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As filed with the Securities and Exchange Commission on September 3, 1998.
Registration No. 333-61735
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SECURITIES AND EXCHANGE COMMISSION
PRE-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
THE SHERWIN-WILLIAMS COMPANY
(Exact Name of Registrant as Specified in its Charter)
Ohio 34-0526850
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
101 Prospect Avenue, N.W.
Cleveland, Ohio 44115-1075
(216) 566-2000
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
L.E. Stellato
Vice President, General Counsel and Secretary
The Sherwin-Williams Company
101 Prospect Avenue, N.W.
Cleveland, Ohio 44115-1075
(216) 566-2000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copy to:
Steven Kaplan, Esq.
Arnold & Porter
555 Twelfth Street, N.W.
Washington, D.C. 20004
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of the Registration Statement as the Registrant
may determine.
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, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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, AS AMENDED, OR UNTIL THE 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. THE 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 September 3, 1998
PROSPECTUS
$1,500,000,000
THE SHERWIN-WILLIAMS COMPANY
SECURITIES
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The Sherwin-Williams Company (the "Company") may offer from time to
time the following types of securities (each a "Security" and collectively the
"Securities"):
(i) debt securities, in one or more series, which may be
senior debt securities or subordinated debt securities (the "Debt
Securities"), in each case consisting of notes or other unsecured
evidences of indebtedness;
(ii) shares of common stock, $1.00 par value per share (the
"Common Stock"); and
(iii) warrants to purchase Debt Securities or Common Stock.
The Securities will have an aggregate initial offering price of up to
$1,500,000,000 or an equivalent amount in U.S. dollars if any Securities are
denominated in a currency other than U.S. dollars or in currency units. The
Securities may be offered separately or together in any combination and as
separate series. The amounts, prices, form, designation, specific terms and
offering terms of each issuance of Securities will be determined at the time of
sale and will be set forth in a Prospectus Supplement.
The Common Stock of the Company is traded on the New York Stock
Exchange ("NYSE") under the symbol "SHW". On September 1, 1998, the last
reported sale price of the Common Stock was $25 3/8. The Company has not yet
determined whether any of the other Securities will be listed on the NYSE or
other securities exchange. If the Company decides to seek listing of any
Security on an exchange, the Prospectus Supplement relating thereto will
disclose such exchange or market. Where applicable, the Prospectus Supplement
will also contain information about certain material United States federal
income tax considerations relating to the Securities.
The Securities may be sold directly, through agents designated from
time to time or to or through underwriters or dealers. See "Plan of
Distribution". If any agents or underwriters are involved in the sale of any
Securities, their names and any applicable commissions or discounts will be set
forth in a Prospectus Supplement. The net proceeds to the Company from the sale
of Securities also will be set forth in a Prospectus Supplement.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED
UPON THE ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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The date of this Prospectus is , 1998
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports and other information with the Securities and
Exchange Commission (the "Commission"). Reports, proxy statements and other
information can be inspected and copied at the Public Reference Room of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20459, and the
Commission's Regional Offices at 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661 and Seven World Trade Center, 13th Floor, New York, New York
10048. Copies of such materials can be obtained from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20459 at
prescribed rates. In addition, such material may be accessed electronically at
the Commission's site on the World Wide Web located at http://www.sec.gov. Such
reports, proxy statements and other materials concerning the Company may also be
inspected at the office of the New York Stock Exchange, 20 Broad Street, New
York, New York 10005.
The Company has filed with the Commission a registration statement on
Form S-3 (including all amendments thereto, the "Registration Statement") under
the Securities Act of 1933, as amended (the "Securities Act"), with respect to
the Securities offered hereby. As permitted by the rules and regulations of the
Commission, this Prospectus does not contain all of the information set forth in
the Registration Statement and the exhibits and schedules thereto. Such
additional information is available for inspection and copying at the offices of
the Commission. Statements contained in this Prospectus, in any Prospectus
Supplement or in any document incorporated by reference herein or therein as to
the contents of any contract or other document referred to herein or therein are
not necessarily complete, and in each instance reference is made to the copy of
such contract or other document filed as an exhibit to, or incorporated by
reference in, the Registration Statement, each such statement being qualified in
all respects by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed by the Company (Commission
File No. 001-04851) with the Commission under the Exchange Act are incorporated
herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997;
(b) The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1998 and June 30, 1998;
(c) The Company's Current Report on Form 8-K filed March 30, 1998;
(d) The description of the Common Stock included in the Company's
Registration Statement on Form S-8 filed with the Commission on April 28, 1989
under Section 12 of the Securities Exchange Act of 1934; and
(e) The description of the Company's Cumulative Redeemable Serial
Preferred Stock Purchase Rights (the "Rights") associated with the Common Stock
included in the Company's Registration Statement on Form 8-A filed with the
Commission on April 24, 1997 under Section 12 of the Securities Exchange Act of
1934.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act prior to the termination of the offering of the
Securities, shall be deemed to be incorporated by reference into this Prospectus
and to be a part hereof from the date of filing such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes hereof to the extent that a statement contained herein (or in any
other subsequently filed document that is or is deemed to be incorporated by
reference herein) modifies or supersedes such previous statement. Any statement
so modified or superceded shall not be deemed to constitute a part hereof except
as so modified or superseded.
The Company will provide without charge to each person to whom a copy
of this Prospectus has been delivered, upon the written or oral request of such
person, a copy of any or all of the documents referred to above which have been
or may be incorporated by reference in this Prospectus other than exhibits to
such documents unless such exhibits are also specifically incorporated by
reference herein. Requests for such copies should be directed to The
Sherwin-Williams Company, 101 Prospect Avenue, N.W., Cleveland, Ohio 44115-1075,
Attention: Corporate Secretary; telephone number (216) 566-2000.
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THE COMPANY
The Company, which was first incorporated under the laws of the State
of Ohio eighteen years after its founding in 1866, is engaged in the
manufacture, distribution and sale of paints, coatings and related products to
professional, industrial, commercial and retail customers.
The Company's principal executive offices are located at 101 Prospect
Avenue, N.W., Cleveland, Ohio 44115-1075, and its telephone number is (216)
566-2000.
USE OF PROCEEDS
Unless otherwise set forth in the applicable Prospectus Supplement, the
net proceeds from the sale of the Securities will be used for general corporate
purposes, which may include repayment of indebtedness, acquisitions, additions
to working capital and capital expenditures. Additional information on the use
of net proceeds from the sale of any particular Security will be set forth in
the Prospectus Supplement relating to such Security.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the Company's consolidated ratios of
earnings to fixed charges for each of 1997, 1996, 1995, 1994 and 1993 and for
the six months ended June 30, 1998 and 1997 on a historical basis.
<TABLE>
<CAPTION>
Six Months Ended
June 30, Year Ended December 31,
-------- --------------------------------------------
1998 1997 1997 1996 1995 1994 1993
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings 3.1 2.9 3.2 3.9 4.2 4.1 3.7
to fixed charges *
</TABLE>
* For purposes of computing such ratio, earnings consist of income before
income taxes and the cumulative effect of accounting changes plus fixed
charges, and fixed charges consist of interest expense and gross rent
expense.
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities sets
forth certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of the Debt Securities
offered by any Prospectus Supplement and the extent, if any, to which such
general provisions may apply to the Debt Securities so offered will be described
in the Prospectus Supplement relating to such Debt Securities. Accordingly, for
a description of the terms of a particular issue of Debt Securities, reference
must be made to both the Prospectus Supplement relating thereto and to the
following description.
The Debt Securities may be issued, from time to time, in one or more
series, and will constitute either senior debt securities (the "Senior Debt
Securities") or subordinated debt securities (the "Subordinated Debt
Securities"). Senior Debt Securities may be issued from time to time under the
indenture dated as of February 1, 1996 (the "Senior Indenture"), between the
Company and The Chase Manhattan Bank (formerly known as Chemical Bank), as
trustee (the "Senior Trustee"). A copy of the form of Senior Indenture has been
filed as an exhibit to the Registration Statement (file no. 333-01093) filed
with the Commission on February 20, 1996 and is incorporated by reference
herein. Subordinated Debt Securities may be issued from time to time under an
indenture (the "Subordinated Indenture") to be entered into between the Company
and The Chase Manhattan Bank, as trustee (the "Subordinated Trustee") A copy of
the form of Subordinated Indenture has been filed as an exhibit to the
Registration Statement of which this Prospectus forms a part and is incorporated
herein by reference.
The Senior Indenture and the Subordinated Indenture are referred to
herein individually as an "Indenture" and, collectively, as the "Indentures",
and the Senior Trustee and the Subordinated Trustee are referred to herein
individually as the "Trustee" and collectively as the "Trustees". The forms of
Indentures are filed, or incorporated by reference, as exhibits to the
Registration Statement. Capitalized terms used in this section which are not
otherwise defined in the Prospectus shall have the meanings set forth in the
Indenture to which they relate. The following summaries of certain provisions of
the Debt Securities and the Indentures do not purport to be complete and are
subject to, and qualified in their entirety by express reference to, all the
provisions of the Indentures, including the definitions therein of certain
terms.
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GENERAL
Neither Indenture limits the aggregate principal amount of Debt
Securities that can be issued thereunder. The Debt Securities may be issued in
one or more series as may be authorized from time to time by the Company.
Reference is made to the applicable Prospectus Supplement for the following
terms of the Debt Securities with respect to which such Prospectus Supplement is
being delivered:
(a) The title of the Debt Securities to be offered;
(b) Any limit on the aggregate principal amount of the Debt Securities
to be offered that may be authenticated and delivered under an Indenture;
(c) The date or dates on which the principal and premium with respect
to the Debt Securities to be offered are payable;
(d) The rate or rates (which may be fixed or variable) at which the
Debt Securities to be offered shall bear interest (if any) or the method of
determining such rate or rates, the date or dates from which such interest shall
accrue, the interest payment dates on which such interest shall be payable or
the method by which such dates will be determined, the record dates for the
determination of holders thereof to whom such interest is payable, and the basis
upon which interest will be calculated if other than that of a 360-day year of
twelve 30-day months;
(e) The place or places, if any, in addition to or instead of the
Corporate Trust Office of the Trustee, where the principal, premium, and
interest with respect to Debt Securities to be offered shall be payable;
(f) The price or prices at which, the period or periods within which,
and the terms and conditions upon which Debt Securities to be offered may be
redeemed, in whole or in part, at the option of the Company or otherwise;
(g) The obligation, if any, of the Company to redeem, purchase, or
repay Debt Securities to be offered pursuant to any sinking fund or analogous
provisions or at the option of a holder thereof and the price or prices at
which, the period or periods within which, and the terms and conditions upon
which Debt Securities of the series shall be redeemed, purchased, or repaid, in
whole or in part, pursuant to such obligations;
(h) The terms, if any, upon which the Debt Securities to be offered may
be convertible into or exchanged for Common Stock, other Debt Securities, or
warrants for Common Stock or Debt Securities, and the terms and conditions upon
which such conversion or exchange shall be effected, including the initial
conversion or exchange price or rate, the conversion or exchange period, and any
other additional provisions;
(i) If other than denominations of $1,000 or any integral multiple
thereof, the denominations in which Debt Securities to be offered shall be
issuable;
(j) If the amount of principal, premium, if any, or interest with
respect to the Debt Securities to be offered may be determined with reference to
an index or pursuant to a formula, the manner in which such amounts will be
determined;
(k) If the principal amount payable at the stated maturity of Debt
Securities to be offered will not be determinable as of any one or more dates
prior to such stated maturity, the amount that will be deemed to be such
principal amount as of any such date for any purpose, including the principal
amount thereof which will be due and payable upon any maturity other than the
stated maturity or which will be deemed to be outstanding as of any such date
(or, in any such case, the manner in which such deemed principal amount is to be
determined);
(l) Any changes or additions to the provisions of the applicable
Indenture dealing with defeasance, including the addition of additional
covenants that may be subject to the Company's covenant defeasance option;
(m) If other than such coin or currency of the United States as at the
time of payment is legal tender for payment of public and private debts, the
coin or currency in which payment of the principal, premium, if any, and
interest with respect to Debt Securities to be offered shall be payable, and if
necessary, the manner of determining the equivalent thereof in United States
currency;
(n) If other than the principal amount thereof, the portion of the
principal amount of Debt Securities to be offered that shall be payable upon
declaration of acceleration of the maturity thereof or provable in bankruptcy;
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(o) Any addition to or change in the Events of Default with respect to
the Debt Securities to be offered and any change in the right of the Trustee or
the holders to declare the principal, premium, if any, and interest with respect
to such Debt Securities due and payable;
(p) If the Debt Securities to be offered shall be issued in whole or in
part in the form of a Global Security, the terms and conditions, if any, upon
which such Global Security may be exchanged in whole or in part for other
individual Debt Securities in definitive registered form, the Depositary for
such Global Security, and the form of any legend or legends to be borne by any
such Global Security in addition to or in lieu of the legend referred to in the
Indenture;
(q) Any trustee, authenticating or paying agents, transfer agents, or
registrars;
(r) The applicability of, and any addition to or change in, the
covenants and definitions then set forth in the applicable Indenture or in the
terms then set forth in such Indenture relating to permitted consolidations,
mergers, or sales of assets, including conditioning any merger, conveyance,
transfer, or lease permitted by such Indenture upon the satisfaction of an
indebtedness coverage standard by the Company and any successor to the Company;
(s) The terms, if any, of any guarantee of the payment of principal,
premium, and interest with respect to Debt Securities to be offered and any
corresponding changes to the provision of the applicable Indenture as then in
effect;
(t) The terms, if any, of the transfer, mortgage, pledge, or assignment
as security for the Debt Securities to be offered of any properties, assets,
moneys, proceeds, securities, or other collateral, including whether certain
provisions of the Trust Indenture Act are applicable and any corresponding
changes to provisions of the applicable Indenture as then in effect;
(u) With regard to Debt Securities to be offered that do not bear
interest, the dates for certain required reports to the Trustee; and
(v) Any other terms of the Debt Securities to be offered (which terms
shall not be prohibited by the provisions of the applicable Indenture).
The Prospectus Supplement will also describe any material United States
federal income tax consequences or other special considerations applicable to
the series of Debt Securities to which such Prospectus Supplement relates,
including those applicable to (i) Debt Securities with respect to which payments
of principal, premium, if any, or interest are determined with reference to an
index or formula (including changes in prices of particular securities,
currencies or commodities), (ii) Debt Securities with respect to which
principal, premium, if any, or interest is payable in a foreign or composite
currency, (iii) Debt Securities that are issued at a discount below their stated
principal amount, bearing no interest or interest at a rate that at the time of
issuance is below market rates ("Original Issue Discount Debt Securities"), and
(iv) variable rate Debt Securities that are exchangeable for fixed rate Debt
Securities.
Payments of interest on Registered Securities may be made at the option
of the Company by check mailed to the registered holders thereof or, if so
provided in the applicable Prospectus Supplement, at the option of a holder by
wire transfer to an account designated by such holder.
Unless otherwise provided in the applicable Prospectus Supplement,
Registered Securities may be transferred or exchanged at the office of the
Trustee at which its corporate trust business is principally administered in the
United States or at the office of the Trustee or the Trustee's agent in the
Borough of Manhattan, the City and State of New York, at which its corporate
agency business is conducted, subject to the limitations provided in the
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Indenture, without the payment of any service charge, other than any tax or
governmental charge payable in connection therewith.
All funds paid by the Company to a paying agent for the payment of
principal, premium, if any, or interest with respect to any Debt Securities that
remain unclaimed at the end of two years after such principal, premium, or
interest shall have become due and payable will be repaid to the Company, and
the holders of such Debt Securities will thereafter look only to the Company for
payment thereof.
SUBORDINATION OF SUBORDINATED DEBT SECURITIES
The payment of principal of, and interest on, the Subordinated Debt
Securities will, to the extent set forth in the Subordinated Indenture and as
also may be described in the applicable Prospectus Supplement, be subordinated
in right of payment to the prior payment in full of all Senior Indebtedness of
the Company. "Senior Indebtedness" of the Company (as defined in the
Subordinated Indenture) means, with certain exceptions, the principal of, and
premium, if any, and interest and other amounts due on or in connection with any
Indebtedness of the Company incurred, assumed, or Guaranteed (as defined in the
Subordinated Indenture) by the Company, whether outstanding on the date of the
Subordinated Indenture or thereafter incurred, assumed, or Guaranteed and all
renewals, extensions and refundings of any such Indebtedness of the Company. The
term "Indebtedness" as used in the previous sentence means, with respect to the
Company, (i) the principal of, and premium, if any, in respect of indebtedness
of the Company for borrowed money, (ii) the principal of, and premium, if any,
in respect of obligations of the Company evidenced by bonds, debentures, notes
or similar instruments, (iii) all Capitalized Lease Obligations (as defined in
the Subordinated Indenture) of the Company, (iv) all obligations of the Company
to pay the deferred and unpaid purchase price of property or services (except
Trade Payables, as defined in the Subordinated Indenture), (v) all obligations
of the Company in respect of letters of credit, banker's acceptances or other
similar instruments or credit transactions (including reimbursement obligations
with respect thereto), other than obligations with respect to letters of credit
securing obligations (other than obligations described in (i) through (iv)
above) entered into in the ordinary course business of the Company 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 the Company of a demand for reimbursement following on the letter of
credit, (vi) all Indebtedness of other persons secured by a Lien (as defined in
the Subordinated Indenture) on any asset of the Company, whether or not such
Indebtedness is assumed by the Company; provided however, that the amount of
such Indebtedness shall be the lesser of (A) the fair market value of such asset
at such date of determination and (B) the amount of such Indebtedness of such
other persons, (vii) all Indebtedness of other persons to the extent Guaranteed
by the Company, and (viii) to the extent not otherwise included in this
definition, obligations in respect of Hedging Obligations (as defined in the
Subordinated Indenture). Notwithstanding the foregoing, the term "Indebtedness"
excludes (i) any indebtedness of the Company or any Subsidiary (as defined in
the Indenture) to the Company or another Subsidiary, and (ii) any Guarantee by
the Company or any Subsidiary of indebtedness of the Company or another
Subsidiary.
Upon any distribution of assets of the Company upon dissolution,
winding up, liquidation, or reorganization of the Company, whether in
bankruptcy, insolvency, reorganization or receivership proceedings or upon an
assignment for the benefit of creditors or any other marshalling of the assets
and liabilities of the Company or otherwise, the holders of all Senior
Indebtedness shall first be entitled to receive payment in full in accordance
with the terms of such Senior Indebtedness of the principal thereof or premium,
if any, and the interest due thereon before the holders of Subordinated Debt
Securities are entitled to receive any payment upon the principal of or premium,
if any, or interest on Indebtedness evidenced by the Subordinated Debt
Securities. In the event and during the continuation of any default in the
payment of principal of, or premium, if any, or interest on, any Senior
Indebtedness, beyond any applicable period of grace, or in the event that any
event of default with respect to any Senior Indebtedness shall have occurred and
be continuing, or would occur as a result of the payment of principal of, or
interest on, the Subordinated Debt Securities, permitting the holders of such
Senior Indebtedness to accelerate the maturity thereof, then, unless and until
such default or event of default shall have been cured or waived or shall have
ceased to exist, no payment of principal of, or interest on, the Subordinated
Debt Securities, or in respect of any retirement, purchase, or other acquisition
of any of the Subordinated Debt Securities shall be made by the Company.
This subordination of the Subordinated Debt Securities will not prevent
the occurrence of any event of default with respect to the Subordinated Debt
Securities. The Subordinated Indenture does not provide for any limitation on
the issuance of additional Senior Indebtedness.
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GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in
the form of one or more Global Securities. A Global Security is a Debt Security
that represents, and is denominated in an amount equal to the aggregate
principal amount of, all outstanding Debt Securities of a series, or any portion
thereof, in either case having the same terms, including the same original issue
date, date or dates on which principal and interest are due, and interest rate
or method of determining interest. A Global Security will be deposited with, or
on behalf of, a Depositary, which will be identified in the Prospectus
Supplement relating to such Debt Securities. Global Securities may be issued in
only fully registered form and in either temporary or definitive form. Unless
and until it is exchanged in whole or in part for the individual Debt Securities
represented thereby, a Global Security may not be transferred except as a whole
by the Depositary to a nominee of the Depositary, or by the Depositary or any
nominee of the Depositary to a successor Depositary or any nominee of such
successor.
The specific terms of the depositary arrangement with respect to a
series of Debt Securities will be described in the Prospectus Supplement
relating to such Debt Securities. The Company anticipates that the following
provisions will generally apply to depositary arrangements.
Upon the issuance of a Global Security, the Depositary for such Global
Security will credit, on its book-entry registration and transfer system, the
respective principal amounts of the individual Debt Securities represented by
such Global Security to the accounts of persons that have accounts with the
Depositary ("participants"). Such accounts shall be designated by the dealers or
underwriters with respect to such Debt Securities or, if such Debt Securities
are offered and sold directly by the Company or through one or more agents, by
the Company or such agents. Ownership of beneficial interests in a Global
Security will be limited to participants or persons that hold beneficial
interests through participants. Ownership of beneficial interests in such Global
Security will be shown on, and the transfer of that ownership will be effected
only through, records maintained by the Depositary (with respect to interests of
participants) or records maintained by participants (with respect to interests
of persons other than participants). The laws of some states require that
certain purchasers of securities take physical delivery of such securities in
definitive form. Such limitations and laws may impair the ability to transfer
beneficial interests in a Global Security.
So long as the Depositary for a Global Security, or its nominee, is the
registered owner of such Global Security, such Depositary or nominee, as the
case may be, will be considered the sole owner or holder of the individual Debt
Securities represented by such Global Security for all purposes under the
applicable Indenture. Except as provided below, owners of beneficial interests
in a Global Security will not be entitled to have any of the individual Debt
Securities represented by such Global Security registered in their names, will
not receive or be entitled to receive physical delivery of any of such Debt
Securities in definitive form, and will not be considered the owners or holders
thereof under the applicable Indenture. Accordingly, each person owning a
beneficial interest in a Global Security must rely on the procedures of the
Depository for such Global Security and, if such person is not a participant, on
the procedures of the participant through which such person owns its interest,
to exercise any rights of a holder under the Indenture. The Company understands
that under existing industry practices, if the Company requests any action of
holders or if an owner of a beneficial interest in a Global Security desires to
give or take any action which a holder is entitled to give or take under the
applicable Indenture, the Depositary for such Global Security would authorize
the participants holding the relevant beneficial interests to give or take such
action, and such participants would authorize beneficial owners owning through
such participants to give or take such action or would otherwise act upon the
instructions of beneficial owners holding through them.
Payments of principal, premium, if any, and interest with respect to
individual Debt Securities represented by a Global Security will be made to the
Depositary or its nominee, as the case may be, as the registered owner or holder
of such Global Security. Neither the Company, the Trustee, any paying agent or
registrar for such Debt Securities, or any agent of the Company or the Trustee
will have any responsibility or liability for (i) any aspect of the records
relating to or payments made by the Depositary, its nominee, or any participants
on account of beneficial interests in the Global Security or for maintaining,
supervising, or reviewing any records relating to such beneficial interests,
(ii) the payment to the owners of beneficial interests in the Global Security of
amounts paid to the Depositary or its nominee, or (iii) any other matter
relating to the actions and practices of the Depositary, its nominee, or its
participants. Neither the Company, the Trustee, any paying agent or registrar
for such Debt Securities, or any agent of the Company or the Trustee will be
liable for any delay by the Depositary, its nominee, or any of its participants
in identifying the owners of beneficial interests in the Global Security, and
the Company and the Trustee may conclusively rely on, and will be protected in
relying on, instructions from the Depositary or its nominee for all purposes.
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The Company expects that the Depositary for a series of Debt Securities
or its nominee, upon receipt of any payment of principal, premium, if any, or
interest with respect to a definitive Global Security representing any of such
Debt Securities, will immediately credit participants' accounts with payments in
amounts proportionate to their respective beneficial interests in the principal
amount of such Global Security, as shown on the records of the Depositary or its
nominee. The Company also expects 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 and registered in "street
name". Such payments will be the responsibility of such participants.
If the Depositary for a series of Debt Securities is at any time
unwilling, unable, or ineligible to continue as depositary, the Company shall
appoint a successor depositary. If a successor depositary is not appointed by
the Company within 90 days, the Company will issue individual Debt Securities of
such series in exchange for the Global Security representing such series of Debt
Securities. In addition, the Company may at any time and its sole discretion,
subject to any limitations described in the Prospectus Supplement relating to
such Debt Securities, determine no longer to have Debt Securities of a series
represented by a Global Security and, in such event, will issue individual Debt
Securities of such series in exchange for the Global Security representing such
series of Debt Securities. Furthermore, if the Company so specifies with respect
to the Debt Securities of a series, an owner of a beneficial interest in a
Global Security representing Debt Securities of such series may, on terms
acceptable to the Company, the Trustee, and the Depositary for such Global
Security, receive individual Debt Securities of such series in exchange for such
beneficial interests, subject to any limitations described in the Prospectus
Supplement relating to such Debt Securities. In any such instance, an owner of a
beneficial interest in a Global Security will be entitled to physical delivery
of individual Debt Securities of the series represented by such Global Security
equal in principal amount to such beneficial interest and to have such Debt
Securities registered in its name.
CERTAIN COVENANTS OF THE COMPANY APPLICABLE TO SENIOR DEBT SECURITIES
The following discussion of certain covenants which restricts the
Company's ability to create certain liens and enter into certain sale/leaseback
transactions applies only to the Senior Indenture and the Senior Debt Securities
issued under such Senior Indenture.
Limitation on Liens
As required under the Senior Indenture, unless otherwise provided in
the Prospectus Supplement, the Company and its Restricted Subsidiaries will not
create any Liens on any Principal Property or shares of capital stock of any
Restricted Subsidiary unless Senior Debt Securities then outstanding are equally
and ratably secured, with certain exceptions, including but not limited to: (i)
pledges or deposits under worker's compensation laws, unemployment insurance
laws or similar legislation, or good faith deposits in connection with bids,
tenders, contracts (including government contracts, but excluding contracts for
the payment of indebtedness) or other obligations of like nature, in each case
incurred in the ordinary course of business, (ii) statutory and tax Liens for
sums not yet due or delinquent or being contested in good faith by appropriate
proceedings, (iii) certain encumbrances and easements, (iv) Liens existing at
the date of the Indenture, (v) Liens securing only Indebtedness of a Wholly
Owned Subsidiary of the Company to the Company or one or more Wholly Owned
Subsidiaries of the Company, (vi) Purchase Money Liens, (vii) Liens on property
or shares of stock of another Person at the time such other Person becomes a
Subsidiary of such Person, provided that such Liens are not created in
connection with such other Person becoming a Subsidiary of such Person, (viii)
Liens securing a Hedging Obligation, (ix) Liens created in connection with a
tax-free financing, (x) Liens resulting from the deposit of funds or evidences
of Indebtedness in trust for the purpose of defeasing Indebtedness of the
Company or any of its Subsidiaries, (xi) rights of a common owner of any
interest in property, (xii) Liens placed upon any real property owned or
acquired by the Company or any of its Subsidiaries securing Indebtedness in an
amount up to 80% of the fair market value of such real property, (xiii) Liens to
secure any refinancing, refunding, extension, renewal or replacement of any
Indebtedness secured by certain permitted Liens, and (xiv) additional Liens not
to exceed a total of 15% of Consolidated Net Tangible Assets.
Limitation on Sale/Leaseback Transactions
As required by the Senior Indenture, the Company and its Restricted
Subsidiaries shall not enter into any Sale/Leaseback Transaction with respect to
any Principal Property unless (i) the Company or such Restricted Subsidiary
would be entitled to create a Lien on such Principal Property securing
Indebtedness in an amount equal to the Attributable Indebtedness with respect to
such Sale/Leaseback Transaction without securing the Senior Debt Securities
pursuant to the provisions described above under "-- Limitation on Liens," or
(ii) the Company, within six months from the effective date of such
Sale/Leaseback Transaction, applies an amount equal to the Attributable
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Indebtedness with respect to such Sale/Leaseback Transaction to the voluntary
defeasance or retirement of Senior Debt Securities or other Indebtedness ranking
pari passu with the Senior Debt Securities; provided that the foregoing will not
prevent the Company or any Restricted Subsidiary from (x) entering into any
Sale/Leaseback Transaction involving a lease with a term of less than three
years, or (y) entering into any Sale/Leaseback Transaction between the Company
and a Restricted Subsidiary or between Restricted Subsidiaries.
CERTAIN ADDITIONAL COVENANTS OF THE COMPANY
Limitation on Consolidations and Mergers
The Company covenants under both the Senior Indenture and the
Subordinated Indenture that the Company shall not consolidate with or merge
into, or sell, convey, transfer, lease or otherwise dispose of all or
substantially all of its assets (in one transaction or a series of related
transactions) to another entity unless such entity is a corporation that assumes
all the obligations under the Debt Securities and the Indentures and certain
other conditions are met (whereupon all such obligations of the Company shall
terminate).
