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As filed with the Securities and Exchange Commission on February 14, 2000.
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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SAFECO CORPORATION
(Exact name of registrant as specified in its charter)
Washington 91-0742146
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
4333 Brooklyn Avenue N.E.
Seattle, Washington 98185
(206) 545-5000
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
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James W. Ruddy
Senior Vice President and General Counsel
SAFECO Corporation
4333 Brooklyn Avenue N.E.
Seattle, Washington 98185
(206) 545-5000
(Name, address and telephone number of agent for service)
Copies to:
Andrew Bor Edward S. Best
Perkins Coie LLP Mayer, Brown & Platt
1201 Third Avenue, 48th Floor 190 South LaSalle Street
Seattle, Washington 98101-3099 Chicago, Illinois 60603
(206) 583-8888 (312) 782-0600
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, 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, 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.[ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed maximum Proposed maximum
Title of each class of Amount to be offering price aggregate Amount of
securities to be registered registered(1) per unit(2) offering price(1)(2) registration fee
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt securities.............. $500,000,000 100% $500,000,000 $132,000
====================================================================================================================
</TABLE>
(1) The initial public offering price of any debt securities denominated in
any foreign currencies or currency units shall be their U.S. dollar
equivalent based on the prevailing exchange rates at the respective
times the debt securities are first offered. For debt securities issued
with an original issue discount, the amount to be registered is
calculated as the initial accreted value of these debt securities.
(2) Estimated solely for purposes of calculating the registration fee
pursuant to Rule 457.
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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The information in this Prospectus is not complete and may be changed.
We may not sell these securities until the Registration Statement filed
with the Securities and Exchange Commission is effective. This
Prospectus is not an offer to sell these securities and it is not
soliciting an offer to buy these securities in any state where the offer
or sale is not permitted.
SUBJECT TO COMPLETION, DATED FEBRUARY 14, 2000.
PROSPECTUS
$500,000,000
safeco logo
Debt Securities
We will provide specific terms of these securities in supplements to this
prospectus. You should read this prospectus and any supplement carefully before
you invest.
THESE SECURITIES HAVE NOT BEEN APPROVED BY THE SECURITIES AND EXCHANGE
COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAVE THESE ORGANIZATIONS
DETERMINED THAT THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this prospectus is , 2000.
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FORWARD-LOOKING INFORMATION
This Prospectus includes "forward-looking statements" within the meaning of
the Private Securities Litigation Reform Act of 1995 (the "PSLRA"). The PSLRA
provides a "safe harbor" for such statements to encourage companies to provide
prospective information about themselves so long as such information is
identified as forward-looking and is accompanied by meaningful cautionary
statements identifying important factors that could cause actual results to
differ materially from those projected in the information. All statements other
than statements of historical fact made in this Prospectus or incorporated by
reference are forward-looking. In particular, the statements regarding industry
prospects and our future results of operations or financial position are
forward-looking statements. Forward-looking statements represent management's
current expectations and are inherently uncertain. Investors are warned that our
actual results may differ significantly from management's expectations and,
therefore, from the results discussed in such forward-looking statements.
Factors that might cause such differences include, but are not limited to, the
factors described in the prospectus supplement.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the Securities and Exchange Commission. Our SEC filings are
available to the public over the Internet at the SEC's web site at
http://www.sec.gov. You may also read and copy any document we file with the SEC
at its public reference facilities in Washington, D.C., New York, New York or
Chicago, Illinois. You can also obtain copies of the documents at prescribed
rates by writing to the Public Reference Section of the SEC at 450 Fifth Street,
N.W., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further
information on the operation of the public reference facilities.
We are allowed to "incorporate by reference" the information we file with
the SEC, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus, and information that we file subsequently
with the SEC will automatically update and supersede the information included
and/or incorporated by reference in this prospectus. We incorporate by reference
the documents listed below and any future filings made with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as
amended, after the initial filing of the registration statement that contains
this prospectus and prior to the time that the offering of the securities is
completed:
- Annual Report on Form 10-K for the year ended December 31, 1998;
- Quarterly Reports on Form 10-Q for the quarters ended March 31, 1999,
June 30, 1999 and September 30, 1999;
- Current Reports on Form 8-K filed May 6, 1999, July 14, 1999, September
29, 1999 and January 26, 2000.
You may request a copy of these filings (other than exhibits, unless that
exhibit is specifically incorporated by reference into that filing) at no cost,
by writing or telephoning us at the following address:
SAFECO Investor Relations
SAFECO Corporation
SAFECO Plaza
4333 Brooklyn Avenue N.E.
Seattle, Washington 98185
(206) 545-5000
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information. We are not making an
offer of these securities in any state where the state does not permit an offer.
You
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should not assume that the information in this prospectus is accurate as of any
date other than the date on the front of the prospectus.
SAFECO CORPORATION
SAFECO Corporation ("SAFECO"), through its operating subsidiaries, is one
of the largest diversified financial services companies in the United States.
Our property and casualty insurance companies provide a broad range of personal
and commercial property and casualty insurance to individuals, businesses,
government entities and associations. SAFECO companies have underwritten
property and casualty insurance since the 1920s. Through our insurance
subsidiaries, we are licensed as a property and casualty insurer in all 50
states and the District of Columbia, with a significant presence on the West
Coast and in the Midwest, and are one of the largest writers of small business
commercial insurance in the United States.
Our life insurance subsidiaries offer annuities, retirement services and
group life and health and individual life insurance. Our other subsidiaries are
engaged in commercial lending and leasing, asset management and insurance agency
and financial services distribution operations.
Our principal executive offices are located at SAFECO Plaza, 4333 Brooklyn
Avenue N.E., Seattle, Washington 98185, and our telephone number is (206)
545-5000. We were incorporated in Washington in 1929.
USE OF PROCEEDS
Unless we otherwise specify in a prospectus supplement, the net proceeds we
receive from the sale of the debt securities offered under this prospectus and
the accompanying prospectus supplement will be used for general corporate
purposes. The net proceeds may be invested temporarily or applied to repay
short-term debt until they are used for their stated purpose.
RATIO OF EARNINGS TO FIXED CHARGES
For purposes of computing the ratios of earnings to fixed charges, earnings
represent net income before extraordinary items and cumulative effect of changes
in accounting principles, plus applicable income taxes and fixed charges. Fixed
charges include all interest expense, distributions on capital securities and
the proportion deemed representative of the interest factor of rent expense. The
following table sets forth our ratios of earnings to fixed charges:
<TABLE>
<CAPTION>
FOR THE YEAR ENDED DECEMBER 31,
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1999 1998 1997 1996 1995
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<S> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges........................ 2.2 2.7 5.1 8.6 6.7
</TABLE>
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the debt securities describes
general terms that apply to the debt securities. The particular terms of any
debt securities will be described more specifically in each prospectus
supplement (and pricing supplement, where applicable) relating to those debt
securities.
The debt securities will be issued under an indenture dated as of
, 2000, between us and The Chase Manhattan Bank, as trustee.
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We summarize the indenture below. Since this is only a summary, it does not
contain all of the information that may be important to you. A copy of the
entire indenture is an exhibit to the registration statement of which this
prospectus is a part. When we make parenthetical section references in this
prospectus, those are references to sections of the indenture. We incorporate
the entire indenture by reference, and encourage you to read the indenture.
GENERAL
The indenture does not limit the aggregate principal amount of debt
securities we may issue and provides that we may issue debt securities
thereunder from time to time in one or more series. (Section 3.1) The indenture
does not limit the amount of other indebtedness or debt securities, other than
certain secured indebtedness as described below, which we or our subsidiaries
may issue. Under the indenture, the terms of the debt securities of any series
may differ and we, without the consent of the holders of the debt securities of
any series, may reopen a previous series of debt securities and issue additional
debt securities of the series or establish additional terms of the series.
(Section 3.1)
Unless otherwise provided in a prospectus supplement, the debt securities
will be our unsecured obligations and will rank equally with all of our other
unsecured and unsubordinated indebtedness.
Because we are a holding company, our rights and the rights of our
creditors (including the holders of debt securities) and stockholders to
participate in any distribution of assets of any subsidiary upon the
subsidiary's liquidation or reorganization or otherwise would be subject to the
prior claims of the subsidiary's creditors, except to the extent that we may be
a creditor with recognized claims against the subsidiary. The right of our
creditors (including the holders of debt securities) to participate in the
distribution of stock owned by us in certain of our subsidiaries, including our
insurance subsidiaries, may also be subject to approval by certain insurance
regulatory authorities having jurisdiction over such subsidiaries.
Each prospectus supplement will describe the following terms of the debt
securities offered by it:
- the title of the debt securities;
- any limit on the aggregate principal amount of the debt securities or the
series of which they are a part;
- the currency or currencies, or composite currencies, in which the debt
securities will be denominated and in which we will make payments on the
debt securities;
- the date or dates on which we must pay principal;
- the rate or rates at which the debt securities will bear interest or the
manner in which interest will be determined, if any interest is payable;
- the date or dates from which any interest will accrue, the date or dates
on which we must pay interest and the record date for determining who is
entitled to any interest payment;
- the place or places where we must pay the debt securities and where any
debt securities issued in registered form may be sent for transfer or
exchange;
- the terms and conditions on which we may, or may be required to, redeem
the debt securities;
- the terms and conditions of any sinking fund;
- if other than denominations of $1,000, the denominations in which we may
issue the debt securities;
- the amount we will pay if the maturity of the debt securities is
accelerated;
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- whether we will issue the debt securities in the form of one or more
global securities and, if so, the identity of the depositary for the
global security or securities;
- any addition to or changes in the events of default or covenants that
apply to the debt securities;
- whether the debt securities will be defeasible; and
- any other terms of the debt securities and any other deletions from or
modifications or additions to the indenture in respect of the debt
securities. (Section 3.1)
Unless otherwise stated in the prospectus supplement, we will pay
principal, premium, interest and additional amounts, if any, on the debt
securities at the office or agency we maintain for that purpose (initially the
corporate trust office of the trustee). We may pay interest on debt securities
issued in registered form by check mailed to the address of the persons entitled
to the payments or we may pay by transfer to their U.S. bank accounts. Interest
on debt securities issued in registered form will be payable on any interest
payment date to the registered owners of the debt securities at the close of
business on the regular record date for the interest payment date. We will name
in the prospectus supplement all paying agents we initially designate for the
debt securities. We may designate additional paying agents, rescind the
designation of any paying agent or approve a change in the office through which
any paying agent acts, but we must maintain a paying agent in each place where
payments on the debt securities are payable. (Sections 3.7 and 10.2)
Unless otherwise stated in the prospectus supplement, the debt securities
may be presented for transfer (duly endorsed or accompanied by a written
instrument of transfer, if we or the security registrar require) or exchanged
for other debt securities of the same series (containing identical terms and
provisions, in any authorized denominations, and in the same aggregate principal
amount) at the office or agency we maintain for that purpose (initially the
corporate trust office of the trustee). There will be no service charge for any
transfer or exchange, but we may require payment sufficient to cover any tax or
other governmental charge or expenses payable in connection with the transfer or
exchange. We will not be required to (1) issue, register the transfer of, or
exchange, debt securities during a period beginning at the opening of business
15 days before the day of mailing of a notice of redemption of any such debt
securities and ending at the close of business on the day of such mailing or (2)
register the transfer of or exchange any debt security selected for redemption
in whole or in part, except the unredeemed portion of any debt security being
redeemed in part. (Section 3.5) We have appointed the trustee as security
registrar. Any transfer agent (in addition to the security registrar) we
initially designate for any debt securities will be named in the related
prospectus supplement. We may designate additional transfer agents, rescind the
designation of any transfer agent or approve a change in the office through
which any transfer agent acts, but we must maintain a transfer agent in each
place where any payments on the debt securities are payable. (Section 10.2)
Unless otherwise stated in the prospectus supplement, we will issue the
debt securities only in fully registered form, without coupons, in minimum
denominations of $1,000 and integral multiples of $1,000. (Section 3.2) The debt
securities may be represented in whole or in part by one or more global debt
securities. Each global security will be registered in the name of a depositary
or its nominee and the global security will bear a legend regarding the
restrictions on exchanges and registration of transfer. Interests in a global
security will be shown on records maintained by the depositary and its
participants, and transfers of those interests will be made as described below.
We may issue the debt securities as original issue discount securities
(bearing no interest or bearing interest at a rate which at the time of issuance
is below market rates) to be sold at a substantial discount below their
principal amount. We will describe certain special U.S. federal income tax and
other considerations applicable to any debt securities that are issued as
original issue discount securities in the applicable prospectus supplement.
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If the purchase price of any debt securities is payable in one or more
foreign currencies or currency units, or if any debt securities are denominated
in one or more foreign currencies or currency units, or if any payments on the
debt securities are payable in one or more foreign currencies or currency units,
we will describe the restrictions, elections, certain U. S. federal income tax
considerations, specific terms and other information about the debt securities
and the foreign currency or currency units in the prospectus supplement.
We will comply with Section 14(e) under the Exchange Act, and any other
tender offer rules under the Exchange Act that may then be applicable, in
connection with any obligation to purchase debt securities at the option of the
holders. Any such obligation applicable to a series of debt securities will be
described in the related prospectus supplement.
Unless otherwise described in a prospectus supplement relating to any debt
securities, other than as described below under "-- Limitation on Mortgages and
Liens," the indenture does not limit our ability to incur debt or give holders
of debt securities protection in the event of a sudden and significant decline
in our credit quality or a takeover, recapitalization or highly leveraged or
similar transaction involving us. Accordingly, we could in the future enter into
transactions that could increase the amount of indebtedness outstanding at that
time or otherwise affect our capital structure or credit rating. You should
refer to the prospectus supplement relating to a particular series of debt
securities for information regarding any changes in the events of default
described below or covenants contained in the indenture, including any addition
of a covenant or other provisions providing event risk or similar protection.
GLOBAL SECURITIES
The debt securities of a series may be issued in whole or in part in the
form of one or more global debt securities that will be deposited with a
depositary or its nominee identified in the series prospectus supplement.
The specific terms of the depositary arrangement covering debt securities
will be described in the prospectus supplement relating to that series. We
anticipate that the following provisions will apply to all depositary
arrangements.
Upon the issuance of a global security, the depositary for the global
security or its nominee will credit, to accounts in its book-entry registration
and transfer system, the principal amounts of the debt securities represented by
the global security. These accounts will be designated by the underwriters or
agents with respect to such debt securities or by us if such debt securities are
offered and sold directly by us. Only institutions that have accounts with the
depositary or its nominee, and persons who hold beneficial interests through
those participants, may own beneficial interests in a global security. Ownership
of beneficial interests in a global security will be shown only on, and the
transfer of those ownership interests will be effected only through, records
maintained by the depositary, its nominee or any such participants. The laws of
some states require that certain purchasers of securities take physical delivery
of such securities in definitive form. These laws may prevent you from
transferring your beneficial interest in a global security.
As long as the depositary or its nominee is the registered owner of a
global security, the depositary or nominee will be considered the sole owner or
holder of the debt securities represented by the global security. Except as
described below, owners of beneficial interests in a global security will not be
entitled to have debt securities registered in their names and will not be
entitled to receive physical delivery of the debt securities in definitive form.
We will make all payments of principal of, any premium and interest on, and
any additional amounts with respect to, debt securities issued as global
securities to the depositary or its nominee. Neither we nor the trustee, any
paying agent or the security registrar assume any responsibility or liability
for any aspect of the depositary's or any participant's records relating to, or
for payments made on account of, beneficial interests in a global security.
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We expect that the depositary for a series of debt securities or its
nominee, upon receipt of any payment with respect to such debt securities, will
credit immediately participants' accounts with payments in amounts proportionate
to their respective beneficial interest in the principal amount of the global
security for such debt securities as shown on the records of such depositary or
its nominee. We also expect that payments by participants to owners of
beneficial interests in such global security held through such participants will
be governed by standing instructions and customary practices, as is now the case
with securities held for the accounts of customers registered in "street name,"
and will be the responsibility of such participants.
The indenture provides that if (1) the depositary notifies us that it is
unwilling or unable to continue as depositary for a series of debt securities,
or if the depositary is no longer legally qualified to serve in that capacity,
and we have not appointed a successor depositary within 90 days of written
notice, (2) we determine that a series of debt securities will no longer be
represented by global securities and we execute and deliver an order to that
effect to the trustee, or (3) an event of default with respect to a series of
debt securities occurs and continues, the global securities for that series will
be exchanged for registered debt securities in definitive form. The definitive
debt securities will be registered in the name or names the depositary instructs
the trustee. (Section 3.5) We expect that these instructions may be based upon
directions the depositary receives from participants with respect to ownership
of beneficial interests in global securities.
CERTAIN RESTRICTIONS
Limitations on Mortgages and Liens. Neither we nor any of our restricted
subsidiaries (as defined below) will be permitted to issue, assume or guarantee
certain types of secured debt, without securing the debt securities on an equal
and ratable basis with any such debt. These limits apply to debt secured by
mortgages, pledges, liens and other encumbrances, which together we refer to as
liens. These limits will not apply to:
- liens that existed on the date of the indenture;
- liens on real estate (including liens that existed on property when we
acquired it) not exceeding 100% of the fair value of the property at the
time the debt is incurred;
- liens arising from the acquisition of a business as a going concern or to
which assets we acquire in satisfaction of secured debt are subject;
- liens to secure extensions, renewals and replacements of debt secured by
any of the liens referred to above, without increasing the amount of the
debt; or
- certain mechanics, landlords, tax or other statutory liens, including
liens and deposits required or provided for under state insurance laws
and similar regulatory statutes.
Limitations on Sales of Capital Stock of Restricted Subsidiaries. Neither
we nor any of our restricted subsidiaries will be permitted to issue, sell,
transfer or dispose of (except to one of our restricted subsidiaries) capital
stock of a restricted subsidiary, unless we dispose of the entire capital stock
of the subsidiary at the same time for cash or property which, in the opinion of
our Board of Directors, is at least equal to the fair value of the capital
stock.
For the purposes of the indenture, "restricted subsidiary" means a
subsidiary, including subsidiaries of any subsidiary, which meets any of the
following conditions:
(1) Our and our other subsidiaries' investments in and advances to the
subsidiary exceed 10% of our total consolidated assets as of the end of the
most recently completed fiscal year;
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(2) Our and our other subsidiaries' proportionate share of the total
assets (after inter-company eliminations) of the subsidiary exceeds 10% of
our total consolidated assets as of the end of the most recently completed
fiscal year; or
(3) Our and our other subsidiaries' equity in the income from
continuing operations before income taxes, extraordinary items and
cumulative effect of a change in accounting principle of the subsidiary
exceeds 10% of such income for us and our consolidated subsidiaries for the
most recently completed fiscal year.
For purposes of making the income test in clause (3) of the preceding
sentence, when a loss has been incurred by either us and our subsidiaries
consolidated or the tested subsidiary, but not both, the equity in the income or
loss of the tested subsidiary will be excluded from our consolidated income for
purposes of the computation and if our consolidated income for the most recent
fiscal year is at least 10% lower than the average of the income for the last
five fiscal years, the average income will be substituted for purposes of the
computation and any loss years will be omitted for purposes of computing average
income.
CONSOLIDATION, MERGER AND SALE OF ASSETS
We may not consolidate with or merge into any other person or convey or
transfer or lease our properties and assets substantially as an entirety to any
person unless:
(1) if we consolidate with or merge into another corporation or convey
or transfer our properties and assets substantially as an entirety to any
person, the successor is organized under the laws of the United States, or
any state, and assumes our obligations under the debt securities;
(2) immediately after the transaction, no event of default occurs and
continues; and
(3) we meet certain other conditions specified in the indenture.
MODIFICATION AND WAIVER
We and the trustee may modify and amend the indenture with the consent of
the holders of a majority in aggregate principal amount of the outstanding debt
securities of each affected series. However, without the consent of each holder,
we cannot modify or amend the indenture in a way that would:
- change the stated maturity of the principal of, or any installment of
principal or interest on, any debt security;
- reduce the principal or interest on any debt security;
- change the place or currency of payment of principal or interest on any
debt security;
- impair the right to sue to enforce any payment on any debt security after
it is due; or
- reduce the percentage in principal amount of outstanding debt securities
necessary to modify or amend the indenture, to waive compliance with
certain provisions of the indenture or to waive certain defaults.
The holders of a majority in aggregate principal amount of outstanding debt
securities may waive our compliance with certain restrictive covenants of the
indenture. The holders of a majority in principal amount of the outstanding debt
securities of any series may waive any past default under the indenture with
respect to outstanding debt securities of that series, which will be binding on
all holders of debt securities of that series, except a default in the payment
of principal or interest on any debt security of that series or in respect of a
provision of the indenture that cannot be modified or amended without each
holder's consent.
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EVENTS OF DEFAULT
Each of the following will be an event of default:
(1) default for 30 days in the payment of any interest;
(2) default in the payment of principal;
(3) default in the performance of any other covenant in the indenture
for 60 days after written notice;
(4) a failure to pay when due or a default that results in the
acceleration of maturity of any other debt of ours or our restricted
subsidiaries in an aggregate amount of $25 million or more, unless (a) the
acceleration is rescinded, stayed or annulled, or (b) the debt has been
discharged or, in the case of debt we are contesting in good faith, we set
aside a bond, letter of credit, escrow deposit or other cash equivalent
sufficient to discharge the debt within 10 days after written notice of
default is given to us; and
(5) certain events in bankruptcy, insolvency or reorganization.
We are required to furnish the trustee annually a statement as to our
fulfillment of our obligations under the indenture. The trustee may withhold
notice of any default to the holders of debt securities of any series (except a
default on principal or interest payments on debt securities of that series) if
it considers it in the interest of the holders to do so.
If an event of default occurs and continues, either the trustee or the
holders of not less than 25% in principal amount of the outstanding debt
securities of the series in default may declare the principal amount immediately
due and payable by written notice to us (and to the trustee if given by the
holders). Upon any such declaration, the principal amount will become
immediately due and payable. However, the holders of a majority in principal
amount of the outstanding debt securities of that series may, under certain
circumstances, rescind and annul the acceleration.
Except for certain duties in case of an event of default, the trustee is
not required to exercise any of its rights or powers at the request or direction
of any of the holders, unless the holders offer the trustee reasonable security
or indemnity. If the holders provide this security or indemnity, the holders of
a majority in principal amount of the outstanding debt securities of a series
may direct the time, method and place of conducting any proceeding for any
remedy available to the trustee, or exercising any trust or powers conferred on
the trustee with respect to the debt securities of that series.
No holder of a debt security may bring any lawsuit or other proceeding with
respect to the indenture or for any remedy under the indenture, unless (a) the
holder first gives the trustee written notice of a continuing event of default,
(b) the holders of at least 25% in principal amount of the outstanding debt
securities of the series in default give the trustee a written request to bring
the proceeding and offer the trustee reasonable security or indemnity, (c) the
trustee fails to institute the proceeding within 60 days of the written request
and has not received from holders of a majority in principal amount of the
outstanding debt securities of the series in default a direction inconsistent
with that request. However, the holder of any debt security has the absolute
right to receive payment of the principal of and any interest on the debt
security on or after the stated due dates and to take any action to enforce any
such payment.
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
We may discharge certain obligations to holders of any series of debt
securities that have not already been delivered to the trustee for cancellation
and that either have become due and payable or will become due and payable
within one year (or scheduled for redemption within one year) by depositing with
the trustee, in trust, funds in U.S. dollars or in the foreign currency in which
such debt securities are payable in an amount sufficient to pay the principal
and any premium, interest and additional amounts on such
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debt securities to the date of deposit (if the debt securities have become due
and payable) or to the maturity date, as the case may be. (Section 4.1)
Unless a prospectus supplement states that the following provisions do not
apply to the debt securities of that series, we may elect either (1) to defease
and be discharged from any and all obligations with respect to such debt
securities (except for, among other things, the obligation to pay additional
amounts, if any, upon the occurrence of certain events of taxation, assessment
or governmental charge with respect to payments on the debt securities and other
obligations to register the transfer or exchange of such debt securities, to
replace temporary or mutilated, destroyed, lost or stolen debt securities, to
maintain an office or agency with respect to such debt securities and to hold
moneys for payment in trust) ("defeasance") or (2) to be released from our
obligations under the indenture with respect to the debt securities under
certain covenants as described in the prospectus supplement, and our failure to
comply with these obligations will not constitute an event of default with
respect to such debt securities ("covenant defeasance"). Defeasance or covenant
defeasance is conditioned on our irrevocable deposit with the trustee, in trust,
of an amount in cash or government securities, or both, sufficient to pay the
principal of, any premium and interest on, and any additional amounts with
respect to, the debt securities on the scheduled due dates. (Section 4.2)
Such a trust may be established only if, among other things, (1) the
applicable defeasance or covenant defeasance does not result in a breach or
violation of, or constitute a default under, the indenture or any other material
agreement or instrument to which we are a party or by which we are bound, (2) no
event of default has occurred and continues on the date the trust is established
and, with respect to defeasance only, at any time during the period ending on
the 123rd day after that date and (3) we have delivered to the trustee an
opinion of counsel to the effect that the holders of such debt securities will
not recognize income, gain or loss for U. S. federal income tax purposes as a
result of the defeasance or covenant defeasance and will be subject to U. S.
federal income tax on the same amounts, in the same manner and at the same times
as would have been the case if the defeasance or covenant defeasance had not
occurred. This opinion, in the case of defeasance, must refer to and be based
upon a letter ruling we have received from the Internal Revenue Service, a
Revenue Ruling published by the Internal Revenue Service or a change in
applicable U. S. federal income tax law occurring after the date of the
indenture. (Section 4.2)
GOVERNING LAW
The indenture and the debt securities are governed by and will be
interpreted under the laws of the State of New York.
INFORMATION CONCERNING THE TRUSTEE
Subject to the provisions of the Trust Indenture Act of 1939, as amended,
the trustee is under no obligation to exercise any of the powers vested in it by
the indenture at the request of any holder of debt securities unless the holder
offers the trustee reasonable indemnity against the costs, expenses and
liabilities which might result. The trustee is not required to expend or risk
its own funds or otherwise incur personal financial liability in performing its
duties if the trustee reasonably believes that it is not reasonably assured of
repayment or adequate indemnity.
The Chase Manhattan Bank acts as property trustee for SAFECO Capital Trust
I (the issuer of our 8.072% Capital Securities) and for the 8.072% Capital
Securities and the underlying junior subordinated deferrable interest debentures
as well as the related indenture and guarantees. Chase Manhattan Delaware, an
affiliate of The Chase Manhattan Bank, acts as Delaware trustee for SAFECO
Capital Trust I. The Chase Manhattan Bank is also the trustee for our 7.875%
Notes due 2005 and 6.875% Notes due 2007 and our medium term note program, the
custodian for our life companies' investment portfolios, a lender under our bank
revolving credit line and a dealer under our commercial paper program. In
addition, we and our subsidiaries maintain various depository and disbursement
accounts with The Chase Manhattan Bank.
10
<PAGE> 12
PLAN OF DISTRIBUTION
We may sell debt securities (1) through agents, (2) to or through
underwriters, (3) through dealers, or (4) directly to purchasers. The prospectus
supplement will state the terms of the offering of the debt securities,
including the name or names of any underwriters, dealers or agents; the purchase
price of the debt securities and the proceeds we will receive from the sale; any
underwriting discounts and commissions and other items constituting
underwriters' compensation; any initial public offering price, any discounts or
concessions allowed or reallowed or paid to dealers, and any securities exchange
on which the debt securities may be listed. The initial public offering price,
discounts or concessions allowed or reallowed or paid to dealers may be changed
from time to time.
We may offer the debt securities in one or more transactions at a fixed
price or prices, which we may change, at market prices prevailing at the time of
sale, at prices related to such prevailing market prices or at negotiated
prices.
We may authorize agents to solicit offers to purchase debt securities from
time to time. We will identify any agent who offers or sells debt securities
described in this prospectus, and we will describe any commissions payable by us
to the agent, in the prospectus supplement. Unless otherwise indicated in such
prospectus supplement, any such agent will be acting on a reasonable best
efforts basis for the period of its appointment. Any such agent may be deemed to
be an underwriter, as that term is defined in the Securities Act, of the debt
securities so offered and sold.
