtue of this
Power of Attorney.
WITNESS my hand this 17th day of July, 1995.
/s/ Ben R. Stuart
Ben R. Stuart
Securities and Exchange Commission
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER
THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility of a Trustee
Pursuant to Section 305(b)(2) _________
FIRSTAR TRUST COMPANY
(Exact name of trustee as specified in its charter)
Wisconsin 39-0281260
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U. S. National Bank) Identification Number)
777 East Wisconsin Avenue, Milwaukee, Wisconsin 53202
(Address of principal executive offices) (Zip Code)
Kevin C. Schuller, Vice President and Assistant Secretary
Firstar Trust Company
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Telephone (414) 765-5725
(Name, address, and telephone number of agent for service)
Giddings & Lewis, Inc.
(Exact name of obligor as specified in its charter)
Wisconsin 39-1643189
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
142 Doty Street
Fond du Lac, Wisconsin 54935
(Address of principal executive offices) (Zip Code)
Debt Securities
(Title of indenture securities)
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
Office of Commissioner of Banking, Madison, Wisconsin
Federal Deposit Insurance Corporation, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust
powers.
The corporate trustee is authorized to exercise corporate
trust powers.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each
such affiliation.
The obligor is not an affiliate of the trustee.
Item 3. Voting Securities of the Trustee.
Furnish the following information as to each class of voting
securities of the trustee:
As of July 21, 1995
Col. A Col. B
Title of class Amount outstanding
Per General Instruction B to Form T-1, no response is required
to this item as the obligor is not presently in default.
Item 4. Trusteeships under Other Indentures.
If the trustee is a trustee under another indenture under
which any other securities, or certificates of interest or
participation in any other securities, of the obligor are
outstanding, furnish the following information:
(a) Title of the securities outstanding under each such other
indenture.
Per General Instruction B to Form T-1, no response is
required to this item as the obligor is not presently in
default.
(b) A brief statement of the facts relied upon as a basis for
the claim that no conflicting interest within the meaning
of Section 310(b)(1) of the Act arises as a result of the
trusteeship under any such other indenture, including a
statement as to how the indenture securities will rank as
compared with the securities issued under such other
indenture.
Per General Instruction B to Form T-1, no response is
required to this item as the obligor is not presently in
default.
Item 5. Interlocking Directorates and Similar Relationships with the
Obligor or Underwriters.
If the trustee or any of the directors or executive officers
of the trustee is a director, officer, partner, employee,
appointee, or representative of the obligor or of any
underwriter for the obligor, identify each such person having
any such connection and state the nature of each such
connection.
Per General Instruction B to Form T-1, no response is required
to this item as the obligor is not presently in default.
Item 6. Voting Securities of the Trustee Owned by the Obligor or its
Officials.
Furnish the following information as to the voting securities
of the trustee owned beneficially by the obligor and each
director, partner, and executive officer of the obligor:
As of July 21, 1995
Col. A Col. B Col. C Col. D
Name of owner Title of class Amount owned Percentage of
beneficially voting securities
represented by
amount given
in Col. C
Per General Instruction B to Form T-1, no response is required
to this item as the obligor is not presently in default.
Item 7. Voting Securities of the Trustee Owned by Underwriters or
their Officials.
Furnish the following information as to the voting securities
of the trustee owned beneficially by each underwriter for the
obligor and each director, partner, and executive officer of
each such underwriter:
As of July 21, 1995
Col. A Col. B Col. C Col. D
Name of owner Title of class Amount owned Percentage of
beneficially voting securities
represented by
amount given
in Col. C
Per General Instruction B to form T-1, no response is required
to this item as the obligor is not presently in default.
Item 8. Securities of the Obligor Owned or Held by the Trustee.
Furnish the following information as to securities of the
obligor owned beneficially or held as collateral security for
obligations in default by the trustee:
As of July 21, 1995
Col. A Col. B Col. C Col. D
Title of class Whether Amount owned Percent of
the securities beneficially or class represented
are voting held as collateral by amount given
or nonvoting security for in Col. C
securities obligations
in default
Per General Instruction B to Form T-1, no response is required
to this item as the obligor is not presently in default.
