<PAGE> 1
As filed with the Securities and Exchange Commission on March 6, 1996
Registration Statement No. 333-00471
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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RUBBERMAID INCORPORATED
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
OHIO 34-0628700
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
</TABLE>
1147 AKRON ROAD
WOOSTER, OHIO 44691-6000
(216) 264-6464
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
---------------
James A. Morgan, Esq.
Senior Vice President, General Counsel and Secretary
Rubbermaid Incorporated
1147 Akron Road
Wooster, Ohio 44691-6000
(216) 264-6464
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies to:
<TABLE>
<S> <C>
Christopher M. Kelly, Esq. Richard D. Truesdell, Esq.
Jones, Day, Reavis & Pogue Davis Polk & Wardwell
901 Lakeside Avenue 450 Lexington Avenue
Cleveland, Ohio 44114 New York, New York 10017
(216) 586-3939 (212) 450-4000
</TABLE>
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time
after the effective date of the Registration Statement as determined in light of
market conditions.
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If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If the securities being registered on this Form are being offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
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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.
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<PAGE> 2
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED MARCH 6, 1996
PROSPECTUS
$400,000,000
RUBBERMAID INCORPORATED
SENIOR DEBT SECURITIES
------------------------------
Rubbermaid Incorporated (the "Company") intends to issue from time to time
senior debt securities (the "Debt Securities"), which will be direct, unsecured
obligations of the Company and offered to the public on terms determined by
market conditions at the time of sale. The Company may sell Debt Securities for
proceeds of up to $400,000,000, or the equivalent thereof in one or more foreign
currencies or composite currencies, (i) directly to purchasers, (ii) through
agents designated from time to time, (iii) to dealers, or (iv) through
underwriters or a group of underwriters.
The Debt Securities may be issued in one or more series with the same or
various maturities at or above par or with an original issue discount. The
specific designation, aggregate principal amount, authorized denominations,
purchase price, maturity, rate (or method of calculation) and time of payment of
any interest, any terms for redemption or repurchase or conversion, the currency
or composite currency in which the Debt Securities shall be denominated or
payable, any listing on a securities exchange, whether the Debt Securities will
be issued in the form of a global security or securities, or other specific
terms of the Debt Securities in respect of which this Prospectus is being
delivered ("Offered Securities") are set forth in the accompanying supplement to
the Prospectus (the "Prospectus Supplement"), together with the terms of
offering of the Offered Securities. Unless otherwise indicated in the Prospectus
Supplement, the Company does not intend to list any of the Debt Securities on a
national securities exchange. See "Plan of Distribution."
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 OR ANY SUPPLEMENT HERETO. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
---------------
The date of this Prospectus is , 1996.
<PAGE> 3
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS NOT CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR
THE ACCOMPANYING PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION
OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY OR ANY AGENT, DEALER OR UNDERWRITER. NEITHER THE DELIVERY OF THIS
PROSPECTUS OR THE ACCOMPANYING PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER
OR THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE
INFORMATION CONTAINED HEREIN OR IN THE ACCOMPANYING PROSPECTUS SUPPLEMENT IS
CORRECT AS OF ANY DATE SUBSEQUENT TO THE DATE HEREOF OR THEREOF OR THAT THERE
HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR
THEREOF. NEITHER THIS PROSPECTUS NOR THE ACCOMPANYING PROSPECTUS SUPPLEMENT
CONSTITUTES AN OFFER TO SELL OR SOLICITATION OF AN OFFER TO BUY DEBT SECURITIES
IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN
WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR
TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports and other information with the Securities and Exchange
Commission (the "Commission"). Such reports, proxy statements and other
information can be inspected and copied at the public reference facilities
maintained by the Commission at 450 Fifth Street, N.W., Room 1024, Washington,
D.C. 20549 and at the following regional offices of the Commission: Seven World
Trade Center, Suite 1300, New York, New York 10048, and Citicorp Center, 500
West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such
material can be obtained by mail at prescribed rates from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549.
This Prospectus constitutes a part of a Registration Statement on Form S-3,
as amended (the "Registration Statement") filed by the Company with the
Commission under the Securities Act of 1933, as amended (the "Securities Act").
This Prospectus and the accompanying Prospectus Supplement omit certain of the
information contained in the Registration Statement in accordance with the rules
and regulations of the Commission. Reference is hereby made to the Registration
Statement and related exhibits for further information with respect to the
Company and the Debt Securities. Statements contained herein concerning the
provisions of any document are not necessarily complete and, in each instance,
reference is made to the copy of such document filed as an exhibit to the
Registration Statement or otherwise filed with the Commission. Each such
statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed by the Company with the Commission
are incorporated by reference in this Prospectus:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1994; and
2. The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1995, June 30, 1995 and September 30, 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 hereunder shall be deemed to be incorporated by
reference in this Prospectus and to be a part hereof from the date of the filing
of such documents.
Any statement contained herein or in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or superseded
for purposes of the Registration Statement and this Prospectus to the extent
that a statement contained herein or in any subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of the
Registration Statement or this Prospectus.
The Company will provide, without charge, to each person to whom this
Prospectus is delivered, on the written or oral request of any such person, a
copy of any or all of the documents which have been incorporated herein by
reference, other than exhibits to such documents (unless such exhibits are
specifically incorporated by reference into such documents). Requests should be
directed to Rubbermaid Incorporated, 1147 Akron Road, Wooster, Ohio 44691-6000,
Attention: Investor Relations and Corporate Communications, telephone (216)
264-6464, ext. 5740.
2
<PAGE> 4
THE COMPANY
Rubbermaid Incorporated and its subsidiaries manufacture, market, sell, and
distribute plastic and rubber products consumed primarily by the end-user in the
consumer, commercial, industrial, agricultural, office, marine, automotive
accessories, contract, and juvenile markets. The Company's products include such
items as housewares; home horticulture products; decorative coverings; leisure
and recreational products; infant and children's toys; furniture, office and
industrial products; and products used in food service, health care, and
sanitary maintenance. The Company's products are distributed through its own
sales personnel and manufacturers' agents to a variety of retailers and
wholesalers, including mass merchandisers, toy stores, catalog showrooms, and
distributors serving institutional markets.
The Company has implemented a commercial paper program during the first
quarter of 1996. In connection therewith, the Company entered into a $500
million committed credit facility designated to support this commercial paper
program.
The Company was incorporated under the laws of Ohio in 1920. The Company's
corporate offices are located at 1147 Akron Road, Wooster, Ohio 44691-6000,
telephone (216) 264-6464.
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges for
the Company for each of the last five fiscal years ended December 31, 1994 and
for the nine months ended September 30, 1995. For the purposes of calculating
the ratio of earnings to fixed charges, "earnings" consist of income from
continuing operations before income taxes and fixed charges (excluding
capitalized interest). "Fixed charges" consist of (i) interest on indebtedness,
whether expensed or capitalized, and (ii) that portion of rental expense the
Company believes to be representative of interest (one-third of rental expense).
<TABLE>
<CAPTION>
NINE MONTHS ENDED FISCAL YEAR ENDED
SEPTEMBER 30, ---------------------------------------------
1995 1994 1993 1992 1991 1990
- ----------------- ----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C>
18.83 33.65 26.39 19.72 20.30 18.64
</TABLE>
USE OF PROCEEDS
The Company intends to use the net proceeds from the sale of the Debt
Securities for general corporate purposes which may include refinancing
indebtedness, financing acquisitions as they may arise, or repurchasing the
Company's equity securities. Further details relating to the uses of the net
proceeds of any such offering will be set forth in the applicable Prospectus
Supplement.
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<PAGE> 5
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be unsecured obligations issued under an Indenture
(the "Indenture") dated as of March 15, 1996 between the Company, and First
Trust of New York, National Association, as trustee (the "Trustee"). The
following summaries do not purport to be complete and are subject to the
detailed provisions of the Indenture, a copy of which is filed as an exhibit to
the Registration Statement. Wherever particular provisions of the Indenture or
terms defined therein are referred to, such provisions are incorporated by
reference as part of the statements made herein and such statements are
qualified in their entirety by such reference. Capitalized terms used below and
not otherwise defined are used as defined in the Indenture. Section references
are to the Indenture.
GENERAL
The Debt Securities will rank equally with all other unsecured and
unsubordinated debt of the Company. The Indenture does not limit the amount of
debt, either secured or unsecured, which may be issued by the Company under the
Indenture or otherwise.
Debt Securities may be issued from time to time in amounts the proceeds of
which aggregate up to $400,000,000 and will be offered independently or together
to the public on terms determined by market conditions at the time of sale. The
Debt Securities may be issued in one or more series with the same or various
maturities and may be sold at par, a premium or an original issue discount. Debt
Securities sold at an original issue discount may bear no interest or interest
at a rate which is below market rates.
Reference is made to the Prospectus Supplement for the following terms of
the Debt Securities offered hereby (to the extent such terms are applicable to
such Debt Securities): (i) designation, aggregate principal amount and
denomination; (ii) currency or units based on or relating to currencies in which
Debt Securities are denominated and in which principal of, premium, if any, and
any interest will or may be payable and the basis on which interest shall be
calculated if other than a 360-day year consisting of twelve 30-day months;
(iii) date of maturity; (iv) interest rate or rates (or method by which such
rate will be determined), if any; (v) the dates on which any such interest will
be payable; (vi) if other than the offices of the Trustee, the place or places
where the principal of and interest, if any, on the Debt Securities will be
payable; (vii) any redemption or sinking fund provisions; (viii) whether the
Debt Securities will be issuable in registered form or bearer form or both and,
if Debt Securities in bearer form are issuable, restrictions applicable to the
exchange of one form for another and to the offer, sale and delivery of Debt
Securities in bearer form; (ix) whether and under what circumstances the Company
will pay additional amounts on Debt Securities held by a person who is not a
U.S. person (as defined below) in respect of any tax, assessment or governmental
charge withheld or deducted and, if so, whether the Company will have the option
to redeem such Debt Securities rather than pay such additional amounts; (x)
whether the Debt Securities shall be issued in the form of a Global Security (as
defined herein); (xi) any other specific terms of the Debt Securities, including
any terms which may be required by or advisable under United States laws or
regulations. For purposes of this Prospectus, "U.S. person" means a citizen,
national or resident of the United States of America, its territories,
possessions and all areas subject to its jurisdiction (the "United States"), a
corporation, partnership or other entity created or organized in or under the
laws of the United States or any political subdivision thereof, or an estate or
trust the income of which is subject to United States federal income tax
regardless of its source.
Debt Securities may be presented for exchange, and registered Debt
Securities may be presented for transfer, in the manner, at the places and
subject to the restrictions set forth in the Debt Securities and the Prospectus
Supplement. Such services will be provided without charge, other than any tax or
other governmental charge payable in connection therewith, but subject to the
limitations provided in the Indenture. Debt Securities in bearer form and the
coupons, if any, appertaining thereto will be transferable by delivery.
The Debt Securities may be issued as Global Securities under a book-entry
system, as specified below. See "-- Book-Entry System."
If the Debt Securities are issued as Original Issue Discount Securities
(bearing no interest or interest at a rate which at the time of issuance is
below market rates) to be sold at a substantial discount below their stated
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<PAGE> 6
principal amount, the federal income tax consequences and other special
considerations applicable to such Original Issue Discount Securities will be
generally described in the Prospectus Supplement.
Unless otherwise described in the accompanying Prospectus Supplement, there
are no covenants or provisions contained in the Indenture which afford the
holders of the Debt Securities protection in the event of a highly leveraged
transaction involving the Company.
BOOK-ENTRY SYSTEM
If so specified in the accompanying Prospectus Supplement, Debt Securities
of any series may be issued under a book-entry system in the form of one or more
global securities (each a "Global Security"). Each Global Security will be
deposited with, or on behalf of, a depositary, which, unless otherwise specified
in the accompanying Prospectus Supplement, will be The Depository Trust Company,
New York, New York (the "Depositary"). The Global Securities will be registered
in the name of the Depositary or its nominee.
The Depositary has advised the Company that the Depositary is a limited
purpose trust company organized under the laws of the State of New York, a
"banking organization" within the meaning of the New York banking law, a member
of the Federal Reserve System, a "clearing corporation" within the meaning of
the New York Uniform Commercial Code, and a "clearing agency" registered
pursuant to the provisions of Section 17A of the Exchange Act. The Depositary
was created to hold securities of its participants and to facilitate the
clearance and settlement of securities transactions among its participants
through electronic book-entry changes in accounts of the participants, thereby
eliminating the need for physical movement of securities certificates. The
Depositary's participants include securities brokers and dealers, banks, trust
companies, clearing corporations, and certain other organizations, some of whom
(and/or their representatives) own the Depositary. Access to the Depositary's
book-entry system is also available to others, such as banks, brokers, dealers
and trust companies that clear through or maintain a custodial relationship with
a participant, either directly or indirectly.
Upon the issuance of a Global Security in registered form, the Depositary
will credit, on its book-entry registration and transfer system, the respective
principal amounts of the Debt Securities represented by such Global Security to
the accounts of participants. The accounts to be credited will be designated by
the underwriters, dealers or agents, if any, or by the Company, if such Debt
Securities are offered and sold directly by the Company. Ownership of beneficial
interests in the Global Security will be limited to participants or persons that
may hold interests through participants. Ownership of beneficial interests by
participants in the Global Security will be shown on, and the transfer of that
ownership interest will be effected only through, records maintained by such
participants. The laws of some jurisdictions may require that certain purchasers
of securities take physical delivery of such securities in definitive form. Such
laws may impair the ability to transfer beneficial interest in a Global
Security.
So long as the Depositary or its nominee is the registered owner of a
Global Security, it will be considered the sole owner or holder of the Debt
Securities represented by such Global Security for all purposes under the
Indenture. Except as set forth below, owners of beneficial interests in such
Global Security will not be entitled to have the Debt Securities represented
thereby registered in their names, will not receive or be entitled to receive
physical delivery of certificates representing the Debt Securities and will not
be considered the owners or holders thereof under the Indenture. Accordingly,
each person owning a beneficial interest in such Global Security must rely on
the procedures of the Depositary and, if such person is not a participant, on
the procedures of the participant through which such person owns its interest,
to exercise any rights of a holder under the Indenture. The Company understands
that under existing practice, in the event that the Company requests any action
of the holders or a beneficial owner desires to take any action a holder is
entitled to take, the Depositary would act upon the instructions of, or
authorize, the participant to take such action.
Payment of principal of, premium, if any, and interest on Debt Securities
represented by a Global Security will be made to the Depositary or its nominee,
as the case may be, as the registered owner and holder of the Global Security
representing such Debt Securities. None of the Company, the Trustee, any paying
agent or registrar for such Debt Securities will have any responsibility or
liability for any aspect of the records
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<PAGE> 7
relating to or payments made on account of beneficial ownership interests in the
Global Security or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
The Company has been advised by the Depositary that the Depositary will
credit participants' accounts with payments of principal, premium, if any, or
interest on the payment date thereof in amounts proportionate to their
respective beneficial interests in the principal amount of the Global Security
as shown on the records of the Depositary. The Company expects that payments by
participants to owners of beneficial interests in the Global Security held
through such participants will be governed by standing instructions and
customary practices, as is now the case with securities held for the accounts of
customers registered in "street name," and will be the responsibility of such
participants.
A Global Security may not be transferred except as a whole by the
Depositary to a nominee or successor of the Depositary or by a nominee of the
Depositary to another nominee of the Depositary. A Global Security representing
all but not part of the Debt Securities being offered hereby is exchangeable for
Debt Securities in definitive form of like tenor and terms if (i) the Depositary
notifies the Company that it is unwilling or unable to continue as depositary
for such Global Security or if at any time the Depositary is no longer eligible
to be or in good standing as a clearing agency registered under the Exchange
Act, and in either case, a successor depositary is not appointed by the Company
within 90 days of receipt by the Company of such notice or of the Company
becoming aware of such ineligibility, or (ii) the Company in its sole discretion
at any time determines not to have all of the Debt Securities represented by a
Global Security and notifies the Trustee thereof. A Global Security exchangeable
pursuant to the preceding sentence shall be exchangeable for Debt Securities
registered in such names and in such authorized denominations as the Depositary
for such Global Security shall direct.
CERTAIN RESTRICTIONS ON THE COMPANY
Limitations on Liens
The Company covenants that it will not, nor will it permit any Domestic
Subsidiary (defined as a subsidiary of the Company other than one which (i)
neither transacts any substantial portion of its business nor regularly
maintains any substantial portion of its fixed assets within the United States
nor is engaged primarily in financing the operations of the Company or its
subsidiaries, or both, outside the United States and (ii) does not own any
subsidiary of the Company other than a subsidiary described in the preceding
clause (i)) to incur, issue, assume or guarantee any Debt (defined as notes,
bonds, debentures or other indebtedness for money borrowed) secured by any
mortgage on, pledge of or lien ("Mortgage") on any Principal Property (defined
as any manufacturing plant or warehouse, owned or leased by the Company or any
Domestic Subsidiary, which is located within the United States and the gross
book value of which exceeds 1 1/2% of Consolidated Net Tangible Assets (defined
as all assets less reserves, current liabilities and intangibles, subject to
certain exceptions set forth in the Indenture), other than plants or warehouses
which, in the opinion of the Company's Board of Directors, are not material to
the total business of the Company and its subsidiaries as an entirety), or upon
shares of stock or Debt of any Domestic Subsidiary, without effectively
providing that the Debt Securities shall be secured equally and ratably with (or
prior to) such secured Debt, so long as such secured Debt shall be so secured.
The foregoing restrictions shall not apply to Debt secured by (i) Mortgages on
property, shares of stock or Debt of any corporation existing at the time such
corporation became a Domestic Subsidiary; (ii) Mortgages in favor of the Company
or any Domestic Subsidiary; (iii) Mortgages on property of the Company or a
Domestic Subsidiary in favor of the United States of America or any State
thereof, or in favor of any foreign country, or any political subdivision
thereof to secure partial, progress, advance or other payments pursuant to any
contract or statute and any other Mortgages incurred or assumed in connection
with the issuance of any industrial revenue or private activity bonds; (iv)
Mortgages on property, shares of stock or Debt existing at the time of
acquisition thereof or securing the purchase price thereof or securing the cost
of construction of or improvement on a property that are created, or assumed
contemporaneously with, or within 120 days after, such acquisition or completion
of such construction or improvement, and certain purchase money mortgages; (v)
Mortgages existing on the first date on which a Debt Security is authenticated
by the Trustee under the Indenture; (vi) Mortgages securing judgement or appeal
bonds in respect of amounts being contested in good faith pursuant to
appropriate proceedings; and (vii) extensions,
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<PAGE> 8
renewals or replacements (or successive extensions, renewals or replacements),
as a whole or in part, of any Mortgage referred to in the foregoing clauses (i)
to (vi), inclusive (Section 3.6). See "Exempted Debt" below.
Exempted Debt
The Indenture provides that, notwithstanding the foregoing provisions, the
Company may, and may permit Domestic Subsidiaries to, incur, issue, assume or
guarantee Debt secured by Mortgages not excepted in the covenants above without
equally and ratably securing the Debt Securities; provided, however, that, after
so securing such Debt, the aggregate of all such secured Debt plus all
Attributable Debt of the Company and its Domestic Subsidiaries in respect of
sale and leaseback transactions would not exceed 10% of Consolidated Net
Tangible Assets, as set forth in the most recent balance sheet of the Company
and its consolidated subsidiaries. "Attributable Debt" is defined in the
Indenture as the total net amount of rent required to be paid under a lease for
the remaining term of such lease, discounted at the rate per annum borne by the
Debt Securities compounded semiannually; provided, however, that for the
purposes of limitations on the Company and its Domestic Subsidiaries there shall
not be any Attributable Debt in respect of a sale and leaseback if (i) such sale
and leaseback is entered into in connection with the issuance of industrial
revenue or private activity bonds; (ii) the sale or transfer of the Principal
Property is made within a specified period after the later of its acquisition or
construction; (iii) the Company or Domestic Subsidiary applies an amount equal
to the net proceeds of the sale or transfer of a Principal Property leased
pursuant to such sale and leaseback to investment in another Principal Property
within one year prior to or subsequent to such sale or transfer; (iv) such sale
and leaseback was entered into prior to the date such corporation (a) became a
Domestic Subsidiary, (b) was merged into or consolidated with the Company or a
Domestic Subsidiary or (c) sold or otherwise disposed of its properties
substantially as an entirety to the Company or a Domestic Subsidiary; or (v)
such sale and leaseback is entered into between the Company and a Domestic
Subsidiary or between Domestic Subsidiaries.
Limitations on Sales and Leasebacks
The Company covenants that it will not, nor will it permit any Domestic
Subsidiary to, enter into any arrangement with any bank, insurance company or
other lender or investor providing for the leasing by the Company or any
Domestic Subsidiary of any Principal Property (except for temporary leases of a
term of not more than five years at the end of which it is intended that the use
of such property by the lessee will be discontinued and except for transactions
among themselves), which Principal Property has been or is to be sold or
transferred to such lender or investor, unless (i) the Company or such Domestic
Subsidiary could create Debt secured by a Mortgage on the Principal Property to
be leased in an amount equal to the Attributable Debt in such arrangement
without equally and ratably securing the Debt Securities or (ii) the Company
shall apply an amount equal to the greater of the net proceeds of the sale or
the fair market value of the Principal Property at the time of entering into
such arrangement to the retirement of Funded Debt (defined as indebtedness for
money borrowed maturing more than 12 months after the date of the most recent
balance sheet of the Company and its consolidated subsidiaries), subject to
certain exceptions set forth in the Indenture (Section 3.7).
Consolidation; Merger; Sale of Assets
The Company covenants that it will not merge or consolidate with any other
corporation or sell or convey all or substantially all of its assets to any
person, unless (i) either the Company shall be the continuing corporation or the
successor corporation or the person which acquires the assets of the Company
shall be a corporation or entity organized under the laws of the United States
or any State thereof and shall expressly assume the obligations of the Company
under the Indenture, the Debt Securities and the Coupons, if any, and (ii) the
Company or such successor corporation, or entity, as the case may be, shall not,
immediately after such merger or consolidation, or such sale or conveyance, be
in default in the performance of any covenants or conditions of the Indenture
(Section 9.1).
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EVENTS OF DEFAULT
An Event of Default with respect to any series of Debt Securities is
defined in the Indenture as being: (a) default for 30 days in payment of
interest on such series; (b) default in any payment of principal or premium, if
any, on any Debt Security of such series either at maturity, upon redemption, by
declaration or otherwise; (c) default in payment of any sinking fund instalment
on any Debt Security of such series; (d) default by the Company in the
performance of any other of the covenants or agreements with respect to that
series which shall not have been remedied for a period of 90 days (or other
period, if any, provided) after notice; (e) certain events of bankruptcy,
insolvency or reorganization of the Company or (f) any other Event of Default
provided in a supplemental indenture or resolution of the Board of Directors
under which such series of Debt Securities is issued or in the form of Debt
Security for such series. No Event of Default with respect to any particular
series of Debt Securities necessarily constitutes an Event of Default with
respect to any other series of Debt Securities. In case an Event of Default
described in (a), (b), (c) or (d) (if such Event of Default is with respect to
less than all series of Debt Securities then Outstanding) above shall occur and
be continuing with respect to any series of Debt Securities, the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Debt
Securities of such series then Outstanding (each such series acting as a
separate class) may declare the principal (or, in the case of discounted Debt
Securities, the amount specified in the terms thereof) of the Debt Securities of
such series and the interest accrued thereon, if any, to be due and payable. In
case an Event of Default described in (d) (if such Event of Default is with
respect to all series of Debt Securities then Outstanding) or (e) above shall
occur and be continuing, the Trustee or the Holders of not less than 25% in
aggregate principal amount of all Debt Securities then Outstanding (treated as
one class) may declare the principal (or, in the case of discounted Debt
Securities, the amount specified in the terms thereof) of all Outstanding Debt
Securities and the interest accrued thereon, if any, to be due and payable
(Section 5.1). Any Event of Default with respect to a particular series of Debt
Securities may be waived by the Holders of a majority in aggregate principal
amount of the Outstanding Debt Securities of such series (or of all the
Outstanding Debt Securities, as the case may be), except in each case a failure
to pay principal or premium, if any, or interest on such Debt Security (Section
5.10).
The Holders of a majority in principal amount of the Debt Securities of any
series then Outstanding shall have the right to direct the time, method and
place of conducting any proceedings for any remedy available to the Trustee
under the Indenture, provided that the Holders of Debt Securities shall have
offered to the Trustee reasonable indemnity against expenses and liabilities
(Sections 5.6 and 5.9). The Indenture requires the annual filing by the Company
with the Trustee of a certificate as to the absence of certain defaults under
the Indenture (Section 3.5).
MODIFICATION OF THE INDENTURE
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the Holders of not less than 66 2/3% in principal amount of
the Debt Securities of all series affected by a supplement to the Indenture
(voting as one class) at the time Outstanding, to supplement the Indenture or
any supplemental indenture or modify the rights of the Holders of the Debt
Securities provided that no such supplement or modification shall (i) extend the
final maturity of any Debt Security or reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest thereon, or reduce any
amount payable on redemption thereof, or change the currency in which the Debt
Security is payable or (ii) reduce the aforesaid percentage of Debt Securities,
the consent of whose Holders is required for any such modification (Section
8.2).
The Indenture also contains provisions permitting the Company and the
Trustee to enter into supplemental indentures without the consent of the Holders
of any series of Debt Securities (a) to convey, transfer, assign, mortgage or
pledge to the Trustee as security for the Debt Securities any property or
assets, (b) to evidence the succession of another corporation to the Company,
subject to and upon compliance with the provisions of the Indenture, and the
assumption by such successor corporation of the covenants, agreements and
obligations in the Debt Securities and in the Indenture, (c) to evidence and
provide for a successor Trustee under the Indenture with respect to one or more
series of Debt Securities, (d) to add to the covenants of the Company, (e) to
cure any ambiguity or to correct or supplement any provision in the Indenture
that
8
<PAGE> 10
may be defective, (f) to establish the form or terms of Debt Securities of any
series and the Coupons, if any, appertaining thereto and (g) to provide for
uncertificated registered Debt Securities for any series (Section 8.1).
DEFEASANCE
The Indenture provides that the Company, at its option, (a) will be
discharged from all obligations in respect of the Debt Securities in a series
(except for certain obligations to register the transfer or exchange of Debt
Securities, replace stolen, lost or destroyed Debt Securities, maintain paying
agencies and hold moneys for payment in trust), or (b), with respect to Debt
Securities in a series, need not comply with certain restrictive covenants of
the Indenture described under "Certain Restrictions on the Company", in each
case if the Company irrevocably deposits in trust with the Trustee money, or the
equivalent in securities of the government which issued the currency in which
the Debt Securities of such series are denominated or securities issued by
government agencies backed by the full faith and credit of such government,
which through the payment of interest thereon and principal thereof in
accordance with their terms will provide money in an amount sufficient to pay
all of the principal of (including any mandatory redemption payments), premium,
if any, on and interest, if any, on, and repurchase obligations, if any, with
respect to, the Debt Securities of such series, on the dates such payments are
due in accordance with terms of such Debt Securities. To exercise either option,
the Company is required to deliver to the Trustee an opinion of independent tax
counsel (which may be counsel to the Company) to the effect that the deposit and
related defeasance would not cause the holders of Debt Securities of such series
to recognize income, gain or loss for Federal income tax purposes. To exercise
the option described in clause (a) above, such opinion must be based on a ruling
of the Internal Revenue Service, a regulation of the Treasury Department or a
provision of the Internal Revenue Code (Section 10.3).
CONCERNING THE TRUSTEE
First Trust of New York, National Association, is the Trustee under the
Indenture.
GOVERNING LAW
The Indenture and the Debt Securities will be governed by the laws of the
State of New York.
PLAN OF DISTRIBUTION
The Company may sell Debt Securities to or through one or more underwriters
and also may sell Debt Securities directly to other purchasers or through agents
or dealers, or the Company may sell Debt Securities through a combination of any
such methods.
The distribution of the Debt Securities may be effected from time to time
in one or more transactions at a fixed price or prices, which may be changed, at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices. Underwriters may sell Debt
Securities to or through dealers.
In connection with the sales of Debt Securities, underwriters may receive
compensation from the Company in the form of discounts, concessions or
commissions. Underwriters, dealers and agents that participate in the
distribution of Debt Securities may be deemed to be underwriters, and any
discounts or commissions received by them and any profit on the resale of Debt
Securities by them may be deemed to be underwriting discounts and commissions
under the Securities Act. Any such underwriter or agent will be identified, and
any such compensation will be described, in the Prospectus Supplement.
Pursuant to agreements into which the Company may enter, underwriters,
dealers and agents who participate in the distribution of Debt Securities may be
entitled to indemnification by the Company against certain liabilities,
including liabilities under the Securities Act.
9
<PAGE> 11
Unless otherwise indicated in the Prospectus Supplement, the Company does
not intend to list any of the Debt Securities on a national securities exchange.
In the event the Debt Securities are not listed on a national securities
exchange, certain broker-dealers may make a market in the Debt Securities, but
will not be obligated to do so and may discontinue any market making at any time
without notice. No assurance can be given that any broker-dealer will make a
market in the Debt Securities or as to the liquidity of the trading market for
the Debt Securities, whether or not the Debt Securities are listed on a national
securities exchange. The Prospectus Supplement with respect to the Debt
Securities will state, if known, whether or not any broker-dealer intends to
make a market in the Debt Securities. If no such determination has been made,
the Prospectus Supplement will so state.