If debt securities are sold by means of an underwritten offering, we will
execute an underwriting agreement with an underwriter or underwriters, and the
names of the specific managing underwriter or underwriters, as well as any other
underwriters, and the terms of the transaction, including commissions, discounts
and any other compensation of the underwriters and dealers, if any, will be
stated in the prospectus supplement used by the underwriters to resell the debt
securities. If we use underwriters to sell debt securities, the underwriters
will purchase the debt securities for their own account and the underwriters may
resell such debt securities from time to time in one or more transactions,
including negotiated transactions, at fixed public offering prices or at varying
prices determined by the underwriters at the time of sale. Debt securities may
be offered to the public either through underwriting syndicates represented by
managing underwriters or directly by the managing underwriters. If we use any
underwriter or underwriters to sell the debt securities, unless otherwise
indicated in the prospectus supplement, the underwriters' obligations will be
conditioned on certain matters and the underwriters must purchase all the debt
securities of the offered series if they purchase any.
If we use a dealer to sell the debt securities, we will sell such debt
securities to the dealer as principal. The dealer may then resell those debt
securities to the public at varying prices to be determined by the dealer at the
time of resale. Any such dealer may be deemed to be an underwriter, as that term
is defined in the Securities Act, of the debt securities it offers or sells. The
name of the dealer and the terms of the transaction will be stated in the
related prospectus supplement.
We may directly solicit offers to purchase debt securities and we may sell
them directly to institutional investors or others, who, with respect to the
resale of those securities, may be deemed to be underwriters within the meaning
of the Securities Act. The terms of any direct sales will be described in the
related prospectus supplement.
Agents, underwriters and dealers may be entitled under agreements with us
to be indemnified by us against certain civil liabilities, including liabilities
under the Securities Act that may arise from any untrue statement or alleged
untrue statement of a material fact or any omission or alleged omission to state
a material fact in this prospectus, any supplement or amendment hereto, or in
the registration statement of which this prospectus forms a part, or to
contribution with respect to payments which the agents, underwriters or dealers
may be required to make.
11
<PAGE> 13
If so indicated in the prospectus supplement, we will authorize
underwriters or other persons acting as our agents to solicit offers by certain
institutions to purchase debt securities from us pursuant to contracts providing
for payments and delivery on a future date. Institutions with which such
contracts may be made include commercial and savings banks, insurance companies,
pension funds, investment companies, educational and charitable institutions and
others, but in all cases we must approve such institutions. Purchaser
obligations will be subject to the condition that the purchase is not prohibited
under the laws of the jurisdiction to which the purchaser is subject at the time
the debt securities are delivered. The underwriters and other agents will not
have any responsibility for the validity or performance of these contracts.
Each series of debt securities will be a new issue and will have no
established trading market. We may elect to list any series of debt securities
on an exchange but, unless otherwise stated in the applicable prospectus
supplement, we are not required to do so. You cannot be assured that there will
be a liquid trading market for any of the debt securities.
Underwriters, dealers and agents may be customers of, engage in
transactions with, or perform services for, us and our subsidiaries in the
ordinary course of business.
LEGAL OPINIONS
The validity of the debt securities will be passed upon for us by Perkins
Coie LLP, Seattle, Washington. Perkins Coie LLP will rely on the opinion of
James W. Ruddy, our Senior Vice President and General Counsel, with respect to
certain matters. Certain legal matters will be passed upon for the underwriters,
dealers or agents, if any, by Mayer, Brown & Platt, Chicago, Illinois. Mayer,
Brown & Platt will rely on the opinion of Perkins Coie LLP with respect to
Washington law.
INDEPENDENT AUDITORS
The consolidated financial statements and financial statement schedules of
SAFECO at December 31, 1998 and 1997, and for each of the three years in the
period ended December 31, 1998, incorporated by reference or included in the
SAFECO Annual Report on Form 10-K for the year ended December 31, 1998, have
been incorporated by reference into this Prospectus and the Registration
Statement and have been audited by Ernst & Young LLP, independent auditors, as
stated in their reports thereon also incorporated by reference or included in
the SAFECO Annual Report on Form 10-K and are included in reliance upon such
report given upon the authority of such firm as experts in accounting and
auditing.
12
<PAGE> 14
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the estimated expenses in connection
with the issuance and distribution of the securities registered hereby, other
than underwriting discounts and commissions:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee................. $ 132,000
Trustee's fees and expenses......................................... 10,000
Printing and engraving expenses..................................... 65,000
Rating agency fees.................................................. 65,000
Accounting fees and expenses........................................ 15,000
Legal fees and expenses............................................. 50,000
Blue Sky fees and expenses.......................................... 10,000
Miscellaneous....................................................... 3,000
----------
Total...................................................... $ 350,000
==========
</TABLE>
Item 15. Indemnification of Officers and Directors.
Sections 23B.08.500 through 23B.08.600 of the Washington Business
Corporation Act (the "WBCA") authorize a court to award, or a corporation's
board of directors to grant, indemnification to directors and officers on terms
sufficiently broad to permit indemnification under certain circumstances for
liabilities arising under the Securities Act of 1933, as amended (the
"Securities Act"). Article VII of the registrant's Bylaws, as amended (the
"Bylaws"), provides for indemnification of the registrant's directors, officers,
employees and agents to the maximum extent permitted by Washington law.
Section 23B.08.320 of the WBCA authorizes a corporation to eliminate or
limit a director's personal liability to the corporation or its shareholders for
monetary damages for conduct as a director, except in certain circumstances
involving acts or omissions, intentional misconduct by a director or knowing
violations of law by a director or distributions illegal under Washington law,
or any transaction from which the director will personally receive a benefit in
money, property or services to which the director is not legally entitled.
Article VIII of the registrant's Restated Articles of Incorporation (the
"Articles of Incorporation") contains provisions implementing, to the fullest
extent permitted by Washington law, such limitations on a director's liability
to the registrant and its shareholders.
Officers and directors of the registrant are covered by insurance (with
certain exceptions and certain limitations) that indemnifies them against losses
and liabilities arising from certain
II-1
<PAGE> 15
alleged "wrongful acts," including alleged errors or misstatements, or certain
other alleged wrongful acts or omissions constituting neglect or breach of duty.
The above discussion of the WBCA and the registrant's Bylaws and
Articles of Incorporation is not intended to be exhaustive and is qualified in
its entirety by reference to such statute, the Bylaws and the Articles of
Incorporation.
Item 16. Exhibits
<TABLE>
<S> <C>
1.1 Form of Underwriting Agreement
4.1 Form of Indenture between SAFECO Corporation
and The Chase Manhattan Bank, as Trustee
5.1 Opinion and consent of Perkins Coie LLP as to legality of the
debt securities
12.1 Computation of ratio of earnings to fixed charges
23.1 Consent of Ernst & Young LLP
23.2 Consent of Perkins Coie LLP (included in Exhibit 5.1)
24.1 Power of Attorney (included on signature page)
25.1 Form T-1 Statement of Eligibility of The Chase Manhattan Bank
to act as trustee under the Indenture
</TABLE>
II-2
<PAGE> 16
Item 17. Undertakings
The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with the
Commission by the registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in
the registration statement.
(b) 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.
(c) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
SAFECO'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
II-3
<PAGE> 17
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.
The undersigned registrant hereby undertakes that:
(a) 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; and
(b) 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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling the
registrant pursuant to the provisions set forth or described in Item 15 of this
registration statement, or otherwise, the registrant has been informed that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is therefore
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by a registrant of expenses incurred or paid
by a director, officer or controlling person of such registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act of 1933 and will be governed by the
final adjudication of such issue.
II-4
<PAGE> 18
================================================================================
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Seattle,
State of Washington, on the 14th day of February, 2000.
SAFECO CORPORATION
By: /s/ Boh A. Dickey
-------------------------------------
Boh A. Dickey
President and Chief Operating Officer
Each person whose individual signature appears below hereby authorizes
and appoints Boh A. Dickey and Rod A. Pierson, and each of them, with full power
of substitution and resubstitution and full power to act without the other, as
his or her true and lawful attorney-in-fact and agent to act in his or her name,
place and stead and to execute in the name and on behalf of each person,
individually and in each capacity stated below, and to file, any and all
amendments to this Registration Statement, including any and all post-effective
amendments, and any registration statement relating to the same offering as this
Registration Statement that is to be effective upon filing pursuant to Rule
462(b) under the Securities Act of 1933, as amended, and to file the same, with
all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing, ratifying and confirming all that said attorneys-in-fact
and agents or any of them or their or his substitute or substitutes, may
lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated below on the 14th day of February, 2000.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Roger H. Eigsti Chairman of the Board and Chief Executive Officer
- ------------------------------------ (Principal Executive Officer)
Roger H. Eigsti
/s/ Boh A. Dickey President, Chief Operating Officer and Director
- ------------------------------------
Boh A. Dickey
/s/ Rod A. Pierson Senior Vice President, Chief Financial Officer and
- ------------------------------------ Secretary (Principal Financial Officer)
Rod A. Pierson
/s/ H. Paul Lowber Vice President and Controller (Principal
- ------------------------------------ Accounting Officer)
H. Paul Lowber
</TABLE>
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<PAGE> 19
<TABLE>
<S> <C>
/s/ Phyllis J. Campbell Director
- ------------------------------------
Phyllis J. Campbell
/s/ Robert S. Cline Director
- ------------------------------------
Robert S. Cline
/s/ John W. Ellis Director
- ------------------------------------
John W. Ellis
/s/ William P. Gerberding Director
- ------------------------------------
William P. Gerberding
/s/ Joshua Green III Director
- ------------------------------------
Joshua Green III
/s/ William W. Krippaehne, Jr. Director
- ------------------------------------
William W. Krippaehne, Jr.
/s/ William G. Reed, Jr. Director
- ------------------------------------
William G. Reed, Jr.
Director
- ------------------------------------
Norman B. Rice
/s/ Judith M. Runstad Director
- ------------------------------------
Judith M. Runstad
/s/ Paul W. Skinner Director
- ------------------------------------
Paul W. Skinner
</TABLE>
II-6
<PAGE> 20
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<S> <C>
1.1 Form of Underwriting Agreement
4.1 Form of Indenture between SAFECO Corporation
and The Chase Manhattan Bank, as Trustee
5.1 Opinion and Consent of Perkins Coie LLP as to legality of the
debt securities
12.1 Computation of ratio of earnings to fixed charges
23.1 Consent of Ernst & Young LLP
23.2 Consent of Perkins Coie LLP (included in Exhibit 5.1)
24.1 Power of Attorney (included on signature page)
25.1 Form T-1 Statement of Eligibility of The Chase Manhattan Bank
to act as trustee under the Indenture
</TABLE>
<PAGE> 1
EXHIBIT 1.1
SAFECO Corporation
______% Notes Due______
Underwriting Agreement
New York, New York
_______, 2000
To the Representatives named in Schedule I hereto
of the Underwriters named in Schedule II hereto
Ladies and Gentlemen:
SAFECO Corporation, a corporation organized under the laws of the State
of Washington (the "Company"), proposes to sell to the several underwriters
named in Schedule II hereto (the "Underwriters"), for whom you (the
"Representatives") are acting as representatives, the principal amount of its
securities identified in Schedule I hereto (the "Securities"), to be issued
under an indenture (the "Indenture") to be dated as of ______, 2000, between the
Company and The Chase Manhattan Bank, as trustee (the "Trustee"). To the extent
there are no additional Underwriters listed on Schedule I other than you, the
term Representatives as used herein shall mean you, as Underwriters, and the
terms Representatives and Underwriters shall mean either the singular or plural
as the context requires. Any reference herein to the Registration Statement, the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall
be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the Exchange Act
on or before the Effective Date of the Registration Statement or the issue date
of the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be; and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration Statement, the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall
be deemed to refer to and include the filing of any document under the Exchange
Act after the Effective Date of the Registration Statement or the issue date of
the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus,
as the case may be, deemed to be incorporated therein by reference. Certain
terms used herein are defined in Section 17 hereof.
1. Representations and Warranties. The Company represents and warrants
to, and agrees with, each Underwriter as set forth below in this Section 1.
(a) The Company meets the requirements for use of Form S-3 under the Act
and has prepared and filed with the Commission a registration statement (the
file number of which is set forth in Schedule I hereto) on Form S-3, including a
related basic prospectus, for registration under the Act of the offering and
sale of the Securities. The Company may have filed one or more amendments
thereto, including a Preliminary Final Prospectus, each of which has previously
been furnished to you. The Company will next file with the Commission one of the
following: (1) after the Effective Date of such registration statement, a final
prospectus supplement relating to the Securities in accordance
1
<PAGE> 2
with Rules 430A and 424(b), (2) prior to the Effective Date of such registration
statement, an amendment to such registration statement (including the form of
final prospectus supplement) or (3) a final prospectus in accordance with Rules
415 and 424(b). In the case of clause (1), the Company has included in such
registration statement, as amended at the Effective Date, all information (other
than Rule 430A Information) required by the Act and the rules thereunder to be
included in such registration statement and the Final Prospectus. As filed, such
final prospectus supplement or such amendment and form of final prospectus
supplement shall contain all Rule 430A Information, together with all other such
required information, and, except to the extent the Representatives shall agree
in writing to a modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent not completed at
the Execution Time, shall contain only such specific additional information and
other changes (beyond that contained in the Basic Prospectus and any Preliminary
Final Prospectus) as the Company has advised you, prior to the Execution Time,
will be included or made therein. The Registration Statement, at the Execution
Time, meets the requirements set forth in Rule 415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did or will, and
when the Final Prospectus is first filed (if required) in accordance with Rule
424(b) and on the Closing Date (as defined herein), the Final Prospectus (and
any supplement thereto) will, comply in all material respects with the
applicable requirements of the Act, the Exchange Act and the Trust Indenture Act
and the respective rules thereunder; on the Effective Date and at the Execution
Time, the Registration Statement did not or will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading; on the Effective Date and on the Closing Date the Indenture did or
will comply in all material respects with the applicable requirements of the
Trust Indenture Act and the rules thereunder; and, on the Effective Date, the
Final Prospectus, if not filed pursuant to Rule 424(b), will not, and on the
date of any filing pursuant to Rule 424(b) and on the Closing Date, the Final
Prospectus (together with any supplement thereto) will not, include any untrue
statement of a material fact or omit 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; provided, however, that the Company makes no
representations or warranties as to (i) that part of the Registration Statement
which shall constitute the Statement of Eligibility (Form T-1) under the Trust
Indenture Act of the Trustee or (ii) the information contained in or omitted
from the Registration Statement or the Final Prospectus (or any supplement
thereto) in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of any Underwriter through the
Representatives specifically for inclusion in the Registration Statement or the
Final Prospectus (or any supplement thereto).
(c) The documents incorporated by reference in the Final Prospectus, at
the time they were or hereafter are filed with the Commission, complied or when
so filed will comply, as the case may be, in all material respects with the
requirements of the Exchange Act, and, when read together and with the other
information in the Final Prospectus, did not and will not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were or are made, not misleading.
2
<PAGE> 3
(d) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Washington, with
power and authority (corporate and other) to own its properties and conduct its
business as described in the Final Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and is in good standing (or
the local equivalent) under the laws of each other jurisdiction in which it owns
or leases properties or conducts any business so as to require such
qualification, or is subject to no material liability or disability by reason of
the failure to be so qualified in any such jurisdiction.
(e) Each subsidiary of the Company that would constitute a "significant
subsidiary" (as such term is defined in Rule 1-02 of Regulation S-X) as of the
last day of the Company's most recent fiscal quarter (each a "Significant
Subsidiary" and collectively, the "Significant Subsidiaries") has been duly
organized and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Final Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing (or the
local equivalent) under the laws of each other jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification, or is subject to no material liability or disability by reason of
the failure to be so qualified in any such jurisdiction.
(f) All the outstanding shares of capital stock of the Company and each
Significant Subsidiary have been duly and validly authorized and issued and are
fully paid and nonassessable, and, except as otherwise set forth in the Final
Prospectus, all outstanding shares of capital stock of the Significant
Subsidiaries are owned by the Company either directly or through wholly owned
subsidiaries free and clear of any perfected security interest or any other
security interests, claims, liens or encumbrances.
(g) The financial statements and schedules of the Company and its
consolidated subsidiaries included or incorporated by reference in the Final
Prospectus and the Registration Statement present fairly in all material
respects the consolidated financial condition, results of operations and cash
flows of the Company and its consolidated subsidiaries as of the dates and for
the periods indicated, comply as to form with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, and have been
prepared in conformity with generally accepted accounting principles applied on
a consistent basis throughout the periods involved (except as otherwise noted
therein).
(h) Ernst & Young LLP, who have certified the financial statements
included or incorporated by reference in the Final Prospectus, are independent
public accountants as required by the Act.
(i) No action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Company or any of its
subsidiaries or its or their property is pending or, to the best knowledge of
the Company, threatened that (i) could reasonably be expected to have a material
adverse effect on the Company's performance of its obligations under
3
<PAGE> 4
this Agreement or the consummation of any of the transactions contemplated
hereby or (ii) could reasonably be expected to have a material adverse effect on
the condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as set
forth in or contemplated in the Final Prospectus (exclusive of any supplement
thereto).
(j) Since the respective dates as of which information is given in the
Registration Statement and the Final Prospectus, except as may otherwise be
stated therein or contemplated thereby, there has been no material adverse
change, or any development involving a prospective material adverse change, in
the condition (financial or otherwise), earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not arising in the
ordinary course of business.
(k) Each insurance company subsidiary of the Company (collectively, the
"Insurance Subsidiaries") is duly licensed as an insurance company in its
jurisdiction of organization and is duly licensed or authorized as an insurer in
each jurisdiction outside its jurisdiction of organization where it is required
to be so licensed or authorized to conduct its business as described in the
Registration Statement and the Final Prospectuses, except where the failure to
be so licensed or authorized would not result in a material adverse effect on
the condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole.
(l) Each of the Company and each Insurance Subsidiary is in compliance
with the requirements of the insurance laws of the jurisdiction of its
incorporation or domicile and any applicable regulations thereunder and has
filed all reports, registrations, documents or other information required to be
filed thereunder, except where the failure to comply or file would not have a
material adverse effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its subsidiaries, taken as a
whole; and each of the Insurance Subsidiaries is in compliance with the
insurance laws and regulations of each other jurisdiction that is applicable to
such Insurance Subsidiary, except where the failure to comply would not have a
material adverse effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its subsidiaries, taken as a
whole.
(m) All ceded reinsurance treaties, contracts, agreements and
arrangements to which the Company or any of its Insurance Subsidiaries is a
party are in full force and effect and neither the Company nor any of its
Insurance Subsidiaries is in violation of, or in default in the performance,
observance or fulfillment of, any obligation, agreement, covenant or condition
contained therein, except for such violations or defaults which could not
reasonably be expected, singly or in the aggregate, to have a material adverse
effect on the condition (financial or otherwise), prospects, earnings, business
or properties of the Company and its subsidiaries, taken as a whole; neither the
Company nor any of its Insurance Subsidiaries has received any notice from any
of the other parties to such treaties, contracts, agreements or arrangements
that such other party intends not to perform in any material respect its
obligations thereunder and none of them has any reason to believe that any of
the other parties to such treaties, contracts, agreements or arrangements will
be unable to perform
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<PAGE> 5
its obligations thereunder, except to the extent that (i) the Company or such
Insurance Subsidiary has established appropriate reserves on its financial
statements or (ii) such nonperformance could not reasonably be expected, singly
or in the aggregate, to have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of the
Company and its subsidiaries, taken as a whole.
(n) The statutory annual and quarterly statements of the Insurance
Subsidiaries required to be filed and the statutory balance sheets and income
statements included in such statutory annual and quarterly statements, most
recently filed in each jurisdiction, have been prepared in conformity with
required or permitted statutory accounting principles or practices consistently
followed, except as may otherwise be indicated in the notes thereto and present
fairly the financial position of the Insurance Subsidiaries (on a statutory
basis) for the periods covered thereby.
(o) This Agreement has been duly authorized, executed and delivered by
the Company.
(p) The Indenture has been duly authorized, executed and delivered by
the Company and (assuming the due authorization, execution and delivery thereof
by the Trustee) is a valid and legally binding obligation of the Company
enforceable in accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting enforcement of creditors' rights generally or by
general equity principles; and the Indenture has been duly qualified under the
Trust Indenture Act.
(q) The Securities have been duly authorized for issuance, offer and
sale pursuant to this Agreement and, when issued, authenticated and delivered
pursuant to the provisions of this Agree ment and the Indenture against payment
of the consideration therefor specified in the Final Prospectus, the Securities
will constitute valid and legally binding obligations of the Company enforceable
in accordance with their terms, except as enforcement thereof may be limited by
bank ruptcy, insolvency, reorganization, moratorium or other laws relating to or
affecting enforcement of creditors' rights generally or by general equity
principles; and the Securities and the Indenture conform to the descriptions
thereof in the Final Prospectus.
(r) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of 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 or violation of any of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its Significant Subsidiaries is a party or by which
the Company or any of its Significant Subsidiaries is bound or to which any of
the property or assets of the Company or any of its Significant Subsidiaries is
subject, nor will such action result in any violation of the provisions of the
charter or by-laws of the Company or any statute or any order, rule or
regulation of any court or governmental agency having jurisdiction over the
Company or any of its Significant Subsidiaries or any of their respective
properties; and no consent, approval, authorization, order or decree of any
court or governmental agency or body is required for the consummation by the
Company of the transactions contemplated
5
<PAGE> 6
by this Agreement or in connection with the sale of Securities hereunder, except
such as have been obtained or rendered, as the case may be, or as may be
required under state securities laws.
(s) The Company is not and, after giving effect to the offering and sale
of the Securities and the application of the proceeds thereof as described in
the Final Prospectus, will not be an "investment company" as defined in the
Investment Company Act.
Any certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto the principal amount of the Securities set forth opposite such
Underwriter's name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the Securities
shall be made on the date and at the time specified in Schedule I hereto or at
such time on such later date not more than three Business Days after the
foregoing date as the Representatives shall designate, which date and time may
be postponed by agreement between the Representatives and the Company or as
provided in Section 9 hereof (such date and time of delivery and payment for the
Securities being herein called the "Closing Date"). Delivery of the Securities
shall be made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to an account specified by
the Company. Delivery of the Securities shall be made through the facilities of
The Depository Trust Company unless the Representatives shall otherwise
instruct.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Final Prospectus.
5. Agreements. The Company agrees with the several Underwriters that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment thereof, to
become effective. Prior to the termination of the offering of the Securities,
the Company will not file any amendment of the Registration Statement or
supplement (including the Final Prospectus or any Preliminary Final Prospectus)
to the Basic Prospectus or any Rule 462(b) Registration Statement unless the
Company
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<PAGE> 7
has furnished you a copy for your review prior to filing and will not
file any such proposed amendment or supplement to which you reasonably object.
Subject to the foregoing sentence, if the Registration Statement has become or
becomes effective pursuant to Rule 430A, or filing of the Final Prospectus is
otherwise required under Rule 424(b), the Company will cause the Final
Prospectus, properly completed, and any supplement thereto to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b) within the time
period prescribed and will provide evidence satisfactory to the Representatives
of such timely filing. The Company will promptly advise the Representatives (1)
when the Registration Statement, if not effective at the Execution Time, shall
have become effective, (2) when the Final Prospectus, and any supplement
thereto, shall have been filed (if required) with the Commission pursuant to
Rule 424(b) or when any Rule 462(b) Registration Statement shall have been filed
with the Commission, (3) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have been filed or
become effective, (4) of any request by the Commission or its staff for any
amendment of the Registration Statement, or any Rule 462(b) Registration
Statement, or for any supplement to the Final Prospectus or for any additional
information, (5) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (6) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Securities for sale in any jurisdiction or the institution or threatening
of any proceeding for such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order or the suspension of any such
qualification and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of which
the Final Prospectus as then supplemented would include any untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were made
not misleading, or if it shall be necessary to amend the Registration Statement
or supplement the Final Prospectus to comply with the Act or the Exchange Act or
the respective rules thereunder, the Company promptly will (1) notify the
Representatives of such event, (2) prepare and file with the Commission, subject
to the second sentence of paragraph (a) of this Section 5, an amendment or
supplement which will correct such statement or omission or effect such
compliance and (3) supply any supplemented Final Prospectus to you in such
quantities as you may reasonably request.
(c) As soon as practicable, the Company will make generally available to
its security holders and to the Representatives an earnings statement or
statements of the Company and its subsidiaries which will satisfy the provisions
of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel for the
Underwriters, without charge, signed copies of the Registration Statement
(including exhibits thereto) and to each other Underwriter a copy of the
Registration Statement (without exhibits thereto) and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as many
copies of each Preliminary Final Prospectus and the Final Prospectus and any
supplement thereto as the Representatives may reasonably request. The Company
will pay the expenses of printing or other
7
<PAGE> 8
production of all documents relating to the offering.
(e) The Company will arrange, if necessary, for the qualification of the
Securities for sale under the laws of such jurisdictions as the Representatives
may designate, will maintain such qualifications in effect so long as required
for the distribution of the Securities and will pay any fee of the National
Association of Securities Dealers, Inc., in connection with its review of the
offering; provided that in no event shall the Company be obligated to qualify to
do business in any jurisdiction where it is not now so qualified or to take any
action that would subject it to service of process in suits, other than those
arising out of the offering or sale of the Securities, in any jurisdiction where
it is not now so subject.
(f) The Company will not, without the prior written consent of [-]
offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into
any transaction which is designed to, or might reasonably be expected to, result
in the disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Company or any affiliate
of the Company or any person in privity with the Company or any affiliate of the
Company) directly or indirectly, including the filing (or participation in the
filing) of a registration statement with the Commission in respect of, or
establish or increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Exchange Act, any
debt securities (other than the Securities) issued or guaranteed by the Company
which mature more than one year after the Closing Date and which are
substantially similar to the Securities, or publicly announce an intention to
effect any such transaction, until the Business Day set forth on Schedule I
hereto.
(g) The Company will not take, directly or indirectly, any action
designed to or which has constituted or which might reasonably be expected to
cause or result, under the Exchange Act or otherwise, in stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Securities.
6. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Securities shall be subject to the accuracy of
the representations and warranties on the part of the Company contained herein
as of the Execution Time and the Closing Date, to the accuracy of the statements
of the Company made in any certificates pursuant to the provisions hereof, to
the performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) If the Registration Statement has not become effective prior to the
Execution Time, unless the Representatives agree in writing to a later time, the
Registration Statement will become effective not later than (i) 6:00 PM New York
City time, on the date of determination of the public offering price, if such
determination occurred at or prior to 3:00 PM New York City time on such date or
(ii) 9:30 AM on the Business Day following the day on which the public offering
price was determined, if such determination occurred after 3:00 PM New York City
time on such date; if filing of the Final Prospectus, or any supplement thereto,
is required pursuant to Rule 424(b), the Final
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<PAGE> 9
Prospectus, and any such supplement, will be filed in the manner and within the
time period required by Rule 424(b); and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or threatened.