Item 9. Securities of Underwriters Owned or Held by the Trustee.
If the trustee owns beneficially or holds as collateral
security for obligations in default any securities of an
underwriter for the obligor, furnish the following information
as to each class of securities of such underwriter any of
which are so owned or held by the trustee:
As of July 21, 1995
Col. A Col. B Col. C Col. D
Name of Amount Amount owned Percent of
issuer and outstanding beneficially or held class represented
title of class as collateral security by amount given
for obligations in in Col. C
default by trustee
Per General Instruction B to Form T-1, no response is required
to this item as the obligor is not presently in default.
Item 10. Ownership or Holdings by the Trustee of Voting Securities of
Certain Affiliates or Security Holders of the Obligor.
If the trustee owns beneficially or holds as collateral
security for obligations in default voting securities of a
person who, to the knowledge of the trustee (1) owns 10
percent or more of the voting securities of the obligor or (2)
is an affiliate, other than a subsidiary, of the obligor,
furnish the following information as to the voting securities
of such person:
As of July 21, 1995
Col. A Col. B Col. C Col. D
Name of Amount Amount owned Percent of
issuer and outstanding beneficially or held class represented
title of class as collateral security by amount given
for obligations in in Col. C
default by trustee
Per General Instruction B to Form T-1, no response is required
to this item as the obligor is not presently in default.
Item 11. Ownership or Holdings by the Trustee of any Securities of a
Person Owning 50 Percent or More of the Voting Securities of
the Obligor.
If the trustee owns beneficially or holds as collateral
security for obligations in default any securities of a person
who, to the knowledge of the trustee, owns 50 percent or more
of the voting securities of the obligor, furnish the following
information as to each class of securities of such person any
of which are so owned or held by the trustee:
As of July 21, 1995
Col. A Col. B Col. C Col. D
Name of Amount Amount owned Percent of
issuer and outstanding beneficially or held class represented
title of class as collateral security by amount given
for obligations in in Col. C
default by trustee
Per General Instruction B to Form T-1, no response is required
to this item as the obligor is not presently in default.
Item 12. Indebtedness of the Obligor to the Trustee.
Except as noted in the instructions, if the obligor is
indebted to the trustee, furnish the following information:
As of July 21, 1995
Col. A Col. B Col. C
Nature of indebtedness Amount outstanding Date due
Per General Instruction B to Form T-1, no response is required
to this item as the obligor is not presently in default.
Item 13. Defaults by the Obligor.
(a) State whether there is or has been a default with
respect to the securities under this indenture.
Explain the nature of any such default.
Per General Instruction B to Form T-1, no response is
required to this item as the obligor is not presently
in default.
(b) If the trustee is a trustee under another indenture
under which any other securities, or certificates of
interest or participation in any other securities, of
the obligor are outstanding, or is trustee for more
than one outstanding series of securities under the
indenture, state whether there has been a default under
any such indenture or series, identify the indenture or
series affected, and explain the nature of any such
default.
Per General Instruction B to Form T-1, no response is
required to this item as the obligor is not presently
in default.
Item 14. Affiliations with the Underwriters.
If any underwriter is an affiliate of the trustee, describe
each such affiliation.
Per General Instruction B to Form T-1, no response is required
to this item as the obligor is not presently in default.
Item 15. Foreign Trustee.
Identify the order or rule pursuant to which the foreign
trustee is authorized to act as sole trustee under indentures
qualified or to be qualified under the Act.
Not applicable
Item 16. List of Exhibits.
List below all exhibits filed as part of this statement of
eligibility.
1. A copy of the Articles of Association of Firstar Trust
Company (f/k/a First Wisconsin Trust Company) as now in
effect (filed herewith).
2. Certificate of authority of the Trustee to commence
business (contained in Exhibit 1).
3. Authorization of the Trustee to exercise trust powers
(contained in Exhibit 1).
4. A copy of the existing By-Laws of Firstar Trust Company
(f/k/a First Wisconsin Trust Company) (filed herewith).
6. The consent of the Trustee required by Section 321(b)
of the Trust Indenture Act of 1939 (filed herewith).