EVENTS OF DEFAULT AND REMEDIES
The following events are defined in the Indentures as "Events of
Default" with respect to a series of Debt Securities:
(a) Default in the payment of any installment of interest on any Debt
Securities of that series, as and when the same shall become due and payable and
continuance of such default for a period of 30 days;
(b) Default in the payment of all or any part of the principal or
premium with respect to any Debt Securities of that series as and when the same
shall become due and payable, whether at maturity, upon redemption, by
declaration, upon required repurchase, or otherwise;
(c) Default in the payment of any sinking fund payment with respect to
any Debt Securities of that series as and when the same shall become due and
payable and continuance of such default for a period of 30 days;
(d) Failure on the part of the Company to comply with the provisions of
the Indentures relating to consolidations, mergers, and sales of assets;
(e) Failure on the part of the Company duly to observe or perform any
other of the covenants or agreements on the part of the Company in the Debt
Securities of that series, in the applicable Indenture with respect to such
series, or in any supplemental Indenture with respect to such series (other than
covenants or agreements included solely by or for the benefit of a series of
Debt Securities thereunder other than that series) continuing for a period of
ninety (90) days after the date on which written notice specifying such failure
and requiring the Company to remedy the same and stating that such notice is a
"Notice of Default" hereunder shall have been given to the Company by the
Trustee or to the Company and the Trustee by the holders of at least 25% in
aggregate principal amount of the Debt Securities of that series at the time
outstanding;
(f) The Company or any of its "Significant Subsidiaries" (defined as
any subsidiary of the Company that would be a "significant subsidiary" as
defined in Rule 405 under the Securities Act as in effect on the date of the
Indenture) shall (i) voluntarily commence any proceeding or file any petition
seeking relief under the United States Bankruptcy Code or other federal or state
bankruptcy, insolvency, or similar law, (ii) consent to the institution of, or
fail to controvert within the time and in the manner prescribed by law, any such
proceeding or the filing of any such petition, (iii) apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator, or similar official
for the Company or any such Significant Subsidiary or for a substantial part of
its property, (iv) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (v) make a general assignment
for the benefit of creditors, (vi) admit in writing its inability or fail
generally to pay its debts as they become due, (vii) take corporate action for
the purpose of effecting any of the foregoing, or (viii) take any comparable
action under any foreign laws relating to insolvency of the Company or any
Significant Subsidiary;
(g) The entry of an order or decree by a Court having competent
jurisdiction for (i) relief with respect to the Company or any of its
Significant Subsidiaries or a substantial part of any of their property under
the United States Bankruptcy Code or any other federal or state bankruptcy,
insolvency, or similar law, (ii) the appointment of a receiver, trustee,
custodian, sequestrator, or similar official for the Company or any such
Significant Subsidiary or for a substantial part of any of their property
(except any decree or order appointing such official of any Significant
Subsidiary pursuant to a plan under which the assets and operations of such
Significant Subsidiary are transferred to
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or combined with another Subsidiary or Subsidiaries of the Company or to the
Company), or (iii) the winding-up or liquidation of the Company or any such
Significant Subsidiary (except any decree or order approving or ordering the
winding-up or liquidation of the affairs of a Significant Subsidiary pursuant to
a plan under which the assets and operations of such Significant Subsidiary are
transferred to or combined with another Subsidiary or Subsidiaries of the
Company or to the Company), and such order or decree shall continue unstayed and
in effect for sixty (60) consecutive days, or any similar relief is granted
under any foreign laws and the order or decree stays in effect for sixty (60)
consecutive days; and
(h) Any other Event of Default provided with respect to Debt Securities
of that series.
An Event of Default with respect to one series of Debt Securities is not
necessarily an Event of Default for another series of Debt Securities.
If an Event of Default described in clause (a), (b), (c), (d), (e), (f)
(other than with respect to the Company), (g) (other than with respect to the
Company) or (h) above occurs and is continuing with respect to any series of
Debt Securities, unless the principal and interest with respect to all the Debt
Securities of such series shall have already become due and payable, either the
Trustee or the holders of not less than 25% in aggregate principal amount of the
Debt Securities of such series (each such series voting as a separate class)
then outstanding may declare the principal amount (or, if Original Issue
Discount Debt Securities, such portion of the principal amount as may be
specified in such series) of and interest on all the Debt Securities of such
series due and payable immediately. If an Event of Default described in clause
(f) or (g) (in each case with respect to the Company) above occurs, unless the
principal and interest with respect to all the Debt Securities of all series
shall have become due and payable, the principal amount (or, if any series are
Original Issue Discount Debt Securities, such portion of the principal amount as
may be specified in such series) of and interest on all Debt Securities of all
series then outstanding shall become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any holder of Debt
Securities.
If an Event of Default occurs and is continuing, the Trustee shall be
entitled and empowered to institute any action or proceeding for the collection
of the sums so due and unpaid or to enforce the performance of any provisions of
the Debt Securities of the affected series or the applicable Indenture, to
prosecute any such action or proceeding to judgment or final decree, and to
enforce any such judgment or final decree against the Company or any other
obligor on the Debt Securities of such series. In addition, if there shall be
pending proceedings for the bankruptcy or reorganization of the Company or any
other obligor on the Debt Securities, or if a receiver, trustee, or similar
official shall have been appointed for its property, the Trustee shall be
entitled and empowered to file and prove a claim for the whole amount of
principal, premium, and interest (or, in the case of Original Issue Discount
Debt Securities, such portion of the principal amount as may be specified in the
terms of such series) owing and unpaid with respect to the Debt Securities. No
holder of any Debt Security of any series shall have any right to institute any
action or proceeding upon or under or with respect to the applicable Indenture,
for the appointment of a receiver or trustee, or for any other remedy, unless
(i) such holder previously shall have given to the Trustee written notice of an
Event of Default with respect to Debt Securities of that series and of the
continuance thereof, (ii) the holders of not less than 25% in aggregate
principal amount of the outstanding Debt Securities of that series (each such
series voting as a separate class) shall have made written request to the
Trustee to institute such action or proceeding with respect to such Event of
Default and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses, and liabilities to be incurred therein
or thereby, and (iii) the Trustee, for 60 days after its receipt of such notice,
request, and offer of indemnity shall have failed to institute such action or
proceeding and no direction inconsistent with such written request shall have
been given to the Trustee pursuant to the provisions of the Indenture.
Prior to the acceleration of the maturity of the Debt Securities of any
series, the holders of a majority in aggregate principal amount of the Debt
Securities of that series at the time outstanding may, on behalf of the holders
of all Debt Securities of that series, waive any past default or Event of
Default and its consequences for that series, except (i) a default in the
payment of the principal, premium, if any, or interest with respect to such Debt
Securities, or (ii) a default with respect to a provision of the applicable
Indenture that cannot be amended without the consent of each holder affected
thereby. In case of any such waiver, such default shall cease to exist, any
Event of Default arising therefrom shall be deemed to have been cured for all
purposes, and the Company, the Trustee, and the holders of the Debt Securities
of that series shall be restored to their former positions and rights under the
applicable Indenture.
The Trustee shall promptly after the occurrence of a default known to
it with respect to a series of Debt Securities, give to the holders of the Debt
Securities of such series notice of all uncured defaults with respect to such
series known to it, unless such defaults shall have been cured or waived before
the giving of such notice; provided,
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however, that except in the case of default in the payment of principal,
premium, if any, or interest with respect to the Debt Securities of such series
or in the making of any sinking fund payment with respect to the Debt Securities
of such series, the Trustee shall be protected in withholding such notice if it
in good faith determines that the withholding of such notice is in the interest
of the holders of such Debt Securities.
MODIFICATION OF THE INDENTURES
The Company and either the Senior Trustee or the Subordinated Trustee,
as the case may be, may enter into supplemental indentures without the consent
of the holders of Debt Securities for one or more of the following purposes:
(a) To evidence the succession of another person to the Company
pursuant to the provisions of the applicable Indenture relating to
consolidations, mergers, and sales of assets and the assumption by such
successor of the covenants, agreements, and obligations of the Company in the
applicable Indenture and in the Debt Securities;
(b) To surrender any right or power conferred upon the Company by the
applicable Indenture, to add to the covenants of the Company such further
covenants, restrictions, conditions, or provisions for the protection of the
holders of all or any series of Debt Securities as the Board of Directors of the
Company shall consider to be for the protection of the holders of such Debt
Securities and to make the occurrence, or the occurrence and continuance, of a
default in any of such additional covenants, restrictions, conditions or
provisions a default or an Event of Default under the applicable Indenture
(provided, however, that with respect to any such additional covenant,
restriction, condition or provision, such supplemental Indenture may provide for
a period of grace after default, which may be shorter or longer than that
allowed in the case of other defaults, may provide for an immediate enforcement
upon such default, may limit the remedies available to the Trustee upon such
default, or may limit the right of holders of a majority in aggregate principal
amount of any or all series of Debt Securities to waive such default);
(c) To cure any ambiguity or to correct or supplement any provision
contained in the applicable Indenture, in any supplemental Indenture, or in any
Debt Securities that may be defective or inconsistent with any other provision
contained therein;
(d) To modify or amend the applicable Indenture in such a manner as to
permit the qualification of such Indenture or any supplemental Indenture under
the Trust Indenture Act as then in effect;
(e) To convey, transfer, assign, mortgage, or pledge any property to or
with the Trustee, or to make such other provisions in regard to matters or
questions arising under the applicable Indenture as shall not adversely affect
the interests of any holders of Debt Securities of any series;
(f) To comply with the provisions of the applicable Indenture relating
to consolidations, mergers, and sales of assets;
(g) To add guarantees with respect to the Debt Securities or to secure
the Debt Securities;
(h) To make any change that does not adversely affect the rights of any
holder;
(i) To add to, change, or eliminate any of the provisions of the
applicable Indenture with respect to one or more series of Debt Securities, so
long as any such addition, change or elimination not otherwise permitted under
the applicable Indenture shall (i) neither apply to any Debt Security of any
series created prior to the execution of such supplemental Indenture and
entitled to the benefit of such provision nor modify the rights of the holders
of any such Debt Security with respect to such provision or (ii) become
effective only when there is no such Debt Security outstanding;
(j) To evidence and provide for the acceptance of appointment by a
successor or separate Trustee with respect to the Debt Securities of one or more
series and to add to or change any of the provisions of the Indenture as shall
be necessary to provide for or facilitate the administration of the applicable
Indenture by more than one Trustee; and
(k) To establish the form or terms of Debt Securities as described
under "Description of Debt Securities - General" above.
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With the consent of the holders of a majority in aggregate principal
amount of the outstanding Debt Securities of each series affected thereby, the
Company and the Trustee may from time to time and at any time enter into a
supplemental Indenture for the purpose of adding any provisions to, changing in
any manner, or eliminating any of the provisions of the applicable Indenture or
of any supplemental Indenture or of modifying in any manner the rights of the
holder of the Debt Securities of such series; provided, however, that without
the consent of the holders of each Debt Security so affected, no such
supplemental Indenture shall (i) reduce the percentage in principal amount of
Debt Securities of any series whose holders must consent to an amendment, (ii)
reduce the rate of or extend the time for payment of interest on any Debt
Security, (iii) reduce the principal of or extend the stated maturity of any
Debt Security, (iv) reduce the premium payable upon the redemption of any Debt
Security or change the time at which any Debt Security may or shall be redeemed,
(v) make any Debt Security payable in a currency other than that stated in the
Debt Security, (vi) release any security that may have been granted with respect
to the Debt Securities, or (vii) make any change in the provisions of the
applicable Indenture relating to waivers of defaults or amendments that require
unanimous consent.
Modifications Specific to the Subordinated Indenture
The Subordinated Indenture provides that the Company and the Trustee
may not modify the provisions of the Subordinated Indenture with respect to the
subordination provisions of any series of Subordinated Debt Securities or the
definition of Senior Indebtedness in a manner adverse to the holders of
Subordinated Debt Securities, without first obtaining the consent of the holders
of each Subordinated Debt Security so affected. The Subordinated Indenture also
provides that the Company and the Trustee may not amend the Subordinated
Indenture to alter the subordination of any of the outstanding Subordinated Debt
Securities without the consent of each holder of Senior Indebtedness then
outstanding that would be adversely affected thereby.
CONSOLIDATION, MERGER, AND SALE OF ASSETS
The Company may not consolidate with or merge with or into any person,
or sell, convey, transfer, lease or otherwise dispose of all or substantially
all of its assets (in one transaction or a series of related transactions),
unless the following conditions have been satisfied:
(a) Either (i) the Company shall be the continuing person in the case
of a merger, or (ii) the resulting, surviving, or transferee person, if other
than the Company (the "Successor Company"), shall be a corporation organized and
existing under the laws of the United States, any State, or the District of
Columbia and shall expressly assume all of the obligations of the Company under
the Debt Securities and the Indentures;
(b) Immediately after giving effect to such transaction (and treating
any indebtedness that becomes an obligation of the Successor Company or any
subsidiary of the Company as a result of such transaction as having been
incurred by the Successor Company or such subsidiary at the time of such
transaction), no Default or Event of Default under either Indenture would occur
or be continuing; and
(c) The Company shall have delivered to the Trustee an officers'
certificate and an opinion of counsel, each stating that such consolidation,
merger, or transfer complies with the Indentures.
SATISFACTION AND DISCHARGE OF AN INDENTURE; DEFEASANCE
An Indenture shall generally cease to be of any further effect with
respect to a series of Debt Securities if (i) the Company has delivered to the
Trustee for cancellation all Debt Securities of such series (with certain
limited exceptions), or (ii) all Debt Securities of such series not theretofore
delivered to the Trustee for cancellation shall have become due and payable, or
are by their terms to become due and payable within one year or are to be called
for redemption within one year, and the Company shall have deposited with the
Trustee as trust funds the entire amount sufficient (in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee) without consideration of
any reinvestment and after payment of all taxes or other charges and assessments
in respect thereof payable by the Trustee to pay at maturity or upon redemption
all such Debt Securities, no default with respect to the Debt Securities has
occurred and is continuing on the date of such deposit, such deposit does not
result in a breach or violation of, or constitute a default under, the Indenture
or any other agreement or instrument to which the Company is a party and the
Company delivered an officers' certificate and an opinion of counsel each
stating that such conditions have been complied with (and if, in either case,
the Company shall also pay or cause to be paid all other sums payable under the
applicable Indenture by the Company).
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In addition, the Company shall have a "legal defeasance option"
(pursuant to which it may terminate, with respect to the Debt Securities of a
particular series, all of its obligations under such Debt Securities and the
Indenture with respect to such Debt Securities) and a "covenant defeasance
option" (pursuant to which it may terminate, with respect to the Debt Securities
of a particular series, its obligations with respect to such Debt Securities
under certain specified covenants contained in the applicable Indenture). If the
Company exercises its legal defeasance option with respect to a series of Debt
Securities, payments of such Debt Securities may not be accelerated because of
an Event of Default. If the Company exercises its covenant defeasance option
with respect to a series of Debt Securities, payment of such Debt Securities may
not be accelerated because of an Event of Default related to the specified
covenants.
The Company may exercise its legal defeasance option or its covenant
defeasance option with respect to the Debt Securities of a series only if (i)
the Company irrevocably deposits in trust with the Trustee cash or U.S.
Government Obligations (as defined in the Indentures) for the payment of
principal, premium, if any, and interest with respect to such Debt Securities to
maturity or redemption, as the case may be, (ii) the Company delivers to the
Trustee a certificate from a nationally recognized firm of independent public
accountants expressing their opinion that the payments of principal and interest
when due and without reinvestment on the deposited U.S. Government Obligations
plus any deposited money without investment will provide cash at such times and
in such amounts as will be sufficient to pay the principal, premium, if any, and
interest when due with respect to all the Debt Securities of such series to
maturity or redemption, as the case may be, (iii) 91 days pass after the deposit
is made and during the 91 day period no default described in clauses (f) or (g)
under "Description of Debt Securities - Events of Default and Remedies" above
with respect to the Company occurs that is continuing at the end of such period,
(iv) the deposit does not constitute a default under any other agreement binding
on the Company, (v) the Company delivers to the Trustee an opinion of counsel to
the effect that the trust resulting from the deposit does not constitute, or is
qualified as, a regulated investment company under the Investment Company Act of
1940, (vi) the Company shall have delivered to the Trustee an opinion of counsel
addressing certain federal income tax matters relating to the defeasance, and
(vii) the Company delivers to the Trustee an officers' certificate and an
opinion of counsel, each stating that all conditions precedent to the defeasance
and discharge of the Debt Securities of such series as contemplated by the
applicable Indenture have been complied with.
The Trustee shall hold in trust cash or U.S. Government Obligations
deposited with it as described above and shall apply the deposited cash and the
proceeds from deposited U.S. Government Obligations to the payment of principal,
premium, if any, and interest with respect to the Debt Securities of the
defeased series.
THE TRUSTEE
The Company may appoint a separate Trustee for any series of Debt
Securities. As used herein in the description of a series of Debt Securities,
the term "Trustee" refers to the Trustee appointed with respect to such series
of Debt Securities. In addition, the Company has the right to replace the
Trustee under certain circumstances, including (subject to certain conditions)
if the Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to another corporation
or banking association.
The Company may maintain banking and other commercial relationships
with the Trustee and its affiliates in the ordinary course of business, and the
Trustee may own Debt Securities.
DESCRIPTION OF COMMON STOCK
The Company may issue, from time to time, shares of its common stock,
the general terms and provisions of which are summarized below. This summary
does not purport to be complete and is subject to, and is qualified in its
entirety by express reference to, the provisions of the Company's Amended
Articles of Incorporation, the Company's Regulations and the applicable
Prospectus Supplement.
GENERAL
Under the Company's Amended Articles of Incorporation, the Company has
the authority to issue 300,000,000 shares of common stock, par value $1.00 per
share ("Common Stock"). As of July 31, 1998, the Company had 172,895,006 shares
of Common Stock outstanding. Each share of Common Stock shall be equal to every
other share of Common Stock. The outstanding shares of Common Stock are, and the
shares offered hereby will be, validly issued, fully paid and nonassessable and
the holders thereof are not and will not be subject to any liability as
shareholders.
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The Company's Amended Articles of Incorporation authorize the Company
to issue 30,000,000 shares of Serial Preferred Stock, without par value ("Serial
Preferred Stock") of which 3,000,000 shares, without par value, have been
designated as Cumulative Redeemable Serial Preferred Stock ("Cumulative
Redeemable Serial Preferred Stock"). As of July 31, 1998 the Company had no
shares of Serial Preferred Stock outstanding. The Common Stock is, however,
subject to the rights of any outstanding shares of any series of the Serial
Preferred Stock which the Company may issue from time to time.
DIVIDENDS
Subject to the rights of any series of the Serial Preferred Stock, the
holders of shares of Common Stock will be entitled to receive dividends on such
Common Stock out of assets legally available for distribution, when, as and if
authorized and declared by the Company's Board of Directors. The payment of
dividends on the Common Stock will be a business decision to be made by the
Company's Board of Directors from time to time based upon the results of
operations and financial condition of the Company and such other factors as the
Company's Board of Directors considers relevant. So long as any Serial Preferred
Stock is outstanding, no dividends, except a dividend payable in Common Stock or
other shares ranking junior to the Serial Preferred Stock, if any, shall be paid
or declared or any distribution be made except as aforesaid on the Common Stock
or any other shares ranking junior to the Serial Preferred Stock, nor shall any
Common Stock or any other shares ranking junior to the Serial Preferred Stock be
purchased, retired or otherwise acquired by the Company (except out of the
proceeds of the sale of Common Stock or other shares ranking junior to the
Serial Preferred Stock received by the Company subsequent to August 31, 1966)
unless (i) all accrued and unpaid dividends on Serial Preferred Stock, including
the full dividends for the current quarterly dividend period, shall have been
declared and paid or a sum sufficient for payment thereof set apart, and (ii)
there shall be no arrearages with respect to the redemption of Serial Preferred
Stock of any series from any sinking fund provided for shares of such series in
accordance with the provisions of the Amended Articles of Incorporation. Payment
of dividends on the Common Stock may be restricted by loan agreements,
indentures, and other transactions entered into by the Company from time to
time. The applicable Prospectus Supplement will describe any material
contractual restrictions on dividend payments.
VOTING RIGHTS
Holders of shares of Common Stock are entitled to one vote per share on
all matters presented to the shareholders. Except as otherwise provided in the
Amended Articles of Incorporation or as required by law, the holders of the
Serial Preferred Stock and the holders of the Common Stock shall vote together
as one class on all matters. The Company's Amended Articles of Incorporation
prevent any shareholder from cumulating his voting power.
Except as outlined below or otherwise expressly required by statute,
the vote, consent, waiver or release of the holders of shares of Common Stock
entitling them to exercise a majority of the voting power of the Company, or
class if a class vote is required, shall be sufficient for any purpose requiring
the vote, consent, waiver or release of the holders of such shares. However, the
affirmative vote (i) of the holders of shares entitling them to exercise
two-thirds of the voting power of the Company, and (ii) of the holders of
two-thirds of the shares of Common Stock at the time outstanding, given in
person or by proxy at a meeting called for the purpose at which the holders of
Common Stock shall vote separately as a class, shall be necessary:
(a) To approve the (i) the sale, exchange, lease, transfer or other
disposition by the Company of all, or substantially all, of its assets or
business to the related corporation or an affiliate of a related corporation,
(ii) the consolidation of the Company with or its merger into a related
corporation or an affiliate of a related corporation, (iii) the merger into the
Company of a related corporation or an affiliate of a related corporation, or
(iv) a combination or majority share acquisition in which the Company is the
acquiring corporation and its voting shares are issued or transferred to a
related corporation or an affiliate of a related corporation or to shareholders
of a related corporation or an affiliate of a related corporation;
(b) To approve any agreement, contract or other arrangement with a
related corporation providing for any of the transactions described in
subparagraph (a) above; or
(c) To effect any amendment of the Amended Articles of Incorporation of
the Company which changes the voting provisions described above.
For the purpose of the above voting requirements: (i) a "related
corporation" in respect of a given transaction shall be any corporation which,
together with its affiliates and associated persons, owns of record or
beneficially, directly or indirectly, more than five percent (5%) of the shares
of any outstanding class of stock of the
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<PAGE> 16
Company entitled to vote upon such transaction, as of the record date used to
determine the shareholders of the Company entitled to vote upon such
transaction, (ii) an "affiliate" of a related corporation shall be any
individual, joint venture, trust, partnership or corporation which, directly or
indirectly through one or more intermediaries, controls, or its controlled by,
or is under common control with, the related corporation, (iii) an "associated
person" of a related corporation shall be any officer or director or any
beneficial owner, directly or indirectly, of ten percent (10%) or more of any
class of equity security, of such related corporation or any of its affiliates,
and (iv) the terms "combination", "majority share acquisition" and "acquiring
corporation" shall have the same meaning as that contained in Section 1701.01 of
the Ohio General Corporation Law or any similar provision hereafter enacted.
RIGHT TO ACQUIRE SHARES
The Company may from time to time, pursuant to authorization by the
Board of Directors and without action by the shareholders, purchase or otherwise
acquire shares of the Company of any class or classes in such manner, upon such
terms and in such amounts as the Board of Directors shall determine. The
Company's right to acquire shares of the Company is subject, however, to such
limitation or restriction, if any, as is contained in the express terms of any
class of shares of the Company outstanding at the time of the purchase or
acquisition in question.
LIQUIDATION RIGHTS
In the event of a liquidation, dissolution or winding up of the
Company, holders of shares of Common Stock will be entitled to share ratably in
all assets remaining after payments to all creditors and payments required to be
made in respect of any outstanding Serial Preferred Stock (including accrued and
unpaid dividends thereon, if any).
ABSENCE OF OTHER RIGHTS
Holders of Common Stock have no preferences, preemptive, conversion or
exchange rights.
TRANSFER AGENT; LISTING
The Bank of New York is the transfer agent and registrar for the
Company's Common Stock. The shares of Common Stock are listed in the New York
Stock Exchange under the symbol "SHW".
RIGHTS PLAN
On April 23, 1997, the Board of Directors of the Company adopted a
shareholder's rights plan ("Rights Plan"). In connection therewith, the Board
declared a dividend distribution consisting of one right (a "Right") to purchase
one one-hundredth (1/100) of a share of Cumulative Redeemable Serial Preferred
Stock of the Company, for each share of Common Stock of the Company outstanding
as of May 6, 1997 (the "Record Date"). When exercisable, each Right entitles the
registered holder to purchase one one-hundredth (1/100) of a share of the
Cumulative Redeemable Serial Preferred Stock for one hundred ten dollars
($110.00), subject to adjustment (the "Purchase Price").
The Rights will become exercisable after the "Distribution Date" which
shall be the earlier of (i) the first date of public announcement by the Company
that a person or group of affiliated persons ("Acquiring Person") has become the
beneficial owner of ten percent (10%) or more (fifteen percent (15%) or more in
the case of any person or group of affiliated persons who has reported or may
report such ownership on Schedule 13G under the Exchange Act) of the outstanding
Common Stock, or (ii) ten business days, or such later date as specified by the
Board of Directors, after the commencement of a tender offer or exchange offer
by a person or group of affiliated persons that would result in such person or a
group of affiliated persons beneficially owning ten percent (10%) or more of the
outstanding Common Stock.
Until the Rights become exercisable, the Rights will (i) be evidenced
by the certificates representing shares of Common Stock, (ii) trade with the
Common Stock, and any transfer of shares of Common Stock will also constitute a
transfer of the associated Rights, and (iii) be surrendered for transfer with
any shares of Common Stock, with which such Rights are associated, surrendered
for transfer. Prior to the Distribution Date (or, if earlier, the expiration,
redemption or exchange of the Rights as described below), share certificates
issued after the Record Date upon the transfer or new issuance of Common Stock
shall reference the Rights by appropriate notation. When the Rights become
exercisable, they will detach and trade separately from the shares of Common
Stock. As soon as practicable thereafter, separate certificates representing the
Rights will be mailed to registered holders.
15
<PAGE> 17
The Rights will "flip-in" and entitle the holder to purchase at the
Purchase Price that number of shares of Common Stock having a market value of
two times such Purchase Price (or, under certain circumstances, an amount of
cash equal to two times such Purchase Price) upon the occurrence of any or all
of the following events: (i) a person or group of affiliated persons becomes an
Acquiring Person; (ii) an Acquiring Person engages in certain self-dealing
transactions with the Company; or (iii) the Company consummates a capital
restructuring that has the effect of increasing by more than one percent (1%)
the proportionate share of the equity of the Company or a subsidiary thereof
owned by an Acquiring Person. Upon the occurrence of any of the events listed in
clauses (i) through (iii) (or the Distribution Date, if earlier), Rights held by
an Acquiring Person (from and after the date upon which the Acquiring Person
became such) shall become null and void and nontransferable.
If (i) the Company is acquired in a merger or other business
combination by an Acquiring Person and the Company is not the surviving
corporation, (ii) an Acquiring Person merges with the Company and the Company is
the surviving corporation, but its shares of Common Stock are changed or
exchanged, or (iii) fifty percent (50%) or more of its assets or earning power
are sold to an Acquiring Person, then each of the Rights will "flip-over" and
will entitle the holder to purchase that number of shares of common or other
capital stock of the acquiring entity which at the time of such transaction
would have a market value of two times the Purchase Price (or, under certain
circumstances, an amount of cash equal to two times such Purchase Price). Upon
the occurrence of any such event (or the Distribution Date, if earlier), Rights
held by the Acquiring Person (from and after the date upon which the Acquiring
Person became such) engaging in the transactions set forth in the preceding
sentence shall become null and void and nontransferable.
At any time after a person or group of affiliated persons becomes an
Acquiring Person and until any person or group of affiliated persons
beneficially owns fifty percent (50%) or more of the then-outstanding Common
Stock, the Board of Directors may exchange all or part of the then-outstanding
Rights for shares of Common Stock at an exchange ratio of one share of Common
Stock per one Right. In such event, the right to exercise the Rights terminates
and the only right thereafter of a holder of such Rights shall be to receive
that number of shares of Common Stock equal to the number of such Rights held by
such holder multiplied by the exchange ratio.
The Purchase Price and the number of shares of Cumulative Redeemable
Serial Preferred Stock or Common Stock (or common shares of an acquiror) to be
purchased or received upon exercise or exchange of the Rights are subject to
adjustment from time to time.
The Board of Directors may redeem the Rights in whole, but not in part,
at a price of $.005 per Right (the "Redemption Price") at any time prior to the
earlier of (i) the first date of public announcement by the Company that an
Acquiring Person has become an Acquiring Person or (ii) April 22, 2007 (the
"Final Expiration Date").