(b) The Company's general counsel shall have furnished to the
Representatives such counsel's opinion to the effect of subparagraphs (i), (ii),
(iii), (iv), (v), (vii), (xii) and (xiv) below, and shall have requested and
caused Perkins Coie LLP, counsel for the Company, to have furnished to the
Representatives their opinion to the effect of subparagraphs (vi), (vii) (in so
far as (vii) relates to the compliance as to form of the documents incorporated
by reference in the Final Prospectus as amended or supplemented), (viii), (ix),
(x), (xi) and (xiii) below, in each case dated the Closing Date and addressed to
the Representatives:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Washington, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Final
Prospectus, and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing (or the local
equivalent) under the laws of each other jurisdiction in which it owns
or leases properties or conducts any business so as to require such
qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction;
(ii) each Significant Subsidiary of the Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, with power and
authority (corporate and other) to own its properties and conduct its
business as described in the Final Prospectus, and has been duly
qualified as a foreign corporation for the transaction of business and
is in good standing (or the local equivalent) under the laws of each
other jurisdiction in which it owns or leases properties or conducts
any business so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so
qualified in any such jurisdiction;
(iii) all the outstanding shares of capital stock of each
Significant Subsidiary have been duly and validly authorized and issued
and are fully paid and nonassessable, and, except as otherwise set forth
in the Final Prospectus, all outstanding shares of capital stock of the
Significant Subsidiaries are owned by the Company either directly or
through wholly owned subsidiaries free and clear of any perfected
security interest and, to the knowledge of such counsel, after due
inquiry, any other security interest, claim, lien or encumbrance;
(iv) the Company's authorized equity capitalization is as set
forth in the Final Prospectus;
(v) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property, of a
9
<PAGE> 10
character required to be disclosed in the Registration Statement which
is not adequately disclosed in the Final Prospectus, and there is no
franchise, contract or other document of a character required to be
described in the Registration Statement or Final Prospectus, or to be
filed as an exhibit thereto, which is not described or filed as
required;
(vi) the Registration Statement has become effective under the
Act; any required filing of the Basic Prospectus, any Preliminary Final
Prospectus and the Final Prospectus, and any supplements thereto,
pursuant to Rule 424(b) has been made in the manner and within the time
period required by Rule 424(b); to the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration Statement
has been issued, no proceedings for that purpose have been instituted or
threatened, and the Registration Statement and the Final Prospectus
(other than the financial statements and other financial and statistical
information contained therein, as to which such counsel need express no
opinion) comply as to form in all material respects with the applicable
requirements of the Act, the Exchange Act and the Trust Indenture Act
and the respective rules thereunder; and such counsel has no reason to
believe that on the Effective Date or at the Execution Time the
Registration Statement contained any untrue statement of a material fact
or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Final Prospectus as of its date and on the Closing Date included or
includes any untrue statement of a material fact or omitted or omits to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading
(in each case, other than the financial statements and other financial
and statistical information contained therein, as to which such counsel
need express no opinion);
(vii) the documents incorporated by reference in the Final
Prospectus as amended or supplemented (other than the financial
statements and related schedules and other financial and statistical
information therein, as to which such counsel need express no opinion),
when they became effective or were filed with the Commission, as the
case may be, complied as to form in all material respects with the
requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder; and they have no
reason to believe that any of such documents, when they became effective
or were so filed, as the case may be, contained, in the case of a
registration statement which became effective under the Act, 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, or, in the case of other documents which were
filed under the Act or the Exchange Act with the Commission, an untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such documents were so
filed, not misleading;
(viii) this Agreement has been duly authorized, executed and
delivered by the Company;
(ix) the Indenture has been duly authorized, executed and
delivered by the
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<PAGE> 11
Company and (assuming the due authorization, execution and delivery
thereof by the Trustee) is a valid and legally binding obligation of the
Company enforceable in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting enforcement of
creditors' rights generally or by general equity principles; and the
Indenture has been duly qualified under the Trust Indenture Act;
(x) the Securities have been duly authorized for issuance, offer
and sale pursuant to this Agreement and, when issued, authenticated and
delivered pursuant to the provisions of this Agreement and the Indenture
against payment of the consideration therefor specified in the Final
Prospectus, the Securities will constitute valid and legally binding
obligations of the Company enforceable in accordance with their terms,
except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting
enforcement of creditors' rights generally or by general equity
principles; and the Securities and the Indenture conform to the
descriptions thereof in the Final Prospectus;
(xi) no consent, approval, authorization, filing with or order
of any court or governmental agency or body is required in connection
with the transactions contemplated herein, except such as have been
obtained under the Act and such as may be required under the blue sky
laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters in the manner
contemplated in this Agreement and in the Final Prospectus and such
other approvals (specified in such opinion) as have been obtained;
(xii) neither the execution and delivery of the Indenture, the
issue and sale of the Securities, nor the consummation of any other of
the transactions herein contemplated nor the fulfillment of the terms
hereof will conflict with, result in a breach or violation of or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its Significant Subsidiaries pursuant
to, (i) the charter or by-laws of the Company or its Significant
Subsidiaries, (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which the
Company or any of its Significant Subsidiaries is a party or bound or to
which its or their property is subject, or (iii) any statute, law, rule,
regulation, judgment, order or decree applicable to the Company or its
Significant Subsidiaries of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or its Significant Subsidiaries or any of
its or their properties;
(xiii) the Company is not and, after giving effect to the
offering and sale of the Securities and the application of the proceeds
thereof as described in the Final Prospectus, will not be an "investment
company" as defined in the Investment Company Act of 1940, as amended;
and
(xiv) no holders of securities of the Company have rights to the
registration of such
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<PAGE> 12
securities under the Registration Statement.
In rendering such opinions, each such counsel may (A) limit such opinions to
the laws of the State of Washington and the Federal laws of the United States
and, in the case of the opinion to be delivered by Perkins Coie LLP with
respect to paragraph (ix) above, Perkins Coie LLP may assume that the laws of
the State of New York are the same as the laws of the State of Washington, and
(B) rely as to matters of fact, to the extent they deem proper, on certificates
of responsible officers of the Company and public officials. References to the
Final Prospectus in this paragraph (b) include any supplements thereto at the
Closing Date.
(c) The Representatives shall have received from Mayer, Brown & Platt,
counsel for the Underwriters, such opinion or opinions, dated the Closing Date
and addressed to the Representatives, with respect to the issuance and sale of
the Securities, the Indenture, the Registration Statement, the Final Prospectus
(together with any supplement thereto) and other related matters as the
Representatives may reasonably require, and the Company shall have furnished to
such counsel such documents as they request for the purpose of enabling them to
pass upon such matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the President
and the principal financial or accounting officer of the Company, dated the
Closing Date, to the effect that the signers of such certificate have examined
the Registration Statement, the Final Prospectus, any supplements to the Final
Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of the
Closing Date with the same effect as if made on the Closing Date and the
Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge, threatened;
and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Final Prospectus (exclusive
of any supplement thereto), there has been no material adverse effect on
the condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Final Prospectus
(exclusive of any supplement thereto)
(e) At the date hereof and at the Closing Date, Ernst & Young LLP shall
have furnished to the Representatives letters, dated respectively as of the date
hereof and as of the Closing Date, in
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<PAGE> 13
form and substance satisfactory to the Representatives, confirming that they are
independent accountants within the meaning of the Act and the Exchange Act and
the respective applicable published rules and regulations thereunder and
stating, as of such date hereof or the Closing Date, as the case may be, (or
with respect to matters involving changes or developments since the respective
dates as of which specified financial information is given in the Final
Prospectus, as of a date not more than five days prior to either such date), the
conclusions and findings of such firm with respect to the financial information
and other matters as provided in SAS No. 72.
(f) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in the
letter or letters referred to in paragraph (e) of this Section 6 or (ii) any
change, or any development involving a prospective change, in or affecting the
condition (financial or otherwise), earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Final Prospectus (exclusive of any supplement thereto) the
effect of which, in any case referred to in clause (i) or (ii) above, is, in the
sole judgment of the Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto).
(g) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Act) or any notice given of any intended or potential
decrease in any such rating or of a possible change in any such rating that does
not indicate the direction of the possible change.
(h) Prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, certificates and documents as the
Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Mayer, Brown & Platt, counsel for the Underwriters,
at 1675 Broadway, New York, New York 10019, on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for
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<PAGE> 14
herein is not consummated because any condition to the obligations of the
Underwriters set forth in Section 6 hereof is not satisfied, because of any
termination pursuant to Section 10 hereof or because of any refusal, inability
or failure on the part of the Company to perform any agreement herein or comply
with any provision hereof other than by reason of a default by any of the
Underwriters, the Company will reimburse the Underwriters severally through
[-] on demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter, the directors, officers, employees and
agents of each Underwriter and each person who controls any Underwriter within
the meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the registration statement for the registration of the
Securities as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion therein; provided, further, that with respect to any
untrue statement or omission of material fact made in any Preliminary
Prospectus, the indemnity agreement contained in this Section 8(a) shall not
inure to the benefit of any Underwriter from whom the person asserting any such
loss, claim, damage or liability purchased the Securities concerned, to the
extent that any such loss, claim, damage or liability of such Underwriter occurs
under the circumstance where (x) the Company had previously furnished copies of
the Final Prospectus to the Representatives, (y) the untrue statement or
omission of a material fact contained in the Preliminary Prospectus was
corrected in the Final Prospectus and (z) such Underwriter did not send or give
to such person, at or prior to the written sale of such Securities to such
person, a copy of the Final Prospectus. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and
hold harmless the Company, each of its directors, each of its officers who signs
the Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
14
<PAGE> 15
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. The Company acknowledges that the statements
set forth in the last paragraph of the cover page regarding delivery of the
Securities, the legend in block capital letters on page ______ related to
stabilization, syndicate covering transactions and penalty bids and, under the
heading "Underwriting" or "Plan of Distribution," (i) the list of Underwriters
and their respective participation in the sale of the Securities, (ii) the
sentences related to concessions and reallowances and (iii) the paragraph
related to stabilization, syndicate covering transactions and penalty bids in
any Preliminary Final Prospectus and the Final Prospectus constitute the only
information furnished in writing by or on behalf of the several Underwriters for
inclusion in any Preliminary Final Prospectus or the Final Prospectus.
(c) Promptly after receipt by an indemnified party under this Section 8
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
satisfactory to the indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from
15
<PAGE> 16
all liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 8 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Company and the Underwriters severally agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Company and one or more of
the Underwriters may be subject in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and by the
Underwriters on the other from the offering of the Securities; provided,
however, that in no case shall any Underwriter (except as may be provided in any
agreement among underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount or commission
applicable to the Securities purchased by such Underwriter hereunder. If the
allocation provided by the immediately preceding sentence is unavailable for any
reason, the Company and the Underwriters severally shall contribute in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company on the one hand and of the Underwriters on the
other in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. Benefits received
by the Company shall be deemed to be equal to the total net proceeds from the
offering (before deducting expenses) received by it, and benefits received by
the Underwriters shall be deemed to be equal to the total underwriting discounts
and commissions, in each case as set forth on the cover page of the Final
Prospectus. Relative fault shall be determined by reference to, among other
things, whether any untrue or any alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to information
provided by the Company on the one hand or the Underwriters on the other, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The Company
and the Underwriters agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person who
controls an Underwriter within the meaning of either the Act or the Exchange Act
and each director, officer, employee and agent of an Underwriter shall have the
same rights to contribution as such Underwriter, and each person who controls
the Company within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall fail
to purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the principal amount of
Securities set forth opposite
16
<PAGE> 17
their names in Schedule II hereto bears to the aggregate principal amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate principal
amount of Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate principal amount of
Securities set forth in Schedule II hereto, the remaining Underwriters shall
have the right to purchase all, but shall not be under any obligation to
purchase any, of the Securities, and if such nondefaulting Underwriters do not
purchase all the Securities, this Agreement will terminate without liability to
any nondefaulting Underwriter or the Company. In the event of a default by any
Underwriter as set forth in this Section 9, the Closing Date shall be postponed
for such period, not exceeding five Business Days, as the Representatives shall
determine in order that the required changes in the Registration Statement and
the Final Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter of
its liability, if any, to the Company and any nondefaulting Underwriter for
damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if at any time prior to such time
(i) trading in the Company's Common Stock shall have been suspended by the
Commission or the Nasdaq National Market or trading in securities generally on
the New York Stock Exchange or the Nasdaq National Market shall have been
suspended or limited or minimum prices shall have been established on such
Exchange or the Nasdaq National Market, (ii) a banking moratorium shall have
been declared either by Federal or New York State authorities or (iii) there
shall have occurred any outbreak or escalation of hostilities, declaration by
the United States of a national emergency or war, or other calamity or crisis
the effect of which on financial markets is such as to make it, in the sole
judgment of the Representatives, impractical or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the Final Prospectus
(exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors, employees, agents or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Securities.
The provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to [-] General Counsel (fax no.: (___) ___-____) and
confirmed to the General Counsel, [-, at -] New York, New York, 10013,
Attention: General Counsel; or, if sent to the Company, will be mailed,
delivered or telefaxed to SAFECO Corporation General Counsel (fax no. (206)
545-5559) and confirmed to it at SAFECO Corporation, SAFECO Plaza, 4333 Brooklyn
Avenue, NE, Seattle, Washington 98185, Attention: General
17
<PAGE> 18
Counsel.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience only
and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this Agreement,
shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended and the rules
and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in paragraph
1(a) above contained in the Registration Statement at the Effective Date
including any Preliminary Final Prospectus.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
18
<PAGE> 19
"Final Prospectus" shall mean the prospectus supplement relating to the
Securities that was first filed pursuant to Rule 424(b) after the Execution
Time, together with the Basic Prospectus.
"Investment Company Act" shall mean the Investment Company Act of 1940,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the Final Prospectus, together
with the Basic Prospectus.
"Registration Statement" shall mean the registration statement referred
to in paragraph 1(a) above, including exhibits and financial statements, as
amended at the Execution Time (or, if not effective at the Execution Time, in
the form in which it shall become effective) and, in the event any
post-effective amendment thereto or any Rule 462(b) Registration Statement
becomes effective prior to the Closing Date, shall also mean such registration
statement as so amended or such Rule 462(b) Registration Statement, as the case
may be. Such term shall include any Rule 430A Information deemed to be included
therein at the Effective Date as provided by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to such rules
under the Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration statement
and any amendments thereto filed pursuant to Rule 462(b) relating to the
offering covered by the registration statement referred to in Section 1(a)
hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended and the rules and regulations of the Commission promulgated thereunder.
[Intentionally left blank]
19
<PAGE> 20
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
SAFECO CORPORATION
By:_________________________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the date
specified in Schedule I hereto.
[-]
BY: [-]
By:__________________________
Name:
Title:
For [themselves][itself] and the other
several Underwriters, if any, named in
Schedule II to the foregoing Agreement.
20
<PAGE> 21
SCHEDULE I
Underwriting Agreement dated
Registration Statement No.
Representative(s):
Title, Purchase Price and Description of Securities:
Title:
Principal amount:
Purchase price (include accrued
interest if any):
Sinking fund provisions:
Redemption provisions:
Other provisions:
Closing Date, Time and Location: ______, 2000 at 10:00 a.m., local time, at
Mayer, Brown & Platt
1675 Broadway
New York, New York 10019
Date referred to in Section 5(f) after
which the Company may offer or sell debt
securities issued or guaranteed by the
Company without the consent of the
Representative(s): The Business Day immediately
following the Closing Date
Modification of items to be covered by
the letter from Ernst & Young LLP delivered
pursuant to Section 6(e) at the Execution Time:
<PAGE> 22
SCHEDULE II
<TABLE>
<CAPTION>
Principal Amount
of Securities to
Underwriter be Purchased
----------- ------------
<S> <C>
............................................... $
------------
Total.......................................................... $
============
</TABLE>
<PAGE> 1
EXHIBIT 4.1
SAFECO CORPORATION,
ISSUER
TO
THE CHASE MANHATTAN BANK,
TRUSTEE
---------------
INDENTURE
---------------
DATED AS OF ______, 2000
<PAGE> 2
Reconciliation and tie between
Trust Indenture Act of 1939 (the "Trust Indenture Act")
and Indenture
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
--------------- -----------------
<S> <C>
Section 310(a)(1)...........................................................................6.7
(a)(2).....................................................................................6.7
(b)........................................................................................6.8
Section 312(a)..............................................................................7.1
(b)........................................................................................7.2
(c)........................................................................................7.2
Section 313(a)..............................................................................7.3
(b)(2).....................................................................................7.3
(c)........................................................................................7.3
(d)........................................................................................7.3
Section 314(a)..............................................................................7.4
(c)(1).....................................................................................1.2
(c)(2).....................................................................................1.2
(e)........................................................................................1.2
(f)........................................................................................1.2
Section 316(a) (last sentence)..............................................................1.1
(a)(1)(A)............................................................................5.2, 5.12
(a)(1)(B).................................................................................5.13
(b)........................................................................................5.8
Section 317(a)(1)...........................................................................5.3
(a)(2).....................................................................................5.4
(b).......................................................................................10.3
Section 318(a).............................................................................10.8
</TABLE>
- ------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION...........................1
SECTION 1.1. DEFINITIONS.................................................................1
SECTION 1.2. COMPLIANCE CERTIFICATES AND OPINIONS.......................................11
SECTION 1.3. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.....................................11
SECTION 1.4. ACTS OF HOLDERS............................................................12
SECTION 1.5. NOTICES, ETC. TO THE TRUSTEE AND THE COMPANY...............................14
SECTION 1.6. NOTICE TO HOLDERS OF SECURITIES; WAIVER....................................14
SECTION 1.7. LANGUAGE OF NOTICES........................................................15
SECTION 1.8. CONFLICT WITH TRUST INDENTURE ACT..........................................16
SECTION 1.9. EFFECT OF HEADINGS AND TABLE OF CONTENTS...................................16
SECTION 1.10. SUCCESSORS AND ASSIGNS....................................................16
SECTION 1.11. SEPARABILITY CLAUSE.......................................................16
SECTION 1.12. BENEFITS OF INDENTURE.....................................................16
SECTION 1.13. GOVERNING LAW.............................................................16
SECTION 1.14. LEGAL HOLIDAYS............................................................16
SECTION 1.15. COUNTERPARTS..............................................................17
SECTION 1.16. JUDGMENT CURRENCY.........................................................17
SECTION 1.17. NO SECURITY INTEREST CREATED..............................................17
SECTION 1.18. LIMITATION ON INDIVIDUAL LIABILITY........................................17
ARTICLE 2 SECURITIES FORMS.................................................................18
SECTION 2.1. FORMS GENERALLY............................................................18
SECTION 2.2. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION............................18
SECTION 2.3. SECURITIES IN GLOBAL FORM..................................................19
ARTICLE 3 THE SECURITIES...................................................................20
SECTION 3.1. AMOUNT UNLIMITED; ISSUABLE IN SERIES.......................................20
SECTION 3.2. CURRENCY; DENOMINATIONS....................................................24
SECTION 3.3. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.............................24
SECTION 3.4. TEMPORARY SECURITIES.......................................................26
SECTION 3.5. REGISTRATION, TRANSFER AND EXCHANGE........................................27
SECTION 3.6. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES...........................30
SECTION 3.7. PAYMENT OF INTEREST AND CERTAIN ADDITIONAL AMOUNTS; RIGHTS TO INTEREST AND
CERTAIN ADDITIONAL AMOUNTS PRESERVED......................................31
SECTION 3.8. PERSONS DEEMED OWNERS......................................................33
SECTION 3.9. CANCELLATION...............................................................34
</TABLE>
i
<PAGE> 4
<TABLE>
<S> <C>
SECTION 3.10. COMPUTATION OF INTEREST...................................................34
ARTICLE 4 SATISFACTION AND DISCHARGE OF INDENTURE..........................................34
SECTION 4.1. SATISFACTION AND DISCHARGE.................................................34
SECTION 4.2. DEFEASANCE AND COVENANT DEFEASANCE.........................................36
SECTION 4.3. APPLICATION OF TRUST MONEY.................................................40
ARTICLE 5 REMEDIES.........................................................................40
SECTION 5.1. EVENTS OF DEFAULT..........................................................40
SECTION 5.2. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.........................42
SECTION 5.3. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE............43
SECTION 5.4. TRUSTEE MAY FILE PROOFS OF CLAIM...........................................44
SECTION 5.5. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES OR COUPONS.....45
SECTION 5.6. APPLICATION OF MONEY COLLECTED.............................................45
SECTION 5.7. LIMITATIONS ON SUITS.......................................................46
SECTION 5.8. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL AND ANY PREMIUM,
INTEREST AND ADDITIONAL AMOUNTS...........................................47
SECTION 5.9. RESTORATION OF RIGHTS AND REMEDIES.........................................47
SECTION 5.10. RIGHTS AND REMEDIES CUMULATIVE............................................47
SECTION 5.11. DELAY OR OMISSION NOT WAIVER..............................................47
SECTION 5.12. CONTROL BY HOLDERS OF SECURITIES..........................................48
SECTION 5.13. WAIVER OF PAST DEFAULTS...................................................48
SECTION 5.14. WAIVER OF USURY, STAY OR EXTENSION LAWS...................................48
SECTION 5.15. UNDERTAKING FOR COSTS.....................................................49
ARTICLE 6 THE TRUSTEE......................................................................49
SECTION 6.1. CERTAIN RIGHTS OF TRUSTEE..................................................49
SECTION 6.2. NOTICE OF DEFAULTS.........................................................51
SECTION 6.3. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.....................51
SECTION 6.4. MAY HOLD SECURITIES........................................................51
SECTION 6.5. MONEY HELD IN TRUST........................................................51
SECTION 6.6. COMPENSATION AND REIMBURSEMENT.............................................52
SECTION 6.7. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY....................................53
SECTION 6.8. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR..........................53
SECTION 6.9. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.....................................54
SECTION 6.10. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS...............56
SECTION 6.11. APPOINTMENT OF AUTHENTICATING AGENT.......................................56
ARTICLE 7 HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY.................................58
</TABLE>
ii
<PAGE> 5
<TABLE>
<S> <C>
SECTION 7.1. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS..................58
SECTION 7.2. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.....................58
SECTION 7.3. REPORTS BY TRUSTEE.........................................................59
SECTION 7.4. REPORTS BY COMPANY.........................................................59
ARTICLE 8 CONSOLIDATION, MERGER AND SALES..................................................60
SECTION 8.1. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.......................60
SECTION 8.2. SUCCESSOR PERSON SUBSTITUTED FOR COMPANY...................................61
ARTICLE 9 SUPPLEMENTAL INDENTURES..........................................................61
SECTION 9.1. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.........................61
SECTION 9.2. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS............................62
SECTION 9.3. EXECUTION OF SUPPLEMENTAL INDENTURES.......................................64
SECTION 9.4. EFFECT OF SUPPLEMENTAL INDENTURES..........................................64
SECTION 9.5. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.........................64
SECTION 9.6. CONFORMITY WITH TRUST INDENTURE ACT........................................64
SECTION 9.7. NOTICE OF SUPPLEMENTAL INDENTURE...........................................64
ARTICLE 10 COVENANTS.......................................................................65
SECTION 10.1. PAYMENT OF PRINCIPAL, ANY PREMIUM, INTEREST AND ADDITIONAL AMOUNTS........65
SECTION 10.2. MAINTENANCE OF OFFICE OR AGENCY...........................................65
SECTION 10.3. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.........................66
SECTION 10.4. ADDITIONAL AMOUNTS........................................................68
SECTION 10.5. LIMITATION ON MORTGAGES AND LIENS.........................................68
SECTION 10.6. LIMITATION UPON SALES OF CAPITAL STOCK OF RESTRICTED SUBSIDIARIES.........70
SECTION 10.7. CORPORATE EXISTENCE.......................................................70
SECTION 10.8. WAIVER OF CERTAIN COVENANTS...............................................71
SECTION 10.9. COMPANY STATEMENT AS TO COMPLIANCE; NOTICE OF CERTAIN DEFAULTS............71
ARTICLE 11 REDEMPTION OF SECURITIES........................................................72
SECTION 11.1. APPLICABILITY OF ARTICLE..................................................72
SECTION 11.2. ELECTION TO REDEEM; NOTICE TO TRUSTEE.....................................72
SECTION 11.3. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.........................72
SECTION 11.4. NOTICE OF REDEMPTION......................................................73
SECTION 11.5. DEPOSIT OF REDEMPTION PRICE...............................................74
SECTION 11.6. SECURITIES PAYABLE ON REDEMPTION DATE.....................................74
SECTION 11.7. SECURITIES REDEEMED IN PART...............................................75
ARTICLE 12 SINKING FUNDS...................................................................76
</TABLE>
iii
<PAGE> 6
<TABLE>
<S> <C>
SECTION 12.1. APPLICABILITY OF ARTICLE..................................................76
SECTION 12.2. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.....................76
SECTION 12.3. REDEMPTION OF SECURITIES FOR SINKING FUND.................................77
ARTICLE 13 REPAYMENT AT THE OPTION OF HOLDERS..............................................77
SECTION 13.1. APPLICABILITY OF ARTICLE..................................................77
ARTICLE 14 SECURITIES IN FOREIGN CURRENCIES................................................78
SECTION 14.1. APPLICABILITY OF ARTICLE..................................................78
ARTICLE 15 MEETINGS OF HOLDERS OF SECURITIES...............................................78
SECTION 15.1. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.................................78
SECTION 15.2. CALL, NOTICE AND PLACE OF MEETINGS........................................78
SECTION 15.3. PERSONS ENTITLED TO VOTE AT MEETINGS......................................79
SECTION 15.4. QUORUM; ACTION............................................................79
SECTION 15.5. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF MEETINGS.......80
SECTION 15.6. COUNTING VOTES AND RECORDING ACTION OF MEETINGS...........................81
</TABLE>
iv
<PAGE> 7
INDENTURE, dated as of ______, 2000 (the "Indenture"), among SAFECO
CORPORATION, a corporation duly organized and existing under the laws of the
State of Washington (hereinafter called the "Company"), having its principal
executive office located at SAFECO Plaza, 4333 Brooklyn Avenue, N.E., Seattle,
Washington 98185, and THE CHASE MANHATTAN BANK, a New York banking corporation,
as trustee (hereinafter called the "Trustee"), having its Corporate Trust Office
located at 270 Park Avenue, New York, New York.
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured,
unsubordinated debentures, notes or other evidences of indebtedness (hereinafter
called the "Securities"), unlimited as to principal amount, to bear such rates
of interest, to mature at such time or times, to be issued in one or more series
and to have such other provisions as shall be fixed as hereinafter provided.
The Company has duly authorized the execution and delivery of this
Indenture. All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, and the rules and regulations of the Securities and
Exchange Commission promulgated thereunder that are required to be part of this
Indenture and, to the extent applicable, shall be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as herein defined) thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders of the
Securities or of any series thereof and any Coupons (as herein defined) as
follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1. DEFINITIONS.
Except as otherwise expressly provided in or pursuant to this Indenture
or unless the context otherwise requires, for all purposes of this Indenture:
(1) the terms defined in this Article have the meanings assigned
to them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
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(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles in the United States of America and, except as
otherwise herein expressly provided, the terms "generally accepted
accounting principles" or "GAAP" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted in the United States of America at the date or
time of such computation;
(4) the words "herein," "hereof," "hereto" 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; and
(5) the word "or" is always used inclusively (for example, the
phrase "A or B" means "A or B or both," not "either A or B but not
both").
Certain terms used principally in certain Articles hereof are defined in
those Articles.
"Act," when used with respect to any Holders, has the meaning specified
in Section 1.4.
"Additional Amounts" means any additional amounts which are required
hereby or by any Security, under circumstances specified herein or therein, to
be paid by the Company in respect of certain taxes, assessments or other
governmental charges imposed on Holders specified therein and which are owing to
such Holders.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control," when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have the meanings correlative to
the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.11 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in an official language of the
place of publication or in the English language, customarily published on each
day that is a Business Day in the place of publication, whether or not published
on days that are Legal Holidays in the place of publication, and of general
circulation in each place in connection with which the term is used or in the
financial community of each such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any day that is a Business Day in the
place of publication.
"Authorized Officer" means, when used with respect to the Company, the
Chairman of the Board of Directors, the President, any Vice President, the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of
the Company.
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"Bearer Security" means any Security in the form established pursuant to
Section 2.1 which is payable to bearer.
"Board of Directors" means the board of directors of the Company or any
committee of that board duly authorized to act generally or in any particular
respect for the Company hereunder.
"Board Resolution" means a copy of one or more resolutions, certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, delivered to the Trustee.
"Business Day," with respect to any Place of Payment or other location,
means, unless otherwise specified with respect to any Securities pursuant to
Section 3.1, any day other than a Saturday, Sunday or other day on which banking
institutions in such Place of Payment or other location are authorized or
obligated by law, regulation or executive order to close.
"Capital Stock" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, including Preferred
Stock, but excluding any debt securities convertible into such equity.
"Capitalized Lease Obligation" means an obligation under a lease that is
required to be capitalized for financial reporting purposes in accordance with
generally accepted accounting principles, and the amount of Indebtedness
represented by such obligation shall be the capitalized amount of such
obligation determined in accordance with such principles.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Common Stock" in respect of any Corporation means Capital Stock of any
class or classes (however designated) which has no preference as to the payment
of dividends, or as to the distribution of assets upon any voluntary or
involuntary liquidation or dissolution of such Corporation, and which is not
subject to redemption by such Corporation.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person, and any other obligor upon the Securities.
"Company Request" and "Company Order" mean, respectively, a written
request or order, as the case may be, signed in the name of the Company by an
Authorized Officer, and delivered to the Trustee.
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<PAGE> 10
"Conversion Event" means the cessation of use of (i) a Foreign Currency
both by the government of the country or the confederation which issued such
Foreign Currency and for the settlement of transactions by a central bank or
other public institutions of or within the international banking community or
(ii) any currency unit or composite currency for the purposes for which it was
established.