The place and time of delivery for the Offered Securities in respect of
which this Prospectus is delivered will be set forth in the Prospectus
Supplement.
LEGAL MATTERS
The validity of the issuance of the Debt Securities offered hereby will be
passed upon for the Company by Jones, Day, Reavis & Pogue, Cleveland, Ohio, and
for any underwriters or agents by Davis Polk & Wardwell, New York, New York.
EXPERTS
The financial statements of Rubbermaid Incorporated as of December 31, 1994
and 1993, and for each of the years in the three-year period ended December 31,
1994, have been incorporated by reference herein and in the registration
statement in reliance upon the report of KPMG Peat Marwick LLP, independent
certified public accountants, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing.
With respect to the unaudited interim financial information for the periods
ended September 30, 1995 and 1994, June 30, 1995 and 1994, and March 31, 1995
and 1994, incorporated by reference herein, the independent certified public
accountants have reported that they applied limited procedures in accordance
with professional standards for a review of such information. However, their
separate reports included in the Company's quarterly reports on Form 10-Q for
the quarters ended September 30, 1995, June 30, 1995, and March 31, 1995, and
incorporated by reference herein, state that they did not audit and they do not
express an opinion on that interim financial information. Accordingly, the
degree of reliance on their reports on such information should be restricted in
light of the limited nature of the review procedures applied. The accountants
are not subject to the liability provisions of Section 11 of the Securities Act
of 1933 for their reports on the unaudited interim financial information because
the reports are not "reports" or a "part" of the registration statement prepared
or certified by the accountants within the meaning of sections 7 and 11 of the
Act.
10
<PAGE> 12
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following is a list of the expenses to be incurred by the Company in
connection with the issuance and distribution of the Debt Securities being
registered hereby, other than underwriting discounts and commissions. All of the
amounts shown are estimates except for the Commission registration fee.
<TABLE>
<S> <C>
Commission registration fee.............................................. $137,931
Printing and engraving costs............................................. $ 50,000
Accounting fees and expenses............................................. $ 2,000
Trustee fees and expenses................................................ $ 34,000
Legal fees and expenses (not including Blue Sky)......................... $100,000
Blue Sky fees and expenses............................................... $ 10,000
Rating Agencies' fees.................................................... $130,000
Miscellaneous expenses................................................... $ 11,069
--------
Total.......................................................... $475,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section Six of Article III of the Company's Amended Code of Regulations
("Section Six") provides that the Company shall indemnify, to the fullest extent
then permitted by law, any person who was or is a party, or is threatened to be
made a party, to any threatened, pending, or completed action, suit, or
proceeding, whether civil, criminal, administrative, or investigative, by reason
of the fact that he is or was a director, officer, employee, or agent of the
Company, or is or was serving at the request of the Company as a director,
trustee, officer, employee, or agent of another corporation, domestic or
foreign, nonprofit or for profit, partnership, joint venture, trust, or other
enterprise; provided, however, that the Company shall indemnify any such agent
(as opposed to any director, officer, or employee) of the corporation to an
extent greater than that required by law only if and to the extent that the
directors may, in their discretion, so determine. In addition, Section Six
states that the indemnification it provides shall not be deemed exclusive of any
other right to which those seeking indemnification may be entitled under any
law, the Company's Articles of Incorporation, or any agreement, vote of
shareholders, or of disinterested directors, or otherwise, both as to action in
official capacities and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director,
trustee, officer, employee, or agent, and shall insure to the benefit of heirs,
executors, and administrators of such a person. Section Six further provides
that the Company may, to the full extent then permitted by law and authorized by
the directors, purchase and maintain insurance on behalf of any person described
above against any liability asserted against and incurred by any such person in
any such capacity, or arising out of his status as such, whether or not the
Company would have the power to indemnify such person against such liability.
The provisions of Section Six are subject to Section 1701.13 of the Ohio Revised
Code, which sets forth certain conditions and limitations governing the
indemnification of officers, directors and other persons. A copy of Section Six
is included herein as Exhibit 3.2.
Reference is made to Section 7 of the Underwriting Agreement (Exhibit 1.1
to this Registration Statement) which provides for indemnification of the
Company's officers, Directors and controlling persons by the Underwriters, and
for indemnification of each underwriter and its controlling persons by the
Company, against certain civil liabilities, including liabilities under the
Securities Act.
Under the Company's Director and Officer Liability Insurance Policy, each
director and officer of the Company is insured against certain liabilities which
might arise in connection with their respective positions with the Company.
II-1
<PAGE> 13
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits. The following exhibits are filed herewith and made a part
hereof:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- ------ ---------------------------------------------------------------------------------
<C> <S>
** 1.1 Form of Underwriting Agreement.
3.1 Amended Articles of Incorporation of the Company (incorporated herein by
reference to Exhibits 3a and 4a to the Company's Annual Report on Form 10-K for
the year ended December 31, 1992).
3.2 Amended Code of Regulations of the Company (incorporated herein by reference to
Exhibits 3b and 4b to the Company's Annual Report on Form 10-K for the year ended
December 31, 1992).
** 4.1 Form of Indenture dated as of March 15, 1996 between the Company and First Trust
of New York, National Association, as trustee, relating to the Debt Securities.
* 5.1 Opinion of Jones, Day, Reavis & Pogue as to the validity of the securities being
offered.
*12.1 Computation of Ratios of Earnings to Fixed Charges.
*23.1 Consent of Jones, Day, Reavis & Pogue (included in Exhibit 5.1).
**23.2 Consent of KPMG Peat Marwick LLP.
**23.3 Letter of KPMG Peat Marwick LLP dated March 6, 1996, as to unaudited interim
financial information.
*24.1 Powers of Attorney.
*25.1 Statement of Eligibility of First Trust of New York, National Association, under
the Trust Indenture Act of 1939 on Form T-1 relating to the Indenture.
</TABLE>
- ---------------
* Previously filed.
** Filed herewith.
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made
of the securities registered hereby, 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.
(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 the undertakings set forth in paragraphs (a)(1)(i)
and (a)(1)(ii) above 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 Debt Securities Exchange Act of 1934 that are incorporated by
reference in this 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 post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
II-2
<PAGE> 14
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Company's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to 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) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to Directors, officers and controlling persons of
the Company pursuant to the foregoing provisions or otherwise, the Company 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 Company of expenses incurred or
paid by a Director, officer or controlling person of the Company 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 Company 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.
(d) 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.
II-3
<PAGE> 15
SIGNATURES
Pursuant to the requirements of the Securities Act, the Company certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this Amendment No. 1 to Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Wooster, State of Ohio, on March 6, 1996.
RUBBERMAID INCORPORATED
By: /s/ JAMES A. MORGAN
James A. Morgan
Senior Vice President, General
Counsel and Secretary
Pursuant to the requirements of the Securities Act, this Amendment No. 1 to
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ----------------------------------- ---------------------------------------- -----------------
<S> <C> <C>
* WOLFGANG R. SCHMITT Director, Chairman of the Board and March 6, 1996
Wolfgang R. Schmitt Chief Executive Officer (Principal
Executive Officer)
* GEORGE C. WEIGAND Senior Vice President and Chief March 6, 1996
George C. Weigand Financial Officer (Principal Financial
Officer)
* JOHN L. THELER Vice President and Corporate Controller March 6, 1996
John L. Theler (Principal Accounting Officer)
* TOM H. BARRETT Director March 6, 1996
Tom H. Barrett
* CHARLES A. CARROLL Director March 6, 1996
Charles A. Carroll
* ROBERT O. EBERT Director March 6, 1996
Robert O. Ebert
* STANLEY C. GAULT Director March 6, 1996
Stanley C. Gault
* ROBERT M. GERRITY Director March 6, 1996
Robert M. Gerrity
* KAREN N. HORN Director March 6, 1996
Karen N. Horn
* WILLIAM D. MAROHN Director March 6, 1996
William D. Marohn
* STEVEN A. MINTER Director March 6, 1996
Steven A. Minter
</TABLE>
II-4
<PAGE> 16
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ----------------------------------- ---------------------------------------- -----------------
<S> <C> <C>
* JAN NICHOLSON Director March 6, 1996
Jan Nicholson
* PAUL G. SCHLOEMER Director March 6, 1996
Paul G. Schloemer
* GORDON R. SULLIVAN Director March 6, 1996
Gordon R. Sullivan
</TABLE>
* The undersigned, by signing his name hereto, does hereby sign and execute this
Amendment No. 1 to Registration Statement pursuant to the Powers of Attorney
executed by the above-named officers and directors of the Company and which
have been filed with the Securities and Exchange Commission on behalf of such
officers and directors.
/s/ JAMES A. MORGAN March 6, 1996
- ------------------------------------------------------------------
James A. Morgan, Attorney-in-Fact
II-5
<PAGE> 1
EXHIBIT 1.1
Rubbermaid Incorporated
Debt Securities
Underwriting Agreement
[ ], 1996
To the Representatives named
in Schedule I hereto of the
Underwriters named in
Schedule II hereto
Dear Sirs:
Rubbermaid Incorporated, a Company organized under the laws of Ohio (the
"Company"), proposes to issue and sell to the underwriters named in Schedule II
hereto (the "Underwriters"), for whom you are acting as representatives (the
"Representatives"), the principal amount of its debt securities identified in
Schedule I hereto (the "Securities"), to be issued under the indenture
specified in Schedule I hereto (the "Indenture") between the Company and the
Trustee identified in such Schedule (the "Trustee"). If the firm or firms
listed in Schedule II hereto include only the firm or firms listed in Schedule
I hereto, then the terms "Underwriters" and "Representatives", as used herein
shall each be deemed to refer to such firm or firms.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement (the file number of which is set forth in Schedule I hereto) on Form
S-3, relating to certain debt securities (the "Shelf Securities") to be issued
from time to time by the Company. The Company also has filed with, or proposes
to file with, the Commission pursuant to Rule 424 under the Securities Act a
prospectus supplement specifically relating to the Securities. The
registration statement as amended to the date of this Agreement is hereinafter
referred to as the "Registration Statement" and the related prospectus covering
the Shelf Securities in the
<PAGE> 2
form first used to confirm sales of the Securities is hereinafter referred to
as the "Basic Prospectus". The Basic Prospectus as supplemented by the
prospectus supplement specifically relating to the Securities in the form first
used to confirm sales of the Securities is hereinafter referred to as the
"Prospectus". Any reference in this Agreement to the Registration Statement,
the Basic Prospectus, any preliminary form of Prospectus (a "preliminary
prospectus") previously filed with the Commission pursuant to Rule 424 or the
Prospectus shall be deemed to refer to and include the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 under the Securities Act
which were filed under the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder (collectively, the "Exchange
Act") on or before the date of this Agreement or the date of the Basic
Prospectus, any preliminary prospectus or the Prospectus, as the case may be;
and any reference to "amend", "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any preliminary prospectus or the
Prospectus shall be deemed to refer to and include any documents filed under
the Exchange Act after the date of this Agreement, or the date of the Basic
Prospectus, any preliminary prospectus or the Prospectus, as the case may be,
which are deemed to be incorporated by reference therein.
The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to issue and sell the Securities to the several
Underwriters as hereinafter provided, and each Underwriter, on the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees to purchase, severally and not jointly, from the
Company the respective principal amount of Securities set forth opposite such
Underwriter's name in Schedule II hereto at the purchase price set forth in
Schedule I hereto.
2. The Company understands that the several Underwriters intend (i) to
make a public offering of their respective portions of the Securities and (ii)
initially to offer the Securities upon the terms set forth in the Prospectus.
3. Payment for the Securities shall be made in immediately available funds
to an account specified by the Company at the time and place set forth in
Schedule I hereto (or at such other time and place on the same or such other
date, not later than the fifth Business Day thereafter, as
2
<PAGE> 3
the Representatives and the Company may agree in writing). The time and date
of such payment and delivery with respect to the Securities are referred to
herein as the Closing Date. As used herein, the term "Business Day" means any
day other than a day on which banks are permitted or required to be closed in
New York City.
Payment for the Securities will be made against delivery to, or to the
Representatives for the respective accounts of, such Underwriters of the
Securities registered in such names and in such denominations as the
Representatives shall request not later than two full Business Days prior to
the Closing Date with any transfer taxes payable in connection with transfer to
the Underwriters duly paid by the Company. The Securities will be represented
by one or more global certificates, which will be made available for inspection
by the Representatives by 1:00 P.M. on the Business Day prior to the Closing
Date at such place in New York City as the Representatives and the Company
shall agree.
4. The Company represents and warrants to each Underwriter that:
(a) the Registration Statement has been declared effective by the
Commission under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceeding
for that purpose has been instituted or, to the knowledge of the Company,
threatened by the Commission; and the Registration Statement and Prospectus
comply and, as amended or supplemented, if applicable, will comply, in all
material respects with the Securities Act and the Trust Indenture Act of
1939, as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Trust Indenture Act"); each part of the Registration
Statement filed with the Commission pursuant to the Securities Act, when such
part became effective, did not contain, and each such part, as amended or
supplemented, if applicable, will not contain, any untrue statement of a
material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; and the
Prospectus did not, as of the date of the Prospectus and any amendment or
supplement thereto, contain 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, in the light of the circumstances under which they
were made, not misleading, and the Prospectus, as
3
<PAGE> 4
amended or supplemented at the Closing Date, if applicable, will not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; except that the foregoing
representations and warranties shall not apply to (i) that part of the
Registration Statement which constitutes the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee, and
(ii) statements or omissions in the Registration Statement or the Prospectus
made in reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter through
the Representatives expressly for use therein;
(b) the documents incorporated by reference in the Prospectus, when they
were filed with the Commission, conformed in all material respects to the
requirements of the Exchange Act, and none of such documents, when they were
filed with the Commission, contained an untrue statement of a material fact
or omitted to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they are made, not misleading;
and any further documents so filed and incorporated by reference in the
Prospectus, when such documents are filed with the Commission, will conform
in all material respects to the requirements of the Exchange Act and will not
contain an untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(c) the financial statements, and the related notes thereto, included or
incorporated by reference in the Registration Statement and the Prospectus
present fairly the consolidated financial position of the Company and its
consolidated subsidiaries as of the dates indicated and the results of their
operations and the changes in their consolidated cash flows for the periods
specified; said financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved, and the supporting schedules included or
incorporated by reference in the Registration Statement present fairly the
information required to be stated therein;
(d) since the respective dates as of which information is given in the
Registration Statement and
4
<PAGE> 5
the Prospectus, there has not been any material adverse change, or any
development known by the Company (after diligent inquiry) involving a
prospective material adverse change, in or affecting the business, financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries, taken as a whole, otherwise than as set forth, incorporated
by reference or contemplated in the Prospectus; and except as set forth or
contemplated in the Prospectus neither the Company nor any of its
subsidiaries has entered into any transaction or agreement (whether or not in
the ordinary course of business) material to the Company and its subsidiaries
taken as a whole;
(e) the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the state of its
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and has
been duly qualified as a foreign corporation for the transaction of business
and is in good standing under the laws of each other jurisdiction in which it
owns or leases properties, or conducts any business, so as to require such
qualification, other than where the failure to be so qualified or in good
standing would not have a material adverse effect on the Company and its
subsidiaries taken as a whole;
(f) each of the Company's subsidiaries that constitutes a "Significant
Subsidiary" within the meaning of Rule 1-02 of Regulation S-X of the
Commission (the "Material Subsidiaries") has been duly incorporated and is
validly existing as a corporation under the laws of its jurisdiction of
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and has
been duly qualified as a foreign corporation for the transaction of business
and is in good standing under the laws of each jurisdiction in which it owns
or leases properties or conducts any business so as to require such
qualification, other than where the failure to be so qualified or in good
standing would not have a material adverse effect on the business, financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries taken as a whole (a "Material Adverse Effect"); and all the
outstanding shares of capital stock of each Material Subsidiary of the
Company have been duly authorized and validly issued, are fully-paid and
non-assessable, and (except in the case of foreign subsidiaries, for
directors' qualifying shares) are
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<PAGE> 6
owned by the Company, directly or indirectly, free and clear of all liens,
encumbrances, security interests and claims;
(g) this Agreement has been duly authorized, executed and delivered by the
Company;
(h) the Securities have been duly authorized, and when issued and delivered
pursuant to this Agreement, will have been duly executed, authenticated,
issued and delivered and will constitute valid and binding obligations of the
Company entitled to the benefits provided by the Indenture; the Indenture has
been duly authorized and upon effectiveness of the Registration Statement
will have been duly qualified under the Trust Indenture Act and, when
executed and delivered by the Company and the Trustee, the Indenture will
constitute a valid and binding instrument of the Company; and the Securities
and the Indenture will conform to the descriptions thereof in the Prospectus;
(i) neither the Company nor any of its Material Subsidiaries is, or with
the giving of notice or lapse of time or both would be, in violation of or in
default under, its Certificate of Incorporation or By-Laws or any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its Material Subsidiaries is a party or by which
it or any of them or any of their respective properties is bound, except for
violations and defaults which individually and in the aggregate are not
material to the Company and its subsidiaries taken as a whole or to the
holders of the Securities; the issue and sale of the Securities and the
performance by the Company of all of its obligations under the Securities,
the Indenture and this Agreement and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a breach
of any of the terms or provisions of, or constitute a default under, any
material indenture, mortgage, deed of trust, loan agreement or other material
agreement or instrument to which the Company or any of its Material
Subsidiaries is a party or by which the Company or any of its Material
Subsidiaries is bound or to which any of the property or assets of the
Company or any of its Material Subsidiaries is subject, nor will any such
action result in any violation of the provisions of the Certificate of
Incorporation or the By-Laws of the Company or, except as would reasonably
not be expected to have a Material Adverse Effect, any applicable law or
statute or any order, rule or regulation of any
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<PAGE> 7
court or governmental agency or body having jurisdiction over the Company,
its subsidiaries or any of their respective properties; and no consent,
approval, authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the issue and sale
of the Securities or the consummation by the Company of the transactions
contemplated by this Agreement or the Indenture, except such consents,
approvals, authorizations, registrations or qualifications as have been
obtained under the Securities Act, the Trust Indenture Act and as may be
required under state securities or Blue Sky Laws in connection with the
purchase and distribution of the Securities by the Underwriters;
(j) other than as set forth, incorporated by reference or contemplated in
the Prospectus, there are no legal or governmental proceedings pending or, to
the knowledge of the Company, threatened to which the Company or any of its
Material Subsidiaries is or may be a party or to which any property of the
Company or any of its Material Subsidiaries is or may be the subject which,
if determined adversely to the Company, could individually or in the
aggregate reasonably be expected to have a Material Adverse Effect and, to
the best of the Company's knowledge, no such proceedings are threatened by
governmental authorities or threatened by others; and there are no contracts
or other documents of a character required to be filed as an exhibit to the
Registration Statement or required to be described in the Registration
Statement or the Prospectus which are not filed or described as required;
(k) each of the Company and its subsidiaries is in compliance with any and
all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health or the environment or imposing
liability or standards of conduct concerning any Hazardous Material
(collectively, "Environmental Laws"), except where such non-compliance with
Environmental Laws could not, singly or in the aggregate, reasonably be
expected to have a Material Adverse Effect. The term "Hazardous Material"
means (i) any "hazardous substance" as defined by the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended,
(ii) any "hazardous waste" as defined by the Resource Conservation and
Recovery Act, as amended, (iii) any petroleum or petroleum product, (iv) any
polychlorinated biphenyl,
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<PAGE> 8
and (v) any pollutant or contaminant or hazardous, dangerous, or toxic
chemical, material, waste or substance regulated under or within the meaning
of any other Environmental Law;
(l) each of the Company and its subsidiaries owns or possesses the right
to use the patents, patent licenses, trademarks, service marks, trade names,
copyrights and know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures)
(collectively, the "Intellectual Property") reasonably necessary to carry on
the business conducted by each as conducted on the date hereof, except to the
extent that the failure to own or possess the right (through license or
otherwise) to use such Intellectual Property could not, singly or in the
aggregate, reasonably be expected to have a Material Adverse Effect, and,
except as set forth or incorporated by reference in the Registration
Statement and the Prospectus, neither the Company nor any subsidiary has
received any notice of infringement of asserted rights of others with respect
to any Intellectual Property, except for notices the content of which if
accurate could not, singly or in the aggregate, reasonably be expected to
have a Material Adverse Effect;
(m) KPMG Peat Marwick LLP, who have certified certain financial statements
of the Company and its subsidiaries, are independent public accountants as
required by the Securities Act;
(n) the Company has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida); and
(o) the Company is not an "investment company" or an entity "controlled"
by an "investment company", as such terms are defined in the Investment
Company Act of 1940, as amended.
5. The Company covenants and agrees with the several Underwriters as
follows:
(a) to file the Prospectus in a form approved by the Representatives
pursuant to Rule 424 under the Securities Act not later than the Commission's
close of business on the second Business Day following the date of
determination of the offering price of the Securities;
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<PAGE> 9
(b) to deliver to each Representative and counsel for the Underwriters, at
the expense of the Company, a conformed copy of the Registration Statement
(as originally filed) and each amendment thereto, in each case including
exhibits and documents incorporated by reference therein and, during the
period mentioned in paragraph (f) below, to each of the Underwriters as many
copies of the Prospectus (including all amendments and supplements thereto)
and documents incorporated by reference therein as the Representatives may
reasonably request;
(c) during the period mentioned in paragraph (f) below, before filing any
amendment or supplement to the Registration Statement or Prospectus, to
furnish to the Representatives a copy of any proposed amendment or supplement
to the Registration Statement or the Prospectus for review;
(d) to file promptly, subject to the provisions of paragraph (c) above, all
reports and any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act during the period mentioned in paragraph (f)
below;
(e) during the period mentioned in paragraph (f) below, to advise the
Representatives promptly, (i) when any amendment to the Registration
Statement shall have become effective, (ii) of any request by the Commission
for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for any additional information, (iii) of the
issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the initiation or threatening of any proceeding
for that purpose, and (iv) of the receipt by the Company of any notification
with respect to any suspension of the qualification of the Securities for
offer and sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and to use its best efforts to prevent the
issuance of any such stop order or notification and, if issued, to obtain as
soon as possible the withdrawal thereof;
(f) if, during such period after the first date of the public offering of
the Securities as in the opinion of counsel for the Underwriters a prospectus
relating to the Securities is required by law to be delivered in connection
with sales by an Underwriter or dealer, any event shall occur as a result of
which it
9
<PAGE> 10
is necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, or if it is necessary to amend or
supplement the Prospectus to comply with law, forthwith to prepare and
furnish, at the expense of the Company, to the Underwriters and to the
dealers (whose names and addresses the Representatives will furnish to the
Company) to which Securities may have been sold by the Representatives on
behalf of the Underwriters and to any other dealers upon request, such
amendments or supplements to the Prospectus as may be necessary so that the
statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances when the Prospectus is delivered to a purchaser,
be misleading or so that the Prospectus will comply with law;
(g) to endeavor to qualify the Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Representatives
shall reasonably request and to continue such qualification in effect so long
as reasonably required for distribution of the Securities and to pay all fees
and expenses (including the reasonable fees and disbursements of counsel to
the Underwriters) reasonably incurred in connection with such qualification
and in connection with the determination of the eligibility of the Securities
for investment under the laws of such jurisdictions as the Representatives
may designate; provided that the Company shall not be required to file a
general consent to service of process in any jurisdiction or to qualify as a
foreign corporation in any jurisdiction;
(h) to make generally available to its security holders and to the
Representatives as soon as practicable an earnings statement covering a
period of at least twelve months beginning with the first fiscal quarter of
the Company occurring after the effective date of the Registration Statement,
which shall satisfy the provisions of Section 11(a) of the Securities Act and
Rule 158 of the Commission promulgated thereunder;
(i) so long as the Securities are outstanding, to furnish to the
Representatives upon request copies of all reports or other communications
(financial or other) furnished to holders of Securities, and copies of any
reports and financial statements furnished to or filed with the Commission or
any national securities exchange;
10
<PAGE> 11
(j) during the period beginning on the date hereof and continuing to and
including the Business Day following the Closing Date, not to offer, sell,
contract to sell or otherwise dispose of any debt securities of or guaranteed
by the Company which are substantially similar to the Securities without
prior written consent of the Representatives; and
(k) to pay all costs and expenses incident to the performance of its
obligations hereunder, including without limiting the generality of the
foregoing, all costs and expenses (i) incident to the preparation, issuance,
execution, authentication and delivery of the Securities, including any
expenses of the Trustee, (ii) incident to the preparation, printing and
filing under the Securities Act of the Registration Statement, the Prospectus
and any preliminary prospectus (including in each case all exhibits,
amendments and supplements thereto), (iii) incurred in connection with the
registration or qualification and determination of eligibility for investment
of the Securities under the laws of such jurisdictions as the Underwriters
may designate (including the reasonable fees of counsel for the Underwriters
and their disbursements), (iv) in connection with the listing of the
Securities on any stock exchange, (v) related to any filing with National
Association of Securities Dealers, Inc., (vi) in connection with the printing
(including word processing and duplication costs) and delivery of this
Agreement, the Indenture, the Preliminary and Supplemental Blue Sky Memoranda
and any Legal Investment Survey and the furnishing to underwriters and
dealers of copies of the Registration Statement and the Prospectus, including
mailing and shipping, as herein provided and (vii) payable to rating agencies
in connection with the rating of the Securities.
6. The several obligations of the Underwriters hereunder shall be subject
to the following conditions:
(a) the representations and warranties of the Company contained herein are
true and correct on and as of the Closing Date as if made on and as of the
Closing Date and the Company shall have complied with all agreements and all
conditions on its part to be performed or satisfied hereunder at or prior to
the Closing Date;
(b) the Prospectus shall have been filed with the Commission pursuant to
Rule 424 within the applicable time period prescribed for such filing by the
rules and
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<PAGE> 12
regulations under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement shall be in effect, and no
proceedings for such purpose shall be pending before or threatened by the
Commission; and all requests for additional information on the part of the
Commission shall have been complied with to the satisfaction of the
Representatives;
(c) subsequent to the execution and delivery of this Agreement and prior to
the Closing Date, there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading in the
rating accorded any securities of or guaranteed by the Company by any
"nationally recognized statistical rating organization", as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act;
(d) since the respective dates as of which information is given in the
Prospectus there shall not have been any material adverse change or any
development involving a prospective material adverse change, in or affecting
the business, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole, otherwise
than as set forth, incorporated by reference or contemplated in the
Prospectus, the effect of which in the judgment of the Representatives makes
it impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities on the terms and in the manner contemplated in the
Prospectus;
(e) the Representatives shall have received on and as of the Closing Date a
certificate of an executive officer of the Company satisfactory to the
Representatives to the effect set forth in subsections (a) through (c) of
this Section and to the further effect that there has not occurred any
material adverse change, or any development involving a prospective material
adverse change, in or affecting the business, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole from that set forth or contemplated in the
Registration Statement;
(f)(1) Jones, Day, Reavis & Pogue, counsel for the Company, shall have
furnished to the Representatives their written opinion, dated the Closing
Date, in form and substance satisfactory to the Representatives, to the
effect that:
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<PAGE> 13
(i) this Agreement has been duly authorized, executed and delivered by
the Company;
(ii) the Securities have been duly authorized, executed and delivered
by the Company and, when duly authenticated in accordance with the terms of
the Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will constitute valid and
binding obligations of the Company entitled to the benefits provided by the
Indenture;
(iii) the Indenture has been duly authorized, executed and delivered by
the Company and constitutes a valid and binding instrument of the Company;
and the Indenture has been duly qualified under the Trust Indenture Act;
(iv) the statements in the Prospectus under "Description of Notes" and
"Description of Debt Securities", insofar as such statements constitute a
summary of the documents referred to therein, fairly present the information
called for with respect to such documents; and
(v)(A) no facts have come to such counsel's attention to cause them to
believe that (except for the financial statements included in the
Registration Statement and Prospectus as to which such counsel need express
no belief and except for that part of the Registration Statement that
constitutes the Statement of Eligibility and Qualification (Form T-1) of the
Trustee and except with respect to information contained in the Registration
Statement or the Prospectus relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representatives expressly
for use therein) the Registration Statement (including the documents
incorporated by reference therein) filed with the Commission pursuant to the
Securities Act relating to the Securities, at the time it became effective,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (B) such counsel is of the opinion that
the Registration Statement and the Prospectus and any amendments and
supplements thereto (except for the financial statements included therein as
to which such counsel need express no opinion) comply as to form
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<PAGE> 14
in all material respects with the requirements of the Securities Act and (C)
such counsel does not believe that (except for the financial statements
included therein as to which such counsel need express no belief and except
for that part of the Registration Statement that constitutes the Statement of
Eligibility and Qualification (Form T-1) of the Trustee and except with
respect to information contained in the Registration Statement or the
Prospectus relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representatives expressly for use therein) the
Registration Statement, as amended on the date of this Agreement, contained
any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or that the Prospectus, as amended or supplemented, if
applicable, contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
(2) James A. Morgan, General Counsel for the Company, shall have furnished
to the Representatives his written opinion, dated the Closing Date, in form
and substance satisfactory to the Representatives, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
(ii) the Company has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties, or conducts any
business, so as to require such qualification, other than where the failure
to be so qualified or in good standing would not have a Material Adverse
Effect;
(iii) each of the Company's Material Subsidiaries has been duly
incorporated and is validly existing as a corporation under the laws of its
jurisdiction of incorporation with power
14
<PAGE> 15
and authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus and has been duly qualified as a
foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such qualification,
other than where the failure to be so qualified and in good standing would
not have a Material Adverse Effect; and all of the outstanding shares of
capital stock of each Material Subsidiary have been duly and validly
authorized and issued, are fully paid and non-assessable, and (except in the
case of foreign subsidiaries, for directors' qualifying shares) are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims;
(iv) to the best of such counsel's knowledge after diligent inquiry,
other than as set forth, incorporated by reference or contemplated in the
Prospectus, there are no legal or governmental proceedings pending or
threatened to which the Company or any of its Material Subsidiaries is or
may be a party or to which any property of the Company or its Material
Subsidiaries is or may be the subject which, if determined adversely to the
Company or such Material Subsidiaries, could individually or in the
aggregate reasonably be expected to have a Material Adverse Effect; to the
best of such counsel's knowledge, no such proceedings are threatened by
governmental authorities or others; and such counsel does not know of any
contracts or other documents of a character required to be filed as an
exhibit to the Registration Statement or required to be described in the
Registration Statement or the Prospectus which are not filed or described as
required;
(v) neither the Company nor any of its Material Subsidiaries is, or with
the giving of notice or lapse of time or both would be, in violation of or
in default under, its Certificate of Incorporation or By-Laws or any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company or any of its Material
Subsidiaries is a party or by which it or any of them or any of their
respective properties is
15
<PAGE> 16
bound, except for violations and defaults which individually and in the
aggregate are not material to the Company and its subsidiaries taken as a
whole or to the holders of the Securities; the issue and sale of the
Securities and the performance by the Company of its obligations under the
Securities, the Indenture and this Agreement and the consummation of the
transactions herein and therein contemplated will not conflict with or result
in a breach of any of the terms or provisions of, or constitute a default
under, any material indenture, mortgage, deed of trust, loan agreement or
other material agreement or instrument known to such counsel to which the
Company or any of its Material Subsidiaries is a party or by which the
Company or any of its Material Subsidiaries is bound or to which any of the
property or assets of the Company or any of its Material Subsidiaries is
subject, nor will any such action result in any violation of the provisions
of the Certificate of Incorporation, or the By-Laws of the Company or, except
as would reasonably not be expected to have a Material Adverse Effect, any
applicable law or statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company, its
Material Subsidiaries or any of their respective properties;
(vi) no consent, approval, authorization, order, registration or
qualification of or with any Ohio, New York, or federal court or
governmental agency or body is required for the issue and sale of the
Securities or the consummation of the other transactions contemplated by
this Agreement or the Indenture, except such consents, approvals,
authorizations, registrations or qualifications as have been obtained under
the Securities Act and the Trust Indenture Act and as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriter;
(vii) the statements in the Prospectus incorporated by reference from
Item 3 of Part I of the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1994, in the Prospectus incorporated by reference
from Item 1 of Part II of the Company's Quarterly Reports on Form 10-Q, if
any, filed since such Annual Report,
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<PAGE> 17
in the Prospectus incorporated by reference from Item 5 of the Company's
Current Reports on Form 8-K, if any, filed since such Annual Report, and in
the Registration Statement in Item 15, insofar as such statements constitute
a summary of the legal proceedings referred to therein, fairly present the
information called for with respect to such legal proceedings; and
(viii) such counsel is of the opinion that each document incorporated by
reference in the Registration Statement and the Prospectus (except for the
financial statements included therein as to which such counsel need express
no opinion) complied as to form when filed with the Commission in all
material respects with the Exchange Act.