The terms of the Rights are set forth in a Rights Agreement, dated as
of April 23, 1997 (the "Rights Agreement"), by and between the Company and The
Bank of New York, as successor Rights Agent to KeyBank National Association (the
"Rights Agent"). Prior to the date the Rights cease to be redeemable, the
provisions of the Rights Agreement may be supplemented or amended by the Board
of Directors and the Rights Agent, without the approval of any holders of the
Rights or Common Stock, in any manner, except for a supplement or amendment
which decreases the stated Redemption Price to an amount less than $.005 per
Right. From and after the date the Rights cease to be redeemable, the Rights
Agreement may be supplemented or amended without the approval of any holders of
the Rights or Common Stock to (i) cure any ambiguity, (ii) correct or supplement
defective or inconsistent provisions, (iii) shorten or lengthen any time period
under the Rights Agreement, or (iv) supplement or amend any other provision as
the Board of Directors may deem necessary or desirable, provided that such
supplement or amendment shall not decrease the stated Redemption Price to an
amount less than $.005 per Right or otherwise adversely affect the interests of
the Rights holders.
The foregoing description of the Rights Plan does not purport to be
complete and is qualified in its entirety to the Rights Agreement, which is
incorporated herein by reference and was filed with the Commission as an Exhibit
to a Registration Statement on Form 8-A, dated April 24, 1997.
DESCRIPTION OF WARRANTS
The Company may issue warrants for the purchase of Debt Securities
("Debt Warrants") or Common Stock ("Common Stock Warrants" and, together with
the Debt Warrants, the "Warrants"). Warrants may be issued independently or
together with any other Securities and may be attached to or separate from such
other Securities.
16
<PAGE> 18
The Warrants will be issued under Warrant Agreements (as defined below)
to be entered into between the Company and a bank or trust company, as warrant
agent (the "Warrant Agent"), all to be set forth in the applicable Prospectus
Supplement relating to any or all Warrants in respect of which this Prospectus
is being delivered. Copies of the form of agreement for each Warrant (each a
"Debt Securities Warrant Agreement" or a "Common Stock Warrant Agreement", as
the case may be, or collectively, the "Warrant Agreements"), including the forms
of certificates representing the Warrants (the "Debt Warrant Certificates" or
the "Common Stock Warrant Certificates", as the case may be, or collectively,
the "Warrant Certificates"), and reflecting the provisions to be included in
such agreements that will be entered into with respect to the particular
offerings of each type of warrant, are or will be filed as exhibits to the
Registration Statement of which this Prospectus forms a part.
The following description sets forth certain general terms and
provisions of the Warrants to which any Prospectus Supplement may relate. The
particular terms of the Warrants to which any Prospectus Supplement may relate
and to the extent, if any, to which such general provisions may apply to the
Warrant so offered will be described in the applicable Prospectus Supplement.
The following summary of certain provisions of the Warrants, Warrant Agreements
and Warrants Certificates does not purport to be complete and is subject to, and
is qualified in its entirety by express reference to, all of the provisions of
the Warrant Agreements and Warrant Certificates, including the definitions
therein of certain terms.
DEBT WARRANTS
The applicable Prospectus Supplement will describe the terms of Debt
Warrants offered thereby, the Warrant Agreement relating to such Debt Warrants
and Debt Warrant Certificates representing such Debt Warrants, including the
following:
(a) the title for such Debt Warrants;
(b) the aggregate number of such Debt Warrants;
(c) the price or prices at which such Debt Warrants will be issued;
(d) the designation, aggregate principal amount and terms of the Debt
Securities purchasable upon exercise of such Debt Warrants, and the procedures
and conditions relating to the exercise of such Debt Warrants;
(e) the designation and terms of any related Debt Securities with which
such Debt Warrants are issued, and the number of such Debt Warrants issued with
each such security;
(f) the date, if any, on and after which such Debt Warrants and the
related Debt Securities will be separately transferable;
(g) the principal amount of Debt Securities purchasable upon exercise
of each Debt Warrant, and the price at which such principal amount of Debt
Securities may be purchased upon such exercise;
(h) the date on which such right shall expire;
(i) the maximum or minimum number of such Debt Warrants which may be
exercised at any time;
(j) a discussion of the material United States federal income tax
considerations applicable to the exercise of such Debt Warrants; and
(k) any other terms of such Debt Warrants and terms, procedures and
limitations relating to the exercise of such Debt Warrants.
COMMON STOCK WARRANTS
The applicable Prospectus Supplement will describe the terms of the
Common Stock Warrants offered thereby, the Warrant Agreement relating to such
Common Stock Warrants and the Common Stock Warrant Certificates representing
such Common Stock Warrants, including the following:
(a) the title of such Common Stock Warrants;
(b) the securities for which such Common Stock Warrants are
exercisable;
17
<PAGE> 19
(c) the price or prices at which such Common Stock Warrants will be
issued;
(d) the number of shares of Common Stock purchasable upon exercise of
each Common Stock Warrant and the price at which such shares may be purchased
upon such exercise;
(e) the number of such Common Stock Warrants issued with each share of
Common Stock;
(f) any provisions for adjustment of the number or amount of shares of
Common Stock receivable upon exercise of such Common Stock Warrants or the
exercise price of such Common Stock Warrants;
(g) if applicable, the date on and after which such Common Stock
Warrants and the related shares of Common Stock will be separately transferable;
(h) if applicable, a discussion of the material United States federal
income tax considerations applicable to the exercise of such Common Stock
Warrants;
(i) any other terms of such Common Stock Warrants, including terms,
procedures and limitations relating to the exchange and exercise of such Common
Stock Warrants;
(j) the date on which the right to exercise such Common Stock Warrants
shall commence, and the date on which such right shall expire; and
(k) the maximum or minimum number of such Common Stock Warrants which
may be exercised at any time.
EXERCISE OF WARRANTS
Each Warrant will entitle the holder to purchase for cash such
principal amount of Debt Securities or such number of shares of Common Stock, as
the case may be, at such exercise price as shall in each case be set forth in,
or to be determinable as set forth in, the applicable Prospectus Supplement
relating to the Warrants offered thereby. Unless otherwise specified in the
applicable Prospectus Supplement, Warrants may be exercised at the corporate
trust office of the Warrant Agent or any other office indicated in the
applicable Prospectus Supplement at any time up to the close of business New
York City time on the expiration date set forth in the applicable Prospectus
Supplement. After the close of business New York City time on the expiration
date, unexercised Warrants will become void. Upon receipt of payment and the
Warrant Certificate properly completed and duly executed, the Company will, as
soon as practicable, issue the Debt Securities or Common Stock, as the case may
be, purchasable upon such exercise. If less than all of the Warrants represented
by such Warrant Certificate are exercised, a new Warrant Certificate will be
issued for the remaining amount of Warrants.
NO RIGHTS OF SECURITY HOLDER PRIOR TO EXERCISE
Prior to the exercise of their Warrants, holders of Warrants will not
have any of the rights of holders of the Debt Securities or Common Stock, as the
case may be, purchasable upon such exercise and will not be entitled to (i) in
the case of Debt Warrants, payments of principal, premium, if any, or interest
on the Debt Securities purchasable upon such exercise or (ii) in the case of
Common Stock Warrants, the right to vote or to receive dividend payments on the
Common Stock purchasable upon such exercise.
EXCHANGE OF WARRANT CERTIFICATES
Warrant Certificates will be exchangeable for new Warrant Certificates
of different denominations at the corporate trust office of the Warrant Agent or
any other office indicated in the applicable Prospectus Supplement.
PLAN OF DISTRIBUTION
The Company may sell Securities offered hereby to one or more
underwriters for public offering and sale by them or may offer and sell
Securities to investors directly or through agents or dealers. Any such
underwriter, agent or dealer involved in the offer and sale of the Securities
will be named in the Prospectus Supplement. Securities offered pursuant to a
particular Prospectus Supplement are referred to herein as "Offered Securities".
The Company may also sell Offered Securities to an agent as principal.
18
<PAGE> 20
Underwriters may offer and sell the Offered Securities at a fixed price
or prices, which may be changed, or from time to time at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices or at negotiated prices. The Company may also, from time to time,
authorize underwriters acting as its agents to offer and sell the Offered
Securities upon the terms and conditions set forth in any Prospectus Supplement.
In connection with the sale of Offered Securities, underwriters or agents acting
on the Company's behalf may be deemed to have received compensation from the
Company or from purchasers of Offered Securities for whom they may act as agent
in the form of underwriting discounts or commissions. Underwriters may sell
Offered Securities to or through dealers, and such dealers may receive
compensation in the form of discounts, concessions or commissions from the
underwriters and/or commissions (which may be changed from time to time) from
the purchasers for whom they may act as agent.
If a dealer is used in the sale of the Offered Security in respect of
which this Prospectus is delivered, the Company will sell such Offered Security
to such dealer, as principal. The dealer may then resell such Offered Security
to the public at varying prices to be determined by such dealer at the time of
resale.
Any underwriting compensation paid by the Company to underwriters or
agents in connection with the offering of Offered Securities, and any discounts,
concessions or commissions allowed by underwriters to participating dealers,
will be set forth in an applicable Prospectus Supplement. Underwriters, dealers
and agents participating in the distribution of the Offered Securities may be
deemed to be "underwriters" under the Securities Act, and any discounts and
commission received by them and any profit realized by them on resale of the
Offered Securities may be deemed to be underwriting discounts and commissions
under the Securities Act. Underwriters, dealers and agents may be entitled under
agreements with the Company to indemnification against and contribution toward
certain civil liabilities, including liabilities under the Securities Act, and
to reimbursement by the Company for certain expenses.
If so indicated in an applicable Prospectus Supplement, the Company
will authorize dealers acting as its agents to solicit offers by certain
institutions to purchase Offered Securities from the Company at the public
offering price set forth in such Prospectus Supplement pursuant to Delayed
Delivery Contracts ("Contracts") providing for payment and delivery on the date
or dates stated in such Prospectus Supplement. Each Contract will be for an
amount not less than, and the aggregate principal amount or offering price of
Offered Securities sold pursuant to Contracts shall not be less nor more than,
the respective amounts stated in such Prospectus Supplement. Institutions with
whom Contracts, when authorized, may be made include commercial and savings
banks, insurance companies, pension funds, investment companies, educational and
charitable institutions and other institutions, but will in all cases be subject
to the approval of the Company.
Any underwriter may engage in stabilizing and syndicate covering
transactions in accordance with Rule 104 under the Exchange Act. Rule 104
permits stabilizing bids to purchase the underlying security so long as the
stabilizing bids do not exceed a specified maximum. The underwriters may
over-allot shares of the Common Stock in connection with an offering of Common
Stock, thereby creating a short position in the underwriters' account. Syndicate
covering transactions involve purchases of Debt Securities in the open market
after distribution has been completed in order to cover syndicate short
positions. Stabilizing and syndicate covering transactions may cause the price
of Debt Securities to be higher than it would otherwise be in the absence of
such transactions. These transactions, if commenced, may be discontinued at any
time.
The anticipated date of delivery of Offered Securities will be set
forth in the applicable Prospectus Supplement relating to each offer.
The Securities may or may not be listed on a national securities
exchange or a foreign securities exchange. No assurances can be given that there
will be a market for any of the Securities.
LEGAL MATTERS
Certain legal matters in connection with the Securities will be passed
upon for the Company by Louis E. Stellato, Vice President, General Counsel and
Secretary of the Company. At June 30, 1998, Mr. Stellato beneficially owned
approximately 37,500 shares of Common Stock of the Company and held options to
purchase an additional 120,600 shares of Common Stock of which 84,266 shares
were exercisable at such date.
EXPERTS
The consolidated financial statements and schedule of the Company
appearing in the Company's Annual Report on Form 10-K for the year ended
December 31, 1997 have been audited by Ernst & Young LLP, independent
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<PAGE> 21
auditors, as set forth in their report thereon included therein and incorporated
herein by reference. Such consolidated financial statements and schedule are
incorporated by reference herein in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
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<PAGE> 22
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS OR
ANY PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE ISSUER
OR ANY UNDERWRITER OR AGENT. THIS PROSPECTUS AND ANY PROSPECTUS SUPPLEMENT DO
NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OF THE
SECURITIES OFFERED HEREBY IN ANY JURISDICTION OR TO ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE SUCH OFFER IN SUCH JURISDICTION. NEITHER THE DELIVERY OF THIS
PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER AND
THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE
INFORMATION HEREIN OR THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THEIR
RESPECTIVE DATES.
- --------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
----
PROSPECTUS
Available Information.................................... 2
Incorporation of Certain Documents
by Reference........................................... 2
The Company.............................................. 3
Use of Proceeds.......................................... 3
Ratio of Earnings to Fixed Charges....................... 3
Description of Debt Securities........................... 3
Description of Common Stock.............................. 13
Description of Warrants.................................. 16
Plan of Distribution..................................... 18
Legal Matters............................................ 19
Experts.................................................. 19
U.S. $1,500,000,000
The Sherwin-Williams
Company
Securities
[SW LOGO]
Prospectus
, 1998
<PAGE> 23
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following statement sets forth the estimated amounts of expenses,
other than underwriting discounts, to be borne by the Company in connection with
distribution of the Securities.
<TABLE>
<CAPTION>
AMOUNT
------
<S> <C>
Securities and Exchange Commission registration fee............................ $ 442,500
Trustees' fees................................................................. 25,000
Printing and engraving expenses................................................ 50,000
Accounting fees and expenses................................................... 20,000
Legal fees and expenses........................................................ 100,000
Blue Sky fees and expense...................................................... 25,000
Rating agency fees............................................................. 400,000
Miscellaneous.................................................................. 17,500
-------
Total expense.................................................................. $1,080,000
==========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article IV of the Company's Regulations, as Amended April 27, 1988
("Regulations"), filed as Exhibit 4(b) to Post-Effective Amendment No. 1 to Form
S-8 Registration Statement (Number 2-91401), dated April 29, 1988, is
incorporated herein by reference.
Reference is made to Section 1701.13(E) of the Ohio Revised Code
relating to the indemnification of directors and officers of an Ohio corporation
and to Sections 1 and 2 of Article IV of the Regulations.
The Ohio Revised Code permits and Section 1 of Article IV of the
Regulations provides that the Company shall indemnify its directors, officers
and employees against amounts which may be incurred in connection with certain
actions, suits or proceedings under the circumstances as set out in Sections
1(a) and 1(b) of Article IV of the Regulations. However, the Ohio Revised Code
and Section 1 of Article IV of the Regulations limit indemnification in respect
of certain claims, issue or matters as to which such party is adjudged to be
liable for negligence or misconduct in performance of his or her duty to the
Company and also in actions in which the only liability asserted against a
director is for certain statutory violations. The Ohio Revised Code and Section
1 of Article IV of the Regulations also provide that the general indemnification
provisions as found in Section 1(a) and 1(b) of Article IV of the Regulations do
not limit the remaining provisions of Article IV of the Regulations.
In addition, with certain limited exceptions, expenses incurred by a
director in defending an action must be paid by the Company as they are incurred
in advance of the final disposition if the director agrees (i) to repay such
advances if it proved by clear and convincing evidence that the director's
action or failure to act involved an act or omission undertaken with deliberate
intent to cause injury to the Company or undertaken with reckless disregard for
the Company's best interests, and (ii) to reasonably cooperate with the Company
concerning the action. Also, the Company may pay certain expenses incurred by an
officer or employee in defending an action as they are incurred in advance of
the final disposition of an action if the officer or employee receiving the
advance undertakes to repay the advance if it is ultimately determined that the
officer or employee receiving the advance is not entitled to indemnification.
The Company may from time to time maintain insurance on behalf of any
person who is or was a director, officer or employee against any loss arising
from any claim asserted against such director, officer or employee in any such
capacity, subject to certain exclusions. The Company has entered into
indemnification agreements with its directors and certain of its officers
providing protection as permitted by law.
II-1
<PAGE> 24
ITEM 16. EXHIBITS.
EXHIBIT DESCRIPTION
1.1** Form of Underwriting Agreement with respect to Debt
Securities.
1.2* Form of Underwriting Agreement with respect to Common Stock.
1.3* Form of Underwriting Agreement with respect to Warrants.
3.1** Amended Articles of Incorporation of the Company, as amended
April 25, 1997, incorporated herein by reference to Exhibit
3(i) of the Quarterly Report on Form 10-Q for the period ended
March 31, 1997.
3.2** Regulations of the Company, dated April 27, 1988, incorporated
herein by reference to Exhibit 4(b) of the Registration
Statement on Form S-8 (File No. 2-91401) filed with the
Commission on April 29, 1988.
4.1** Indenture between the Company and Chemical Bank, as Trustee,
dated as of February 1, 1996, incorporated herein by reference
to Exhibit 4(a) of the Registration Statement on Form S-3
(File No. 333-01093) filed with the Commission on February 20,
1996.
4.2 Form of Subordinated Debt Securities Indenture.
4.3* Form of Senior Debt Securities.
4.4* Form of Subordinated Debt Securities.
4.5** Specimen Common Stock Certificate.
4.6** Rights Agreement, including the form of Rights Certificate,
incorporated herein by reference to Exhibit 1 of the
Registration Statement on Form 8-A filed with the Commission
on April 24, 1997.
4.7** Form of Common Stock Warrant Agreement, including form of
Warrant Certificate.
4.8** Form of Debt Securities Warrant Agreement, including form of
Warrant Certificate.
5** Opinion of Louis E. Stellato regarding validity of the
Securities, including consent.
12** Computation of Consolidated Ratio of Earnings to Fixed
Charges.
23.1** Consent of Ernst & Young LLP, independent auditors.
23.2** Consent of Counsel, included in Exhibit 5.
24.1** Powers of Attorney.
24.2** Certified Resolution of Registrant's Board of Directors
authorizing execution by Power of Attorney.
25.1** Statement of Eligibility on Form T-1 of The Chase Manhattan
Bank regarding the Indenture between the Company and Chemical
Bank, as Trustee, dated as of February 1, 1996, incorporated
herein by reference to Exhibit 25 of the Registration
Statement on From S-3 (File No. 333-01093) filed with the
Commission on February 20, 1996.
25.2 Statement of Eligibility on Form T-1 of The Chase Manhattan
Bank regarding the form of Subordinated Debt Securities
Indenture filed as Exhibit 4.2.
* To be filed as an Exhibit to a document to be incorporated by reference for
the specific offering of Securities, if any, to which it relates.
** Previously filed.
II-2
<PAGE> 25
ITEM 17. UNDERTAKINGS.
A. UNDERTAKING PURSUANT TO RULE 415.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement; 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 (i) and (ii) above do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
B. UNDERTAKING REGARDING FILINGS INCORPORATING SUBSEQUENT EXCHANGE
DOCUMENTS BY REFERENCE.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
C. UNDERTAKING IN RESPECT OF INDEMNIFICATION.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
II-3
<PAGE> 26
D. UNDERTAKINGS IN RESPECT RULE 430A.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For the purposes of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-4
<PAGE> 27
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirement for filing on Form S-3 and has duly caused this Pre-Effective
Amendment No. 1 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the city of Cleveland, state of Ohio,
on September 3, 1998.
THE SHERWIN-WILLIAMS COMPANY
By: /s/ Louis E. Stellato
---------------------------
Louis E. Stellato
Vice President, General Counsel
and Secretary
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE
<S> <C>
(i) Principal Executive Officers:
*J.G. Breen Director, Chairman of the Board and Chief Executive Officer
---------------------------
(J.G. Breen)
*T.A. Commes Director, President and Chief Operating Officer
---------------------------
(T.A. Commes)
(ii) Principal Financial Officer:
*L.J. Pitorak Senior Vice President-Finance, Treasurer and Chief Financial Officer
---------------------------
(L.J. Pitorak)
(iii) Principal Accounting Officer:
*J.L. Ault Vice President-Corporate Controller
---------------------------
J.L. Ault
(iv) Directors
*J.M. Biggar
---------------------------
(J.M. Biggar)
*D.E. Collins
---------------------------
(D.E. Collins)
*D.E. Evans
---------------------------
(D.E. Evans)
*R.W. Mahoney
---------------------------
(R.W. Mahoney)
*W.G. Mitchell
---------------------------
(W.G. Mitchell)
*A.M. Mixon, III
---------------------------
(A.M. Mixon, III)
</TABLE>
II-5
<PAGE> 28
<TABLE>
<CAPTION>
SIGNATURE
<S> <C>
*C.E. Moll
---------------------------
(C.E. Moll)
*H.O. Petrauskas
---------------------------
(H.O. Petrauskas)
*R.K. Smucker
---------------------------
(R.K. Smucker)
</TABLE>
The undersigned, by signing his name hereto, does sign and execute this
Pre-Effective Amendment No. 1 to the Registration Statement on Form S-3 on
behalf of the designated Officers and Directors of The Sherwin-Williams Company
pursuant to Powers of Attorney executed on behalf of each of such Directors and
Officers which are filed as an Exhibit hereto.
By: /s/ Louis E. Stellato September 3, 1998
- --------------------------------------------
Louis E. Stellato
(Attorney-in-Fact)
II-6
<PAGE> 29
EXHIBIT INDEX
EXHIBIT DESCRIPTION
1.1** Form of Underwriting Agreement with respect to Debt
Securities.
1.2* Form of Underwriting Agreement with respect to Common Stock.
1.3* Form of Underwriting Agreement with respect to Warrants.
3.1** Amended Articles of Incorporation of the Company, as amended
April 25, 1997, incorporated herein by reference to Exhibit
3(i) of the Quarterly Report on Form 10-Q for the period ended
March 31, 1997.
3.2** Regulations of the Company, dated April 27, 1988, incorporated
herein by reference to Exhibit 4(b) of the Registration
Statement on Form S-8 (File No. 2-91401) filed with the
Commission on April 29, 1988.
4.1** Indenture between the Company and Chemical Bank, as Trustee,
dated as of February 1, 1996, incorporated herein by reference
to Exhibit 4(a) of the Registration Statement on Form S-3
(File No. 333-01093) filed with the Commission on February 20,
1996.
4.2 Form of Subordinated Debt Securities Indenture.
4.3* Form of Senior Debt Securities.
4.4* Form of Subordinated Debt Securities.
4.5** Specimen Common Stock Certificate.
4.6** Rights Agreement, including the form of Rights Certificate,
incorporated herein by reference to Exhibit 1 of the
Registration Statement on Form 8-A filed with the Commission
on April 24, 1997.
4.7** Form of Common Stock Warrant Agreement, including form of
Warrant Certificate.
4.8** Form of Debt Securities Warrant Agreement, including form of
Warrant Certificate.
5** Opinion of Louis E. Stellato regarding validity of the
Securities, including consent.
12** Computation of Consolidated Ratio of Earnings to Fixed
Charges.
23.1** Consent of Ernst & Young LLP, independent auditors.
23.2** Consent of Counsel, included in Exhibit 5.
24.1** Powers of Attorney.
24.2** Certified Resolution of Registrant's Board of Directors
authorizing execution by Power of Attorney.
25.1** Statement of Eligibility on Form T-1 of The Chase Manhattan
Bank regarding the Indenture between the Company and Chemical
Bank, as Trustee, dated as of February 1, 1996, incorporated
herein by reference to Exhibit 25 of the Registration
Statement on From S-3 (File No. 333-01093) filed with the
Commission on February 20, 1996.
25.2 Statement of Eligibility on Form T-1 of The Chase Manhattan
Bank regarding the form of Subordinated Debt Securities
Indenture filed as Exhibit 4.2.
* To be filed as an Exhibit to a document to be incorporated by reference for
the specific offering of Securities, if any, to which it relates.
** Previously filed.
II-7
<PAGE> 1
Exhibit 4.2
THE SHERWIN-WILLIAMS COMPANY
AND
THE CHASE MANHATTAN BANK, AS TRUSTEE
INDENTURE
DATED AS OF ______ __, ____
SUBORDINATED DEBT SECURITIES
<PAGE> 2
TABLE OF CONTENTS*
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
RECITALS OF THE COMPANY............................................................................................1
ARTICLE I DEFINITIONS
Section 1.01. Certain Terms Defined...................................................................1
Section 1.02. Incorporation by Reference of Trust Indenture Act.......................................10
Section 1.03. Rules of Construction...................................................................10
ARTICLE II DEBT SECURITIES
Section 2.01. Forms Generally.........................................................................11
Section 2.02. Form of Trustee's Certificate of Authentication.........................................11
Section 2.03. Principal Amount; Issuable in Series....................................................12
Section 2.04. Execution of Debt Securities............................................................15
Section 2.05. Authentication and Delivery of Debt Securities..........................................15
Section 2.06. Denomination of Debt Securities.........................................................17
Section 2.07. Registration of Transfer and Exchange...................................................17
Section 2.08. Temporary Debt Securities...............................................................18
Section 2.09. Mutilated, Destroyed, Lost or Stolen Debt Securities....................................19
Section 2.10. Cancellation of Surrendered Debt Securities.............................................20
Section 2.11. Provisions of the Indenture and Debt Securities for the
Sole Benefit of the Parties and the Holders...........................................20
Section 2.12. Payment of Interest; Interest Rights Preserved..........................................20
Section 2.13. Securities Denominated in Foreign Currencies............................................21
Section 2.14. Wire Transfers..........................................................................21
Section 2.15. Securities Issuable in the Form of a Global Security....................................21
Section 2.16. Medium Term Securities..................................................................24
Section 2.17. Defaulted Interest......................................................................25
Section 2.18. Judgments...............................................................................26
ARTICLE III REDEMPTION OF DEBT SECURITIES
Section 3.01. Applicability of Article................................................................26
Section 3.02. [Reserved]..............................................................................26
Section 3.03. Notice of Redemption; Selection of Debt Securities......................................27
Section 3.04. Payment of Debt Securities Called for Redemption........................................28
Section 3.05. Mandatory and Optional Sinking Funds....................................................29
Section 3.06. Redemption of Debt Securities for Sinking Fund..........................................29
</TABLE>
<PAGE> 3
<TABLE>
<S> <C> <C>
ARTICLE IV PARTICULAR COVENANTS OF THE COMPANY
Section 4.01. Payment of Principal of, and Premium, if any, and
Interest on, Debt Securities..........................................................31
Section 4.02. Maintenance of Offices or Agencies for Registration
of Transfer, Exchange and Payment of Debt Securities..................................31
Section 4.03. Appointment to Fill a Vacancy in the Office of Trustee..................................32
Section 4.04. Duties of Paying Agents, etc............................................................32
Section 4.05. Statement by Officers as to Default.....................................................33
Section 4.06. Existence...............................................................................33
ARTICLE V HOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section 5.01. Company to Furnish Trustee Information as to Names and
Addresses of Holders; Preservation of Information.....................................34
Section 5.02. Communications to Holders...............................................................34
Section 5.03. Reports by the Company..................................................................35
Section 5.04. Reports by the Trustee..................................................................35
ARTICLE VI REMEDIES OF THE TRUSTEE AND HOLDERS IN EVENT OF DEFAULT
Section 6.01. Events of Default.......................................................................36
Section 6.02. Collection of Indebtedness by Trustee, etc..............................................38
Section 6.03. Application of Moneys Collected by Trustee..............................................40
Section 6.04. Limitation on Suits by Holders..........................................................41
Section 6.05. Remedies Cumulative; Delay or Omission in Exercise
of Rights Not a Waiver of Default.....................................................41
Section 6.06. Rights of Holders of Majority in Principal Amount of
Debt Securities to Direct Trustee and to Waive Default................................42
Section 6.07. Trustee to Give Notice of Defaults Known to It, but
May Withhold Such Notice in Certain Circumstances.....................................42
Section 6.08. Requirement of an Undertaking to Pay Costs in Certain
Suits Under the Indenture or Against the Trustee......................................43
ARTICLE VII CONCERNING THE TRUSTEE
Section 7.01. Certain Duties and Responsibilities.....................................................43
Section 7.02. Certain Rights of the Trustee...........................................................45
Section 7.03. Trustee Not Liable for Recitals in Indenture or in
Debt Securities.......................................................................46
Section 7.04. Trustee, Paying Agent or Registrar May Own Debt
Securities............................................................................46
Section 7.05. Moneys Received by Trustee to be Held in Trust..........................................47
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C> <C>
Section 7.06. Compensation and Reimbursement..........................................................47
Section 7.07. Right of Trustee to Rely on an Officers' Certificate
Where No Other Evidence Specifically Prescribed.......................................47
Section 7.08. Separate Trustee; Replacement of Trustee................................................48
Section 7.09. Successor Trustee by Merger.............................................................49
Section 7.10. Eligibility; Disqualification...........................................................50
Section 7.11. Preferential Collection of Claims Against Company.......................................50
Section 7.12. Compliance with Tax Laws................................................................50
ARTICLE VIII CONCERNING THE HOLDERS
Section 8.01. Evidence of Action by Holders...........................................................51
Section 8.02. Proof of Execution of Instruments and of Holding
of Debt Securities....................................................................51
Section 8.03. Who May Be Deemed Owner of Debt Securities..............................................51
Section 8.04. Instruments Executed by Holders Bind Future Holders;
Record Dates..........................................................................52
ARTICLE IX SUPPLEMENTAL INDENTURES
Section 9.01. Purposes for Which Supplemental Indenture May Be Entered
into Without Consent of Holders.......................................................52
Section 9.02. Modification of Indenture with Consent of Holders of Debt
Securities............................................................................54
Section 9.03. Effect of Supplemental Indentures.......................................................55
Section 9.04. Debt Securities May Bear Notation of Changes by
Supplemental Indentures...............................................................56
Section 9.05 Subordination Unimpaired................................................................56
ARTICLE X CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 10.01. Consolidations and Mergers of the Company...............................................56
Section 10.02. Rights and Duties of Successor Corporation..............................................57
ARTICLE XI SATISFACTION AND DISCHARGE OF INDENTURE;
DEFEASANCE; UNCLAIMED MONEYS
Section 11.01. Applicability of Article................................................................57
Section 11.02. Satisfaction and Discharge of Indenture; Defeasance.....................................58
Section 11.03. Conditions to Defeasance................................................................59
Section 11.04. Application of Trust Money..............................................................60
Section 11.05. Repayment to Company....................................................................60
Section 11.06. Indemnity for U.S. Government Obligations...............................................61
</TABLE>
iii
<PAGE> 5
<TABLE>
<S> <C> <C>
Section 11.07. Reinstatement...........................................................................61
ARTICLE XII SUBORDINATION
Section 12.01 Debt Securities Subordinated to Senior Indebtedness.....................................61
Section 12.02 Payments Upon Dissolution of the Company................................................61
Section 12.03 Default in Senior Indebtedness..........................................................63
Section 12.04 Payment Permitted if No Default.........................................................63
Section 12.05 Subrogation to Rights of Holders of Senior Indebtedness.................................63
Section 12.06 Provisions Solely to Define Relative Rights.............................................64
Section 12.07 Trustee to Effectuate Subordination.....................................................64
Section 12.08 No Waiver of Subordination Provisions...................................................64
Section 12.09 Notice to the Trustee...................................................................65
Section 12.10 Reliance on Judicial Order or Certificate of Liquidating Agent..........................66
Section 12.11 Trustee not Fiduciary for Holders of Senior Indebtedness................................66
Section 12.12 Rights of Trustee as Holder of Senior Indebtedness; Preservation
of Trustee's Rights...................................................................66
Section 12.13 Article Applicable to Paying Agents.....................................................66
Section 12.14 Satisfaction, Discharge and Defeasance..................................................67
ARTICLE XIII MISCELLANEOUS PROVISIONS
Section 13.01. Successors and Assigns of Company Bound by Indenture....................................67
Section 13.02. Acts of Board, Committee or Officer of Successor
Company Valid.........................................................................67
Section 13.03. Required Notices or Demands.............................................................67
Section 13.04. Indenture and Debt Securities to Be Construed in
Accordance with the Laws of the State of New York.....................................68
Section 13.05. Officers' Certificate and Opinion of Counsel to Be
Furnished upon Application or Demand by the
Company...............................................................................68
Section 13.06. Payments Due on Legal Holidays..........................................................69
Section 13.07. Provisions Required by Trust Indenture Act to Control...................................69
Section 13.08. Computation of Interest on Debt Securities..............................................69
Section 13.09. Rules by Trustee, Paying Agent and Registrar............................................69
Section 13.10. No Recourse Against Others..............................................................69
Section 13.11. Severability............................................................................70
Section 13.12. Effect of Headings......................................................................70
Section 13.13. Indenture May Be Executed in Counterparts...............................................70
SIGNATURES ........................................................................................................71
</TABLE>
*The Table of Contents is not part of the Indenture.
iv
<PAGE> 6
THE SHERWIN-WILLIAMS COMPANY
DEBT SECURITIES
CROSS REFERENCE SHEET*
This Cross Reference Sheet shows the location in the Indenture of the provisions
inserted pursuant to Sections 310-318(a), inclusive of the Trust Indenture Act
of 1939.