7. A copy of the latest report of condition of the Trustee
published pursuant to law or the requirement of its
supervising or examining authority (filed herewith).
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of
1939, the Trustee, Firstar Trust Company, a corporation organized and
existing under the laws of the State of Wisconsin, has duly caused this
statement of eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of Milwaukee, and State of
Wisconsin, on the 21st day of July, 1995.
FIRSTAR TRUST COMPANY
(Trustee)
By: /s/ Joseph S. Quinn
Joseph S. Quinn, First Vice President
By: /s/ Jeffrey R. Snyder
Jeffrey R. Snyder, Assistant Secretary
<PAGE>
EXHIBIT 1
STATE OF WISCONSIN
OFFICE OF COMMISSIONER OF BANKING
BANKS DIVISION
POST OFFICE BOX 7876
MADISON, WISCONSIN 53707-7876
(Telephone: 608-266-1621)
AMENDMENT TO ARTICLES
CERTIFICATION
I, Toby E. Sherry, Commissioner of Banking of the State of Wisconsin, do
hereby certify that an amendment to the original Articles of Incorporation
of First Wisconsin Trust Company, Milwaukee, Wisconsin, of which a duly
verified copy is hereto attached, was on the 17th day of August, A.D.
1992, approved and filed in the Office of Commissioner of Banking. This
amendment relates to corporate name and was adopted by stockholders of the
above bank on July 16, 1992.
IN TESTIMONY WHEREOF, I have set my hand and
affixed my official seal. Done at my office in
the City of Madison this 17th day of August,
A.D. 1992.
Toby E. Sherry
Commissioner of Banking
IMPORTANT: TO BE RECORDED BY THE REGISTER OF DEEDS TOGETHER WITH THE
ATTACHED COPY OF THE AMENDMENT
<PAGE>
We, Robert L. Webster as President, and James D. Hintz as Cashier of
Firstar Trust Company do hereby certify that the foregoing is a true copy
of an amendment to the Articles of Incorporation of this bank and that at
the annual or special meeting of the stockholders of the bank, called for
that purpose and held pursuant to the provisions of law, in the office of
the bank in the City of Milwaukee, State of Wisconsin, on the 16th day of
July, A.D. 1992, the said amendment was duly adopted by the affirmative
vote of two-thirds of all capital stock outstanding; that the majority
stockholder was present or represented at said meeting; that the entire
number of shares outstanding is 10,000; that the number of shares
represented at the meeting was 9,952; that upon the adoption of such
resolution 9,952 votes were cast in the affirmative; one vote for each
share, and that 0 votes were cast in the negative.
In Testimony Whereof, Firstar Trust Company has caused these presents to
be executed by the President and Cashier thereof and the corporate seal of
said bank is hereunto affixed this 28th day of July, A.D. 1992, by its
authority.
Firstar Trust Company
In presence of
Sharon L. Gazzana By Robert L. Webster, President
Sandra L. Belongia James Hintz, Cashier
State of Wisconsin ) ss.
Milwaukee County )
Personally came before me this 28th day of July, A.D. 1992,
Robert L. Webster as President, and James D. Hintz as Cashier of the
Firstar Trust Company, who are to me known to be such President and
Cashier, respectively, and to be the persons who executed the foregoing
instrument, and acknowledged the same as such officers, for the purposes
therein mentioned.
Diane M. Rampacek
Notary Public
Milwaukee County, Wisconsin
My commission expires 11/13/94
<PAGE>
Amendment to Articles of Incorporation
Which Articles were filed/recorded in the office of the Register of Deeds
for Milwaukee County on the 6th day of July, 1903. Recorded in Volume S
of Corporations, Page 134.
At a meeting of the stockholders of First Wisconsin Trust Company of
Milwaukee, Wisconsin, held at the office of said bank in said City on the
16th day of July, A.D. 1992, at 9:30 o'clock A.M., of that day, which
meeting was called for the purpose of amending the Articles of
Incorporation of said bank, and at which meeting 9,952 shares of the
capital stock of said bank were duly represented, the following
resolutions were adopted:
"Resolved That the Articles of Incorporation of the bank be amended by
striking out the paragraph relating to the name reading as follows:
"The name of this corporation shall be "FIRST WISCONSIN TRUST COMPANY, and
its location shall be at the City and County of Milwaukee and State of
Wisconsin."