In rendering the opinions set forth in this Section 6(f), such counsel may
rely (A) as to matters involving the application of laws other than the laws
of the United States and the States of New York and Ohio, to the extent such
counsel deems proper and to the extent specified in such opinion, if at all,
upon an opinion or opinions (reasonably satisfactory to Underwriters'
counsel) of other counsel reasonably acceptable to the Underwriters' counsel,
familiar with the applicable laws; and (B) as to matters of fact, to the
extent such counsel deems proper, on certificates of responsible officers of
the Company and certificates or other written statements of officials of
jurisdictions having custody of documents respecting the corporate existence
or good standing of the Company. The opinion of such counsel for the Company
shall state that the opinion of any such other counsel is in form
satisfactory to such counsel and, in such counsel's opinion, the Underwriters
and they are justified in relying thereon. With respect to the matters to be
covered in subparagraph (1)(v) above, counsel may state their opinion and
belief is based upon their participation in the preparation of the
Registration Statement and the Prospectus and any amendment or supplement
thereto and their discussions from time to time with officers, directors and
employees of the Company, KPMG Peat Marwick LLP, and you, concerning the
information contained in the Registration Statement and Prospectus and the
proposed responses to various items in Form S-3 but that such counsel (except
as specified in subparagraph (1)(iv) and (2)(vii)) has not independently
verified, is not passing upon, and does not assume any responsibility for the
accuracy, completeness or fairness of the
17
<PAGE> 18
information contained in the Registration Statement and Prospectus. With
respect to the matters to be covered in subparagraph (1)(ii), counsel may
state that their opinion is subject to (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance and other laws now or
hereafter in effect relating to or limiting creditors' rights, (ii) general
principles of equity, whether such enforceability is considered in a
proceeding in equity or at law, and to the discretion of the court before
which any proceeding therefor may be brought, and (iii) public policy
considerations that may limit the rights of the Underwriters to obtain
certain remedies and to indemnification.
(g) on the Closing Date, KPMG Peat Marwick LLP shall have furnished to the
Representatives letters, dated such date, in form and substance satisfactory
to the Representatives, containing statements and information of the type
customarily included in accountants "comfort letters" to underwriters with
respect to the financial statements and certain financial information
contained in the Registration Statement and the Prospectus;
(h) the Representatives shall have received on and as of the Closing Date
an opinion of Davis Polk & Wardwell, counsel to the Underwriters, with
respect to the validity of the Indenture and the Securities, the Registration
Statement, the Prospectus and other related matters as the Representatives
may reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters; and
(i) on or prior to the Closing Date, the Company shall have furnished to
the Representatives such further certificates and documents as the
Representatives shall reasonably request.
7. The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities (including without
limitation the reasonable legal fees and other expenses incurred in connection
with any suit, action or proceeding or any claim asserted) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or
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<PAGE> 19
supplements thereto) or any preliminary prospectus, or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with information relating to any Underwriter furnished
to the Company in writing by such Underwriter through the Representatives
expressly for use therein; PROVIDED that the foregoing indemnity with respect
to any preliminary prospectus shall not inure to the benefit of any Underwriter
(or to the benefit of any person controlling such Underwriter) from whom the
person asserting any such losses, claims, damages or liabilities purchased
Securities if such untrue statement or omission or alleged untrue statement or
omission made in such preliminary prospectus is eliminated or remedied in the
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) and, if required by law, a copy of the
Prospectus (as so amended or supplemented) shall not have been furnished to
such person at or prior to the written confirmation of the sale of such
Securities to such person.
Each Underwriter agrees, severally and not jointly to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement and each person who controls the Company within the meaning of
Section 15 of the Securities Act and Section 20 of the Exchange Act, to the
same extent as the foregoing indemnity from the Company to each Underwriter,
but only with reference to information relating to such Underwriter furnished
to the Company in writing by such Underwriter through the Representatives
expressly for use in the Registration Statement, the Prospectus, any amendment
or supplement thereto, or any preliminary prospectus.
If any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any person
in respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person shall be entitled to
participate in the defense therein and, to the extent it wishes, to assume the
defense thereof and retain counsel reasonably satisfactory to the Indemnified
Person to represent the Indemnified Person and any others the Indemnifying
Person may designate in such proceeding and
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shall pay the reasonable fees and expenses of such counsel related to such
proceeding. Notwithstanding the above, in any such proceeding, any Indemnified
Person shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be, in the
reasonable judgment of the Indemnified Person, inadvisable due to actual or
potential differing interests between them. It is understood that the
Indemnifying Person shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all
Indemnified Persons, and that all such fees and expenses shall be reimbursed as
they are incurred. Any such separate firm for the Underwriters and such
control persons of Underwriters shall be designated in writing by the first of
the named Representatives on Schedule I hereto and any such separate firm for
the Company, its directors, its officers who sign the Registration Statement
and such control persons of the Company shall be designated in writing by the
Company. The Indemnifying Person shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify any Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. No Indemnifying Person
shall, without the prior written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Person, unless such settlement includes an
unconditional release of such Indemnified Person from all liability on claims
that are the subject matter of such proceeding.
If the indemnification provided for in the first and second paragraphs of
this Section 7 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable
by such Indemnified
20
<PAGE> 21
Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the
offering of the 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 that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same respective
proportions as the net proceeds from the offering of such Securities (before
deducting expenses) received by the Company and the total underwriting
discounts and the commissions received by the Underwriters bear to the
aggregate public offering price of the Securities. The relative fault of the
Company on the one hand and the Underwriters on the other shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by PRO
RATA allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an
Underwriter 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 that such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty
21
<PAGE> 22
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective principal amount of the Securities set forth opposite their names in
Schedule II hereto, and not joint.
The indemnity and contribution agreements contained in this Section 7 are in
addition to any liability which the Indemnifying Persons may otherwise have to
the Indemnified Persons referred to above.
The indemnity and contribution agreements contained in this Section 7 and
the representations and warranties of the Company set forth in this Agreement
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Underwriter or any person controlling any Underwriter or by or on behalf of
the Company, its officers or directors or any other person controlling the
Company and (iii) acceptance of and payment for any of the Securities.
8. The parties hereto agree that names of the Underwriters, the
stabilization legend on the inside front cover page of and the concessions
referenced in the third paragraph under the caption "Underwriting" in the
prospectus supplement specifically relating to the Securities constitute the
only information contained in the Registration Statement and the Prospectus
relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Representatives expressly for use therein, as such
information is referred to in Sections 6(f)(1)(viii) and 7 hereof.
9. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representatives, by notice given
to the Company, if after the execution and delivery of this Agreement and prior
to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange, or the National Association of
Securities Dealers, Inc., (ii) trading of any securities of or guaranteed by
the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities, or (iv) there shall have occurred any outbreak or escalation
of
22
<PAGE> 23
hostilities or any change in financial markets or any calamity or crisis that,
in the judgment of the Representatives, is material and adverse and which, in
the judgment of the Representatives, makes it impracticable to market the
Securities on the terms and in the manner contemplated in the Prospectus.
10. If, on the Closing Date, any one or more of the Underwriters shall
fail or refuse to purchase Securities which it or they have agreed to purchase
under this Agreement, and the aggregate principal amount of Securities which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate principal amount of the
Securities, the other Underwriters shall be obligated severally in the
proportions that the principal amount of Securities set forth opposite their
respective names in Schedule II hereto bears to the aggregate principal amount
of Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Representatives may specify,
to purchase the Securities which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase on such date; PROVIDED that in no
event shall the principal amount of Securities that any Underwriter has agreed
to purchase pursuant to Section 1 be increased pursuant to this Section 9 by an
amount in excess of one-ninth of such principal amount of Securities without
the written consent of such Underwriter. If, on the Closing Date, any
Underwriter or Underwriters shall fail or refuse to purchase Securities and the
aggregate principal amount of Securities with respect to which such default
occurs is more than one-tenth of the aggregate principal amount of Securities
to be purchased, and arrangements satisfactory to the Representatives and the
Company for the purchase of such Securities are not made within 36 hours after
such default, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter or the Company. In any such case either the
Representatives or the Company shall have the right to postpone the Closing
Date, but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the Prospectus or in any
other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
11. If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its
23
<PAGE> 24
obligations under this Agreement or any condition of the Underwriters'
obligations cannot be fulfilled, the Company agrees to reimburse the
Underwriters or such Underwriters as have so terminated this Agreement with
respect to themselves, severally, for all out-of-pocket expenses (including the
fees and expenses of their counsel) reasonably incurred by such Underwriters in
connection with this Agreement or the offering of Securities. Notwithstanding
the foregoing, the provisions of this Section 11 shall not apply to any
termination of this Agreement pursuant to Section 9 hereof.
12. This Agreement shall inure to the benefit of and be binding upon the
Company, the Underwriters, any controlling persons referred to herein and their
respective successors and assigns. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person, firm or
corporation any legal or equitable right, remedy or claim under or in respect
of this Agreement or any provision herein contained. No purchaser of
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
13. Any action by the Underwriters hereunder may be taken by the
Representatives jointly or by the first of the named Representatives set forth
in Schedule I hereto alone on behalf of the Underwriters, and any such action
taken by the Representatives jointly or by the first of the named
Representatives set forth in Schedule I hereto alone shall be binding upon the
Underwriters. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Underwriters shall be
given at the address set forth in Schedule I hereto. Notices to the Company
shall be given to it at [ ]; Attention: [ ].
24
<PAGE> 25
14. This Agreement may be signed in counterparts, each of which shall be an
original and all of which together shall constitute one and the same
instrument. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to the conflicts
of laws provisions thereof.
Very truly yours,
RUBBERMAID INCORPORATED
By:________________________
Name:
Title:
Accepted: [ ], 1996
[Lead Manager]
[Co-Manager]
Acting severally on behalf of
themselves and the several
Underwriters listed in Schedule II
hereto.
By: [Lead Manager]
By: __________________________
Name:
Title:
25
<PAGE> 26
SCHEDULE I
Representatives: [ ]
[ ]
Trustee: [ ]
Underwriting Agreement
dated: [ ], 1996
Registration Statement
No.:
Title of Securities:
Aggregate principal
amount:
Purchase Price:
Price to Public:
Indenture: Indenture dated as of [ ],
1996 between the Company and [
], as Trustee.
Maturity:
Interest Rate:
Interest Payment Dates: June 1 and December 1
Optional Redemption
Provisions:
Sinking Fund
Provisions:
Closing Date and
Time of Delivery:
Closing Location: Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Address for Notices [ ]
to Underwriters:
<PAGE> 27
SCHEDULE II
<TABLE>
<CAPTION>
Principal Amount
of Securities
Underwriter To Be Purchased
- -----------
<S> <C>
[ ] . . . . . . . . . . . . . . . . . . . . . . . . . $
Total: . . . . . . . . . . . . . . . . . . . . . . . . . $
--------------
</TABLE>
<PAGE> 1
CROSS REFERENCE SHEET*
__________
Between
Provisions of Trust Indenture Act of 1939 and Indenture to be
dated as of March 15, 1996 between RUBBERMAID INCORPORATED and FIRST TRUST OF
NEW YORK, NATIONAL ASSOCIATION, Trustee:
<TABLE>
<CAPTION>
Section of the Act Section of Indenture
------------------ --------------------
<S> <C>
310(a)(1) and (2) . . . . . . . . . . . . . . . . . 6.9
310(a)(3) and (4) . . . . . . . . . . . . . . . . . Inapplicable
310(b) . . . . . . . . . . . . . . . . . . . . . . 6.8 and 6.10(a), (b) and (d)
310(c) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
311(a) . . . . . . . . . . . . . . . . . . . . . . 6.13(a) and (c)(1) and (2)
311(b) . . . . . . . . . . . . . . . . . . . . . . 6.13(b)
311(c) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . . . . . . . . . . . . . 4.1 and 4.2(a)
312(b) . . . . . . . . . . . . . . . . . . . . . . 4.2(a) and (b)(i) and (ii)
312(c) . . . . . . . . . . . . . . . . . . . . . . 4.2(c)
313(a) . . . . . . . . . . . . . . . . . . . . . . 4.4(a)(i), (ii), (iii),
(iv), (v) and (vi)
313(b)(1) . . . . . . . . . . . . . . . . . . . . . Inapplicable
313(b)(2) . . . . . . . . . . . . . . . . . . . . . 4.4
313(c) . . . . . . . . . . . . . . . . . . . . . . 4.4
313(d) . . . . . . . . . . . . . . . . . . . . . . 4.4
314(a) . . . . . . . . . . . . . . . . . . . . . . 4.3
314(b) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(c)(1) and (2) . . . . . . . . . . . . . . . . . 11.5
314(c)(3) . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(d) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(e) . . . . . . . . . . . . . . . . . . . . . . 11.5
314(f) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
315(a), (c) and (d) . . . . . . . . . . . . . . . . 6.1
315(b) . . . . . . . . . . . . . . . . . . . . . . 5.11
315(e) . . . . . . . . . . . . . . . . . . . . . . 5.12
</TABLE>
__________________________________
* This Cross Reference Sheet is not part of the Indenture.
2
<PAGE> 2
<TABLE>
<S> <C>
316(a)(1) . . . . . . . . . . . . . . . . . . . . . 5.9
316(a)(2) . . . . . . . . . . . . . . . . . . . . . Not required
316(a) (last sentence) 7.4
316(b) . . . . . . . . . . . . . . . . . . . . . . 5.7
317(a) . . . . . . . . . . . . . . . . . . . . . . 5.2
317(b) . . . . . . . . . . . . . . . . . . . . . . 3.4(a) and (b)
318(a) . . . . . . . . . . . . . . . . . . . . . . 11.7
</TABLE>
3
<PAGE> 3
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
<S> <C> <C>
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Authorization of Indenture . . . . . . . . . . . . . . . . . 1
Compliance with Legal Requirements . . . . . . . . . . . . . 1
Purpose of and Consideration for Indenture . . . . . . . . . 1
</TABLE>
ARTICLE I.
DEFINITIONS
-----------
<TABLE>
<S> <C>
SECTION 1.1. CERTAIN TERMS DEFINED . . . . . . . . . . . . . . . . . . 1
Attributable Debt . . . . . . . . . . . . . . . . . . . . 2
Authorized Newspaper . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . 3
Board Resolution . . . . . . . . . . . . . . . . . . . . . 3
Business Day . . . . . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . . . . 3
Consolidated Net Tangible Assets . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . . 3
Coupon . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Depositary . . . . . . . . . . . . . . . . . . . . . . . . 3
Dollar . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Domestic Subsidiary . . . . . . . . . . . . . . . . . . . 4
ECU . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
European Communities . . . . . . . . . . . . . . . . . . . 4
Event of Default . . . . . . . . . . . . . . . . . . . . . 4
Foreign Currency . . . . . . . . . . . . . . . . . . . . . 4
Funded Debt . . . . . . . . . . . . . . . . . . . . . . . 4
Holder, holder of Securities, Securityholder . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . . 5
Interest . . . . . . . . . . . . . . . . . . . . . . . . . 5
Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Issuer Order . . . . . . . . . . . . . . . . . . . . . . . 5
Mortgage . . . . . . . . . . . . . . . . . . . . . . . . . 5
Officers' Certificate . . . . . . . . . . . . . . . . . . 5
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . 5
Original Issue Date . . . . . . . . . . . . . . . . . . . 5
Original Issue Discount Security . . . . . . . . . . . . . 5
Outstanding . . . . . . . . . . . . . . . . . . . . . . . 6
</TABLE>
i
<PAGE> 4
<TABLE>
<CAPTION>
Page
----
<S> <C>
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
principal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Principal Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Registered Global Security . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Registered Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Security or Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Trust Indenture Act of 1939 . . . . . . . . . . . . . . . . . . . . . . . . . 8
Unregistered Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
vice president . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Yield to Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
</TABLE>
ARTICLE II.
SECURITIES
<TABLE>
<S> <C> <C>
SECTION 2.1. FORMS GENERALLY . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.2. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION . . . . . . . . 9
SECTION 2.3. AMOUNT UNLIMITED; ISSUABLE IN SERIES . . . . . . . . . . . . . . 9
SECTION 2.4. AUTHENTICATION AND DELIVERY OF SECURITIES . . . . . . . . . . . 12
SECTION 2.5. EXECUTION OF SECURITIES . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.6. CERTIFICATE OF AUTHENTICATION . . . . . . . . . . . . . . . . . 15
SECTION 2.7. DENOMINATION AND DATE OF SECURITIES; PAYMENTS OF INTEREST . . . 15
SECTION 2.8. REGISTRATION, TRANSFER AND EXCHANGE . . . . . . . . . . . . . . 16
SECTION 2.9. MUTILATED, DEFACED, DESTROYED, LOST AND STOLEN SECURITIES . . . 20
SECTION 2.10. CANCELLATION OF SECURITIES; DESTRUCTION THEREOF . . . . . . . . 21
SECTION 2.11. TEMPORARY SECURITIES . . . . . . . . . . . . . . . . . . . . . . 22
</TABLE>
ARTICLE III.
COVENANTS OF THE ISSUER
<TABLE>
<S> <C> <C>
SECTION 3.1. PAYMENT OF PRINCIPAL AND INTEREST . . . . . . . . . . . . . . . 23
SECTION 3.2. OFFICES FOR PAYMENTS, ETC. . . . . . . . . . . . . . . . . . . . 23
SECTION 3.3. APPOINTMENT TO FILL A VACANCY IN OFFICE OF TRUSTEE . . . . . . . 25
SECTION 3.4. PAYING AGENTS . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 3.5. WRITTEN STATEMENT TO TRUSTEE . . . . . . . . . . . . . . . . . . 26
</TABLE>
ii
<PAGE> 5
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
SECTION 3.6. LIMITATION ON LIENS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 3.7. LIMITATION ON SALES AND LEASEBACKS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 3.8. LUXEMBOURG PUBLICATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
</TABLE>
ARTICLE IV.
SECURITYHOLDERS' LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
----------------------
<TABLE>
<S> <C> <C>
SECTION 4.1. ISSUER TO FURNISH TRUSTEE INFORMATION AS TO NAMES AND ADDRESSES OF SECURITYHOLDERS . . . . . . . . . 31
SECTION 4.2. PRESERVATION AND DISCLOSURE OF SECURITYHOLDERS' LISTS . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 4.3. REPORTS BY THE ISSUER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 4.4. REPORTS BY THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
</TABLE>
ARTICLE V.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
-------------------
<TABLE>
<S> <C> <C>
SECTION 5.1. EVENT OF DEFAULT DEFINED; ACCELERATION OF MATURITY; WAIVER OF DEFAULT . . . . . . . . . . . . . . . 36
SECTION 5.2. COLLECTION OF INDEBTEDNESS BY TRUSTEE; TRUSTEE MAY PROVE DEBT . . . . . . . . . . . . . . . . . . . 39
SECTION 5.3. APPLICATION OF PROCEEDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 5.4. SUITS FOR ENFORCEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 5.5. RESTORATION OF RIGHTS ON ABANDONMENT OF PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 5.6. LIMITATIONS ON SUITS BY SECURITYHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 5.7. UNCONDITIONAL RIGHT OF SECURITYHOLDERS TO INSTITUTE CERTAIN SUITS . . . . . . . . . . . . . . . . . 45
SECTION 5.8. POWERS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT WAIVER OF DEFAULT . . . . . . . . . . . . . . 45
SECTION 5.9. CONTROL BY HOLDERS OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 5.10. WAIVER OF PAST DEFAULTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 5.11. TRUSTEE TO GIVE NOTICE OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 5.12. RIGHT OF COURT TO REQUIRE FILING OF UNDERTAKING TO PAY COSTS . . . . . . . . . . . . . . . . . . . . 48
</TABLE>
ARTICLE VI.
iii
<PAGE> 6
<TABLE>
<CAPTION>
Page
----
CONCERNING THE TRUSTEE
----------------------
<S> <C> <C>
SECTION 6.1. DUTIES AND RESPONSIBILITIES OF THE TRUSTEE; DURING DEFAULT; PRIOR TO DEFAULT . . . . . . . . . . . . 48
SECTION 6.2. CERTAIN RIGHTS OF THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 6.3. TRUSTEE NOT RESPONSIBLE FOR RECITALS, DISPOSITION OF SECURITIES OR APPLICATION OF PROCEEDS THEREOF . 52
SECTION 6.4. TRUSTEE AND AGENTS MAY HOLD SECURITIES OR COUPONS; COLLECTIONS, ETC . . . . . . . . . . . . . . . . 52
SECTION 6.5. MONEYS HELD BY TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 6.6. COMPENSATION AND INDEMNIFICATION OF TRUSTEE AND ITS PRIOR CLAIM . . . . . . . . . . . . . . . . . . 52
SECTION 6.7. RIGHT OF TRUSTEE TO RELY ON OFFICERS' CERTIFICATE, ETC . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 6.8. QUALIFICATION OF TRUSTEE; CONFLICTING INTERESTS . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 6.9. PERSONS ELIGIBLE FOR APPOINTMENT AS TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 6.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR TRUSTEE . . . . . . . . . . . . . . . . . . . . . 61
SECTION 6.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 6.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS OF TRUSTEE . . . . . . . . . . . . . . . 65
SECTION 6.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE ISSUER . . . . . . . . . . . . . . . . . . . . . . . . 65
ARTICLE VII.
CONCERNING THE SECURITYHOLDERS
------------------------------
SECTION 7.1. EVIDENCE OF ACTION TAKEN BY SECURITYHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 7.2. PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF SECURITIES . . . . . . . . . . . . . . . . . . . 71
SECTION 7.3. HOLDERS TO BE TREATED AS OWNERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 7.4. SECURITIES OWNED BY ISSUER DEEMED NOT OUTSTANDING . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 7.5. RIGHT OF REVOCATION OF ACTION TAKEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
ARTICLE VIII.
</TABLE>
iv
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<TABLE>
<CAPTION>
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SUPPLEMENTAL INDENTURES
-----------------------
<S> <C> <C>
SECTION 8.1. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF SECURITYHOLDERS . . . . . . . . . . . . . . . . . . . . . 74
SECTION 8.2. SUPPLEMENTAL INDENTURES WITH CONSENT OF SECURITYHOLDERS . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 8.3. EFFECT OF SUPPLEMENTAL INDENTURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 8.4. DOCUMENTS TO BE GIVEN TO TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 8.5. NOTATION ON SECURITIES IN RESPECT OF SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . . 78
ARTICLE IX.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
-----------------------------------------
SECTION 9.1. ISSUER MAY CONSOLIDATE, ETC., ON CERTAIN TERMS . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 9.2. SUCCESSOR ISSUER SUBSTITUTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 9.3. OPINION OF COUNSEL TO TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
ARTICLE X.
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
----------------
SECTION 10.1. SATISFACTION AND DISCHARGE OF INDENTURE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 10.2. APPLICATION OF TRUST MONEY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 10.3. DEFEASANCE UPON DEPOSIT OF FUNDS OR GOVERNMENT OBLIGATIONS. . . . . . . . . . . . . . . . . . . . 81
SECTION 10.4. REPAYMENT OF MONEYS HELD BY PAYING AGENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 10.5. RETURN OF MONEYS HELD BY TRUSTEE AND PAYING AGENT UNCLAIMED FOR THREE YEARS . . . . . . . . . . . . 83
ARTICLE XI.
MISCELLANEOUS PROVISIONS
------------------------
SECTION 11.1. INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS OF ISSUER EXEMPT FROM INDIVIDUAL LIABILITY . . . 84
SECTION 11.2. PROVISIONS OF INDENTURE FOR THE SOLE BENEFIT OF PARTIES AND HOLDERS OF SECURITIES AND COUPONS . . . 84
</TABLE>
v
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<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
SECTION 11.3. SUCCESSORS AND ASSIGNS OF ISSUER BOUND BY INDENTURE . . . . . . . . . . . . . . . . . . . . . . . . 84
SECTION 11.4. NOTICES AND DEMANDS ON ISSUER, TRUSTEE AND HOLDERS OF SECURITIES AND COUPONS . . . . . . . . . . . . 84
SECTION 11.5. OFFICERS' CERTIFICATES AND OPINIONS OF COUNSEL; STATEMENTS TO BE CONTAINED THEREIN . . . . . . . . . 85
SECTION 11.6. PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS . . . . . . . . . . . . . . . . . . . . . . . . . . 86
SECTION 11.7. CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST INDENTURE ACT OF 1939 . . . . . . . . . . . . . . 86
SECTION 11.8. NEW YORK LAW TO GOVERN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
SECTION 11.9. COUNTERPARTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
SECTION 11.10. EFFECT OF HEADINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
SECTION 11.11. SECURITIES IN A FOREIGN CURRENCY OR IN ECU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
SECTION 11.12. JUDGMENT CURRENCY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
SECTION 11.13. UNREGISTERED SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
ARTICLE XII.
REDEMPTION OF SECURITIES AND SINKING FUNDS
------------------------------------------
SECTION 12.1. APPLICABILITY OF ARTICLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
SECTION 12.2. NOTICE OF FULL AND PARTIAL REDEMPTION; PARTIAL REDEMPTIONS . . . . . . . . . . . . . . . . . . . . . 90
SECTION 12.3. PAYMENT OF SECURITIES CALLED FOR REDEMPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
SECTION 12.4. EXCLUSION OF CERTAIN SECURITIES FROM ELIGIBILITY FOR SELECTION FOR REDEMPTION . . . . . . . . . . . 93
SECTION 12.5. MANDATORY AND OPTIONAL SINKING FUNDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
</TABLE>
vi
<PAGE> 9
THIS INDENTURE, dated as of March 15, 1996 between RUBBERMAID
INCORPORATED, an Ohio corporation (the "Issuer"), and FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION, a national banking association duly organized and
existing under the laws of the United States of America (the "Trustee"),
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issue from time to
time of its unsecured debentures, notes or other evidences of indebtedness to
be issued in one or more series (the "Securities") up to such principal amount
or amounts as may from time to time be authorized in accordance with the terms
of this Indenture and to provide, among other things, for the authentication,
delivery and administration thereof, the Issuer has duly authorized the
execution and delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the
Securities by the holders thereof, the Issuer and the Trustee mutually covenant
and agree for the equal and proportionate benefit of the respective holders
from time to time of the Securities and of the Coupons, if any, appertaining
thereto as follows:
ARTICLE I.