<TABLE>
<CAPTION>
INDENTURE
TIA SECTION SECTION
- ----------- -------
<S> <C>
310 (a)(1)................................................................................................7.10
(a)(2)................................................................................................7.10
(a)(3)................................................................................................7.10
(a)(4)................................................................................................7.10
(a)(5)................................................................................................7.10
(b)...................................................................................................7.10
(c).................................................................................................N.A.**
311 (a)...................................................................................................7.11
(b)...................................................................................................7.11
(c)...................................................................................................N.A.
312 (a)...................................................................................................5.01
(b)...................................................................................................5.02
(c).................................................................................................. 5.02
313 (a)...................................................................................................5.04
(b)(1)................................................................................................5.04
(b)(2)................................................................................................5.04
(c)..................................................................................................13.03
(d)...................................................................................................5.04
314 (a)(1).............................................................................................5.03(a)
(a)(2).............................................................................................5.03(b)
(a)(3)........................................................................................5.03(a), (b)
(a)(4)...............................................................................................13.03
(b)...................................................................................................4.05
(c)(1)................................................................................................N.A.
(c)(2)...............................................................................................13.05
(c)(3)...............................................................................................13.05
(d)...................................................................................................N.A.
(e)...................................................................................................N.A.
(f)..................................................................................................13.05
315 (a)................................................................................................7.01(a)
(b)............................................................................................6.07, 13.03
(c)...................................................................................................7.01
</TABLE>
v
<PAGE> 7
<TABLE>
<S> <C> <C>
(d)...................................................................................................7.01
(e)...................................................................................................6.08
316 (a)(last sentence)....................................................................................1.01
(a)(1)(A).............................................................................................6.06
(a)(1)(B).............................................................................................6.06
(a)(2).............................................................................................9.01(d)
(b)...................................................................................................6.04
(c)...................................................................................................5.05
317 (a)(1)................................................................................................6.02
(a)(2)................................................................................................6.02
(b)...................................................................................................4.04
318 (a)..................................................................................................13.07
</TABLE>
* The Cross Reference Sheet is not part of the Indenture.
** N.A. means "Not Applicable."
vi
<PAGE> 8
INDENTURE dated as of ______ __, ____, between THE SHERWIN-WILLIAMS
COMPANY, a corporation duly organized and existing under the laws of the State
of Ohio (hereinafter sometimes called the "Company"), and THE CHASE MANHATTAN
BANK, a New York banking corporation (hereinafter sometimes called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its subordinated
debentures, notes, bonds or other evidences of indebtedness to be issued in one
or more series unlimited as to principal amount (herein called the "Debt
Securities"), as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH
That in order to declare the terms and conditions upon which the Debt
Securities are authenticated, issued and delivered, and in consideration of the
premises, and of the purchase and acceptance of the Debt Securities by the
holders thereof, the Company and the Trustee covenant and agree with each other,
for the benefit of the respective Holders from time to time of the Debt
Securities or any series thereof, as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Certain Terms Defined.
The terms defined in this Section 1.01 (except as herein otherwise
expressly provided or unless the context otherwise requires) for all purposes of
this Indenture and of any Indenture supplemental hereto shall have the
respective meanings specified in this Section 1.01. All other terms used in this
Indenture which are defined in the Trust Indenture Act or which are by reference
therein defined in the Securities Act (except as herein otherwise expressly
provided or unless the context otherwise requires), shall have the meanings
assigned to such terms in the Trust Indenture Act and in the Securities Act as
in force as of the date of execution of this Indenture.
"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 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 meanings correlative to the foregoing.
<PAGE> 9
"Bankruptcy Law" means Title 11, UNITED STATES CODE, or any similar
federal or state law for the relief of debtors.
"Board of Directors" means either the Board of Directors of the Company
or any duly authorized committee or subcommittee of such Board, except as the
context may otherwise require.
"Business Day" means, when used with respect to any Place of Payment
specified pursuant to Section 2.03, any day that is not a Saturday, a Sunday or
a legal holiday or a day on which banking institutions or trust companies in
such Place of Payment are authorized or obligated by law to close, except as
otherwise specified pursuant to Section 2.03.
"Capitalized Lease Obligation" means an obligation that is required to
be classified and accounted for as a capitalized lease for financial reporting
purposes in accordance with GAAP; and the amount of Indebtedness represented by
such obligation shall be the capitalized amount of such obligation determined in
accordance with GAAP; and the Stated Maturity thereof shall be the date of the
last payment of rent or any other amount due under such lease prior to the first
date upon which such lease may be terminated by the lessee without payment of a
penalty.
"Capital Stock" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests (including partnership interests) in (however designated) the equity
of such Person, including any Preferred Stock, but excluding any debt securities
convertible into such equity.
"Commodity Price Protection Agreement" means, in respect of any Person,
any forward contract, commodity swap agreement, commodity option agreement or
other similar agreement or arrangement designed to protect such Person against
fluctuations in commodity prices.
"Common Stock" means the common stock, par value $1.00 per share, of
the Company, which stock is currently listed on the New York Stock Exchange.
"Company" means The Sherwin-Williams Company, an Ohio corporation, and,
subject to the provisions of Article X, shall also include its successors and
assigns.
"Company Order" means a written order of the Company, signed by its
Chairman of the Board, Vice Chairman, the President or any Vice President (or
any other officer performing similar functions) and by its Treasurer, Secretary,
any Assistant Treasurer or any Assistant Secretary (or any other officer
performing similar functions).
"Corporate Trust Office of the Trustee" or other similar term means the
office of the Trustee at which the corporate trust business of the Trustee
shall, at any particular time, be principally administered in the United States
of America, except that with respect to the presentation of Debt Securities for
payment or for registration of transfer and exchange, such term shall also mean
the
2
<PAGE> 10
office of the Trustee or the Trustee's agent in the Borough of Manhattan, the
city and state of New York, at which at any particular time its corporate agency
business shall be conducted.
"Currency" means Dollars or Foreign Currency.
"Currency Exchange Protection Agreement" means, in respect of any
Person, any foreign exchange contract, currency swap agreement, currency option
or other similar agreement or arrangement designed to protect such Person
against fluctuations in currency exchange rates.
"Debt Security" or "Debt Securities" has the meaning stated in the
first recital of this Indenture and more particularly means any debt security or
debt securities, as the case may be of any series authenticated and delivered
under this Indenture.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Depositary" means, unless otherwise specified by the Company pursuant
to either Section 2.03 or 2.15, with respect to Registered Securities of any
series issuable or issued in whole or in part in the form of one or more Global
Securities, The Depository Trust Company, New York, New York, or any successor
thereto registered as a clearing agency under the Exchange Act or other
applicable statute or regulations.
"Dollar" or "$" means such currency of the United States as at the time
of payment is legal tender for the payment of public and private debts.
"Dollar Equivalent" means, with respect to any monetary amount in a
Foreign Currency, at any time for the determination thereof, the amount of
Dollars obtained by converting such Foreign Currency involved in such
computation into Dollars at the spot rate for the purchase of Dollars with the
applicable Foreign Currency as quoted by The Chase Manhattan Bank (unless
another comparable financial institution is designated by the Company) in New
York, New York at approximately 11:00 a.m. (New York time) on the date two
Business Days prior to such determination.
"European Currency Units" has the meaning assigned to it from time to
time by the Council of the European Communities.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
3
<PAGE> 11
"Floating Rate Security" means a Debt Security that provides for the
payment of interest at a variable rate determined periodically by reference to
an interest rate index specified pursuant to Section 2.03.
"Foreign Currency" means a currency issued by the government of any
country other than the United States or a composite currency (including European
Currency Units) the value of which is determined by reference to the values of
the currencies of any group of countries.
"GAAP" means generally accepted accounting principles in the United
States as in effect from time to time, including those set forth in the opinions
and pronouncements of the Accounting Principles Board of the American Institute
of Certified Public Accountants and statements and pronouncements of the
Financial Accounting Standards Board or in such other statements by such other
entity as approved by a significant segment of the accounting profession. All
ratios and computations based on GAAP contained in this Indenture shall be
computed in conformity with GAAP consistently applied.
"Global Security" means with respect to any series of Debt Securities
issued hereunder, a Debt Security which is executed by the Company and
authenticated and delivered by the Trustee to the Depositary or its custodian or
pursuant to the Depositary's instruction, all in accordance with this Indenture
and any Indentures supplemental hereto, or resolution of the Board of Directors
and set forth in an Officers' Certificate, which shall be registered in the name
of the Depositary or its nominee and which shall represent, and shall be
denominated in an amount equal to the aggregate principal amount of, all the
Outstanding Debt Securities of such series or any portion thereof, in either
case having the same terms, including, without limitation, the same original
issue date, date or dates on which principal is due and interest rate or method
of determining interest.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness or other obligation
of any other Person and any obligation, direct or indirect, contingent or
otherwise, of such Person (i) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Indebtedness or other obligation of such other
Person (whether arising by virtue of partnership arrangements, or by agreement
to keep-well, to purchase assets, goods, securities or services, to take-or-pay,
or to maintain financial statement conditions or otherwise) or (ii) entered into
for purposes of assuring in any other manner the obligee of such Indebtedness or
other obligation of the payment thereof or to protect such obligee against loss
in respect thereof (in whole or in part); provided, however, that the term
"Guarantee" shall not include endorsements for collection or deposit in the
ordinary course of business. The term "Guarantee" used as a verb has a
corresponding meaning.
"Hedging Obligations" of any Person means the obligations of such
Person pursuant to any Interest Rate Protection Agreement, Currency Exchange
Protection Agreement, Commodity Price Protection Agreement or other similar
agreement.
"Holder," "Holder of Debt Securities" or other similar terms means a
Registered Holder.
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"incur" means issue, assume, Guarantee, incur or otherwise become
liable for; provided, however, that any Indebtedness or Capital Stock of a
Person existing at the time such Person becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be incurred by such
Subsidiary at the time it becomes a Subsidiary. The terms "incurred",
"incurrence" and "incurring" shall each have a correlative meaning.
"Indebtedness" means, with respect to any Person on any date of
determination (without duplication),
(i) the principal of and premium (if any) in respect of
indebtedness of such Person for borrowed money;
(ii) the principal of and premium (if any) in respect of
obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments;
(iii) all Capitalized Lease Obligations of such Person;
(iv) all obligations of such Person to pay the deferred and
unpaid purchase price of property or services (except Trade Payables);
(v) all obligations of such Person in respect of letters of
credit, banker's acceptances or other similar instruments or credit
transactions (including reimbursement obligations with respect
thereto), other than obligations with respect to letters of credit
securing obligations (other than obligations described in (i) through
(iv) 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;
(vi) all Indebtedness of other Persons secured by a Lien on
any asset of such Person, whether or not such Indebtedness is assumed
by such Person; provided, however, that the amount of such Indebtedness
shall be the lesser of (A) the fair market value of such asset at such
date of determination and (B) the amount of such Indebtedness of such
other Persons;
(vii) all Indebtedness of other Persons to the extent
Guaranteed by such Person; and
(viii) to the extent not otherwise included in this
definition, obligations in respect of Hedging Obligations.
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Notwithstanding the foregoing, the term "Indebtedness" excludes (i) any
indebtedness of the Company or any Subsidiary to the Company or another
Subsidiary and (ii) any Guarantee by the Company or any Subsidiary of
indebtedness of the Company or another Subsidiary.
"Indenture" means this instrument as originally executed, or, if
amended or supplemented as herein provided, as so amended or supplemented and
shall include the form and terms of particular series of Debt Securities as
contemplated hereunder, whether or not a supplemental Indenture is entered into
with respect thereto.
"Interest Rate Protection Agreement" means, in respect of any Person,
any interest rate swap agreement, interest rate option agreement, interest rate
cap agreement, interest rate collar agreement, interest rate floor agreement or
other similar agreement or arrangement designed to protect such Person against
fluctuations in interest rates.
"Lien" means any mortgage, pledge, security interest, encumbrance, lien
or charge of any kind (including any conditional sale or other title retention
agreement or lease in the nature thereof).
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the Vice Chairman, the President or any Vice President (or other
officers performing similar functions) and by the Treasurer, the Secretary or
any Assistant Treasurer or Assistant Secretary of the Company (or other officers
performing similar functions). Each such certificate shall include the
statements provided for in Section 13.05, if applicable.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel for the Company (which counsel may be an employee of the Company), or
outside counsel for the Company, in each case acceptable to the Trustee. Each
such opinion shall include the statements provided for in Section 13.05, if
applicable.
"Original Issue Discount Debt Security" means any Debt Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant to
Section 6.01.
"Outstanding", when used with respect to any series of Debt Securities,
means, as of the date of determination, all Debt Securities of that series
theretofore authenticated and delivered under this Indenture, except:
(i) Debt Securities of that series theretofore cancelled by
the Trustee or delivered to the Trustee for cancellation;
(ii) Debt Securities of that series for whose payment or
redemption money in the necessary amount has been theretofore deposited
with the Trustee or any paying agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company
shall act as its own paying agent) for the Holders of such Debt
Securities;
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provided, that, if such Debt Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made; and
(iii) Debt Securities of that series which have been paid
pursuant to Section 2.09 or in exchange for or in lieu of which other
Debt Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Debt Securities in respect of which
there shall have been presented to the Trustee proof satisfactory to it
that such Debt Securities are held by a bona fide purchaser in whose
hands such Debt Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Debt Securities of any series have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Debt Securities owned by the Company or any other obligor upon the Debt
Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Debt Securities which
the Trustee knows to be so owned shall be so disregarded. Debt Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Debt Securities and that the pledgee is not the
Company or any other obligor upon the Debt Securities or an Affiliate of the
Company or of such other obligor. In determining whether the Holders of the
requisite principal amount of Outstanding Debt Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
the principal amount of an Original Issue Discount Debt Security that shall be
deemed to be Outstanding for such purposes shall be the amount of the principal
thereof that would be due and payable as of the date of such determination upon
a declaration of acceleration of the maturity thereof pursuant to Section 6.01.
In determining whether the Holders of the requisite principal amount of the
Outstanding Debt Securities of any series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of a Debt Security denominated in one or more Foreign Currencies that
shall be deemed to be Outstanding for such purposes shall be the Dollar
Equivalent, determined in the manner provided as contemplated by Section 2.03 on
the date of original issuance of such Debt Security, of the principal amount
(or, in the case of any Original Issue Discount Security, the Dollar Equivalent
on the date of original issuance of such Security of the amount determined as
provided in the preceding sentence above) of such Debt Security.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Place of Payment" means, when used with respect to the Debt Securities
of any series, the place or places where the principal of, and premium, if any,
and interest on, the Debt Securities of that series are payable as specified
pursuant to Section 2.03.
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"Preferred Stock", as applied to the Capital Stock 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.
"Registered Holder" means the Person in whose name a Registered
Security is registered in the Debt Security Register (as defined in Section
2.07(a)).
"Registered Security" means any Debt Security registered as to
principal and interest in the Debt Security Register (as defined in Section
2.07(a)).
"Registrar" has the meaning set forth in Section 2.07(a).
"Responsible Officer", when used with respect to the Trustee, means any
officer within the Corporate Trustee Administration Department of the Trustee,
including any vice president, any senior trust officer, any trust officer or any
other officer of the Trustee performing functions similar to those performed by
the persons who at the time shall be such officers, and any other officer of the
Trustee to whom corporate trust matters are referred because of his knowledge of
and familiarity with the particular subject.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Indebtedness" means the principal of (and premium, if any) and
interest (including interest accruing after the filing of a petition initiating
any proceeding pursuant to any Bankruptcy Law, but only to the extent allowed or
permitted to the holder of such Indebtedness of the Company against the
bankruptcy or any other insolvency estate of the Company in such proceeding) and
other amounts due on or in connection with any Indebtedness of the Company
incurred, assumed or Guaranteed by the Company, whether outstanding on the date
of this Indenture or thereafter incurred, assumed or Guaranteed and all
renewals, extensions and refundings of any such Indebtedness of the Company;
provided, however, that the following will not constitute Senior Indebtedness:
(i) any Indebtedness of the Company as to which, in the
instrument creating the same or evidencing the same or pursuant to
which the same is outstanding, it is expressly provided that such
Indebtedness of the Company shall be subordinated to any other
Indebtedness of the Company, unless such Indebtedness of the Company
expressly provides that such Indebtedness of the Company shall be
senior in right of payment to the Debt Securities;
(ii) any Indebtedness of the Company which by its terms states
that such Indebtedness of the Company shall not be senior in right of
payment to the Debt Securities;
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(iii) Indebtedness of the Company in respect of the Debt
Securities; and
(iv) any Indebtedness of the Company to any Affiliate of the
Company or a Subsidiary of the Company.
"Significant Subsidiary" means a Subsidiary of any Person that would be
a "significant subsidiary" as defined in Rule 405 under the Securities Act as in
effect on the date of this Indenture.
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the payment of principal
of such security is due and payable, including pursuant to any mandatory
redemption provision (but excluding any provision providing for the repurchase
of such security at the option of the holder thereof upon the happening of any
contingency beyond the control of the issuer unless such contingency has
occurred).
"Subsidiary" means, in respect of any Person, any corporation,
association, partnership or other business entity of which more than 50% of the
total voting power of the Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers or
trustees thereof is at the time 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.
"Trade Payables" means, with respect to any Person, any accounts
payable or any Indebtedness or monetary obligation to trade creditors created,
assumed or Guaranteed by such Person arising in the ordinary course of business
of such Person in connection with the acquisition of goods or services.
"Trustee" initially means The Chase Manhattan Bank and any other Person
or Persons appointed as such from time to time pursuant to Section 7.08, and,
subject to the provisions of Article VII, includes its or their successors and
assigns. If at any time there is more than one such Person, "Trustee" as used
with respect to the Debt Securities of any series shall mean the Trustee with
respect to the Debt Securities of that series.
"Trust Indenture Act" (except as herein otherwise expressly provided)
means the Trust Indenture Act of 1939 as in force at the date of this Indenture
as originally executed and, to the extent required by law, as amended.
"United States" means the United States of America (including the
States and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"United States Alien" means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a nonresident alien individual, a
nonresident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more members of which is, for United States
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<PAGE> 17
Federal income tax purposes, a foreign corporation, a nonresident alien
individual or a nonresident alien fiduciary of a foreign estate or trust.
"U.S. Government Obligations" means securities that are (x) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof.
"Yield to Maturity" means the yield to maturity, calculated at the time
of issuance of a series of Debt Securities, or, if applicable, at the most
recent redetermination of interest on such series and calculated in accordance
with accepted financial practice.
Section 1.02. Incorporation by Reference of Trust Indenture Act.
This Indenture is subject to the mandatory provisions of the Trust
Indenture Act which are incorporated by reference in and made a part of this
Indenture. The following Trust Indenture Act terms have the following meanings:
"indenture securities" means the Debt Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company and any other
obligor on the Debt Securities.
All other Trust Indenture Act terms used in this Indenture that are
defined by the Trust Indenture Act, reference to another statute or defined by
rules of the Securities and Exchange Commission have the meanings assigned to
them by such definitions.
Section 1.03. Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
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(c) "or" is not exclusive;
(d) "including" means including without limitation;
(e) words in the singular include the plural and words in the plural
include the singular;
(f) except as provided in the final proviso to the definition of
"Outstanding" contained in Section 1.01, the principal amount of any noninterest
bearing or other discount security at any date shall be the principal amount
thereof that would be shown on a balance sheet of the issuer dated such date
prepared in accordance with GAAP; and
(g) the principal amount of any Preferred Stock shall be the greater of
(i) the maximum liquidation value of such Preferred Stock or (ii) the maximum
mandatory redemption or mandatory repurchase price with respect to such
Preferred Stock.
ARTICLE II
DEBT SECURITIES
Section 2.01. Forms Generally.
The Debt Securities of each series shall be in substantially the form
established without the approval of any Holder by or pursuant to a resolution of
the Board of Directors or in one or more Indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as the Company may deem appropriate (and, if not
contained in a supplemental Indenture entered into in accordance with Article
IX, as are not prohibited by the provisions of this Indenture) or as may be
required or appropriate to comply with any law or with any rules made pursuant
thereto or with any rules of any securities exchange on which such series of
Debt Securities may be listed, or to conform to general usage, or as may,
consistently herewith, be determined by the officers executing such Debt
Securities, as evidenced by their execution of the Debt Securities.
The definitive Debt Securities of each series, if any, shall be
printed, lithographed or engraved on steel engraved borders or may be produced
in any other manner, all as determined by the officers executing such Debt
Securities, as evidenced by their execution of such Debt Securities.
Section 2.02. Form of Trustee's Certificate of Authentication.
The Trustee's Certificate of Authentication on all Debt Securities
authenticated by the Trustee shall be in substantially the following form:
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated therein
referred to in the within-mentioned Indenture.
As Trustee
By
Authorized Officer
Section 2.03. Principal Amount; Issuable in Series.
The aggregate principal amount of Debt Securities which may be issued,
executed, authenticated, delivered and outstanding under this Indenture is
unlimited.
The Debt Securities may be issued in one or more series. There shall be
established, without the approval of any Holders, in or pursuant to a resolution
of the Board of Directors and set forth in an Officers' Certificate, or
established in one or more Indentures supplemental hereto, prior to the issuance
of Debt Securities of any series any or all of the following:
(1) the title of the Debt Securities of the series (which
shall distinguish the Debt Securities of the series from all other Debt
Securities);
(2) any limit upon the aggregate principal amount of the Debt
Securities of the series which may be authenticated and delivered under
this Indenture (except for Debt Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of,
other Debt Securities of the series pursuant to this Article II);
(3) the date or dates on which the principal and premium, if
any, of the Debt Securities of the series are payable;
(4) the rate or rates (which may be fixed or variable) at
which the Debt Securities of the series shall bear interest, if any, or
the method of determining such rate or rates, the date or dates from
which such interest shall accrue, the interest payment dates on which
such interest shall be payable, or the method by which such date will
be determined, in the case of Registered Securities, the record dates
for the determination of Holders thereof to whom such interest is
payable, and the basis upon which interest will be calculated if other
than that of a 360-day year of twelve thirty-day months;
(5) the place or places, if any, in addition to or instead of
the Corporate Trust Office of the Trustee, where the principal of, and
premium, if any, and interest on, Debt Securities of the series shall
be payable;
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(6) the price or prices at which, the period or periods within
which and the terms and conditions upon which Debt Securities of the
series may be redeemed, in whole or in part, at the option of the
Company or otherwise;
(7) the obligation, if any, of the Company to redeem, purchase
or repay Debt Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof, and the
price or prices at which and the period or periods within which and the
terms and conditions upon which Debt Securities of the series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to such
obligations;
(8) the terms, if any, upon which the Debt Securities of the
series may be convertible into or exchanged for Common Stock, Preferred
Stock (which may be represented by depositary shares), other Debt
Securities or warrants for Common Stock, Preferred Stock or
Indebtedness or other securities of any kind of the Company or any
other obligor and the terms and conditions upon which such conversion
or exchange shall be effected, including the initial conversion or
exchange price or rate, the conversion or exchange period and any other
provision in addition to or in lieu of those described herein;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Debt Securities of the
series shall be issuable;
(10) if the amount of principal, premium, if any, or interest
on Debt Securities of the series may be determined with reference to an
index or pursuant to a formula, the manner in which such amounts will
be determined;
(11) if the principal amount payable at the Stated Maturity of
Debt Securities of the series will not be determinable as of any one or
more dates prior to such Stated Maturity, the amount which will be
deemed to be such principal amount as of any such date for any purpose,
including the principal amount thereof which will be due and payable
upon any maturity other than the Stated Maturity or which will be
deemed to be Outstanding as of any such date (or, in any such case, the
manner in which such deemed principal amount is to be determined);
(12) the applicability of Section 11.02(b) and any changes or
additions to Article XI, including the addition of additional covenants
that may be subject to the covenant defeasance option pursuant to
Section 11.02(b)(ii);
(13) if other than such coin or Currency of the United States
as at the time of payment is legal tender for payment of public and
private debts, the coin or Currency or Currencies or units of two or
more Currencies in which payment of the principal of, and premium, if
any, and interest on, Debt Securities of the series shall be payable;
and the manner of determining the equivalent thereof in the currency of
the United States of America for purposes of the definition of Dollar
Equivalent;
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(14) if other than the principal amount thereof, the portion
of the principal amount of Debt Securities of the series which shall be
payable upon declaration of acceleration of the maturity thereof
pursuant to Section 6.01 or provable in bankruptcy pursuant to Section
6.02;
(15) any addition to or change in the Events of Default with
respect to the Debt Securities of the series and any change in the
right of the Trustee or the Holders to declare the principal of, and
premium and interest on, such Debt Securities due and payable;
(16) if the Debt Securities of the series shall be issued in
whole or in part in the form of a Global Security or Securities, the
terms and conditions, if any, upon which such Global Security or
Securities may be exchanged in whole or in part for other individual
Debt Securities in definitive registered form if other than as provided
for in Section 2.15; and the Depositary for such Global Security or
Securities and the form of any legend or legends to be borne by any
such Global Security or Securities in addition to or in lieu of the
legend referred to in Section 2.15;
(17) any trustees, authenticating or paying agents, transfer
agents or registrars;
(18) the applicability of, and any addition to or change in
the covenants and definitions currently set forth in this Indenture or
in the terms currently set forth in Article X, including conditioning
any merger, conveyance, transfer or lease permitted by Article X upon
the satisfaction of an Indebtedness coverage standard by the Company
and the Successor Company (as defined in Article X);
(19) the terms, if any, of any Guarantee of the payment of
principal of, and premium, if any, and interest on, Debt Securities of
the series and any corresponding changes to the provisions of this
Indenture as currently in effect;
(20) the terms, if any, of the transfer, mortgage, pledge or
assignment as security for the Debt Securities of the series of any
properties, assets, moneys, proceeds, securities or other collateral,
including whether certain provisions of the Trust Indenture Act are
applicable and any corresponding changes to provisions of this
Indenture as currently in effect;
(21) with regard to Debt Securities of the series that do not
bear interest, the dates for certain required reports to the Trustee;
and
(22) any other terms of the Debt Securities of the series
(which terms shall not be prohibited by the provisions of this
Indenture).