And Inserting in lieu thereof the following paragraph:
"The title of the Corporation shall be Firstar Trust Company, and its
location shall be at the City and County of Milwaukee and State of
Wisconsin."
"It was further resolved, That the President and Cashier of said bank be
authorized, under the seal of the Corporation, to file proper certificates
of such amendment with the Commissioner of Banking as provided by law."
<PAGE>
ARTICLES OF ASSOCIATION
OF FIRSTAR TRUST COMPANY
MILWAUKEE, WISCONSIN
KNOW ALL MEN BY THESE PRESENTS, that we, Frederick Pabst, L.J. Petit,
Frederick Kasten, Oliver C. Fuller, and Edward P. Vilas, of the City and
County of Milwaukee and State of Wisconsin, have associated and do hereby
associate for the purpose of forming a corporation, to wit, a trust
company bank under and pursuant to the privileges and restrictions of the
statutes of the State of Wisconsin, in that behalf made and provided; and
particularly Chapters 221 and 223 of said statutes, and thereto adopt the
following:
Article 1
The purpose and business of this corporation shall be those of both a
state bank and a trust company bank as defined by Wisconsin law, this
corporation being a trust company bank which has been converted into a
state bank in accordance with such law.
Article 2
The name of this corporation shall be "FIRST WISCONSIN TRUST COMPANY," and
its location shall be at the City and County of Milwaukee and State of
Wisconsin.
Article 3
The capital stock of this Corporation shall be One Million Dollars
($1,000,000), divided into ten thousand (10,000) shares of the par value
of One Hundred Dollars ($100) each.
Article 4
The Board of Directors shall consist of such number of individuals, not
less than fifteen nor more than sixty, as from time to time shall be
prescribed in the By-laws, a least two-thirds of whom shall be residents
of Wisconsin and the majority of whom shall be residents of Milwaukee
County or adjacent counties. Each of said directors shall be elected for
a term of one year and until his successor has been elected and qualified.
In witness whereof, we have hereunto subscribed our names at Milwaukee,
Wisconsin, on this first day of July, A.D. 1903.
(Signed) Frederick Pabst
L.J. Petit
Fred Kasten
Oliver C. Fuller
Edward P. Vilas
State of Wisconsin
Milwaukee County
On this first day of July, A.D. 1903, personally appeared before me the
above signed Frederick Pabst, L.J. Petit, Frederick Kasten, Oliver C.
Fuller, and Edward P. Vilas, to me known to be the persons who executed
the foregoing instrument and severally acknowledge the same.
My commission will expire on the 30th day of December, 1906.
(Signed) W.L. Cheney
Notary Public
Milwaukee County,
Wisconsin
) ss.
)
<PAGE>
EXHIBIT 4
As Amended through December 20, 1990
RESTATED BY-LAWS OF
FIRSTAR TRUST COMPANY
ADOPTED JANUARY 15, 1963
Article 1
The annual meeting of this Corporation for the election of its directors
and the transaction of its general business shall be held on the third
Thursday of February at the general office of this Corporation in the City
of Milwaukee, at 8 o'clock in the morning, or at such other hour and place
in the City of Milwaukee as shall be designated by the Board of Directors.
If any hour other than 8 o'clock in the morning or any place other than
the general office of this Corporation shall be so designated, notice
thereof shall be given by mailing the same to each stockholder at his last
known address at least ten (10) days prior to the holding of said meeting.
Article 2
Special meetings of the stockholders of this Corporation shall be held in
the City of Milwaukee and may be called at any time by order of the
Chairman of the Board, the President, or one of the Vice Presidents, or by
the Board of Directors, by mailing to each stockholder at his last known
address at least ten (10) days prior to the date of the holding of such
special meeting, a notice specifying the time and place of such special
meeting and the business to be transacted thereat, and no other business
shall be transacted at said meeting.