DEFINITIONS
-----------
SECTION 1.1. CERTAIN TERMS DEFINED. The following terms
(except as otherwise expressly provided or unless the context otherwise clearly
requires) for all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Section. All other
terms used in this Indenture that are defined in the Trust Indenture Act of
1939 or the definitions of which in the Securities Act of 1933 are referred to
in the Trust Indenture Act of 1939, including terms defined therein by
reference to the Securities Act of 1933 (except as herein otherwise expressly
provided or unless the context otherwise clearly requires), shall have the
meanings assigned to such terms in said Trust Indenture Act and in said
Securities Act as in force at the date of
<PAGE> 10
this Indenture. All accounting terms used herein and not expressly defined
shall have the meanings assigned to such terms in accordance with generally
accepted accounting principles, and the term "GENERALLY ACCEPTED ACCOUNTING
PRINCIPLES" means such accounting principles as are generally accepted at the
time of any computation. 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. The terms defined in this
Article have the meanings assigned to them in this Article and include the
plural as well as the singular.
"ATTRIBUTABLE DEBT" means, as to any particular lease under which
any Person is at the time liable, at any date as of which the amount thereof is
to be determined, the total net amount of rent required to be paid by such
Person under such lease during the remaining term thereof, discounted from the
respective due dates thereof to such date at the rate per annum borne by the
Securities compounded semi-annually. The net amount of rent required to be
paid under any such lease for any such period shall be the aggregate amount of
the rent payable by the lessee with respect to such period after excluding
amounts required to be paid on account of maintenance and repairs, insurance,
taxes, assessments, water rates, contingent rents (such as those based on
sales) and similar charges. In the case of any lease which is terminable by
the lessee upon the payment of a penalty, such net amount shall also include
the amount of such penalty, but no rent shall be considered as required to be
paid under such lease subsequent to the first date upon which it may be so
terminated.
"AUTHORIZED NEWSPAPER" means a newspaper (which, in the case of
The City of New York, will, if practicable, be The Wall Street Journal (Eastern
Edition), in the case of the United Kingdom, will, if practicable, be the
Financial Times (London Edition) and, in the case of Luxembourg, will, if
practicable, be the Luxemburger Wort) in an official language of the country of
publication customarily published at least once a day for at least five days in
each calendar week and of general circulation in The City of New York, the
United Kingdom or in Luxembourg, as applicable. If it shall be impractical in
the opinion of the Trustee to make any publication of any notice required
hereby in an Authorized Newspaper due to cessation of publication, any
publication in a newspaper of general circulation or other notice in lieu
thereof which is made or given with the approval of the Trustee shall
constitute a sufficient publication of such notice.
2
<PAGE> 11
"BOARD OF DIRECTORS" means either the Board of Directors of the
Issuer or any committee of such Board duly authorized to act on its behalf.
"BOARD RESOLUTION" means a copy of one or more resolutions,
certified by the secretary or an assistant secretary of the Issuer to have been
duly adopted by the Board of Directors and to be in full force and effect, and
delivered to the Trustee.
"BUSINESS DAY" means, with respect to any Security, a day that is
not a day on which banking institutions are authorized or required by law or
regulation to be closed (a) in the City of New York or (b) if the currency in
which the Security is denominated is other than U.S. dollars, the financial
center of the country issuing the currency in which the Security is denominated
(which, in the case of ECU, shall be Brussels, Belgium).
"COMMISSION" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or
if at any time after the execution and delivery of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties on such date.
"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 constituting
Funded Debt by reason of their being renewable or extendable) 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 Issuer and its consolidated subsidiaries and computed in
accordance with generally accepted accounting principles.
"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.
"COUPON" means any interest coupon appertaining to a Security.
"DEBT", unless otherwise specified, shall have the meaning set
forth in Section 3.6.
"DEPOSITARY" means, with respect to the Securities of any series
issuable or issued in the form of one or more
3
<PAGE> 12
Registered Global Securities, the Person designated as Depositary by the
Company pursuant to Section 2.3 until a successor Depositary shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Depositary" shall mean or include each Person who is then a Depositary
hereunder, and if at any time there is more than one such Person, "Depositary"
as used with respect to the Securities of any such series shall mean the
Depositary with respect to the Registered Global Securities of that series.
"DOLLAR" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
"DOMESTIC SUBSIDIARY" means a Subsidiary except a Subsidiary which
(i) (a) neither transacts any substantial portion of its business nor regularly
maintains any substantial portion of its fixed assets within the States of the
United States, or (b) which is engaged primarily in financing the operations of
the Issuer or its Subsidiaries, or both, outside the States of the United
States and (ii) does not own, indirectly or directly, a Subsidiary other than a
Subsidiary described in the preceding clause (i).
"ECU" means the European Currency Unit as defined and revised from
time to time by the Council of European Communities.
"EUROPEAN COMMUNITIES" shall have the meaning set forth in
Section 11.11(b)
"EVENT OF DEFAULT" shall have the meaning set forth in Section 5.1.
"FOREIGN CURRENCY" means a currency issued by the government of a
country other than the United States.
"FUNDED DEBT" means all indebtedness for money borrowed having a
maturity of more than 12 months from the date of the most recent balance sheet
of the Issuer and its consolidated subsidiaries or having a maturity of less
than 12 months but by its terms being renewable or extendible beyond 12 months
from the date of such balance sheet at the option of the borrower.
"HOLDER", "HOLDER OF SECURITIES", "SECURITYHOLDER" or other
similar terms mean (a) in the case of any Registered Security, the person in
whose name such Security is registered in the security register kept by the
Issuer for that purpose in accordance with the terms hereof, and (b) in the
case of an Unregistered Security, the bearer of
4
<PAGE> 13
such Security, or any Coupon appertaining thereto, as the case may be.
"INDENTURE" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so amended or
supplemented or both, and shall include the forms and terms of particular
series of Securities established as contemplated hereunder.
"INTEREST" means, when used with respect to non-interest bearing
Securities, interest payable after maturity.
"ISSUER" means (except as otherwise provided in Article Six)
Rubbermaid Incorporated, and, subject to Article Nine, its successors and
assigns.
"ISSUER ORDER" means a written statement, request or order of the
Issuer signed in its name by the chairman of the Board of Directors, the
president or any vice president of the Issuer.
"MORTGAGE" shall have the meaning set forth in Section 3.6.
"OFFICERS' CERTIFICATE" means a certificate signed by the chairman
of the Board of Directors or the president or any vice president and by the
treasurer or the secretary or any assistant secretary of the Issuer and
delivered to the Trustee. Each such certificate shall include the statements
provided for in Section 11.5.
"OPINION OF COUNSEL" means an opinion in writing signed by the
general corporate counsel or such other legal counsel who may be an employee of
or counsel to the Issuer and who shall be satisfactory to the Trustee. Each
such opinion shall include the statements provided for in Section 11.5, if and
to the extent required hereby.
"ORIGINAL ISSUE DATE" of any Security (or portion thereof) means
the earlier of (a) the date of such Security or (b) the date of any Security
(or portion thereof) for which such Security was issued (directly or
indirectly) on registration of transfer, exchange or substitution.
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security that
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant to
Section 5.1.
5
<PAGE> 14
"OUTSTANDING" (except as otherwise provided in Section 6.8), when
used with reference to Securities, shall, subject to the provisions of Section
7.4, mean, as of any particular time, all Securities authenticated and
delivered by the Trustee under this Indenture, except
(a) Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or
redemption of which moneys or government obligations (as provided for in
Section 10.3) in the necessary amount shall have been deposited in trust
with the Trustee or with any paying agent (other than the Issuer) or shall
have been set aside, segregated and held in trust by the Issuer for the
holders of such Securities (if the Issuer shall act as its own paying
agent), PROVIDED that if such Securities, or portions thereof, are to be
redeemed prior to the maturity thereof, notice of such redemption shall
have been given as herein provided, or provision satisfactory to the
Trustee shall have been made for giving such notice; and
(c) Securities in substitution for which other Securities shall
have been authenticated and delivered, or which shall have been paid,
pursuant to the terms of Section 2.9 (except with respect to any such
Security as to which proof satisfactory to the Trustee and the Issuer is
presented that such Security is held by a person in whose hands such
Security is a legal, valid and binding obligation of the Issuer).
In determining whether the holders of the requisite principal
amount of Outstanding Securities of any or all series have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding for such purposes shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon a
declaration of acceleration of the maturity thereof pursuant to Section 5.1.
"PERSON" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
6
<PAGE> 15
"PRINCIPAL" whenever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "and premium, if
any".
"PRINCIPAL PROPERTY" means any single manufacturing plant
(including production machinery and equipment located thereon) or warehouse,
owned or leased by the Issuer or any Domestic Subsidiary, which is located
within the United States and the gross book value (without deduction of any
depreciation reserves) of which on the date as of which the determination is
being made exceeds 1 1/2% of Consolidated Net Tangible Assets, other than any
such plant or warehouse or portion thereof which, in the opinion of the Board
of Directors, is not of material importance to the total business conducted by
the Issuer and its subsidiaries as an entirety. "Manufacturing plant" does not
include any plant owned or leased jointly or in common with one or more
Persons other than the Issuer and its Domestic Subsidiaries in which the
aggregate interest of the Issuer and its Domestic Subsidiaries does not exceed
fifty percent (50%). "Production machinery and equipment" means production
machinery and equipment in such manufacturing plants used directly in the
production of the Issuer's or any Domestic Subsidiary's products and does not
include office equipment, computer equipment, rolling stock and other equipment
not directly used in the production of the Issuer's or any Domestic
Subsidiary's products.
"REGISTERED GLOBAL SECURITY" means a Security evidencing all or a
part of a series of Registered Securities, issued to the Depositary for such
series in accordance with Section 2.4, and bearing the legend prescribed in
Section 2.4.
"REGISTERED SECURITY" means any Security registered on the
Security register of the Issuer.
"RESPONSIBLE OFFICER" when used with respect to the Trustee means
the chairman of the Board of Directors, any vice chairman of the board of
directors, the chairman of the trust committee, the chairman of the executive
committee, or any vice chairman of the executive committee, the president, any
vice president, the cashier, the secretary, the treasurer, any trust officer,
any assistant trust officer, any assistant vice president, any assistant
cashier, any assistant secretary, 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
7
<PAGE> 16
referred because of his knowledge of and familiarity with the particular
subject.
"SECURITY" or "SECURITIES" (except as otherwise provided in
Section 6.8) has the meaning stated in the first recital of this Indenture, or,
as the case may be, Securities that have been authenticated and delivered under
this Indenture.
"SUBSIDIARY" means a corporation a majority of the outstanding
voting stock of which is owned, directly or indirectly, by the Issuer or by one
or more subsidiaries of the Issuer, or by the Issuer and one or more
subsidiaries of the Issuer.
"TRUSTEE" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Six, shall also
include any successor trustee.
"TRUST INDENTURE ACT OF 1939" (except as otherwise provided in
Sections 8.1 and 8.2) means the Trust Indenture Act of 1939 as in force at the
date as of which this Indenture was originally executed.
"UNREGISTERED SECURITY" means any Security other than a Registered
Security including any Securities in bearer form.
"VICE PRESIDENT" when used with respect to the Issuer or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title of "vice president".
"YIELD TO MATURITY" means the yield to maturity on a series of
securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with accepted financial practice.
ARTICLE II.
SECURITIES
----------
SECTION 2.1. FORMS GENERALLY. The Securities of each series
and the Coupons, if any, to be attached thereto shall be substantially in such
form (not inconsistent with this Indenture) as shall be established by or
pursuant to one or more Board Resolutions (as set forth in a Board Resolution
or, to the extent established pursuant to rather than set forth in such Board
Resolution, an Officers'
8
<PAGE> 17
Certificate detailing such establishment) or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and may have imprinted or otherwise reproduced thereon such legend or
legends or endorsements, not inconsistent with the provisions of this
Indenture, as may be required to comply with any law or with any rules or
regulations pursuant thereto, or with any rules of any securities exchange or
to conform to general usage, all as may be determined by the officers executing
such Securities and Coupons, if any, as evidenced by their execution of the
Securities and Coupons.
The definitive Securities and Coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities and
Coupons, if any, as evidenced by their execution of such Securities and
Coupons, if any.
SECTION 2.2. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
_______________________,
as Trustee
By______________________
Authorized Officer
SECTION 2.3. AMOUNT UNLIMITED; ISSUABLE IN SERIES. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall
be established in or pursuant to one or more Board Resolutions of the Board of
Directors and set forth in a Board Resolution, or to the extent established
pursuant to (rather than set forth in) such Board Resolution in an Officers'
Certificate detailing such establishment, and/or established in one or more
indentures supplemental
9
<PAGE> 18
hereto, prior to the initial issuance of Securities of any series,
(1) the designation of the Securities of the series (which may be
part of a series of Securities previously issued);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration and transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 2.8, 2.9, 2.11 or 12.3);
(3) the coin or currency in which the Securities of that series
are denominated (including, but not limited to Dollars, any Foreign
Currency or ECU) and the aggregate principal amount of the series which may
be authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration and transfer of, or in
exchange for, or in lieu of, other Securities of such series pursuant to
this Indenture);
(4) any date on which the principal of the Securities of the
series is payable;
(5) the rate or rates at which the Securities of the series shall
bear interest, if any, the date or dates from which such interest shall
accrue, on which such interest shall be payable and (in the case of
Registered Securities) on which a record shall be taken for the
determination of Holders to whom interest is payable and/or the method by
which such rate or rates or date or dates shall be determined and the basis
on which interest shall be calculated if other than a 360-day year
consisting of 12 30-day months;
(6) the place or places where the principal or any interest on
Securities of the series shall be payable (if other than as provided in
Section 3.2);
(7) the price or prices at which, the period or periods within
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 Issuer, pursuant to
any sinking fund or otherwise;
(8) the obligation, if any, of the Issuer to redeem, purchase or
repay Securities of the series
10
<PAGE> 19
pursuant to any mandatory redemption, sinking fund or analogous provisions
or at the option of a Holder thereof and the price or prices at which and
the period or periods within which and any terms and conditions upon which
Securities of the series shall be redeemed, purchased or repaid, in whole
or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any multiple of
$1,000 thereafter, the denominations in which Securities of the series
shall be issuable;
(10) 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;
(11) if other than the coin or currency in which the Securities
of that series are denominated, the coin or currency in which payment of
the principal of, premium, if any, or interest on the Securities of such
series shall be payable;
(12) if the principal of, premium, if any, or interest on the
Securities of such series are to be payable, at the election of the Issuer
or a holder thereof, in a coin or currency other than that in which the
Securities are denominated, the period or periods within which, and the
terms and conditions upon which, such election may be made;
(13) if the amount of payments of principal of, premium, if any,
and interest on the Securities of the series may be determined with
reference to an index based on a coin or currency other than that in which
the Securities of the series are denominated, the manner in which such
amount shall be determined;
(14) whether the Securities of the series will be issuable as
Registered Securities (and if so, whether such Securities will be issuable
as Registered Global Securities) or Unregistered Securities (with or
without Coupons), or any combination of the foregoing, any restrictions
applicable to the offer, sale or delivery of Unregistered Securities and,
if other than as provided in Section 2.8, the terms upon which Unregistered
Securities of any series may be exchanged for Registered Securities of such
series and vice versa;
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(15) whether and under what circumstances the Issuer will pay
additional amounts on the Securities of the series held by a person who is
not a U.S. person in respect of any tax, assessment or governmental charge
withheld or deducted and, if so, whether the Issuer will have the option to
redeem such Securities rather than pay such additional amounts;
(16) any trustees, depositaries, authenticating or paying agents,
transfer agents or registrars or any other agents with respect to the
Securities of such series; and
(17) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
SECTION 2.4. AUTHENTICATION AND DELIVERY OF SECURITIES. The
Issuer may deliver Securities of any series having attached thereto appropriate
Coupons, if any, executed by the Issuer to the Trustee for authentication
together with the applicable documents referred to below in this Section, and
the Trustee shall thereupon authenticate and deliver such Securities to or upon
the order of the Issuer (contained in the Issuer Order referred to below in
this Section), or pursuant to such procedures acceptable to the Trustee and to
such recipients as may be specified from time to time by an Issuer Order. The
maturity date, Original Issue Date, interest rate and any other terms of the
Securities of such series and Coupons, if any, appertaining thereto shall be
determined by or pursuant to such Issuer Order and procedures. In
authenticating such Securities and accepting the additional responsibilities
under this Indenture in relation to such Securities the Trustee shall be
entitled to receive, and (subject to Section 6.1) shall be fully protected in
relying upon:
(1) an Issuer Order requesting such authentication and setting
forth delivery instructions if the Securities and Coupons, if any, are not
to be delivered to the Issuer;
(2) any Board Resolution, Officers' Certificate and/or executed
supplemental indenture referred to in Sections 2.1 and 2.3 by or pursuant
to which the forms and terms of the Securities and Coupons, if any, were
established;
(3) an Officers' Certificate setting forth the form and terms of
the Securities and Coupons, if any, stating that the form and terms of the
Securities and
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Coupons, if any, have been established pursuant to Sections 2.1 and 2.3 and
comply with this Indenture, and covering such other matters as the Trustee
may reasonably request; and
(4) an Opinion of Counsel to the effect that:
(a) the form or forms and terms of such Securities and
Coupons, if any, have been established pursuant to Sections 2.1
and 2.3 and comply with this Indenture,
(b) the authentication and delivery of such Securities
and Coupons, if any, by the Trustee are authorized under the
provisions of this Indenture, and
(c) such Securities and Coupons, if any, when
authenticated and delivered by the Trustee and issued by the
Issuer in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute valid and binding
obligations of the Issuer, enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws of general
applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles.
The Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken by the Issuer or
if the Trustee in good faith by its board of directors or board of trustees,
executive committee, or a trust committee of directors or trustees or
Responsible Officers shall determine that such action would expose the Trustee
to personal liability to existing Holders.
If the Issuer shall establish pursuant to Section 2.3 that the
Securities of a series are to be issued in the form of one or more Registered
Global Securities, then the Issuer shall execute and the Trustee shall, in
accordance with this Section and the Issuer Order with respect to such series,
authenticate and deliver one or more Registered Global Securities that (i)
shall represent and shall be denominated in an amount equal to the aggregate
principal amount of all of the Securities of such series issued and not yet
canceled, (ii) shall be registered in the name of the Depositary for such
Registered Global Security or
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Securities or the nominee of such Depositary, (iii) shall be delivered by the
Trustee to such Depositary or pursuant to such Depositary's instructions and
(iv) shall bear a legend substantially to the following effect: "Unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, this Security may not be transferred except as a whole by the
Depositary to the nominee of the Depositary or by a nominee of the Depositary
to the Depositary or another nominee of the Depositary or by the Depositary or
any such nominee to a successor Depositary or a nominee of such successor
Depositary."
Each Depositary designated pursuant to Section 2.3 must, at the
time of its designation and at all times while it serves as Depositary, be a
clearing agency registered under the Securities Exchange Act of 1934 and any
other applicable statute or regulation.
SECTION 2.5. EXECUTION OF SECURITIES. The Securities and, if
applicable, each Coupon appertaining thereto shall be signed on behalf of the
Issuer by the chairman of its Board of Directors or any vice chairman of its
Board of Directors or its president or any vice president or its treasurer,
under its corporate seal (except in the case of Coupons) which may, but need
not, be attested. Such signatures may be the manual or facsimile signatures of
the present or any future such officers. The seal of the Issuer may be in the
form of a facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Securities. Typographical and other minor errors
or defects in any such reproduction of the seal or any such signature shall not
affect the validity or enforceability of any Security that has been duly
authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities or Coupons, if any, shall cease to be such officer before the
Security or Coupon so signed (or the Security to which the Coupon so signed
appertains) shall be authenticated and delivered by the Trustee or disposed of
by the Issuer, such Security or Coupon nevertheless may be authenticated and
delivered or disposed of as though the person who signed such Security or
Coupon had not ceased to be such officer of the Issuer; and any Security or
Coupon may be signed on behalf of the Issuer by such persons as, at the actual
date of the execution of such Security or Coupon, shall be the proper officers
of the Issuer, although at the date of the execution and delivery of this
Indenture any such person was not such an officer.
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SECTION 2.6. CERTIFICATE OF AUTHENTICATION. Only such
Securities as shall bear thereon a certificate of authentication substantially
in the form hereinbefore recited, executed by the Trustee by the manual
signature of one of its authorized officers, shall be entitled to the benefits
of this Indenture or be valid or obligatory for any purpose. No Coupon shall
be entitled to the benefits of this Indenture or shall be valid and obligatory
for any purpose until such certificate shall have become duly executed by the
Trustee on the Security to which such Coupon appertains. Such certificate by
the Trustee upon any Security executed by the Issuer shall be conclusive
evidence that the Security so authenticated has been duly authenticated and
delivered hereunder and that the holder is entitled to the benefits of this
Indenture.
SECTION 2.7. DENOMINATION AND DATE OF SECURITIES; PAYMENTS OF
INTEREST. The Securities of each series shall be issuable as Registered
Securities or Unregistered Securities in denominations established as
contemplated by Section 2.3 or, with respect to the Registered Securities of
any series, if not so established, in denominations of $1,000 and any multiple
thereof. If denominations of Unregistered Securities of any series are not so
established, such Securities shall be issuable in denominations of $1,000 and
$5,000. The Securities of each series shall be numbered, lettered, or
otherwise distinguished in such manner or in accordance with such plan as the
officers of the Issuer executing the same may determine with the approval of
the Trustee as evidenced by the execution and authentication thereof.
Each Registered Security shall be dated the date of its
authentication. Each Unregistered Security shall be dated as provided in the
resolution or resolutions of the Board of Directors of the Issuer referred to
in Section 2.3. The Securities of each series shall bear interest, if any,
from the date, and such interest shall be payable on the dates, established as
contemplated by Section 2.3.
The person in whose name any Registered Security of any series is
registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered
Security subsequent to the record date and prior to such interest payment date,
except if and to the extent the Issuer shall default in the payment of the
interest due on such interest payment date for such series, in which case such
defaulted interest shall be paid
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to the persons in whose names Outstanding Registered Securities for such series
are registered at the close of business on a subsequent record date (which
shall be not less than five Business Days prior to the date of payment of such
defaulted interest) established by notice given by mail by or on behalf of the
Issuer to the holders of Registered Securities not less than 15 days preceding
such subsequent record date. The term "record date" as used with respect to
any interest payment date (except a date for payment of defaulted interest) for
the Securities of any series shall mean the date specified as such in the terms
of the Registered Securities of such series established as contemplated by
Section 2.3, or, if no such date is so established, if such interest payment
date is the first day of a calendar month, the fifteenth day of the next
preceding calendar month or, if such interest payment date is the fifteenth day
of a calendar month, the first day of such calendar month, whether or not such
record date is a Business Day.
SECTION 2.8. REGISTRATION, TRANSFER AND EXCHANGE. The Issuer
will keep at each office or agency to be maintained for the purpose as provided
in Section 3.2 for each series of Securities a register or registers in which,
subject to such reasonable regulations as it may prescribe, it will provide for
the registration of Securities of such series and the registration of transfer
of Registered Securities of such series. Such register shall be in written
form in the English language or in any other form capable of being converted
into such form within a reasonable time. At all reasonable times such register
or registers shall be open for inspection by the Trustee.
Upon due presentation for registration of transfer of any
Registered Security of any series at any such office or agency to be maintained
for the purpose as provided in Section 3.2, the Issuer shall execute and the
Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Registered Security or Registered Securities of the same
series, maturity date, interest rate and Original Issue Date in authorized
denominations for a like aggregate principal amount.
Unregistered Securities (except for any temporary Unregistered
Securities) and Coupons (except for Coupons attached to any temporary
Unregistered Securities) shall be transferrable by delivery.
At the option of the Holder thereof, Registered Securities of any
series (except a Registered Global Security) may be exchanged for a Registered
Security or
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Registered Securities of such series, maturity date, interest rate and Original
Issue Date of other authorized denominations and of a like aggregate principal
amount, upon surrender of such Registered Securities to be exchanged at the
agency of the Issuer which shall be maintained for such purpose in accordance
with Section 3.2 and upon payment, if the Issuer shall so require, of the
charges hereinafter provided. If the Securities of any series are issued in
both registered and unregistered form, except as otherwise specified pursuant
to Section 2.3, at the option of the Holder thereof, Unregistered Securities of
any series may be exchanged for Registered Securities of such series, maturity
date, interest rate and Original Issue Date of any authorized denominations and
of a like aggregate principal amount, upon surrender of such Unregistered
Securities to be exchanged at the agency of the Issuer that shall be maintained
for such purpose in accordance with Section 3.2, with, in the case of
Unregistered Securities that have Coupons attached, all unmatured Coupons and
all matured Coupons in default thereto appertaining, and upon payment, if the
Issuer shall so require, of the charges hereinafter provided. At the option of
the Holder thereof, if Unregistered Securities of any series, maturity date,
interest rate and Original Issue Date are issued in more than one authorized
denomination, except as otherwise specified pursuant to Section 2.3, such
Unregistered Securities may be exchanged for Unregistered Securities of such
series, maturity date, interest rate and Original Issue Date of other
authorized denominations and of a like aggregate principal amount, upon
surrender of such Unregistered Securities to be exchanged at the agency of the
Issuer that shall be maintained for such purpose in accordance with Section 3.2
or as specified pursuant to Section 2.3, with, in the case of Unregistered
Securities that have Coupons attached, all unmatured coupons and all matured
coupons in default thereto appertaining, and upon payment, if the Issuer shall
so require, of the charges hereinafter provided. Unless otherwise specified
pursuant to Section 2.3, Registered Securities of any series may not be
exchanged for Unregistered Securities of such series. Whenever any Securities
are so surrendered for exchange, the Issuer shall execute, and the Trustee
shall authenticate and deliver, the Securities which the Holder making the
exchange is entitled to receive. All Securities and Coupons surrendered upon
any exchange or transfer provided for in this Indenture shall be promptly
canceled and destroyed by the Trustee and the Trustee will deliver a
certificate of destruction thereof to the Issuer.
All Registered Securities presented for registration of transfer,
exchange, redemption or payment
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shall (if so required by the Issuer or the Trustee) be duly endorsed by, or be
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Issuer and the Trustee duly executed by, the holder or his
attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
exchange or registration of transfer of Securities. No service charge shall be
made for any such transaction.
The Issuer shall not be required to exchange or register a
transfer of (a) any Securities of any series for a period of 15 days next
preceding the first mailing of notice of redemption of Securities of such
series to be redeemed, or (b) any Securities selected, called or being called
for redemption, in whole or in part, except, in the case of any Security to be
redeemed in part, the portion thereof not so to be redeemed.
Notwithstanding any other provision of this Section 2.8, unless
and until it is exchanged in whole or in part for Securities in definitive
registered form, a Registered Global Security representing all or a portion of
the Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or any such nominee to a successor
Depositary for such series or a nominee of such successor Depositary.
If at any time the Depositary for any Registered Securities of a
series represented by one or more Registered Global Securities notifies the
Issuer that it is unwilling or unable to continue as Depositary for such
Registered Securities or if at any time the Depositary for such Registered
Securities shall no longer be eligible under Section 2.4, the Issuer shall
appoint a successor Depositary with respect to such Registered Securities. If
a successor Depositary for such Registered Securities is not appointed by the
Issuer within 90 days after the Issuer receives such notice or becomes aware of
such ineligibility, the Issuer's election pursuant to Section 2.3 that such
Registered Securities be represented by one or more Registered Global
Securities shall no longer be effective and the Issuer will execute, and the
Trustee, upon receipt of an Officer's Certificate for the authentication and
delivery of definitive Securities of such series, will authenticate and
deliver, Securities of such series in definitive registered form without
coupons, in any authorized denominations, in an aggregate principal amount
equal to the principal amount of
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the Registered Global Security or Securities representing such Registered
Securities in exchange for such Registered Global Security or Securities.
The Issuer may at any time and in its sole discretion determine
that the Registered Securities of any series issued in the form of one or more
Registered Global Securities shall no longer be represented by a Registered
Global Security or Securities. In such event the Issuer will execute, and the
Trustee, upon receipt of an Officer's Certificate for the authentication and
delivery of definitive Securities of such series, will authenticate and
deliver, Securities of such series in definitive registered form without
coupons, in any authorized denominations, in an aggregate principal amount
equal to the principal amount of the Registered Global Security or Securities
representing such Registered Securities, in exchange for such Registered Global
Security or Securities.
If specified by the Issuer pursuant to Section 2.3 with respect to
Securities represented by a Registered Global Security, the Depositary for such
Registered Global Security may surrender such Registered Global Security in
exchange in whole or in part for Securities of the same series in definitive
registered form on such terms as are acceptable to the Issuer and such
Depositary. Thereupon, the Issuer shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary a new
Registered Security or Securities of the same series, of any authorized
denominations as requested by such Person, in an aggregate principal amount
equal to and in exchange for such Person's beneficial interest in the
Registered Global Security; and
(ii) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the principal amount
of the surrendered Registered Global Security and the aggregate principal
amount of Registered Securities authenticated and delivered pursuant to
clause (i) above.