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All Debt Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such resolution of the Board of Directors and as set forth in such Officers'
Certificate or in any such Indenture supplemental hereto.
Section 2.04. Execution of Debt Securities.
The Debt Securities shall be signed on behalf of the Company by its
Chairman of the Board, its Vice Chairman, its President or a Vice President (or
any other officer performing similar functions) and by its Treasurer, Secretary,
an Assistant Treasurer or an Assistant Secretary (or any other officer
performing similar functions). Such signatures upon the Debt Securities may be
the manual or facsimile signatures of the present or any future such authorized
officers and may be imprinted or otherwise reproduced on the Debt Securities.
The seal of the Company, if any, may be in the form of a facsimile thereof and
may be impressed, affixed, imprinted or otherwise reproduced on the Debt
Securities.
Only such Debt Securities as shall bear thereon a certificate of
authentication substantially in the form hereinbefore recited, signed manually
by an authorized officer of the Trustee, shall be entitled to the benefits of
this Indenture or be valid or obligatory for any purpose. Such certificate by
the Trustee upon any Debt Security executed by the Company shall be conclusive
evidence that the Debt Security so authenticated has been duly authenticated and
delivered hereunder.
In case any officer of the Company who shall have signed any of the
Debt Securities shall cease to be such officer before the Debt Securities so
signed shall have been authenticated and delivered by the Trustee, or disposed
of by the Company, such Debt Securities nevertheless may be authenticated and
delivered or disposed of as though the Person who signed such Debt Securities
had not ceased to be such officer of the Company; and any Debt Security may be
signed on behalf of the Company by such Persons as, at the actual date of the
execution of such Debt Security, shall be the proper officers of the Company,
although at the date of such Debt Security or of the execution of this Indenture
any such Person was not such officer.
Section 2.05. Authentication and Delivery of Debt Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Debt Securities of any series executed
by the Company to the Trustee for authentication, and the Trustee shall
thereupon authenticate and deliver said Debt Securities in accordance with a
Company Order. In authenticating such Debt Securities, and accepting the
additional responsibilities under this Indenture in relation to such Debt
Securities, the Trustee shall be entitled to receive, and (subject to Section
7.01) shall be fully protected in relying upon:
(1) a copy of any resolution or resolutions of the Board of
Directors, certified by the Secretary or Assistant Secretary of the
Company, authorizing the terms of issuance of any series of Debt
Securities;
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(2) an executed supplemental Indenture, if any;
(3) an Officers' Certificate pursuant to Sections 2.03 and
13.05; and
(4) an Opinion of Counsel prepared in accordance with Section
13.05 which shall also state:
(a) that the form of such Debt Securities has been
established in conformity with the provisions of this
Indenture;
(b) that the terms of such Debt Securities have been
established in conformity with the provisions of this
Indenture;
(c) that such Debt Securities, when 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 valid and legally binding
obligations of the Company, enforceable in accordance with
their terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency, fraudulent conveyance or
similar laws affecting the enforcement of creditors' rights
generally and (ii) rights of acceleration and the availability
of equitable remedies may be limited by equitable principles
of general applicability;
(d) that the Company has the corporate power to issue
such Debt Securities and has duly taken all necessary
corporate action with respect to such issuance;
(e) that the issuance of such Debt Securities will
not contravene the Amended Articles of Incorporation or Code
of Regulations, as amended, of the Company; and
(f) that authentication and delivery of such Debt
Securities and the execution and delivery of any supplemental
Indenture will not violate the terms of this Indenture.
Such Opinion of Counsel need express no opinion as to whether a court
in the United States would render a money judgment in a currency other than that
of the United States.
The Trustee shall have the right to decline to authenticate and deliver
any Debt Securities under this Section 2.05 if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken or if the Trustee
in good faith by its board of directors or trustees, executive committee or a
trust committee of directors, trustees or vice presidents, and being advised by
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counsel, shall determine that such action would expose the Trustee to personal
liability to existing Holders.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Company to authenticate Debt Securities of any series. Unless limited by
the terms of such appointment, an authenticating agent may authenticate Debt
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as any Registrar, paying agent or agent
for service of notices and demands.
Unless otherwise provided in the form of Debt Security for any series,
each Debt Security shall be dated the date of its authentication.
Section 2.06. Denomination of Debt Securities.
Unless otherwise provided in the form of Debt Security for any series,
the Debt Securities of each series shall be issuable only as Registered
Securities in such denominations as shall be specified or contemplated by
Section 2.03. In the absence of any such specification with respect to the Debt
Securities of any series, the Debt Securities of such series shall be issuable
in denominations of $1,000 and any integral multiple thereof.
Section 2.07. Registration of Transfer and Exchange.
(a) The Company shall keep or cause to be kept a register for each
series of Registered Securities issued hereunder (hereinafter referred to as the
"Debt Security Register"), in which, subject to such reasonable regulations as
it may prescribe, the Company shall provide for the registration of Registered
Securities and the transfer of Registered Securities as in this Article II
provided. At all reasonable times the Debt Security Register shall be open for
inspection by the Trustee. Subject to Section 2.15, upon due presentment for
registration of transfer of any Registered Security at any office or agency to
be maintained by the Company in accordance with the provisions of Section 4.02,
the Company shall execute and the Trustee shall authenticate and deliver in the
name of the transferee or transferees a new Registered Security or Registered
Securities of authorized denominations for a like aggregate principal amount and
tenor.
Unless and until otherwise determined by the Company by resolution of
the Board of Directors, the register of the Company for the purpose of
registration, exchange or registration of transfer of the Registered Securities
shall be kept at the Corporate Trust Office of the Trustee and, for this
purpose, the Trustee shall be designated "Registrar".
Registered Securities of any series (other than a Global Security,
except as set forth below) may be exchanged for a like aggregate principal
amount of Registered Securities of the same series and tenor of other authorized
denominations. Subject to Section 2.15, Registered Securities to be exchanged
shall be surrendered at the office or agency to be maintained by the Company as
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provided in Section 4.02, and the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor the Registered Security or
Registered Securities which the Holder making the exchange shall be entitled to
receive.
Whenever any Debt Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the Debt
Securities that the Holder making the exchange is entitled to receive.
(b) All Registered Securities presented or surrendered for registration
of transfer, exchange or payment shall (if so required by the Company, the
Trustee or the Registrar) be duly endorsed or be accompanied by a written
instrument or instruments of transfer, in form satisfactory to the Company, the
Trustee and the Registrar, duly executed by the Registered Holder or his
attorney duly authorized in writing.
All Debt Securities issued in exchange for or upon transfer of Debt
Securities shall be the valid obligations of the Company, evidencing the same
debt, and (except as expressly provided otherwise herein) entitled to the same
benefits under this Indenture as the Debt Securities surrendered for such
exchange or transfer.
No service charge shall be made for any exchange or registration of
transfer of Debt Securities (except as provided by Section 2.09), but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto, other than those
expressly provided in this Indenture to be made at the Company's own expense or
without expense or without charge to the Holders.
The Company shall not be required (a) to issue, register the transfer
of or exchange any Debt Securities for a period of 15 days before the day of any
mailing of notice of redemption of Debt Securities of such series or (b) to
register the transfer of or exchange any Debt Securities selected, called or
being called for redemption (except the unredeemed portion of Debt Securities
called for redemption in part).
Section 2.08. Temporary Debt Securities.
Pending the preparation of definitive Debt Securities of any series,
the Company may execute and the Trustee shall authenticate and deliver temporary
Debt Securities (printed, lithographed, photocopied, typewritten or otherwise
produced) of any authorized denomination, and substantially in the form of the
definitive Debt Securities in lieu of which they are issued, in registered form,
and with such omissions, insertions and variations as may be appropriate for
temporary Debt Securities, all as may be determined by the Company with the
concurrence of the Trustee. Temporary Debt Securities may contain such reference
to any provisions of this Indenture as may be appropriate. Every temporary Debt
Security shall be executed by the Company and be authenticated by the Trustee
upon the same conditions and in substantially the same manner, and with like
effect, as the definitive Debt Securities.
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If temporary Debt Securities of any series are issued, the Company will
cause definitive Debt Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Debt Securities of such
series, the temporary Debt Securities of such series may be exchangeable for
definitive Debt Securities of such series upon surrender of the temporary Debt
Securities of such series at the office or agency of the Company at a Place of
Payment for such series, without charge to the Holder thereof, except as
provided in Section 2.07 in connection with a transfer. In addition, upon
surrender for cancellation of any one or more temporary Debt Securities of any
series, the Company shall execute and the Trustee shall authenticate and deliver
in exchange therefor a like principal amount of definitive Debt Securities of
the same series of authorized denominations and of like tenor. Until so
exchanged, temporary Debt Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Debt Securities
of such series.
Section 2.09. Mutilated, Destroyed, Lost or Stolen Debt Securities.
If (i) any mutilated Debt Security is surrendered to the Trustee at the
Corporate Trust Office or (ii) the Company and the Trustee receive evidence to
their satisfaction of the destruction, loss or theft of any Debt Security, and
there is delivered to the Company and the Trustee such security or indemnity as
may be required by them to save each of them and any paying agent harmless, and
neither the Company nor the Trustee receives notice that such Debt Security has
been acquired by a bona fide purchaser or a protected purchaser as defined in
Section 8-303 of the New York Uniform Commercial Code, then the Company shall
execute and, upon a Company Order, the Trustee shall authenticate and deliver,
in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Debt
Security, a new Debt Security of the same series of like tenor, form, terms and
principal amount, bearing a number not contemporaneously Outstanding. Upon the
issuance of any substituted Debt Security, 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 connected therewith. In case
any Debt Security which has matured or is about to mature or which has been
called for redemption shall become mutilated or be destroyed, lost or stolen,
the Company may, instead of issuing a substituted Debt Security, pay or
authorize the payment of the same (without surrender thereof except in the case
of a mutilated Debt Security) if the applicant for such payment shall furnish
the Company and the Trustee with such security or indemnity as either may
require to save it harmless from all risk, however remote, and, in case of
destruction, loss or theft, evidence to the satisfaction of the Company and the
Trustee of the destruction, loss or theft of such Debt Security and of the
ownership thereof.
Every substituted Debt Security of any series issued pursuant to the
provisions of this Section 2.09 by virtue of the fact that any Debt Security is
destroyed, lost or stolen shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Debt
Security shall be found at any time, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other Debt
Securities of that series duly issued hereunder. All Debt Securities shall be
held and owned upon the express condition that the
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foregoing provisions are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Debt Securities, and shall preclude any and
all other rights or remedies, notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
Section 2.10. Cancellation of Surrendered Debt Securities.
All Debt Securities surrendered for payment, redemption, registration
of transfer or exchange shall, if surrendered to the Company or any paying agent
or a Registrar, be delivered to the Trustee for cancellation by it, or if
surrendered to the Trustee, shall be cancelled by it, and no Debt Securities
shall be issued in lieu thereof except as expressly permitted by any of the
provisions of this Indenture. All cancelled Debt Securities held by the Trustee
may be destroyed by the Trustee unless otherwise directed by a Company Order
delivered within five Business Days after such cancellation. If the Company
shall acquire any of the Debt Securities, however, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness represented thereby
unless and until the same are delivered or surrendered to the Trustee for
cancellation.
Section 2.11. Provisions of the Indenture and Debt Securities for the Sole
Benefit of the Parties and the Holders.
Nothing in this Indenture or in the Debt Securities, expressed or
implied, shall give or be construed to give to any Person, other than the
parties hereto, the Holders or any Registrar or paying agent, any legal or
equitable right, remedy or claim under or in respect of this Indenture, or under
any covenant, condition or provision herein contained; all its covenants,
conditions and provisions being for the sole benefit of the parties hereto, the
Holders and any Registrar and paying agents.
Section 2.12. Payment of Interest; Interest Rights Preserved.
(a) Interest on any Registered Security that is payable and is
punctually paid or duly provided for on any interest payment date shall be paid
to the Person in whose name such Registered Security is registered at the close
of business on the regular record date for such interest notwithstanding the
cancellation of such Registered Security upon any transfer or exchange
subsequent to the regular record date. Payment of interest on Registered
Securities shall be made at the Corporate Trust Office of the Trustee (except as
otherwise specified pursuant to Section 2.03), or at the option of the Company,
by check mailed to the address of the Person entitled thereto as such address
shall appear in the Debt Security Register or, if provided pursuant to Section
2.03 and in accordance with arrangements satisfactory to the Trustee, at the
option of the Registered Holder by wire transfer to an account designated by the
Registered Holder.
(b) Subject to the foregoing provisions of this Section 2.12 and
Section 2.17, each Debt Security of a particular series delivered under this
Indenture upon registration of transfer of or in
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exchange for or in lieu of any other Debt Security of the same series shall
carry the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Debt Security.
Section 2.13. Securities Denominated in Foreign Currencies.
(a) Except as otherwise specified pursuant to Section 2.03 for
Registered Securities of any series, payment of the principal of, and premium,
if any, and interest on, Registered Securities of such series will be made in
Dollars.
(b) For the purposes of calculating the principal amount of Debt
Securities of any series denominated in a Foreign Currency for any purpose under
this Indenture, the principal amount of such Debt Securities at any time
Outstanding shall be deemed to be the Dollar Equivalent of such principal amount
as of the date of any such calculation.
In the event any Foreign Currency in which any payment with respect to
any series of Debt Securities may be made ceases to be a freely convertible
Currency on United States Currency markets, for any date thereafter on which
payment of principal of, or premium, if any, or interest on, the Debt Securities
of a series is due, the Company shall select the Currency of payment for use on
such date, all as provided in the Debt Securities of such series. In such event,
the Company shall, as provided in the Debt Securities of such series, notify the
Trustee of the Currency which it has selected to constitute the funds necessary
to meet the Company's obligations on such payment date and of the amount of such
Currency to be paid. Such amount shall be determined as provided in the Debt
Securities of such series. The payment to the Trustee with respect to such
payment date shall be made by the Company solely in the Currency so selected.
Section 2.14. Wire Transfers.
Notwithstanding any other provision to the contrary in this Indenture,
the Company may make any payment of monies required to be deposited with the
Trustee on account of principal of, or premium, if any, or interest on, the Debt
Securities (whether pursuant to optional or mandatory redemption payments,
interest payments or otherwise) by wire transfer in immediately available funds
to an account designated by the Trustee on or before the date such moneys are to
be paid to the Holders of the Debt Securities in accordance with the terms
hereof.
Section 2.15. Securities Issuable in the Form of a Global Security.
(a) If the Company shall establish pursuant to Sections 2.01 and 2.03
that the Debt Securities of a particular series are to be issued in whole or in
part in the form of one or more Global Securities, then the Company shall
execute and the Trustee or its agent shall, in accordance with Section 2.05,
authenticate and deliver, such Global Security or Securities, which (i) shall
represent, and shall be denominated in an amount equal to the aggregate
principal amount of, the Outstanding Debt Securities of such series to be
represented by such Global Security or Securities, or such portion thereof as
the Company shall specify in an Officers' Certificate, (ii) shall be
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registered in the name of the Depositary for such Global Security or Securities
or its nominee, (iii) shall be delivered by the Trustee or its agent to the
Depositary or pursuant to the Depositary's instruction and (iv) shall bear a
legend substantially to the following effect: "Unless and until it is exchanged
in whole or in part for the individual Debt Securities represented hereby, this
Global Security may not be transferred except as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary", or such other
legend as may then be required by the Depositary for such Global Security or
Securities.
(b) Notwithstanding any other provision of this Section 2.15 or of
Section 2.07 to the contrary, and subject to the provisions of paragraph (c)
below, unless the terms of a Global Security expressly permit such Global
Security to be exchanged in whole or in part for definitive Debt Securities in
registered form, a Global Security may be transferred, in whole but not in part
and in the manner provided in Section 2.07, only by the Depositary to a nominee
of the Depositary for such Global Security, or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary, or by the Depositary or a
nominee of the Depositary to a successor Depositary for such Global Security
selected or approved by the Company, or to a nominee of such successor
Depositary.
(c) (i) If at any time the Depositary for a Global Security or
Securities notifies the Company that it is unwilling or unable to continue as
Depositary for such Global Security or Securities or if at any time the
Depositary for the Debt Securities for such series shall no longer be eligible
or in good standing under the Exchange Act or other applicable statute, rule or
regulation, the Company shall appoint a successor Depositary with respect to
such Global Security or Securities. If a successor Depositary for such Global
Security or Securities is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such ineligibility, the Company
shall execute, and the Trustee or its agent, upon receipt of a Company Order for
the authentication and delivery of such individual Debt Securities of such
series in exchange for such Global Security or Securities, will authenticate and
deliver, individual Debt Securities of such series of like tenor and terms in
definitive form in an aggregate principal amount equal to the principal amount
of the Global Security or Securities in exchange for such Global Security or
Securities.
(ii) The Company may at any time and in its sole discretion
determine that the Debt Securities of any series or portion thereof issued or
issuable in the form of one or more Global Securities shall no longer be
represented by such Global Security or Securities. In such event the Company
will execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of individual Debt Securities of such series in
exchange in whole or in part for such Global Security or Securities, will
authenticate and deliver individual Debt Securities of such series of like tenor
and terms in definitive form in an aggregate principal amount equal to the
principal amount of such series or portion thereof in exchange for such Global
Security or Securities.
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(iii) If specified by the Company pursuant to Sections 2.01
and 2.03 with respect to Debt Securities issued or issuable in the form of a
Global Security, the Depositary for such Global Security may surrender such
Global Security in exchange in whole or in part for individual Debt Securities
of such series of like tenor and terms in definitive form on such terms as are
acceptable to the Company, the Trustee and such Depositary. Thereupon the
Company shall execute, and the Trustee or its agent upon receipt of a Company
Order for the authentication and delivery of definitive Debt Securities of such
series shall authenticate and deliver, without service charge, (1) to each
Person specified by such Depositary a new Debt Security or Securities of the
same series of like tenor and terms and of any authorized denomination as
requested by such Person in aggregate principal amount equal to and in exchange
for such Person's beneficial interest in the Global Security; and (2) to such
Depositary a new Global Security of like tenor and terms and in an authorized
denomination equal to the difference, if any, between the principal amount of
the surrendered Global Security and the aggregate principal amount of Debt
Securities delivered to Holders thereof.
(iv) In any exchange provided for in any of the preceding
three paragraphs, the Company will execute and the Trustee or its agent will
authenticate and deliver individual Debt Securities. Upon the exchange of the
entire principal amount of a Global Security for individual Debt Securities,
such Global Security shall be cancelled by the Trustee or its agent. Except as
provided in the preceding paragraph, Registered Securities issued in exchange
for a Global Security pursuant to this Section 2.15 shall be registered in such
names and in such authorized denominations as the Depositary for such Global
Security, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee or the Registrar. The Trustee or the
Registrar shall deliver such Registered Securities to the Persons in whose names
such Registered Securities are so registered.
(v) Payments in respect of the principal of and interest on
any Debt Securities registered in the name of the Depositary or its nominee will
be payable to the Depositary or such nominee in its capacity as the registered
owner of such Global Security. The Company and the Trustee may treat the Person
in whose names the Debt Securities, including the Global Security, are
registered as the owner thereof for the purpose of receiving such payments and
for any and all other purposes whatsoever. None of the Company, the Trustee, any
Registrar, the paying agent or any agent of the Company or the Trustee will have
any responsibility or liability for (a) any aspect of the records relating to or
payments made on account of the beneficial ownership interests of the Global
Security by the Depositary or its nominee or any of the Depositary's direct or
indirect participants, or for maintaining, supervising or reviewing any records
of the Depositary, its nominee or any of its direct or indirect participants
relating to the beneficial ownership interests of the Global Security, (b) the
payments to the beneficial owners of the Global Security of amounts paid to the
Depositary or its nominee, or (c) any other matter relating to the actions and
practices of the Depositary, its nominee or any of its direct or indirect
participants. None of the Company, the Trustee or any such agent will be liable
for any delay by the Depositary, its nominee, or any of its direct or indirect
participants in identifying the beneficial owners of the Debt Securities, and
the Company and the Trustee may conclusively rely on, and will be protected in
relying on,
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instructions from the Depositary or its nominee for all purposes (including with
respect to the registration and delivery, and the respective principal amounts,
of the Debt Securities to be issued).
Section 2.16. Medium Term Securities.
Notwithstanding any contrary provision herein, if all Debt Securities
of a series are not to be originally issued at one time, it shall not be
necessary for the Company to deliver to the Trustee an Officers' Certificate,
resolutions of the Board of Directors, supplemental Indenture, Opinion of
Counsel or Company Order or any other document otherwise required pursuant to
Section 2.01, 2.03, 2.05 or 13.05 at or prior to the time of authentication of
each Debt Security of such series if such documents are delivered to the Trustee
or its agent at or prior to the authentication upon original issuance of the
first such Debt Security of such series to be issued; provided, however, that
any subsequent request by the Company to the Trustee to authenticate Debt
Securities of such series upon original issuance shall constitute a
representation and warranty by the Company that, as of the date of such request,
the statements made in the Officers' Certificate delivered pursuant to Section
2.05 or 13.05 shall be true and correct as if made on such date; provided
further, however, that, with respect to Debt Securities of a series which are
not to be issued at one time, the Trustee shall be entitled to such Opinion of
Counsel only once at or prior to the time of the first authentication of Debt
Securities of such series and the Opinion of Counsel described above shall
state:
(a) that, when the terms of such Debt Securities shall have
been established pursuant to a Company Order or pursuant to such
procedures as may be specified from time to time by a Company Order,
such terms will have been established in conformity with the provisions
of this Indenture;
(b) that such Debt Securities, when (i) executed by the
Company, (ii) completed, authenticated and made available for delivery
by the Trustee in accordance with this Indenture, (iii) issued and
delivered by the Company and (iv) paid for, all as contemplated by and
in accordance with the aforesaid Company Order or specified procedures,
as the case may be, will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their terms,
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance or similar laws affecting the
enforcement of creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability; and
(c) and the other matters required by Section 2.05(4)(a), (d),
(e) and (f).
A Company Order delivered by the Company to the Trustee in the
circumstances set forth in the preceding paragraph, may provide that Debt
Securities which are the subject thereof will be authenticated and delivered by
the Trustee or its agent on original issue from time to time upon the telephonic
or written order of Persons designated in such written order (any such
telephonic
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instructions to be promptly confirmed in writing by such Person) and that such
Persons are authorized to determine, consistent with the Officers' Certificate,
supplemental Indenture or resolution of the Board of Directors relating to such
written order, such terms and conditions of such Debt Securities as are
specified in such Officers' Certificate, supplemental Indenture or such
resolution.
Notwithstanding any contrary provision herein, if all Debt Securities
of a series are not to be originally issued at one time, any Officers'
Certificate required to be delivered pursuant to Section 2.03 need not set forth
all of the terms of the Debt Securities required to be established pursuant to
Section 2.03, but need set forth only the manner in which such terms shall be
established.
Section 2.17. Defaulted Interest.
Any interest on any Debt Security of a particular series which is
payable, but is not punctually paid or duly provided for, on the dates and in
the manner provided in the Debt Securities of such series and in this Indenture
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Registered Holder thereof on the relevant record date by virtue of having been
such Registered Holder, and such Defaulted Interest may be paid by the Company,
at its election in each case, as provided in clause (i) or (ii) below:
(i) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of
such series are registered at the close of business on a special record
date for the payment of such Defaulted Interest, which shall be fixed
in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
such Registered Security of such series and the date of the proposed
payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a special record date
for the payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the Company of such special record date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the special record date therefor to be
mailed, first class postage pre-paid, to each Holder thereof at its
address as it appears in the Security Register, not less than 10 days
prior to such special record date. Notice of the proposed payment of
such Defaulted Interest and the special record date therefor having
been so mailed, such Defaulted Interest shall be paid to the Persons in
whose names the Registered Securities of such series are registered at
the close of business on such special record date.
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(ii) The Company may make payment of any Defaulted Interest on
the Registered Securities of such series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
the Registered Securities of such series 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, such manner of payment shall be deemed practicable by the
Trustee.
Section 2.18. Judgments.
The Company may provide pursuant to Section 2.03 for Debt Securities of
any series that (a) the obligation, if any, of the Company to pay the principal
of, and premium, if any, and interest on, the Debt Securities of such series in
a Foreign Currency or Dollars (the "Designated Currency") as may be specified
pursuant to Section 2.03 is of the essence and agrees that, to the fullest
extent possible under applicable law, judgments in respect of Debt Securities of
such series shall be given in the Designated Currency; (b) the obligation of the
Company to make payments in the Designated Currency of the principal of, and
premium, if any, and interest on, such Debt Securities shall, notwithstanding
any payment in any other Currency (whether pursuant to a judgment or otherwise),
be discharged only to the extent of the amount in the Designated Currency that
the Holder receiving such payment may, in accordance with normal banking
procedures, purchase with the sum paid in such other Currency (after any premium
and cost of exchange) on the Business Day in the country of issue of the
Designated Currency or in the international banking community (in the case of a
composite currency) immediately following the day on which such Holder receives
such payment; (c) if the amount in the Designated Currency that may be so
purchased for any reason falls short of the amount originally due, the Company
shall pay such additional amounts as may be necessary to compensate for such
shortfall; and (d) any obligation of the Company not discharged by such payment
shall be due as a separate and independent obligation and, until discharged as
provided herein, shall continue in full force and effect.
ARTICLE III
REDEMPTION OF DEBT SECURITIES
Section 3.01. Applicability of Article.
The provisions of this Article shall be applicable to the Debt
Securities of any series which are redeemable before their Stated Maturity
except as otherwise specified as contemplated by Section 2.03 for Debt
Securities of such series.
Section 3.02. [Reserved.]
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Section 3.03. Notice of Redemption; Selection of Debt Securities.
In case the Company shall desire to exercise the right to redeem all
or, as the case may be, any part of the Debt Securities of any series in
accordance with their terms, the Company shall fix a date for redemption and
shall, in the manner provided in Section 13.03, give notice of such redemption
at least 30 and not more than 60 days prior to the date fixed for redemption to
the Holders of Debt Securities of such series so to be redeemed as a whole or in
part. The notice if given in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the Holder receives such
notice. In any case, failure to give such notice or any defect in the notice to
the Holder of any Debt Security of a series designated for redemption as a whole
or in part shall not affect the validity of the proceedings for the redemption
of any other Debt Security of such series.
Each such notice of redemption shall specify (i) the date fixed for
redemption; (ii) the redemption price at which Debt Securities of such series
are to be redeemed; (iii) the Place or Places of Payment that payment will be
made upon presentation and surrender of such Debt Securities; (iv) that any
interest accrued to the date fixed for redemption will be paid as specified in
said notice; (v) that the redemption is for a sinking fund payment (if
applicable); (vi) that, unless the Company defaults in making such redemption
payment, on and after said date any interest thereon or on the portions thereof
to be redeemed will cease to accrue and in the case of Original Issue Discount
Securities original issue discount will cease to accrue; (vii) the terms of the
Debt Securities of that series pursuant to which the Debt Securities of that
series are being redeemed and that no representation is made as to the
correctness or accuracy of the CUSIP number, if any, listed in such notice or
printed on the Debt Securities of that series; and (viii) if less than all the
Outstanding Debt Securities of any series and tenor are to be redeemed, the
identification (and, in the case of partial redemption, the principal amounts)
of the particular Debt Securities to be redeemed. If less than all the Debt
Securities of a series are to be redeemed the notice of redemption shall specify
the CUSIP numbers of the Debt Securities of that series to be redeemed. In case
any Debt Security of a series is to be redeemed in part only, the notice of
redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed for redemption, upon
surrender of such Debt Security, a new Debt Security or Debt Securities of that
series in principal amount equal to the unredeemed portion thereof will be
issued.