Article 3
Section 1. Every stockholder may vote and participate at any meeting of
stockholders, either in person or by proxy. No proxy shall be recognized
unless the same shall be in writing, subscribed by the stockholder nor
unless filed with the Secretary prior to the meeting. No active or
salaried officer may act as a proxy for a stockholder.
Section 2. The Cashier shall maintain a stock book showing the name,
residence, and number of shares held by each stockholder, which shall at
all times, during the usual hours for transacting business, be subject to
inspection by the officers, directors, and stockholders of the Company.
Article 4
Section 1. The Board of Directors shall consist of not less than fifteen
nor more than thirty directors, the number of directors to be determined
by resolution adopted at each annual stockholders' meeting, or at any
special stockholders' meeting duly called for such purpose. On and after
January 1, 1978, no person shall be eligible to be elected or re-elected
as a member of the Board of Directors if he shall have attained 70 years
of age at the date of the election.
Section 2. The election of directors by the stockholders shall be by
ballot or other method as shall be adopted by the stockholders by
resolution or motion adopted at the stockholders' meeting.
Section 3. A majority of the Board of Directors shall constitute a quorum
for the transaction of business; provided that the directors may, once in
six (6) months, designate by resolution nine (9) members, any five (5) of
whom shall constitute a quorum.
Section 4. Minutes of each meeting of the Board of Directors shall
disclose the date of such meeting, the names of directors present, and the
reasons for the absence of each director not in attendance; shall be
subscribed by the presiding officer; and shall be read and approved by the
Board of Directors at the next succeeding meeting, the minutes of which
shall show such fact.
Section 5. A regular meeting of the Board of Directors shall be held at
the office of this Corporation in the City of Milwaukee at least once in
each month at such time as shall, from time to time, be designated by
resolution of the Board of Directors.
Section 6. Special meetings of the Board of Directors shall be held at
the general office of the Corporation in the City of Milwaukee or at such
other place in the City of Milwaukee as shall be designated, and may be
called by order of the Chairman of the Board, the President, or by any two
of the directors by mailing notice of such meeting and the designated time
and place thereof to each of the directors at his last known address two
(2) days prior to the holding of such meeting.
Article 5
Section 1. An Executive Committee consisting of the Chairman of the
Board, the President, and not less than six (6) or more than twelve (12)
other directors may be appointed by the Board of Directors to serve until
their successors shall be appointed, and such Executive Committee shall
direct the management of the affairs of this Corporation in the interim
between meetings of the Board of Directors, subject to the control of the
Board. The Chairman of the Board, or in his absence (through failure of
the Board of Directors to elect a Chairman or otherwise), the President,
shall preside at meetings of the Executive Committee. The person from
time to time elected Secretary of the Board shall also serve as Secretary
of the Executive Committee.
Section 2. Meetings of the Executive Committee may be held at any time
when the Board of Directors is not in session, and may be prescribed by
the Board of Directors or may be called by order of the Chairman of the
Board, the President, or by any two (2) members of the Executive
Committee, by mailing notice of such meeting designating the time and
place thereof, addressed to each member of the Committee at his last known
address two (2) days prior to the holding of such meeting, or by personal
notice thereof given a sufficient length of time before such meeting to
enable members to attend.
Section 3. The Executive Committee shall keep full and true minutes of
all business transacted at each meeting and shall submit its report
together with a copy of the minutes of its proceedings to the Board of
Directors at its next meeting thereafter.
Section 4. The Board of Directors may appoint an Investment Committee
consisting of at least two (2) officers and at least four (4) directors
who are not officers, which Committee shall have such duties and authority
as the Board of Directors shall from time to time prescribe. Members of
such committee shall serve for such periods as the Board shall from time
to time prescribe.
Section 5. The Board of Directors shall appoint a Loan Committee
consisting of three (3) or more directors, which shall meet at least once
each month an shall determine policies as to renewals and applications for
new loans. All loans shall be presented to the Loan Committee for
approval, provided, however, that the Board of Directors may by resolution
designate officers who may make loans without the prior approval of the
Loan Committee but subject to the provisions of the Wisconsin Statutes,
the regulations of the Commissioner of Banks, and these By-laws. Officers
designated by the Board may not make unsecured loans in an amount
exceeding $10,000, or collateral loans in an amount exceeding $25,000. No
loans may be made in an amount exceeding the limits established from time
to time by the Board of Directors without securing a sworn financial
statement unless such loan is secured by collateral having a value in
excess of the amount of the loan.