Upon the exchange of a Registered Global Security for Securities
in definitive registered form without coupons, in authorized denominations,
such Registered Global Security shall be canceled by the Trustee. Securities
in definitive registered form without coupons issued in exchange for a
Registered Global Security pursuant to this Section 2.8 shall be registered in
such names and in such authorized denominations as the Depositary for such
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Registered Global Security, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Securities to or as directed by the Persons in whose names
such Securities are so registered.
All Securities issued upon any transfer or exchange of Securities
shall be valid obligations of the Issuer, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
Notwithstanding anything herein or in the terms of any series of
Securities to the contrary, neither the Issuer nor the Trustee (which shall
rely on an Officers' Certificate and an Opinion of Counsel) shall be required
to exchange any Unregistered Security for a Registered Security if such
exchange would result in adverse Federal income tax consequences to the Issuer
(such as, for example, the inability of the Issuer to deduct from its income,
as computed for Federal income tax purposes, the interest payable on the
Unregistered Securities) under then applicable United States Federal income tax
laws.
SECTION 2.9. MUTILATED, DEFACED, DESTROYED, LOST AND STOLEN
SECURITIES. In case any temporary or definitive Security or any Coupon
appertaining to any Security shall become mutilated, defaced or be destroyed,
lost or stolen, the Issuer in its discretion may execute, and upon the written
request of any officer of the Issuer, the Trustee shall, in the case of a
Security, authenticate and deliver, or in the case of a Coupon, deliver, a new
Security or Coupon of the same series, maturity date, interest rate and
Original Issue Date, bearing a number or other distinguishing symbol not
contemporaneously outstanding, in exchange and substitution for the mutilated
or defaced Security or Coupon, or in lieu of and substitution for the Security
or Coupon so destroyed, lost or stolen. In every case the applicant for a
substitute Security or Coupon shall furnish to the Issuer and to the Trustee
and any agent of the Issuer or the Trustee such security or indemnity as may be
required by them to indemnify and defend and to save each of them harmless and,
in every case of destruction, loss or theft, evidence to their satisfaction of
the destruction, loss or theft of such Security or Coupon and of the ownership
thereof.
Upon the issuance of any substitute Security or Coupon, the Issuer may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
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(including the fees and expenses of the Trustee) connected therewith. In case
any Security or Coupon which has matured or is about to mature or has been
called for redemption in full shall become mutilated or defaced or be
destroyed, lost or stolen, the Issuer may instead of issuing a substitute
Security or Coupon, pay or authorize the payment of the same (without surrender
thereof except in the case of a mutilated or defaced Security or Coupon), if
the applicant for such payment shall furnish to the Issuer and to the Trustee
and any agent of the Issuer or the Trustee such security or indemnity as any of
them may require to save each of them harmless, and, in every case of
destruction, loss or theft, the applicant shall also furnish to the Issuer and
the Trustee and any agent of the Issuer or the Trustee evidence to their
satisfaction of the destruction, loss or theft of such Security or Coupon and
of the ownership thereof.
Every substitute Security or Coupon of any series issued pursuant
to the provisions of this Section by virtue of the fact that any such Security
or Coupon is destroyed, lost or stolen shall constitute an additional
contractual obligation of the Issuer, whether or not the destroyed, lost or
stolen Security or Coupon shall be at any time enforceable by anyone and shall
be entitled to all the benefits of (but shall be subject to all the limitations
of rights set forth in) this Indenture equally and proportionately with any and
all other Securities or Coupons of such series duly authenticated and delivered
hereunder. All Securities and Coupons shall be held and owned upon the express
condition that, to the extent permitted by law, the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, defaced or
destroyed, lost or stolen Securities and Coupons and shall preclude any and all
other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
SECTION 2.10. CANCELLATION OF SECURITIES; DESTRUCTION THEREOF.
All Securities and Coupons surrendered for payment, redemption, registration of
transfer or exchange, or for credit against any payment in respect of a sinking
or analogous fund, if surrendered to the Issuer or any agent of the Issuer or
the Trustee, shall be delivered to the Trustee for cancellation or, if
surrendered to the Trustee, shall be canceled by it; and no Securities or
Coupons shall be issued in lieu thereof except as expressly permitted by any of
the provisions of this Indenture. The Trustee shall destroy canceled
Securities and Coupons held by it and deliver a certificate of destruction to
the Issuer. If the Issuer shall acquire any of the Securities
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or Coupons, such acquisition shall not operate as a redemption or satisfaction
of the indebtedness represented by such Securities of Coupons unless and until
the same are delivered to the Trustee for cancellation.
SECTION 2.11. TEMPORARY SECURITIES. Pending the preparation of
definitive Securities for any series, the Issuer may execute and the Trustee
shall authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable as Registered Securities without coupons, or as Unregistered
Securities with or without coupons attached thereto, of any authorized
denomination, and substantially in the form of the definitive Securities of
such series but with such omissions, insertions and variations as may be
appropriate for temporary Registered Securities of such series, all as may be
determined by the Issuer with the concurrence of the Trustee as evidenced by
the execution and authentication thereof. Temporary Securities may contain
such reference to any provisions of this Indenture as may be appropriate.
Every temporary Security shall be executed by the Issuer and be authenticated
by the Trustee upon the same conditions and in substantially the same manner,
and with like effect, as the definitive Securities. Without unreasonable delay
the Issuer shall execute and shall furnish definitive Securities of such series
and thereupon temporary Registered Securities of such series may be surrendered
in exchange therefor without charge at each office or agency to be maintained
by the Issuer for that purpose pursuant to Section 3.2 and in the case of
Unregistered Securities, at any agency maintained by the Issuer for such
purpose as specified pursuant to Section 2.3, and the Trustee shall
authenticate and deliver in exchange for such temporary Securities of such
series a like aggregate principal amount of definitive Securities of the same
series of authorized denominations and, in the case of Unregistered Securities,
having attached thereto any appropriate Coupons. Until so exchanged, the
temporary Securities of any series shall be entitled to the same benefits under
this Indenture as definitive Securities of such series, unless otherwise
established pursuant to Section 2.3 The provisions of this Section are subject
to any restrictions or limitations on the issue and delivery of temporary
Unregistered Securities of any series that may be established pursuant to
Section 2.3 (including any provision that Unregistered Securities of such
series initially be issued in the form of a single global Unregistered Security
to be delivered to a depositary or agency of the Issuer located outside the
United States and the procedures pursuant to which definitive or global
Unregistered
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Securities of such series would be issued in exchange for such temporary global
Unregistered Security).
ARTICLE III.
COVENANTS OF THE ISSUER
-----------------------
SECTION 3.1. PAYMENT OF PRINCIPAL AND INTEREST. The Issuer
covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay or cause to be paid the principal of, and interest on,
each of the Securities of such series (together with any additional amounts
payable pursuant to the terms of such Securities) at the place or places, at
the respective times and in the manner provided in such Securities and in the
Coupons appertaining thereto and in this Indenture. The interest on Securities
with Coupons attached (together with any additional amounts payable pursuant to
the terms of such Securities) shall be payable only upon presentation and
surrender of the several Coupons for such interest installments as are
evidenced thereby as they severally mature. If any temporary Unregistered
Security provides that interest thereon may be paid while such temporary
Security (together with any additional amounts payable pursuant to the terms of
such Security) shall be paid, as to the installments of interest evidenced by
Coupons attached thereto, if any, only upon presentation and surrender thereof,
and, as to the other installments of interest, if any, only upon presentation
and surrender thereof, and, as to the other installments of interest, if any,
only upon presentation of such Security for notation thereon of the payment of
such interest, in each case subject to any restrictions that may be established
pursuant to Section 2.3. The interest on Registered Securities (together with
any additional amounts payable pursuant to the terms of such Securities) shall
be payable only to or upon the written order of the Holders thereof and at the
option of the Issuer may be paid (i) by mailing checks to or upon the written
order of such Holders at their last addresses as they appear on the registry
books of the Issuer or (ii) by wire transfer to bank accounts maintained by
such Holders.
SECTION 3.2. OFFICES FOR PAYMENTS, ETC. The Issuer will
maintain in the Borough of Manhattan, The City of New York, an agency where the
Registered Securities of each series may be presented for payment, an agency
where the Securities of each series may be presented for exchange as is
provided in this Indenture and, if applicable, pursuant to Section 2.3 an
agency where the Registered
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Securities of each series may be presented for registration of transfer as in
this Indenture provided.
The Issuer will maintain one or more agencies in a city or cities
located outside the United States (including any city in which such an agency
is required to be maintained under the rules of any stock exchange on which the
Securities of each series are listed) where the Unregistered Securities of each
series and Coupons, if any, appertaining thereto may be presented for payment.
No payment on any Unregistered Security or Coupon will be made upon
presentation of such Unregistered Security or Coupon at an agency of the
Issuer within the United States nor will any payment be made by transfer to an
account in, or by mail to an address in, the United States unless pursuant to
applicable United States laws and regulations then in effect such payment can
be made without adverse tax consequences to the Issuer. Notwithstanding the
foregoing, payments in Dollars of Unregistered Securities of any series and
Coupons appertaining thereto which are payable in Dollars may be made at an
agency of the Issuer maintained in the Borough of Manhattan, The City of New
York if such payment in Dollars at each agency maintained by the Issuer outside
the United States for payment on such Unregistered Securities is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Issuer will maintain in the Borough of Manhattan, The City of
New York, an agency where notices and demands to or upon the Issuer in respect
of the Securities of any series, the Coupons appertaining thereto or this
Indenture may be served. The Issuer will give to the Trustee written notice of
the location of each such agency and of any change of location thereof. In
case the Issuer shall fail to maintain any such agency in the Borough of
Manhattan, The City of New York, or shall fail to give such notice of the
location or of any change in the location thereof, presentations and demands
may be made and notices may be served at the principal office of the Trustee.
The Issuer may from time to time designate one or more agencies
where the Securities of a series and Coupons appertaining thereto may be
presented for payment, where the Securities of that series may be presented for
exchange as provided in this Indenture and pursuant to Section 2.3 and where
the Registered Securities of that series may be presented for registration of
transfer as in this Indenture provided, and the Issuer may from time to time
rescind any such designation, as the Issuer may deem desirable or expedient;
PROVIDED, HOWEVER, that no such designation or rescission shall in any manner
relieve the Issuer of its
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obligation to maintain the agencies provided for in the immediately preceding
paragraphs. The Issuer will give to the Trustee prompt written notice of any
such designation or rescission thereof.
SECTION 3.3. APPOINTMENT TO FILL A VACANCY IN OFFICE OF
TRUSTEE. The Issuer, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section 6.10, a
Trustee, so that there shall at all times be a Trustee with respect to each
series of Securities hereunder.
SECTION 3.4. PAYING AGENTS. Whenever the Issuer shall appoint
a paying agent other than the Trustee with respect to the Securities of any
series, it will cause such paying agent to execute and deliver to the Trustee
an instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section,
(a) that it will hold all sums received by it as such agent for
the payment of the principal of or interest on the Securities of such
series (whether such sums have been paid to it by the Issuer or by any
other obligor on the Securities of such series) in trust for the benefit of
the Holders of the Securities of such series, or Coupons appertaining
thereto, or of the Trustee, and
(b) that it will give the Trustee notice of any failure by the
Issuer (or by any other obligor on the Securities of such series) to make
any payment of the principal of or interest on the Securities of such
series when the same shall be due and payable.
The Issuer will, on or prior to each due date of the principal of
or interest on the Securities of such series, deposit with the paying agent a
sum sufficient to pay such principal or interest so becoming due, and (unless
such paying agent is the Trustee) the Issuer will promptly notify the Trustee
of any failure to take such action.
If the Issuer shall act as its own paying agent with respect to
the Securities of any Series, it will, on or before each due date of the
principal of or interest on the Securities of such series, set aside, segregate
and hold in trust for the benefit of the Holders of the Securities of such
series or the Coupons appertaining thereto a sum sufficient to pay such
principal or interest so becoming due. The Issuer will promptly notify the
Trustee of any failure to take such action.
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Anything in this Section to the contrary notwithstanding, the
Issuer may at any time, for the purpose of obtaining a satisfaction and
discharge with respect to one or more or all series of Securities hereunder, or
for any other reason, pay or cause to be paid to the Trustee all sums held in
trust for any such series by the Issuer or any paying agent hereunder, as
required by this Section, such sums to be held by the Trustee upon the trusts
herein contained.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Sections 10.4 and 10.5.
SECTION 3.5. WRITTEN STATEMENT TO TRUSTEE. The Issuer will
deliver to the Trustee on or before October 31 in each year (beginning with
1996) a written statement, signed by two of its officers (which need not comply
with Section 11.5), stating that in the course of the performance of their
duties as officers of the Issuer they would normally have knowledge of any
default by the Issuer in the performance or fulfillment of any covenant,
agreement or condition contained in this Indenture, stating whether or not they
have knowledge of any such default and, if so, specifying each such default of
which the signers have knowledge and the nature thereof.
SECTION 3.6. LIMITATION ON LIENS. The Issuer will not itself,
and will not permit any Domestic Subsidiary to, incur, issue, assume or
guarantee any notes, bonds, debentures or other indebtedness for money borrowed
(notes, bonds, debentures or other indebtedness for money borrowed being
hereinafter in this Article called "Debt"), secured by pledge of, or mortgage
or lien on, any Principal Property of the Issuer or any Domestic Subsidiary, or
any shares of stock of or Debt of any Domestic Subsidiary (such mortgages,
pledges and liens being hereinafter in this Article called "Mortgage" or
"Mortgages"), without effectively providing that the Securities (together with,
if the Issuer shall so determine, any other Debt of the Issuer or such Domestic
Subsidiary then existing or thereafter created which is not subordinate to the
Securities) shall be secured equally and ratably with (or prior to) such
secured Debt, 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 Issuer and its Domestic Subsidiaries in respect of
sale and leaseback transactions (as defined in Section 3.7) would not exceed
10% of Consolidated Net Tangible Assets; PROVIDED, HOWEVER, that this Section
shall not apply to, and there shall be
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excluded from secured Debt in any computation under this Section, Debt secured
by:
(1) Mortgages on property of, or on any shares of stock of or
Debt of, any corporation existing at the time such corporation becomes a
Domestic Subsidiary or arising thereafter pursuant to contractual
commitments entered into prior to and not in contemplation of such
corporation's becoming a Domestic Subsidiary;
(2) Mortgages in favor of the Issuer or any Domestic Subsidiary;
(3) Mortgages on property of the Issuer or a Domestic Subsidiary
in favor of the United States of America or any State thereof, or any
department, agency or instrumentality or political subdivision of the
United States of America or any State thereof, or in favor of any other
country, or any political subdivision thereof, or in favor of any trustee
or mortgagee acting on behalf, or for the benefit of, any of the foregoing,
to secure partial, progress, advance or other payments pursuant to any
contract or statute or to secure any Debt incurred for the purpose of
financing all or any part of the purchase price or the cost of construction
of the property subject to such Mortgages (including without limitation
Mortgages incurred in connection with pollution control, industrial revenue
or similar financings) and any other Mortgages incurred or assumed in
connection with the issuance of industrial revenue or private activity
bonds the interest of which is exempt from Federal income taxation pursuant
to Section 103(b) of the Internal Revenue Code of 1986, as amended;
(4) Mortgages on property, shares of stock or Debt existing at
the time of acquisition thereof (including acquisition through merger or
consolidation) by the Issuer or a Domestic Subsidiary or to secure the
payment of all or any part of the purchase price thereof or to secure any
Debt incurred prior to, at the time of, or within 120 days after, in the
case of Mortgages on property, the later of the acquisition, or the
completion of construction (including any improvements, alterations or
repairs to existing property), which secured Debt is incurred, assumed, or
guaranteed for the purpose of financing all or any part of the purchase
price thereof or construction or improvements, alterations or repairs
thereon; PROVIDED, HOWEVER, that in the case of any such acquisition,
construction or improvement, alteration or repair, the
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Mortgage shall not apply to any property theretofore owned by the Issuer or
a Domestic Subsidiary, other than, in the case of any such construction or
improvement, any theretofore unimproved real property or portion thereof on
which the property so constructed, or the improvement, is located and any
other property not then constituting a Principal Property;
(5) Mortgages existing on the first date on which a Security
is authenticated by the Trustee;
(6) Mortgages securing judgement or appeal bonds in respect of
amounts being contested in good faith by appropriate proceedings;
(7) Any extension, renewal or replacement (or successive
extensions, renewals or replacements,), as a whole or in part, of any
Mortgage referred to in the foregoing clauses (1) to (6), inclusive;
PROVIDED, that such extension, renewal or replacement Mortgage shall be
limited to all or a part of the same property, shares of stock or Debt that
secured the Mortgage extended, renewed or replaced (plus improvements on
such property).
SECTION 3.7. LIMITATION ON SALES AND LEASEBACKS. The Issuer
will not itself, and it will not permit any Domestic Subsidiary to, enter into
any arrangement with any bank, insurance company or other lender or investor,
or to which any such lender or investor is a party, which arrangement provides
for the leasing by the Issuer or a Domestic Subsidiary for a period, including
renewals, in excess of five years of any Principal Property which has been or
is to be sold or transferred more than 120 days after the acquisition of such
Principal Property, or the completion of construction including any
improvements or alterations on real property, or commencement of full operation
thereof, by the Issuer or such Domestic 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 Issuer or such Domestic Subsidiary could create Debt
secured by a Mortgage pursuant to Section 3.6 on the Principal Property to
be leased in an amount equal to the Attributable Debt with respect to such
sale and leaseback
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transaction without equally and ratably securing the Securities, or
(2) the Issuer within 120 days after the sale or transfer
shall have been made by the Issuer or by a Domestic Subsidiary, applies an
amount equal to the greater of (i) the net proceeds of the sale of the
Principal Property leased pursuant to such arrangement or (ii) the fair
market value of the Principal Property so leased at the time of entering
into such arrangement (as determined by any two of the following: the
President, any Vice President of the Issuer, and its Treasurer) to the
retirement of Funded Debt other than the Securities or, if an insufficient
amount of Funded Debt other than the Securities exists, the Securities
after retirement of any other Funded Debt; provided that the amount to be
applied to such retirement of Funded Debt of the Issuer shall be reduced by
(a) the principal amount of any Securities delivered within 120 days after
such sale to the Trustee for retirement and cancellation and (b) the
principal amount of Funded Debt, other than Securities, voluntarily retired
by the Issuer within 120 days after such sale. Notwithstanding the
foregoing, no retirement referred to in this clause (2) may be effected by
payment at maturity or pursuant to any mandatory sinking fund payment or
any mandatory prepayment provision;
PROVIDED, FURTHER, the covenant contained in this Section 3.7 shall not apply
in any computation under Section 3.6 or this Section 3.7 to (and there shall be
no Attributable Debt with respect to), any sale and leaseback transaction if:
(1) such sale and leaseback transaction is entered into in
connection with the issuance of industrial revenue or private activity
bonds the interest of which is exempt from Federal income taxation pursuant
to Section 103(b) of the Internal Revenue Code of 1986, as amended;
(2) the Issuer or a Domestic Subsidiary applies an amount
equal to the net proceeds (after repayment of any secured Debt secured by a
Mortgage encumbering such Principal Property which secured Debt existed
immediately before such sale and leaseback transaction) of the sale or
transfer of the Principal Property leased pursuant to such sale and
leaseback transaction to investment
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(whether for acquisition, improvement, repair, alteration or construction
costs) in another Principal Property within one year prior or subsequent to
such sale or transfer;
(3) such sale and leaseback transaction is entered into prior
to, at the time of, or within 120 days after the later of the acquisition
of the Principal Property or the completion of construction thereon;
(4) such sale and leaseback transaction was entered into by a
corporation prior to the date on which such corporation became a Domestic
Subsidiary or arises thereafter pursuant to contractual commitments entered
into by such corporation prior to and not in contemplation of such
corporation's becoming a Domestic Subsidiary;
(5) such sale and leaseback transaction was entered into by a
corporation prior to the time such corporation was merged or consolidated
with the Issuer or a Domestic Subsidiary or prior to the time of a sale,
lease or other disposition of the properties of such corporation as an
entirety or substantially as an entirety to the Issuer or a Domestic
Subsidiary or arises thereafter pursuant to contractual commitments entered
into by such corporation prior to and not in contemplation of such merger,
consolidation, sale, lease or other disposition; or
(6) such sale and leaseback transaction is entered into between
the Issuer and a Domestic Subsidiary or between Domestic Subsidiaries.
SECTION 3.8. LUXEMBOURG PUBLICATIONS. In the event of the
publication of any notice pursuant to Section 5.11, 6.10(a), 6.11, 8.2, 10.5,
or 12.2, the party making such publication in the Borough of Manhattan, The
City of New York and London shall also, to the extent required by applicable
Luxembourg law or stock exchange regulation, in the case of the Trustee, as
advised by counsel pursuant to Section 6.2, make a similar publication in
Luxembourg. Notwithstanding the foregoing, this Section shall not require any
publication unless Unregistered Securities are then Outstanding under this
Indenture.
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ARTICLE IV.
SECURITYHOLDERS' LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
----------------------
SECTION 4.1. ISSUER TO FURNISH TRUSTEE INFORMATION AS TO NAMES
AND ADDRESSES OF SECURITYHOLDERS. The Issuer covenants and agrees that it will
furnish or cause to be furnished to the Trustee a list in such form as the
Trustee may reasonably require of the names and addresses of the holders of the
Securities of each series:
(a) semiannually and not more than 15 days after each record
date for the payment of interest on such Securities, as hereinabove
specified, as of such record date and on dates to be determined pursuant to
Section 2.3 for non-interest bearing securities in each year, and
(b) at such other times as the Trustee may request in writing,
within 30 days after receipt by the Issuer of any such request as of a date
not more than 15 days prior to the time such information is furnished,
PROVIDED that if and so long as the Trustee shall be the Security registrar for
such series and all of the Securities of any series are Registered Securities,
such list shall not be required to be furnished.
SECTION 4.2. PRESERVATION AND DISCLOSURE OF SECURITYHOLDERS'
LISTS. (a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the holders of
each series of Securities (i) contained in the most recent list furnished to it
as provided in Section 4.1, (ii) received by it in the capacity of Security
registrar for such series, if so acting and (iii) filed with it within two
preceding years pursuant to 4.4(c)(ii). The Trustee may destroy any list
furnished to it as provided in Section 4.1 upon receipt of a new list so
furnished.
(b) In case three or more holders of Securities (hereinafter
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
of Securities of a particular series (in which case the applicants must all
hold Securities of such series) or with Holders of all
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Securities with respect to their rights under this Indenture or under such
Securities and such application 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 to such applicants access to the information
preserved at the time by the Trustee in accordance with the provisions of
subsection (a) of this Section, or
(ii) inform such applicants as to the approximate number of
holders of Securities of such series or all Securities, as the case may be,
whose names and addresses appear in the information preserved at the time
by the Trustee, in accordance with the provisions of subsection (a) of this
Section, and as to the approximate cost of mailing to such Securityholders
the form of proxy or other communication, if any, specified in such
application.
If the Trustee shall elect not to afford to such applicants access
to such information, the Trustee shall, upon the written request of such
applicants, mail to each Securityholder of such series or all Securities, as
the case may be, whose name and address appears in the information preserved at
the time by the Trustee in accordance with the provisions of subsection (a) of
this Section 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; otherwise the Trustee shall be
relieved of any obligation or duty to such applicants respecting their
application.
(c) Each and every holder of Securities and Coupons, by
receiving and holding the same, agrees with the Issuer and the Trustee that
neither the Issuer nor the Trustee nor any agent of the Issuer or the Trustee
shall be held accountable by reason of the disclosure of any such information
as to the names and addresses of the holders of Securities in accordance with
the provisions of Section 4.1 or this Section, 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
subsection (b) of this Section.
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SECTION 4.3. REPORTS BY THE ISSUER. The Issuer covenants:
(a) to file with the Trustee, within 15 days after the Issuer
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 Issuer may be required
to file with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; if the Issuer is not required to file
information, documents, or reports pursuant to either of such Sections,
then to file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents, and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934, in
respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations;
(b) to file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission,
such additional information, documents, and reports with respect to
compliance by the Issuer with the conditions and covenants provided for in
this Indenture as may be required from time to time by such rules and
regulations; and
(c) to transmit by mail to the holders of Securities, in the
manner and to the extent provided in Section 4.4(c), such summaries of any
information, documents and reports required to be filed by the Issuer
pursuant to subsections (a) and (b) of this Section as may be required to
be transmitted to such Holders by rules and regulations prescribed from
time to time by the Commission.
SECTION 4.4. REPORTS BY THE TRUSTEE. (a) On or before July
15 in each year following the date hereof, so long as any Securities are
outstanding hereunder, the Trustee shall transmit to the Securityholders of
each series, as provided in subsection (c), a brief report dated
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as of a date convenient to the Trustee no more than 60 nor less than 45 days
prior thereto with respect to any of the following events that may have
occurred within the previous year (but if no such event has occurred within
such period no report need be transmitted):
(i) any change to its eligibility under Section 6.9 and its
qualification under Section 6.8;
(ii) the creation of or any material change to a relationship
specified in subsections (c)(i) through (c)(x) of Section 6.8;
(iii) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date of
such report and for the reimbursement of which it claims or may claim a
lien or charge, prior to that of the Securities of any series, on any
property or funds held or collected by it as Trustee, except that the
Trustee shall not be required (but may elect) to report such advances if
such advances so remaining unpaid aggregate not more than 1/2 of 1% of the
principal amount of the Securities of any series Outstanding on the date of
such report;
(iv) any change to the amount, interest rate, and maturity date
of all other indebtedness owing by the Issuer (or by any other obligor
on the Securities) to the Trustee in its individual capacity on the
date of such report, with a brief description of any property held as
collateral security therefor, except any indebtedness based upon a creditor
relationship arising in any manner described in Section 6.13(b)(2), (3),
(4) or (6);
(v) any change to the property and funds, if any, physically
in the possession of the Trustee (as such) on the date of such report;
(vi) any additional issue of Securities which the Trustee has
not previously reported; and
(vii) any action taken by the Trustee in the performance of
its duties under this Indenture which it has not previously reported
and which in its opinion materially affects the Securities, except action
in respect of a default, notice of
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which has been or is to be withheld by it in accordance with the provisions
of Section 5.11.
(b) The Trustee shall transmit to the Securityholders of each
series, as provided in subsection (c) of this Section, a brief report with
respect to the character and amount of any advances (and if the Trustee elects
so to state, the circumstances surrounding the making thereof) made by the
Trustee, as such, since the date of the last report transmitted pursuant to the
provisions of subsection (a) of this Section (or if no such report has yet been
so transmitted, since the date of this Indenture) for the reimbursement of
which it claims or may claim a lien or charge prior to that of the Securities
of such series, on property or funds held or collected by it as Trustee, and
which it has not previously reported pursuant to this subsection (b), except
that the Trustee shall not be required (but may elect) to report such advances
if such advances remaining unpaid at any time aggregate 10% or less of the
principal amount of Securities of such series outstanding at such time, such
report to be transmitted within 90 days after such time.
(c) Reports pursuant to this Section shall be transmitted by
mail:
(i) to all registered holders of Securities, as the names and
addresses of such holders appear upon the registry books of the Issuer;
(ii) to such other Holders of Securities as have, within two
years preceding such transmission, filed their names and addresses with the
Trustee for that purpose; and
(iii) except in the case of reports pursuant to subsection (b)
of this Section, to each Holder of a Security whose name and address are
preserved at the time by the Trustee as provided in Section 4.2(a).
(d) A copy of each such report shall, at the time of such
transmission to Securityholders, be furnished to the Issuer and be filed by the
Trustee with each stock exchange upon which the Securities of any applicable
series are listed and also with the Commission. The Issuer agrees to notify
the Trustee with respect to any series when and as the Securities of such
series become admitted to trading on any national securities exchange.
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ARTICLE V.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
-------------------
SECTION 5.1. EVENT OF DEFAULT DEFINED; ACCELERATION OF
MATURITY; WAIVER OF DEFAULT. "Event of Default" with respect to Securities of
any series wherever used herein, means each one of the following events which
shall have occurred and be continuing (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):
(a) default in the payment of any installment of interest upon
any of the Securities of such series as and when the same shall become due
and payable, and continuance of such default for a period of 30 days;
(b) default in the payment of all or any part of the principal
on any of the Securities of such series as and when the same shall become
due and payable either at maturity, upon redemption, by declaration or
otherwise;
(c) default in the payment of any sinking fund installment as
and when the same shall become due and payable by the terms of the
Securities of such series;
(d) default in the performance, or breach, of any covenant or
warranty of the Issuer in respect of the Securities of such series (other
than a covenant or warranty in respect of the Securities of such series a
default in whose performance or whose breach is elsewhere in this Section
specifically dealt with), and continuance of such default or breach for a
period of 90 days after there has been given, by registered or certified
mail, to the Issuer by the Trustee or to the Issuer and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding Securities
of all series affected thereby, a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder;
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(e) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Issuer in an involuntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee or sequestrator (or similar official) of the Issuer or
for any substantial part of its property or ordering the winding up or
liquidation of its affairs, and such decree or order shall remain unstayed
and in effect for a period of 60 consecutive days;
(f) the Issuer shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or consent to the entry of an order for relief in an involuntary
case under any such law, or consent to the appointment of or taking
possession by a receiver, liquidator, assignee, custodian, trustee or
sequestrator (or similar official) of the Issuer or for any substantial
part of its property, or make any general assignment for the benefit of
creditors; or
(g) any other Event of Default provided in the supplemental
indenture or resolution of the Board of Directors under which such series
of Securities is issued or in the form of Security for such series.