"Corporate Trust Office" means the principal corporate trust office of
the Trustee at which at any particular time its corporate trust business shall
be administered, which office at the date of original execution of this
Indenture is located at 270 Park Avenue, New York, New York.
"Corporation" includes corporations and limited liability companies and,
except for purposes of Article 8, associations, companies and business trusts.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Currency," with respect to any payment, deposit or other transfer in
respect of the principal of or any premium or interest on or any Additional
Amounts with respect to any Security, means Dollars or the Foreign Currency, as
the case may be, in which such payment, deposit or other transfer is required to
be made by or pursuant to the terms hereof or such Security and, with respect to
any other payment, deposit or transfer pursuant to or contemplated by the terms
hereof or such Security, means Dollars.
"CUSIP number" means the alphanumeric designation assigned to a Security
by Standard & Poor's Ratings Service, CUSIP Service Bureau.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Dollars" or "$" means a dollar or other equivalent unit of legal
tender for payment of public or private debts in the United States of America.
"Event of Default" has the meaning specified in Section 5.1.
"Foreign Currency" means any currency, currency unit or composite
currency, including, without limitation, the euro, issued by the government of
one or more countries other than the United States of America or by any
recognized confederation or association of such governments.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the other government or
governments which issued the Foreign Currency in which the principal of or any
premium or interest on such Security or any Additional Amounts in respect
thereof shall be payable, in each case where the payment or payments thereunder
are supported by the full faith and credit of such government or governments or
(ii) obligations of a Person controlled or supervised by and acting as an agency
or instrumentality of the United States of America or such other government or
governments, in each case where the timely payment or payments thereunder are
unconditionally guaranteed as a full faith and credit
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<PAGE> 11
obligation by the United States of America or such other government or
governments, and which, in the case of (i) or (ii), are not callable or
redeemable at the option of the issuer or issuers thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of or other amount with respect to any such Government Obligation
held by such custodian for the account of the holder of a depository receipt,
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest on or principal of or other
amount with respect to the Government Obligation evidenced by such depository
receipt.
"Holder," in the case of any Registered Security, means the Person in
whose name such Security is registered in the Security Register and, in the case
of any Bearer Security, means the bearer thereof and, in the case of any Coupon,
means the bearer thereof.
"Indebtedness" means, with respect to any Person, (i) the principal of
and any premium and interest on (a) indebtedness of such Person for money
borrowed and (b) indebtedness evidenced by notes, debentures, bonds or other
similar instruments for the payment of which such Person is responsible or
liable; (ii) all Capitalized Lease Obligations of such Person; (iii) all
obligations of such Person issued or assumed as the deferred purchase price of
property, all conditional sale obligations and all obligations under any title
retention agreement (but excluding trade accounts payable arising in the
ordinary course of business); (iv) all obligations of such Person for the
reimbursement of any obligor on any letter of credit, banker's acceptance or
similar credit transaction (other than obligations with respect to letters of
credit securing obligations (other than obligations described in (i) through
(iii) above) entered into in the ordinary course of business of such Person to
the extent such letters of credit are not drawn upon or, if and to the extent
drawn upon, such drawing is reimbursed no later than the third Business Day
following receipt by such Person of a demand for reimbursement following payment
on the letter of credit); (v) all obligations of the type referred to in clauses
(i) through (iv) of other Persons and all dividends of other Persons for the
payment of which, in either case, such Person is responsible or liable as
obligor, guarantor or otherwise; and (vi) all obligations of the type referred
to in clauses (i) through (v) of other Persons secured by any Lien on any
property or asset of such Person (whether or not such obligation is assumed by
such Person), the amount of such obligation being deemed to be the lesser of the
value of such property or assets or the amount of the obligation so secured; and
(vii) any amendments, modifications, refundings, renewals or extensions of any
indebtedness or obligation described as Indebtedness in clauses (i) through (vi)
above.
"Indenture" means this instrument as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and, with respect to any
Security, by the terms and provisions of such Security and any Coupon
appertaining thereto established pursuant to Section 3.1 (as such terms and
provisions may be amended pursuant to the applicable provisions hereof).
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<PAGE> 12
"Independent Public Accountants" means accountants or a firm of
accountants that, with respect to the Company and any other obligor under the
Securities or the Coupons, are independent public accountants within the meaning
of the Securities Act of 1933, as amended, and the rules and regulations
promulgated by the Commission thereunder, who may be the independent public
accountants regularly retained by the Company or who may be other independent
public accountants. Such accountants or firm shall be entitled to rely upon any
Opinion of Counsel as to the interpretation of any legal matters relating to
this Indenture or certificates required to be provided hereunder.
"Indexed Security" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"Interest," with respect to any Original Issue Discount Security which
by its terms bears interest only after Maturity, means interest payable after
Maturity and, when used with respect to a Security which provides for the
payment of Additional Amounts pursuant to Section 10.4, includes such Additional
Amounts.
"Interest Payment Date," with respect to any Security, means the Stated
Maturity of an installment of interest on such Security.
"Judgment Currency" has the meaning specified in Section 1.16.
"Legal Holidays" has the meaning specified in Section 1.14.
"Lien" has the meaning specified in Section 10.5.
"Maturity," with respect to any Security, means the date on which the
principal of such Security or an installment of principal becomes due and
payable as provided in or pursuant to this Indenture, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption or repurchase,
notice of option to elect repayment or otherwise, and includes the Redemption
Date.
"New York Banking Day" has the meaning specified in Section 1.16.
"Office" or "Agency," with respect to any Securities, means an office or
agency of the Company maintained or designated in a Place of Payment for such
Securities pursuant to Section 10.2 or any other office or agency of the Company
maintained or designated for such Securities pursuant to Section 10.2 or, to the
extent designated or required by Section 10.2 in lieu of such office or agency,
the Corporate Trust Office of the Trustee.
"Officer's Certificate" means a certificate signed by an Authorized
Officer that complies with the requirements of Section 314(e) of the Trust
Indenture Act and is delivered to the Trustee.
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<PAGE> 13
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company, or other counsel who shall be reasonably
acceptable to the Trustee, that, if required by the Trust Indenture Act,
complies with the requirements of Section 314(e) of the Trust Indenture Act.
"Original Issue Discount Security" means a Security issued pursuant to
this Indenture which provides for declaration of an amount less than the
principal face amount thereof to be due and payable upon acceleration pursuant
to Section 5.2.
"Outstanding," when used with respect to any Securities, means, as of
the date of determination, all such Securities theretofore authenticated and
delivered under this Indenture, except:
(a) any such Security theretofore cancelled by the Trustee or
the Security Registrar or delivered to the Trustee or the
Security Registrar for cancellation;
(b) any such Security for whose payment at the Maturity
thereof money in the necessary amount has been theretofore
deposited pursuant hereto (other than pursuant to Section
4.2) with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying
Agent) for the Holders of such Securities and any Coupons
appertaining thereto, provided that, if such Securities
are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(c) any such Security with respect to which the Company has
effected defeasance pursuant to the terms hereof, except
to the extent provided in Section 4.2;
(d) any such Security which has been paid pursuant to Section
3.6 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant
to this Indenture, unless there shall have been presented
to the Trustee proof satisfactory to it that such Security
is held by a bona fide purchaser in whose hands such
Security is a valid obligation of the Company; and
(e) any such Security converted or exchanged as contemplated
by this Indenture into securities of the Company or
another issuer, if the terms of such Security provide for
such conversion or exchange pursuant to Section 3.1;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent
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<PAGE> 14
or waiver hereunder or are present at a meeting of Holders of Securities for
quorum purposes, (i) the principal amount of an Original Issue Discount Security
that may be counted in making such determination and that shall be deemed to be
Outstanding for such purposes shall be equal to the amount of the principal
thereof that pursuant to the terms of such Original Issue Discount Security
would be declared (or shall have been declared to be) due and payable upon a
declaration of acceleration thereof pursuant to Section 5.2 at the time of such
determination, and (ii) the principal amount of any Indexed Security that may be
counted in making such determination and that shall be deemed Outstanding for
such purposes shall be equal to the principal face amount of such Indexed
Security at original issuance, unless otherwise provided in or pursuant to this
Indenture, and (iii) the principal amount of a Security denominated in a Foreign
Currency shall be the Dollar equivalent, determined on the date of original
issuance of such Security, of the principal amount (or, in the case of an
Original Issue Discount Security, the Dollar equivalent on the date of original
issuance of such Security of the amount determined as provided in (i) above) of
such Security, and (iv) Securities owned by the Company or any other obligor
upon the Securities or any Affiliate of the Company or such other obligor shall
be disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in making any such determination or
relying upon any such request, demand, authorization, direction, notice, consent
or waiver, only Securities which a Responsible Officer of the Trustee actually
knows to be so owned shall be so disregarded. Securities so owned which shall
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee (A) the pledgee's right so to act
with respect to such Securities and (B) that the pledgee is not the Company or
any other obligor upon the Securities or any Coupons appertaining thereto or an
Affiliate of the Company or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, or any premium or interest on, or any Additional Amounts with
respect to, any Security or any Coupon on behalf of the Company.
"Person" means any individual, Corporation, partnership, joint venture,
joint-stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Place of Payment," with respect to any Security, means the place or
places where the principal of, or any premium or interest on, or any Additional
Amounts with respect to such Security are payable as provided in or pursuant to
this Indenture or such Security.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same Indebtedness as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.6 in exchange for or in
lieu of a lost, destroyed, mutilated or stolen Security or any Security to which
a mutilated, destroyed, lost or stolen Coupon appertains shall be deemed to
evidence the same Indebtedness as the lost, destroyed, mutilated or stolen
Security or the Security to which a mutilated, destroyed, lost or stolen Coupon
appertains.
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<PAGE> 15
"Preferred Stock" in respect of any Corporation means Capital Stock of
any class or classes (however designated) which is preferred as to the payment
of dividends, or as to the distribution of assets upon any voluntary or
involuntary liquidation or dissolution of such Corporation, over shares of
Capital Stock of any other class of such Corporation.
"Redemption Date," with respect to any Security or portion thereof to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture or such Security.
"Redemption Price," with respect to any Security or portion thereof to
be redeemed, means the price at which it is to be redeemed as determined by or
pursuant to this Indenture or such Security.
"Registered Security" means any Security established pursuant to Section
2.1 which is registered in a Security Register.
"Regular Record Date" for the interest payable on any Registered
Security on any Interest Payment Date therefor means the date, if any, specified
in or pursuant to this Indenture or such Security as the "Regular Record Date".
"Required Currency" has the meaning specified in Section 1.16.
"Responsible Officer" means any vice president, any assistant vice
president, the secretary, any assistant secretary, the treasurer, any assistant
treasurer, or any trust officer or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"Restricted Subsidiary" has the meaning specified in Section 10.6.
"Security" or "Securities" means any note or notes, bond or bonds,
debenture or debentures, or any other evidences of Indebtedness, as the case may
be, authenticated and delivered under this Indenture; provided, however, that,
if at any time there is more than one Person acting as Trustee under this
Indenture, "Securities," with respect to any such Person, shall mean Securities
authenticated and delivered under this Indenture, exclusive, however, of
Securities of any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5.
"Special Record Date" for the payment of any Defaulted Interest on any
Registered Security means a date fixed by the Company pursuant to Section 3.7.
"Stated Maturity," with respect to any Security or any installment of
principal thereof or interest thereon, or any Additional Amounts with respect
thereto, means the date established by
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<PAGE> 16
or pursuant to this Indenture or such Security as the fixed date on which the
principal of such Security or such installment of principal or interest is, or
such Additional Amounts are, due and payable.
"Subsidiary" means, in respect of any Person, any Corporation, limited
or general partnership or other business entity of which at the time of
determination more than 50% of the voting power of the shares of its Capital
Stock or other interests (including partnership interests) entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is owned or controlled, directly or
indirectly, by (i) such Person, (ii) such Person and one or more Subsidiaries of
such Person or (iii) one or more Subsidiaries of such Person.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended,
and any reference herein to the Trust Indenture Act or a particular provision
thereof shall mean such Act or provision, as the case may be, as amended or
replaced from time to time or as supplemented from time to time by rules or
regulations adopted by the Commission under or in furtherance of the purposes of
such Act or provision, as the case may be.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such with respect
to one or more series of Securities pursuant to the applicable provisions of
this Indenture, and thereafter "Trustee" shall mean each Person who is then a
Trustee hereunder; provided, however, that if at any time there is more than one
such Person, "Trustee" shall mean each such Person and as used with respect to
the Securities of any series shall mean the Trustee with respect to the
Securities of such series.
"United States," except as otherwise provided in or pursuant to this
Indenture or any Security, means the United States of America (including the
states thereof and the District of Columbia), its territories and possessions
and other areas subject to its jurisdiction.
"United States Alien," except as otherwise provided in or pursuant to
this Indenture or any Security, means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
"U.S. Depository" or "Depository" means, with respect to any Security
issuable or issued in the form of one or more global Securities, the Person
designated as U.S. Depository or Depository by the Company in or pursuant to
this Indenture, which Person must be, to the extent required by applicable law
or regulation, a clearing agency registered under the Securities Exchange Act of
1934, as amended, and, if so provided with respect to any Security, any
successor to such Person. If at any time there is more than one such Person,
"U.S. Depository" or "Depository" shall mean, with respect to any Securities,
the qualifying entity which has been appointed with respect to such Securities.
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<PAGE> 17
"Vice President," when used with respect to the Company 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 "Vice President".
SECTION 1.2. COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided in this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officer's Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
or any of them is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include:
(1) a statement that the individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such condition or
covenant has been complied with; and
(4) a statement as to whether, in the opinion of such individual,
such condition or covenant has been complied with.
SECTION 1.3. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, provided
that such officer, after reasonable inquiry, has no reason to believe and does
not believe that the Opinion of Counsel with respect to
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<PAGE> 18
the matters upon which his certificate or opinion is based is erroneous. Any
such Opinion of Counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or officers
of the Company stating that the information with respect to such factual matters
is in the possession of the Company, provided that such counsel, after
reasonable inquiry, has no reason to believe and does not believe that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture or any Security, they may, but need not, be
consolidated and form one instrument.
SECTION 1.4. ACTS OF HOLDERS.
(1) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by or pursuant to this
Indenture to be given or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar tenor
signed by such Holders in person or by an agent duly appointed in
writing. If, but only if, Securities of a series are issuable as Bearer
Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided in or pursuant to this
Indenture to be given or taken by Holders of Securities of such series
may, alternatively, be embodied in and evidenced by the record of
Holders of Securities of such series voting in favor thereof, either in
person or by proxies duly appointed in writing, at any meeting of
Holders of Securities of such series duly called and held in accordance
with the provisions of Article 15, or a combination of such instruments
and any such record. Except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments or
record or both are delivered to the Trustee and, where it is hereby
expressly required, to the Company. Such instrument or instruments and
any such record (and the action embodied therein and evidenced thereby)
are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments or so voting at any such meeting. Proof
of execution of any such instrument or of a writing appointing any such
agent, or of the holding by any Person of a Security, shall be
sufficient for any purpose of this Indenture and (subject to Section 315
of the Trust Indenture Act) conclusive in favor of the Trustee and the
Company and any agent of the Trustee and the Company, if made in the
manner provided in this Section. The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 15.6.
Without limiting the generality of this Section 1.4, unless
otherwise provided in or pursuant to this Indenture, a Holder, including
a U.S. Depository that is a Holder of a global Security, may make, give
or take, by a proxy or proxies, duly appointed in writing, any request,
demand, authorization, direction, notice, consent, waiver or other Act
provided in or pursuant to this Indenture to be made, given or taken by
Holders, and a U.S. Depository that is a Holder of a global Security may
provide its proxy or proxies to
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the beneficial owners of interests in any such global Security through
such U.S. Depository's standing instructions and customary practices.
The Company shall fix a record date for the purpose of
determining the Persons who are beneficial owners of interest in any
permanent global Security held by a U.S. Depository entitled under the
procedures of such U.S. Depository to make, give or take, by a proxy or
proxies duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other Act provided in or pursuant
to this Indenture to be made, given or taken by Holders. If such a
record date is fixed, the Holders on such record date or their duly
appointed proxy or proxies, and only such Persons, shall be entitled to
make, give or take such request, demand, authorization, direction,
notice, consent, waiver or other Act, whether or not such Holders remain
Holders after such record date. No such request, demand, authorization,
direction, notice, consent, waiver or other Act shall be valid or
effective if made, given or taken more than 90 days after such record
date.
(2) The fact and date of the execution by any Person of any such
instrument or writing referred to in this Section 1.4 may be proved in
any reasonable manner; and the Trustee may in any instance require
further proof with respect to any of the matters referred to in this
Section.
(3) The ownership, principal amount and serial numbers of
Registered Securities held by any Person, and the date of the
commencement and the date of the termination of holding the same, shall
be proved by the Security Register.
(4) The ownership, principal amount and serial numbers of Bearer
Securities held by any Person, and the date of the commencement and the
date of the termination of holding the same, may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary
reasonably acceptable to the Company, wherever situated, if such
certificate shall be deemed by the Company and the Trustee to be
satisfactory, showing that at the date therein mentioned such Person had
on deposit with such depositary, or exhibited to it, the Bearer
Securities therein described; or such facts may be proved by the
certificate or affidavit of the Person holding such Bearer Securities,
if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership
of any Bearer Security continues until (i) another certificate or
affidavit bearing a later date issued in respect of the same Bearer
Security is produced, or (ii) such Bearer Security is produced to the
Trustee by some other Person, or (iii) such Bearer Security is
surrendered in exchange for a Registered Security, or (iv) such Bearer
Security is no longer Outstanding. The ownership, principal amount and
serial numbers of Bearer Securities held by the Person so executing such
instrument or writing and the date of the commencement and the date of
the termination of holding the same may also be proved in any other
manner which the Company and the Trustee deem sufficient.
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(5) If the Company shall solicit from the Holders of any
Registered Securities any request, demand, authorization, direction,
notice, consent, waiver or other Act, the Company may at its option (but
is not obligated to), by Board Resolution, fix in advance a record date
for the determination of Holders of Registered Securities entitled to
give such request, demand, authorization, direction, notice, consent,
waiver or other Act. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other Act
may be given before or after such record date, but only the Holders of
Registered Securities of record at the close of business on such record
date shall be deemed to be Holders for the purpose of determining
whether Holders of the requisite proportion of Outstanding Securities
have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Securities shall be computed as of such
record date; provided that no such authorization, agreement or consent
by the Holders of Registered Securities shall be deemed effective unless
it shall become effective pursuant to the provisions of this Indenture
not later than six months after the record date.
(6) Any request, demand, authorization, direction, notice,
consent, waiver or other Act by the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done or suffered to
be done by the Trustee, any Security Registrar, any Paying Agent or the
Company in reliance thereon, whether or not notation of such Act is made
upon such Security.
SECTION 1.5. NOTICES, ETC. TO THE TRUSTEE AND THE COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to the Company
addressed to the attention of its Chief Financial Officer, Controller or
Secretary, at the address of its principal office specified in the first
paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 1.6. NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise expressly provided in or pursuant to this Indenture,
where this Indenture provides for notice to Holders of Securities of any event,
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(1) such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed, first-class postage
prepaid, to each Holder of a Registered Security affected by such event,
at his address as it appears in the Security Register, not later than
the latest date, and not earlier than the earliest date, prescribed for
the giving of such notice; and
(2) such notice shall be sufficiently given to Holders of Bearer
Securities, if any, if published in an Authorized Newspaper in The City
of New York and, if such Securities are then listed on any stock
exchange outside the United States, in an Authorized Newspaper in such
city as the Company shall advise the Trustee that such stock exchange so
requires, on a Business Day at least twice, the first such publication
to be not earlier than the earliest date and the second such publication
not later than the latest date prescribed for the giving of such notice.
In any case where notice to Holders of Registered Securities is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder of a Registered Security shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given or provided. In
the case by reason of the suspension of regular mail service or by reason of any
other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearers Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice mailed to
Holders of Registered Securities as provided above.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders of Securities shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
SECTION 1.7. LANGUAGE OF NOTICES.
Any request, demand, authorization, direction, notice, consent, election
or waiver required or permitted under this Indenture shall be in the English
language, except that, if the Company so elects, any published notice may be in
an official language of the country of publication.
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SECTION 1.8. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with any duties
under any required provision of the Trust Indenture Act imposed hereon by
Section 318(c) thereof, such required provision shall control.
SECTION 1.9. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1.10. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 1.11. SEPARABILITY CLAUSE.
In case any provision in this Indenture, any Security or any Coupon
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 1.12. BENEFITS OF INDENTURE.
Nothing in this Indenture, any Security or any Coupon, express or
implied, shall give to any Person, other than the parties hereto, any Security
Registrar, any Paying Agent, any Authenticating Agent and their successors
hereunder and the Holders of Securities or Coupons, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 1.13. GOVERNING LAW.
This Indenture, the Securities and any Coupons shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made or instruments entered into and, in each case, performed in said
state.
SECTION 1.14. LEGAL HOLIDAYS.
Unless otherwise specified in or pursuant to this Indenture or any
Securities, in any case where any Interest Payment Date, Stated Maturity or
Maturity of any Security, or the last date on which a Holder has the right to
convert or exchange Securities of a series that are convertible or exchangeable,
shall be a Legal Holiday at any Place of Payment, then (notwithstanding any
other provision of this Indenture, any Security or any Coupon other than a
provision in any Security or Coupon that specifically states that such provision
shall apply in lieu hereof) payment need not be made at such Place of Payment on
such date, and such Securities need not be converted or exchanged on such date
but such payment may be made, and such Securities may be converted or exchanged,
on the next succeeding day that is a Business Day at such Place of Payment with
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the same force and effect as if made on the Interest Payment Date or at the
Stated Maturity or Maturity or on such last day for conversion or exchange, and
no interest shall accrue on the amount payable on such date or at such time for
the period from and after such Interest Payment Date, Stated Maturity, Maturity
or last day for conversion or exchange, as the case may be, to such next
succeeding Business Day.
SECTION 1.15. COUNTERPARTS.
This Indenture may be executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and the same
instrument.
SECTION 1.16. JUDGMENT CURRENCY.
The Company agrees, to the fullest extent that it may effectively do so
under applicable law, that (a) if for the purpose of obtaining judgment in any
court it is necessary to convert the sum due in respect of the principal of, or
premium or interest, if any, or Additional Amounts on the Securities of any
series (the "Required Currency") into a currency in which a judgment will be
rendered (the "Judgment Currency"), the rate of exchange used shall be the rate
at which in accordance with normal banking procedures the Trustee could purchase
in The City of New York the requisite amount of the Required Currency with the
Judgment Currency on the New York Banking Day preceding the day on which a final
unappealable judgment is given and (b) its obligations under this Indenture to
make payments in the Required Currency (i) shall not be discharged or satisfied
by any tender, or any recovery pursuant to any judgment (whether or not entered
in accordance with clause (a)), in any currency other than the Required
Currency, except to the extent that such tender or recovery shall result in the
actual receipt, by the payee, of the full amount of the Required Currency
expressed to be payable in respect of such payments, (ii) shall be enforceable
as an alternative or additional cause of action for the purpose of recovering in
the Required Currency the amount, if any, by which such actual receipt shall
fall short of the full amount of the Required Currency so expressed to be
payable and (iii) shall not be affected by judgment being obtained for any other
sum due under this Indenture. For purposes of the foregoing, "New York Banking
Day" means any day except a Saturday, Sunday or a legal holiday in The City of
New York or a day on which banking institutions in The City of New York are
authorized or obligated by law, regulation or executive order to be closed.
SECTION 1.17. NO SECURITY INTEREST CREATED.
Subject to the provisions of Section 10.5, nothing in this Indenture or
in any Security, express or implied, shall be construed to constitute a security
interest under the Uniform Commercial Code or similar legislation, as now or
hereafter enacted and in effect in any jurisdiction where property of the
Company or its Subsidiaries is or may be located.
SECTION 1.18. LIMITATION ON INDIVIDUAL LIABILITY.
No recourse under or upon any obligation, covenant or agreement
contained in this Indenture or in any Security, or for any claim based thereon
or otherwise in respect thereof, shall
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be had against any incorporator, officer or director, as such, past, present or
future, of the Company, either directly or through the Company, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that this
Indenture and the obligations issued hereunder are solely corporate obligations,
and that no such personal liability whatever shall attach to, or is or shall be
incurred by, the incorporators, shareholders, officers or directors, as such, of
the Company, or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any Security or implied therefrom; and that
any and all such personal liability of every name and nature, either at common
law or in equity or by constitution or statute, of, and any and all such rights
and claims against, every such incorporator, shareholder, officer or director,
as such, because of the creation of the indebtedness hereby authorized, or under
or by reason of the obligations, covenants or agreements contained in this
Indenture or in any Security or implied therefrom, are hereby expressly waived
and released as a condition of, and as a consideration for, the execution of
this Indenture and the issuance of such Security.
ARTICLE 2
SECURITIES FORMS
SECTION 2.1. FORMS GENERALLY.
Each Registered Security, Bearer Security, Coupon and temporary or
permanent global Security issued pursuant to this Indenture shall be in the form
established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, shall have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by or pursuant
to this Indenture or any indenture supplemental hereto and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistently herewith, be determined by the
officers executing such Security or Coupon as evidenced by their execution of
such Security or Coupon.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall be issuable in registered form without Coupons
and shall not be issuable upon the exercise of warrants.
Definitive Securities and definitive Coupons shall be printed,
lithographed or engraved or produced by any combination of these methods on a
steel engraved border or steel engraved borders or may be produced in any other
manner, all as determined by the officers of the Company executing such
Securities or Coupons, as evidenced by their execution of such Securities or
Coupons.
SECTION 2.2. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
Subject to Section 6.11, the Trustee's certificate of authentication
shall be in substantially the following form:
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This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By
----------------------------------
Authorized Officer
SECTION 2.3. SECURITIES IN GLOBAL FORM.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall not be issuable in temporary or permanent
global form. If Securities of a series shall be issuable in global form, any
such Security may provide that it or any number of such Securities shall
represent the aggregate amount of all Outstanding Securities of such series (or
such lesser amount as is permitted by the terms thereof) from time to time
endorsed thereon and may also provide that the aggregate amount of Outstanding
Securities represented thereby may from time to time be increased or reduced to
reflect exchanges. Any endorsement of any Security in global form to reflect the
amount, or any increase or decrease in the amount, or changes in the rights of
Holders, of Outstanding Securities represented thereby shall be made in such
manner and by such Person or Persons as shall be specified therein or in the
Company Order to be delivered pursuant to Section 3.3 or 3.4 with respect
thereto. Subject to the provisions of Section 3.3 and, if applicable, Section
3.4, the Trustee shall deliver and redeliver, in each case at the Company's
expense, any Security in permanent global form in the manner and upon
instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 3.3 or 3.4 has
been, or simultaneously is, delivered, any instructions by the Company with
respect to a Security in global form shall be in writing but need not be
accompanied by or contained in an Officer's Certificate and need not be
accompanied by an Opinion of Counsel.
Notwithstanding the provisions of Section 3.7, unless otherwise
specified in or pursuant to this Indenture or any Security, payment of principal
of, any premium and interest on, and any Additional Amounts in respect of, any
Security in temporary or permanent global form shall be made to the Person or
Persons specified therein.
Notwithstanding the provisions of Section 3.8 and except as provided in
the preceding paragraph, the Company, the Trustee and any agent of the Company
or the Trustee shall treat as the Holder of such principal amount of Outstanding
Securities represented by a global Security (i) in the case of a global Security
in registered form, the Holder of such global Security in registered form, or
(ii) in the case of a global Security in bearer form, the Person or Persons
specified pursuant to Section 3.1.
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ARTICLE 3
THE SECURITIES
SECTION 3.1. 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.