Section 6. Each year the Board of Directors shall appoint, from among its
members or stockholders, an Examining Committee, which shall have such
duties as shall be prescribed by law.
Section 7. The Board of Directors shall have the power to set the banking
hours of this bank, subject to the provisions of the Wisconsin Statutes
and the regulations of the Commissioner of Banks. Certified copies of all
resolutions of the Board pertaining to banking hours shall be furnished to
the State Banking Department.
Section 8. A detailed statement of all current expenses and taxes paid
shall be presented to the Board in writing every month, or more often if
required by the Board.
Article 6
A written waiver signed by any director or member of any committee shall
be the equivalent of due notice to him of any meeting therein mentioned.
Article 7
Directors and members of committees appointed by the Board of Directors,
except directors or members who are salaried officers or employees of this
Corporation, shall be paid such fees for services and attendance at
meetings as the Board of Directors shall from time to time prescribe.
Article 8
Section 1. The general officers of the Corporation shall be a president,
two or more vice presidents, a cashier and one or more assistant cashiers,
a secretary and one or more assistant secretaries, one or more trust
officers, and such other officers as may be appropriate for the
transaction of its business, each of whom shall be elected by a viva voce
vote of the Board of Directors, unless objection thereto is made,
whereupon such election shall be by ballot. The Chairman of the Board, if
there be one, the senior executive officer in charge of conducting the
business of this Corporation and the officer in charge of the Trust
Department of this Corporation shall be chosen from among the directors.
Each of said officers shall be elected for one year and until his
successor has been elected and qualified, unless sooner removed by the
Board of Directors.
Section 2. The Board of Directors shall have authority to define the
duties and obligations of all officers, to fix their compensation, to
dismiss them at pleasure, to fill vacancies in offices, and to require any
officer to provide a satisfactory bond for the faithful performance of his
duties. Unless otherwise prescribed by the Board of Directors, each
officer shall have the duties and authority prescribed by law or
ordinarily incidental to his office in similar corporations.
Section 3. The Board of Directors shall designate the officers to be the
chief executive officer in charge of the Trust Department of this
Corporation. All fiduciary powers of this Corporation shall be exercised
through such officer who shall be generally responsible for and supervise
and direct the activities of the Trust Department, and do and perform all
acts and things necessary and proper in carrying on the business of the
Trust Department in accordance with the provisions of applicable laws and
regulations and the directions of the Board of Directors, appropriate
committees of the Board, and his superior officers, and shall cause to be
kept under his supervision books of account of the transactions of this
Corporation in a fiduciary capacity.
Section 4. The executive officers shall have authority to employ and
discharge all necessary agents and servants of this Corporation whose
appointments shall not be provided for by the Board, to define their
duties, and to fix their compensations.
Article 9
The Board of Directors may by resolution provide for this Corporation to
indemnify each director or officer, whether or not then in office, against
all expense and liability relating to a claim, action, suit, or proceeding
against him or to which he may be made a party by reason of his being or
having been a director or officer of this Corporation, or of any other
company which he served as a director of officer at the request of this
Corporation, except in any case where he was finally adjudged to have been
derelict in the performance of his duties as such director or officer.
Such resolution may include provisions for this Corporation (1) to assume
or provide at its expense and risk the defense or settlement of any
section, (2) to purchase commercial insurance for the benefit of a
director or officer, including one adjudged guilty of negligence or
misconduct, and (3) to assume or share any additional expense or liability
as the Board of Directors deems warranted upon consideration of the
circumstances.
Article 10
The Board of Directors may by resolution adopt emergency provisions to
prevail notwithstanding any contrary provisions of these By-laws, to take
effect when a state of emergency results in this Corporation being unable
to continue its normal functions under the direction of established
management or at its regular location (which provisions may include, but
shall not be limited to procedures for establishing temporary offices, an
emergency executive committee, and emergency officer succession).