If an Event of Default described in clauses (a), (b), (c) or (d) above (if the
Event of Default under clause (d) is with respect to less than all series of
Securities then Outstanding) occurs and is continuing, then, and in each and
every such case, unless the principal of all of the Securities of such series
shall have already become due and payable, either the Trustee or the holders of
not less than 25% in aggregate principal amount of the Securities of such
series then Outstanding hereunder (each such series voting as a separate class)
by notice in writing to the Issuer (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if the Securities of
such series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of such series) of all
Securities of such series and the interest accrued thereon, if any, to be due
and payable immediately, and upon any such declaration the same shall become
immediately due and payable. If an Event of Default described in clause (d)
(if the Event of Default under clause (d) is with respect to all series of
Securities then
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Outstanding), (e) or (f) occurs and is continuing, then and in each and every
such case, unless the principal of all the Securities shall have already become
due and payable, either the Trustee or the Holders of not less than 25% in the
aggregate principal amount of all the Securities then Outstanding hereunder
(treated as one class), by notice in writing to the Issuer (and to the Trustee
if given by Securityholders), may declare the entire principal (or, if any
Securities are Original Issue Discount Securities, such portion of the
principal as may be specified in the terms thereof) of all the Securities then
outstanding and interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration the same shall become immediately
due and payable.
The foregoing provisions, however, are subject to the condition
that if, at any time after the principal (or, if the Securities are Original
Issue Discount Securities, such portion of the principal as may be specified in
the terms thereof) of the Securities of any series (or of all the Securities,
as the case may be) shall have been so declared due and payable, and before any
judgment or decree for the payment of the moneys due shall have been obtained
or entered as hereinafter provided, the Issuer shall pay or shall deposit with
the Trustee a sum sufficient to pay all matured installments of interest upon
all the Securities of such series (or of all the Securities, as the case may
be) and the principal of any and all Securities of such series (or of all the
Securities, as the case may be) which shall have become due otherwise than by
acceleration (with interest upon such principal and, to the extent that payment
of such interest is enforceable under applicable law, on overdue installments
of interest, at the same rate as the rate of interest or Yield to Maturity (in
the case of Original Issue Discount Securities) specified in the Securities of
such series, (or at the respective rates of interest or Yield to Maturity of
all the Securities, as the case may be) to the date of such payment or deposit)
and such amount as shall be sufficient to cover reasonable compensation to the
Trustee, its agents, attorneys and counsel, and all other reasonable expenses
and liabilities incurred, and all reasonable advances made, by the Trustee
except as a result of negligence or bad faith, and if any and all Events of
Default under the Indenture, other than the non-payment of the principal of
Securities which shall have become due by acceleration, shall have been cured,
waived or otherwise remedied as provided herein -- then and in every such case
the holders of a majority in aggregate principal amount of all the Securities
of such series, each series voting as a separate class, (or of all the
Securities, as the case may be, voting as a single class)
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then outstanding, by written notice to the Issuer and to the Trustee, may waive
all defaults with respect to such series (or with respect to all the
Securities, as the case may be) and rescind and annul such declaration and its
consequences, but no such waiver or rescission and annulment shall extend to or
shall affect any subsequent default or shall impair any right consequent
thereon.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have been accelerated
and declared due and payable pursuant to the provisions hereof, then, from and
after such declaration, unless such declaration has been rescinded and
annulled, the principal amount of such Original Issue Discount Securities shall
be deemed, for all purposes hereunder, to be such portion of the principal
thereof as shall be due and payable as a result of such acceleration, and
payment of such portion of the principal thereof as shall be due and payable as
a result of such acceleration, together with interest, if any, thereon and all
other amounts owing thereunder, shall constitute payment in full of such
Original Issue Discount Securities.
SECTION 5.2. COLLECTION OF INDEBTEDNESS BY TRUSTEE; TRUSTEE
MAY PROVE DEBT. The Issuer covenants that (a) in case default shall be made in
the payment of any installment of interest on any of the Securities of any
series when such interest shall have become due and payable, and such default
shall have continued for a period of 30 days or (b) in case default shall be
made in the payment of all or any part of the principal of any of the
Securities of any series when the same shall have become due and payable,
whether upon maturity of the Securities of such series or upon any redemption
or by declaration or otherwise -- then upon demand of the Trustee, the Issuer
will pay to the Trustee for the benefit of the Holders of the Securities of
such series the whole amount that then shall have become due and payable on all
Securities of such series, with such Coupons, for principal or interest, as the
case may be (with interest to the date of such payment upon the overdue
principal and, to the extent that payment of such interest is enforceable under
applicable law, on overdue installments of interest at the same rate as the
rate of interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such series); and in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including reasonable compensation to the Trustee and
each predecessor Trustee, their respective agents, attorneys and counsel, and
any expenses and liabilities incurred, and all
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advances made, by the Trustee and each predecessor Trustee except as a result
of its negligence or bad faith.
In case the Issuer shall fail forthwith to pay such amounts upon
such demand, the Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any action or proceedings at law
or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceedings to judgment or final decree, and may
enforce any such judgment or final decree against the Issuer or other obligor
upon such Securities and collect in the manner provided by law out of the
property of the Issuer or other obligor upon such Securities, wherever
situated, the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Issuer
or any other obligor upon the Securities under Title 11 of the United States
Code or any other applicable Federal or state bankruptcy, insolvency or similar
law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Issuer or its property or such other
obligor, or in case of any other comparable judicial proceedings relative to
the Issuer or other obligor upon the Securities of any series, or to the
creditors or property of the Issuer or such other obligor, the Trustee,
irrespective of whether the principal of any Securities shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand pursuant to the provisions of
this Section, shall be entitled and empowered, by intervention in such
proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount
of principal and interest (or, if the Securities of any series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of such series) owing and unpaid in respect of the
Securities of any series, 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 reasonable compensation to the Trustee and each
predecessor Trustee, and their respective agents, attorneys and counsel,
and for reimbursement of all expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee, except as a
result of negligence or bad faith) and
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of the Securityholders allowed in any judicial proceedings relative to the
Issuer or other obligor upon the Securities of any series, or to the
creditors or property of the Issuer or such other obligor,
(b) unless prohibited by applicable law and regulations, to
vote on behalf of the holders of the Securities of any series in any
election of a trustee or a standby trustee in arrangement, reorganization,
liquidation or other bankruptcy or insolvency proceedings or person
performing similar functions in comparable proceedings, and
(c) to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute all amounts
received with respect to the claims of the Securityholders and of the
Trustee on their behalf; and any trustee, receiver, or liquidator,
custodian or other similar official is hereby authorized by each of the
Securityholders to make payments to the Trustee, and, in the event that the
Trustee shall consent to the making of payments directly to the
Securityholders, to pay to the Trustee such amounts as shall be sufficient
to cover reasonable compensation to the Trustee, each predecessor Trustee
and their respective agents, attorneys and counsel, and all reasonable
expenses and liabilities incurred, and all reasonable advances made, by the
Trustee and each predecessor Trustee except as a result of negligence or
bad faith and all other amounts due to the Trustee or any predecessor
Trustee pursuant to Section 6.6.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan or 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
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this Indenture,
or under any of the Securities of any series or coupons appertaining to such
Securities, may be enforced by the Trustee without the possession of any of the
Securities of such series or Coupons appertaining to such Securities or the
production thereof on any trial or other
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proceedings relative thereto, and any such action or proceedings instituted by
the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment, subject to the payment of reasonable expenses,
disbursements and compensation of the Trustee, each predecessor Trustee and
their respective agents and attorneys, shall be for the ratable benefit of the
holders of the Securities or Coupons appertaining to such Securities in respect
of which such action was taken.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party) the Trustee shall be held to represent all
the holders of the Securities or Coupons appertaining to such Securities in
respect to which such action was taken, and it shall not be necessary to make
any holders of such Securities or Coupons appertaining to such Securities
parties to any such proceedings.
SECTION 5.3. APPLICATION OF PROCEEDS. Any moneys collected by
the Trustee pursuant to this Article in respect of any series shall be applied
in the following order at the date or dates fixed by the Trustee and, in case
of the distribution of such moneys on account of principal or interest, upon
presentation of the several Securities and Coupons appertaining to such
Securities in respect of which monies have been collected and stamping (or
otherwise noting) thereon the payment, or issuing Securities of such series in
reduced principal amounts in exchange for the presented Securities of like
series if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such
series in respect of which monies have been collected, including reasonable
compensation to the Trustee and each predecessor Trustee and their
respective agents and attorneys and of all reasonable expenses and
liabilities incurred, and all reasonable advances made, by the Trustee and
each predecessor Trustee except as a result of negligence or bad faith, and
all other amounts due to the Trustees or any predecessor Trustee pursuant
to Section 6.6;
SECOND: In case the principal of the Securities of such series in
respect of which moneys have been collected shall not have become and be
then due and payable, to the payment of interest on the Securities of such
series in
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default in the order of the maturity of the installments of such interest,
with interest (to the extent that such interest has been collected by the
Trustee) upon the overdue installments of interest at the same rate as the
rate of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in such Securities, such payments to be made
ratably to the persons entitled thereto, without discrimination or
preference;
THIRD: In case the principal of the Securities of such series in
respect of which moneys have been collected shall have become and shall be
then due and payable, to the payment of the whole amount then owing and
unpaid upon all the Securities of such series for principal and interest,
with interest upon the overdue principal, and (to the extent that such
interest has been collected by the Trustee) upon overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in
the case of Original Issue Discount Securities) specified in the Securities
of such series; and in case such moneys shall be insufficient to pay in
full the whole amount so due and unpaid upon the Securities of such series,
then to the payment of such principal and interest or Yield to Maturity,
without preference or priority of principal over interest or Yield to
Maturity, or of interest or Yield to Maturity over principal, or of any
installment of interest over any other installment of interest, or of any
Security of such series over any other Security of such series, ratably to
the aggregate of such principal and accrued and unpaid interest or Yield to
Maturity; and
FOURTH: To the payment of the remainder, if any, to the Issuer or
any other person lawfully entitled thereto.
SECTION 5.4. SUITS FOR ENFORCEMENT. In case an Event of
Default has occurred, has not been waived and is continuing, the Trustee may in
its discretion (but shall not be obligated to) proceed to protect and enforce
the rights vested in it by this Indenture by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any
of such rights, either at law in equity or in bankruptcy or otherwise, whether
for the specific enforcement of any covenant or agreement contained in this
Indenture or in aid of the exercise of any power
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granted in this Indenture or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
SECTION 5.5. RESTORATION OF RIGHTS ON ABANDONMENT OF
PROCEEDINGS. In case the Trustee shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been discontinued or
abandoned for any reason, or shall have been determined adversely to the
Trustee, then and in every such case the Issuer and the Trustee shall be
restored respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Issuer, the Trustee and the Securityholders
shall continue as though no such proceedings had been taken.
SECTION 5.6. LIMITATIONS ON SUITS BY SECURITYHOLDERS. No
holder of any Security of any series or of any Coupon appertaining thereto
shall have any right by virtue or by availing of any provision of this
Indenture to institute any action or proceeding at law or in equity or in
bankruptcy or otherwise upon or under or with respect to this Indenture, or for
the appointment of a trustee, receiver, liquidator, custodian or other similar
official or for any other remedy hereunder, unless such holder previously shall
have given to the Trustee written notice of default and of the continuance
thereof, as hereinbefore provided, and unless also the holders of not less than
25% in aggregate principal amount of the Securities of such series then
outstanding shall have made written request upon the Trustee to institute such
action or proceedings in its own name as trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby and the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity shall have failed to institute any such action or proceeding and no
direction inconsistent with any such action or proceeding and no direction
inconsistent with such written request shall have been given to the Trustee
pursuant to Section 5.9; it being understood and intended, and being expressly
covenanted by the taker and Holder of every Security or Coupon with every other
taker and Holder and the Trustee, that no one or more Holders of Securities of
any series or coupons appertaining to such Securities shall have any right in
any manner whatever by virtue or by availing of any provision of this Indenture
to affect, disturb or prejudice the rights of any other such Holder of
Securities or Coupons appertaining to such Securities, or to obtain or seek to
obtain priority over or preference to any other such Holder or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal, ratable and common
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benefit of all Holders of Securities of the applicable series and Coupons
appertaining to such Securities. For the protection and enforcement of the
provisions of this Section, each and every Securityholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.
SECTION 5.7. UNCONDITIONAL RIGHT OF SECURITYHOLDERS TO
INSTITUTE CERTAIN SUITS. Notwithstanding any other provision in this Indenture
and any provision of any Security, the right of any Holder of any Security or
Coupon to receive payment of the principal of and interest on such Security or
Coupon on or after the respective due dates expressed in such Security or
Coupon, or to institute suit for the enforcement of any such payment on or
after such respective dates, shall not be impaired or affected without the
consent of such Holder.
SECTION 5.8. POWERS AND REMEDIES CUMULATIVE; DELAY OR OMISSION
NOT WAIVER OF DEFAULT. Except as otherwise provided in Section 5.6 and with
respect to the replacement or payment of mutilated, defaced or destroyed, lost
or stolen Securities and Coupons in the last sentence of Section 2.9, no right
or remedy herein conferred upon or reserved to the Trustee or to the holders of
Securities or Coupons is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
No delay or omission of the Trustee or of any holder of Securities
or Coupons to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power or
shall be construed to be a waiver of any such Event of Default or an
acquiescence therein; and, subject to Section 5.6, every power and remedy given
by this Indenture or by law to the Trustee or to the holders of Securities or
Coupons may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the holders of Securities or Coupons.
SECTION 5.9. CONTROL BY HOLDERS OF SECURITIES. The Holders of
a majority in aggregate principal amount of the Securities of each series
affected (with each series voting as a separate class) at the time outstanding
shall have the right to direct the time, method, and place of
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conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with respect to the
Securities of such series by this Indenture; PROVIDED that such direction shall
not be otherwise than in accordance with law and the provisions of this
Indenture and PROVIDED FURTHER that (subject to the provisions of Section 6.1)
the Trustee shall have the right to decline to follow any such direction if the
Trustee, being advised by counsel, shall determine that the action or
proceeding so directed may not lawfully be taken or if the Trustee in good
faith by its board of directors, the executive committee, or a trust committee
of directors or responsible officers of the Trustee shall determine that the
action or proceedings so directed would involve the Trustee in personal
liability or if the Trustee in good faith shall so determine that the actions
or forebearances specified in or pursuant to such direction would be unduly
prejudicial to the interests of Holders of the Securities of all series so
affected not joining in the giving of said direction, it being understood that
(subject to Section 6.1) the Trustee shall have no duty to ascertain whether or
not such actions or forebearances are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Trustee in
its discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Securityholders.
SECTION 5.10. WAIVER OF PAST DEFAULTS. Prior to the
declaration of the acceleration of the maturity of the Securities of any series
as provided in Section 5.1, the Holders of a majority in aggregate principal
amount of the Securities of such series at the time Outstanding may on behalf
of the Holders of all the Securities of such series waive any past default or
Event of Default described in clause (c) of Section 5.1 (or, in the case of an
event specified in clause (d) of Section 5.1 which related to less than all
series of Securities then Outstanding, the Holders of a majority in aggregate
principal amount of the Securities then Outstanding affected thereby (each
series voting as a separate class) may waive any such default or Event of
Default, or, in the case of an event specified in clause (d) (if the Event of
Default under clause (d) relates to all series of Securities then Outstanding),
(e) or (f) of Section 5.1 the Holders of Securities of a majority in principal
amount of all the Securities then Outstanding (voting as one class) may waive
any such default or Event of Default), and its consequences except a default in
respect of a covenant or provision hereof which cannot be modified or amended
without the consent of the Holder of each Security affected. In the case of
any such waiver, the
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Issuer, the Trustee and the Holders of the Securities of such series shall be
restored to their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
Upon any such waiver, such default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured, and not to have occurred
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
The Issuer may, in the circumstances permitted by the Trust
Indenture Act of 1939, fix 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 under Section 5.9 or this Section. If
not set by the Issuer prior to the first solicitation of a Holder of Securities
of such series made by any Person in respect of any such action, or, in the
case of any such vote, prior to such vote, the record date for any such action
or vote shall be the 30th day (or, if later, the date of the most recent list
of Holders required to be provided pursuant to Section 4.1) prior to such first
solicitation or vote, as the case may be. With regard to any record date for
action to be taken by the Holders of one or more series of Securities, only the
Holders of Securities of such series on such date (or their duly designated
proxies) shall be entitled to give or take, or vote on, the relevant action.
SECTION 5.11. TRUSTEE TO GIVE NOTICE OF DEFAULT. The Trustee
shall, within ninety days after the occurrence of a default with respect to the
Securities of any series, give notice of all defaults with respect to that
series known to the Trustee (i) if any Unregistered Securities of that Series
are then Outstanding, to the Holders thereof, by publication at least once in
an Authorized Newspaper in the Borough of Manhattan, The City of New York and
at least once in an Authorized Newspaper in London (and, if required by Section
3.8, at least once in an Authorized Newspaper in Luxembourg), (ii) if any
Unregistered Securities of that series are then Outstanding, to all Holders
thereof who have filed their names and addresses with the Trustee pursuant to
Section 4.4(c)(ii), by mailing such notice to such Holders at such addresses
and (iii) to all Holders of then Outstanding Registered Securities of that
series, by mailing
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such notice to such Holders at their addresses as they shall appear in the
registry books, unless in each case such defaults shall have been cured before
the mailing or publication of such notice (the term "defaults" for the purpose
of this Section being hereby defined to mean any event or condition which is,
or with notice or lapse of time or both would become, an Event of Default.
SECTION 5.12. RIGHT OF COURT TO REQUIRE FILING OF UNDERTAKING
TO PAY COSTS. All parties to this Indenture agree, and each Holder of any
Security or Coupon by his acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken, suffered or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Securityholder or
group of Securityholders of any series holding in the aggregate more than 10%
in aggregate principal amount of the Securities Outstanding of such series, or,
in the case of any suit relating to or arising under clause (d) of Section 5.1
(if the suit relates to Securities of more than one but less than all series),
10% in aggregate principal amount of Securities Outstanding affected thereby,
or in the case of any suit relating to or arising under clause (d) (if the suit
under clause (d) relates to all the Securities then Outstanding), (e) or (f) of
Section 5.1, 10% in aggregate principal amount of all Securities Outstanding,
or to any suit instituted by any Securityholder for the enforcement of the
payment of the principal of or interest on any Security on or after the due
date expressed in such Security.
ARTICLE VI.
CONCERNING THE TRUSTEE
----------------------
SECTION 6.1. DUTIES AND RESPONSIBILITIES OF THE TRUSTEE;
DURING DEFAULT; PRIOR TO DEFAULT. With respect to the Holders of any series of
Securities issued hereunder, the Trustee, prior to the occurrence of an Event
of Default with respect to the Securities of a particular series and after the
curing or waiving of all Events of Default which may have occurred with respect
to such series, undertakes to
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perform such duties and only such duties as are specifically set forth in this
Indenture. In case an Event of Default with respect to the Securities of a
series have occurred (which has not been cured or waived) 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 man would
exercise or use under the circumstances in the conduct of his own affairs.
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 wilful misconduct, except that
(a) prior to the occurrence of an Event of Default with
respect to the Securities of any series and after the curing or waiving of
all such Events of Default with respect to such series which may have
occurred:
(i) the duties and obligations of the Trustee with
respect to the Securities of any Series shall be determined solely
by the express provisions of this Indenture, and the Trustee shall
not be liable except for the performance of such duties and
obligations as are specifically set forth in this Indenture, and
no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein,
upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case
of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty only to examine the same on their
face to determine whether or not they conform to the requirements
of this Indenture;
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(b) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the holders pursuant to Section 5.9 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.
None of the provisions contained in this Indenture shall require
the Trustee to expend or risk funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if, in its opinion, there shall be reasonable ground for
believing that the repayment of such funds or adequate indemnity against such
liability is not reasonably assured to it.
SECTION 6.2. CERTAIN RIGHTS OF THE TRUSTEE.
Subject to Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or any
other certificate, statement, instrument, opinion, report, notice, request,
consent, order, bond, debenture, note, coupon, security 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, direction, order or demand of the Issuer
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board of Directors may
be evidenced to the Trustee by a copy thereof certified by the secretary or
an assistant secretary of the Issuer;
(c) the Trustee may consult with counsel who may be counsel to
the Issuer and any advice or Opinion of Counsel shall be full and complete
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authorization and protection in respect of any action taken, suffered or
omitted to be taken by it hereunder in good faith and in accordance with
such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Indenture at the request,
order or direction of any of the Securityholders pursuant to the provisions
of this Indenture, unless such Securityholders shall have offered to the
Trustee reasonable indemnity against the costs, expenses and liabilities
which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or within
the discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder
and after the curing or waiving of all Events of Default, 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, consent, order, approval, appraisal, bond, debenture,
note, coupon, security, or other paper or document unless requested in
writing so to do by the holders of not less than a majority in aggregate
principal amount of the Securities of all series affected then outstanding;
PROVIDED that, if the payment within a reasonable time to the Trustee of
the costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee, the Trustee may require reasonable
indemnity against such expenses or liabilities as a condition to
proceeding; the reasonable expenses of every such investigation shall be
paid by the Issuer or, if paid by the Trustee or any predecessor trustee,
shall be repaid by the Issuer upon demand; 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 not regularly in its employ and the Trustee shall not
be responsible for any misconduct or negligence on the part of any such
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agent or attorney appointed with due care by it hereunder.
SECTION 6.3. TRUSTEE NOT RESPONSIBLE FOR RECITALS, DISPOSITION
OF SECURITIES OR APPLICATION OF PROCEEDS THEREOF. The recitals contained
herein and in the Securities, except the Trustee's certificates of
authentication, shall be taken as the statements of the Issuer, and the Trustee
assumes no responsibility for the correctness of the same. The Trustee makes
no representation as to the validity or sufficiency of this Indenture or of the
Securities or Coupons. The Trustee shall not be accountable for the use or
application by the Issuer of any of the Securities or of the proceeds thereof.
SECTION 6.4. TRUSTEE AND AGENTS MAY HOLD SECURITIES OR
COUPONS; COLLECTIONS, ETC. The Trustee or any agent of the Issuer or the
Trustee, in its individual or any other capacity, may become the owner or
pledgee of Securities or Coupons with the same rights it would have if it were
not the Trustee or such agent and, subject to Sections 6.8 and 6.13, if
operative, may otherwise deal with the Issuer and receive, collect, hold and
retain collections from the Issuer with the same rights it would have if it
were not the Trustee or such agent.
SECTION 6.5. MONEYS HELD BY TRUSTEE. Subject to the
provisions of Section 10.5 hereof, all moneys received by the Trustee shall,
until used or applied as herein provided, be held in trust for the purposes for
which they were received, but need not be segregated from other funds except to
the extent required by mandatory provisions of law. Neither the Trustee nor
any agent of the Issuer or the Trustee shall be under any liability for
interest on any moneys received by it hereunder.
SECTION 6.6. COMPENSATION AND INDEMNIFICATION OF TRUSTEE AND
ITS PRIOR CLAIM. The Issuer covenants and agrees to pay to the Trustee from
time to time, and the Trustee shall be entitled to, reasonable compensation
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) and the Issuer covenants and
agrees to pay or reimburse the Trustee and each predecessor Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or
made by or on behalf of it in accordance with any of the provisions of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its counsel and of all agents and other persons not regularly
in its employ) except any such expense, disbursement or advance as may arise
from its negligence or bad faith. The Issuer
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also covenants to indemnify the Trustee and each predecessor Trustee for, and
to hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of this Indenture or the trusts hereunder and its
duties hereunder, including the costs and expenses of defending itself against
or investigating any claim of liability in the premises. The obligations of
the Issuer under this Section to compensate and indemnify the Trustee and each
predecessor Trustee and to pay or reimburse the Trustee and each predecessor
Trustee for expenses, disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of this
Indenture. Such additional indebtedness shall be a senior claim to that of the
Securities upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the benefit of the holders of particular
Securities or Coupons, and the Securities are hereby subordinated to such
senior claim.
SECTION 6.7. RIGHT OF TRUSTEE TO RELY ON OFFICERS'
CERTIFICATE, ETC. Subject to Sections 6.1 and 6.2, whenever in the
administration of the trusts of this Indenture the Trustee shall deem it
necessary or desirable that a matter be provided or established prior to taking
or suffering or omitting any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in the
absence of gross negligence or bad faith on the part of the Trustee, be deemed
to be conclusively provided and established by an Officers' Certificate
delivered to the Trustee, and such certificate, in the absence of gross
negligence or bad faith on the part of the Trustee, shall be full warrant to
the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 6.8. QUALIFICATION OF TRUSTEE; CONFLICTING INTERESTS.
(a) If the Trustee has or shall acquire any conflicting interest, as defined in
this Section, it shall, within 90 days after ascertaining that it has such
conflicting interest, either eliminate such conflicting interest or resign in
the manner and with the effect specified in this Indenture.
(b) In the event that the Trustee shall fail to comply with the
provisions of subsection (a) of this Section, the Trustee shall, within 10 days
after the expiration of such 90 day period, transmit by mail notice of such
failure to
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the Securityholders in the manner and to the extent provided in Section 4.4(c).
(c) For the purposes of this Section, the Trustee shall be deemed to
have a conflicting interest with respect to Securities of any series if an
Event of Default (as defined exclusive of any grace period or requirement of
notice) has occurred and is continuing with respect to such Securities and
(i) 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 Issuer are Outstanding or is trustee for more
than one Outstanding series of securities under a single indenture of an
Issuer, 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
paragraph this Indenture with respect to the Securities of any other series
and there shall also be so excluded any indenture or indentures under which
other securities, or certificates of interest or participation in other
securities, of the Issuer are outstanding if (i) this Indenture is and, if
applicable, this Indenture and any series issued pursuant to this Indenture
and such other indenture or indentures are wholly unsecured and rank
equally, and such other indenture or indentures are hereafter qualified
under the Trust Indenture Act of 1939, unless the Commission shall have
found and declared by order pursuant to Section 305(b) or Section 307(c) of
such Trust Indenture Act of 1939 that differences exist between the
provisions of this Indenture with respect to Securities of such series and
one or more other series, or the provisions of this Indenture and the
provisions of such other indenture or indentures which are so likely to
involve a material conflict of interest as to make it necessary in the
public interest or for the protection of investors to disqualify the
Trustee from acting as such under this Indenture with respect to Securities
of such series and such other series, or under this Indenture or such other
indenture or indentures, or (ii) the Issuer shall have sustained the burden
of proving, on application to the Commission and after opportunity for
hearing thereon, that trusteeship under this Indenture with respect to
Securities of
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such series and such other series, or under this Indenture and such other
indenture or indentures is not so likely to involve a material conflict of
interest as to make it necessary in the public interest or for the
protection of investors to disqualify the Trustee from acting as such under
this Indenture with respect to Securities of such series and such other
series, or under this Indenture and such other indentures;
(ii) the Trustee or any of its directors or executive officers
is an obligor upon the Securities of any series issued under this Indenture
or an underwriter for the Issuer;
(iii) the Trustee directly or indirectly controls or is directly or
indirectly controlled by or is under direct or indirect common control with
the Issuer or an underwriter for the Issuer;
(iv) the Trustee or any of its directors or executive officers
is a director, officer, partner, employee, appointee, or representative of
the Issuer, or of an underwriter (other than the Trustee itself) for the
Issuer who is currently engaged in the business of underwriting, except
that (x) one individual may be a director or an executive officer, or both,
of the Trustee and a director or an executive officer, or both, of the
Issuer, but may not be at the same time an executive officer of both the
Trustee and the Issuer; (y) 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 or an executive officer, or both, of the Trustee and a director of
the Issuer; and (z) the Trustee may be designated by the Issuer or by any
underwriter for the Issuer 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 subsection (c)(i) of this Section, to act as trustee, whether under an
indenture or otherwise;
(v) 10% or more of the voting securities of the Trustee is
beneficially owned either by the Issuer 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
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the voting securities of the Trustee is beneficially owned either by an
underwriter for the Issuer or by any director, partner, or executive
officer thereof, or is beneficially owned, collectively, by any two or more
such persons;
(vi) the Trustee is the beneficial owner of or holds as
collateral security for an obligation which is in default, (x) 5% or more
of the voting securities or 10% or more of any other class of security of
the Issuer, not including the Securities issues under this Indenture and
securities issued under any other indenture under which the Trustee is also
trustee, or (y) 10% or more of any class of security of an underwriter for
the Issuer;
(vii) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default, 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 Issuer;
(viii) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default, 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 Issuer;
(ix) the Trustee owns on May 15 in any calendar year, 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 Section
6.8(c)(vi), (vii) or (viii). 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
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exceed 25% of such voting securities or 25% of any such class of security.
Promptly after May 15 in each calendar year, the Trustee shall make a check
of its holdings of such securities in any of the above-mentioned capacities
as of such May 15. If the Issuer fails to make payment in full of
principal of or interest on any of the Securities 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 subsections (c)(vi),
(vii) and (viii) of this Section; or
(x) except under the circumstances described in subsections
(b)(1), (3), (4), (5) or (6) of Section 6.13, the Trustee shall be or shall
become a creditor of the Issuer.