With respect to any Securities to be authenticated and delivered
hereunder, there shall be established in or pursuant to a Board Resolution and
set forth in an Officer's Certificate, or established in one or more indentures
supplemental hereto,
(1) the title of such Securities and the series in which such
Securities shall be included;
(2) any limit upon the aggregate principal amount of the
Securities of such title or the Securities of such series which may be
authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of such series pursuant to
Section 3.4, 3.5, 3.6, 9.5 or 11.7, upon repayment in part of any
Registered Security of such series pursuant to Article 13, upon
surrender in part of any Registered Security for conversion into other
securities of the Company or exchange for securities of another issuer
pursuant to its terms, or pursuant to or as contemplated by the terms of
such Securities);
(3) if such Securities are to be issuable as Registered
Securities, as Bearer Securities or alternatively as Bearer Securities
and Registered Securities, and whether the Bearer Securities are to be
issuable with Coupons, without Coupons or both, and any restrictions
applicable to the offer, sale or delivery of the Bearer Securities and
the terms, if any, upon which Bearer Securities may be exchanged for
Registered Securities and vice versa;
(4) if any of such Securities are to be issuable in global form,
when any of such Securities are to be issuable in global form and (i)
whether such Securities are to be issued in temporary or permanent
global form or both, (ii) whether beneficial owners of interests in any
such global Security may exchange such interests for Securities of the
same series and of like tenor and of any authorized form and
denomination, and the circumstances under which any such exchanges may
occur, if other than in the manner specified in Section 3.5, and (iii)
the name of the Depository or the U.S. Depository, as the case may be,
with respect to any such global Security;
(5) if any of such Securities are to be issuable as Bearer
Securities or in global form, the date as of which any such Bearer
Security or global Security shall be dated (if other than the date of
original issuance of the first of such Securities to be issued);
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(6) if any of such Securities are to be issuable as Bearer
Securities, whether interest in respect of any portion of a temporary
Bearer Security in global form payable in respect of an Interest Payment
Date therefor prior to the exchange, if any, of such temporary Bearer
Security for definitive Securities shall be paid to any clearing
organization with respect to the portion of such temporary Bearer
Security held for its account and, in such event, the terms and
conditions (including any certification requirements) upon which any
such interest payment received by a clearing organization will be
credited to the Persons entitled to interest payable on such Interest
Payment Date;
(7) the date or dates, or the method or methods, if any, by which
such date or dates shall be determined, on which the principal of such
Securities is payable;
(8) the rate or rates at which such Securities shall bear
interest, if any, or the method or methods, if any, by which such rate
or rates are to be determined, the date or dates, if any, from which
such interest shall accrue or the method or methods, if any, by which
such date or dates are to be determined, the Interest Payment Dates, if
any, on which such interest shall be payable and the Regular Record
Date, if any, for the interest payable on Registered Securities on any
Interest Payment Date, whether and under what circumstances Additional
Amounts on such Securities or any of them shall be payable, the notice,
if any, to Holders regarding the determination of interest on a floating
rate Security and the manner of giving such notice, and the basis upon
which interest shall be calculated if other than that of a 360-day year
of twelve 30-day months;
(9) if in addition to or other than the Borough of Manhattan, The
City of New York, the place or places where the principal of, any
premium and interest on or any Additional Amounts with respect to such
Securities shall be payable, any of such Securities that are Registered
Securities may be surrendered for registration of transfer or exchange,
any of such Securities may be surrendered for conversion or exchange and
notices or demands to or upon the Company in respect of such Securities
and this Indenture may be served, the extent to which, or the manner in
which, any interest payment or Additional Amounts on a global Security
on an Interest Payment Date, will be paid and the manner in which any
principal of or premium, if any, on any global Security will be paid;
(10) whether any of such Securities are to be redeemable at the
option of the Company and, if so, the date or dates on which, the period
or periods within which, the price or prices at which and the other
terms and conditions upon which such Securities may be redeemed, in
whole or in part, at the option of the Company;
(11) whether the Company is obligated to redeem or purchase any
of such Securities pursuant to any sinking fund or analogous provision
or at the option of any Holder thereof and, if so, the date or dates on
which, the period or periods within which, the price or prices at which
and the other terms and conditions upon which such Securities shall be
redeemed or purchased, in whole or in part, pursuant to such
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obligation, and any provisions for the remarketing of such Securities so
redeemed or purchased;
(12) the denominations in which any of such Securities that are
Registered Securities shall be issuable if other than denominations of
$1,000 and any integral multiple thereof, and the denominations in which
any of such Securities that are Bearer Securities shall be issuable if
other than the denomination of $5,000;
(13) whether the Securities of the series will be convertible
into other securities of the Company and/or exchangeable for securities
of another issuer, and if so, the terms and conditions upon which such
Securities will be so convertible or exchangeable, and any deletions
from or modifications or additions to this Indenture to permit or to
facilitate the issuance of such convertible or exchangeable Securities
or the administration thereof;
(14) if other than the principal amount thereof, the portion of
the principal amount of any of such Securities that shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 5.2 or the method by which such portion is to be determined;
(15) if other than Dollars, the Foreign Currency in which payment
of the principal of, any premium or interest on or any Additional
Amounts with respect to any of such Securities shall be payable;
(16) if the principal of, any premium or interest on or any
Additional Amounts with respect to any of such Securities are to be
payable, at the election of the Company or a Holder thereof or
otherwise, in Dollars or in a Foreign Currency other than that in which
such Securities are stated to be payable, the date or dates on which,
the period or periods within which, and the other terms and conditions
upon which, such election may be made, and the time and manner of
determining the exchange rate between the Currency in which such
Securities are stated to be payable and the Currency in which such
Securities or any of them are to be paid pursuant to such election, and
any deletions from or modifications of or additions to the terms of this
Indenture to provide for or to facilitate the issuance of Securities
denominated or payable, at the election of the Company or a Holder
thereof or otherwise, in a Foreign Currency;
(17) whether the amount of payments of principal of, any premium
or interest on or any Additional Amounts with respect to such Securities
may be determined with reference to an index, formula or other method or
methods (which index, formula or method or methods may be based, without
limitation, on one or more Currencies, commodities, equity securities,
equity indices or other indices), and, if so, the terms and conditions
upon which and the manner in which such amounts shall be determined and
paid or payable;
(18) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect to any of
such Securities, whether or not such
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Events of Default or covenants are consistent with the Events of Default
or covenants set forth herein;
(19) whether either or both of Section 4.2(2) relating to
defeasance or Section 4.2(3) relating to covenant defeasance shall not
be applicable to the Securities of such series, or any covenants in
addition to those specified in Section 4.2(3) relating to the Securities
of such series which shall be subject to covenant defeasance, and any
deletions from, or modifications or additions to, the provisions of
Article 4 in respect of the Securities of such series;
(20) whether any of such Securities are to be issuable upon the
exercise of warrants, and the time, manner and place for such Securities
to be authenticated and delivered;
(21) if any of such Securities are to be issuable in global form
and are to be issuable in definitive form (whether upon original issue
or upon exchange of a temporary Security) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
then the form and terms of such certificates, documents or conditions;
(22) if there is more than one Trustee, the identity of the
Trustee and, if not the Trustee, the identity of each Security
Registrar, Paying Agent or Authenticating Agent with respect to such
Securities; and
(23) any other terms of such Securities and any other deletions
from or modifications or additions to this Indenture in respect of such
Securities.
All Securities of any one series and all Coupons, if any, appertaining
to Bearer Securities of such series shall be substantially identical except as
to Currency of payments due thereunder, denomination and the rate of interest
thereon, or method of determining the rate of interest, if any, Maturity, and
the date from which interest, if any, shall accrue and except as may otherwise
be provided by the Company in or pursuant to the Board Resolution and set forth
in the Officer's Certificate or in any indenture or indentures supplemental
hereto pertaining to such series of Securities. The terms of the Securities of
any series may provide, without limitation, that the Securities shall be
authenticated and delivered by the Trustee on original issue from time to time
upon written order of persons designated in the Officer's Certificate or
supplemental indenture and that such persons are authorized to determine,
consistent with such Officer's Certificate or any applicable supplemental
indenture, such terms and conditions of the Securities of such series as are
specified in such Officer's Certificate or supplemental indenture. All
Securities of any one series need not be issued at the same time and, unless
otherwise so provided, a series may be reopened for issuances of additional
Securities of such series or to establish additional terms of such series of
Securities.
If any of the terms of the Securities of any series shall be established
by action taken by or pursuant to a Board Resolution, the Board Resolution shall
be delivered to the Trustee at or prior to the delivery of the Officer's
Certificate setting forth the terms of such series.
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SECTION 3.2. CURRENCY; DENOMINATIONS.
Unless otherwise provided in or pursuant to this Indenture, the
principal of, any premium and interest on and any Additional Amounts with
respect to the Securities shall be payable in Dollars. Unless otherwise provided
in or pursuant to this Indenture, Registered Securities denominated in Dollars
shall be issuable in registered form without Coupons in denominations of $1,000
and any integral multiple thereof, and the Bearer Securities denominated in
Dollars shall be issuable in the denomination of $5,000. Securities not
denominated in Dollars shall be issuable in such denominations as are
established with respect to such Securities in or pursuant to this Indenture.
SECTION 3.3. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
Securities shall be executed on behalf of the Company by its Chairman of
the Board, its President, its Chief Financial Officer, its Controller or a Vice
President under its corporate seal reproduced thereon and attested by its
Secretary or one of its Assistant Secretaries. Coupons shall be executed on
behalf of the Company by the President, Chief Financial Officer, Controller or
Treasurer of the Company. The signature of any of these officers on the
Securities or any Coupons appertaining thereto may be manual or facsimile.
Securities and any Coupons appertaining thereto bearing the manual or
facsimile signatures of individuals who were at any time the proper officers of
the Company shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and
delivery of such Securities and Coupons or did not hold such offices at the date
of original issuance of such Securities or Coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities, together with any Coupons
appertaining thereto, executed by the Company, to the Trustee for authentication
and, provided that the Board Resolution and Officer's Certificate or
supplemental indenture or indentures with respect to such Securities referred to
in Section 3.1 and a Company Order for the authentication and delivery of such
Securities have been delivered to the Trustee, the Trustee in accordance with
the Company Order and subject to the provisions hereof and of such Securities
shall authenticate and deliver such Securities. In authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities and any Coupons appertaining thereto, the Trustee
shall be entitled to receive, and (subject to Sections 315(a) through 315(d) of
the Trust Indenture Act) shall be fully protected in relying upon,
(1) 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 in conformity with the
provisions of this Indenture;
(b) all conditions precedent to the authentication and
delivery of such Securities and Coupons, if any, appertaining
thereto, have been complied with and
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that such Securities and Coupons, when completed by appropriate
insertions, executed under the Company's corporate seal and
attested by duly authorized officers of the Company, delivered by
duly authorized officers of the Company to the Trustee for
authentication pursuant to this Indenture, and authenticated and
delivered by the Trustee and issued by the Company in the manner
and subject to any conditions specified in such Opinion of
Counsel, will constitute legally valid and binding obligations of
the Company, enforceable against the Company in accordance with
their terms, except as enforcement thereof may be subject to or
limited by bankruptcy, insolvency, reorganization, moratorium,
arrangement, fraudulent conveyance, fraudulent transfer or other
similar laws relating to or affecting creditors' rights
generally, and subject to general principles of equity
(regardless of whether enforcement is sought in a proceeding in
equity or at law) and will entitle the Holders thereof to the
benefits of this Indenture; such Opinion of Counsel need express
no opinion as to the availability of equitable remedies;
(c) all laws and requirements in respect of the execution
and delivery by the Company of such Securities and Coupons, if
any, have been complied with; and
(d) this Indenture has been qualified under the Trust
Indenture Act; and
(2) an Officer's Certificate stating that, to the best knowledge
of the Persons executing such certificate, all conditions precedent to
the execution, authentication and delivery of such Securities and
Coupons, if any, appertaining thereto, have been complied with, and no
event which is, or after notice or lapse of time would become, an Event
of Default with respect to any of the Securities shall have occurred and
be continuing.
If all the Securities of any series are not to be issued at one time, it
shall not be necessary to deliver an Opinion of Counsel and an Officer's
Certificate at the time of issuance of each Security, but such opinion and
certificate, with appropriate modifications, shall be delivered at or before the
time of issuance of the first Security of such series. After any such first
delivery, any separate written request by an Authorized Officer of the Company
or any person designated in writing by an Authorized Officer that the Trustee
authenticate and deliver Securities of such series for original issue will be
deemed to be a certification by the Company that all conditions precedent
provided for in this Indenture relating to authentication and delivery of such
Securities continue to have been complied with and that no Event of Default with
respect to any of the Securities has occurred or is continuing.
The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate any Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee or if the Trustee,
being advised by counsel, determines that such action may not lawfully be taken.
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Each Registered Security shall be dated the date of its authentication.
Each Bearer Security and any Bearer Security in global form shall be dated as of
the date specified in or pursuant to this Indenture.
No Security or Coupon appertaining thereto shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose, unless
there appears on such Security a certificate of authentication substantially in
the form provided for in Section 2.2 or 6.11 executed by or on behalf of the
Trustee or by the Authenticating Agent by the manual signature of one of its
authorized officers. Such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder. Except as permitted by Section 3.6 or 3.7, the Trustee
shall not authenticate and deliver any Bearer Security unless all Coupons
appertaining thereto then matured have been detached and cancelled.
SECTION 3.4. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities, the Company may
execute and deliver to the Trustee and, upon Company Order, the Trustee shall
authenticate and deliver, in the manner provided in Section 3.3, temporary
Securities in lieu thereof which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form or, if authorized in or pursuant to this
Indenture, in bearer form with one or more Coupons or without Coupons and with
such appropriate insertions, omissions, substitutions and other variations as
the officers of the Company executing such Securities may determine, as
conclusively evidenced by their execution of such Securities. Such temporary
Securities may be in global form.
Except in the case of temporary Securities in global form, which shall
be exchanged in accordance with the provisions thereof, if temporary Securities
are issued, the Company shall cause definitive Securities to be prepared without
unreasonable delay. After the preparation of definitive Securities of the same
series and containing terms and provisions that are identical to those of any
temporary Securities, such temporary Securities shall be exchangeable for such
definitive Securities upon surrender of such temporary Securities at an Office
or Agency for such Securities, without charge to any Holder thereof. Upon
surrender for cancellation of any one or more temporary Securities (accompanied
by any unmatured Coupons appertaining thereto), the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of authorized denominations of the same series
and containing identical terms and provisions; provided, however, that no
definitive Bearer Security, except as provided in or pursuant to this Indenture,
shall be delivered in exchange for a temporary Registered Security; and
provided, further, that a definitive Bearer Security shall be delivered in
exchange for a temporary Bearer Security only in compliance with the conditions
set forth in or pursuant to this Indenture. Unless otherwise provided in or
pursuant to this Indenture with respect to a temporary global Security, until so
exchanged the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series.
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SECTION 3.5. REGISTRATION, TRANSFER AND EXCHANGE.
With respect to the Registered Securities of each series, if any, the
Company shall cause to be kept a register (each such register being herein
sometimes referred to as the "Security Register") at an Office or Agency for
such series in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of the Registered
Securities of such series and of transfers of the Registered Securities of such
series. Such Office or Agency shall be the "Security Registrar" for that series
of Securities. Unless otherwise specified in or pursuant to this Indenture or
the Securities, the Trustee shall be the initial Security Registrar for each
series of Securities. The Company shall have the right to remove and replace
from time to time the Security Registrar for any series of Securities; provided
that no such removal or replacement shall be effective until a successor
Security Registrar with respect to such series of Securities shall have been
appointed by the Company and shall have accepted such appointment by the
Company. In the event that the Trustee shall not be or shall cease to be
Security Registrar with respect to a series of Securities, it shall have the
right to examine the Security Register for such series at all reasonable times.
There shall be only one Security Register for each series of Securities.
Upon surrender for registration of transfer of any Registered Security
of any series at any Office or Agency for such series, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Registered Securities of
the same series denominated as authorized in or pursuant to this Indenture, of a
like aggregate principal amount bearing a number not contemporaneously
outstanding and containing identical terms and provisions.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series containing
identical terms and provisions, in any authorized denominations, and of a like
aggregate principal amount, upon surrender of the Securities to be exchanged at
any Office or Agency for such series. Whenever any Registered Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities which the Holder making the
exchange is entitled to receive.
If provided in or pursuant to this Indenture, with respect to Securities
of any series, at the option of the Holder, Bearer Securities of such series may
be exchanged for Registered Securities of such series containing identical
terms, denominated as authorized in or pursuant to this Indenture and in the
same aggregate principal amount, upon surrender of the Bearer Securities to be
exchanged at any Office or Agency for such series, with all unmatured Coupons
and all matured Coupons in default thereto appertaining. If the Holder of a
Bearer Security is unable to produce any such unmatured Coupon or Coupons or
matured Coupon or Coupons in default, such exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Company
and the Trustee in an amount equal to the face amount of such missing Coupon or
Coupons, or the surrender of such missing Coupon or Coupons may be waived by the
Company and the Trustee if there is furnished to them such security or indemnity
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as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Bearer Security shall surrender to any Paying
Agent any such missing Coupon in respect of which such a payment shall have been
made, such Holder shall be entitled to receive the amount of such payment;
provided, however, that, except as otherwise provided in Section 10.2, interest
represented by Coupons shall be payable only upon presentation and surrender of
those Coupons at an Office or Agency for such series located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such Office or Agency for such series in exchange for a
Registered Security of such series and like tenor after the close of business at
such Office or Agency on (i) any Regular Record Date and before the opening of
business at such Office or Agency on the next succeeding Interest Payment Date,
or (ii) any Special Record Date and before the opening of business at such
Office or Agency on the related date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the Coupon relating to such
Interest Payment Date or proposed date of payment, as the case may be (or, if
such Coupon is so surrendered with such Bearer Security, such Coupon shall be
returned to the Person so surrendering the Bearer Security), and interest or
Defaulted Interest, as the case may be, shall not be payable on such Interest
Payment Date or proposed date for payment, as the case may be, in respect of the
Registered Security issued in exchange for such Bearer Security, but shall be
payable only to the Holder of such Coupon when due in accordance with the
provisions of this Indenture.
If provided in or pursuant to this Indenture with respect to Securities
of any series, at the option of the Holder, Registered Securities of such series
may be exchanged for Bearer Securities upon such terms and conditions as may be
provided in or pursuant to this Indenture with respect to such series.
Whenever any Securities are surrendered for exchange as contemplated by
the immediately preceding two paragraphs, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise provided in or
pursuant to this Indenture, any global Security shall be exchangeable for
definitive Securities only if (i) the Depository is at any time unwilling,
unable or ineligible to continue as depository and a successor depository is not
appointed by the Company within 90 days of the date the Company is so informed
in writing, (ii) the Company executes and delivers to the Trustee a Company
Order to the effect that such global Security shall be so exchangeable, or (iii)
an Event of Default has occurred and is continuing with respect to the
Securities. If the beneficial owners of interests in a global Security are
entitled to exchange such interests for definitive Securities as the result of
an event described in clause (i), (ii) or (iii) of the preceding sentence, then
without unnecessary delay but in any event not later than the earliest date on
which such interests may be so exchanged, the Company shall deliver to the
Trustee definitive Securities in such form and denominations as are required by
or pursuant to this Indenture, and of the same series, containing identical
terms and in aggregate principal amount equal to the principal amount of such
global Security, executed by the Company. On or after the earliest date on which
such interests may be
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so exchanged, such global Security shall be surrendered from time to time by the
U.S. Depository or such other Depository as shall be specified in the Company
Order with respect thereto, and in accordance with instructions given to the
Trustee and the U.S. Depository or such other Depository, as the case may be
(which instructions shall be in writing but need not be contained in or
accompanied by an Officer's Certificate or be accompanied by an Opinion of
Counsel), as shall be specified in the Company Order with respect thereto to the
Trustee, as the Company's agent for such purpose, to be exchanged, in whole or
in part, for definitive Securities as described above without charge. The
Trustee shall authenticate and make available for delivery, in exchange for each
portion of such surrendered global Security, a like aggregate principal amount
of definitive Securities of the same series of authorized denominations and of
like tenor as the portion of such global Security to be exchanged, which (unless
such Securities are not issuable both as Bearer Securities and as Registered
Securities, in which case the definitive Securities exchanged for the global
Security shall be issuable only in the form in which the Securities are
issuable, as provided in or pursuant to this Indenture) shall be in the form of
Bearer Securities or Registered Securities, or any combination thereof, as shall
be specified by the beneficial owner thereof, but subject to the satisfaction of
any certification or other requirements to the issuance of Bearer Securities;
provided, however, that no such exchanges may occur during a period beginning at
the opening of business 15 days before any selection of Securities of the same
series to be redeemed and ending on the relevant Redemption Date; and provided,
further, that (unless otherwise provided in or pursuant to this Indenture) no
Bearer Security delivered in exchange for a portion of a global Security shall
be mailed or otherwise delivered to any location in the United States. Promptly
following any such exchange in part, such global Security shall be returned by
the Trustee to such Depository or the U.S. Depository, as the case may be, or
such other Depository or U.S. Depository referred to above in accordance with
the instructions of the Company referred to above. If a Registered Security is
issued in exchange for any portion of a global Security after the close of
business at the Office or Agency for such Security where such exchange occurs on
or after (i) any Regular Record Date for such Security and before the opening of
business at such Office or Agency on the next succeeding Interest Payment Date,
or (ii) any Special Record Date for such Security and before the opening of
business at such Office or Agency on the related proposed date for payment of
interest or Defaulted Interest, as the case may be, interest shall not be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of such Registered Security, but shall be payable on such
Interest Payment Date or proposed date for payment, as the case may be, only to
the Person to whom interest in respect of such portion of such global Security
shall be payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company evidencing the same
debt and entitling the Holders thereof to the same benefits under this Indenture
as the Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company or
the Security Registrar for such Security) be duly endorsed, or be accompanied by
a written instrument of transfer in form
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satisfactory to the Company and the Security Registrar for such Security duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange, or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge and any other
expenses (including fees and expenses of the Trustee) that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 3.4, 9.5 or 11.7 not involving any transfer.
Except as otherwise provided in or pursuant to this Indenture, the
Company shall not be required (i) to issue, register the transfer of or exchange
any Securities during a period beginning at the opening of business 15 days
before the day of mailing of a notice of redemption of Securities of like tenor
and the same series under Section 11.3 and ending at the close of business on
the day of such mailing, or (ii) to register the transfer of or exchange any
Registered Security selected for redemption in whole or in part, except in the
case of any Security to be redeemed in part, the portion thereof not to be
redeemed, or (iii) to exchange any Bearer Security selected for redemption
except, to the extent provided with respect to such Bearer Security, that such
Bearer Security may be exchanged for a Registered Security of like tenor and the
same series, provided that such Registered Security shall be immediately
surrendered for redemption with written instruction for payment consistent with
the provisions of this Indenture or (iv) to issue, register the transfer of or
exchange any Security which, in accordance with its terms, has been surrendered
for repayment at the option of the Holder, except the portion, if any, of such
Security not to be so repaid.
SECTION 3.6. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security or a Security with a mutilated Coupon
appertaining to it is surrendered to the Trustee, subject to the provisions of
this Section 3.6, the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a new Security of the same series containing
identical terms and of like principal amount and bearing a number not
contemporaneously outstanding, with Coupons appertaining thereto corresponding
to the Coupons, if any, appertaining to the surrendered Security.
If there be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security or Coupon,
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security or Coupon has been acquired by a
bona fide purchaser, the Company shall execute and, upon the Company's request
the Trustee shall authenticate and deliver, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Security or in exchange for the
Security to which a destroyed, lost or stolen Coupon appertains with all
appurtenant Coupons not destroyed, lost or stolen, a new Security of the same
series containing identical terms and of like principal amount and bearing a
number not contemporaneously outstanding, with Coupons appertaining thereto
corresponding to the Coupons, if any, appertaining to such destroyed, lost or
stolen Security or to the Security to which such destroyed, lost or stolen
Coupon appertains.
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Notwithstanding the foregoing provisions of this Section 3.6, in case
any mutilated, destroyed, lost or stolen Security or Coupon has become or is
about to become due and payable, the Company in its discretion may, instead of
issuing a new Security, pay such Security or Coupon; provided, however, that
payment of principal of, any premium or interest on or any Additional Amounts
with respect to any Bearer Securities shall, except as otherwise provided in
Section 10.2, be payable only at an Office or Agency for such Securities located
outside the United States and, unless otherwise provided in or pursuant to this
Indenture, any interest on Bearer Securities and any Additional Amounts with
respect to such interest shall be payable only upon presentation and surrender
of the Coupons appertaining thereto.
Upon the issuance of any new Security under this Section 3.6, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security, with any Coupons appertaining thereto issued
pursuant to this Section 3.6 in lieu of any destroyed, lost or stolen Security,
or in exchange for a Security to which a destroyed, lost or stolen Coupon
appertains shall constitute a separate obligation of the Company, whether or not
the destroyed, lost or stolen Security and Coupons appertaining thereto or the
destroyed, lost or stolen Coupon shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of such series and any
Coupons, if any, duly issued hereunder.
The provisions of this Section 3.6, as amended or supplemented pursuant
to this Indenture with respect to particular Securities or generally, shall be
exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities or Coupons.
SECTION 3.7. PAYMENT OF INTEREST AND CERTAIN ADDITIONAL AMOUNTS; RIGHTS
TO INTEREST AND CERTAIN ADDITIONAL AMOUNTS PRESERVED.
Unless otherwise provided in or pursuant to this Indenture, any interest
on and any Additional Amounts with respect to any Registered Security which
shall be payable, and are punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name such Security (or one or
more Predecessor Securities) is registered as of the close of business on the
Regular Record Date for such interest.
Unless otherwise provided in or pursuant to this Indenture, any interest
on and any Additional Amounts with respect to any Registered Security which
shall be payable, but shall not be punctually paid or duly provided for, on any
Interest Payment Date for such Registered Security (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder thereof on the
relevant Regular Record Date by virtue of having been such Holder; and such
Defaulted Interest may be paid by the Company, at its election, as provided in
Clause (1) or (2) below:
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(1) The Company may elect to make payment of any Defaulted
Interest to the Person in whose name such Registered Security (or a
Predecessor Security thereof) shall be registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed by the Company in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on such Registered Security, the
Special Record Date therefor and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit on or prior to the date of the proposed
payment, such money when so deposited to be held in trust for the
benefit of the Person entitled to such Defaulted Interest as provided in
this clause (1). The Special Record Date for the payment of such
Defaulted Interest shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10 days
after notification to the Trustee of the proposed payment. The Trustee
shall, in the name and at the expense of the Company, cause notice of
the proposed payment of such Defaulted Interest and the Special Record
Date therefor to be mailed, first-class postage prepaid, to the Holder
of such Registered Security (or a Predecessor Security thereof) at his
address as it appears in the Security Register not less than 10 days
prior to such Special Record Date. The Trustee may, in its discretion,
in the name and at the expense of the Company, cause a similar notice to
be published at least once in an Authorized Newspaper of general
circulation in the Borough of Manhattan, The City of New York, but such
publication shall not be a condition precedent to the establishment of
such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been
mailed as aforesaid, such Defaulted Interest shall be paid to the Person
in whose name such Registered Security (or a Predecessor Security
thereof) shall be registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following
clause (2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which such Security may be listed, and upon such
notice as may be required by such exchange, if, after notice given by
the Company to the Trustee of the proposed payment pursuant to this
clause (2), such payment shall be deemed practicable by the Trustee.
Unless otherwise provided in or pursuant to this Indenture or the
Securities of any particular series pursuant to the provisions of this
Indenture, at the option of the Company, interest on Registered Securities that
bear interest may be paid by mailing a check to the address of the Person
entitled thereto as such address shall appear in the Security Register or by
transfer to an account maintained by the payee with a bank located in the United
States.
Subject to the foregoing provisions of this Section and Section 3.5,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any
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other Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
In the case of any Registered Security of any series that is convertible
into other securities of the Company or exchangeable for securities of another
issuer, which Registered Security is converted or exchanged after any Regular
Record Date and on or prior to the next succeeding Interest Payment Date (other
than any Registered Security with respect to which the Stated Maturity is prior
to such Interest Payment Date), interest with respect to which the Stated
Maturity is on such Interest Payment Date shall be payable on such Interest
Payment Date notwithstanding such conversion or exchange, and such interest
(whether or not punctually paid or duly provided for) shall be paid to the
Person in whose name that Registered Security (or one or more predecessor
Registered Securities) is registered at the close of business on such Regular
Record Date. Except as otherwise expressly provided in the immediately preceding
sentence, in the case of any Registered Security which is converted or
exchanged, interest with respect to which the Stated Maturity is after the date
of conversion or exchange of such Registered Security shall not be payable.