At least 60 days before the redemption date, unless the Trustee
consents to a shorter period, the Company shall give notice to the Trustee of
the redemption date, the principal amount of Debt Securities to be redeemed and
the series and terms of the Debt Securities pursuant to which such redemption
will occur. Such notice shall be accompanied by an Officers' Certificate and an
Opinion of Counsel from the Company to the effect that such redemption will
comply with the conditions herein.
On or prior to the redemption date for any Registered Securities, the
Company shall deposit with the Trustee or with a paying agent (or, if the
Company is acting as its own paying agent, segregate and hold in trust) an
amount of money in the Currency in which such Debt Securities are
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denominated (except as provided pursuant to Section 2.03) sufficient to pay the
redemption price of such Registered Securities or any portions thereof that are
to be redeemed on that date.
If less than all the Debt Securities of a series are to be redeemed
(other than pursuant to sinking fund redemptions) the Trustee shall select the
Debt Securities of that series or portions thereof (in multiples of $1,000) to
be redeemed by lot or by such other method as the Trustee considers fair and
appropriate. In any case where more than one Registered Security of such series
is registered in the same name, the Trustee in its discretion may treat the
aggregate principal amount so registered as if it were represented by one
Registered Security of such series. The Trustee shall promptly notify the
Company in writing of the Debt Securities selected for redemption and, in the
case of any Debt Securities selected for partial redemption, the principal
amount thereof to be redeemed. If any Debt Security called for redemption shall
not be so paid upon surrender thereof on such redemption date, the principal,
premium, if any, and interest shall bear interest until paid from the redemption
date at the rate borne or provided for by the Debt Securities of that series.
Provisions of this Indenture that apply to Debt Securities called for redemption
also apply to portions of Debt Securities called for redemption.
Section 3.04. Payment of Debt Securities Called for Redemption.
If notice of redemption has been given as provided in Section 3.03, the
Debt Securities or portions of Debt Securities of the series with respect to
which such notice has been given shall become due and payable on the date and at
the Place or Places of Payment stated in such notice at the applicable
redemption price, together with any interest accrued to the date fixed for
redemption, and on and after said date (unless the Company shall default in the
payment of such Debt Securities at the applicable redemption price, together
with any interest accrued to said date) any interest on such Debt Securities or
portions of such Debt Securities so called for redemption shall cease to accrue
and any original issue discount in the case of Original Issue Discount
Securities shall cease to accrue. On presentation and surrender of such Debt
Securities at the Place or Places of Payment in said notice specified, the said
Debt Securities or the specified portions thereof shall be paid and redeemed by
the Company at the applicable redemption price, together with any interest
accrued thereon to the date fixed for redemption.
Any Debt Security that is to be redeemed only in part shall be
surrendered at the Corporate Trust Office of the Trustee or such other office or
agency of the Company as is specified pursuant to Section 2.03 with, if the
Company, the Registrar or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company, the
Registrar 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 Debt Security without service
charge, a new Debt Security or Debt Securities of the same series, of like tenor
and form, of any authorized denomination as requested by such Holder in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Debt Security so surrendered; except that, if a Global
Security is so surrendered, the Company shall execute, and the Trustee shall
authenticate and deliver to the Depositary for such Global Security, without
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service charge, a new Global Security in a denomination equal to and in exchange
for the unredeemed portion of the principal of the Global Security so
surrendered.
Section 3.05. Mandatory and Optional Sinking Funds.
The minimum amount of any sinking fund payment provided for by the
terms of Debt Securities of any series, resolution of the Board of Directors or
a supplemental Indenture 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 Debt Securities of any series, resolution of the Board of Directors or
a supplemental Indenture is herein referred to as an "optional sinking fund
payment".
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any Debt Securities of a series in cash, the Company may at its
option (a) deliver to the Trustee Debt Securities of that series theretofore
purchased or otherwise acquired by the Company or (b) receive credit for the
principal amount of Debt Securities of that series which have been redeemed
either at the election of the Company pursuant to the terms of such Debt
Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Debt Securities, resolution or
supplemental Indenture; provided, that such Debt Securities have not been
previously so credited. Such Debt Securities shall be received and credited for
such purpose by the Trustee at the redemption price specified in such Debt
Securities, resolution or supplemental Indenture for redemption through
operation of the sinking fund and the amount of such mandatory sinking fund
payment shall be reduced accordingly.
Section 3.06. Redemption of Debt Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Debt Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, any resolution or supplemental
Indenture, the portion thereof, if any, which is to be satisfied by payment of
cash in the Currency in which the Debt Securities of such series are denominated
(except as provided pursuant to Section 2.03) and the portion thereof, if any,
which is to be satisfied by delivering and crediting Debt Securities of that
series pursuant to this Section 3.06 (which Debt Securities, if not previously
redeemed, will accompany such certificate), the basis for such credit, that such
Debt Securities have not previously been so credited and whether the Company
intends to exercise its right to make any permitted optional sinking fund
payment with respect to such series. Such certificate shall also state that no
Event of Default has occurred and is continuing with respect to such series.
Such certificate shall be irrevocable and upon its delivery the Company shall be
obligated to make the cash payment or payments therein referred to, if any, on
or before the next succeeding sinking fund payment date. Failure of the Company
to deliver such certificate (or to deliver the Debt Securities specified in this
paragraph) shall not constitute a Default, but such failure shall require that
the sinking fund payment due on the next succeeding sinking fund payment date
for that series shall be paid entirely in cash and shall be sufficient to redeem
the principal amount of such Debt Securities subject to a mandatory sinking fund
payment without the
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option to deliver or credit Debt Securities as provided in this Section 3.06 and
without the right to make any optional sinking fund payment, if any, with
respect to such series.
Any sinking fund payment or payments (mandatory or optional) made in
cash plus any unused balance of any preceding sinking fund payments made in cash
which shall equal or exceed $100,000 (or a lesser sum if the Company shall so
request) with respect to the Debt Securities of any particular series shall be
applied by the Trustee on the sinking fund payment date on which such payment is
made (or, if such payment is made before a sinking fund payment date, on the
sinking fund payment date following the date of such payment) to the redemption
of such Debt Securities at the Redemption Price specified in such Debt
Securities, resolution or supplemental Indenture for operation of the sinking
fund together with any accrued interest to the date fixed for redemption. Any
sinking fund moneys not so applied or allocated by the Trustee to the redemption
of Debt Securities shall be added to the next cash sinking fund payment received
by the Trustee for such series and, together with such payment, shall be applied
in accordance with the provisions of this Section 3.06. Any and all sinking fund
moneys with respect to the Debt Securities of any particular series held by the
Trustee on the last sinking fund payment date with respect to Debt Securities of
such series and not held for the payment or redemption of particular Debt
Securities shall be applied by the Trustee, together with other moneys, if
necessary, to be deposited sufficient for the purpose, to the payment of the
principal of the Debt Securities of that series at its Stated Maturity.
The Trustee shall select the Debt Securities to be redeemed upon such
sinking fund payment date in the manner specified in the last paragraph of
Section 3.03 and the Company shall cause notice of the redemption thereof to be
given in the manner provided in Section 3.03 except that the notice of
redemption shall also state that the Debt Securities are being redeemed by
operation of the sinking fund. Such notice having been duly given, the
redemption of such Debt Securities shall be made upon the terms and in the
manner stated in Section 3.04.
On or prior to each sinking fund payment date, the Company shall pay to
the Trustee (or, if the Company is acting as its own paying agent, the Company
shall segregate and hold in trust) in cash a sum in the Currency in which the
Debt Securities of such series are denominated (except as provided pursuant to
Section 2.03) equal to any interest accrued to the date fixed for redemption of
Debt Securities or portions thereof to be redeemed on such sinking fund payment
date pursuant to this Section 3.06.
The Trustee shall not redeem any Debt Securities of a series with
sinking fund moneys or mail any notice of redemption of such Debt Securities by
operation of the sinking fund for such series during the continuance of a
Default in payment of interest on such Debt Securities or of any Event of
Default (other than an Event of Default occurring as a consequence of this
paragraph) with respect to such Debt Securities, except that if the notice of
redemption of any such Debt Securities shall theretofore have been mailed in
accordance with the provisions hereof, the Trustee shall redeem such Debt
Securities if cash sufficient for that purpose shall be deposited with the
Trustee for that purpose in accordance with the terms of this Article III.
Except as aforesaid, any moneys in
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the sinking fund for such series at the time when any such Default or Event of
Default shall occur and any moneys thereafter paid into such sinking fund shall,
during the continuance of such Default or Event of Default, be held as security
for the payment of such Debt Securities; provided, however, that in case such
Event of Default or Default shall have been cured or waived as provided herein,
such moneys shall thereafter be applied on the next sinking fund payment date
for such Debt Securities on which such moneys may be applied pursuant to the
provisions of this Section 3.06.
ARTICLE IV
PARTICULAR COVENANTS OF THE COMPANY
Section 4.01. Payment of Principal of, and Premium, if any, and Interest on,
Debt Securities.
The Company, for the benefit of each series of Debt Securities, will
duly and punctually pay or cause to be paid the principal of, and premium, if
any, and interest on, each of the Debt Securities at the place, at the
respective times and in the manner provided herein and in the Debt Securities.
Each installment of interest on the Debt Securities may at the Company's option
be paid by mailing checks for such interest payable to the Person entitled
thereto pursuant to Section 2.07(a) to the address of such Person as it appears
on the Debt Security Register or, if provided pursuant to Section 2.03 and in
accordance with arrangements satisfactory to the Trustee, at the option of the
Registered Holder by wire transfer to an account designated by the Registered
Holder.
Principal, premium and interest of Debt Securities of any series shall
be considered paid on the date due if on such date the Trustee or any paying
agent holds in accordance with this Indenture money sufficient to pay in the
Currency in which the Debt Securities of such series are denominated (except as
provided pursuant to Section 2.03) all principal, premium and interest then due.
The Company shall pay interest on overdue principal at the rate
specified therefor in the Debt Securities and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
Section 4.02. Maintenance of Offices or Agencies for Registration of
Transfer, Exchange and Payment of Debt Securities.
The Company will maintain in each Place of Payment for any series of
Debt Securities an office or agency where Debt Securities of such series may be
presented or surrendered for payment, where Debt Securities of such series may
be surrendered for transfer or exchange and where notices and demands to or upon
the Company in respect of the Debt Securities of such series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of 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
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address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all presentations, surrenders,
notices and demands.
The Company may also from time to time designate different or
additional offices or agencies to be maintained for such purposes (in or outside
of such Place of Payment), and may from time to time rescind any such
designation; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligations described in the preceding
paragraph. The Company will give prompt written notice to the Trustee of any
such additional designation or rescission of designation and any change in the
location of any such different or additional office or agency.
Section 4.03. Appointment to Fill a Vacancy in the Office of Trustee.
The Company, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section 7.08, a
Trustee, so that there shall at all times be a Trustee hereunder with respect to
each series of Debt Securities.
Section 4.04. Duties of Paying Agents, etc.
(a) The Company shall cause each paying agent, if any, other than the
Trustee, to execute and deliver to the Trustee an instrument in which such agent
shall agree with the Trustee, subject to the provisions of this Section 4.04,
(i) that it will hold all sums held by it as such agent for
the payment of the principal of, and premium, if any, or interest on,
the Debt Securities of any series (whether such sums have been paid to
it by the Company or by any other obligor on the Debt Securities of
such series) in trust for the benefit of the Holders of the Debt
Securities of such series;
(ii) that it will give the Trustee notice of any failure by
the Company (or by any other obligor on the Debt Securities of such
series) to make any payment of the principal of, and premium, if any,
or interest on, the Debt Securities of such series when the same shall
be due and payable; and
(iii) that it will at any time during the continuance of an
Event of Default, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held by it as such agent.
(b) If the Company shall act as its own paying agent with respect to
any series of Debt Securities, it will, on or before each due date of the
principal of, and premium, if any, or interest on, the Debt Securities of such
series, set aside, segregate and hold in trust for the benefit of the Holders of
the Debt Securities of such series a sum sufficient to pay such principal,
premium, if
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any, or interest so becoming due. The Company will promptly notify the Trustee
of any failure by the Company to take such action or the failure by any other
obligor on such Debt Securities to make any payment of the principal of, and
premium, if any, or interest on, such Debt Securities when the same shall be due
and payable.
(c) Anything in this Section 4.04 to the contrary notwithstanding, the
Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust by it or any paying agent, as required by
this Section 4.04, such sums to be held by the Trustee upon the same trusts as
those upon which such sums were held by the Company or such paying agent and,
upon such payment by any paying agent to the Trustee, such paying agent shall be
released from all further liability with respect to such money.
(d) Whenever the Company shall have one or more paying agents with
respect to any series of Debt Securities, it will, on each due date of the
principal of, and premium, if any, or interest on, any Debt Securities of such
series, deposit with any such paying agent a sum sufficient to pay the
principal, premium or interest so becoming due, such sum to be held in trust for
the benefit of the Persons entitled thereto, and (unless any such paying agent
is the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
(e) Anything in this Section 4.04 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 4.04 is subject to
the provisions of Section 11.05.
Section 4.05. Statement by Officers as to Default.
The Company will deliver to the Trustee, on or before a date not more
than four months after the end of each fiscal year of the Company (currently on
a calendar year basis) ending after the date hereof, an Officers' Certificate
(which need not comply with the requirements of Section 13.05) stating, as to
each officer signing such certificate (one of which officers shall be the
principal executive officer, principal financial officer or principal accounting
officer of the Company), that (i) in the course of his performance of his duties
as an officer of the Company he would normally have knowledge of any Default,
(ii) whether or not to the best of his knowledge any Default occurred during
such year and (iii) if to the best of his knowledge the Company is in Default,
specifying all such Defaults and what action the Company is taking or proposes
to take with respect thereto. The Company also shall comply with Section
314(a)(4) of the Trust Indenture Act.
Section 4.06. Existence.
Subject to Article X, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the
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conduct of the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Holders.
ARTICLE V
HOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
Section 5.01. Company to Furnish Trustee Information as to Names and
Addresses of Holders; Preservation of Information.
The Company covenants and agrees that it will furnish or cause to be
furnished to the Trustee with respect to the Registered Securities of each
series:
(a) not more than 15 days after each record date with respect
to the payment of interest, if any, a list, in such form as the Trustee
may reasonably require, of the names and addresses of the Registered
Holders as of such record date, and
(b) 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 contents as of a date not more than 15 days
prior to the time such list is furnished;
provided, however, that, so long as the Trustee shall be the Registrar, such
lists shall not be required to be furnished.
The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders (1)
contained in the most recent list furnished to it as provided in this Section
5.01 or (2) received by it in the capacity of paying agent or Registrar (if so
acting) hereunder.
The Trustee may destroy any list furnished to it as provided in this
Section 5.01 upon receipt of a new list so furnished.
Section 5.02. Communications to Holders.
Holders may communicate pursuant to Section 312(b) of the Trust
Indenture Act with other Holders with respect to their rights under this
Indenture or the Debt Securities. The Company, the Trustee, the Registrar and
anyone else shall have the protection of Section 312(c) of the Trust Indenture
Act.
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Section 5.03. Reports by the Company.
(a) The Company covenants and agrees to file with the Trustee, within
15 days after the Company is required to file the same with the Securities and
Exchange 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 said Commission may from time to time by rules and regulations prescribe)
which the Company may be required to file with said Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not
required to file information, documents or reports pursuant to either of such
Sections, then to file with the Trustee and said Commission, in accordance with
rules and regulations prescribed from time to time by said Commission, such of
the supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Exchange Act in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations.
(b) The Company covenants and agrees to file with the Trustee and the
Securities and Exchange Commission, in accordance with the rules and regulations
prescribed from time to time by said Commission, such additional information,
documents, and reports with respect to compliance by the Company with the
conditions and covenants provided for in this Indenture as may be required from
time to time by such rules and regulations.
(c) Delivery of such reports, information and documents to the Trustee
is for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
Section 5.04. Reports by the Trustee.
As promptly as practicable after each May 15 beginning with the May 15
following the date of this Indenture, and in any event prior to July 15 in each
year, the Trustee shall mail to each Holder a brief report dated as of such May
15 that complies with Section 313(a) of the Trust Indenture Act if and to the
extent required by such section. The Trustee also shall comply with Section
313(b) of the Trust Indenture Act.
Reports pursuant to this Section 5.04 shall be transmitted by mail:
(1) to all Registered Holders, as the names and addresses of
such Holders appear in the Debt Security Register;
(2) except in the case of reports under Section 313(b)(2) of
the Trust Indenture Act, to each Holder of a Debt Security of any
series whose name and address appear in the information preserved at
the time by the Trustee in accordance with Section 5.02.
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A copy of each report at the time of its mailing to Holders shall be
filed with the Securities and Exchange Commission and each stock exchange (if
any) on which the Debt Securities of any series are listed. The Company agrees
to notify promptly the Trustee whenever the Debt Securities of any series become
listed on any stock exchange and of any delisting thereof.
ARTICLE VI
REMEDIES OF THE TRUSTEE AND HOLDERS IN EVENT OF DEFAULT
Section 6.01. Events of Default.
If any one or more of the following shall have occurred and be
continuing with respect to Debt Securities of any series (each of the following,
an "Event of Default"):
(a) default in the payment of any installment of interest upon
any Debt Securities of that series, as and when the same shall become
due and payable, and continuance of such default for a period of 30
days; or
(b) default in the payment of the principal of or premium, if
any, on any Debt Securities of that series, as and when the same shall
become due and payable, whether at maturity, upon redemption, by
declaration, upon required repurchase or otherwise; or
(c) default in the payment of any sinking fund payment with
respect to any Debt Securities of that series, as and when the same
shall become due and payable, and continuance of such default for a
period of 30 days; or
(d) failure on the part of the Company to comply with Article
X; or
(e) failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on the part of the
Company in the Debt Securities of that series, in this Indenture with
respect to such series or in any supplemental Indenture with respect to
such series (other than covenants or agreements included solely by or
for the benefit of a series of Debt Securities thereunder other than
that Series), continuing for a period of 90 days after the date on
which written notice specifying such failure and requiring the Company
to remedy the same and stating that such notice is a "Notice of
Default" hereunder 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 aggregate principal amount of the
Debt Securities of that series at the time Outstanding; or
(f) the Company or any of its Significant Subsidiaries shall
(i) voluntarily commence any proceeding or file any petition seeking
relief under Title 11 of the United States Code or any other Federal or
State bankruptcy, insolvency or similar law, (ii) consent
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to the institution of, or fail to controvert within the time and in the
manner prescribed by law, any such proceeding or the filing of any such
petition, (iii) apply for or consent to the appointment of a receiver,
trustee, custodian, sequestrator or similar official for the Company or
any such Significant Subsidiary or for a substantial part of its
property, (iv) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors, (vi) admit in writing its
inability or fail generally to pay its debts as they become due, (vii)
take corporate action for the purpose of effecting any of the
foregoing, or (viii) take any comparable action under any foreign laws
relating to insolvency of the Company or any Significant Subsidiary; or
(g) the entry of an order or decree by a court having
competent jurisdiction in the premises for (i) relief in respect of the
Company or any of its Significant Subsidiaries or a substantial part of
any of their property under Title 11 of the United States Code or any
other Federal or State bankruptcy, insolvency or similar law, (ii) the
appointment of a receiver, trustee, custodian, sequestrator or similar
official for the Company or any such Significant Subsidiary or for a
substantial part of any of their property (except any decree or order
appointing such official of any Significant Subsidiary pursuant to a
plan under which the assets and operations of such Significant
Subsidiary are transferred to or combined with another Subsidiary or
Subsidiaries of the Company or to the Company) or (iii) the winding-up
or liquidation of the Company or any such Significant Subsidiary
(except any decree or order approving or ordering the winding up or
liquidation of the affairs of a Significant Subsidiary pursuant to a
plan under which the assets and operations of such Significant
Subsidiary are transferred to or combined with another Subsidiary or
Subsidiaries of the Company or to the Company); and such order or
decree shall continue unstayed and in effect for 60 consecutive days;
or any similar relief is granted under any foreign laws and the order
or decree stays in effect for 60 consecutive days; or
(h) any other Event of Default provided with respect to Debt
Securities of that series;
then and in each and every case that an Event of Default described in clause
(a), (b), (c), (d), (e), (f) (other than with respect to the Company), (g)
(other than with respect to the Company) or (h) with respect to Debt Securities
of that series at the time Outstanding occurs and is continuing, unless the
principal of and interest on all the Debt Securities of that series shall have
already become due and payable, either the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Debt Securities of that series
(each such series voting as a separate class) then Outstanding hereunder, by
notice in writing to the Company (and to the Trustee if given by Holders), may
declare the principal of (or, if the Debt Securities of that series are Original
Issue Discount Debt Securities, such portion of the principal amount as may be
specified in the terms of that series) and interest on all the Debt Securities
of that series to be due and payable immediately, and upon any such declaration
the same shall become and shall be immediately due and payable, anything in this
Indenture or in the Debt Securities of that series contained to the contrary
notwithstanding. If an Event of Default described in clause (f) or (g) (in each
case with respect to the Company) occurs,
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then and in each and every such case, unless the principal of and interest on
all the Debt Securities shall have become due and payable, the principal of (or,
if any Debt Securities are Original Issue Discount Debt Securities, such portion
of the principal amount as may be specified in the terms thereto) and interest
on all the Debt Securities then Outstanding hereunder shall ipso facto become
and be immediately due and payable without any declaration or other act on the
part of the Trustee or any Holders, anything in this Indenture or in the Debt
Securities contained to the contrary notwithstanding.
The Holders of a majority in principal amount of the Debt Securities of
a particular series by notice to the Trustee may rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree
already rendered and if all existing Events of Default have been cured or waived
except nonpayment of principal or interest that has become due solely because of
acceleration. Upon any such rescission, the parties hereto shall be restored
respectively to their several positions and rights hereunder, and all rights,
remedies and powers of the parties hereto shall continue as though no such
proceeding had been taken.
In case the Trustee or any Holder shall have proceeded to enforce any
right under this Indenture and such proceedings shall have been discontinued or
abandoned because of such rescission or annulment or for any other reason or
shall have been determined adversely to the Trustee or such Holder, then and in
every such case the parties hereto shall be restored respectively to their
several positions and rights hereunder, and all rights, remedies and powers of
the parties hereto shall continue as though no such proceeding had been taken.
The foregoing Events of Default shall constitute Events of Default
whatever the reason for any such Event of Default and whether it is voluntary or
involuntary or is 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.
The Company shall deliver to the Trustee promptly after the occurrence
thereof, written notice in the form of an Officers' Certificate of any event
which with the giving of notice and the lapse of time would become an Event of
Default under clause (d), (e) or (h), its status and what action the Company is
taking or proposes to take with respect thereto.
Section 6.02. Collection of Indebtedness by Trustee, etc.
If an Event of Default occurs and is continuing, the Trustee, in its
own name and as trustee of an express trust, shall be entitled and empowered to
institute any action or proceedings at law or in equity for the collection of
the sums so due and unpaid or enforce the performance of any provision of the
Debt Securities of the affected series or this Indenture, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Company or any other obligor upon the Debt
Securities of such series (and collect in the manner provided by law out of the
property of the Company or any other obligor
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upon the Debt Securities of such series wherever situated the moneys adjudged or
decreed to be payable).
In case there shall be pending proceedings for the bankruptcy or for
the reorganization of the Company or any other obligor upon the Debt Securities
of any series under Title 11 of the United States Code or any other Federal or
State bankruptcy, insolvency or similar law, or in case a receiver, trustee or
other similar official shall have been appointed for its property, or in case of
any other similar judicial proceedings relative to the Company upon the Debt
Securities of any series, its creditors or its property, the Trustee,
irrespective of whether the principal of Debt Securities of any series shall
then be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand pursuant to the
provisions of this Section 6.02, shall be entitled and empowered, by
intervention in such proceedings or otherwise, to file and prove a claim or
claims for the whole amount of principal, premium, if any, and interest (or, if
the Debt Securities of such series are Original Issue Discount Debt Securities,
such portion of the principal amount as may be specified in the terms of such
series) owing and unpaid in respect of the Debt Securities of such series, and
to file such other papers or documents as may be necessary or advisable in order
to have the claims of the Trustee (including any claim for reasonable
compensation to the Trustee, its agents, attorneys and counsel, and for
reimbursement of all expenses and liabilities incurred, and all advances made,
by the Trustee except as a result of its negligence or bad faith) and of the
Holders thereof allowed in any such judicial proceedings relative to the Company
upon the Debt Securities of such series, its creditors or its property, and to
collect and receive any moneys or other property payable or deliverable on any
such claims, and to distribute all amounts received with respect to the claims
of such Holders and of the Trustee on their behalf, and any receiver, assignee
or trustee in bankruptcy or reorganization is hereby authorized by each of such
Holders to make payments to the Trustee, and, in the event that the Trustee
shall consent to the making of payments directly to such Holders, to pay to the
Trustee such amount as shall be sufficient to cover reasonable compensation to
the Trustee, its agents, attorneys and counsel, and all other reasonable
expenses and liabilities incurred, and all advances made, by the Trustee except
as a result of its negligence or bad faith.
All rights of action and of asserting claims under this Indenture, or
under any of the Debt Securities of any series, may be enforced by the Trustee
without the possession of any such Debt Securities, or the production thereof in
any trial or other proceedings relative thereto, and any such action or
proceedings instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment (except for any
amounts payable to the Trustee pursuant to Section 7.06) shall be for the
ratable benefit of the Holders of all the Debt Securities in respect of which
such action was taken.
In case of an Event of Default hereunder the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this
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Indenture, or to enforce any other legal or equitable right vested in the
Trustee by this Indenture or by law.
Section 6.03. Application of Moneys Collected by Trustee.
Any moneys or other property collected by the Trustee pursuant to
Section 6.02 with respect to Debt Securities of any series shall be applied in
the order following, at the date or dates fixed by the Trustee for the
distribution of such moneys or other property, upon presentation of the several
Debt Securities of such series in respect of which moneys or other property have
been collected, and the notation thereon of the payment, if only partially paid,
and upon surrender thereof if fully paid:
FIRST: To the payment of all money due the Trustee pursuant to
Section 7.06;
SECOND: Subject to Article XII, in case the principal of the
Outstanding Debt Securities in respect of which such moneys have been
collected shall not have become due, to the payment of interest on the
Debt Securities of such series in the order of the maturity of the
installments of such interest, with interest (to the extent that such
interest has been collected by the Trustee) upon the overdue
installments of interest at the rate or Yield to Maturity (in the case
of Original Issue Discount Debt Securities) borne by the Debt
Securities of such series, such payments to be made ratably to the
Persons entitled thereto, without discrimination or preference;
THIRD: Subject to Article XII, in case the principal of the
Outstanding Debt Securities in respect of which such moneys have been
collected shall have become due, by declaration or otherwise, to the
payment of the whole amount then owing and unpaid upon the Debt
Securities of such series for principal and premium, if any, and
interest, with interest on the overdue principal and premium, if any,
and (to the extent that such interest has been collected by the
Trustee) upon overdue installments of interest at the rate or Yield to
Maturity (in the case of Original Issue Discount Debt Securities) borne
by the Debt Securities of such series; and, in case such moneys shall
be insufficient to pay in full the whole amount so due and unpaid upon
the Debt Securities of such series, then to the payment of such
principal and premium, if any, and interest, without preference or
priority of principal and premium, if any, over interest, or of
interest over principal and premium, if any, or of any installment of
interest over any other installment of interest, or of any Debt
Security of such series over any Debt Security of such series, ratably
to the aggregate of such principal and premium, if any, and interest;
and
FOURTH: The remainder, if any, shall be paid to the Company,
its successors or assigns, or to whomsoever may be lawfully entitled to
receive the same, or as a court of competent jurisdiction may direct.
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The Trustee may, but shall not be obligated to, fix a record date and
payment date for any payment to Holders pursuant to this Section 6.03. At least
15 days before such record date, the Company shall mail to each Holder and the
Trustee a notice that states the record date, the payment date and amount to be
paid.
Section 6.04. Limitation on Suits by Holders.
No Holder of any Debt Security of any series shall have any right by
virtue or by availing of any provision of this Indenture to institute any action
or proceeding at law or in equity or in bankruptcy or otherwise, upon or under
or with respect to this Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless such Holder previously shall
have given to the Trustee written notice of an Event of Default with respect to
Debt Securities of that same series and of the continuance thereof and unless
the Holders of not less than 25% in aggregate principal amount of the
Outstanding Debt Securities of that series (each such series voting as a
separate class) shall have made written request upon the Trustee to institute
such action or proceedings in respect of such Event of Default in its own name
as Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for 60 days after its receipt of
such notice, request and offer of indemnity shall have failed to institute any
such action or proceedings and no direction inconsistent with such written
request shall have been given to the Trustee pursuant to Section 6.06; it being
understood and intended, and being expressly covenanted by the Holder of every
Debt Security with every other Holder and the Trustee, that no one or more
Holders shall have any right in any manner whatever by virtue or by availing of
any provision of this Indenture to affect, disturb or prejudice the rights of
any Holders, or to obtain or seek to obtain priority over or preference to any
other such Holder, or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all such
Holders. For the protection and enforcement of the provisions of this Section
6.04, each and every Holder and the Trustee shall be entitled to such relief as
can be given either at law or in equity.