The specification of percentages in subsections (c)(v) and (ix)
inclusive of this Section 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 subsections (c)(iii) or (vii) of this Section.
For the purposes of subsections (c)(vi), (vii), (viii) and (ix),
of this Section, 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
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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 (x) 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 (y) any security which it holds as collateral security under
this Indenture, irrespective of any default hereunder, or (z) any security
which it holds as agent for collection, or as custodian, escrow agent, or
depositary, or in any similar representative capacity.
Except as provided above, the word "security" or "securities" as
used in this Section shall mean any note, stock, treasury stock, bond,
debenture, evidence of indebtedness, certificate of interest or participation
in any profit-sharing agreement, collateral trust certificate, preorganization
certificate or subscription, transferable share, investment contract, voting
trust certificate, certificate of deposit for a security, fractional undivided
interest in oil, gas or other mineral rights, or, in general, any interest or
instrument commonly known as a "security", or any certificate of interest or
participation in, temporary or interim certificate for, receipt for, guarantee
of, or warrant or right to subscribe to or purchase, any of the foregoing.
(d) For purposes of this Section:
(i) the term "underwriter" when used with reference to the
Issuer shall mean every person who, within three years prior to the time as
of which the determination is made, has purchased from the Issuer with a
view to, or has offered or sold for the Issuer in connection with, the
distribution of any security of the Issuer 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;
(ii) the term "director" shall mean any director of a
corporation or any individual
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performing similar functions with respect to any organization whether
incorporated or unincorporated;
(iii) the term "person" shall mean 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 evidence by a security;
(iv) the term "voting security" shall mean 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
presently entitled to vote in the direction or management of the affairs of
a person;
(v) the term "Issuer" shall mean any obligor upon the
Securities; and
(vi) the term "executive officer" shall mean 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:
(i) a specified percentage of the voting securities of the
Trustee, the Issuer 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
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direction or management of the affairs of such person;
(ii) a specified percentage of a class of securities of a
person means such percentage of the aggregate amount of securities of the
class outstanding;
(iii) 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;
(iv) 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:
(A) securities of an issuer held in a sinking fund
relating to securities of the issuer of the same class;
(B) 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;
(C) 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
(D) securities held in escrow if placed in escrow by
the issuer thereof;
PROVIDED, that any voting securities of an issuer shall be deemed outstanding
if any person other than the issuer is entitled to exercise the voting rights
thereof; and
(v) 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, 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
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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.
SECTION 6.9. PERSONS ELIGIBLE FOR APPOINTMENT AS TRUSTEE. The
Trustee for each series of Securities hereunder shall at all times be a
corporation organized and doing business under the laws of the United States of
America or of any State or the District of Columbia (or a Person permitted to
act as trustee by the Commission) having a combined capital and surplus of at
least $50,000,000, and which is authorized under such laws to exercise
corporate trust powers and is subject to supervision or examination by Federal,
State or District of Columbia authority. Such corporation or Person shall have
a place of business in Chicago, Illinois or the Borough of Manhattan, The City
of New York if there be such a corporation or Person in such location willing
to act upon reasonable and customary terms and conditions. If such corporation
or Person publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
corporation or Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. Such
corporation or Person shall not be and shall represent that it is not an
obligor on the Securities or a person directly or indirectly controlling,
controlled by, or under common control with such obligor. In case at any time
the Trustee shall cease to be eligible in accordance with the provisions of
this Section, the Trustee shall resign immediately in the manner and with the
effect specified in Section 6.10.
SECTION 6.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR
TRUSTEE. (a) The Trustee, or any trustee or trustees hereafter appointed, may
at any time resign with respect to one or more or all series of Securities by
giving written notice of resignation to the Issuer and (i) if any Unregistered
Securities of a series affected are then Outstanding, by giving notice of such
resignation to the Holders thereof, by publication at least once in an
Authorized Newspaper in the Borough of Manhattan, The City of New York, and at
least once in an Authorized Newspaper in London (and, if required by Section
3.8, at least once in an Authorized Newspaper in Luxembourg), (ii)
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if any Unregistered Securities of a series affected are then Outstanding, by
mailing notice of such resignation to the Holders thereof who have filed their
names and addresses with the Trustee pursuant to Section 4.4(c)(ii) at such
addresses as were no furnished to the Trustee and (iii) by mailing notice of
such resignation to the Holders of then Outstanding Registered Securities of
each series affected at their addresses as they shall appear on the registry
books. Upon receiving such notice of resignation, the Issuer shall promptly
appoint a successor trustee or trustees with respect to the applicable series
by written instrument in duplicate, executed by authority of the Board of
Directors, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee or trustees. If no successor
trustee shall have been so appointed with respect to any series and have
accepted appointment within 30 days after the mailing of such notice of
resignation, the resigning trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any Securityholder
who has been a bona fide Holder of a Security or Securities of the applicable
series for at least six months may, subject to the provisions of Section 5.12,
on behalf of himself and all others similarly situated, petition any such court
for the appointment of a successor trustee. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 6.8 with respect to any series of Securities after written request
therefor by the Issuer or by any Securityholder who has been a bona fide
Holder of a Security or Securities of such series for at least six months;
or
(ii) the Trustee shall cease to be eligible in accordance with
the provisions of Section 6.9 and shall fail to resign after written
request therefor by the Issuer or by any Securityholder; or
(iii) the Trustee shall become incapable of acting with respect
to any series of Securities, or shall be adjudged a bankrupt or insolvent,
or a receiver or liquidator 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;
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then, in any such case, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of
Directors of the Issuer, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, or, subject to the
provisions of Section 5.12, any Securityholder who has been a bona fide Holder
of a Security or Securities of such series for at least six months may on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor trustee with respect to such series. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, remove the Trustee
and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of
the Securities of each series at the time outstanding may at any time remove
the Trustee with respect to Securities of such series and appoint a successor
trustee with respect to the Securities of such series by delivering to the
Trustee so removed, to the successor trustee so appointed and to the Issuer the
evidence provided for in Section 7.1 of the action in that regard taken by the
Securityholders.
(d) Any resignation or removal of the Trustee with respect to
any series and any appointment of a successor trustee with respect to such
series pursuant to any of the provisions of this Section 6.10 shall become
effective upon acceptance of appointment by the successor trustee as provided
in Section 6.11.
SECTION 6.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE.
Any successor trustee appointed as provided in Section 6.10 shall execute and
deliver to the Issuer and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and obligations
with respect to such series of its predecessor hereunder, with like effect as
if originally named as trustee for such series hereunder; but, nevertheless, on
the written request of the Issuer or of the successor trustee, upon payment of
its charges then unpaid, the trustee ceasing to act shall, subject to Section
10.5, pay over to the successor trustee all moneys at the time held by it
hereunder and shall execute and deliver an
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instrument which, subject to Section 6.8, need not include an indemnity,
transferring to such successor trustee all such rights, powers, duties and
obligations. Upon request of any such successor trustee, the Issuer shall
execute any and all instruments in writing for more fully and certainly vesting
in and confirming to such successor trustee all such rights and powers. Any
trustee ceasing to act shall, nevertheless, retain a prior claim upon all
property or funds held or collected by such trustee to secure any amounts then
due it pursuant to the provisions of Section 6.6.
If a successor trustee is appointed with respect to the Securities
of one or more (but not all) series, the Issuer, the predecessor Trustee and
each successor trustee with respect to the Securities of any applicable series
shall execute and deliver an indenture supplemental hereto which shall contain
such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the predecessor Trustee with respect
to the Securities of any series as to which the predecessor Trustee is not
retiring shall continue to be vested in the predecessor Trustee, and 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 under
separate indentures.
No successor trustee with respect to any series of Securities
shall accept appointment as provided in this Section 6.11 unless at the time of
such acceptance such successor trustee shall be qualified under the provisions
of Section 6.8 and eligible under the provisions of Section 6.9.
Upon acceptance of appointment by any successor trustee as
provided in this Section 6.11, the Issuer shall mail notice thereof (a) if any
Unregistered Securities of a series affected are then Outstanding, to the
Holders thereof, by publication of such notice at least once in an Authorized
Newspaper in the Borough of Manhattan, The City of New York and at least once
in an Authorized Newspaper in London (and, if required by Section 3.8, at least
once in an Authorized Newspaper in Luxembourg), (b) if any Unregistered
Securities of a series affected are then Outstanding, to the Holders thereof
who have filed their names and addresses with the Trustee pursuant to Section
4.4(c)(ii), by mailing such notice to such Holders at such addresses as were so
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furnished to the Trustee (and the Trustee shall make such information available
to the Issuer for such purpose) and (c) to the Holders of Registered Securities
of each series affected, by mailing such notice to such Holders at their
addresses as they shall appear on the registry books. If the acceptance of
appointment is substantially contemporaneous with the resignation, then the
notice called for by the preceding sentence may be combined with the notice
called for by Section 6.10. If the Issuer fails to mail such notice within ten
days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be mailed at the expense of the Issuer.
SECTION 6.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION
TO BUSINESS OF TRUSTEE. 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 the corporate trust business of the
Trustee, shall be the successor of the Trustee and all other appointments
hereunder, PROVIDED that such corporation shall be qualified under the
provisions of Section 6.8 and eligible under the provisions of Section 6.9,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to
the trusts created by this Indenture any of the Securities of any series shall
have been authenticated but not delivered, any such successor to the Trustee
may adopt the certificate of authentication of any predecessor Trustee and
deliver such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to
the Trustee may authenticate such Securities either in the name of any
predecessor hereunder or in the name of the successor Trustee; and in all such
cases such certificate shall have the full force which it has anywhere in the
Securities of such series or in this Indenture provided that the certificate of
the Trustee shall have; PROVIDED, that the right to adopt the certificate of
authentication of any predecessor Trustee or to authenticate Securities of any
series in the name of any predecessor Trustee shall apply only to its successor
or successors by merger, conversion or consolidation.
SECTION 6.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE
ISSUER. (a) Subject to the provisions of
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subsection (b) of this Section, if the Trustee shall be or shall become a
creditor, directly or indirectly, secured or unsecured, of the Issuer within
three months prior to a default, 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, the Holders of the Securities and the
Holders of other indenture securities (as defined in this Section):
(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 months' period and
valid as against the Issuer and its other creditors, except any such
reduction resulting from the receipt or disposition of any property
described in subsection (a)(2) of this Section, 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 Issuer 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's period, or an amount equal to the proceeds of any such property, if
disposed of, subject, however, to the rights, if any, of the Issuer 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 Issuer) who is liable
thereon, (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 Issuer in
bankruptcy or receivership or in proceedings for reorganization pursuant to
Title 11 of the United States Code or applicable 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 months' period;
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(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 months' 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 such 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 months' 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, the Securityholders and the Holders of other
indenture securities in such manner that the Trustee, such Securityholders and
the Holders of other indenture securities realize, as a result of payments from
such special account and payments of dividends on claims filed against the
Issuer in bankruptcy or receivership or in proceedings for reorganization
pursuant to Title 11 of the United States Code or applicable 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 Issuer
of the funds and property in such special account and before crediting to the
respective claims of the Trustee, such Securityholders and the Holders of other
indenture securities dividends on claims filed against the Issuer in bankruptcy
or receivership or in proceedings for reorganization pursuant to Title 11 of
the United States Code or applicable State law, but after crediting thereon
receipts on account of the indebtedness represented by their respective claims
from all
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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 in proceedings for reorganization pursuant to
Title 11 of the United States Code or applicable 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, such Securityholders and the Holders of other indenture securities, in
accordance with the provisions of this paragraph, the funds and property held
in such special account and the 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, such Securityholders and the Holders of other indenture
securities 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 who has resigned or been removed after the beginning
of such three months' period shall be subject to the provisions of this
subsection (a) as though such resignation or removal had not occurred. If any
Trustee has resigned or been removed prior to the beginning of such three
months' period, it shall be subject to the provisions of this subsection (a) 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 months' 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
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(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 advance and of the circumstances
surrounding the making thereof is given to the Securityholders 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 a cash transaction as defined in subsection (c)(3) 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
Issuer; 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)(4) of this Section.
(c) As used in this Section:
(1) the term "default" shall mean any failure to make payment
in full of the principal of or interest upon any of the Securities or upon
the other indenture securities when and as such principal or interest
becomes due and payable;
(2) the term "other indenture securities" shall mean
securities upon which the Issuer is an obligor (as defined in the Trust
Indenture Act of 1939) outstanding under any other indenture (i) under
which the Trustee is also trustee, (ii) which contains provisions
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substantially similar to the provisions of subsection (a) of this Section,
and (iii) under which a default existing at the time of the apportionment
of the funds and property held in said special account;
(3) the term "cash transaction" shall mean 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;
(4) the term "self-liquidating paper" shall mean any draft,
bill of exchange, acceptance or obligation which is made, drawn, negotiated
or incurred by the Issuer for the purpose of financing the purchase,
processing, manufacture, 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 or the
receivables or proceeds arising from the sale of 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 Issuer arising from the making, drawing, negotiating
or incurring of the draft, bill of exchange, acceptance or obligation; and
(5) the term "Issuer" shall mean any obligor upon the
Securities.
ARTICLE VII.
CONCERNING THE SECURITYHOLDERS
SECTION 7.1. EVIDENCE OF ACTION TAKEN BY SECURITYHOLDERS. Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by a specified
percentage in principal amount of the Securityholders of any or all series may
be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such specified percentage of Securityholders 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. Proof of execution of any instrument
or of a writing appointing any such agent shall be sufficient for any purpose
of this Indenture and (subject to Sections 6.1
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and 6.2) conclusive in favor of the Trustee and the Issuer, if made in the
manner provided in this Article.
SECTION 7.2. PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING
OF SECURITIES. Subject to Sections 6.1 and 6.2, the execution of any
instrument by a Securityholder or his agent or proxy may be proved in the
following manner:
(a) In the case of Holders of Unregistered Securities, the
fact and date of the execution by any such person of any instrument may be
proved by the certificate of any notary public or other officer of any
jurisdiction authorized to take acknowledgements of deeds or administer
oaths that the person executing such instruments acknowledged to him the
execution thereof, or by an affidavit of a witness to such execution sworn
to before any such notary or other such officer. Where such execution is
by or on behalf of any legal entity other than an individual, such
certificate or affidavit shall also constitute sufficient proof of the
authority of the person executing the same. The fact of the holding by any
Holder of a Security of any series, and the identifying number of such
Security and the date of his holding the same, may be proved by the
production of such Security or by a certificate executed by any trust
company, depositary, bank, banker or recognized securities dealer wherever
situated satisfactory to the Trustee. Each such certificate shall be dated
and shall state that on the date thereof a Security of such series bearing
a specified identifying number was deposited with or exhibited to such
trust company, depositary, bank, banker or recognized securities dealer by
the person named in such certificate. Any such certificate may be issued
in respect of one or more Securities of one or more series specified
therein. The holding by the person named in any such certificate of any
Securities of any series specified therein shall be presumed to continue
for a period of one year from the date of such certificate unless at the
time of any determination of such holding (1) another certificate bearing a
later date issued in respect of the same Securities shall be produced, or
(2) the Security of such series specified in such certificate shall be
produced by some other person, or (3) the Security of such series specified
in such certificate shall have ceased to be Outstanding. Subject to
Sections 6.1 and 6.2, the fact and date of the execution of any such
instrument and the amount and numbers of Securities of any series held by
the person so executing such instrument and the amount and numbers of any
Security
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or Securities for such series may also be proven in accordance with such
reasonable rules and regulations as may be prescribed by the Trustee for
such series or in any other manner which the Trustee for such series may
deem sufficient.
(b) In the case of Registered Securities, the ownership of
such Securities shall be proved by the Security register or by a
certificate of the Security registrar.
SECTION 7.3. HOLDERS TO BE TREATED AS OWNERS. The Issuer,
the Trustee and any agent of the Issuer or the Trustee may deem and treat the
person in whose name any Security shall be registered upon the Security
register for such series as the absolute owner of such Security (whether or not
such Security shall be overdue and notwithstanding any notation of ownership or
other writing thereon) for the purpose of receiving payment of or on account of
the principal of and, subject to the provisions of this Indenture, interest on
such Security and for all other purposes; and neither the Issuer nor the
Trustee nor any agent of the Issuer or the Trustee shall be affected by any
notice to the contrary. The Issuer, the Trustee and any agent of the Issuer or
the Trustee may treat the Holder of any Unregistered Security and the Holder of
any Coupon as the absolute owner of such Unregistered Security or Coupon
(whether or not such Unregistered Security or Coupon shall be overdue) for the
purpose of receiving payment thereof or on account thereof and for all other
purposes and neither the Issuer, the Trustee, nor any agent of the Issuer or
the Trustee shall be affected by any notice to the contrary. All such payments
so made to any such person, or upon his order, shall be valid, and, to the
extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Security or Coupon.
SECTION 7.4. SECURITIES OWNED BY ISSUER DEEMED NOT
OUTSTANDING. In determining whether the Holders of the requisite aggregate
principal amount of Outstanding Securities of any or all series have concurred
in any direction, consent or waiver under this Indenture, Securities which are
owned by the Issuer or any other obligor on the Securities with respect to
which such determination is being made or by any person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Issuer or any other obligor on the Securities with respect to which such
determination is being made shall be disregarded and deemed not to be
Outstanding for the purpose of any such determination, except that for the
purpose of determining whether the
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Trustee shall be protected in relying on any such direction, consent or waiver
only Securities which the Trustee knows are so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes the pledgee's right so to act with
respect to such Securities and that the pledgee is not the Issuer or any other
obligor upon the Securities or any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuer or any
other obligor on the Securities by delivering to the Trustee an Officers'
Certificate and Opinion of Counsel to such effect. In case of a dispute as to
such right, the advice of counsel shall be full protection in respect of any
decision made by the Trustee in accordance with such advice. Upon request of
the Trustee, the Issuer shall furnish to the Trustee promptly an Officers'
Certificate listing and identifying all Securities, if any, known by the Issuer
to be owned or held by or for the account of any of the above-described
persons; and, subject to Sections 6.1 and 6.2, the Trustee shall be entitled to
accept such Officers' Certificate as conclusive evidence of the facts therein
set forth and of the fact that all Securities not listed therein are
Outstanding for the purpose of any such determination.
SECTION 7.5. RIGHT OF REVOCATION OF ACTION TAKEN. At any time
prior to (but not after) the evidencing to the Trustee, as provided in Section
7.1, of the taking of any action by the Holders of the percentage in aggregate
principal amount of the Securities of any or all series, as the case may be,
specified in this Indenture in connection with such action, any Holder of a
Security the serial number of which is shown by the evidence to be included
among the serial numbers of the Securities the Holders of which have consented
to such action may, by filing written notice at the Corporate Trust Office and
upon proof of holding as provided in this Article, revoke such action so far as
concerns such Security. Except as aforesaid any such action taken by the
Holder of any Security shall be conclusive and binding upon such Holder and
upon all future Holders and owners of such Security and of any Securities
issued in exchange or substitution therefor, irrespective of whether or not any
notation in regard thereto is made upon any such Security. Any action taken by
the Holders of the percentage in aggregate principal amount of the Securities
of any or all series, as the case may be, specified in this Indenture in
connection with such action shall be conclusively binding upon the Issuer, the
Trustee and the Holders of all the Securities affected by such action.
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ARTICLE VIII.
SUPPLEMENTAL INDENTURES
SECTION 8.1. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
SECURITYHOLDERS. The Issuer, when authorized by a resolution of its Board of
Directors, and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act of 1939 as in force at the date of the
execution thereof) for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the
Trustee as security for the Securities of one or more series any property
or assets;
(b) to evidence the succession of another corporation to the
Issuer, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Issuer
pursuant to Article Nine;
(c) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions as its Board of Directors
shall consider to be for the protection of the Holders of Securities or
Coupons, and to make the occurrence, or the occurrence and continuance, of
a default in any such additional covenants, restrictions, conditions or
provisions an Event of Default permitting the enforcement of all or any of
the several remedies provided in this Indenture as herein set forth;
PROVIDED, that in respect of any such additional covenant, restriction,
condition or provision such supplemental indenture may provide for a
particular period of grace after default (which period may be shorter or
longer than that allowed in the case of other defaults) or may provide for
an immediate enforcement upon such an Event of Default or may limit the
remedies available to the Trustee upon such an Event of Default or may
limit the right of the Holders of a majority in aggregate principal amount
of the Securities of such series to waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may be
defective or inconsistent with any other provision contained herein or in
any supplemental indenture; or to make such other provisions in regard to
matters or questions arising
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under this Indenture or under any supplemental indenture as the Board of
Directors may deem necessary or desirable and which, in the opinion of the
Board of Directors, shall not adversely affect the interests of the Holders
of the Securities or Coupons;
(e) to establish the form or terms of Securities of any series
or of the Coupons appertaining to such Securities as permitted by Sections
2.1 and 2.3;
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one trustee, pursuant to the requirements
of Section 6.11; and
(g) to provide for uncertificated Registered Securities for
any series.
The Trustee is hereby authorized to join with the Issuer in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property
thereunder, but the Trustee shall not be obligated to enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed without the consent of the Holders of any of the
Securities at the time outstanding, notwithstanding any of the provisions of
Section 8.2.
SECTION 8.2. SUPPLEMENTAL INDENTURES WITH CONSENT OF
SECURITYHOLDERS. With the consent (evidenced as provided in Article Seven) of
the Holders of not less than 66 2/3% in aggregate principal amount of the
Securities at the time Outstanding of all series affected by such supplemental
indenture (voting as one class), the Issuer, when authorized by a resolution of
its Board of Directors, and the Trustee may, from time to time and at any time,
enter into an indenture or indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act of 1939 as in force at the date of
execution thereof) for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions
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of this Indenture or of any supplemental indenture or of modifying in any
manner the rights of the Holders of the Securities of each such series or of
the Coupons appertaining to such Securities; PROVIDED, that no such
supplemental indenture shall (a) extend the final maturity of any Security, or
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any amount payable on redemption
thereof, or make the principal thereof (including any amount in respect of
original issue discount), or interest or premium thereon payable in any coin or
currency other than that provided in the Securities and Coupons or in
accordance with the terms thereof, or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon an
acceleration of the maturity thereof pursuant to Section 5.1 or the amount
thereof provable in bankruptcy pursuant to Section 5.2, or impair or affect the
right of any Securityholder to institute suit for the payment thereof or, if
the Securities provide therefor, any right of repayment at the option of the
Securityholder without the consent of the Holder of each Security so affected,
or (b) reduce the aforesaid percentage of Securities of any series, the consent
of the Holders of which is required for any such supplemental indenture,
without the consent of the Holders of each Security so affected.
A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been included solely
for the benefit of one or more particular series of Securities, or which
modifies the rights of Holders of Securities of such series, or of Coupons
appertaining to such Securities, with respect to such covenant or provision,
shall be deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series or of the Coupons appertaining to such
Securities.
Upon the request of the Issuer, accompanied by a copy of a
resolution of the Board of Directors certified by the secretary or an assistant
secretary of the Issuer authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of the consent of
Securityholders as aforesaid and other documents, if any, required by Section
7.1, the Trustee shall join with the Issuer in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
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It shall not be necessary for the consent of the Securityholders
under this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall mail a notice thereof (i) to the Holders of then Outstanding Registered
Securities of each series affected thereby, by mailing a notice thereof by
first-class mail to such Holders at their addresses as they shall appear on the
Security register, (ii) if any Unregistered Securities of a series affected
thereby are then Outstanding, to the Holders thereof who have filed their names
and addresses with the Trustee pursuant to Section 4.4(c)(ii), by mailing a
notice thereof by first-class mail to such Holders at such addresses as were so
furnished to the Trustee and (iii) if any Unregistered Securities of a series
affected thereby are then Outstanding, to all Holders thereof, by publication
of a notice thereof at least once in an Authorized Newspaper in the Borough of
Manhattan, The City of New York and at least once in an Authorized Newspaper in
London (and, if required by Section 3.8, at least once in an Authorized
Newspaper in Luxembourg), in each case such notice shall set forth in general
terms the substance of such supplemental indenture. Any failure of the Issuer
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental Indenture.
SECTION 8.3. EFFECT OF SUPPLEMENTAL INDENTURE. Upon the
execution of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Issuer and the Holders
of Securities of each series affected thereby shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
SECTION 8.4. DOCUMENTS TO BE GIVEN TO TRUSTEE. The Trustee,
subject to the provisions of Sections 6.1 and 6.2, may receive an Officers'
Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article 8 complies with the
applicable provisions of this Indenture.
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SECTION 8.5. NOTATION ON SECURITIES IN RESPECT OF SUPPLEMENTAL
INDENTURES. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article may bear a notation in form approved by the Trustee upon advice of
counsel for such series as to any matter provided for by such supplemental
indenture or as to any action taken at any such meeting. If the Issuer or the
Trustee shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee (as to form) and the Board of Directors
(as to form and substance), to any modification of this Indenture contained in
any such supplemental indenture may be prepared by the Issuer, authenticated by
the Trustee and delivered in exchange for the Securities of such series then
outstanding.
ARTICLE IX.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1. ISSUER MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
The Issuer covenants that it will not merge or consolidate with any other
corporation or sell or convey all or substantially all of its assets to any
Person, unless (i) either the Issuer shall be the continuing corporation, or
the successor corporation or the Person which acquires by sale or conveyance
substantially all the assets of the Issuer (if other than the Issuer) shall be
a corporation or entity organized under the laws of the United States of
America or any State thereof and shall expressly assume the due and punctual
payment of the principal of and interest on all the Securities and Coupons,
according to their tenor, and the due and punctual performance and observance
of all of the covenants and conditions of this Indenture to be performed or
observed by the Issuer, by supplemental indenture satisfactory to the Trustee,
executed and delivered to the Trustee by such corporation or entity, and (ii)
the Issuer or such successor corporation or entity, as the case may be, shall
not, immediately after such merger or consolidation, or such sale or
conveyance, be in default in the performance of any such covenant or condition.
SECTION 9.2. SUCCESSOR ISSUER SUBSTITUTED. In case of any
such consolidation, merger, sale or conveyance, and following such an
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Issuer, with the same effect as if it had
been named herein. Such successor corporation may cause to be signed, and may
issue either in its own name or in the name of the Issuer prior to such
succession any or all of
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the Securities issuable hereunder, together with any Coupons appertaining
thereto, which theretofore shall not have been signed by the Issuer and
delivered to the Trustee; and, upon the order of such successor corporation
instead of the Issuer and subject to all the terms, conditions and limitations
in this Indenture prescribed, the Trustee shall authenticate and shall deliver
any Securities, together with any Coupons appertaining thereto, which
previously shall have been signed and delivered by the officers of the Issuer
to the Trustee for authentication, and any Securities, together with any
Coupons appertaining thereto, which such successor corporation thereafter shall
cause to be signed and delivered to the Trustee for that purpose. All of the
Securities so issued, together with any Coupons appertaining thereto, shall in
all respects have the same legal rank and benefit under this Indenture as the
Securities and Coupons theretofore or thereafter issued in accordance with the
terms of this Indenture as though all of such Securities and Coupons had been
issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or
conveyance such changes in phraseology and form (but not in substance) may be
made in the Securities and Coupons thereafter to be issued as may be
appropriate.
In the event of any such sale or conveyance (other than a
conveyance by way of lease) the Issuer or any successor corporation which shall
theretofore have become such in the manner described in this Article shall be
discharged from all obligations and covenants under this Indenture and the
Securities and may be liquidated and dissolved.
SECTION 9.3. OPINION OF COUNSEL TO TRUSTEE. The Trustee,
subject to the provisions of Sections 6.1 and 6.2, may receive an Opinion of
Counsel, prepared in accordance with Section 11.5, as conclusive evidence that
any such consolidation, merger, sale, lease or conveyance, and any such
assumption, and any such liquidation or dissolution, complies with the
applicable provisions of this Indenture.
ARTICLE X.
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 10.1. SATISFACTION AND DISCHARGE OF INDENTURE. This
Indenture shall cease to be of further effect with respect to any series of
Securities (except as to any surviving rights of conversion or transfer or
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exchange of Securities of such series expressly provided for herein or in the
form of Security for such series), and the Trustee, on demand of and at the
expense of the Issuer, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture as to such series, when
(1) either
(A) all Securities of that series theretofore authenticated
and delivered (other than (i) Securities of such series which have been
destroyed, lost or stolen and which have been replaced or paid as provided in
SECTION 2.9, and (ii) Securities of such series for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the
Issuer and thereafter repaid to the Issuer or discharged from such trust, as
provided in SECTION 3.4) have been delivered to the Trustee canceled or for
cancellation; or
(B) all such Securities of that series not theretofore
delivered to the Trustee canceled or 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 Issuer,
and the Issuer, 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, which shall be immediately due and payable, sufficient to pay and
discharge the entire indebtedness on such Securities not theretofore delivered
to the Trustee canceled or for cancellation, for principal (and premium, if
any) and interest to the date of such deposit (in the case of Securities which
have become due and payable), or to the stated maturity or redemption date, as
the case may be;
(2) the Issuer has paid or caused to be paid all other sums payable
hereunder by the Issuer with respect to the Securities of such series; and
(3) the Issuer has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for
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relating to the satisfaction and discharge of this Indenture with respect to
the Securities of such series have been complied with.