SECTION 3.8. PERSONS DEEMED OWNERS.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered in the
Security Register as the owner of such Registered Security for the purpose of
receiving payment of principal of, any premium and (subject to Sections 3.5 and
3.7) interest on and any Additional Amounts with respect to such Registered
Security and for all other purposes whatsoever, whether or not any payment with
respect to such Registered Security shall be overdue, and none of the Company,
the Trustee or any agent of the Company or the Trustee shall be affected by
notice to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the bearer of any Bearer Security or the bearer of any Coupon as the
absolute owner of such Security or Coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not any payment with respect to such Security or Coupon shall be overdue, and
none of the Company, the Trustee or any agent of the Company or the Trustee
shall be affected by notice to the contrary.
No Holder of any beneficial interest in any global Security held on its
behalf by a Depository shall have any rights under this Indenture with respect
to such global Security, and such Depository may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the owner of such global
Security for all purposes whatsoever. None of the Company, the Trustee, any
Paying Agent or the Security Registrar will have any responsibility or liability
for any aspect of the records relating to or payments made on account of
beneficial ownership interests of a global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
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SECTION 3.9. CANCELLATION.
All Securities and Coupons surrendered for payment, redemption,
registration of transfer, exchange or conversion or for credit against any
sinking fund payment shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee, and any such Securities and Coupons, as well as
Securities and Coupons surrendered directly to the Trustee for any such purpose,
shall be cancelled promptly by the Trustee. The Company may at any time deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be cancelled promptly by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted
by or pursuant to this Indenture. All cancelled Securities and Coupons held by
the Trustee shall be destroyed by the Trustee, unless by a Company Order the
Company directs their return to it.
SECTION 3.10. COMPUTATION OF INTEREST.
Except as otherwise provided in or pursuant to this Indenture or in any
Security, interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months.
ARTICLE 4
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 4.1. SATISFACTION AND DISCHARGE.
Upon the direction of the Company by a Company Order, this Indenture
shall cease to be of further effect with respect to any series of Securities
specified in such Company Order and any Coupons appertaining thereto, and the
Trustee, on receipt of a Company Order, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture as to such series, when
(1) either
(a) all Securities of such series theretofore
authenticated and delivered and all Coupons appertaining thereto
(other than (i) Coupons appertaining to Bearer Securities of such
series surrendered in exchange for Registered Securities of such
series and maturing after such exchange whose surrender is not
required or has been waived as provided in Section 3.5, (ii)
Securities and Coupons of such series which have been destroyed,
lost or stolen and which have been replaced or paid as provided
in Section 3.6, (iii) Coupons appertaining to Securities of such
series called for redemption and maturing after the relevant
Redemption Date whose surrender has been waived as provided in
Section 11.7, and (iv) Securities and Coupons of such series for
whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter
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repaid to the Company or discharged from such trust, as provided
in Section 10.3) have been delivered to the Trustee for
cancellation; or
(b) all Securities of such series and, in the case of (i)
or (ii) below, any Coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation, (i) have become due
and payable, or (ii) will become due and payable at their Stated
Maturity within one year, or (iii) if redeemable at the option of
the Company, are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of the Company, and the Company, in the case of (i),
(ii) or (iii) above, has deposited or caused to be deposited with
the Trustee as trust funds in trust for such purpose, money in
the Currency in which such Securities are payable in an amount
sufficient to pay and discharge the entire indebtedness on such
Securities and any Coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation, including the
principal of, any premium and interest on, and any Additional
Amounts with respect to such Securities and any Coupons
appertaining thereto, to the date of such deposit (in the case of
Securities which have become due and payable) or to the Maturity
thereof, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company with respect to the Outstanding
Securities of such series and any Coupons appertaining thereto; and
(3) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture as to such series have been complied with.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to
Securities of such series as to which it is Trustee and if the other conditions
thereto are met.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to any series of Securities, the obligations of the Company to the
Trustee under Section 6.6 and, if money shall have been deposited with the
Trustee pursuant to subclause (b) of clause (1) of this Section, the obligations
of the Company and the Trustee with respect to the Securities of such series
under Sections 3.5, 3.6, 4.3, 10.2 and 10.3, with respect to the payment of
Additional Amounts, if any, with respect to such Securities as contemplated by
Section 10.4 (but only to the extent that the Additional Amounts payable with
respect to such Securities exceed the amount deposited in respect of such
Additional Amounts pursuant to Section 4.1(1)(b)), and with respect to any
rights to convert or exchange such Securities into securities of the Company or
another issuer shall survive.
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SECTION 4.2. DEFEASANCE AND COVENANT DEFEASANCE.
(1) Unless pursuant to Section 3.1, either or both of (i)
defeasance of the Securities of or within a series under clause (2) of
this Section 4.2 shall not be applicable with respect to the Securities
of such series or (ii) covenant defeasance of the Securities of or
within a series under clause (3) of this Section 4.2 shall not be
applicable with respect to the Securities of such series, then such
provisions, together with the other provisions of this Section 4.2 (with
such modifications thereto as may be specified pursuant to Section 3.1
with respect to any Securities), shall be applicable to such Securities
and any Coupons appertaining thereto, and the Company may at its option
by Board Resolution, at any time, with respect to such Securities and
any Coupons appertaining thereto, elect to have Section 4.2(2) or
Section 4.2(3) be applied to such Outstanding Securities and any Coupons
appertaining thereto upon compliance with the conditions set forth below
in this Section 4.2.
(2) Upon the Company's exercise of the above option applicable to
this Section 4.2(2) with respect to any Securities of or within a
series, the Company shall be deemed to have been discharged from its
obligations with respect to such Outstanding Securities and any Coupons
appertaining thereto on the date the conditions set forth in clause (4)
of this Section 4.2 are satisfied (hereinafter, "defeasance"). For this
purpose, such defeasance means that the Company shall be deemed to have
paid and discharged the entire Indebtedness represented by such
Outstanding Securities and any Coupons appertaining thereto, which shall
thereafter be deemed to be "Outstanding" only for the purposes of clause
(5) of this Section 4.2 and the other Sections of this Indenture
referred to in clauses (i) and (ii) below, and to have satisfied all of
its other obligations under such Securities and any Coupons appertaining
thereto, and this Indenture insofar as such Securities and any Coupons
appertaining thereto are concerned (and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging the same),
except for the following which shall survive until otherwise terminated
or discharged hereunder: (i) the rights of Holders of such Outstanding
Securities and any Coupons appertaining thereto to receive, solely from
the trust fund described in clause (4) of this Section 4.2 and as more
fully set forth in such clause, payments in respect of the principal of
(and premium, if any) and interest, if any, on, and Additional Amounts,
if any, with respect to, such Securities and any Coupons appertaining
thereto when such payments are due, and any rights of such Holder to
convert such Securities into other securities of the Company or exchange
such Securities for securities of another issuer, (ii) the obligations
of the Company and the Trustee with respect to such Securities under
Sections 3.5, 3.6, 10.2 and 10.3 and with respect to the payment of
Additional Amounts, if any, on such Securities as contemplated by
Section 10.4 (but only to the extent that the Additional Amounts payable
with respect to such Securities exceed the amount deposited in respect
of such Additional Amounts pursuant to Section 4.2(4)(a) below), and
with respect to any rights to convert such Securities into other
securities of the Company or exchange such Securities for securities of
another issuer, (iii) the rights, powers, trusts, duties and immunities
of the Trustee hereunder and (iv) this Section 4.2. The Company may
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exercise its option under this Section 4.2(2) notwithstanding the prior
exercise of its option under clause (3) of this Section 4.2 with respect
to such Securities and any Coupons appertaining thereto.
(3) Upon the Company's exercise of the option to have this
Section 4.2(3) apply with respect to any Securities of or within a
series, the Company shall be released from its obligations under
Sections 10.5 and 10.6, and, to the extent specified pursuant to Section
3.1(19), any other covenant applicable to such Securities, with respect
to such Outstanding Securities and any Coupons appertaining thereto, on
and after the date the conditions set forth in clause (4) of this
Section 4.2 are satisfied (hereinafter, "covenant defeasance"), and such
Securities and any Coupons appertaining thereto shall thereafter be
deemed to be not "Outstanding" for the purposes of any direction,
waiver, consent or declaration or Act of Holders (and the consequences
of any thereof) in connection with any such covenant, but shall continue
to be deemed "Outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to such
Outstanding Securities and any Coupons appertaining thereto, the Company
may omit to comply with, and shall have no liability in respect of, any
term, condition or limitation set forth in any such Section or such
other covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such Section or such other covenant or
by reason of reference in any such Section or such other covenant to any
other provision herein or in any other document and such omission to
comply shall not constitute a default or an Event of Default under
Section 5.1(4) or 5.1(8) or otherwise, as the case may be, but, except
as specified above, the remainder of this Indenture and such Securities
and Coupons appertaining thereto shall be unaffected thereby.
(4) The following shall be the conditions to application of
clause (2) or (3) of this Section 4.2 to any Outstanding Securities of
or within a series and any Coupons appertaining thereto:
(a) The Company shall irrevocably have deposited or caused
to be deposited with the Trustee (or another trustee satisfying
the requirements of Section 6.7 who shall agree to comply with
the provisions of this Section 4.2 applicable to it) as trust
funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to,
the benefit of the Holders of such Securities and any Coupons
appertaining thereto, (1) an amount in Dollars or in such Foreign
Currency in which such Securities and any Coupons appertaining
thereto are then specified as payable at Stated Maturity, or (2)
Government Obligations applicable to such Securities and Coupons
appertaining thereto (determined on the basis of the Currency in
which such Securities and Coupons appertaining thereto are then
specified as payable at Stated Maturity) which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day
before the due date of any payment of principal of (and premium,
if any) and interest, if any, on such Securities and any Coupons
appertaining thereto, money
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in an amount, or (3) a combination thereof, in any case, in an
amount, sufficient, without consideration of any reinvestment of
such principal and interest, in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee (or
other qualifying trustee) to pay and discharge, (y) the principal
of (and premium, if any) and interest, if any, on such
Outstanding Securities and any Coupons appertaining thereto at
the Stated Maturity of such principal or installment of principal
or premium or interest and (z) any mandatory sinking fund
payments or analogous payments applicable to such Outstanding
Securities and any Coupons appertaining thereto on the days on
which such payments are due and payable in accordance with the
terms of this Indenture and of such Securities and any Coupons
appertaining thereto.
(b) Such defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a default
under, this Indenture or any other material agreement or
instrument to which the Company is a party or by which it is
bound.
(c) No Event of Default or event which with notice or
lapse of time or both would become an Event of Default with
respect to such Securities and any Coupons appertaining thereto
shall have occurred and be continuing on the date of such deposit
and, with respect to defeasance only, at any time during the
period ending on the 123rd day after the date of such deposit (it
being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(d) In the case of an election under clause (2) of this
Section 4.2, the Company shall have delivered to the Trustee an
Opinion of Counsel stating that (i) the Company has received from
the Internal Revenue Service a letter ruling, or there has been
published by the Internal Revenue Service a Revenue Ruling, or
(ii) since the date of execution of this Indenture, there has
been a change in the applicable Federal income tax law, in either
case to the effect that, and based thereon such opinion shall
confirm that, the Holders of such Outstanding Securities and any
Coupons appertaining thereto will not recognize income, gain or
loss for Federal income tax purposes as a result of such
defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have
been the case if such defeasance had not occurred.
(e) In the case of an election under clause (3) of this
Section 4.2, the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Holders of such
Outstanding Securities and any Coupons appertaining thereto will
not recognize income, gain or loss for Federal income tax
purposes as a result of such covenant defeasance and will be
subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
covenant defeasance had not occurred.
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(f) The Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that, after the 123rd day after
the date of deposit, all money and Government Obligations (or
other property as may be provided pursuant to Section 3.1)
(including the proceeds thereof) deposited or caused to be
deposited with the Trustee (or other qualifying trustee) pursuant
to this clause (4) to be held in trust will not be subject to any
case or proceeding (whether voluntary or involuntary) in respect
of the Company under any Federal or State bankruptcy, insolvency,
reorganization or other similar law, or any decree or order for
relief in respect of the Company issued in connection therewith.
(g) The Company shall have delivered to the Trustee an
Officer's Certificate and the Company shall have delivered to the
Trustee an Opinion of Counsel, each stating that all conditions
precedent to the defeasance or covenant defeasance under clause
(2) or (3) of this Section 4.2 (as the case may be) have been
complied with.
(h) Notwithstanding any other provisions of this Section
4.2(4), such defeasance or covenant defeasance shall be effected
in compliance with any additional or substitute terms, conditions
or limitations which may be imposed on the Company in connection
therewith pursuant to Section 3.1.
(5) Unless otherwise specified in or pursuant to this Indenture
or any Security, if, after a deposit referred to in Section 4.2(4)(a)
has been made, (a) the Holder of a Security in respect of which such
deposit was made is entitled to, and does, elect pursuant to Section 3.1
or the terms of such Security to receive payment in a Currency other
than that in which the deposit pursuant to Section 4.2(4)(a) has been
made in respect of such Security, or (b) a Conversion Event occurs in
respect of the Foreign Currency in which the deposit pursuant to Section
4.2(4)(a) has been made, the indebtedness represented by such Security
and any Coupons appertaining thereto shall be deemed to have been, and
will be, fully discharged and satisfied through the payment of the
principal of (and premium, if any), and interest, if any, on, and
Additional Amounts, if any, with respect to, such Security as the same
becomes due out of the proceeds yielded by converting (from time to time
as specified below in the case of any such election) the amount or other
property deposited in respect of such Security into the Currency in
which such Security becomes payable as a result of such election or
Conversion Event based on (x) in the case of payments made pursuant to
clause (a) above, the applicable market exchange rate for such Currency
in effect on the second Business Day prior to each payment date, or (y)
with respect to a Conversion Event, the applicable market exchange rate
for such Foreign Currency in effect (as nearly as feasible) at the time
of the Conversion Event.
The Company shall pay and indemnify the Trustee (or other qualifying
trustee, collectively for purposes of this Section 4.2(5) and Section 4.3, the
"Trustee") against any tax, fee or other charge, imposed on or assessed against
the Government Obligations deposited
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pursuant to this Section 4.2 or the principal or interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of such Outstanding Securities and any Coupons
appertaining thereto.
Anything in this Section 4.2 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request, any money or Government Obligations (or other property and any proceeds
therefrom) held by it as provided in clause (4) of this Section 4.2 which, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect a defeasance or covenant defeasance, as applicable, in accordance with
this Section 4.2.
SECTION 4.3. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 10.3, all
money and Government Obligations (or other property as may be provided pursuant
to Section 3.1) (including the proceeds thereof) deposited with the Trustee
pursuant to Section 4.1 or 4.2 in respect of any Outstanding Securities of any
series and any Coupons appertaining thereto shall be held in trust and applied
by the Trustee, in accordance with the provisions of such Securities and any
Coupons appertaining thereto and this Indenture, to the payment, either directly
or through any Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Holders of such Securities and any
Coupons appertaining thereto of all sums due and to become due thereon in
respect of principal (and premium, if any) and interest and Additional Amounts,
if any; but such money and Government Obligations need not be segregated from
other funds except to the extent required by law.
ARTICLE 5
REMEDIES
SECTION 5.1. EVENTS OF DEFAULT.
"Event of Default," wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body),
unless such event is specifically deleted or modified in or pursuant to the
supplemental indenture, Board Resolution or Officer's Certificate establishing
the terms of such Series pursuant to this Indenture:
(1) default in the payment of any interest on any Security of
such series, or any Additional Amounts payable with respect thereto,
when such interest becomes or such Additional Amounts become due and
payable, and continuance of such default for a period of 30 days; or
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(2) default in the payment of the principal of or any premium on
any Security of such series, or any Additional Amounts payable with
respect thereto, when such principal or premium becomes or such
Additional Amounts become due and payable at their Maturity; or
(3) default in the deposit of any sinking fund payment when and
as due by the terms of a Security of such series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture or the Securities (other than
a covenant or warranty a default in the performance or the breach of
which is elsewhere in this Section specifically dealt with or which has
been expressly included in this Indenture solely for the benefit of a
series of Securities other than such series), and continuance of such
default or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of such series, a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(5) if any event of default as defined in any mortgage, indenture
or instrument under which there may be issued, or by which there may be
secured or evidenced, any Indebtedness of the Company or any Restricted
Subsidiary (including, in each case, an Event of Default under any other
series of Securities), whether such Indebtedness now exists or shall
hereafter be created or incurred, shall happen and shall consist, in the
aggregate, of the default in the payment of $25,000,000 or more in
principal amount of such Indebtedness at the maturity thereof (after
giving effect to any applicable grace period) or shall, in the
aggregate, result in such Indebtedness in principal amount of
$25,000,000 or more becoming or being declared due and payable prior to
the date on which it would otherwise become due and payable, and such
default shall not be cured or such acceleration shall not be rescinded,
stayed or annulled or, in the case of Indebtedness contested in good
faith by the Company, a bond, letter of credit, escrow deposit or other
cash equivalent in an amount sufficient to discharge such Indebtedness
having been set aside by the Company, in each case within a period of 10
days after there shall have been given, by registered or certified mail,
to the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding
Securities of such series, a written notice specifying such event of
default and requiring the Company to cause such acceleration to be
rescinded or annulled or to cause such Indebtedness to be discharged and
stating that such notice is a "Notice of Default" hereunder; or
(6) the entry by a court having competent jurisdiction of:
(a) a decree or order for relief in respect of the Company
in an involuntary proceeding under any applicable bankruptcy,
insolvency, reorganization or other
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similar law and such decree or order shall remain unstayed and in
effect for a period of 60 consecutive days; or
(b) a decree or order adjudging the Company to be
insolvent, or approving a petition seeking reorganization,
arrangement, adjustment or composition of the Company and such
decree or order shall remain unstayed and in effect for a period
of 60 consecutive days; or
(c) a final and non-appealable order appointing a
custodian, receiver, liquidator, assignee, trustee or other
similar official of the Company of any substantial part of the
property of the Company or ordering the winding up or liquidation
of the affairs of the Company; or
(7) the commencement by the Company of a voluntary proceeding
under any applicable bankruptcy, insolvency, reorganization or other
similar law or of a voluntary proceeding seeking to be adjudicated
insolvent or the consent by the Company to the entry of a decree or
order for relief in an involuntary proceeding under any applicable
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any insolvency proceedings against it, or the filing by
the Company of a petition or answer or consent seeking reorganization,
arrangement, adjustment or composition of the Company or relief under
any applicable law, or the consent by the Company to the filing of such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee or similar official of the
Company or any substantial part of the property of the Company or the
making by the Company of an assignment for the benefit of creditors, or
the taking of corporate action by the Company in furtherance of any such
action; or
(8) any other Event of Default provided in or pursuant to this
Indenture with respect to Securities of such series.
SECTION 5.2. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Securities of any series at the
time Outstanding (other than an Event of Default specified in clause (6) or (7)
of Section 5.1) occurs and is continuing, then the Trustee or the Holders of not
less than 25% in principal amount of the Outstanding Securities of such series
may declare the principal of all the Securities of such series, or such lesser
amount as may be provided for in the Securities of such series, to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by the Holders), and upon any such declaration such principal or such
lesser amount shall become immediately due and payable.
If an Event of Default specified in clause (6) or (7) of Section 5.1
occurs, all unpaid principal of and accrued interest on the Outstanding
Securities of that series (or such lesser amount as may be provided for in the
Securities of such series) shall ipso facto become and be
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immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder of any Security of that series.
At any time after a declaration of acceleration with respect to the
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of not less than a majority in principal amount of
the Outstanding Securities of such series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum of
money sufficient to pay
(a) all overdue installments of any interest on and
Additional Amounts with respect to all Securities of such series
and any Coupon appertaining thereto,
(b) the principal of and any premium on any Securities of
such series which have become due otherwise than by such
declaration of acceleration and interest thereon and any
Additional Amounts with respect thereto at the rate or rates
borne by or provided for in such Securities,
(c) to the extent that payment of such interest or
Additional Amounts is lawful, interest upon overdue installments
of any interest and Additional Amounts at the rate or rates borne
by or provided for in such Securities, and
(d) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel and all other amounts due
the Trustee under Section 6.6; and
(2) all Events of Default with respect to Securities of such
series, other than the non-payment of the principal of, any premium and
interest on, and any Additional Amounts with respect to Securities of
such series which shall have become due solely by such declaration of
acceleration, shall have been cured or waived as provided in Section
5.13.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 5.3. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any installment of interest
on or any Additional Amounts with respect to any Security or any Coupon
appertaining thereto
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when such interest or Additional Amounts shall have become due and
payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of or any
premium on any Security or any Additional Amounts with respect thereto
at their Maturity,
the Company shall, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities and any Coupons appertaining thereto,
the whole amount of money then due and payable with respect to such Securities
and any Coupons appertaining thereto, with interest upon the overdue principal,
any premium and, to the extent that payment of such interest shall be legally
enforceable, upon any overdue installments of interest and Additional Amounts at
the rate or rates borne by or provided for in such Securities, and, in addition
thereto, such further amount of money as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and all other
amounts due to the Trustee under Section 6.6.
If the Company fails to pay the money it is required to pay the Trustee
pursuant to the preceding paragraph forthwith upon the demand of the Trustee,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the money so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and any Coupons
appertaining thereto and collect the monies adjudged or decreed to be payable in
the manner provided by law out of the property of the Company or any other
obligor upon such Securities and any Coupons appertaining thereto, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
and any Coupons appertaining thereto by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or such Securities or in aid of the exercise of any power granted
herein or therein, or to enforce any other proper remedy.
SECTION 5.4. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities of any series or the property of the Company or such other obligor or
their creditors, the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of any overdue principal, premium, interest or
Additional Amounts) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
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(1) to file and prove a claim for the whole amount, or such
lesser amount as may be provided for in the Securities of any applicable
series, of the principal and any premium, interest and Additional
Amounts owing and unpaid in respect of the Securities and any Coupons
appertaining thereto and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents or counsel) and of
the Holders of Securities or any Coupons appertaining thereto allowed in
such judicial proceeding, and
(2) to collect and receive any monies or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities or any Coupons to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments
directly to the Holders of Securities or any Coupons, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and any other amounts due the
Trustee under Section 6.6.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or any Coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or Coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or any Coupon in any such proceeding.
SECTION 5.5. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES
OR COUPONS.
All rights of action and claims under this Indenture or any of the
Securities or Coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or Coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery or judgment, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, shall be for the ratable benefit of each and every Holder of the
Securities or Coupons in respect of which such judgment has been recovered.
SECTION 5.6. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal, or any
premium, interest or Additional Amounts, upon presentation of the Securities or
Coupons, or both, as the case may be, and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
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FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 6.6;
SECOND: To the payment of the amounts then due and unpaid upon
the Securities and any Coupons for principal and any premium, interest
and Additional Amounts in respect of which or for the benefit of which
such money has been collected, ratably, without preference or priority
of any kind, according to the aggregate amounts due and payable on such
Securities and Coupons for principal and any premium, interest and
Additional Amounts, respectively;
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 5.7. LIMITATIONS ON SUITS.
No Holder of any Security of any series or any Coupons appertaining
thereto shall have any right to institute any proceeding, judicial or otherwise,
with respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of such series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee such
indemnity as is reasonably satisfactory to it against the costs,
expenses and liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of such
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture or any Security to affect, disturb or prejudice the rights of
any other such Holders or Holders of Securities of any other series, or to
obtain or to seek to obtain priority or preference over any other Holders or to
enforce any right under this Indenture, except in the manner herein provided and
for the equal and ratable benefit of all such Holders.
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SECTION 5.8. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL AND ANY
PREMIUM, INTEREST AND ADDITIONAL AMOUNTS.
Notwithstanding any other provision in this Indenture, the Holder of any
Security or Coupon shall have the right, which is absolute and unconditional, to
receive payment of the principal of, any premium and (subject to Sections 3.5
and 3.7) interest on, and any Additional Amounts with respect to, such Security
or payment of such Coupon, as the case may be, on the respective Stated Maturity
or Maturities therefor specified in such Security or Coupon (or, in the case of
redemption, on the Redemption Date or, in the case of repayment at the option of
such Holder if provided in or pursuant to this Indenture, on the date such
repayment is due) and to institute suit for the enforcement of any such payment,
and such right shall not be impaired without the consent of such Holder.
SECTION 5.9. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder of a Security or a Coupon has instituted
any proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Company, the Trustee and each such Holder shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and each such Holder shall continue as though no such proceeding had
been instituted.
SECTION 5.10. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities or Coupons in the last
paragraph of Section 3.6, no right or remedy herein conferred upon or reserved
to the Trustee or to each and every Holder of a Security or a Coupon is intended
to be exclusive of any other right or remedy, and every right and remedy, to the
extent permitted by law, shall 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, to the extent permitted by law, prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 5.11. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Security or
Coupon to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this Article
or by law to the Trustee or to any Holder of a Security or a Coupon may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by such Holder, as the case may be.
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SECTION 5.12. CONTROL BY HOLDERS OF SECURITIES.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the
Securities of such series and any Coupons appertaining thereto, provided that
(1) such direction shall not be in conflict with any rule of law
or with this Indenture or with the Securities of such series,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) such direction is not unduly prejudicial to the rights of the
other Holders of Securities of such series not joining in such action.
SECTION 5.13. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series on behalf of the Holders of all the
Securities of such series and any Coupons appertaining thereto may waive any
past default hereunder with respect to such series and its consequences, except
a default
(1) in the payment of the principal of, any premium or interest
on, or any Additional Amounts with respect to, any Security of such
series or any Coupons appertaining thereto, or
(2) in respect of a covenant or provision hereof which under
Article 9 cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 5.14. WAIVER OF USURY, STAY OR EXTENSION LAWS.
The Company covenants that (to the extent that it may lawfully do so) it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company expressly waives (to the
extent that it may lawfully do so) all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
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SECTION 5.15. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of any
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit having due regard to the merits and good
faith of the claims or defenses made by such party litigant; but the provisions
of this Section 5.15 shall not apply to any suit instituted by the Trustee, to
any suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of Outstanding Securities of any series, or to
any suit instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or interest, if any, on or Additional Amounts,
if any, with respect to any Security on or after the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date, and, in the case of repayment, on or after the date
for repayment) or for the enforcement of the right, if any, to convert or
exchange any Security into other securities in accordance with its terms.
ARTICLE 6
THE TRUSTEE
SECTION 6.1. CERTAIN RIGHTS OF TRUSTEE.
Subject to Sections 315(a) through 315(d) of the Trust Indenture Act:
(1) the Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, coupon or other paper
or document reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or a Company Order
(in each case, other than delivery of any Security, together with any
Coupons appertaining thereto, to the Trustee for authentication and
delivery pursuant to Section 3.3 which shall be sufficiently evidenced
as provided therein) and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence shall be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officer's Certificate;
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(4) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by or pursuant to this Indenture at
the request or direction of any of the Holders of Securities of any
series or any Coupons appertaining thereto pursuant to this Indenture,
unless such Holders shall have offered to the Trustee such security or
indemnity as is reasonably satisfactory to it against the costs,
expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(6) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, coupon or other paper or document, but the Trustee, in
its discretion, may, but shall not be obligated to make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine, during business hours
and upon reasonable notice, the books, records and premises of the
Company, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due
care by it hereunder;
(8) the Trustee shall not be liable for any action taken or 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, acted in bad faith or engaged in willful misconduct;
(9) the Authenticating Agent, Paying Agent, and Security
Registrar shall have the same protections as the Trustee set forth
hereunder; and
(10) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance
with an Act of the Holders hereunder, and, to the extent not so provided
herein, with respect to any act requiring the Trustee to exercise its
own discretion, 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 or any
Securities, unless it shall be proved that, in connection with any such
action taken, suffered or omitted or any such act, the Trustee was
negligent, acted in bad faith or engaged in willful misconduct.
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SECTION 6.2. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail to
all Holders of Securities of such series entitled to receive reports pursuant to
Section 7.3(3), notice of such default hereunder actually known to a Responsible
Officer of the Trustee, unless such default shall have been cured or waived;
provided, however, that, except in the case of a default in the payment of the
principal of (or premium, if any), or interest, if any, on, or Additional
Amounts or any sinking fund or purchase fund installment with respect to, any
Security of such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the best interest of
the Holders of Securities and Coupons of such series; and provided, further,
that in the case of any default of the character specified in Section 5.1(5)
with respect to Securities of such series, no such notice to Holders shall be
given until at least 30 days after the occurrence thereof. For the purpose of
this Section, the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default with respect to
Securities of such series.