Article 11
The shares of stock of this Corporation shall be transferable only on the
books of this Corporation upon surrender of the certificate issued
therefor.
Article 12
These By-laws may be altered, amended, or repealed in whole or in part in
any manner not inconsistent with the provisions of law at any time by a
vote of the stockholders representing two-thirds of the capital stock,
such a vote to be taken at a general or special meeting, the notice
whereof shall specify that it is the intention to consider such amendment
and shall contain a full statement of the effect of the amendment
proposed.
<PAGE>
EXHIBIT 6
CONSENT OF THE TRUSTEE REQUIRED BY SECTION 321(b)
OF THE TRUST INDENTURE ACT OF 1939
Firstar Trust Company, as Trustee herein named, hereby consents that
reports of examination of said Trustee by Federal and State authorities
may be furnished by such authorities to the Securities and Exchange
Commission upon request therefor.
FIRSTAR TRUST COMPANY,
as Trustee
By: /s/ Joseph S. Quinn
Joseph S. Quinn, First Vice
President
By: /s/ Jeffrey R. Snyder
Jeffrey R. Snyder, Assistant
Secretary
Dated: July 21, 1995
<PAGE>
EXHIBIT 7
PUBLICATION COPY--COMMERCIAL AND SAVINGS BANKS
CONSOLIDATED REPORT OF CONDITION
(Including Domestic and Foreign Subsidiaries)
STATE 035 (3/93)
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LEGAL TITLE OF BANK STATE BANK NO.
12-99
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Firstar Trust Company FEDERAL RESERVE DISTRICT NO.
7
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CITY COUNTY STATE ZIP CODE CLOSE OF BUSINESS DATE
Milwaukee Milwaukee Wisconsin 53202 12/31/94
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Dollar Amounts
in Thousands
Mil Thou
ASSETS
1. Cash and balances due from
depository institutions:
a. Noninterest-bearing balances
and currency and coin . . . . . . . 6 286 1.a.
b. Interest-bearing balances . . . . . . 0 1.b.
2. Securities
a. Held-to-maturity securities . . . . . 20 868 2.b.
b. Available-for-sale securities . . . . 30 937 2.b.
3. Federal funds sold and securities
purchased under agreements to
resell in domestic offices of the
bank and of its Edge and Agreement
subsidiaries, and in IBFs:
a. Federal funds sold . . . . . . . . . 80 000 3.a.
b. Securities purchased under
agreements to resell . . . . . . . . 0 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of
unearned income . . . . . . . 19,179 4.a.
b. LESS: Allowance for loan and
lease losses . . . . . . . . . . 73 4.b.
c. LESS: Allocated transfer
risk reserve . . . . . . . . . . . . 0 4.c.
d. Loans and leases, net of unearned
income, allowance, and reserve
(Item 4.a. minus 4.b. and 4.c.) . . 19 106 4.d.
5. Assets held in trading accounts . . . . . 0 5.
6. Promises and fixed assets
(including capitalized leases) . . . . . 966 6.
7. Other real estate owned . . . . . . . . . 0 7.
8. Investments in unconsolidated
subsidiaries and associated
companies . . . . . . . . . . . . . . . 0 8.
9. Customers' liability to this bank
on acceptances outstanding . . . . . . . 0 9.
10. Intangible assets . . . . . . . . . . . . 0 10.
11. Other assets . . . . . . . . . . . . . . 9 909 11.
12. a. Total assets (sum of items
1 through 11) . . . . . . . . . . . 168 072 12.a.
b. Loans deferred pursuant to 12
U.S.C. Section 1823(J) . . . . . . . 0 12.b.
c. Total assets and losses
deferred pursuant to 12 U.S.C.
Section 1823(J) (sum of items
12.a. and 12.b.) . . . . . . . . . . 168 072 12.c.
LIABILITIES
13. Deposits:
a. In domestic offices . . . . . . . . . 144 778 13.a.
(1) Noninterest-bearing . . . . 144,486 13.a.(1)
(2) Interest-bearing . . . . . . 292 13.a.(2)
b. In foreign offices, Edge and
Agreement subsidiaries, and IBFs . . 0 13.b.