SECTION 10.2. APPLICATION OF TRUST MONEY. All money deposited with the
Trustee pursuant to SECTION 10.1 or SECTION 10.3 shall be held in trust and
applied by it, in accordance with the provisions of the series of Securities in
respect of which it was deposited and this Indenture, to the payment, either
directly or through any Paying Agent (including the Issuer acting as its own
Paying Agent), to the Persons entitled thereto, of the principal (and premium,
if any) and interest for whose payment such money has been deposited with the
Trustee; but such money need not be segregated from other funds except to the
extent required by law.
SECTION 10.3. DEFEASANCE UPON DEPOSIT OF FUNDS OR GOVERNMENT
OBLIGATIONS. Unless pursuant to SECTION 2.3 provision is made that this
SECTION 10.3 shall not be applicable to the Securities of any series, at the
Issuer's option, either (a) the Issuer shall be deemed to have been Discharged
(as defined below) from its obligations with respect to any series of
Securities after the applicable conditions set forth below have been satisfied
or (b) the Issuer shall cease to be under any obligation to comply with any
term, provision or condition set forth in SECTIONS 3.6 and 3.7 (and any other
Sections applicable to such Securities that are determined pursuant to SECTION
2.3 to be subject to this provision) with respect to any series of Securities
at any time after the applicable conditions set forth below have been
satisfied:
(1) the Issuer shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust, specifically pledged
as security for, and dedicated solely to, the benefit of the Holders of the
Securities of such series (i) money in an amount, or (ii) the equivalent in
securities of the government which issued the currency in which the
Securities of such series are denominated or securities issued by
government agencies backed by the full faith and credit of such government,
which through the payment of interest and principal in respect thereof in
accordance with their terms will provide, not later than one day before the
due date of any payment, money in an amount, or (iii) a combination of (i)
and (ii), sufficient, in the opinion (with respect to (ii) and (iii)) of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge
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each installment of principal (including mandatory sinking fund payments)
and any premium of, interest on and any repurchase obligations with respect
to the outstanding securities of such series on the dates such installments
of interest or principal or repurchase obligations are due;
(2) no Event of Default or event (including such deposit)
which with notice or lapse of time would become an Event of Default with
respect to the Securities of such series shall have occurred and be
continuing on the date of such deposit; and
(3) the Issuer shall have delivered to the Trustee an Opinion
of Counsel, from counsel who is not an employee of the Company but which
may be outside general counsel to the Company, to the effect that Holders
of the Securities of such series will not recognize income, gain or loss
for Federal income tax purposes as a result of the Company's exercise of
its option under this SECTION 10.3 and will be subject to Federal income
tax on the same amount and in the same manner and at the same times as
would have been the case if such option had not been exercised, and, in the
case of Securities being Discharged, such opinion shall be based upon at
least one of the following authorities (issued, enacted or promulgated
after the date of this Indenture), substantially on point and to the
foregoing effect: (i) a public ruling of the Internal Revenue Service, (ii)
a private ruling of the Internal Revenue Service issued to the Company with
respect to the Securities, (iii) a provision of the Internal Revenue Code,
or (iv) a final regulation promulgated by the Department of the Treasury.
The term "Discharged" means that the Issuer shall be deemed to
have paid and discharged the entire indebtedness represented by and
obligations under, the Securities of such series and to have satisfied all
the obligations under this Indenture relating to the Securities of such
series (and the Trustee, at the expense of the Issuer, shall execute proper
instruments acknowledging the same), except (A) the rights of Holders of
Securities to receive, from the trust fund described in SUBSECTION (1)
above, payment of the principal and any premium of and any interest on such
Securities when such payments are due; (B) the Issuer's obligations with
respect to such Securities under SECTIONS 2.8, 2.9, 10.2, 3.2, 3.4, and
6.5; and (C) the rights, powers, trusts, duties and immunities of the
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Trustee hereunder (including, without limitation, its rights under Section
6.6 hereunder).
SECTION 10.4. REPAYMENT OF MONEYS HELD BY PAYING AGENT. In
connection with the satisfaction and discharge of this Indenture with respect
to Securities of any series, all moneys then held by any paying agent under the
provisions of this Indenture with respect to such series of Securities shall,
upon demand of the Issuer, be repaid to it or paid to the Trustee and thereupon
such paying agent shall be released from all further liability with respect to
such moneys.
SECTION 10.5. RETURN OF MONEYS HELD BY TRUSTEE AND PAYING AGENT
UNCLAIMED FOR THREE YEARS. Any moneys deposited with or paid to the Trustee or
any paying agent for the payment of the principal of or interest on any
Security of any series or Coupons attached thereto and not applied but
remaining unclaimed for three years after the date upon which such principal or
interest shall have become due and payable, shall, upon the written request of
the Issuer and unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property law (as advised by counsel, pursuant
to Section 6.2), be repaid to the Issuer by the Trustee for such series or such
paying agent, and the Holder of the Security of such series and of any Coupons
appertaining thereto shall, unless otherwise required by mandatory provisions
of applicable escheat or abandoned or unclaimed property laws, thereafter look
only to the Issuer for any payment which such Holder may be entitled to
collect, and all liability of the Trustee or any paying agent with respect to
such moneys shall thereupon cease; PROVIDED, HOWEVER, that the Trustee or such
paying agent, before being required to make any such repayment with respect to
moneys deposited with it for any payment in respect of Unregistered Issuer
Securities of any series, shall at the expense of the Issuer cause to be
published once, in an Authorized Newspaper in the Borough of Manhattan, The
City of New York and once in an Authorized Newspaper in London (and if required
by Section 3.8, once in an Authorized Newspaper in Luxembourg), notice that
such moneys remain and that, after a date specified therein, in which shall not
be less than thirty days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Issuer.
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ARTICLE XI.
MISCELLANEOUS PROVISIONS
SECTION 11.1. INCORPORATORS, STOCKHOLDERS, OFFICERS AND
DIRECTORS OF ISSUER EXEMPT FROM INDIVIDUAL LIABILITY. No recourse under or
upon any obligation, covenant or agreement contained in this Indenture, or in
any Security, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such or against any past, present or future
stockholder, officer or director, as such, of the Issuer or of any successor,
either directly or through the Issuer or any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities and the
Coupons appertaining thereto by the holders thereof and as part of the
consideration for the issue of the Securities and the Coupons appertaining
thereto.
SECTION 11.2. PROVISIONS OF INDENTURE FOR THE SOLE BENEFIT OF
PARTIES AND HOLDERS OF SECURITIES AND COUPONS. Nothing in this Indenture, in
the Securities or in the Coupons appertaining thereto, expressed or implied,
shall give or be construed to give to any person, firm or corporation, other
than the parties hereto and their successors and the Holders of the Securities
or Coupons, if any, any legal or equitable right, remedy or claim under this
Indenture or under any covenant or provision herein contained, all such
covenants and provisions being for the sole benefit of the parties hereto and
their successors and of the Holders of the Securities or Coupons, if any.
SECTION 11.3. SUCCESSORS AND ASSIGNS OF ISSUER BOUND BY
INDENTURE. All the covenants, stipulations promises and agreements in this
Indenture contained by or on behalf of the Issuer shall bind its successors and
assigns, whether so expressed or not.
SECTION 11.4. NOTICES AND DEMANDS ON ISSUER, TRUSTEE AND
HOLDERS OF SECURITIES AND COUPONS. Any notice or demand which by any provision
of this Indenture is required or permitted to be given or served by the Trustee
or by the Holders of Securities or Coupons to or on the Issuer may be given or
served by being deposited postage prepaid, first-class mail (except as
otherwise specifically provided herein) addressed (until another address of the
Issuer is filed by the Issuer with the Trustee) to Rubbermaid Incorporated,
1147 Akron Road, Wooster, Ohio
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44691-6000, Attn: Treasurer. Any notice, direction, request or demand by the
Issuer or any holder of Securities or Coupons to or upon the Trustee shall be
deemed to have been sufficiently given or made, for all purposes, if given or
made at the Corporate Trust Office.
In case, by reason of the suspension of or irregularities in
regular mail service, it shall be impracticable to mail notice to the Issuer
when such notice is required to be given pursuant to any provision of this
Indenture, then any manner of giving such notice as shall be reasonably
satisfactory to the Issuer shall be deemed to be a sufficient giving of such
notice.
SECTION 11.5. OFFICERS' CERTIFICATES AND OPINIONS OF COUNSEL;
STATEMENTS TO BE CONTAINED THEREIN. Upon any application or demand by the
Issuer to the Trustee to take any action under any of the provisions of this
Indenture, the Issuer shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent 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 have
been complied with.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture shall include (a) a statement that the
person making such certificate or opinion has read such covenant or condition,
(b) 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, (c) a statement that, in the opinion of such
person, he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or
condition has been complied with and (d) a statement as to whether or not, in
the opinion of such person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer
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 his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous. Any certificate, statement or opinion of counsel may be based,
insofar as it relates to factual matters,
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information with respect to which is in the possession of the Issuer, upon the
certificate, statement or opinion of or representations by an officer or
officers of the Issuer, unless such counsel knows that the certificate,
statement or opinion or representations with respect to the matters upon which
his certificate, statement or opinion may be based as aforesaid are erroneous,
or in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Issuer
or of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent.
SECTION 11.6. PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS.
If the date of maturity of interest on or principal of the Securities of any
series or any Coupons appertaining thereto or the date fixed for redemption or
repayment of any such Security or Coupon shall not be a Business Day, then
payment of interest or principal need not be made on such date, but may be made
on the next succeeding Business Day with the same force and effect as if made
on the date of maturity or the date fixed for redemption, and no interest shall
accrue for the period after such date.
SECTION 11.7. CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST
INDENTURE ACT OF 1939. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with another provision included in
this Indenture which is required to be included herein by any of Sections 310
to 317, inclusive, of the Trust Indenture Act of 1939, such required provision
shall control.
SECTION 11.8. NEW YORK LAW TO GOVERN. This Indenture and each
Security and Coupon shall be deemed to be a contract under the laws of the
state of New York, and for all purposes shall be construed in accordance with
the laws of such State, except as may otherwise be required by mandatory
provisions of law.
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SECTION 11.9. COUNTERPARTS. This Indenture may be executed in
any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute one and the same instrument.
SECTION 11.10. EFFECT OF HEADINGS. The Article and Section
headings herein and the Table of Contents are for convenience only and shall
not affect the construction hereof.
SECTION 11.11. SECURITIES IN A FOREIGN CURRENCY OR IN ECU. (a)
Whenever for purposes of this Indenture any action may be taken by the holders
of a specified percentage in aggregate principal amount of Securities of all
series at the time outstanding and, at such time, there are outstanding
Securities of any series which are denominated in a coin or currency other than
United States dollars, then the principal amount of Securities of such series
which shall be deemed to be outstanding for the purpose of taking such action
shall be that amount of United States dollars that could be obtained for such
principal amount based on (i) in the case of Securities denominated in a
foreign currency, the Market Exchange Rate in effect on the date on which such
action is to be taken (the "Determination Date") or (ii) in the case of
Securities denominated in ECU, the Official ECU Exchange Rate (or, if ECU
ceases to be used both (a) within the European Monetary System and (b) for the
settlement of transactions by public institutions of or within the European
Communities, then based on the Dollar Equivalent of the ECU) on the
Determination Date. The provisions of this paragraph shall apply in
determining the equivalent number of votes to which each securityholder or
proxy shall be entitled in respect of Securities of a series denominated in a
currency other than United States dollars in connection with any vote taken by
holders of Securities pursuant to the terms of this Indenture.
(b) For the purposes of this Section 11.11, the following
terms shall have the following meanings:
"Component Currency" means any currency which, on the Conversion
Date, was a component currency of the ECU.
"Conversion Date" means the last date on which ECU was used either
(i) within the European Monetary System or (ii) for the settlement of
transactions by public institutions of or within the European Communities.
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"Dollar Equivalent of the ECU" means the amount, as calculated by
the Trustee on each Determination Date, equal to the sum obtained by adding
together the results obtained by converting the Specified Amount of each
Component Currency into Dollars at the Market Exchange Rate on the
Determination Date for such Component Currency.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"Market Exchange Rate" shall mean for any currency the noon Dollar
buying rate for that currency for cable transfers quoted in New York City
on the Determination Date as certified for customs purposes by the Federal
Reserve Bank of New York. If such rates are not available for any reason
with respect to one or more currencies for which an exchange rate is
required, the Trustee shall use without liability on its part, such
quotation of the Federal Reserve Bank of New York as of the most recent
available date, or if such quotation is unavailable, quotations from
Citibank, N.A., or if unavailable, Chemical Banking Corp., N.A. or if
unavailable, any other bank with combined assets of at least $500 million
in New York City or in the country of issue of the currency in question, or
such other quotations as the Issuer shall deem appropriate. Unless
otherwise specified by the Trustee, if there is more than one market for
dealing in any currency by reason of foreign exchange regulations or
otherwise, the market to be used in respect of such currency shall be that
upon which a nonresident issuer of securities designated in such currency
would purchase such currency in order to make payments in respect of such
securities, as advised by the Issuer.
"Official ECU Exchange Rate" applicable to any currency with
respect to any payment to be made hereunder means the exchange rate between
the ECU and such currency reported by the Commission of the European
Communities (currently based on the rates in effect at 2:30 p.m., Brussels
time, on the relevant exchange markets) or if such exchange rate ceases to
be so reported, then such exchange rate shall be determined by the Trustee
using, without liability on its part, quotations
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from Citibank, N.A., or if unavailable, Chemical Banking Corp., N.A. or if
unavailable, any other bank with combined assets of at least $500 million
in New York City or if such quotation is unavailable, such other quotations
as the Issuer shall deem appropriate, on the applicable Determination Date.
"Specified Amount" of a Component Currency means the number of
units or fractions thereof which such Component Currency represented in the
ECU on the Conversion Date. If after the Conversion Date the official unit
of any Component Currency is altered by way of combination or subdivision,
the Specified Amount of such Component Currency shall be divided or
multiplied in the same proportion. If after the Conversion Date two or
more Component Currencies are consolidated into a single currency, the
respective Specified Amounts of such Component Currencies shall be replaced
by an amount in such single currency equal to the sum of the respective
Specified Amounts of such consolidated Component Currencies expressed in
such single currency, and such amount shall thereafter be a Specified
Amount and such single currency shall thereafter be a Component Currency.
If after the Conversion Date any Component Currency shall be divided into
two or more currencies, the Specified Amount of such Component Currency
shall be replaced by specified amounts of such two or more currencies, the
sum of which, at the market Exchange Rate of such two or more currencies on
the date of such replacement, shall be equal to the Specified Amount of
such former Component Currency divided by the number of currencies into
which such Component Currency was divided, and such amounts shall
thereafter be Specified Amounts and such currencies shall thereafter be
Component Currencies.
(c) All decisions and determinations of the Trustee regarding
the Market Exchange Rate and the ECU Exchange Rate shall, in the absence of
manifest error, be conclusive for all purposes and irrevocably binding upon the
Issuer and all Holders.
SECTION 11.12. JUDGMENT CURRENCY. The obligation of the Issuer
in respect of any sum due to any securityholder hereunder shall,
notwithstanding any judgment in a currency (the "Judgment Currency") other than
the currency in which the payment is due (the "Required
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Currency"), be discharged only to the extent that on the Business Day following
receipt by such securityholder or any sum adjudged to be so due in the Judgment
Currency, such securityholder may in accordance with normal banking procedures
purchase the amount originally due to such securityholder in the Required
Currency with the Judgment Currency; if the amount of the Required Currency so
purchased is less than the sum originally due to such securityholder in the
Required Currency, the Issuer agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify such securityholder against
such loss, and if the amount of the Required Currency so purchased exceeds the
sum originally due to such securityholder, such securityholder agrees to remit
to the Issuer such excess.
SECTION 11.13. UNREGISTERED SECURITIES. Any provision in this
Indenture notwithstanding, it is understood and agreed that no Unregistered
Securities shall be issued or authenticated hereunder in the United States so
long as the Indenture remains subject to mandatory provisions of United States
law prohibiting the issuance of Unregistered Securities.
ARTICLE XII.
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1. APPLICABILITY OF ARTICLE. The provisions of this
Article shall be applicable to the Securities of any series which are
redeemable before their maturity or to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by Section
2.3 for Securities of such series.
SECTION 12.2. NOTICE OF FULL AND PARTIAL REDEMPTION; PARTIAL
REDEMPTIONS. Notice of redemption to the Holders of Registered Securities of
any series to be redeemed as a whole or in part at the option of the Issuer
shall be given by mailing notice of such redemption by first class mail,
postage prepaid, at least 30 days and not more than 60 days prior to the date
fixed for redemption to such Holders of Securities of such series at their last
addresses as they shall appear upon the registry books. Notice of redemption
to the Holders of Unregistered Securities to be redeemed as a whole or in part,
who have filed their names and addresses with the Trustee pursuant to Section
4.4(C)(ii), shall be given by mailing notice of such redemption, by first class
mail, postage prepaid, at least 30 days and not more than 60 days prior to the
date fixed for redemption, to such Holders at such addresses as were so
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furnished to the Trustee (and, in the case of any such notice given by the
Issuer, the Trustee shall make such information available to the Issuer for
such purpose). Notice of redemption to all other holders of Unregistered
Securities shall be published in an Authorized Newspaper in the Borough of
Manhattan, The City of New York and in an Authorized Newspaper in London (and,
if required by Section 3.8, in an Authorized Newspaper in Luxembourg), in each
case, once in each of three successive calendar weeks, the first publication to
be not less than 30 nor more than 60 days prior to the date fixed for
redemption. Any notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
receives the notice. Failure to give notice by mail, or any defect in the
notice to the Holder of any Security of a series designated for redemption as a
whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify (i) the
principal amount of each Security of such series held by such Holder to be
redeemed, (ii) the date fixed for redemption, (iii) the redemption price, (iv)
the place or places of payment, (v) that payment will be made upon presentation
and surrender of such Securities and, in the case of Securities with Coupons
attached thereto, of all Coupons appertaining thereto maturing after the date
fixed for redemption, (vi) that such redemption is pursuant to the mandatory or
optional sinking fund, or both, if such be the case, (vii) that interest
accrued to the date fixed for redemption will be paid as specified in such
notice and (viii) that on and after said date interest thereon or on the
portions thereof to be redeemed will cease to accrue. In case any Security of
a series is to be redeemed in part only the notice of redemption shall state
the portion of the principal amount thereof to be redeemed and shall state that
on and after the date fixed for redemption, upon surrender of such Security, a
new Security or Securities of such series in principal amount equal to the
unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be
redeemed at the option of the Issuer shall be given by the Issuer or, at the
Issuer's request, by the Trustee in the name and at the expense of the Issuer.
On or before the redemption date specified in the notice of
redemption given as provided in this Section, the Issuer will deposit with the
Trustee or with one or more paying agents (or, if the Issuer is acting as its
own paying agent, set aside, segregate and hold in trust as provided in
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Section 3.4) an amount of money sufficient to redeem on the redemption date all
the Securities of such series so called for redemption at the appropriate
redemption price, together with accrued interest to the date fixed for
redemption. The election of the Issuer to redeem any Securities shall be
evidenced by a Board Resolution in addition to any other requirements set forth
hereunder. If less than all the outstanding Securities of a series are to be
redeemed, the Issuer will deliver to the Trustee at least 70 days (or such
shorter period as shall be acceptable to the Trustee for its convenience) prior
to the date fixed for redemption an Officers' Certificate stating the aggregate
principal amount of Securities to be redeemed.
If less than all the Securities of a series are to be redeemed,
the Trustee shall, subject to Section 12.4, select by lot Securities of such
Series to be redeemed in whole or in part. Securities may be redeemed in part
in multiples equal to the minimum authorized denomination for Securities of
such series or any multiple thereof. The Trustee shall promptly notify the
Issuer in writing of the Securities of such series selected for redemption and,
in the case of any Securities of such series 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 of any series shall relate, in the case of any
Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security which has been or is to be redeemed.
SECTION 12.3. PAYMENT OF SECURITIES CALLED FOR REDEMPTION. If
notice of redemption has been given as above provided, the Securities or
portions of Securities specified in such notice shall become due and payable on
the date and at the place stated in such notice at the applicable redemption
price, together with interest accrued to the date fixed for redemption, and on
and after said date (unless the Issuer shall default in the payment of such
Securities at the redemption price, together with interest accrued to said
date) interest on the Securities or portions of Securities so called for
redemption shall cease to accrue, and the unmatured Coupons, if any,
appertaining thereto shall be void, and except as provided in Sections 6.5 and
10.5, such Securities shall cease from and after the date fixed for redemption
to be entitled to any benefit or security under this Indenture, and the Holders
thereof shall have no right in respect of such Securities except the right to
receive the redemption price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such Securities at a place of
payment specified in said notice,
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together with all Coupons, if any, appertaining thereto maturing after the date
fixed for redemption, said Securities or the specified portions thereof shall
be paid and redeemed by the Issuer at the applicable redemption price, together
with interest accrued thereon to the date fixed for redemption; PROVIDED that
payment of interest becoming due on or prior to the date fixed for redemption
shall be payable in the case of Securities with Coupons attached thereto, to
the bearers of the Coupons for such interest upon surrender thereof, and in the
case of Registered Securities, to the Holders of such Registered Securities
registered as such on the relevant record date subject to the terms and
provisions of Section 2.4 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall,until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by the Security.
If any Security with Coupons attached thereto is surrendered for
redemption and is not accompanied by all appurtenant Coupons maturing after the
date fixed for redemption, the surrender of such missing Coupon or Coupons may
be waived by the Issuer and the Trustee, if there be furnished to each of them
security or indemnity as they may require to save each of them harmless.
Upon presentation of any Security redeemed in part only, the
Issuer shall execute and the Trustee shall authenticate and deliver to or on
the order of the Holder thereof, at the expense of the Issuer, a new Security
or Securities of such series, of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
SECTION 12.4. EXCLUSION OF CERTAIN SECURITIES FROM ELIGIBILITY
FOR SELECTION FOR REDEMPTION. Securities shall be excluded from eligibility
for selection for redemption if they are identified by registration and
certificate number in a written statement signed by an authorized officer of
the Issuer and delivered to the Trustee at least 40 days prior to the last date
on which notice of redemption may be given as being owned of record and
beneficially by, and not pledged or hypothecated by either (a) the issuer or
(b) an entity specifically identified in such written statement directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuer.
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SECTION 12.5. MANDATORY AND OPTIONAL SINKING FUNDS. 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". The date on which a sinking fund payment is to be made is
herein referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Issuer may at its
option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for Securities of such
series (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Issuer and delivered to the Trustee for
cancellation pursuant to Section 2.10, (b) receive credit for optional sinking
fund payments (not previously so credited) made pursuant to this Section, or
(c) receive credit for Securities of such series (not previously so credited)
redeemed by the Issuer through any optional redemption provision contained in
the terms of such series. Securities so delivered or credited shall be
received or credited by the Trustee at the sinking fund redemption price
specified in such Securities.
On or before the forty-fifth day next preceding each sinking fund
payment date for any series, the Issuer will deliver to the Trustee a written
statement signed by an authorized officer of the Issuer (a) specifying the
portion of the mandatory sinking fund payment to be satisfied by payment of
cash and the portion to be satisfied by credit of Securities of such series,
(b) stating that none of the Securities of such series has theretofore been so
credited, (c) stating that no defaults in the payment of interest or Events of
Default with respect to such series have occurred (which have not been waived
or cured) and are continuing and (d) stating whether or not the Issuer intends
to exercise its right to make an optional sinking fund payment with respect to
such series and, if so, specifying the amount of such optional sinking fund
payment which the Issuer intends to pay on or before the next succeeding
sinking fund payment date. Any Securities of such series to be credited and
required to be delivered to the Trustee in order for the Issuer to be entitled
to credit therefor as aforesaid which have not theretofore been delivered to
the Trustee shall be delivered for cancellation pursuant to Section 2.10 to the
Trustee with such written statement (or reasonably promptly
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thereafter if acceptable to the Trustee). Such written statement shall be
irrevocable and upon its receipt by the Trustee the Issuer shall become
unconditionally obligated to make all the cash payments or payments therein
referred to, if any, on or before the next succeeding sinking fund payment
date. Failure of the Issuer, on or before any such forty-fifth day, to deliver
such written statement and Securities specified in this paragraph, if any,
shall not constitute a default but shall constitute, on and as of such date,
the irrevocable election of the Issuer (i) that the mandatory sinking fund
payment for such series due on the next succeeding sinking fund payment date
shall be paid entirely in cash without the option to deliver or credit
Securities of such series in respect thereof and (ii) that the Issuer will make
no optional sinking fund payment with respect to such series as provided in
this Section.
If the sinking fund payment or payments (mandatory or optional or
both) to be made in cash on the next succeeding sinking fund payment date plus
any unused balance of any preceding sinking fund payments made in cash shall
exceed $50,000 (or a lesser sum if the Issuer shall so request) with respect to
the Securities of any particular series, such cash shall be applied on the next
succeeding sinking fund payment date to the redemption of Securities of such
series at the sinking fund redemption price together with accrued interest to
the date fixed for redemption. If such amount shall be $50,000 or less and the
Issuer makes no such request then it shall be carried over and invested by the
Trustee in mutual or trust fund institutions which are registered with the
Commission under the Securities Act of 1933, as amended, and the Investment
Company Act of 1940, as amended, and which have underlying investments
consisting solely of and limited to United States Government obligations until
a sum in excess of $50,000 is available. The Trustee, upon written instruction
from the Issuer, shall select, in the manner provided in Section 12.2, for
redemption on such sinking fund payment date a specified principal amount of
Securities of such series then Outstanding to absorb said cash, as nearly as
may be, and shall (if requested in writing by the Issuer) inform the Issuer of
the serial numbers of the Securities of such series (or portions thereof) so
selected. Securities of any series which are (a) owned by the Issuer or are
certified by the Issuer by means of an Officers' Certificate to be owned by an
entity directly or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer, as shown by the Security register, and
not actually known to the Trustee to have been pledged or hypothecated by the
Issuer or any such entity; or (b) identified in an Officers' Certificate at
least 60 days
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prior to the sinking fund payment date as being beneficially owned by, and not
pledged or hypothecated by, the Issuer or an entity directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Issuer shall be excluded from Securities of such series eligible for
selection for redemption. The Trustee, in the name and at the expense of the
Issuer (or the Issuer, if it shall so request the Trustee in writing) shall
cause notice of redemption of the Securities of such series to be given in
substantially the manner provided in Section 12.2 (and with the effect provided
in Section 12.3) for the redemption of Securities of such series in part at the
option of the Issuer. The amount of any sinking fund payments not so applied
or allocated to the redemption of Securities of such series shall be added to
the next cash sinking fund payment for such series and, together with such
payment, shall be applied in accordance with the provisions of this Section.
Any and all sinking fund moneys held on the stated maturity date of the
Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular
Securities of such series shall be applied, together with other moneys, if
necessary, sufficient for the purpose, to the payment of the principal of, and
interest on, the Securities of such series at maturity.
At least one day before each sinking fund payment date, the Issuer
shall pay to the Trustee in cash or shall otherwise provide for the payment of
all interest accrued to the date fixed for redemption on Securities to be
redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any
Securities of a series with sinking fund moneys or mail any notice of
redemption of Securities for such series by operation of the sinking fund
during the continuance of a default in payment of interest on such Securities
or of any Event of Default except that, where the mailing of notice of
redemption of any Securities shall theretofore have been made, the Trustee
shall redeem or cause to be redeemed such Securities, provided that it shall
have received from the Issuer a sum sufficient for such redemption. Except as
aforesaid, any moneys in the sinking fund for such series at the time when any
such default or Event of Default shall occur, and any moneys thereafter paid
into the sinking fund, shall, during the continuance of such default or Event
of Default, be deemed to have been collected under Article Five and held for
the payment of all such Securities. In case such Event of Default shall have
been waived as provided in Section 5.10 or the default cured on or before the
sixtieth day preceding the sinking fund
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payment date in any year, such moneys shall thereafter be applied on the next
succeeding sinking fund payment date in accordance with this Section to the
redemption of such Securities.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of March 15, 1996.
RUBBERMAID INCORPORATED
By___________________________
Name:
Title:
[CORPORATE SEAL]
Attest:
By________________________
Name:
Title:
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION
By___________________________
Name:
Title:
[CORPORATE SEAL]
Attest:
By________________________
Name:
Title:
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EXHIBIT 23.2
The Board of Directors:
Rubbermaid Incorporated:
We consent to the use of our audit report dated January 31, 1996 on the
consolidated financial statements of Rubbermaid Incorporated and subsidiaries
as of December 31, 1994 and 1995, and for each of the years in the three-year
period then ended incorporated herein by reference, and to the reference to our
firm under the heading "Experts" in the prospectus.
KPMG Peat Marwick LLP
Cleveland, Ohio
March 6, 1996
<PAGE> 1
EXHIBIT 23.3
The Board of Directors:
Rubbermaid Incorporated:
Re: Registration Statement on Form S-3 - filed March 6, 1996
With respect to the subject registration statement, we acknowledge our
awareness of the incorporation by reference therein of our reports dated
October 13, 1995, July 14, 1995, and April 13, 1995 related to our reviews of
interim financial information.
Pursuant to Rule 436(c) under the Securities Act of 1933, such reports are not
considered part of a registration statement prepared or certified by an
accountant or a report prepared or certified by an accountant within the
meaning of sections 7 and 11 of the Act.
Very truly yours,
KPMG Peat Marwick LLP
Cleveland, Ohio
March 6, 1996