SECTION 6.3. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any Coupons shall be taken as
the statements of the Company and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or the Coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility on Form T-1 supplied to the Company are true and
accurate, subject to the qualifications set forth therein. Neither the Trustee
nor any Authenticating Agent shall be accountable for the use or application by
the Company of the Securities or the proceeds thereof.
SECTION 6.4. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other Person that may be an agent of the Trustee or the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities or Coupons and, subject to Sections 310(b) and 311 of the
Trust Indenture Act, may otherwise deal with the Company with the same rights it
would have if it were not the Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other Person.
SECTION 6.5. MONEY HELD IN TRUST.
Except as provided in Section 4.3 and Section 10.3, money held by the
Trustee in trust hereunder need not be segregated from other funds except to the
extent required by law and shall
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be held uninvested. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed to in writing with the
Company.
SECTION 6.6. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by the Trustee hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any
provision of this Indenture or arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder (including
the reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance as
may be attributable to the Trustee's negligence or bad faith; and
(3) to indemnify the Trustee and its agents, officers, directors
and employees for, and to hold them harmless against, any loss,
liability or expense incurred without negligence or bad faith on their
part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending themselves against any claim or liability in
connection with the exercise or performance of any of their powers or
duties hereunder, except to the extent that any such loss, liability or
expense was due to the Trustee's negligence or bad faith.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities of any
series upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of, and premium or
interest on or any Additional Amounts with respect to Securities or any Coupons
appertaining thereto.
To the extent permitted by law, any compensation or expense incurred by
the Trustee after a default specified in or pursuant to Section 5.1 is intended
to constitute an expense of administration under any then applicable bankruptcy
or insolvency law. "Trustee" for purposes of this Section 6.6 shall include any
predecessor Trustee but the negligence or bad faith of any Trustee shall not
affect the rights of any other Trustee under this Section 6.6.
The provisions of this Section 6.6 shall survive the satisfaction and
discharge of this Indenture or the earlier resignation or removal of the Trustee
and shall apply with equal force and effect to the Trustee in its capacity as
Authenticating Agent, Paying Agent or Security Registrar.
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SECTION 6.7. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder that is a Corporation
organized and doing business under the laws of the United States of America, any
state thereof or the District of Columbia, that is eligible under Section
310(a)(1) of the Trust Indenture Act to act as trustee under an indenture
qualified under the Trust Indenture Act and that has a combined capital and
surplus (computed in accordance with Section 310(a)(2) of the Trust Indenture
Act) of at least $50,000,000, and that is subject to supervision or examination
by Federal or state authority. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 6.8. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(1) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee pursuant to
Section 6.9.
(2) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required
by Section 6.9 shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to such series.
(3) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series, delivered
to the Trustee and the Company.
(4) If at any time:
(a) the Trustee shall fail to comply with the obligations
imposed upon it under Section 310(b) of the Trust Indenture Act
with respect to Securities of any series after written request
therefor by the Company or any Holder of a Security of such
series who has been a bona fide Holder of a Security of such
series for at least six months, or
(b) the Trustee shall cease to be eligible under Section
6.7 and shall fail to resign after written request therefor by
the Company or any such Holder, or
(c) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any public officer shall
take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation, then, in any such case, (i) the Company, by or
pursuant to a Board Resolution, may remove the Trustee with
respect to all Securities or the Securities of such
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series, or (ii) subject to Section 315(e) of the Trust Indenture
Act, any Holder of a Security who has been a bona fide Holder of
a Security of such series for at least six months may, on behalf
of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with
respect to all Securities of such series and the appointment of a
successor Trustee or Trustees.
(5) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any
cause, with respect to the Securities of one or more series, the
Company, by or pursuant to a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Securities of such
series (it being understood that any such successor Trustee may be
appointed with respect to the Securities of one or more or all of such
series and that at any time there shall be only one Trustee with respect
to the Securities of any particular series) and shall comply with the
applicable requirements of Section 6.9. If, within one year after such
resignation, removal or incapacity, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith
upon its acceptance of such appointment in accordance with the
applicable requirements of Section 6.9, become the successor Trustee
with respect to the Securities of such series and to that extent
supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall
have been so appointed by the Company or the Holders of Securities and
accepted appointment in the manner required by Section 6.9, any Holder
of a Security who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of
such series.
(6) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities
of any series by mailing written notice of such event by first-class
mail, postage prepaid, to the Holders of Registered Securities, if any,
of such series as their names and addresses appear in the Security
Register and, if Securities of such series are issued as Bearer
Securities, by publishing notice of such event once in an Authorized
Newspaper in each Place of Payment located outside the United States.
Each notice shall include the name of the successor Trustee with respect
to the Securities of such series and the address of its Corporate Trust
Office.
(7) In no event shall any retiring Trustee be liable for the acts
or omissions of any successor Trustee hereunder.
SECTION 6.9. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(1) Upon the appointment hereunder of any successor Trustee with
respect to all Securities, such successor Trustee so appointed shall
execute, acknowledge and
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deliver to the Company and the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties hereunder of the retiring
Trustee; but, on the request of the Company or such successor Trustee,
such retiring Trustee, upon payment of its charges, shall execute and
deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and, subject to
Section 10.3, shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder,
subject nevertheless to its claim, if any, provided for in Section 6.6.
(2) Upon the appointment hereunder of any successor Trustee with
respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and such successor Trustee shall execute
and deliver an indenture supplemental hereto wherein each successor
Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm
to, and to vest in, such successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities
of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities
of that or those series as to which the retiring Trustee is not retiring
shall continue to be vested in the retiring Trustee, and (3) shall add
to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing
herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust, that each such Trustee shall be trustee
of a trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such Trustee and that no
Trustee shall be responsible for any notice given to, or received by, or
any act or failure to act on the part of any other Trustee hereunder,
and, upon the execution and delivery of such supplemental indenture, the
resignation or removal of the retiring Trustee shall become effective to
the extent provided therein, such retiring Trustee shall have no further
responsibility for the exercise of rights and powers or for the
performance of the duties and obligations vested in the Trustee under
this Indenture with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates other than as
hereinafter expressly set forth, and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of
such successor Trustee relates; but, on request of the Company or such
successor Trustee, such retiring Trustee, upon payment of its charges
with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates and subject to Section
10.3 shall duly assign, transfer and deliver to such successor Trustee,
to the extent contemplated by such supplemental indenture, the property
and money held by such retiring Trustee hereunder
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with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, subject to its claim, if
any, provided for in Section 6.6.
(3) Upon request of any Person appointed hereunder as a successor
Trustee, the Company shall execute any and all instruments for more
fully and certainly vesting in and confirming to such successor Trustee
all such rights, powers and trusts referred to in paragraph (1) or (2)
of this Section, as the case may be.
(4) No Person shall accept its appointment hereunder as a
successor Trustee unless at the time of such acceptance such successor
Person shall be qualified and eligible under this Article.
SECTION 6.10. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any Corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any Corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, shall be the
successor of the Trustee hereunder, without the execution or filing of any paper
or any further act on the part of any of the parties hereto. In case any
Securities shall have been authenticated but not delivered by the Trustee then
in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Securities
so authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 6.11. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint one or more Authenticating Agents acceptable to
the Company with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of that or
those series issued upon original issue, exchange, registration of transfer,
partial redemption or partial repayment or pursuant to Section 3.6, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent.
Each Authenticating Agent must be acceptable to the Company and, except
as provided in or pursuant to this Indenture, shall at all times be a
Corporation that would be permitted by the Trust Indenture Act to act as trustee
under an indenture qualified under the Trust Indenture Act, is authorized under
applicable law and by its charter to act as an Authenticating Agent and has a
combined capital and surplus (computed in accordance with Section 310(a)(2) of
the Trust Indenture Act) of at least $50,000,000. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect specified in this Section.
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Any Corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any Corporation succeeding to all or substantially all of
the corporate agency or corporate trust business of an Authenticating Agent,
shall be the successor of such Authenticating Agent hereunder, provided such
Corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall (i) mail written notice
of such appointment by first-class mail, postage prepaid, to all Holders of
Registered Securities, if any, of the series with respect to which such
Authenticating Agent shall serve, as their names and addresses appear in the
Security Register, and (ii) if Securities of the series are issued as Bearer
Securities, publish notice of such appointment at least once in an Authorized
Newspaper in the place where such successor Authenticating Agent has its
principal office if such office is located outside the United States. Any
successor Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay each Authenticating Agent from time to time
reasonable compensation for its services under this Section. If the Trustee
makes such payments, it shall be entitled to be reimbursed for such payments,
subject to the provisions of Section 6.6.
The provisions of Sections 3.8, 6.3 and 6.4 shall be applicable to each
Authenticating Agent.
If an Authenticating Agent is appointed with respect to one or more
series of Securities pursuant to this Section, the Securities of such series may
have endorsed thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication in substantially the
following form:
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By
----------------------------------
as Authenticating Agent
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By
----------------------------------
Authorized Officer
If all of the Securities of any series may not be originally issued at
one time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested in writing (which writing need not be
accompanied by or contained in an Officer's Certificate by the Company), shall
appoint in accordance with this Section an Authenticating Agent having an office
in a Place of Payment designated by the Company with respect to such series of
Securities.
ARTICLE 7
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
In accordance with Section 312(a) of the Trust Indenture Act, the
Company shall furnish or cause to be furnished to the Trustee
(1) semi-annually with respect to Securities of each series not
later than May 1 and November 1 of the year or upon such other dates as
are set forth in or pursuant to the Board Resolution or indenture
supplemental hereto authorizing such series, a list, in each case in
such form as the Trustee may reasonably require, of the names and
addresses of Holders as of the applicable date, and
(2) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished,
provided, however, that so long as the Trustee is the Security Registrar no such
list shall be required to be furnished.
SECTION 7.2. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
The Trustee shall comply with the obligations imposed upon it pursuant
to Section 312 of the Trust Indenture Act.
Every Holder of Securities or Coupons, by receiving and holding the
same, agrees with the Company and the Trustee that none of the Company, the
Trustee, any Paying Agent or any Security Registrar 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 Section 312(c) of the Trust
Indenture Act, regardless of the source from which such information was derived,
and
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that the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 312(b) of the Trust Indenture Act.
SECTION 7.3. REPORTS BY TRUSTEE.
(1) Within 60 days after September 15 of each year commencing
with the first September 15 following the first issuance of Securities
pursuant to Section 3.1, if required by Section 313(a) of the Trust
Indenture Act, the Trustee shall transmit, pursuant to Section 313(c) of
the Trust Indenture Act, a brief report dated as of such September 15
with respect to any of the events specified in said Section 313(a) which
may have occurred since the later of the immediately preceding September
15 and the date of this Indenture.
(2) The Trustee shall transmit the reports required by Section
313(a) of the Trust Indenture Act at the times specified therein.
(3) Reports pursuant to this Section shall be transmitted in the
manner and to the Persons required by Sections 313(c) and 313(d) of the
Trust Indenture Act.
SECTION 7.4. REPORTS BY COMPANY.
The Company, pursuant to Section 314(a) of the Trust Indenture Act,
shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from time
to time by rules and regulations prescribe) which the Company may be
required to file with the Commission pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934, as amended; or, if the
Company is not required to file information, documents or reports
pursuant to either of said Sections, then it shall file with the Trustee
and the Commission, in accordance with rules and regulations prescribed
from time to time by the Commission, such of the supplementary and
periodic information, documents and reports which may be required
pursuant to Section 13 of the Securities Exchange Act of 1934, as
amended, in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules
and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(3) transmit within 30 days after the filing thereof with the
Trustee, in the manner and to the extent provided in Section 313(c) of
the Trust Indenture Act, such
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summaries of any information, documents and reports required to be filed
by the Company pursuant to paragraphs (1) and (2) of this Section as may
be required by rules and regulations prescribed from time to time by the
Commission.
ARTICLE 8
CONSOLIDATION, MERGER AND SALES
SECTION 8.1. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other Person
(whether or not affiliated with the Company), or convey, transfer or lease its
properties and assets as an entirety or substantially as an entirety to any
other Person (whether or not affiliated with the Company), and the Company shall
not permit any other Person (whether or not affiliated with the Company) to
consolidate with or merge into the Company or convey, transfer or lease its
properties and assets as an entirety or substantially as an entirety to the
Company; unless:
(1) in case the Company shall consolidate with or merge into
another Person or convey, transfer or lease its properties and assets as
an entirety or substantially as an entirety to any Person, the Person
formed by such consolidation or into which the Company is merged or the
Person which acquires by conveyance or transfer, or which leases, the
properties and assets of the Company as an entirety or substantially as
an entirety shall be a Corporation organized and existing under the laws
of the United States of America or any state thereof or the District of
Columbia and shall expressly assume, by an indenture (or indentures, if
at such time there is more than one Trustee) supplemental hereto,
executed by the successor Person and delivered to the Trustee the due
and punctual payment of the principal of, any premium and interest on
and any Additional Amounts with respect to all the Securities and the
performance of every obligation in this Indenture and the Outstanding
Securities on the part of the Company to be performed or observed and
shall provide for conversion or exchange rights in accordance with the
provisions of the Securities of any series that are convertible or
exchangeable into Common Stock or other securities;
(2) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the Company or
a Subsidiary as a result of such transaction as having been incurred by
the Company or such Subsidiary at the time of such transaction, no Event
of Default or event which, after notice or lapse of time, or both, would
become an Event of Default, shall have occurred and be continuing; and
(3) either the Company or the successor Person shall have
delivered to the Trustee an Officer's Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance,
transfer or lease and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture comply
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
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SECTION 8.2. SUCCESSOR PERSON SUBSTITUTED FOR COMPANY.
Upon any consolidation by the Company with or merger of the Company into
any other Person or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety to any Person in accordance
with Section 8.1, the successor Person formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein; and thereafter, except in
the case of a lease, the predecessor Person shall be released from all
obligations and covenants under this Indenture, the Securities and the Coupons.
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.1. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders of Securities or Coupons, the Company
(when authorized by or pursuant to a Board Resolution) and the Trustee, at any
time and from time to time, may enter into one or more indentures supplemental
hereto, for any of the following purposes:
(1) to evidence the succession of another Person to the Company,
and the assumption by any such successor of the covenants of the
Company, contained herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (as shall be specified in
such supplemental indenture or indentures) or to surrender any right or
power herein conferred upon the Company; or
(3) to add to or change any of the provisions of this Indenture
to provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of, any
premium or interest on or any Additional Amounts with respect to
Securities, to permit Bearer Securities to be issued in exchange for
Registered Securities, to permit Bearer Securities to be exchanged for
Bearer Securities of other authorized denominations or to permit or
facilitate the issuance of Securities in uncertificated form, provided
any such action shall not adversely affect the interests of the Holders
of Outstanding Securities of any series or any Coupons appertaining
thereto in any material respect; or
(4) to establish the form or terms of Securities of any series
and any Coupons appertaining thereto as permitted by Sections 2.1 and
3.1; or
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(5) 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 6.9; or
(6) to cure any ambiguity or to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture which shall not
adversely affect the interests of the Holders of Securities of any
series then Outstanding or any Coupons appertaining thereto in any
material respect; or
(7) to add to, delete from or revise the conditions, limitations
and restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of Securities, as herein set forth; or
(8) to add any additional Events of Default with respect to all
or any series of Securities (as shall be specified in such supplemental
indenture); or
(9) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Article 4, provided
that any such action shall not adversely affect the interests of any
Holder of an Outstanding Security of such series and any Coupons
appertaining thereto or any other Outstanding Security or Coupon in any
material respect; or
(10) to secure the Securities pursuant to Section 10.5 or
otherwise; or
(11) to make provisions with respect to conversion or exchange
rights of Holders of Securities of any series; or
(12) to amend or supplement any provision contained herein or in
any supplemental indenture, provided that no such amendment or
supplement shall materially adversely affect the interests of the
Holders of any Securities then Outstanding.
SECTION 9.2. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company (when authorized by or pursuant to a Company's Board
Resolution) and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
under this Indenture or of the Securities of such
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series; provided, however, that no such supplemental indenture, without the
consent of the Holder of each Outstanding Security affected thereby, shall
(1) change the Stated Maturity of the principal of, or any
premium or installment of interest on or any Additional Amounts with
respect to, any Security, or reduce the principal amount thereof or the
rate (or modify the calculation of such rate) of interest thereon or any
Additional Amounts with respect thereto, or any premium payable upon the
redemption thereof or otherwise, or change the obligation of the Company
to pay Additional Amounts pursuant to the terms hereof (except as
contemplated by Section 8.1(1) and permitted by Section 9.1(1)), or
reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2 or the
amount thereof provable in bankruptcy pursuant to Section 5.4, change
the redemption provisions or adversely affect the right of repayment at
the option of any Holder as contemplated by Article 13, or change the
Place of Payment, Currency in which the principal of, any premium or
interest on, or any Additional Amounts with respect to any Security is
payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof (or, in the
case of redemption, on or after the Redemption Date or, in the case of
repayment at the option of the Holder, on or after the date for
repayment), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences) provided
for in this Indenture, or reduce the requirements of Section 15.4 for
quorum or voting, or
(3) modify any of the provisions of this Section, Section 5.13 or
Section 10.8, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby, or
(4) make any change that adversely affects the right to convert
or exchange any Security into or for securities of the Company or other
securities, (whether or not issued by the Company) cash or property in
accordance with its terms.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which shall have been included expressly and
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
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It shall not be necessary for any Act of Holders of Securities under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
SECTION 9.3. EXECUTION OF SUPPLEMENTAL INDENTURES.
As a condition to executing, or accepting the additional trusts created
by, any supplemental indenture permitted by this Article or the modifications
thereby of the trust created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 315 of the Trust Indenture Act) shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture and an
Officer's Certificate stating that all conditions precedent to the execution of
such supplemental indenture have been fulfilled. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.4. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of a Security theretofore or thereafter authenticated and delivered hereunder
and of any Coupon appertaining thereto shall be bound thereby.
SECTION 9.5. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
SECTION 9.6. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 9.7. NOTICE OF SUPPLEMENTAL INDENTURE.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to Section 9.2, the Company shall transmit to
the Holders of Outstanding Securities of any series affected thereby a notice
setting forth the substance of such supplemental indenture.
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ARTICLE 10
COVENANTS
SECTION 10.1. PAYMENT OF PRINCIPAL, ANY PREMIUM, INTEREST AND ADDITIONAL
AMOUNTS.
The Company covenants and agrees for the benefit of the Holders of the
Securities of each series that it will duly and punctually pay the principal of,
any premium and interest on and any Additional Amounts with respect to the
Securities of such series in accordance with the terms thereof, any Coupons
appertaining thereto and this Indenture. Any interest due on any Bearer Security
on or before the Maturity thereof, and any Additional Amounts payable with
respect to such interest, shall be payable only upon presentation and surrender
of the Coupons appertaining thereto for such interest as they severally mature.
SECTION 10.2. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in each Place of Payment for any series of
Securities an Office or Agency where Securities of such series (but not Bearer
Securities, except as otherwise provided below, unless such Place of Payment is
located outside the United States) may be presented or surrendered for payment,
where Securities of such series may be surrendered for registration of transfer
or exchange, where Securities of such series that are convertible or
exchangeable may be surrendered for conversion or exchange, and where notices
and demands to or upon the Company in respect of the Securities of such series
relating thereto and this Indenture may be served. If Securities of a series are
issuable as Bearer Securities, the Company shall maintain, subject to any laws
or regulations applicable thereto, an Office or Agency in a Place of Payment for
such series which is located outside the United States where Securities of such
series and any Coupons appertaining thereto may be presented and surrendered for
payment; provided, however, that if the Securities of such series are listed on
The Stock Exchange of the United Kingdom and the Republic of Ireland or the
Luxembourg Stock Exchange or any other stock exchange located outside the United
States and such stock exchange shall so require, the Company shall maintain a
Paying Agent in London, Luxembourg or any other required city located outside
the United States, as the case may be, so long as the Securities of such series
are listed on such exchange. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such Office or
Agency. If at any time the Company shall fail to maintain any such required
Office or Agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, except that Bearer Securities of such
series and any Coupons appertaining thereto may be presented and surrendered for
payment at the place specified for the purpose with respect to such Securities
as provided in or pursuant to this Indenture, and the Company hereby appoints
the Trustee as its agent to receive all such presentations, surrenders, notices
and demands.
Except as otherwise provided in or pursuant to this Indenture, no
payment of principal, premium, interest or Additional Amounts with respect to
Bearer Securities shall be made at any Office or Agency in the United States or
by check mailed to any address in the United States or
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by transfer to an account maintained with a bank located in the United States;
provided, however, if amounts owing with respect to any Bearer Securities shall
be payable in Dollars, payment of principal of, any premium or interest on and
any Additional Amounts with respect to any such Security may be made at the
Corporate Trust Office of the Trustee or any Office or Agency designated by the
Company in the Borough of Manhattan, The City of New York, if (but only if)
payment of the full amount of such principal, premium, interest or Additional
Amounts at all offices outside the United States maintained for such purpose by
the Company in accordance with this Indenture is illegal or effectively
precluded by exchange controls or other similar restrictions.
The Company may also from time to time designate one or more other
Offices or Agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an Office
or Agency in each Place of Payment for Securities of any series for such
purposes. The Company shall give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other Office or Agency. Unless otherwise provided in or pursuant to this
Indenture, the Company hereby designates as the Place of Payment for each series
of Securities the Borough of Manhattan, The City of New York, and initially
appoints the Corporate Trust Office of the Trustee as the Office or Agency of
the Company in the Borough of Manhattan, The City of New York for such purpose.
The Company may subsequently appoint a different Office or Agency in the Borough
of Manhattan, The City of New York for the Securities of any series.
Unless otherwise specified with respect to any Securities pursuant to
Section 3.1, if and so long as the Securities of any series (i) are denominated
in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long
as it is required under any other provision of this Indenture, then the Company
will maintain with respect to each such series of Securities, or as so required,
at least one exchange rate agent.
SECTION 10.3. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it shall, on or before each due date of the
principal of, any premium or interest on or Additional Amounts with respect to
any of the Securities of such series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum in the currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 3.1 for the Securities of such series) sufficient to pay the principal
or any premium, interest or Additional Amounts so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided, and
shall promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series
of Securities, it shall, on or prior to each due date of the principal of, any
premium or interest on or any Additional Amounts with respect to any Securities
of such series, deposit with any Paying
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Agent a sum (in the currency or currencies, currency unit or units or composite
currency or currencies described in the preceding paragraph) sufficient to pay
the principal or any premium, interest or Additional Amounts so becoming due,
such sum to be held in trust for the benefit of the Persons entitled thereto,
and (unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of its action or failure so to act.
The Company shall cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent shall:
(1) hold all sums held by it for the payment of the principal of,
any premium or interest on or any Additional Amounts with respect to
Securities of such series in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as provided in or pursuant to this Indenture;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of such series) in the making of any
payment of principal, any premium or interest on or any Additional
Amounts with respect to the Securities of such series; and
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same terms as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such sums.
Except as otherwise provided herein or pursuant hereto, any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of, any premium or interest on or any
Additional Amounts with respect to any Security of any series or any Coupon
appertaining thereto and remaining unclaimed for two years after such principal
or any such premium or interest or any such Additional Amounts shall have become
due and payable shall be paid to the Company on Company Request, or (if then
held by the Company) shall be discharged from such trust; and the Holder of such
Security or any Coupon appertaining thereto shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in an Authorized Newspaper in each Place of Payment for such
series or to be mailed to Holders of Registered Securities of such series, or
both, notice that such money remains unclaimed and that,
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after a date specified therein, which shall not be less than 30 days from the
date of such publication or mailing nor shall it be later than two years after
such principal and any premium or interest or Additional Amounts shall have
become due and payable, any unclaimed balance of such money then remaining will
be repaid to the Company.
SECTION 10.4. ADDITIONAL AMOUNTS.
If any Securities of a series provide for the payment of Additional
Amounts, the Company agrees to pay to the Holder of any such Security or any
Coupon appertaining thereto Additional Amounts as provided in or pursuant to
this Indenture or such Securities. Whenever in this Indenture there is
mentioned, in any context, the payment of the principal of or any premium or
interest on, or in respect of, any Security of any series or any Coupon or the
net proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of Additional
Amounts provided by the terms of such series established hereby or pursuant
hereto to the extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof pursuant to such terms, and express mention
of the payment of Additional Amounts (if applicable) in any provision hereof
shall not be construed as excluding Additional Amounts in those provisions
hereof where such express mention is not made.
Except as otherwise provided in or pursuant to this Indenture or the
Securities of the applicable series, if the Securities of a series provide for
the payment of Additional Amounts, at least 10 days prior to the first Interest
Payment Date with respect to such series of Securities (or if the Securities of
such series shall not bear interest prior to Maturity, the first day on which a
payment of principal is made), and at least 10 days prior to each date of
payment of principal or interest if there has been any change with respect to
the matters set forth in the below-mentioned Officer's Certificate, the Company
shall furnish to the Trustee and the principal Paying Agent or Paying Agents, if
other than the Trustee, an Officer's Certificate instructing the Trustee and
such Paying Agent or Paying Agents whether such payment of principal of and
premium, if any, or interest on the Securities of such series shall be made to
Holders of Securities of such series or the Coupons appertaining thereto who are
United States Aliens without withholding for or on account of any tax,
assessment or other governmental charge described in the Securities of such
series. If any such withholding shall be required, then such Officer's
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Securities or Coupons, and the Company
agrees to pay to the Trustee or such Paying Agent the Additional Amounts
required by the terms of such Securities. The Company covenants to indemnify the
Trustee and any Paying Agent for, and to hold them harmless against, any loss,
liability or expense reasonably incurred without negligence or bad faith on
their part arising out of or in connection with actions taken or omitted by any
of them in reliance on any Officer's Certificate furnished pursuant to this
Section 10.4.
SECTION 10.5. LIMITATION ON MORTGAGES AND LIENS.
The Company will not at any time directly or indirectly issue, assume,
guarantee or permit to exist any indebtedness secured by a mortgage, pledge,
lien or other encumbrance (any
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mortgage, pledge, lien or other encumbrance being hereinafter in this Section
referred to as a "lien") on any of its property or assets or any property or
assets of a Restricted Subsidiary, whether now owned or hereafter acquired,
without making effective provisions whereby the Securities then outstanding
(and, if the Company so elects, any other indebtedness ranking on a parity with
the Securities) shall be equally and ratably secured with any such secured
indebtedness, so long as any such other indebtedness shall be secured; provided,
however, that the foregoing covenant shall not be applicable to the following:
(1) liens in existence on the date of this Indenture; or
(2) liens on real estate (including liens existing in respect of
such real estate at the time of acquisition thereof) securing
indebtedness in an amount not in excess of 100% of the fair value of the
real estate at the time of creation of such indebtedness (as determined
by the Board of Directors); or
(3) liens arising from the acquisition of a business as a going
concern (whether by merger, acquisition of a controlling stock interest,
acquisition of assets or otherwise) or to which assets acquired by the
Company or a Restricted Subsidiary in partial or complete satisfaction
of secured indebtedness are subject; or
(4) liens to secure the extension, renewal or replacement of any
indebtedness secured by any of the liens referred to in (1), (2) or (3)
above, provided that there shall not be an increase in the amount of
indebtedness secured by such extension, renewal or replacement; or
(5) liens of taxes or assessments or governmental charges or
levies not then due and delinquent or the validity of which is being
contested in good faith or which are less than $10,000,000 in amount;
pledges or deposits to secure public or statutory obligations including
liens and deposits required or provided for under state insurance laws
and similar regulatory statutes; materialmen's, mechanics', carrier's,
workmen's, repairmen's or other like liens, and pledges or deposits made
in the ordinary course of business to obtain the release of such liens;
liens created by or resulting from any litigation or legal proceeding
which is being contested in good faith by appropriate proceedings or
which involve claims of less than $10,000,000; deposits to secure (or in
lieu of) surety, stay, appeal or customs bonds; deposits to secure the
payment of taxes, assessments, customs duties or other similar charges;
landlords liens on property held under lease; and any other liens
similar to those described in this clause (5), the existence of which
does not, in the opinion of the Company, materially impair the use by
the Company or the Restricted Subsidiary of the affected property in the
operation of its business, or the value of such property for the purpose
of such business.
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SECTION 10.6. LIMITATION UPON SALES OF CAPITAL STOCK OF RESTRICTED
SUBSIDIARIES.