Notwithstanding any other provision in this Indenture, however, the
right of any Holder of any Debt Security to receive payment of the principal of,
and premium, if any, and (subject to Section 2.12) interest on, such Debt
Security, on or after the respective due dates expressed or provided for in such
Debt Security, and to institute suit for the enforcement of any such payment on
or after such respective dates, shall not be impaired or affected without the
consent of such Holder.
Section 6.05. Remedies Cumulative; Delay or Omission in Exercise of Rights
Not a Waiver of Default.
All powers and remedies given by this Article VI to the Trustee or to
the Holders shall, to the extent permitted by law, be deemed cumulative and not
exclusive of any thereof or of any other powers and remedies available to the
Trustee or the Holders, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in this
Indenture, and no delay or omission of the Trustee or of any Holder to exercise
any right or power
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accruing upon any Default occurring and continuing as aforesaid, shall impair
any such right or power, or shall be construed to be a waiver of any such
Default or an acquiescence therein; and, subject to the provisions of Section
6.04, every power and remedy given by this Article VI or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as shall be
deemed expedient, by the Trustee or by the Holders.
Section 6.06. Rights of Holders of Majority in Principal Amount of Debt
Securities to Direct Trustee and to Waive Default.
The Holders of a majority in aggregate principal amount of the Debt
Securities of any series at the time Outstanding 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 Debt Securities of such series; provided, however,
that such direction shall not be otherwise than in accordance with law and the
provisions of this Indenture, and that subject to the provisions of Section
7.01, the Trustee shall have the right to decline to follow any such direction
if the Trustee being advised by counsel shall determine that the action so
directed may not lawfully be taken, or if the Trustee shall by a Responsible
Officer or officers determine that the action so directed would involve it in
personal liability or would be unjustly prejudicial to Holders of Debt
Securities of such series not taking part in such direction; and provided
further, however, that nothing in this Indenture contained shall impair the
right of the Trustee to take any action deemed proper by the Trustee and which
is not inconsistent with such direction by such Holders. Prior to the
acceleration of the maturity of the Debt Securities of any series, as provided
in Section 6.01, the Holders of a majority in aggregate principal amount of the
Debt Securities of that series at the time Outstanding may on behalf of the
Holders of all the Debt Securities of that series waive any past Default or
Event of Default and its consequences for that series specified in the terms
thereof as contemplated by Section 2.03, except (i) a Default in the payment of
the principal of, and premium, if any, or interest on, any of the Debt
Securities or in the making of any sinking fund payment and (ii) a Default in
respect of a provision that under Section 9.02 cannot be amended without the
consent of each Holder affected thereby. In case of any such waiver, such
Default shall cease to exist, any Event of Default arising therefrom shall be
deemed to have been cured for every purpose of this Indenture, and the Company,
the Trustee and the Holders of the Debt Securities of that series shall be
restored to their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.
Section 6.07. Trustee to Give Notice of Defaults Known to It, but May
Withhold Such Notice in Certain Circumstances.
The Trustee shall, within 90 days after the occurrence of a Default
known to it with respect to a series of Debt Securities, give to the Holders
thereof, in the manner provided in Section 13.03, notice of all Defaults with
respect to such series known to the Trustee, unless such Defaults shall have
been cured or waived before the giving of such notice; provided that, except in
the case of Default in the payment of the principal of, or premium, if any, or
interest on, any of the Debt
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Securities of such series or in the making of any sinking fund payment with
respect to the Debt Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a committee of directors or Responsible Officers of the Trustee in
good faith determine that the withholding of such notice is in the interests of
the Holders thereof.
Section 6.08. Requirement of an Undertaking To Pay Costs in Certain Suits
under the Indenture or Against the Trustee.
All parties to this Indenture agree, and each Holder of any Debt
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit in the manner and to
the extent provided in the Trust Indenture Act, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section 6.08 shall not apply to any suit instituted by
the Trustee, to any suit instituted by any Holder, or group of Holders, holding
in the aggregate more than 10% in principal amount of the Outstanding Debt
Securities of that 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
on, any Debt Security on or after the due date for such payment expressed in
such Debt Security.
ARTICLE VII
CONCERNING THE TRUSTEE
Section 7.01. Certain Duties and Responsibilities.
The Trustee, prior to the occurrence of an Event of Default and after
the curing or waiving of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture. In case an Event of Default has occurred (which has not
been cured or waived), the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under the circumstances
in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(a) this subsection shall not be construed to limit the effect
of the first paragraph of this Section 7.01;
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(b) prior to the occurrence of an Event of Default with
respect to the Debt Securities of a series and after the curing or
waiving of all Events of Default with respect to such series which may
have occurred:
(1) the duties and obligations of the Trustee with
respect to Debt Securities of any series shall be determined
solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of such
duties and obligations with respect to such series as are
specifically set forth in this Indenture, and no implied
covenants or obligations with respect to such series shall be
read into this Indenture against the Trustee; and
(2) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture;
but in the case of any such certificates or opinions which by
any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Indenture;
(c) the Trustee shall not be liable for an error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts; and
(d) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it with respect to Debt Securities of
any series in good faith in accordance with the direction of the
Holders of not less than a majority in aggregate principal amount of
the Outstanding Debt Securities of that series relating to the time,
method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture with respect to Debt Securities of such
series.
None of the provisions of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any personal financial liability
in the performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if there shall be reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
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Section 7.02. Certain Rights of the Trustee.
Except as otherwise provided in Section 7.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party
or parties;
(b) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by a Company Order
(unless other evidence in respect thereof be herein specifically
prescribed); and any resolution of the Board of Directors may be
evidenced to the Trustee by a copy thereof certified by the Secretary
or an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel of its selection, and
the advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in accordance
with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Holders of Debt Securities of any
series pursuant to the provisions of this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be
incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture;
(f) prior to the occurrence of an Event of Default and after
the curing of all Events of Default which may have occurred, 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, approval
or other paper or document, unless requested in writing to do so by the
Holders of a majority in aggregate principal amount of the then
Outstanding Debt Securities of a series affected by such matter;
provided, however, that if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by
it in the making of such investigation is not, in the opinion of the
Trustee, reasonably assured to the Trustee by the security afforded to
it by the terms of this Indenture, the Trustee may require reasonable
indemnity against such costs, expenses or liabilities as a condition to
so proceeding. The
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reasonable expense of every such investigation shall be paid by the
Company or, if paid by the Trustee, shall be repaid by the Company upon
demand;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed by it with due care hereunder;
(h) if any property other than cash shall at any time be
subject to a Lien in favor of the Holders, the Trustee, if and to the
extent authorized by a receivership or bankruptcy court of competent
jurisdiction or by the supplemental instrument subjecting such property
to such lien, shall be entitled, but not required, to make advances for
the purpose of preserving such property or of discharging tax Liens or
other prior Liens or encumbrances thereon; and
(i) the Trustee shall not be charged with knowledge of any
Event of Default under Section 6.01(d) or of the identity of any
Significant Subsidiary unless either (a) a Responsible Officer of the
Trustee assigned to its Corporate Trustee Administration Department
shall have actual knowledge thereof or (b) the Trustee shall have
received written notice thereof in accordance with Section 13.03 from
the Company or any Registered Holder.
Section 7.03. Trustee Not Liable for Recitals in Indenture or in Debt
Securities.
The recitals contained herein, in the Debt Securities (except the
Trustee's certificate of authentication) shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for the correctness of the
same. The Trustee makes no representations as to the validity or sufficiency of
this Indenture or of the Debt Securities of any series, except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture,
authenticate the Debt Securities and perform its obligations hereunder, and that
the statements made by it or to be made by it in a Statement of Eligibility on
Form T-1 supplied to the Company are true and accurate. The Trustee shall not be
accountable for the use or application by the Company of any of the Debt
Securities or of the proceeds thereof.
Section 7.04. Trustee, Paying Agent or Registrar May Own Debt Securities.
The Trustee or any paying agent or Registrar, in its individual or any
other capacity, may become the owner or pledgee of Debt Securities and subject
to the provisions of the Trust Indenture Act relating to conflicts of interest
and preferential claims may otherwise deal with the Company with the same rights
it would have if it were not Trustee, paying agent or Registrar.
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Section 7.05. Moneys Received by Trustee to Be Held in Trust.
Subject to the provisions of Section 11.05, all moneys received by the
Trustee shall, until used or applied as herein provided, be held in trust for
the purposes for which they were received, but need not be segregated from other
funds except to the extent required by law. The Trustee shall be under no
liability for interest on any moneys received by it hereunder. So long as no
Event of Default shall have occurred and be continuing, all interest allowed on
any such moneys shall be paid from time to time to the Company upon a Company
Order.
Section 7.06. Compensation and Reimbursement.
The Company covenants and agrees to pay in Dollars to the Trustee such
compensation as the Company and the Trustee from time to time agree in writing
for all services rendered by it hereunder (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust), and, except as otherwise expressly provided herein, the Company will pay
or reimburse in Dollars the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its agents,
attorneys and counsel and of all Persons not regularly in its employ) except any
such expense, disbursement or advances as may arise from its negligence, willful
misconduct or bad faith. The Company also covenants to indemnify in Dollars the
Trustee for, and to hold it harmless against, any loss, liability or expense
incurred without negligence, willful misconduct or bad faith on the part of the
Trustee, arising out of or in connection with the acceptance or administration
of this trust or trusts hereunder, including the reasonable costs and expenses
of defending itself against any claim of liability in connection with the
exercise or performance of any of its powers or duties hereunder. The
obligations of the Company under this Section 7.06 to compensate and indemnify
the Trustee and to pay or reimburse the Trustee for expenses, disbursements and
advances shall constitute additional indebtedness hereunder and shall survive
the satisfaction and discharge of this Indenture. The Company and the Holders
agree that such additional indebtedness shall be secured by a Lien prior to that
of the Debt Securities 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, if any, or interest on, particular Debt Securities.
Without prejudice to any other rights available to the Trustee under
applicable law, when the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(f) or (g) occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under any bankruptcy, insolvency, reorganization or other similar
law.
Section 7.07. Right of Trustee to Rely on an Officers' Certificate Where No
Other Evidence Specifically Prescribed.
Except as otherwise provided in Section 7.01, whenever in the
administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved
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or established prior to taking or suffering or omitting any action hereunder,
such matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of the
Trustee, be deemed to be conclusively proved and established by an Officers'
Certificate delivered to the Trustee and such certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall be full warrant to the
Trustee for any action taken, suffered or omitted by it under the provisions of
this Indenture upon the faith thereof.
Section 7.08. Separate Trustee; Replacement of Trustee.
The Company may, but need not, appoint a separate Trustee for any one
or more series of Debt Securities. The Trustee may resign with respect to one or
more or all series of Debt Securities at any time by giving notice to the
Company. The Holders of a majority in principal amount of the Debt Securities of
a particular series may remove the Trustee for such series and only such series
by so notifying the Trustee and may appoint a successor Trustee. The Company may
remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property;
(4) the Trustee otherwise becomes incapable of acting; or
(5) the Trustee consolidates, merges or converts, or transfers
its assets as set forth in Section 7.09; provided that (a) the Company
delivers written notice of its intention to replace the Trustee to the
resulting, surviving or transferee corporation within five calendar
days after the Company receives notice from the Trustee pursuant to
Section 7.09 of the occurrence of such consolidation, merger or
conversion, or transfer and (b) during the period of time from and
including the effective date of such consolidation, merger or
conversion, or transfer through and including the date that the Company
delivers written notice pursuant to clause (a) above and removes the
Trustee, there exists no Event of Default or Default.
If the Trustee resigns, is removed by the Company or by the Holders of
a majority in principal amount of the Debt Securities of a particular series
and, in the latter case, such Holders do not reasonably promptly appoint a
successor Trustee, or if a vacancy exists in the office of Trustee for any
reason (the Trustee in such event being referred to herein as the retiring
Trustee), the Company shall promptly appoint a successor Trustee. No resignation
or removal of the Trustee and no appointment of a successor Trustee shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of this Section 7.08.
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A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of Debt Securities of each applicable series. The retiring
Trustee shall promptly transfer all property held by it as Trustee to the
successor Trustee, subject to the Lien provided for in Section 7.06.
If a successor Trustee does not take office within 60 days after the
retiring Trustee gives notice of resignation or is removed, the retiring Trustee
or the Holders of 25% in principal amount of the Debt Securities of any
applicable series may petition any court of competent jurisdiction for the
appointment of a successor Trustee for the Debt Securities of such series.
If the Trustee fails to comply with Section 7.10, any Holder of Debt
Securities of any applicable series permitted to do so pursuant to the Trust
Indenture Act may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee for the Debt
Securities of such series.
Notwithstanding the replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.06 shall continue for the
benefit of the retiring Trustee.
In the case of the appointment hereunder of a separate or successor
trustee with respect to the Debt Securities of one or more series, the Company,
any retiring Trustee and each successor or separate Trustee with respect to the
Debt Securities of any applicable series shall execute and deliver an Indenture
supplemental hereto (1) which shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of any retiring Trustee with respect to the Debt Securities of any series as to
which any such retiring Trustee is not retiring shall continue to be vested in
such retiring Trustee and (2) that shall add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one trustee, it being
understood that nothing herein or in such supplemental Indenture shall
constitute such Trustees co-trustees of the same trust and that each such
separate, retiring or successor 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.
Section 7.09. Successor Trustee by Merger.
If the Trustee consolidates with, merges or converts into, or transfers
all or substantially all its corporate trust business or assets to, another
corporation or banking association, the resulting, surviving or transferee
corporation or banking association without any further act shall be the
successor Trustee unless the Company provides written notice to and removes such
resulting, surviving or transferee corporation in accordance with Section
7.08(5). The Trustee shall provide written notice to the Company of such
consolidation, merger or conversion, or transfer promptly
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after the occurrence thereof, but in no event later than five calendar days
thereafter. Such notice shall include the effective date of such consolidation,
merger or conversion, or transfer.
In case at the time such successor or successors by merger, conversion
or consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of the Debt Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Debt Securities so
authenticated; and in case at that time any of the Debt Securities shall not
have been authenticated, any successor to the Trustee may authenticate such Debt
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Debt Securities or in this Indenture
provided that the certificate of the Trustee shall have.
Section 7.10. Eligibility; Disqualification.
The Trustee shall at all times satisfy the requirements of Section
310(a) of the Trust Indenture Act. The Trustee shall have a combined capital and
surplus of at least $50,000,000 as set forth in its most recent published annual
report of condition. No obligor upon the Debt Securities of a particular series
or Person directly or indirectly controlling, controlled by or under common
control with such obligor shall serve as Trustee upon the Debt Securities of
such series. The Trustee shall comply with Section 310(b) of the Trust Indenture
Act, subject to the penultimate paragraph thereof; provided, however, that there
shall be excluded from the operation of Section 310(b)(1) of the Trust Indenture
Act this Indenture or any indenture or indentures under which other securities
or certificates of interest or participation in other securities of the Company
are outstanding if the requirements for such exclusion set forth in Section
310(b)(1) of the Trust Indenture Act are met.
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship listed in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act to the extent indicated therein.
Section 7.12. Compliance with Tax Laws.
The Trustee hereby agrees to comply with all United States Federal
income tax information reporting and withholding requirements applicable to it
with respect to payments of premium (if any) and interest on the Debt
Securities, whether acting as Trustee, Security Registrar, paying agent or
otherwise with respect to the Debt Securities.
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ARTICLE VIII
CONCERNING THE HOLDERS
Section 8.01. Evidence of Action by Holders.
Whenever in this Indenture it is provided that the Holders of a
specified percentage in aggregate principal amount of the Debt Securities of any
or all series may take action (including the making of any demand or request,
the giving of any direction, notice, consent or waiver or the taking of any
other action) the fact that at the time of taking any such action the Holders of
such specified percentage have joined therein may be evidenced by any instrument
or any number of instruments of similar tenor executed by Holders in Person or
by agent or proxy appointed in writing.
Section 8.02. Proof of Execution of Instruments and of Holding of Debt
Securities.
Subject to the provisions of Sections 7.01, 7.02 and 13.09, proof of
the execution of any instrument by a Holder or his agent or proxy shall be
sufficient if made in accordance with the provisions of this Article VIII.
The fact and date of the execution of any such instrument or proxy, or
the authority of the Person executing the same, may be proved in any manner
which the Trustee deems sufficient.
The ownership of Registered Securities of any series shall be proved by
the Debt Security Register or by a certificate of the Registrar for such series.
Section 8.03. Who May Be Deemed Owner of Debt Securities.
Prior to due presentment for registration of transfer of any Registered
Security, the Company, the Trustee, any paying agent and any Registrar may deem
and treat the Person in whose name any Registered Security shall be registered
upon the books of the Company as the absolute owner of such Registered Security
(whether or not such Registered Security shall be overdue and notwithstanding
any notation of ownership or other writing thereon) for the purpose of receiving
payment of or on account of the principal of and premium, if any, and (subject
to Section 2.12) interest on such Registered Security and for all other
purposes, and neither the Company nor the Trustee nor any paying agent nor any
Registrar shall be affected by any notice to the contrary; and all such payments
so made to any such Holder for the time being, or upon his order, shall be valid
and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable upon any such Registered Security.
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Section 8.04. Instruments Executed by Holders Bind Future Holders; Record
Dates.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 8.01, of the taking of any action by the Holders of the
percentage in aggregate principal amount of the Debt Securities of any series
specified in this Indenture in connection with such action and subject to the
following paragraph, any Holder of a Debt Security which is shown by the
evidence to be included in the Debt Securities the Holders of which have
consented to such action may, by filing written notice with the Trustee at its
Corporate Trust Office and upon proof of holding as provided in Section 8.02,
revoke such action so far as concerns such Debt Security. Except as aforesaid
any such action taken by the Holder of any Debt Security shall be conclusive and
binding upon such Holder and upon all future Holders and owners of such Debt
Security and of any Debt Security issued upon registration of transfer thereof
or in exchange or substitution therefor, irrespective of whether or not any
notation in regard thereto is made upon such Debt Security or such other Debt
Securities. Any action taken by the Holders of the percentage in aggregate
principal amount of the Debt Securities of any series specified in this
Indenture in connection with such action shall be conclusively binding upon the
Company, the Trustee and the Holders of all the Securities of such series.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders of Registered Securities of any series
entitled to give their consent or take any other action required or permitted to
be taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were
Holders of Registered Securities at the close of business on such record date
(or their duly designated proxies), and only those Persons, (i) shall be
entitled to give such consent or to revoke any consent previously given or to
take any such action, whether or not such Persons continue to be Holders of
Registered Securities after such record date and (ii) shall be taken into
account for the purpose of determining whether Holders of the requisite
proportion of Debt Securities of such series Outstanding have authorized or
agreed or consented to such action, and for that purpose the Debt Securities of
such series Outstanding shall be computed as of such record date. No such
consent shall be valid or effective for more than 120 days after such record
date unless the consent of the Holders of the percentage in aggregate principal
amount of the Debt Securities of such series specified in this Indenture shall
have been received within such 120-day period.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.01. Purposes for Which Supplemental Indenture May Be Entered into
Without Consent of Holders.
The Company, when authorized by a resolution of the Board of Directors,
and the Trustee may from time to time and at any time, without the consent of
Holders, enter into an Indenture or
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Indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as in force at the date of the execution thereof) for one or
more of the following purposes:
(a) to evidence the succession pursuant to Article X of
another Person to the Company, or successive successions, and the
assumption by the Successor Company (as defined in Section 10.01) of
the covenants, agreements and obligations of the Company in this
Indenture and in the Debt Securities;
(b) to surrender any right or power herein conferred upon the
Company, to add to the covenants of the Company such further covenants,
restrictions, conditions or provisions for the protection of the
Holders of all or any series of Debt Securities (and if such covenants
are to be for the benefit of less than all series of Debt Securities,
stating that such covenants are expressly being included solely for the
benefit of such series) as the Board of Directors shall consider to be
for the protection of the Holders of such Debt Securities, and to make
the occurrence, or the occurrence and continuance, of a Default in any
of such additional covenants, restrictions, conditions or provisions a
Default or an Event of Default permitting the enforcement of all or any
of the several remedies provided in this Indenture; provided, that in
respect of any such additional covenant, restriction, condition or
provision such supplemental Indenture may provide for a particular
period of grace after Default (which period may be shorter or longer
than that allowed in the case of other Defaults) or may provide for an
immediate enforcement upon such Default or may limit the remedies
available to the Trustee upon such Default or may limit the right of
the Holders of a majority in aggregate principal amount of any or all
series of Debt Securities to waive such default;
(c) to cure any ambiguity or to correct or supplement any
provision contained herein, in any supplemental Indenture or in any
Debt Securities of any series that may be defective or inconsistent
with any other provision contained herein, in any supplemental
Indenture or in the Debt Securities of such series;
(d) to modify or amend this Indenture in such a manner as to
permit the qualification of this Indenture or any Indenture
supplemental hereto under the Trust Indenture Act as then in effect,
except that nothing herein contained shall permit or authorize the
inclusion in any Indenture supplemental hereto of the provisions
referred to in Section 316(a)(2) of the Trust Indenture Act;
(e) to convey, transfer, assign, mortgage or pledge any
property to or with the Trustee, or to make such other provisions in
regard to matters or questions arising under this Indenture as shall
not adversely affect the interests of any Holders of Debt Securities of
any series;
(f) to add Guarantees with respect to the Debt Securities or
to secure the Debt Securities;
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(g) to make any change that does not adversely affect the
rights of any Holder;
(h) to add to, change or eliminate any of the provisions of
this Indenture in respect of one or more series of Debt Securities;
provided, however, that any such addition, change or elimination not
otherwise permitted under this Section 9.01 (i) shall neither (A) apply
to any Debt Security of any series created prior to the execution of
such supplemental Indenture and entitled to the benefit of such
provision nor (B) modify the rights of the Holder of any such Debt
Security with respect to such provision or (ii) shall become effective
only when there is no such Debt Security Outstanding;
(i) to evidence and provide for the acceptance of appointment
hereunder by a successor or separate Trustee with respect to the Debt
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; and
(j) to establish the form or terms of Debt Securities of any
series as permitted by Sections 2.01 and 2.03.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental Indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Trustee shall not be obligated to enter into any such supplemental
Indenture which adversely affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise.
Any supplemental Indenture authorized by the provisions of this Section
9.01 may be executed by the Company and the Trustee without the consent of the
Holders of any of the Debt Securities at the time Outstanding, notwithstanding
any of the provisions of Section 9.02.
After an amendment under this Section 9.01 becomes effective, the
Company shall mail to Holders of Debt Securities of each series affected thereby
a notice briefly describing such amendment. The failure to give such notice to
all such Holders, or any defect therein, shall not impair or affect the validity
of an amendment under this Section 9.01.
Section 9.02. Modification of Indenture with Consent of Holders of Debt
Securities.
Without notice to any Holder but with the consent (evidenced as
provided in Section 8.01) of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Debt Securities of each series
affected by such supplemental Indenture, the Company, when authorized by a
resolution of the Board of Directors, and the Trustee may from time to time and
at any time enter into an Indenture or Indentures supplemental hereto (which
shall conform to the provisions of the Trust Indenture Act as in force at the
date of execution thereof) for the purpose of adding any
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provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of any supplemental Indenture or of modifying in any manner
the rights of the Holders of the Debt Securities of such series; provided, that
no such supplemental Indenture, without the consent of the Holders of each Debt
Security so affected, shall (i) reduce the percentage in principal amount of
Debt Securities of any series whose Holders must consent to an amendment; (ii)
reduce the rate of or extend the time for payment of interest on any Debt
Security; (iii) reduce the principal of or extend the Stated Maturity of any
Debt Security; (iv) reduce the premium payable upon the redemption of any Debt
Security or change the time at which any Debt Security may or shall be redeemed
in accordance with Article III; (v) make any Debt Security payable in Currency
other than that stated in the Debt Security; (vi) release any security that may
have been granted in respect of the Debt Securities; (vii) make any change in
Section 6.06 or this Section 9.02; or (viii) modify the provisions of this
Indenture with respect to the subordination provisions of the Debt Securities or
the definition of "Senior Indebtedness" in a manner adverse to the Holders.
A supplemental Indenture which changes or eliminates any covenant or
other provision of this Indenture which has been expressly included solely for
the benefit of one or more particular series of Debt Securities or which
modifies the rights of the Holders of Debt 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 Debt Securities of any other
series.
Upon the request of the Company, accompanied by a copy of a resolution
of the Board of Directors authorizing the execution of any such supplemental
Indenture, and upon the filing with the Trustee of evidence of the consent of
Holders as aforesaid, the Trustee shall join with the Company in the execution
of such supplemental Indenture unless such supplemental Indenture adversely
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion but shall not be
obligated to enter into such supplemental Indenture.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed supplemental
Indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
After an amendment under this Section 9.02 becomes effective, the
Company shall mail to Holders of Debt Securities of each series affected thereby
a notice briefly describing such amendment. The failure to give such notice to
all such Holders, or any defect therein, shall not impair or affect the validity
of an amendment under this Section 9.02.
Section 9.03. Effect of Supplemental Indentures.
Upon the execution of any supplemental Indenture pursuant to the
provisions of this Article IX, this Indenture shall be and be deemed to be
modified and amended in accordance therewith and the respective rights,
limitations of rights, obligations, duties and immunities under this Indenture
of the Trustee, the Company and the Holders shall thereafter be determined,
exercised and enforced
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hereunder subject in all respects to such modifications and amendments, and all
the terms and conditions of any such supplemental Indenture shall be and be
deemed to be part of the terms and conditions of this Indenture for any and all
purposes.
The Trustee, subject to the provisions of Sections 7.01 and 7.02, may
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any such supplemental Indenture complies with the provisions of
this Article IX.
Section 9.04. Debt Securities May Bear Notation of Changes by Supplemental
Indentures.
Debt Securities of any series authenticated and delivered after the
execution of any supplemental Indenture pursuant to the provisions of this
Article IX 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. New Debt Securities of any series so modified as to conform, in the
opinion of the Trustee and the Board of Directors, to any modification of this
Indenture contained in any such supplemental Indenture may be prepared and
executed by the Company, authenticated by the Trustee and delivered in exchange
for the Debt Securities of such series then Outstanding. Failure to make the
appropriate notation or to issue a new Debt Security of such series shall not
affect the validity of such amendment.
Section 9.05 Subordination Unimpaired.
This Indenture may not be amended to alter the subordination of any of
the Outstanding Debt Securities without the written consent of each holder of
Senior Indebtedness then outstanding that would be adversely affected thereby.
ARTICLE X
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 10.01. Consolidations and Mergers of the Company.
The Company shall not consolidate with or merge with or into any
Person, or sell, convey, transfer, lease or otherwise dispose of all or
substantially all its assets (in one transaction or a series of related
transactions), unless: (i) either (a) the Company shall be the continuing Person
in the case of a merger or (b) the resulting, surviving or transferee Person if
other than the Company (the "Successor Company") shall be a corporation
organized and existing under the laws of the United States, any State thereof or
the District of Columbia and the Successor Company shall expressly assume, by an
Indenture supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all the obligations of the Company under the Debt
Securities according to their tenor, and this Indenture; (ii) immediately after
giving effect to such transaction (and treating any Indebtedness which becomes
an obligation of the Successor Company or any Subsidiary of the Company as a
result of such transaction as having been incurred by the Successor
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Company or such Subsidiary at the time of such transaction), no Default or Event
of Default would occur or be continuing; and (iii) the Company shall have
delivered to the Trustee an Officers' Certificate and an Opinion of Counsel,
each stating that such consolidation, merger, transfer, lease or other
disposition and such supplemental Indenture (if any) comply with this Indenture.
Section 10.02. Rights and Duties of Successor Corporation.
In case of any consolidation or merger, or conveyance or transfer
(other than by way of lease) of all or substantially all the assets of the
Company in accordance with Section 10.01, the Successor Company shall succeed to
and be substituted for the Company, with the same effect as if it had been named
herein as the Company, and the predecessor corporation shall be relieved of any
further obligation under the Indenture and the Debt Securities. The Successor
Company thereupon may cause to be signed, and may issue either in its own name
or in the name of the Company, any or all the Debt Securities issuable hereunder
which theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of the Successor Company, instead of the Company,
and subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver any Debt Securities
which previously shall have been signed and delivered by the officers of the
Company to the Trustee for authentication, and any Debt Securities which the
Successor Company thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All the Debt Securities so issued shall in all
respects have the same legal rank and benefit under this Indenture as the Debt
Securities theretofore or thereafter issued in accordance with the terms of this
Indenture as though all such Debt Securities had been issued at the date of the
execution hereof.