(1) Noninterest-bearing . . . . . None 13.b.(1)
(2) Interest-bearing . . . . . . None 13.b.(2)
14. a. Federal funds purchased and securities
sold under agreements to repurchase
in domestic offices of the bank and
of its Edge and Agreement
subsidiaries . . . . . . . . . . . . 745 14.a.
b. Securities sold under agreements
to repurchase . . . . . . . . . . . 0 14.b.
15. a. Demand notes issued to the
U.S. Treasury . . . . . . . . . . . 0 15.a.
b. Trading liabilities . . . . . . . . . 0 15.b.
16. Other borrowed money
a. With original maturity of one
year or less . . . . . . . . . . . . 371 16.a.
b. With original maturity of more
than one year . . . . . . . . . . . 0 16.b.
17. Mortgage indebtedness and obligations
under capitalized leases . . . . . . . . 0 17.
18. Bank's liability on acceptances
executed and outstanding . . . . . . . . 0 18.
19. Subordinated notes and debentures . . . . 0 19.
20. Other liabilities . . . . . . . . . . . . 6 799 20.
21. Total liabilities (sum of items
13 through 20) . . . . . . . . . . . . . 152 693 21.
22. Limited-life preferred stock and
related surplus . . . . . . . . . . . . 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and
related surplus (Number of shares
outstanding) . . . . . . . . . . . None 0 23.
24. Common stock (Number of shares
a. Authorized . . . 10,000
b. Outstanding . . . 10,000 . . . . . . 1 000 24.
25. Surplus (exclude all surplus
related to preferred stock) . . . . . . 12 115 25.
26. a. Undivided profits and
capital reserves . . . . . . . . . . 2 360 26.a.
b. LESS: Net unrealized loss on
marketable equity securities . . . . (96) 26.b.
27. Cumulative foreign currency
translation adjustments
28. a. Total equity capital(sum of
items 23 through 27) . . . . . . . . 15 379 28.a.
b. Losses deferred pursuant to
12 U.S.C. Section 1823(J) . . . . . 0 28.b.
c. Total equity capital and losses
deferred pursuant to 12 U.S.C.
Section 1823 (J) (sum of items
28.a. and 28.b.) . . . . . . . . . . 15 379 28.c.
29. Total liabilities, limited-life
preferred stock, equity capital,
and losses deferred pursuant to 12
U.S.C. Section 1823(J) (sum of items
21, 22, and 28.c.) . . . . . . . . . . . 168 072 29.
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MEMORANDA: Amounts outstanding as of
Report of Condition date: MEMO
1. a. Standby letter of
credit. Total . . . . . . . . . None 1.a.
1. b. Amount of Standby letters of
credit in memo 1.a. conveyed
to others through
participations . . . . . . . . None 1.b.
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NOTE: This report must be signed by an authorized officer(s) and attested
by not less than three directors other than the officer(s) signing the
report.
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I/We, the undersigned officer(s), do hereby declare that this Report of
Condition has been prepared in conformance with official instructions and
is true and correct to the best of my (our) knowledge and belief.
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SIGNATURE OF OFFICER(S) AUTHORIZED TO SIGN REPORT DATE SIGNED
James D. Hintz Jan 30, 1995
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NAME(S) AND TITLE(S) OF OFFICER(S) AREA CODE/PHONE NO.
AUTHORIZED TO SIGN REPORT 414 765-5295
James D. Hintz, First Vice President and Cashier
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We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of
our knowledge and belief has been prepared in conformance with official
instructions and is true and correct.
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SIGNATURE OF DIRECTOR SIGNATURE OF DIRECTOR SIGNATURE OF DIRECTOR
Blaine E. Rieke Philip R. Smith
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(MAKE MARK FOR State of Wisconsin County of Milwaukee
NOTARY'S SEAL) Sworn to and subscribed before me this 30th day of
January 1995 and I hereby certify that I am not an
officer or director of this bank.
Diane M. Rampacek
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Signature Notary Public
My commission expires 1-31 1999
} ss.
} ss.