The Company will not sell, transfer or otherwise dispose of (except to a
Restricted Subsidiary), and it will not permit any Restricted Subsidiary to
sell, transfer or otherwise dispose of (except to the Company or to a Restricted
Subsidiary), any shares of Capital Stock of a Restricted Subsidiary, unless the
entire Capital Stock of such Restricted Subsidiary at the time owned by the
Company and its Restricted Subsidiaries shall be disposed of at the same time
for a consideration consisting of cash or other property, which, in the opinion
of the Board of Directors, is at least equal to the fair value thereof.
For the purposes of this Indenture, "Restricted Subsidiary" shall mean a
Subsidiary including Subsidiaries of any Subsidiary, which meets any of the
following conditions:
(1) the Company's and its other Subsidiaries' investments in and
advances to the Subsidiary exceed 10% of the total assets of the Company
and its Subsidiaries consolidated as of the end of the most recently
completed fiscal year; or
(2) the Company's and its other Subsidiaries' proportionate share
of the total assets (after inter-company eliminations) of the Subsidiary
exceeds 10% of the total assets of the Company and its Subsidiaries
consolidated as of the end of the most recently completed fiscal year;
or
(3) the Company's and its other Subsidiaries' equity in the
income from continuing operations before income taxes, extraordinary
items and cumulative effect of a change in accounting principle of the
Subsidiary exceeds 10% of such income of the Company and its
Subsidiaries consolidated for the most recently completed fiscal year.
For purposes of making the prescribed income test in clause (3) of the
preceding sentence, when a loss has been incurred by either the Company and its
Subsidiaries consolidated or the tested Subsidiary, but not both, the equity in
the income or loss of the tested subsidiary shall be excluded from the income of
the Company and its Subsidiaries consolidated for purposes of the computation
and if income of the Company and its Subsidiaries consolidated for the most
recent fiscal year is at least 10% lower than the average of the income for the
last five years, such average income shall be substituted for purposes of the
computation and any loss years shall be omitted for purposes of computing
average income.
SECTION 10.7. CORPORATE EXISTENCE.
Subject to Article 8, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and that of each of its Restricted Subsidiaries and their respective
rights (charter and statutory) and franchises; provided, however, that the
foregoing shall not obligate the Company or any of its Restricted Subsidiaries
to preserve any such right or franchise if the Company or any such Restricted
Subsidiary shall determine that the preservation thereof is no longer desirable
in the conduct of its business or the
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business of such Restricted Subsidiary and that the loss thereof is not
disadvantageous in any material respect to any Holder.
SECTION 10.8. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Section 10.5, 10.6 or 10.7 with respect to
the Securities of any series if before the time for such compliance the Holders
of at least a majority in principal amount of the Outstanding Securities of such
series, by Act of such Holders, either shall waive such compliance in such
instance or generally shall have waived compliance with such term, provision or
condition, but no such waiver shall extend to or affect such term, provision or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such term, provision or condition shall remain in full force
and effect.
SECTION 10.9. COMPANY STATEMENT AS TO COMPLIANCE; NOTICE OF CERTAIN
DEFAULTS.
(1) The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year, a written statement (which need not
be contained in or accompanied by an Officer's Certificate) signed by
the principal executive officer, the principal financial officer or the
principal accounting officer of the Company, stating that
(a) a review of the activities of the Company during such
year and of its performance under this Indenture has been made
under his or her supervision, and
(b) to the best of his or her knowledge, based on such
review, (a) the Company has complied with all the conditions and
covenants imposed on it under this Indenture throughout such
year, or, if there has been a default in the fulfillment of any
such condition or covenant, specifying each such default known to
him or her and the nature and status thereof, and (b) no event
has occurred and is continuing which is, or after notice or lapse
of time or both would become, an Event of Default, or, if such an
event has occurred and is continuing, specifying each such event
known to him and the nature and status thereof.
(2) The Company shall deliver to the Trustee, within five days
after the occurrence thereof, written notice of any Event of Default or
any event which after notice or lapse of time or both would become an
Event of Default pursuant to clause (4) of Section 5.1.
(3) The Trustee shall have no duty to monitor the Company's
compliance with the covenants contained in this Article 10 other than as
specifically set forth in this Section 10.9.
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ARTICLE 11
REDEMPTION OF SECURITIES
SECTION 11.1. APPLICABILITY OF ARTICLE.
Redemption of Securities of any series at the option of the Company as
permitted or required by the terms of such Securities shall be made in
accordance with the terms of such Securities and (except as otherwise provided
herein or pursuant hereto) this Article.
SECTION 11.2. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be evidenced
by or pursuant to a Board Resolution. In case of any redemption at the election
of the Company of (a) less than all of the Securities of any series or (b) all
of the Securities of any series, with the same issue date, interest rate or
formula, Stated Maturity and other terms, the Company shall, at least 60 days
prior to the Redemption Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date and
of the principal amount of Securities of such series to be redeemed.
SECTION 11.3. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all of the Securities of any series with the same issue
date, interest rate or formula, Stated Maturity and other terms are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions of the principal amount of Registered
Securities of such series; provided, however, that no such partial redemption
shall reduce the portion of the principal amount of a Registered Security of
such series not redeemed to less than the minimum denomination for a Security of
such series established herein or pursuant hereto.
The Trustee shall promptly notify the Company and the Security Registrar
(if other than itself) in writing of the Securities selected for redemption and,
in the case of any Securities selected for partial redemption, the principal
amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal of such Securities which has been or is to be redeemed.
Unless otherwise specified in or pursuant to this Indenture or the
Securities of any series, if any Security selected for partial redemption is
converted into other securities of the Company or exchanged for securities of
another issuer in part before termination of the conversion or exchange right
with respect to the portion of the Security so selected, the converted portion
of
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such Security shall be deemed (so far as may be) to be the portion selected for
redemption. Securities which have been converted or exchanged during a selection
of Securities to be redeemed shall be treated by the Trustee as Outstanding for
the purpose of such selection.
SECTION 11.4. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in Section
1.6, not less than 30 nor more than 60 days prior to the Redemption Date, unless
a shorter period is specified in the Securities to be redeemed, to the Holders
of Securities to be redeemed. Failure to give notice by mailing in the manner
herein provided to the Holder of any Registered Securities designated for
redemption as a whole or in part, or any defect in the notice to any such
Holder, shall not affect the validity of the proceedings for the redemption of
any other Securities or portion thereof.
Any notice that is mailed to the Holder of any Registered Securities in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not such Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amount) of the particular Security or Securities to be
redeemed,
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the Holder of such
Security will receive, without charge, a new Security or Securities of
authorized denominations for the principal amount thereof remaining
unredeemed,
(5) that, on the Redemption Date, the Redemption Price shall
become due and payable upon each such Security or portion thereof to be
redeemed, and, if applicable, that interest thereon shall cease to
accrue on and after said date,
(6) the place or places where such Securities, together (in the
case of Bearer Securities) with all Coupons appertaining thereto, if
any, maturing after the Redemption Date, are to be surrendered for
payment of the Redemption Price and any accrued interest and Additional
Amounts pertaining thereto,
(7) that the redemption is for a sinking fund, if such is the
case,
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(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all Coupons maturing subsequent to the date fixed for
redemption or the amount of any such missing Coupon or Coupons will be
deducted from the Redemption Price, unless security or indemnity
satisfactory to the Company, the Trustee and any Paying Agent is
furnished,
(9) if Bearer Securities of any series are to be redeemed and no
Registered Securities of such series are to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject
to redemption on the Redemption Date pursuant to Section 3.5 or
otherwise, the last date, as determined by the Company, on which such
exchanges may be made,
(10) in the case of Securities of any series that are convertible
into Common Stock of the Company or exchangeable for other securities,
the conversion or exchange price or rate, the date or dates on which the
right to convert or exchange the principal of the Securities of such
series to be redeemed will commence or terminate and the place or places
where such Securities may be surrendered for conversion or exchange, and
(11) the CUSIP number or the Euroclear or the Cedel reference
numbers of such Securities, if any (or any other numbers used by a
Depository to identify such Securities).
A notice of redemption published as contemplated by Section 1.6 need not
identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 11.5. DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Company shall deposit, with
respect to the Securities of any series called for redemption pursuant to
Section 11.4, with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 10.3) an amount of money in the applicable Currency sufficient to pay
the Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date, unless otherwise specified pursuant to Section 3.1 or in the
Securities of such series) any accrued interest on and Additional Amounts with
respect thereto, all such Securities or portions thereof which are to be
redeemed on that date.
SECTION 11.6. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the
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Redemption Price and accrued interest) such Securities shall cease to bear
interest and the Coupons for such interest appertaining to any Bearer Securities
so to be redeemed, except to the extent provided below, shall be void. Upon
surrender of any such Security for redemption in accordance with said notice,
together with all Coupons, if any, appertaining thereto maturing after the
Redemption Date, such Security shall be paid by the Company at the Redemption
Price, together with any accrued interest and Additional Amounts to the
Redemption Date; provided, however, that, except as otherwise provided in or
pursuant to this Indenture or the Bearer Securities of such series, installments
of interest on Bearer Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable only upon presentation and surrender of Coupons
for such interest (at an Office or Agency located outside the United States
except as otherwise provided in Section 10.2), and provided, further, that,
except as otherwise specified in or pursuant to this Indenture or the Registered
Securities of such series, installments of interest on Registered Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the Regular Record Dates therefor
according to their terms and the provisions of Section 3.7.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing Coupons, or the surrender of such missing
Coupon or Coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing Coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided,
however, that any interest or Additional Amounts represented by Coupons shall be
payable only upon presentation and surrender of those Coupons at an Office or
Agency for such Security located outside of the United States except as
otherwise provided in Section 10.2.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium, until paid,
shall bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
SECTION 11.7. SECURITIES REDEEMED IN PART.
Any Registered Security which is to be redeemed only in part shall be
surrendered at any Office or Agency for such Security (with, if the Company or
the Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing) and the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Registered Security or Securities of the
same series, containing identical terms and provisions, of any authorized
denomination as requested by such Holder in aggregate principal amount equal to
and in exchange for the unredeemed portion of the
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principal of the Security so surrendered. If a Security in global form is so
surrendered, the Company shall execute, and the Trustee shall authenticate and
deliver to the U.S. Depository or other Depository for such Security in global
form as shall be specified in the Company Order with respect thereto to the
Trustee, without service charge, a new Security in global form in a denomination
equal to and in exchange for the unredeemed portion of the principal of the
Security in global form so surrendered.
ARTICLE 12
SINKING FUNDS
SECTION 12.1. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series, except as otherwise permitted or
required in or pursuant to this Indenture or any Security of such series issued
pursuant to this Indenture.
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 such series is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 12.2. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of Securities of such
series and this Indenture.
SECTION 12.2. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company may, in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of any series to be made pursuant to the
terms of such Securities (1) deliver Outstanding Securities of such series
(other than any of such Securities previously called for redemption or any of
such Securities in respect of which cash shall have been released to the
Company), together in the case of any Bearer Securities of such series with all
unmatured Coupons appertaining thereto, and (2) apply as a credit Securities of
such series which have been redeemed either at the election of the Company
pursuant to the terms of such series of Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, provided that such series of Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly. If, as a result of the delivery or credit
of Securities of any series in lieu of cash payments pursuant to this Section
12.2, the principal amount of Securities of such series to be redeemed in order
to satisfy the remaining sinking fund payment shall be less than $100,000, the
Trustee need not call Securities of such series for redemption, except upon
Company Request, and such cash payment shall be held by the Trustee or a Paying
Agent and applied to the next succeeding sinking fund payment,
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provided, however, that the Trustee or such Paying Agent shall at the request of
the Company from time to time pay over and deliver to the Company any cash
payment so being held by the Trustee or such Paying Agent upon delivery by the
Company to the Trustee of Securities of that series purchased by the Company
having an unpaid principal amount equal to the cash payment requested to be
released to the Company.
SECTION 12.3. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 75 days prior to each sinking fund payment date for any
series of Securities, the Company shall deliver to the Trustee an Officer's
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting of
Securities of that series pursuant to Section 12.2, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment, and
will also deliver to the Trustee any Securities to be so credited and not
theretofore delivered. If such Officer's Certificate shall specify an optional
amount to be added in cash to the next ensuing mandatory sinking fund payment,
the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 60 days before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 11.3 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 11.4. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 11.6 and 11.7.
ARTICLE 13
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 13.1. APPLICABILITY OF ARTICLE.
Securities of any series which are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in accordance with
the terms of the Securities of such series. The repayment of any principal
amount of Securities pursuant to such option of the Holder to require repayment
of Securities before their Stated Maturity, for purposes of Section 3.9, shall
not operate as a payment, redemption or satisfaction of the Indebtedness
represented by such Securities unless and until the Company, at its option,
shall deliver or surrender the same to the Trustee with a directive that such
Securities be cancelled. Notwithstanding anything to the contrary contained in
this Section 13.1, in connection with any repayment of Securities, the Company
may arrange for the purchase of any Securities by an agreement with one or more
investment bankers or other purchasers to purchase such Securities by paying to
the Holders of such Securities on or before the close of business on the
repayment date an amount not less than the repayment price payable by the
Company on repayment of such Securities, and the obligation of the Company to
pay the repayment price of such Securities shall be satisfied and discharged to
the extent such payment is so paid by such purchasers.
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ARTICLE 14
SECURITIES IN FOREIGN CURRENCIES
SECTION 14.1. APPLICABILITY OF ARTICLE.
Whenever this Indenture provides for (i) any action by, or the
determination of any of the rights of, Holders of Securities of any series in
which not all of such Securities are denominated in the same Currency, or (ii)
any distribution to Holders of Securities, in the absence of any provision to
the contrary in the form of Security of any particular series or pursuant to
this Indenture or the Securities, any amount in respect of any Security
denominated in a Currency other than Dollars shall be treated for any such
action or distribution as that amount of Dollars that could be obtained for such
amount on such reasonable basis of exchange and as of the record date with
respect to Registered Securities of such series (if any) for such action,
determination of rights or distribution (or, if there shall be no applicable
record date, such other date reasonably proximate to the date of such action,
determination of rights or distribution) as the Company may specify in a written
notice to the Trustee.
ARTICLE 15
MEETINGS OF HOLDERS OF SECURITIES
SECTION 15.1. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of any series may be called at any
time and from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other Act
provided by this Indenture to be made, given or taken by Holders of Securities
of such series.
SECTION 15.2. CALL, NOTICE AND PLACE OF MEETINGS.
(1) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 15.1, to
be held at such time and at such place in the Borough of Manhattan, The
City of New York, or, if Securities of such series have been issued in
whole or in part as Bearer Securities, in London or in such place
outside the United States as the Trustee shall determine. Notice of
every meeting of Holders of Securities of any series, setting forth the
time and the place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be given, in the manner
provided in Section 1.6, not less than 21 nor more than 180 days prior
to the date fixed for the meeting.
(2) In case at any time the Company (by or pursuant to a Board
Resolution) or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to
call a meeting of the Holders of Securities of such series for any
purpose specified in Section 15.1, by written request setting forth in
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reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have mailed notice of or made the first
publication of the notice of such meeting within 21 days after receipt
of such request (whichever shall be required pursuant to Section 1.6) or
shall not thereafter proceed to cause the meeting to be held as provided
herein, then the Company or the Holders of Securities of such series in
the amount above specified, as the case may be, may determine the time
and the place in the Borough of Manhattan, The City of New York, or, if
Securities of such series are to be issued as Bearer Securities, in
London for such meeting and may call such meeting for such purposes by
giving notice thereof as provided in clause (1) of this Section.
SECTION 15.3. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
SECTION 15.4. QUORUM; ACTION.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for any meeting of
Holders of Securities of such series. In the absence of a quorum within 30
minutes after the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be dissolved.
In any other case the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any reconvened meeting, such
reconvened meeting may be further adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such reconvened meeting. Notice of the reconvening of any adjourned meeting
shall be given as provided in Section 15.2(1), except that such notice need be
given only once not less than five days prior to the date on which the meeting
is scheduled to be reconvened. Notice of the reconvening of an adjourned meeting
shall state expressly the percentage, as provided above, of the principal amount
of the Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 9.2, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted only by the affirmative vote of the Holders
of a majority in principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to Section 9.2, any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other Act which this Indenture expressly provides may
be made, given or taken by the Holders of a specified percentage, which is less
than a majority, in principal amount of the Outstanding Securities of a series
may be adopted at a meeting or an adjourned meeting duly
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<PAGE> 86
reconvened and at which a quorum is present as aforesaid by the affirmative vote
of the Holders of such specified percentage in principal amount of the
Outstanding Securities of such series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the Coupons
appertaining thereto, whether or not such Holders were present or represented at
the meeting.
SECTION 15.5. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS.
(1) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable
for any meeting of Holders of Securities of such series in regard to
proof of the holding of Securities of such series and of the appointment
of proxies and in regard to the appointment and duties of inspectors of
votes, the submission and examination of proxies, certificates and other
evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall deem appropriate. Except as otherwise
permitted or required by any such regulations, the holding of Securities
shall be proved in the manner specified in Section 1.4 and the
appointment of any proxy shall be proved in the manner specified in
Section 1.4 or by having the signature of the person executing the proxy
witnessed or guaranteed by any trust company, bank or banker authorized
by Section 1.4 to certify to the holding of Bearer Securities. Such
regulations may provide that written instruments appointing proxies,
regular on their face, may be presumed valid and genuine without the
proof specified in Section 1.4 or other proof.
(2) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders of Securities as provided in Section
15.2(2), in which case the Company or the Holders of Securities of the
series calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Persons
entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting.
(3) At any meeting, each Holder of a Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount of
Securities of such series held or represented by him; provided, however,
that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the
meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote, except as a Holder of a Security of such series or proxy.
(4) Any meeting of Holders of Securities of any series duly
called pursuant to Section 15.2 at which a quorum is present may be
adjourned from time to time by Persons entitled to vote a majority in
principal amount of the Outstanding Securities of such series
represented at the meeting; and the meeting may be held as so adjourned
without further notice.
80
<PAGE> 87
SECTION 15.6. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 15.2 and, if
applicable, Section 15.4. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
[Intentionally left blank]
81
<PAGE> 88
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed, all
as of the day and year first above written.
[SEAL] SAFECO CORPORATION
Attest:
By
----------------------------------
Name:
Title:
[SEAL] THE CHASE MANHATTAN BANK,
as Trustee
By
----------------------------------
Name:
Title:
82
<PAGE> 1
EXHIBIT 5.1
February 14, 2000
SAFECO Corporation
4333 Brooklyn Avenue N.E.
Seattle, Washington 98185
Ladies and Gentlemen:
This opinion is furnished in connection with the registration under
the Securities Act of 1933, as amended (the "Act"), of $500,000,000 aggregate
principal amount of Debt Securities (the "Debt Securities") of SAFECO
Corporation (the "Company") pursuant to the Company's Registration Statement on
Form S-3 filed with the Securities and Exchange Commission on the date hereof
(the "Registration Statement").
We have examined the Registration Statement and such other documents
and records of the Company. certificates of public officials, and other
documents as we have deemed necessary or appropriate for the purposes of this
opinion. Capitalized terms used but not otherwise defined herein have the
respective meanings assigned to such terms in the registration Statement.
Based upon the foregoing, we are of the opinion that, when the
following events have occurred:
(a) the Registration Statement and any amendments or supplements
thereto have been filed, and the Registration Statement has become effective;
(b) the Indenture has been duly executed and delivered by the Company
and the Trustee;
(c) the terms of the Debt Securities and their issue and sale have
been duly established in conformity with the Indenture; and
(d) the due execution by the Company and authentication and delivery by
the Trustee of the Debt Securities, and the issuance and sale thereof by the
Company as contemplated by the Registration Statement;
the Debt Securities will constitute in the hands of the respective holders
thereof valid and binding obligations of the Company, subject to applicable
bankruptcy and insolvency laws and the application of general principles of
equity.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under the heading "Legal
Matters" in the related Prospectus. In giving such consent, we do not thereby
admit that we are in the category of persons whose consent is required under
Section 7 of the Act.
Very truly yours,
Perkins Coie LLP
<PAGE> 1
Computation of Ratio of Earnings to Fixed Charges Exhibit 12.1
Year Ended December 31
- --------------------------------------------------------------------------------
(In Millions, except ratios)
SAFECO CORPORATION AND SUBSIDIARIES
(Ratio of Earnings to Fixed Charges
Excluding Distributions on Capital Securities)
<TABLE>
<CAPTION>
1999 1998 1997 1996 1995
-------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Earnings:
Income Before Income Taxes and
Distributions on Capital Securities $ 332.3 $ 462.8 $ 572.6 $ 578.5 $ 513.8
Total Fixed Charges Below 150.4 168.1 109.3 76.3 89.7
Less Interest Capitalized -- (0.5) (2.0) (0.1) (0.3)
Less Undistributed Loss from
Unconsolidated Subsidiary -- -- -- 0.9 1.0
-------------------------------------------------------------------
Total Earnings $ 482.7 $ 630.4 $ 679.9 $ 655.6 $ 604.2
===================================================================
Fixed Charges:
Interest $ 141.0 $ 159.5 $ 101.8 $ 72.4 $ 85.4
Interest Capitalized -- 0.5 2.0 0.1 0.3
Interest Portion of Rental Expense 8.3 6.7 4.8 3.3 3.2
Amortization of Deferred Debt Expense 1.1 1.4 0.7 0.5 0.8
-------------------------------------------------------------------
Total Fixed Charges $ 150.4 $ 168.1 $ 109.3 $ 76.3 $ 89.7
===================================================================
Ratio of Earnings to Fixed Charges
Excluding Distributions on Capital Securities 3.2 3.8 6.2 8.6 6.7
===================================================================
</TABLE>
SAFECO CORPORATION AND SUBSIDIARIES
(Ratio of Earnings to Fixed Charges
and Distributions on Capital Securities)
<TABLE>
<CAPTION>
1999 1998 1997 1996 1995
-------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Earnings:
Income Before Income Taxes $ 263.3 $ 393.7 $ 549.8 $ 578.5 $ 513.8
Total Fixed Charges Below 219.4 237.2 132.1 76.3 89.7
Less Interest Capitalized -- (0.5) (2.0) (0.1) (0.3)
Less Undistributed Loss from
Unconsolidated Subsidiary -- -- -- 0.9 1.0
-------------------------------------------------------------------
Total Earnings $ 482.7 $ 630.4 $ 679.9 $ 655.6 $ 604.2
===================================================================
Fixed Charges:
Interest $ 141.0 $ 159.5 $ 101.8 $ 72.4 $ 85.4
Distribution on Capital Securities 69.0 69.1 22.8 -- --
Interest Capitalized -- 0.5 2.0 0.1 0.3
Interest Portion of Rental Expense 8.3 6.7 4.8 3.3 3.2
Amortization of Deferred Debt Expense 1.1 1.4 0.7 0.5 0.8
-------------------------------------------------------------------
Total Fixed Charges $ 219.4 $ 237.2 $ 132.1 $ 76.3 $ 89.7
===================================================================
Ratio of Earnings to Fixed Charges
and Distributions on Capital Securities 2.2 2.7 5.1 8.6 6.7
===================================================================
</TABLE>
SAFECO CREDIT
<TABLE>
<CAPTION>
1999 1998 1997 1996 1995
-------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Earnings:
Income Before Income Taxes $ 22.6 $ 22.7 $ 21.5 $ 19.1 $ 13.3
Total Fixed Charges Below 74.7 67.1 56.4 47.5 41.9
-------------------------------------------------------------------
Total Earnings $ 97.3 $ 89.8 $ 77.9 $ 66.6 $ 55.2
===================================================================
Fixed Charges:
Interest $ 74.6 $ 67.0 $ 56.3 $ 47.4 $ 41.8
Interest Portion of Rental Expense 0.1 0.1 0.1 0.1 0.1
-------------------------------------------------------------------
Total Fixed Charges $ 74.7 $ 67.1 $ 56.4 $ 47.5 $ 41.9
===================================================================
Ratio of Earnings to Fixed Charges 1.3 1.3 1.4 1.4 1.3
===================================================================
</TABLE>
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Independent Auditors"
in the Registration Statement on Form S-3 and the related Prospectus of SAFECO
Corporation for the registration of $500,000,000 aggregate principal amount of
debt securities of SAFECO Corporation and to the incorporation by reference
therein of our report dated February 12, 1999 with respect to the consolidated
financial statements of SAFECO Corporation and its subsidiaries incorporated by
reference in its Annual Report (Form 10-K) for the year ended December 31, 1998
and our report dated March 23, 1999 with respect to the related financial
statement schedules included therein, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
Seattle, Washington
February 11, 2000
<PAGE> 1
EXHIBIT 25.1
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------------------
SAFECO CORPORATION
(Exact name of obligor as specified in its charter)
WASHINGTON 91-0742146
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
4333 BROOKLYN AVENUE N.E.
SEATTLE, WASHINGTON 98185
(Address of principal executive offices) (Zip Code)
-------------------------
DEBT SECURITIES
(Title of the indenture securities)
- --------------------------------------------------------------------------------
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) name and address of each examining or supervising authority to which it
is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty Street,
New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
<PAGE> 3
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of Eligibility.
1. A copy of the Articles of Association of the Trustee as now in effect,
including the Organization Certificate and the Certificates of Amendment dated
February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being contained
in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form T-1
filed in connection with Registration Statement No. 333-76439, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see
Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 10th day of February, 2000.
THE CHASE MANHATTAN BANK
By /s/ John T. Needham, Jr.
-------------------------------------
/s/ John T. Needham, Jr.
-3-
<PAGE> 4
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business September 30, 1999, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
--------------
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin .......................................... $13,497
Interest-bearing balances .................................. 6,388
Securities:
Held to maturity
securities ..................................................... 798
Available for sale securities .................................. 48,655
Federal funds sold and securities purchased under
agreements to resell ....................................... 30,373
Loans and lease financing receivables:
Loans and leases, net of unearned income $132,392
Less: Allowance for loan and lease losses 2,463
Less: Allocated transfer risk reserve ......... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve ..................................... 129,929
Trading Assets ................................................. 47,413
Premises and fixed assets (including capitalized
leases) .................................................... 3,287
Other real estate owned ........................................ 26
Investments in unconsolidated subsidiaries and
associated companies ....................................... 185
Customers' liability to this bank on acceptance
outstanding ................................................ 716
Intangible assets .............................................. 2,693
Other assets ................................................... 15,430
--------
TOTAL ASSETS ................................................... $299,390
========
</TABLE>
- 4 -
<PAGE> 5
LIABILITIES
<TABLE>
<S> <C>
Deposits
In domestic offices ........................................ $100,324
Noninterest-bearing ................................ $41,601
Interest-bearing ................................... 58,723
-------
In foreign offices, Edge and Agreement
subsidiaries and IBF's............................... 88,064
Noninterest-bearing ................................ $ 6,363
Interest-bearing ................................... 81,701
-------
Federal funds purchased and securities sold under agree-
ments to repurchase ............................................ 35,773
Demand notes issued to the U.S. Treasury ....................... 892
Trading liabilities ............................................ 33,565
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less .............. 4,434
With a remaining maturity of more than one year
through three years.................................. 14
With a remaining maturity of more than three years.......... 97
Bank's liability on acceptances executed and outstanding........ 716
Subordinated notes and debentures .............................. 5,429
Other liabilities .............................................. 11,457
--------
TOTAL LIABILITIES .............................................. 280,765
--------
EQUITY CAPITAL
Perpetual preferred stock and related surplus................... 0
Common stock ................................................... 1,211
Surplus (exclude all surplus related to preferred stock)....... 11,016
Undivided profits and capital reserves ......................... 7,333
Net unrealized holding gains (losses)
on available-for-sale securities................................ (951)
Accumulated net gains (losses) on cash flow hedges.............. 0
Cumulative foreign currency translation adjustments ............ 16
--------
TOTAL EQUITY CAPITAL ........................................... 18,625
--------
TOTAL LIABILITIES AND EQUITY CAPITAL ........................... $299,390
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. &
Controller of the above-named bank, do
hereby declare that this Report of
Condition has been prepared in
conformance with the instructions issued
by the appropriate Federal regulatory
authority and is true to the best of my
knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to
the correctness of this Report of
Condition and declare that it has been
examined by us, and to the best of our
knowledge and belief has been prepared
in conformance with the instructions
issued by the appropriate Federal
regulatory authority and is true and
correct.
WALTER V. SHIPLEY )
WILLIAM B. HARRISON, JR. ) DIRECTORS
SUSAN V. BERRESFORD )
-5-