In case of any such consolidation, merger, sale or conveyance such
changes in phraseology and form (but not in substance) may be made in the Debt
Securities thereafter to be issued as may be appropriate.
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE; UNCLAIMED MONEYS
Section 11.01. Applicability of Article.
If, pursuant to Section 2.03, provision is made for the defeasance of
Debt Securities of a series and if the Debt Securities of such series are
denominated and payable only in Dollars (except as provided pursuant to Section
2.03), then the provisions of this Article XI relating to defeasance of Debt
Securities shall be applicable except as otherwise specified pursuant to Section
2.03 for Debt Securities of such series. Defeasance provisions, if any, for Debt
Securities denominated in a Foreign Currency may be specified pursuant to
Section 2.03.
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Section 11.02. Satisfaction and Discharge of Indenture; Defeasance.
(a) If at any time (i) the Company shall have delivered to the Trustee
for cancellation all Debt Securities of any series theretofore authenticated and
delivered (other than (1) any Debt Securities of such series which shall have
been destroyed, lost or stolen and which shall have been replaced or paid as
provided in Section 2.09 and (2) Debt Securities for whose payment money has
theretofore been deposited in trust and thereafter repaid to the Company as
provided in Section 11.05) or (ii) all Debt Securities of such series not
theretofore delivered to the Trustee for cancellation shall have become due and
payable, or are by their terms to become due and payable within one year or are
to be called for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption, and the Company shall
deposit with the Trustee as trust funds the entire amount in the Currency in
which such Debt Securities are denominated (except as otherwise provided
pursuant to Section 2.03) sufficient (in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee) without consideration of any reinvestment and
after payment of all taxes or other charges and assessments in respect thereof
payable by the Trustee, to pay at maturity or upon redemption all Debt
Securities of such series not theretofore delivered to the Trustee for
cancellation, including principal and premium, if any, and interest due or to
become due on such date of maturity or redemption date, as the case may be, no
default with respect to the Debt Securities has occurred and is continuing on
the date of such deposit, such deposit does not result in a breach or violation
of, or constitute a default under, the Indenture or any other agreement or
instrument to which the Company is a party and the Company delivers an Officers'
Certificate and an Opinion of Counsel each stating that such conditions have
been complied with and if in either case the Company shall also pay or cause to
be paid all other sums payable hereunder by the Company, then this Indenture
shall cease to be of further effect (except as to any surviving rights of
registration of transfer or exchange of such Debt Securities herein expressly
provided for and rights to receive payments of principal of, and premium, if
any, and interest on, such Debt Securities) with respect to the Debt Securities
of such series, and the Trustee, on demand of the Company, shall execute proper
instruments acknowledging satisfaction of and discharging this Indenture.
(b) Subject to Sections 11.02(c), 11.03 and 11.07, the Company at any
time may terminate, with respect to Debt Securities of a particular series, (i)
all its obligations under the Debt Securities of such series and this Indenture
with respect to the Debt Securities of such series ("legal defeasance option")
or (ii) its obligations with respect to the Debt Securities of such series under
clause (iii) of Section 10.01 and the related operation of Section 6.01(d) (to
the extent Section 6.01(d) requires the delivery by the Company to the Trustee
of the Officers' Certificate and Opinion of Counsel described in Section
10.01(iii)) and the operation of Sections 6.01(f) (with respect to Significant
Subsidiaries only) and (g) (with respect to Significant Subsidiaries only)
("covenant defeasance option"). The Company may exercise its legal defeasance
option notwithstanding its prior exercise of its covenant defeasance option.
If the Company exercises its legal defeasance option, payment of the
Debt Securities of the defeased series may not be accelerated because of an
Event of Default. If the Company exercises
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its covenant defeasance option, payment of the Debt Securities of the defeased
series may not be accelerated because of an Event of Default specified in
Sections 6.01(d) (to the extent Section 6.01(d) requires the delivery by the
Company to the Trustee of the Officers' Certificate and Opinion of Counsel
described in Section 10.01(iii)), (f) (with respect to Significant Subsidiaries
only) and (g) (with respect to Significant Subsidiaries only).
Upon satisfaction of the conditions set forth herein and upon request
of the Company, the Trustee shall acknowledge in writing the discharge of those
obligations that the Company terminates.
(c) Notwithstanding clause (a) above and the exercise of the legal
defeasance option in clause (b) above, the Company's obligations in Sections
2.07, 2.09, 4.02, 4.04, 5.01, 7.06, 7.10, 11.05, 11.06 and 11.07 shall survive
until the Debt Securities of the defeased series have been paid in full.
Thereafter, the Company's obligations in Sections 7.06, 11.05 and 11.06 shall
survive.
Section 11.03. Conditions to Defeasance.
The Company may exercise its legal defeasance option or its covenant
defeasance option with respect to Debt Securities of a particular series only
if:
(1) the Company irrevocably deposits in trust with the Trustee
money or U.S. Government Obligations for the payment of principal of,
and premium, if any, and interest on, the Debt Securities of such
series to maturity or redemption, as the case may be;
(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent public accountants expressing
their opinion that the payments of principal and interest when due and
without reinvestment on the deposited U.S. Government Obligations plus
any deposited money without investment will provide cash at such times
and in such amounts as will be sufficient to pay the principal,
premium, if any, and interest when due on all the Debt Securities of
such series to maturity or redemption, as the case may be;
(3) 91 days pass after the deposit is made and during the
91-day period no Default specified in Section 6.01(f) or (g) with
respect to the Company occurs which is continuing at the end of the
period;
(4) no Default has occurred and is continuing on the date of
such deposit and after giving effect thereto;
(5) the deposit does not constitute a default under any other
agreement binding on the Company;
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(6) the Company delivers to the Trustee an Opinion of Counsel
to the effect that the trust resulting from the deposit does not
constitute, or is qualified as, a regulated investment company under
the Investment Company Act of 1940;
(7) in the event of the legal defeasance option, 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
ruling, or (ii) since the date 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 of Counsel shall confirm
that, the Holders of Debt Securities of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of
such defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such defeasance had not occurred;
(8) in the event of the covenant defeasance option, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of Debt Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a
result of such covenant defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not
occurred; and
(9) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance and discharge of the Debt Securities of
such series as contemplated by this Article XI have been complied with.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Debt Securities of such series
at a future date in accordance with Article III.
Section 11.04. Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to this Article XI. It shall apply the deposited
money and the money from U.S. Government Obligations through any paying agent
and in accordance with this Indenture to the payment of principal of, and
premium, if any, and interest on, the Debt Securities of the defeased series.
Section 11.05. Repayment to Company.
The Trustee and any paying agent shall promptly turn over to the
Company upon request any excess money or securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee and any
paying agent shall pay to the Company upon request any money held by them for
the payment of principal, premium
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or interest that remains unclaimed for two years, and, thereafter, Holders
entitled to such money must look to the Company for payment as general creditors
and all liability of the Trustee or such paying agent with respect to such money
shall thereupon cease.
Section 11.06. Indemnity for U.S. Government Obligations.
The Company shall pay and shall indemnify the Trustee and the Holders
against any tax, fee or other charge imposed on or assessed against deposited
U.S. Government Obligations or the principal and interest received on such U.S.
Government Obligations.
Section 11.07. Reinstatement.
If the Trustee or any paying agent is unable to apply any money or U.S.
Government Obligations in accordance with this Article XI by reason of any legal
proceeding or by reason of any order or judgment of any court or government
authority enjoining, restraining or otherwise prohibiting such application, the
Company's obligations under this Indenture and the Debt Securities of the
defeased series shall be revived and reinstated as though no deposit had
occurred pursuant to this Article XI until such time as the Trustee or any
paying agent is permitted to apply all such money or U.S. Government Obligations
in accordance with this Article XI.
ARTICLE XII
SUBORDINATION
Section 12.01 Debt Securities Subordinated to Senior Indebtedness.
The Company, for itself, its successors and assigns, covenants and
agrees, and each Holder of Debt Securities by his acceptance thereof likewise
covenants and agrees, that the payment of the principal of and interest on each
and all of the Debt Securities is hereby expressly subordinated to the extent
and in the manner hereinafter set forth, in right of payment to the prior
payment in full of all Senior Indebtedness.
Section 12.02 Payments Upon Dissolution of the Company.
Upon any distribution of assets of the Company upon dissolution,
winding up, liquidation or reorganization of the Company, whether in bankruptcy,
insolvency, reorganization or receivership proceedings or upon an assignment for
the benefit of creditors or any other marshalling of the assets and liabilities
of the Company or otherwise (subject to the power of a court of competent
jurisdiction to make other equitable provisions reflecting the rights conferred
in this Indenture or any supplemental indenture entered into pursuant to Article
IX upon the Senior Indebtedness and the holders thereof with respect to the Debt
Securities and the Holders thereof by a lawful plan of reorganization under
applicable bankruptcy law),
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(i) the holders of all Senior Indebtedness shall first be
entitled to receive payment in full in accordance with the terms of
such Senior Indebtedness of the principal thereof, premium, if any, and
the interest due thereon (including interest accruing subsequent to the
commencement of any proceeding for the bankruptcy or reorganization of
the Company under any applicable bankruptcy, insolvency, or similar law
now or hereafter in effect) before the Holders of Debt Securities are
entitled to receive any payment upon the principal of or premium, if
any, or interest on Indebtedness evidenced by the Debt Securities; and
(ii) any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities, to
which the Holders of the Debt Securities would be entitled except for
the provisions of this Article XII, including any such payment or
distribution which may be payable or deliverable by reason of the
payment of any other Indebtedness of the Company being subordinated to
the payment of the Debt Securities shall be paid by the liquidating
trustee or agent or other person making such payment or distribution,
whether a trustee in bankruptcy, a receiver or liquidating trustee or
otherwise, directly to the holders of Senior Indebtedness or their
representative or representatives or to the trustee or trustees under
any indenture under which any instruments evidencing any of such Senior
Indebtedness may have been issued, in accordance with the priorities
then existing among holders of Senior Indebtedness for payment of the
aggregate amounts remaining unpaid on account of the principal,
premium, if any, and interest (including interest accruing subsequent
to the commencement of any proceeding for the bankruptcy or
reorganization of the Company under any applicable bankruptcy,
insolvency, or similar law now or hereafter in effect) on the Senior
Indebtedness held or represented by each, to the extent necessary to
make payment in full of all Senior Indebtedness remaining unpaid, after
giving effect to any concurrent payment or distribution to the holders
of such Senior Indebtedness; it being understood that if the Holders of
the Debt Securities shall fail to file a proper claim in the form
required by any proceeding referred to in this subparagraph (ii) prior
to 30 days before the expiration of the time to file such claim or
claims, then the holders of Senior Indebtedness are hereby authorized
to file an appropriate claim or claims for and on behalf of the Holders
of the Debt Securities, in the form required in any such proceeding
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, including any such payment or distribution which may be
payable or deliverable by reason of the payment of any other Indebtedness of the
Company being subordinate to the payment of the Debt Securities shall be
received by the Trustee or Holders of the Debt Securities before all Senior
Indebtedness is paid in full, such payment or distribution shall be paid over to
the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee,
agent or other Person making payment of assets of the Company for all Senior
Indebtedness remaining unpaid until all such Senior Indebtedness shall have been
paid in full, after giving effect to any concurrent payment or distributions to
the holders of such Senior Indebtedness.
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<PAGE> 70
Section 12.03 Default in Senior Indebtedness.
In the event and during the continuation of any default in the payment
of principal of, or premium, if any, or interest on, any Senior Indebtedness,
beyond any applicable period of grace, or in the event that any event of default
with respect to any Senior Indebtedness shall have occurred and be continuing,
or would occur as a result of the payment referred to hereinafter, permitting
the holders of such Senior Indebtedness (or a trustee on behalf of the holders
thereof) to accelerate the maturity thereof, then, unless and until such default
or event of default shall have been cured or waived or shall have ceased to
exist, no payment of principal of or interest on the Debt Securities, or in
respect of any retirement, purchase or other acquisition of any of the Debt
Securities shall be made by the Company.
Section 12.04 Payment Permitted if No Default.
Nothing contained in this Article XII or elsewhere in this Indenture or
in any of the Debt Securities shall prevent (i) the Company, at any time except
during the pendency of any case, proceeding, dissolution, liquidation or other
winding up, assignment for the benefit of creditors or other marshalling of
assets and liabilities of the Company referred to in Section 12.02 or under the
conditions described in Section 12.03, from making payments at any time of the
principal amount, interest or such other amounts as may be provided for in
Section 2.03, if any, as the case may be, in respect of the Debt Securities, or
(ii) the application by the Trustee or the retention by any Holder of any money
deposited with it hereunder to the payment of or on account of the principal
amount, interest or such other amounts as may be provided for in Section 2.03,
if any, as the case may be, in respect of the Debt Securities if the Trustee did
not have knowledge obtained in the manner and by the time provided in Section
12.09 that such payment would have been prohibited by the provisions of this
Article.
Section 12.05 Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all amounts due or to become due on
all Senior Indebtedness, or the provision for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of Senior
Indebtedness, the Holders of the Debt Securities shall be subrogated to the
extent of the payments or distributions made to the holders of such Senior
Indebtedness pursuant to the provisions of this Article (equally and ratably
with the holders of all Indebtedness of the Company that by its express terms is
subordinated to Senior Indebtedness of the Company to substantially the same
extent as the Debt Securities are subordinated to the Senior Indebtedness and is
entitled to like rights of subrogation by reason of any payments or
distributions made to holders of such Senior Indebtedness) to the rights of the
holders of such Senior Indebtedness to receive payments and distributions of
cash, property and securities applicable to the Senior Indebtedness until the
principal amount, interest or such other amounts as may be provided, if any, as
the case may be, in respect of the Debt Securities shall be paid in full. For
purposes of such subrogation, no payments or distributions to the holders of the
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<PAGE> 71
Senior Indebtedness of any cash, property or securities to which the Holders of
the Debt Securities or the Trustee would be entitled except for the provisions
of this Article, and no payments pursuant to the provisions of this Article to
the holders of Senior Indebtedness by Holders of the Debt Securities or the
Trustee, shall, as among the Company, its creditors other than holders of Senior
Indebtedness, and the Holders of the Debt Securities, be deemed to be a payment
or distribution by the Company to or on account of the Senior Indebtedness.
Section 12.06 Provisions Solely to Define Relative Rights.
The provisions of this Article XII are and are intended solely for the
purpose of defining the relative rights of the Holders of the Debt Securities,
on the one hand, and the holders of Senior Indebtedness, on the other hand.
Nothing contained in this Article XII or elsewhere in this Indenture or in the
Debt Securities is intended to or shall: (i) impair, as between the Company and
the Holders of the Debt Securities, the obligations of the Company, which are
absolute and unconditional, to pay to the Holders of the Debt Securities the
principal amount, interest or such other amounts as may be provided, if any, as
the case may be, in respect of the Debt Securities as and when the same shall
become due and payable in accordance with their terms and this Indenture; (ii)
affect the relative rights against the Company of the Holders of the Debt
Securities and creditors of the Company other than their rights in relation to
the holders of Senior Indebtedness; or (iii) prevent the Trustee or the Holder
of any Debt Security from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any,
under this Article XII of the holders of Senior Indebtedness to receive cash,
property or securities otherwise payable or deliverable to the Trustee or such
Holder.
Section 12.07 Trustee to Effectuate Subordination.
Each Holder of a Debt Security by his or her acceptance thereof
authorizes and directs the Trustee on his or her behalf to take such action as
may be necessary or appropriate to acknowledge or effectuate the subordination
provided in this Article XII and appoints the Trustee his or her
attorney-in-fact for any and all such purposes.
Section 12.08 No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof that any such holder may have or
be otherwise charged with.
Without in any way limiting the generality of the foregoing, the
holders of Senior Indebtedness may, at any time and from time to time, without
the consent of or notice to the
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<PAGE> 72
Trustee or the Holders of the Debt Securities, without incurring responsibility
to such Holders of the Debt Securities and without impairing or releasing the
subordination provided in this Article XII or the obligations hereunder of such
Holders of the Debt Securities to the holders of Senior Indebtedness, do any one
or more of the following: (i) change the manner, place or terms of payment or
extend the time of payment of, or renew or alter, Senior Indebtedness, or
otherwise amend or supplement in any manner Senior Indebtedness or any
instrument evidencing the same or any agreement under which Senior Indebtedness
is outstanding; (ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Indebtedness; (iii) release any
Person liable in any manner for the collection of Senior Indebtedness; and (iv)
exercise or refrain from exercising any rights against the Company and any other
Person.
Section 12.09. Notice to the Trustee.
(a) The Company shall give prompt written notice to a Responsible
Officer of the Trustee of any fact known to the Company that would prohibit the
making of any payment to or by the Trustee in respect of the Debt Securities.
Notwithstanding the provisions of this Article XII or any other provision of
this Indenture, the Trustee shall not be charged with knowledge of the existence
of any facts that would prohibit the making of any payment to or by the Trustee
in respect of the Securities, unless and until the Trustee shall have received
written notice thereof from the Company or a holder of Senior Indebtedness or
from any trustee, agent or representative therefor; provided, however, that if
the Trustee shall not have received the notice provided for in this Section at
least two Business Days prior to the date upon which by the terms hereof any
monies may become payable for any purpose (including, the payment of the
principal amount, interest or such other amounts as may be provided, if any, as
the case may be, in respect of the Debt Securities), then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power and
authority to receive such monies and to apply the same to the purpose for which
they were received and shall not be affected by any notice to the contrary that
may be received by it within two Business Days prior to such date.
(b) Subject to the provisions of Section 7.01, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself or herself to be a holder of Senior Indebtedness (or a
trustee or attorney-in-fact therefor) to establish that such notice has been
given by a holder of Senior Indebtedness (or a trustee or attorney-in-fact
therefor). In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article, and if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
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<PAGE> 73
Section 12.10. Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee, subject to the provisions of Section 7.01, and the
Holders of the Debt Securities shall be entitled to rely upon any order or
decree entered by any court of competent jurisdiction in which such Proceeding
is pending, or a certificate of the trustee in bankruptcy, receiver,
conservator, liquidating trustee, custodian, assignee for the benefit of
creditors, agent or other Person making such payment or distribution, delivered
to the Trustee or to the Holders of Securities, for the purpose of ascertaining
the Persons entitled to participate in such payment or distribution, the holders
of the Senior Indebtedness and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article XII.
Section 12.11. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee, in its capacity as trustee under this Indenture, (i) shall
not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness
and (ii) shall not be liable to any such holders if it shall in good faith
mistakenly pay over or distribute to Holders of Debt Securities or to the
Company or to any other Person cash, property or securities to which any holders
of Senior Indebtedness shall be entitled by virtue of this Article or otherwise.
Section 12.12. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Indebtedness that
may at any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder, provided, however, that nothing in this Article shall
apply to claims of, or payments to, the Trustee under or pursuant to Section
7.06.
Section 12.13. Article Applicable to Paying Agents.
In case at any time any paying agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article XII shall in such case (unless the context otherwise
requires) be construed as extending to and including such paying agent within
its meaning as fully for all intents and purposes as if such paying agent were
named in this Article in addition to or in place of the Trustee, provided,
however, that Section 12.09 and clause (ii) of Section 12.11 shall not apply to
the Company or such Affiliate of the Company if the Company or such Affiliate
acts as paying agent.
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<PAGE> 74
Section 12.14 Satisfaction, Discharge and Defeasance.
Notwithstanding anything contained herein to the contrary, payments
from cash or the proceeds of United States Government Obligations held in trust
under Article XI by the Trustee and which were deposited in accordance with the
terms of Article XI and not in violation of Section 12.03 for the payment of
principal of, premium, if any, or interest on Debt Securities shall not be
subordinated to the prior payment of any Senior Indebtedness or subject to the
restrictions set forth in this Article, and none of the Holders nor the Trustee
shall be obligated to pay over any such amount to the Company or any holder of
Senior Indebtedness or any other creditor of the Company.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.01. Successors and Assigns of Company Bound by Indenture.
All the covenants, stipulations, promises and agreements in this
Indenture contained by or on behalf of the Company or the Trustee shall bind its
successors and assigns, whether so expressed or not.
Section 13.02. Acts of Board, Committee or Officer of Successor Company
Valid.
Any act or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or officer of the
Company shall and may be done and performed with like force and effect by the
like board, committee or officer of any Successor Company.
Section 13.03. Required Notices or Demands.
Except as otherwise expressly provided in this Indenture, any notice or
demand which by any provision of this Indenture is required or permitted to be
given or served by the Trustee or by the Holders to or on the Company may be
given or served by being deposited postage prepaid in a post office letter box
in the United States addressed (until another address is filed by the Company
with the Trustee) as follows: The Sherwin-Williams Company, 101 Prospect Avenue,
N.W., Cleveland, Ohio 44115, Attention: Chief Financial Officer. Except as
otherwise expressly provided in this Indenture, any notice, direction, request
or demand by the Company or by any Holder to or upon the Trustee may be given or
made, for all purposes, by being deposited postage prepaid in a post office
letter box in the United States addressed to the Corporate Trust Office of the
Trustee initially at 450 West 33rd Street, New York, New York 10001. The Company
or the Trustee by notice to the other may designate additional or different
addresses for subsequent notices or communications.
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<PAGE> 75
Any notice required or permitted to a Registered Holder by the Company
or the Trustee pursuant to the provisions of this Indenture shall be deemed to
be properly mailed by being deposited postage prepaid in a post office letter
box in the United States addressed to such Holder at the address of such Holder
as shown on the Debt Security Register. Any report pursuant to Section 313 of
the Trust Indenture Act shall be transmitted in compliance with subsection (c)
therein.
Any notice to Holders of Floating Rate Securities regarding the
determination of a periodic rate of interest, if such notice is required
pursuant to Section 2.03, shall be sufficiently given if given in the manner
specified pursuant to Section 2.03.
In the event of suspension of regular mail service or by reason of any
other cause it shall be impracticable to give notice by mail, then such
notification as shall be given with the approval of the Trustee shall constitute
sufficient notice for every purpose hereunder.
Failure to mail a notice or communication to a Holder or any defect in
it shall not affect the sufficiency of such notice with respect to other
Holders. If a notice or communication is mailed in the manner provided above, it
is conclusively presumed duly given.
Section 13.04. Indenture and Debt Securities to Be Construed in Accordance
with the Laws of the State of New York.
This Indenture and each Debt Security shall be deemed to be New York
contracts, and for all purposes shall be construed in accordance with the laws
of said State (without reference to principles of conflicts of law).
Section 13.05. Officers' Certificate and Opinion of Counsel to be Furnished
upon Application or Demand by the Company.
Upon any application or demand by the Company to the Trustee to take
any action under any of the provisions of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that, in the opinion of
such counsel, all such conditions precedent have been complied with, except that
in the case of any such application or demand as to which the furnishing of such
document is specifically required by any provision of this Indenture relating to
such particular application or demand, no additional certificate or opinion need
be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (1) a statement that the Person
making such certificate or opinion has read such covenant or condition, (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 Person, he has made such
examination or investigation as is necessary to enable
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<PAGE> 76
him to express an informed opinion as to whether or not such covenant or
condition has been complied with and (4) a statement as to whether or not, in
the opinion of such Person, such condition or covenant has been complied with.
Section 13.06. Payments Due on Legal Holidays.
In any case where the date of maturity of interest on or principal of
and premium, if any, on the Debt Securities of a series or the date fixed for
redemption or repayment of any Debt Security or the making of any sinking fund
payment shall not be a Business Day at any Place of Payment for the Debt
Securities of such series, then payment of interest or principal and premium, if
any, or the making of such sinking fund payment need not be made on such date at
such Place of Payment, but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as if made on the date of
maturity or the date fixed for redemption or repayment or for the making of any
sinking fund payment, and no interest shall accrue for the period after such
date. If a record date is not a Business Day, the record date shall not be
affected.
Section 13.07. Provisions Required by Trust Indenture Act to Control.
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with a provision of the Trust Indenture Act which is
required to be part of this Indenture or with the duties imposed by any of
Sections 310 to 318, inclusive, of the Trust Indenture Act, such required
provision or imposed duties shall control.
Section 13.08. Computation of Interest on Debt Securities.
Interest, if any, on the Debt Securities shall be computed on the basis
of a 360-day year of twelve 30-day months, except as may otherwise be provided
pursuant to Section 2.03.
Section 13.09. Rules by Trustee, Paying Agent and Registrar.
The Trustee may make reasonable rules for action by or a meeting of
Holders. The Registrar and any paying agent may make reasonable rules for their
functions.
Section 13.10. No Recourse Against Others.
An incorporator or any past, present or future director, officer,
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Debt Securities or this Indenture
or for any claim based on, in respect of or by reason of such obligations or
their creation. By accepting a Debt Security, each Holder shall waive and
release all such liability. The waiver and release shall be part of the
consideration for the issue of the Debt Securities.
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<PAGE> 77
Section 13.11. Severability.
In case any provision in this Indenture or the Debt Securities 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 13.12. Effect of Headings.
The article and section headings herein and in the Table of Contents
are for convenience only and shall not affect the construction hereof.
Section 13.13. Indenture May Be Executed in Counterparts.
This Indenture may be executed in any number of counterparts, each of
which shall be an original; but such counterparts shall together constitute but
one and the same instrument.
The Trustee hereby accepts the trusts in this Indenture upon the terms
and conditions herein set forth.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
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<PAGE> 78
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly signed as of the date first written above.
THE SHERWIN-WILLIAMS COMPANY,
By:
------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Trustee
By:
------------------------------
Name:
Title:
71
<PAGE> 1
Exhibit 25.2
-------------------------------------------------------------------
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)
--------------------------------------------
THE SHERWIN-WILLIAMS COMPANY
(Exact name of obligor as specified in its charter)
OHIO 34-0526850
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
101 PROSPECT AVENUE, N.W. 44115-1075
CLEVELAND, OHIO (Zip Code)
(Address of principal executive offices)
----------------------------------------
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.
-2-
<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. 333-06249, 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 14th day of August, 1998.
THE CHASE MANHATTAN BANK
By
----------------------------------
F. Springer
Assistant Vice President
-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 March 31, 1998, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<TABLE>
<CAPTION>
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ............................ $ 12,037
Interest-bearing balances .................... 4,054
Securities:
Held to maturity securities ....................... 2,340
Available for sale securities ..................... 50,134
Federal funds sold and securities purchased under
agreements to resell ......................... 24,982
Loans and lease financing receivables:
Loans and leases, net of unearned income ..... $127,958
Less: Allowance for loan and lease losses .... 2,797
Less: Allocated transfer risk reserve ........ 0
--------
Loans and leases, net of unearned income,
allowance, and reserve ....................... 125,161
Trading Assets .................................... 61,820
Premises and fixed assets (including capitalized
leases) ...................................... 2,961
Other real estate owned ........................... 347
Investments in unconsolidated subsidiaries and
associated companies ......................... 242
Customers' liability to this bank on acceptances
outstanding .................................. 1,380
Intangible assets ................................. 1,549
Other assets ...................................... 11,727
--------
TOTAL ASSETS ...................................... $298,734
========
</TABLE>
-4-
<PAGE> 5
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits
In domestic offices .................................................... $ 96,682
Noninterest-bearing .................................................... $ 38,074
Interest-bearing ....................................................... 58,608
In foreign offices, Edge and Agreement,
subsidiaries and IBF's ................................................. 72,630
Noninterest-bearing .................................................... $ 3,289
Interest-bearing ....................................................... 69,341
Federal funds purchased and securities sold under agree-
ments to repurchase ......................................................... 42,735
Demand notes issued to the U.S. Treasury .................................... 872
Trading liabilities ......................................................... 45,545
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less .......................... 4,454
With a remaining maturity of more than one year
through three years ............................................. 231
With a remaining maturity of more than three years ..................... 106
Bank's liability on acceptances executed and outstanding .................... 1,380
Subordinated notes and debentures ........................................... 5,708
Other liabilities ........................................................... 11,295
TOTAL LIABILITIES ........................................................... 281,638
---------
EQUITY CAPITAL
Perpetual preferred stock and related surplus ............................... 0
Common stock ................................................................ 1,211
Surplus (exclude all surplus related to preferred stock) ................... 10,291
Undivided profits and capital reserves ...................................... 5,579
Net unrealized holding gains (losses)
on available-for-sale securities ............................................ (1)
Cumulative foreign currency translation adjustments ......................... 16
TOTAL EQUITY CAPITAL ........................................................ 17,096
---------
TOTAL LIABILITIES AND EQUITY CAPITAL ........................................ $ 298,734
=========
</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 )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
